Seaman v. Lawn Sav. & Loan Ass'n
| Citation | 262 N.E.2d 823,128 Ill.App.2d 181 |
| Decision Date | 19 August 1970 |
| Docket Number | Gen. No. 54631 |
| Parties | Benjamin SEAMAN, Plaintiff-Appellant, v. LAWN SAVINGS AND LOAN ASSOCIATION, a corporation, et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Philip S. Aimen, Morris Topol, and Martin S. Gerber, Chicago, for plaintiff-appellant.
Pope, Ballard, Kennedy, Shepard & Fowle, Chicago, for defendants-appellees; Jack Osswald, Michael A. Warner, Chicago, of counsel.
Plaintiff has presented his case in this court as an interlocutory appeal under Supreme Court Rule 307(a) (Ill.Rev.Stat.1969, ch. 110A, § 307(a)), claiming that, by the two orders appealed from, the trial court had refused to modify an injunction. Defendant Federal Savings and Loan Insurance Corporation, as Receiver for Lawn Savings and Loan Association, has moved to dismiss the appeal.
In 1966, plaintiff filed his complaint, alleging in Count I that he was entitled to an accounting from Lawn, and in Counts II through VIII seeking reimbursement from certain mortgagors. Some two years later, Lawn became insolvent, a receiver was appointed, and in May, 1968, a liquidation proceeding was commenced. On June 17, 1968, an injunction was entered in the liquidation case restraining all persons from attempting to obtain any judgment against Lawn, or proceeding against its assets.
On July 17, 1969, plaintiff presented a two-part motion in the instant case: (1) for leave to file an amended complaint; and (2) for modification of the injunction in the liquidation proceedings to permit him to pursue his claim for accounting against Lawn in this case.
The proposed amended complaint in Counts I, II and III would again have sought an accounting from Lawn, adding as a defendant the Federal Savings and Loan Insurance Corporation, as Receiver for Lawn; and in Counts IV through XI would again have sought other relief from mortgagors. Thus, the part of plaintiff's motion asking for modification of the injunction had no bearing upon any counts of the proposed amended complaint other than Counts I, II and III.
After hearing, an order was entered on October 10, 1969, denying both parts of plaintiff's motion, without prejudice to plaintiff's right to seek redress in the liquidation proceeding.
On November 3, 1969, plaintiff presented a motion for of the order of October 10, 1969. In this motion, plaintiff again asked for leave to file an amended complaint, but this time limited to Amended Counts IV through XI. The concluding paragraph of the motion stated:
It was the intention of this Court to deny to the plaintiff leave to file Counts I, II, and III of the Amended Complaint as to defendant, Lawn Savings and Loan Association, and as to the Federal Savings and Loan Insurance Corporation and not to deny leave to file Counts IV through XI of the Amended Complaint as to the other defendants, so that the order of October 10, 1969 should be modified and corrected accordingly and plaintiff should be given leave to file Counts IV through XI inclusive of the Amended Complaint instanter.
The motion was denied.
Thereafter, on November 26, 1969, plaintiff filed a Notice of Interlocutory Appeal, purporting to appeal from both the order of October 10, 1969, and the order of November 3, 1969, specifically describing the latter order as having denied to plaintiff 'leave to file Counts IV through XI of the Amended Complaint.'
In the F.S.L.I.C. motion to dismiss this appeal, it is pointed out that Rule 307, which is the only authority for interlocutory appeals relating to injunctions, establishes a period of 30 days within which a notice of appeal must be filed in order to perfect the appeal. If we assume that the order of October 10 was appealable under Rule 307 (), it is apparent that the Notice of Appeal filed on November 26 did not meet this time restriction for the purpose of appeal from the order of October 10, unless the permissible time was extended in some way.
Plaintiff argues that his motion of November 3, being within...
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