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Pruitt v. Motor Cargo

APRIL 5, 1961.

DEWEY PRUITT, NATHANIEL PRUITT, ODA HARRIS, JOSEPH MADDEN, DAVE WILLIS AND ARTHUR MATTHEWS, APPELLANTS,

v.

MOTOR CARGO, INCORPORATED, A FOREIGN CORPORATION, AND WALTER ANKEBRANT, APPELLEES.



Appeal from the Municipal Court of Chicago; the Hon. SAUL A. EPTON, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment on a verdict of not guilty in a personal injury case. Two errors are relied upon for reversal; one, that the court improperly communicated with the jury, and, two, that inadequate forms of verdict were given to the jury.

Of the six plaintiffs, only Oda Harris filed a motion for a new trial within the thirty day period provided by statute. The other plaintiffs maintain that they are included in that motion by virtue of an order entered after the expiration of the thirty day period. Whether the plaintiffs other than Oda Harris filed notice of appeal in time depends on the validity of that order. Before proceeding to consider the merits of the appeal, we must determine that question.

Three cases were consolidated for trial; one in which Dewey Pruitt, Nathaniel Pruitt and Oda Harris were the plaintiffs, and the defendants were Motor Cargo and Ankebrant; one in which Arthur Matthews was the plaintiff, and the same defendants were named; and one in which Joseph Madden and Dave Willis were the plaintiffs, and Motor Cargo was the only defendant. The jury returned a verdict of not guilty on March 25, 1960, and the court promptly on that date entered judgment, which is in accordance with the provisions of the Civil Practice Act (Ill. Rev. Stat., 1959, ch. 110, sec. 68(2)) and Rule 1, Section 68(2), of the Municipal court. Both the act and the rule provide that post trial motions must be filed within thirty days after the entry of judgment or within any further time the court may allow within the thirty day period or any extension thereof. The Civil Practice Act further provides that notice of appeal shall be filed within sixty days after entry of judgment (sec. 76(1)) but a post trial motion filed in apt time stays execution and the time for appeal does not begin to run until the court rules on the motion. (Ill. Rev. Stat., ch. 110, sec. 68.1(4) (1959).)

On April 19, 1960, well within the thirty day period, a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial was filed by Oda Harris only. No one else is mentioned, and by no reasonable interpretation could this be considered a motion on behalf of all the plaintiffs. So far as appears from the record, no other plaintiff did anything with respect to the filing of a motion for a new trial until May 3, 1960, nine days after the expiration of the thirty day period, when Madden and Willis made a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial.

The next pertinent document in the record was filed May 16, 1960, twenty-two days after the thirty day period had expired, and is entitled: "Dewey Pruitt, Nathaniel Pruitt, and Oda Harris v. Motor Cargo, Incorporated, . . . and Walter Ankebrant," and it recites the following:

"Now come the plaintiffs herein and move the Court for Judgment notwithstanding the verdict, and for a New Trial, and the Court being fully advised in the premises, overruled said motion."

As we have pointed out, only Oda Harris had filed a motion for a new trial in due time and the order could legally apply to him, and to no one else. This extended his time to file notice of appeal to sixty days from May 16, 1960.

On June 10, 1960, the following certification of the trial judge appears:

"I, Saul Epton, Judge of the Municipal Court of Chicago certify by my signature that the written motion of William E. Knapp, attorney for Oda Harris, was adopted and joined in, with permission of this Trial Court, by William Bruce Richards for DEWEY PRUITT, and NATHANIEL PRUITT; by Robert Cleveland for Arthur Mathews; and by Lawrence Mayster for Dave Willis and Joseph Madden, and that my order denying a new trial was an order denying motions for new trial on behalf of all the plaintiffs in the causes as consolidated."

On June 17, 1960, there is a certification that notice of appeal and proof of service was filed on that date. The notice of appeal was signed on behalf of all the plaintiffs. Again, on June 22, 1960, an order was entered giving plaintiffs leave to file notice of appeal instanter.

From the foregoing, it is clear that Oda Harris was the only one of the plaintiffs who filed his post trial motion and his notice of appeal within the time allowed by statute and the rules of court. The trial court in a generous effort to preserve the right of appeal of the other plaintiffs, entered the confusing orders referred to, but this was in violation of the provisions of the act as interpreted by the Supreme and Appellate courts as we later show. The thirty day period, corresponding to term time prior to the enactment of the Civil Practice Act, is the period within which a judgment is said to be in the breast of the court, but when that period expires and no steps have been taken in accordance with the provisions before quoted, a judgment becomes final and conclusive, except as provided by those sections of the Practice Act which afford relief under extraordinary circumstances not applicable here.

It is true, as plaintiffs have urged, that the courts of this state are loath to deny an appeal on the basis of a failure to comply with technical requirements. But both legislature and courts have recognized that this policy should not be pursued to the point where the stability of judgments is impaired. In only a small percentage of cases are the processes of appeal invoked, and if terminal dates were not fixed and observed, all judgments would be subjected for an indefinite period to challenge by post trial procedures. One of those dates is the sixty day period for notice of appeal. That is mandatory and jurisdictional. Freeport Motor Casualty Co. v. Tharp, 406 Ill. 295, 298, 94 N.E.2d 139, 141; 162 East Ohio Street Hotel Corp. v. Lindheimer, 368 Ill. 294, 300, 13 N.E.2d 970, 973; Bozarth v. Bozarth, 399 Ill. 259, 77 N.E.2d 658; Marlas v. Virekeos, 14 Ill. App.2d 1, 142 N.E.2d 808; In Matter of Hinton, 12 Ill. App.2d 366, 139 N.E.2d 307; Wishard v. School Directors, 279 Ill. App. 333; Veach v. Hendricks, 278 Ill. App. 376.

In Freeport Motor Casualty Co. v. Tharp, supra, the court, referring to the provision then in effect allowing ninety days for the filing of notice of appeal, said: "This requirement is jurisdictional and mandatory and the statute must be strictly complied with. Johnson v. County of Cook, 368 Ill. 160, and People ex rel. Waite v. Bristow, 391 Ill. 101." In Marlas v. Virekeos, supra, the question involved was whether an amendment to the Civil Practice Act which cut the time within which to file notice of appeal from ninety to sixty days, effective January 1, 1956, controlled notice of appeal filed January 20, 1956, which was 73 days after the entry of judgment. The court held that the amendment controlled and that notice was required to be filed within sixty days from the entry of judgment. The court disagreed as we do with the ...


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