Appeal from the Circuit Court of Calhoun County; the Hon.
ROBERT S. HUNTER and JOHN T. REARDON, Judges, presiding. The
appeal from the decree of May 8, 1961, is dismissed, the decree
of the trial court entered on May 2, 1963, is affirmed.
The defendants, William J. Becker and Dorothy P. Becker, appeal from certain decrees of the trial court dated May 8, 1961, and May 2, 1963.
The decree of the Circuit Court entered on May 8, 1961, found that the plaintiff, Helen Mederacke, was the true and lawful owner of the described real and personal property and ordered the defendants, William J. Becker and Dorothy P. Becker, to convey said real estate to the plaintiff by good and sufficient instruments of conveyance. It further ordered that the described personal property in the possession of the defendants be delivered instanter to the plaintiff. The decree found, ". . . that there is no just reason for delaying enforcement or appeal . . ." of the order with respect to either the real property or the personal property. The decree further orders that the defendants pay the costs of the proceedings to date itemized to total $4,116.14.
It appears that thereafter the real property and the possession of the personal property in issue were transferred to the plaintiff on or about June 8, 1961.
Notice of appeal from the decree of May 8, 1961, to the Supreme Court was filed on August 2, 1961, and a praecipe for record was filed on August 11, 1961, by defendants, William J. Becker and Dorothy P. Becker. The appeal was dismissed by the Supreme Court on November 22, 1961, for failure to file the record on appeal as required by the rules of the court. The plaintiff contends that this appeal, so far as it undertakes to be an appeal from the decree of the trial court determining the title and possession to real and personal property entered May 8, 1961, must be dismissed for the reason that such decree was a final and appealable order, that defendants' appeal from such decree was dismissed in the Supreme Court for failure to complete the appeal under the rules and that under the Civil Practice Act and the rules of the court there is no provision for a second appeal.
It is the contention of the defendants that the present appeal "is the first appeal taken in this case," and that to hold that the decree of May 8, 1961, is res judicata, would be to deny the defendant a right to appeal.
We believe it to be clear that the decree of May 8, 1961, was a final and appealable order. Under the practice existing prior to the adoption of section 50(2) of the Civil Practice Act in 1955, this decree was final within the meaning of section 77(1) of the Civil Practice Act, since it adjudicated and determined the ultimate rights of the parties as to the title and ownership of real and personal property and was a separable issue from the accounting ordered in the decree, which latter issue was a mere incident flowing from the rights established by such decree. Barnhart v. Barnhart, 415 Ill. 303, 114 N.E.2d 378 (1953).
The decree of May 8, 1961, being in effect a final appealable order, the trial court properly and clearly made the finding required by section 50(2) of the Civil Practice Act that there was no just reason for delaying the enforcement or appeal of the decree so entered.
Defendants' appeal from such decree was perfected in the Supreme Court when the notice of appeal was filed on August 2, 1961. (Ill. Rev Stats 1961, c 110, § 76(2)). Such perfected appeal having been dismissed by the Supreme Court by reason of the failure of the defendants to complete the appeal as required under the statutes and the rules of the court, may the latter now have the benefit of an appeal from the decree of May 8, 1961, when he perfects an appeal from a subsequent decree of the trial court entered on May 2, 1963, following an accounting?
We have sought to consider the Illinois cases relating to the rights of a party to further relief when his appeal has been dismissed in the reviewing court. In Palmer v. Gardiner, 77 Ill. 143 (1875), the defendants' appeal to the Supreme Court was dismissed for his failure to file the necessary record on appeal. Thereafter, the defendant sought to enjoin the collection of a judgment entered against him. His complaint for injunction being dismissed below, defendant again appealed to the Supreme Court. That court held that upon defendant's failure to file the necessary record as was his duty under the rules, ". . . appellant lost all right to further prosecute his appeal, and, under the long settled practice, the appeal could be dismissed. . . ."
Following the adoption of the Civil Practice Act, our Supreme and Appellate Courts have consistently held that where a notice of appeal has been filed, there was no provision in the statute for filing a second notice of appeal. Corrigan v. Von Schill College of Chiropody & Pedic Surgery, 277 Ill. App. 350. We note that in Lanquist v. Grossman, 282 Ill. App. 181 (1935), and in Cullinan v. Cullinan, 285 Ill. App. 272, 1 N.E.2d 921 (1936), it was contended that the appellant had the option to abandon or disregard the appeal perfected by filing the first notice of appeal and could proceed under a second notice of appeal. The Court held, however, that the second appeal should be dismissed for want of statutory sanction.
Again, in People ex rel. Bender v. Davis, 365 Ill. 389, 6 N.E.2d 643, the appellants perfected an appeal by notice of appeal to the Appellate Court but failed to comply with the rules in completing such appeal, and the appeal was dismissed. Thereafter, by a subsequent order, the Appellate Court permitted appellant to file its notice of appeal under the provisions of the statute for appeal within one year from the date of the judgment. The Supreme Court awarded a writ of mandamus expunging the order of the Appellate Court which allowed appellant to file the second notice of appeal under the provisions of the statute allowing the filing within one year from the date of the judgment and stated that the Legislature did not intend to grant the right to file a second notice of appeal after one appeal had been perfected and that appeal dismissed. This case was prior to the amendment of section 76(1) of the Civil Practice Act which provided that prior filing of a notice of appeal would not preclude filing a petition for leave to appeal.
In Spivey Bldg. Corp. v. Illinois Iowa Power Co., 375 Ill. 128, 30 N.E.2d 641 (1940), defendant filed his notice of appeal but failed to complete the appeal under the rules and statute and such appeal was dismissed in the Appellate Court. A petition for leave to appeal was thereafter allowed, but the Appellate Court, upon consideration of People v. Davis, dismissed the appeal. The Appellate Court granted a certificate of importance but the Supreme Court affirmed the dismissal of the appeal for the reason set forth in the opinion in People v. Davis. Thereafter, in 1941, the Legislature amended section 76 of the Civil Practice Act to include the language of paragraph 1 of the section: . . . "The fact that appellant may have filed a notice of appeal prior to the filing of his petition for leave to appeal does not deprive the reviewing court of the power in its discretion to grant leave to appeal." . . .
In People v. Bristow, 391 Ill. 101, 62 N.E.2d 545 (1945), appellant filed his notice of appeal, but thereafter moved to dismiss the appeal "without prejudice" when it was discovered that there was no judgment entered in the lower court and that the appeal was premature. The Appellate Court entered an order vacating the order of dismissal and a written order reinstating case on appeal. Mandamus was brought to compel the Appellate Court to expunge such orders. The Supreme Court held that the Appellate Court did not have the power to vacate the order dismissing the appeal for the voluntary dismissal removed the appeal from the jurisdiction of the court. It was held, however, that: . . . "The appellant was free to perfect another appeal in any manner authorized by statute. If it failed to exercise or pursue that right, it was prejudiced, not by the order dismissing the appeal, but by its own ...