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Pittman v. Lageschulte

OCTOBER 23, 1963.

JAMES PITTMAN AND AMILLY PITTMAN, PLAINTIFFS-APPELLEES,

v.

MYRON F. LAGESCHULTE AND WILLIAM BEIN, DEFENDANTS, MYRON F. LAGESCHULTE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding. Affirmed.

SMITH, J:

Rehearing denied January 27, 1964.

In May, 1961, plaintiffs, James and Amilly Pittman, obtained a $7,130 judgment against defendant, Myron F. Lageschulte, for conversion of some cows. To stay a capias, he posted bond and took an appeal. While the appeal was pending we received plaintiffs' motion requesting that it be dismissed for failure of defendant to file his brief and abstract within the allowed time. Such motion was filed in this court on January 3, 1962. Eight days later, to our surprise, we received defendant's motion requesting the same thing, but for decidedly different reasons. His motion recited that the case had been settled, that the controversy was over and that plaintiffs had executed a Satisfaction of Judgment. Naturally, we allowed both motions, but at the time, January 12, 1962, we thought it all a bit odd. We now know what happened as a result of this present appeal, which is again by defendant, and as might be guessed, from an order setting aside the Satisfaction.

The facts are grotesque. We would just as soon skip them, but defendant raises the issue that the order is not supported by the evidence and hence we must review the entire record. If he is right it is our plain duty to reverse, for no order that is clearly erroneous and against the manifest weight of the evidence can be permitted to stand.

To review the record we must of necessity go back to the time of the first appeal of the $7,130 judgment. During its pendency defendant Lageschulte substituted attorneys. The order permitting substitution was entered by us on November 14, 1961, and we then gave his new attorney, Leonard Karlin, until November 30, 1961 to file his abstract and brief.

Finding himself pushed for time, Karlin on November 27, 1961 wrote to plaintiffs' counsel as follows:

"Dear Mr. Kramer

"As you probably know, I am substituting as counsel for the defendant appellant Myron Lageschulte in the matter of the appeal.

"I understand you were kind enough to offer to stipulate for extensions of time, if necessary, with Messrs. Huszagh; would you be kind enough to extend me a similar courtesy? I shall be most pleased to reciprocate, if the occasion arises.

"I have just received the record about ten days ago, and frankly, I am swamped. I have the abstract nearly ready for the printer, however.

"I am enclosing a copy of my Motion for an Extension of time, but I should appreciate the opportunity of attaching a stipulation to the original I intend filing in Ottawa.

"Thank you for your courtesy in this matter."

The courtesy was extended and we thereupon again extended the time to December 30, 1961.

Sometime after December 1, the attorneys had a telephone conversation concerning possible settlement. Karlin opined at that time, after thanking Kramer for his courtesy in signing the stipulation, that he had "a good appeal." They were not able to arrive at a settlement. On December 9, 1961, Kramer wrote to Karlin as follows:

"I was pleased to see that the Court saw fit to grant you adequate time to prepare and file your brief and abstract, to-wit to and including December 30, 1961.

"I assume that you will shortly finish your abstracting and briefing and will then return the record and transcript to the Clerk of the Circuit Court of Kane County in Geneva, Illinois.

"God willing, I am going to try to have any additional abstract and brief and argument prepared within the normal 20 days allocated to us which is 20 days after the 30th of December, 1961. Because we run over into the New Year's weekend and January 1 not being a working day, I would appreciate it if you could serve me with your abstract, brief and argument before December 30, a Saturday if this is possible. I would also ...


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