Perlman v. First Nat. Bank of Chicago

Decision Date07 April 1975
Docket NumberNo. 46531,46531
Citation60 Ill.2d 529,331 N.E.2d 65
PartiesHarold L. PERLMAN et al., Appellees, v. FIRST NATIONAL BANK OF CHICAGO, Appellant.
CourtIllinois Supreme Court

Albert E. Jenner, Jr., Keith F. Bode, Peter A. Flynn, and Michael J. Rovell, Chicago (Jenner & Block, Chicago, of counsel), for appellant.

Irving T. Zemans and Harry Kalven, Jr., Chicago, for appellees.


In this case the court has been unable to reach a decision because two judges have recused themselves and the remaining members of the court are divided so that it is impossible to secure the concurrence of four judges which is required by section 3 of article VI of the Constitution, S.H.A.

The court has carefully considered, in this case and in other cases, the appropriate method of resolving the problem that occurs when individual judges are disqualified and a constitutional majority of four cannot be mustered for any opinion. No solution is wholly free from objection. The court has decided, however, that it is preferable, in cases that have come to this court upon appeal from the appellate court, to follow substantially the procedure that is employed by the Supreme Court of the United States when the judges of that court are equally divided.

In such cases it is the practice of the Supreme Court of the United States to affirm the judgment of the court that is before it for review. Such an affirmance is a conclusive determination and adjudication as between the parties to the immediate case, but it is not authority for the determination of other cases, either in the Supreme Court or in any other court. It is not 'entitled to precedential weight.' The legal effect of such an affirmance is the same as if the appeal was dismissed (see Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401), and it is this course, rather than the Supreme Court's practice affirming the judgment under review, which we have decided to follow.

Appeal dismissed.

UNDERWOOD, Chief Justice (dissenting):

While I have recused myself in a determination of the merits of this case, I do not consider this to preclude expression of my disagreement with the methods chosen by a majority of the court for disposing of those cases in which the constitutionally required four votes (Ill.Const. (1970), art. VI, sec. 3) cannot be mustered for a resolution on the merits.

This case was certified to us by the First District Appellate Court under our Rule 316, Ill.Rev.Stat.1973, ch. 110A, § 316, providing for such certification where the appellate court believes the case 'involves a question of such importance that it should be decided by the Supreme Court.' A majority of our court now dismisses the appeal without resolving its merits, thus leaving in effect the appellate court judgment.

Another case, Lehnhausen v. Downs, 60 Ill.2d ---, 331 N.E.2d 65, a direct appeal to this court under our Rule 302(a), culminated in the disqualification of one of our members and the inability to resolve that case on the merits. It was disposed of last term by an order transferring the appeal to the appellate court. 60 Ill.2d ---, 331 N.E.2d 65.

Those cases represent the two categories (appeals from the circuit court; appeals from the appellate court) into which most of the cases coming before this court fall. However, there is a...

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53 cases
  • Shutts v. Phillips Petroleum Co.
    • United States
    • Kansas Supreme Court
    • 11 Julio 1977 the plaintiff class. (See Perlman v. First National Bank of Chicago, 15 Ill.App.3d 784, 305 N.E.2d 236 (1973), appeal dismissed 60 Ill.2d 529, 331 N.E.2d 65.) Citations to the venue statutes of Kansas and other states are inapplicable here. (See United States v. Trucking Employers, Inc.,......
  • People v. Stechly
    • United States
    • Illinois Supreme Court
    • 19 Abril 2007 See People v. Griffith, 212 Ill.2d 57, 58, 287 Ill.Dec. 591, 816 N.E.2d 353 (2004), citing Perlman v. First National Bank of Chicago, 60 Ill.2d 529, 530, 331 N.E.2d 65 (1975). In my opinion, affirming the appellate court's decision upholding defendant's convictions is not the approp......
  • Steinberg v. Chicago Medical School
    • United States
    • Illinois Supreme Court
    • 12 Diciembre 1977
    ...common fund was a necessity. But in Perlman v. First National Bank (1973), 15 Ill.App.3d 784, 305 N.E.2d 236, appeal dismissed (1975), 60 Ill.2d 529, 331 N.E.2d 65, a class action on behalf of borrowers from the bank alleging a violation of the Interest Act (Ill.Rev.Stat.1971, ch. 74, pars.......
  • Hoover v. May Dept. Stores Co.
    • United States
    • United States Appellate Court of Illinois
    • 5 Julio 1978 concept found in Perlman v. First National Bank (1973), 15 Ill.App.3d 784, 798, 305 N.E.2d 236, 247, Appeal dismissed (1975), 60 Ill.2d 529, 331 N.E.2d 65. The court there found that there was no precedential basis for a conclusion that the term "fund" as used in class actions means a ......
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1 books & journal articles
  • Consumer Protection and Deceptive Trade Practices
    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 1 Deposition Checklists and Strategies
    • 29 Abril 2015
    ..., 77 Ill.2d 93 (1979); Perlman v. First National Bank of Chicago , 15 Ill.App.3d 784, 305 N.E.2d 236 (1st Dist. 1973), appeal dismissed , 60 Ill.2d 529 (1975). Other factors considered are the difficulties that may be encountered in maintaining a class action and the desirability of concent......

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