Sholty v. McIntyre

• Decision Date: 10 January 1891
• Citation: Sholty v. McIntyre, 136 Ill. 33, 26 N. E. 655 (Ill. 1891)
• Parties: SHOLTY et al. v. McINTYRE.
• Court: Illinois Supreme Court

136 Ill. 33

26 N.E. 655

SHOLTY et al.

v.McINTYRE.¹

Supreme Court of Illinois.

Jan. 10, 1891.

Appeal from appellate court, third district.

Kerrick, Lucas & Spencer, for appellants.

I. N. Phillipps, for appellee.

PER CURIAM.

The appellee in this case moves to dismiss the appeal on the ground that said appeal was not prayed for within 20 days after the rendition by the appellate court of the judgment appealed from, and also on the ground that the judgment is one from which no appeal lies to this court.It appears from the record that on the 4th day of June, 1889, Henry C. Sholty, Levi W. Sholty, and several others, who sued for the use of the Patrons' Mutual Fire & Lightning Insurance Company, recovered, in the circuit court of McLean county, a judgment against Robert S. McIntyre, administrator of the estate of Benjamin D. Sholty, deceased, for the sum of $2,500 and costs, and that, by writ of error sued out of the appellate court of the third district, said judgment was removed into that court for review.Robert S. McIntyre, the plaintiff in error, appeared in the appellate court, and moved to dismiss said writ of error; and thereupon Levi W. Sholty, one of the defendants in error, entered his motion, supported by affidavit, for leave to prosecute said writ of error in the name of said Robert S. McIntyre, administrator as aforesaid; and said court, upon the hearing of said motion and cross-motion, granted said motion to dismiss; and thereupon, on the 20th day of September, 1890, a judgment was entered by said court dismissing said writ of error at the costs of said Levi W. Sholty.On the 18th day of October, 1890, said Sholty filed in said court his petition for a rehearing; and on the 25th of November, 1890, an order was entered by said court denying said petition.On the 2d day of December, 1890, said Sholty prayed for an appeal to this court from said order dismissing said writ of error, and on the day following said appeal was allowed, on condition that he file a certain appealbond, which bond was duly filed within the time prescribed by the order allowing the appeal.It thus appears that the appeal was not prayed for until 73 days after the rendition of the judgment or order appealed from.

Where a right of appeal is given by statute, a party desiring to avail himself of such right must do so in the mode and within the time the statute prescribes.Section 90 of the practice act gives a right of appeal to this court from the final judgments of the appellate court in cases where the sum or value in controversy exceeds $1,000, exclusive of costs; said section providing ‘that such appeal may be prayed for at any time within twenty days after the rendition of such judgment.’Rev. St. Ill. 1889, c. 110, § 91.We have held that by this proviso the time within which such appeal may be prayed for is limited to said period of 20 days.James v. Dexter, 112 Ill. 489;MacLachlan v. McLaughlin, 126 Ill. 427, 18 N. E. Rep. 544.But it is said that in this case a petition for a rehearing was filed within the time prescribed by the rules of the appellate court, and that the appeal was prayed for within 20 days after the entry of the order of the court denying said petition; the contention being that the 20 days should not be held to have commenced to run...