Meirink's Estate, In re

• Decision Date: 23 May 1957
• Docket Number: No. 34295,34295
• Citation: 144 N.E.2d 591,11 Ill.2d 561
• Parties: In re ESTATE of Thomas P. MEIRINK. Rosella C. WILBRET, Guardian, Appellee, v. E. A. OBERING, Intervenor, Appellant.
• Court: Illinois Supreme Court

Page 591

144 N.E.2d 591

11 Ill.2d 561

In re ESTATE of Thomas P. MEIRINK Rosella C. WILBRET, Guardian, Appellee, v. E. A. OBERING, Intervenor, Appellant.

No. 34295.

Supreme Court of Illinois.

May 23, 1957

Rehearing Denied Sept. 16, 1957.

Craig & Craig, Mt. Vernon, for appellant.

William W. Warran, Eldon E. Hazlet, guardian ad litem, Carlyle, for appellee.

DAILY, Justice.

This direct appeal, involving a freehold, is from an order entered in a guardianship proceeding by the county court of Clinton County denying a motion by appellant, E. A. Obering, to set aside a sale of the right to drill for oil and gas in land owned by the minor. Under the view we take, neither the facts nor merits of the controversy need be considered because of appellant's failure to file the record on appeal within the time required by the rules of this court. When such a breach occurs the direction of subparagraph (2)(g) of Rule 36 is: 'The reviewing court shall dismiss the appeal if the record on appeal is not filed in proper time.' Ill.Rev.Stat.1955, chap. 110, par. 101.36.

Notice of appeal was filed with the clerk of the trial court on September 17, 1956, within the prescribed time. Thus under the provisions of subparagraph (2)(d) of Rule 36, which provide that the record on appeal shall be filed in the reviewing court on or before 60 days after notice of appeal, appellant should have filed his record in this court on or before November 17, 1956. It was not filed, however, until December 5, 1956, and unless it can be said appellant properly received an extension of time, we have no choice other than to dismiss the appeal. Cf. McDonald v. McDonald, 351 Ill.App. 432, 115 N.E.2d 567; People for Use of Tindall v. London & Lancashire Indemnity Co. of America, 295 Ill.App. 581, 15 N.E.2d 603; People ex rel. McWard v. Wabash Railroad Co., 388 Ill. 312, 57 N.E.2d 851.

Subparagraph (2)(e) of Rule 36 provides that further time within which to file the record on appeal may be granted by the reviewing court or any judge thereof in vacation, upon motion and affidavit showing good cause and due diligence. Appellant did not avail himself of such process. Further provisions of Rule 36 are that the report of proceedings at the trial shall be duly certified and filed in the trial court within 50 days after notice of appeal is filed (par. (1)(c)) that a judge of the trial court is authorized to extend the time for filing such report not to exceed a period of 45 days (par. (1)(c)) and that if the time for filing the report of proceedings is extended, the time within which the record on appeal must be filed is, without the necessity of an order, extended 10 days beyond the extended time for filing the report of proceedings. (Par. (2)(d).) See also: Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226, 133 A.L.R. 1390; Continental Paper Grading Co. v. Howard T. Fisher & Associates, Inc., 1 Ill.2d 37, 115 N.E.2d 291.

In the present case the trial court, on motion of appellant, entered an order dated October 30, 1956, which was captioned 'Order for Extension of Time for Filing Record on Appeal' and which purported to extend the time for filing 'the record on appeal and the report of proceedings in this cause' for 30 days from November 7, 1956. We...