Wells v. Kern
Decision Date | 30 January 1975 |
Docket Number | No. 74--121,74--121 |
Citation | 322 N.E.2d 496,25 Ill.App.3d 93 |
Parties | Nathaniel WELLS, Plaintiff-Appellee, v. Charles KERN and Glenda M. Kern, his wife, Defendants-Appellants. |
Court | United States Appellate Court of Illinois |
Meyer & Meyer, Greenville, for defendants-appellants.
Durr & Durr by Wendell Durr, Edwardsville, for plaintiff-appellee.
This appeal arises as a result of a suit brought by the plaintiff, Nathaniel Wells, in the circuit court of Madison County to enforce a promissory note in the amount of $3,050.00, due December 1, 1969. A complaint was filed December 5, 1969 against the defendants, Charles Kern and Glenda Kern, his wife, alleging that this note was due and payable by the defendants, and that, after demand, no payment was forthcoming. Within thirty days of the filing of the complaint, defendants filed an answer denying the allegations of the complaint and alleging as an affirmative defense that defendant, Charles Kern, had been adjudicated bankrupt in Federal District Court, and was thereby absolved from liability on the note.
On April 2, 1973, this cause was called for hearing and the defendants did not appear; after evidence was heard on the plaintiff's complaint, a judgment was entered for plaintiff against defendants. On May 30, 1973, a request for the issuance of a Citation to Discover Assets was requested, and on June 7, 1973, this Citation was issued and properly served on the defendnats.
Defendants, on July 9, 1973, filed a 'Motion to Set Aside Judgment and for Further Relief'. The hearing on the Citation to Discover Assets was continued. The motion came on for hearing on November 8, 1973. All parties appeared by their respective counsel, arguments were heard and the 'Motion to Set Aside Judgment and for Further Relief' was denied. No appeal was taken from the order of denial.
A second 'Motion to Set Aside Judgment' was filed by the defendants on November 21, 1973. On February 8, 1974, the trial court heard arguments on this 'Motion to Set Aside Judgment' with all the parties present by their respective attorneys. The court denied this motion as well; appeal bond was fixed but no appeal has been taken from the order of denial entered upon that date.
On March 8, 1974, a Notice of Appeal was filed by the defendants, appealing from the trial court's default judgment entered against defendants on April 2, 1973, and asking this Court to reverse, set aside and arrest that judgment, or, alternatively, to remand the cause for a new trial.
Both the defendants-appellants and the plaintiff-appellee have taken the position in their briefs and on oral argument that this appeal is one taken from the trial court's orders denying defendants'-appellants' two Motions to Set Aside Judgment under Illinois Revised Statutes, ch. 110, sec. 72. This Court cannot reach the merits of this appeal on this theory.
The threshold question in this case, as in every appeal, is whether this Court has jurisdiction of this appeal. Our Supreme Court Rule 301 provides that:
* * *.' (Ill.Rev.Stat., ch. 110A, par. 301.)
Our Supreme Court rules also provide that:
'* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion.
* * *.' (Ill.Rev.Stat., ch. 110A, par. 303(a).)
The Supreme Court rules, in addition, contain a rule entitled 'Appeals From Final Judgments That Do Not Dispose Of An Entire Proceeding.' (Ill.Rev.Stat., ch. 110A, par. 304.) Section (a) thereof requires an express written finding that there is no just reason for delaying enforcement or appeal. Section (b), however, procides that:
'The following judgment and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
* * *.
(3) A judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act (Ill.Rev.Stat., ch. 110, par. 72).
* * *.' (Ill.Rev.Stat., ch. 110A, par. 304(b).)
Section 72 of the Civil Practice Act provides that:
'(1) Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may be had upon petition as provided in this section. * * *
(2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. * * *
(3) The petition must be filed not later that 2 years after the entry of the order, judgment or decree. * * * (6) Any order entered denying or granting any of the relied prayed in the petition is appealable.
* * *.' (Ill.Rev.Stat.1971, ch. 110, par. 72.)
The Notice of Appeal filed in this cause, as previously noted, appeals from the judgment entered by the trial court on April 2, 1973. It was filed March 8, 1974. It was clearly not filed within 30 days of the judgment appealed from as required by Supreme Court Rule 303. The first question, therefore, is whether the Notice of Appeal was filed within 30 days after the entry of an order disposing of a timely post-trial motion directed against the judgment. The second question is, assuming it was not so filed, does that Notice of Appeal give this Court Jurisdiction to review the order or orders denying the motion or motions filed under section 72 of the Civil Practice Act, as is apparently assumed by both parties in their briefs.
The rule in Illinois appears to be that section 72 of the Civil Practice Act, which substitutes a simple remedy by petition for various forms of post-judgment relief theretofore available, does not contemplate the review of orders from which a party could have appealed within the time prescribed by our Supreme Court Rules, and the provisions of section 72 providing a remedy by petition cannot be invoked as a substitute for the right of a party to appeal as provided by Supreme Court Rule and the Civil Practice Act. As stated in Oskvarek v. Richter, 32 Ill.App.2d 438, 178 N.E.2d 209,
(Oskvarek v. Richter, 32 Ill.App.2d 438, 443, 178 N.E.2d 209, 211.)
The court reached a similar conclusion in In re Village of Willowbrook, 42 Ill.App.2d 432, 192 N.e.2d 553, wherein it stated,
(In re Village of Willowbrook, 42 Ill.App.2d 432, 437, 192 N.E.2d 553, 556.)
Also see, for the same proposition: Jones v. Jones, 32 Ill.App.2d 64, 176 N.E.2d 635 (Abst.); Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294; People v. Ilg, 60 Ill.App.2d 295, 298, 210 N.E.2d 20.
With respect to the question of whether, assuming a section 72 petition is not a timely post-trial motion under Rule 303(a), the filing of the Notice of Appeal in this cause gives this Court jurisdiction to review the motion or motions filed under section 72 herein, the answer in Illinois appears to be in the negative. An appellate court has jurisdiction of only those matters raised in the Notice of Appeal. The court in People v. Harvey, 5 Ill.App.3d 499, 285 N.E.2d 179, cert. den., 410 U.S. 983, 93 S.Ct. 1504, 36 L.Ed.2d 179, approached, and decided, this issue in the following manner:
'* * * we must first consider the threshold question of this court's jurisdiction to entertain the issues raised by defendant in his brief. Appeals to this court in both civil and criminal cases are governed by Supreme Court Rules which provide that an appeal is perfected by the filing of a notice of appeal in the trial court and that such notice of appeal shall specify the judgment from which the appeal is taken. This is the only jurisdictional step in the appellate process.
(Citations Omitted.) Similarly, the scope of review in this court is limited, Inter alia, to the judgment appealed from. See Supreme Court Rules 366 and 615, Ill.Rev.Stats., 1969, ch. 110A, pars. 366, 615.' (People v. Harvey, 5 Ill.App.3d 499, 502, 285 N.E.2d 179, 181, cert. den., 401 U.S. 983, 93 S.Ct. 1504, 36 L.Ed.2d 179.)
Also see Scheffler v. Ringhofer, 67 Ill.App.2d 222, 225, 214 N.E.2d 575.
It is also clear in Illinois that a section 72 petition is a new action and not a continuation of the original proceeding irrespective of the requirement in the Civil Practice Act that it must be filed in the same proceeding. The Civil Practice Act expressly provides that,
'The petition must be filed in the same proceeding in...
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