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Husted v. Thompson-hayward Chemical Co.

OCTOBER 1, 1965.

RICHARD W. HUSTED, PLAINTIFF-APPELLANT,

v.

THOMPSON-HAYWARD CHEMICAL CO., A MISSOURI CORPORATION, ENOS CONLEY & SONS, A CORPORATION, AND ROY DIEDRICK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court for the Sixteenth Judicial Circuit, Kane County; the Hon. CARL A. SWANSON, Judge, presiding. Appeal dismissed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Plaintiff-appellant herein asserts that he has appealed from the order entered denying his post-trial motion for new trial against defendants-appellees, Thompson-Hayward Chemical Co., a Missouri Corporation, and Enos Conley & Sons. However, his abstract of record fails to sustain this contention.

The plaintiff's amended complaint consisted of three counts. Count I was directed against the defendant, Roy Diedrick, a custom farmer, who applied the chemical spray in question to 110 acres of plaintiff's corn.

Count II alleged that Diedrick purchased the chemical, which he diluted with water, from the defendant, Enos Conley & Sons, herein called vendor; that said chemical was a plant poison and was inherently dangerous to plant life and growing crops to which it might be applied; that the vendor warranted it to effectively kill weeds, vines and other broadleaf plants when diluted in water and applied to corn and corn land, without injury to the corn; that notwithstanding such implied warranty, said chemical, when diluted and applied by spray, severely damaged, curled, burned and discolored 75 acres of growing corn then owned and possessed by plaintiff, thereby stunting its growth and ruining it as a grain crop; and that the damage to said corn was the direct and proximate result of the application of said chemical spray.

Count III alleged that the defendant, Thompson-Hayward Chemical Co., herein called manufacturer, manufactured and sold said chemical to the defendant vendor, as its distributor; that said chemical was a plant poison, as alleged in Count II; that the manufacturer caused the chemical to be sold to the public, and impliedly warranted it to effectively kill weeds, vines and other broadleaf plants, when diluted with water and sprayed on corn and corn land, without damage to the corn; that notwithstanding such implied warranty, the chemical, when diluted with water and sprayed on plaintiff's corn and corn land, severely damaged 75 acres of growing corn, as alleged in Count II; and that the application of said chemical spray was the direct and proximate cause of the damage to said corn.

The defendants each filed answer to the amended complaint. The vendor, as a first defense, moved to strike the amended complaint for failure to state a cause of action, because no implied warranty existed in law or fact, and because there was no privity of contract, or mutual obligation between the vendor and plaintiff and no promise or representation was made to plaintiff. The answer further denied the allegations of the complaint and liability. The manufacturer admitted that it manufactured the chemical and that the vendor was one of its jobbers and denied all other allegations of Count III. By amendment to the answer, the manufacturer asserted as an affirmative defense that each package contained a notice that due to climatic and other conditions the manufacturer made no warranty concerning this product or its use; and that by reason of said notice, a copy of which was fully set forth, the plaintiff assumed any and all risks attendant with the use of the chemical. The plaintiff failed to reply to the new matter set forth in either of said answers, as required by section 32 of the Civil Practice Act. (Ill Rev Stats 1963, c 110, par 32.) Such failure constituted an admission by plaintiff of the truth of the new matter so alleged. Lundberg v. Gage, 22 Ill.2d 249, 251, 174 N.E.2d 845 (1961).

At the close of plaintiff's case, in a jury trial, the defendants each made a motion for a directed verdict and said motions were granted. The manufacturer's motion was based on plaintiff's failure to introduce any evidence to support the allegations contained in amended Count III and stated that plaintiff, as a matter of law, had not alleged or presented any evidence to support the allegations contained in amended Count III and stated that plaintiff, as a matter of law, had not alleged or presented any evidence to state a cause of action against it. The vendor joined in the manufacturer's motion.

Plaintiff filed a post-trial motion wherein he moved for a new trial on Counts II and III of his complaint. He charged error on the part of the court in directing verdicts on Counts II and III in that the theory of said counts was in contract, not tort; and that the court erroneously directed said verdicts on the ground that there was no implied warranty of fitness of said chemical in absence of privity of contract. Plaintiff further urged that even if the defendants were correct in contending that there was no privity of contract between plaintiff and either of them, that such defense should have been raised by motion to strike the complaint and cannot be raised by motion for directed verdict.

Upon motion, this court struck the Report of Proceedings at the Trial from the record filed herein in that it was not filed pursuant to Supreme Court Rule 36(1)(c) and Appellate Court Rule 1(1)(c). (Ill Rev Stats 1963, c 110, pars 101.36(1)(c) and 201.1(1)(c).) Plaintiff filed notice of appeal on August 19, 1964 and the above Rules required that the report of trial proceedings be certified by the trial judge and filed in the trial court within 50 days of the date notice of appeal was filed, or on or before October 8, 1964. On October 7, 1964, plaintiff filed motion for an order extending time for filing and certifying the record on appeal by the clerk of the trial court to November 8, 1964, and an order was entered extending the time within which to certify and file the record on appeal, to November 8, 1964. On November 6, 1964, plaintiff obtained a further order in the trial court which provided: "It is Ordered that plaintiff have to and including the 23rd day of November, 1964, within which to certify and file record of appeal."

[2-4] The plaintiff has failed to recognize any distinction between the report of trial proceedings and record on appeal. The report of trial proceedings consists of testimony and rulings of the trial judge, and all matters upon which rulings were made, and other proceedings which appellant desires to incorporate in the record on appeal. It must be filed within 50 days after the filing of Notice of Appeal and it is certified by the trial judge only. The time for filing the report of proceedings may be extended up to 45 days by the trial judge. The record on appeal consists of the report of trial proceedings, as certified by the trial judge, and the pleadings and papers certified by the Clerk. It must be filed in the reviewing court within 60 days from the day notice of appeal is filed, or if the time is extended for filing the report of proceedings, the time for filing the complete record in the reviewing court is automatically extended 10 days from the last day of the extended period for filing the report of proceedings. Further time for filing the record on appeal may be secured from the reviewing court only. Ill Rev Stats 1963, c 110, pars 101.36(1)(c) and 201.1(1)(c).

The foregoing trial court orders purported to extend the time within which to file the record on appeal. Such extension, other than by extending the time for filing report of trial proceedings, which would automatically extend the time for filing of the record on appeal 10 days after the extended time for filing the report of trial proceedings, was beyond the power of the trial court. In re Estate of Meirink, 11 Ill.2d 561, 563, 564, 144 N.E.2d 591 (1957); Cosgrove v. New York, C. & St. L. Ry. Co., 11 Ill. App.2d 574, 576, 138 N.E.2d 112 (4th Dist 1956). If we charitably treat the Orders in question as a proper extension of time for filing the report of trial proceedings, even then plaintiff did not file such report until on November 24, 1964, one day beyond the final extension date. If we regard November 23, 1964 as the final date for filing the report of trial proceedings and allow plaintiff 10 days thereafter within which to file the record on appeal, then, and only then, would the record on appeal be considered as properly filed.

Inasmuch as the report of trial proceedings was not filed pursuant to Court rules, it was properly stricken and we have before us for consideration, in connection with this appeal, only the papers certified to by the clerk, commonly referred to as the common law record.

The abstract of record filed by appellant consists of the amended complaint, the answers of the defendants, the manufacturer's, but not the vendor's, motion for a directed verdict at the close of the plaintiff's case, with memorandum, and plaintiff's post-trial motion. Upon this record and abstract, the plaintiff asks this court to determine the propriety of the acts and judgment of the trial court.

Due to the limited contents of the record on appeal and the abstract of record, we are presented with the threshold question of whether there is anything properly before us for review. The abstract is the appellant's pleading and must contain the matters sought to be reviewed. City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill. App.2d 314, 315, 192 N.E.2d 297 (2nd Dist 1963); Gribben v. Interstate Motor Freight System Co., 38 Ill. App.2d 123, ...


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