Ray v. Winter
| Citation | 39 Ill.App.3d 567,350 N.E.2d 331 |
| Decision Date | 10 June 1976 |
| Docket Number | No. 74--129,74--129 |
| Parties | Robert RAY, Plaintiff-Appellee, v. Emerson J. WINTER and Joyce E. Winter, his wife, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Russell H. Classen, Belleville, for appellants.
Paul M. Caldwell, Robert S. Hill, Benton, for appellee.
Plaintiff, Robert Ray, brought an action for the declaration of a constructive trust in his favor upon approximately 40 acres of land which had been purchased by defendants, Emerson J. and Joyce E. Winter, and for damages for lost profits arising from plaintiff's inability to enter the land to raise crops. The trial court entered a decree whereby the court declared that defendants held the 40 acres in constructive trust for plaintiff, ordered defendants to convey the land to plaintiff upon plaintiff's payment of $5,333.20 and awarded plaintiff $2,500 damages. Defendants filed a post-trial motion, which was denied. Defendants appeal.
The facts in this case can be briefly summarized as follows. Plaintiff wished to purchase some land and had made inquiry concerning a tract of approximately 60 acres near his home in Thompsonville, Illinois. He learned that the land was owned by a man named Mullikin who lived in Kankakee, Illinois. In July of 1972 plaintiff contacted Mullikin to discuss the matter and Mullikin agreed to sell the 60 acres to plaintiff for $8,000, apparently an attractive price. Because plaintiff did not then have the amount of money needed, he asked Mullikin to save the land for him until he sold some cattle in the fall of the year. Mullikin agreed to do so.
A short time thereafter, plaintiff became aware that Emerson Winter was also looking for some land to purchase in the same area of Illinois. When Emerson and Joyce Winter came to plaintiff's home in Mid-July of 1972, plaintiff told Emerson Winter of his arrangement with Mullikin, took Winter to see the land and told Winter that he would sell 20 of the 60 acres to him at the same price per acre which plaintiff was to pay Mullikin. On August 15, 1972, plaintiff and defendants had a telephone conversation in which they discussed the possibility that Mullikin might sell the land to some other party. The source of their concern is not indicated in the record, and there was conflicting evidence at the trial regarding whether it was plaintiff or defendants who originally called to the attention of the other the matter of the possible sale by Mullikin to some other party. At any rate, during the conversation of August 15, 1972, the parties decided that Emerson Winter, who either had the necessary $8000 for the purchase of the 60 acres or could easily get the money, should himself contact Mullikin and make the purchase of the 60 acres.
Plaintiff gave defendants Mullikin's telephone number and Emerson Winter immediately thereafter contacted Mullikin and arranged for the sale of the land by Mullikin to the Winters. At this point the evidence is in conflict. Plaintiff testified that the decision to allow defendants to purchase the entire tract was predicated upon an agreement that defendants would convey 40 acres to plaintiff when plaintiff sold his cattle and the money was available. Defendant Emerson Winter denied any knowledge of this agreement and stated that he bought the entire acreage when plaintiff informed him that he did not intend to place a mortgage upon his own property and would therefore not have adequate funds to purchase the land. Defendant denied any knowledge of plaintiff's intention to sell the cattle to obtain enough money to make a down payment on the property.
Plaintiff gave defendants Mullikin's telephone number and Emerson Winter immediately thereafter contacted Mullikin and arranged for the sale of the land to the defendants. Plaintiff also contacted Mullikin to accede to the sale. It is not clear whether plaintiff informed Mullikin of the alleged agreement with the defendants and Mullikin did not testify at trial.
Because of difficulties with abstracting and recording, the sale was not consummated until late October, 1972, and the final payment was not made until late November. Prior to that time plaintiff contacted defendants once to inquire whether plaintiff could remove hay from the property and prepare the ground for planting. Defendant Emerson Winter informed plaintiff that he had not yet completed the purchase of the tract and could therefore not give such permission. Nothing was said at this time about the alleged agreement.
The next contact between the parties came in January, 1973, when defendant Joyce Winter wrote to Mrs. Ray that defendants intended to keep the entire 60 acres. Plaintiff responded with an apparently bitter and obliquely threatening letter to defendant Emerson Winter. Defendant responded with a letter to plaintiff that the situation could have been 'worked out' but for plaintiff's letter. It was apparently this bitterness which prompted defendants' final decision to keep the entire tract even though defendant Emerson Winter admitted at trial that he did not want the 40 acres.
It is undisputed from the evidence that defendants paid the entire consideration for the property including the costs of the sale, abstracting and recording. Plaintiff at no time tendered any money to defendants even though plaintiff sold the cattle in September, 1972. The only contact between the parties between August, 1972, and January, 1973, was the conversation about the hay during which no mention of the alleged agreement was made. Defendants, after having purchased the land, decided to keep the entire 60 acres and refused to convey the 40 acres which plaintiff had wished to obtain to plaintiff. As a result, plaintiff brought the instant action.
Various motions were filed by both sides in this case. Two of these motions, plaintiff's motion to dismiss the appeal and defendants' motion to add certification to the report of trial proceedings, were ordered taken with the case and must be discussed before reaching the merits of the case. It is our opinion that the motion to dismiss should be denied and that we should treat the report of proceedings as if it were propertly certified.
Defendants filed their notice of appeal in the trial court on March 4, 1974. On May 6, 1974, defendants filed in the appellate court a motion for an extension of time to file the record on appeal and the report of proceedings. They were allowed until June 24, 1974, to do so. On June 27, 1974, three days after the expiration of the extended time, defendants filed the report of proceedings in the trial court and on July 1, 1974, seven days after the expiration of the extended time, they filed the record. Plaintiff made no objection to the tardiness of the filing of the record and the report of proceedings. Defendants filed a motion to extend the time for filing the brief and abstract or excerpts from the record on August 2, 1974, and they were allowed until August 19, 1974, to do so. The abstract and the appellants' brief were both timely filed on August 8, 1974, and August 19, 1974, respectively.
On September 13, 1974, plaintiff filed a motion to dismiss the appeal, asserting several grounds for such dismissal, among which were the following: (1) the appeal bond had not been properly filed; (2) the report of proceedings had not been presented to the trial judge for certification, and a stipulation for waiving certification had not been made; (3) the praecipe for record had not been filed; (4) the original record on appeal had not been filed in the appellate court; (5) the abstract failed to include the notice of appeal, the judgment or order appealed from, the pleadings, the conference on instructions and the instructions appealed from, and the exhibits; and (6) the appellants' brief failed to comply with Supreme Court Rule 342 in a number of specified respects.
On September 27, 1974, defendants filed an answer requesting a denial of plaintiff's motion to dismiss and requesting that defendants be allowed to file a supplemental abstract. After plaintiff filed an objection to defendants' answer, this court allowed defendants to file a supplemental abstract and ordered plaintiff's motion to dismiss to be taken with the case.
On December 19, 1974, defendants filed in this court a motion to add certification to the report of proceedings. Attached to the motion was a prepared order of certification which defendants sought to have submitted to the trial judge for his signature. This motion was also ordered to be taken with the case.
As of the time of oral argument, according to plaintiff's counsel, all of the deficiencies pointed out by plaintiff's motion to dismiss had been corrected except for the lack of certification of the report of proceedings. We are thus faced with the sole question whether the appeal should be dismissed for failure of defendants to have the report of proceedings certified by the trial judge.
Supreme Court Rule 323(b) & (d), Ill.Rev.Stat.1975, ch. 110A, pars. 323(b) & (d), provide in pertinent part:
'(b) Certification and Filing. A report of proceedings shall be submitted, upon notice, to the judge before whom the proceedings occurred or his successor (or if that is impossible because of his absence or his sickness or other disability, then to any other judge of the court) for his certificate of correctness, and shall be filed, duly certified, in the trial court within 49 days after the filing of the notice of appeal. If, however, the parties so stipulate, a report of proceedings may be filed without certification.
(d) Agreed Statement of Facts. The parties by written stipulation may agree upon a statement of facts material to the controversy and file it without certification in lieu of and within the time for filing a report of proceedings.'
It is undisputed that the parties did not stipulate that the report of proceedings an agreed statement of facts...
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