Retzinger v. Retzinger

• Decision Date: 23 June 1928
• Docket Number: No. 17514.,17514.
• Citation: 162 N.E. 155,331 Ill. 102
• Parties: RETZINGER v. RETZINGER et al.
• Court: Illinois Supreme Court

331 Ill. 102

162 N.E. 155

RETZINGER

v.RETZINGER et al.

No. 17514.

Supreme Court of Illinois.

June 23, 1928.

Error to Second Branch Appellate Court, First District, on Appeal from Probate Court, Cook County; Henry Horner, Judge.

Petition by Margaret A. Retzinger, executrix, for sale of real estate for payment of debts. Order of probate court granting petition was reversed by the Appellate Court (239 Ill. App. 127), on appeal of Michael Retzinger and others, and petitioner brings certiorari.

Reversed and remanded, with directions.

Stebbins, Garey, L'Amoreaux & Hurtubise, of Chicago (J. E. Hurtubise and J. C. Byrne, both of Chicago, of counsel), for plaintiff in error.

Frank N. Reed, of Chicago, for defendants in error.

PER CURIAM.

This case involves the order of the probate court of Cook county for the sale of a certain parcel of land, or so much thereof as may be necessary to pay debts. The petition for such sale of real estate was filed by plaintiff in error, as executrix under the will of her husband, Elias Retzinger, deceased. The cause is here on a writ of certiorari to review the judgment of the Appellate Court for the First District reversing the order of the probate court of Cook county and remanding the cause, with directions to sell certain other lands owned by deceased during his lifetime.

We are met at the threshold of this case by a question of jurisdiction of the Appellate Court to hear the appeal. Plaintiff in error, who was appellee in the Appellate Court, filed a motion in that court to dismiss the appeal. One of the grounds of this motion was that the order of the probate court allowing the appeal had not been complied with. This motion was denied. Error is assigned here on this ruling of the Appellate Court.

The appeal was prayed for by Michael, Joseph, and John Retzinger, sons of the testator and devisees under his will, and was allowed by the probate court October 24, 1924. No appeal was perfected under that order allowing ‘defendants, or any or either of them, or any number of them,’ to appeal by filing appeal bond in 20 days. On November 13, the day the 20 days allowed for filing appeal bond expired, the probate court entered an order granting defendants an extension of 20 days to file ‘their joint and several appeal bond or bonds,’ and within the time extended Michael and Joseph filed their joint bond, which the clerk approved, but no bond was signed or filed by John. The transcript filed in the Appellate Court contained no mention of the order of the probate court of November 13, 1924, extending the time for filing appeal bond, and on September 2, 1925, appellee, who is plaintiff in error in this court, moved the Appellate Court to dismiss the appeal, as the Appellate Court states in its opinion, on the ground of ‘failure to file appeal bond in the probate court by November 13,’ which was the limit of the time given in the original order granting an appeal to the three defendants praying an appeal, upon ‘any or either of them, or any number of them,’ filing bond in 20 days. The order of the probate court of November 13 extending the time for filing bond 20 days was, on motion of appellants in the Appellate Court suggesting a diminution of the record, certified to and filed in the Appellate Court on October 28, 1925.

The Appellate Court opinion says that prior to the filing of said last-mentioned order in the Appellate Court appellee in that court had moved to dismiss the appeal because no bond was filed by November 13, as the probate court order required. The Appellate Court said the motion to dismiss was without merit, as the transcript of the order of the probate court of November 13 showed an extension by the probate court of 20 days from November 13 to file bond. It will be noted that the terms upon which the appeal was allowed were changed from what they were in the original order of October 24, 1924. The order of November 13 was that within 20 days defendants file ‘their joint and several appeal bond or bonds.’ A bond, as we have said, was filed by Michael and Joseph Retzinger, but was not signed by John, nor was any bond filed by him. Under the order for appeal of November 13 the order of October 24 was changed or abrogated and the parties praying the appeal were allowed to file within 20 days ‘their joint and several appeal bond or bonds.’ Under that order the appeal could only be perfected by all the parties, giving their joint bond or by giving their several bonds. A bond signed by only two of the three was not a compliance with the order of November 13.

When appellee on September 2, 1925, moved the Appellate Court to dismiss the appeal for failure to file appeal bond, the record did not show any bond had been filed on or before November 13, 1924. Afterwards, on motion of appellants suggesting diminution of the record, a transcript of the probate court order of November 13 was filed in the Appellate Court, and showed that Michael and Joseph Retzinger had filed their joint appeal bond November 28, 1924. The Appellate Court record shows...