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Gribben v. Interstate Motor Freight System Co.

NOVEMBER 7, 1962.

RAYMOND P. GRIBBEN ET AL., PLAINTIFFS-APPELLANTS,

v.

INTERSTATE MOTOR FREIGHT SYSTEM COMPANY, A CORPORATION AND ST. ANNE BRICK AND TILE COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Judge, presiding. Appeal dismissed.

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

Interstate Motor Freight System Company, one of the appellees, has moved to dismiss this appeal for several reasons, among them that the appellants' abstract is inadequate.

The amended complaint is in the abstract and from it we learn that this was an action brought by residents of the town of Cicero for temporary and permanent injunctions to restrain the defendant from constructing a motor freight terminal in their neighborhood. It was alleged that the terminal would be a private nuisance and that it was being built under the authority of an invalid zoning ordinance. The case was referred to a master in chancery. The terminal had been completed when the hearings took place and almost all the testimony before the master was directed to the nuisance issue; the validity of the ordinance was not seriously contested.

Outside of the amended complaint and the testimony before the master, the abstract tells us little else. It does not set forth the answer of the defendants, any of the numerous exhibits, the master's report, the objections and exceptions to it or the decree of the court. The recital of these essentials is limited to the following words:

Answer of Interstate Motor Freight System Company, filed August 22, 1858.

Report of Master in Chancery Daniel J. Ryan, filed May 24, 1961.

Plaintiffs' objections to report of Master in Chancery, filed December 8, 1960.

Certificate of Master in Chancery Daniel J. Ryan overruling plaintiffs' objections to report, filed May 24, 1961.

Decree approving and confirming report of Master in Chancery Daniel J. Ryan, entered December 1, 1961.

The abstract of record is the pleading of the party in a court of review. What is sought to be reviewed must be contained in that pleading. Campbell v. Fazio, 23 Ill. App.2d 106, 161 N.E.2d 579; Richman Chemical Co. v. Lowenthal, 16 Ill. App.2d 568, 149 N.E.2d 351. This court said in Kotowski v. Cook, 29 Ill. App.2d 116, 172 N.E.2d 502:

"Rule 6 of this court and rule 38 of the Supreme Court provide that the abstract should be sufficient to present every error relied on for reversal, and everything necessary to decide the questions raised on appeal must appear therein. 2 I.L.P. Appeal and Error, sec. 483. The substance of the record should be abstracted so that it will not be necessary to resort to the record to determine the issues presented. Failure of the abstract to properly present errors relied on warrants the court in affirming the judgment. Department of Finance v. Bode, 376 Ill. 374; 2 I.L.P. Appeal and Error, sec. 493."

Courts have sought to avoid a harsh application of these rules and have affirmed judgments or dismissed appeals only where there have been flagrant violations. Campbell v. Fazio, supra; Clark v. Titone, 10 Ill. App.2d 135, 134 N.E.2d 348. In this case the violations are flagrant.

The failure of the abstract to show the judgment entered by the trial court is itself a fatal defect. Dowling v. Jensen, 28 Ill. App.2d 174, 171 N.E.2d 107; Harris v. Annunzio, 411 Ill. 124, 103 N.E.2d 477. In Boston Store of Chicago v. Industrial Commission, 386 Ill. 17, 53 N.E.2d 455, the only mention in the abstract of the judgment of the trial court was, as in the present case, a single line which stated: "Order of Circuit Court of Cook County, confirming the award of the Industrial Commission, entered April 9, A.D. 1943." The court noted that: "It nowhere appears from the abstract what the judgment of the circuit court was or what questions are involved . . . the court cannot review the supposed judgment in this case."

If the decree was rendered in the form shown by the present abstract, i.e., "Decree approving and confirming report of Master in Chancery . . ." it would not be a final, appealable decree. A decree which merely approves and confirms the master's report is ...


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