Appeal from the Circuit Court of Cook County, Chancery
Division; the Hon. DANIEL A. COVELLI, Judge, presiding. Motion of
plaintiff to dismiss appeal allowed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 18, 1966.
Defendant, Jack Stein, appeals from a decree in a mortgage foreclosure proceeding in which the trial court found that the plaintiff's mortgage is a paramount lien, and that the defendant, Jack Stein, is the owner of a note secured by trust deed to one Ralph Brown. The decree further found that the defendant, Jack Stein, had acquired his note after the lien of the trust deed to Ralph Brown had been subordinated to the mortgage owned by the plaintiff, and that the rights of Jack Stein and all other defendants are subordinate to the lien of the mortgage foreclosed by the plaintiff.
The brief and argument of Jack Stein, defendant (appellant), was filed on October 15, 1965, and on November 2, 1965, the plaintiff (appellee) filed a motion to dismiss the appeal based upon the following grounds: (1) The record filed in this court is not in accord with the Praecipe for Record and is not certified as being complete; (2) the abstract of record does not conform to Rule 38 of the Supreme Court, and Rule 5(2)(j) of the Appellate Court of Illinois, First District, and (3) appellant's failure to include in the record the transcript of the proceedings had in the trial court makes it impossible for this court to review the evidence available as a basis for the trial court's decision. This motion was taken with the case. Thereafter the plaintiff filed its answering brief on January 7, 1966, and the reply brief of the defendant was thereafter filed on January 31, 1966.
The decree entered in this case shows that testimony of witnesses was duly heard by the court. The defendant, Jack Stein, failed to have any of the evidence which was heard by the trial court included in the record on appeal. The defendant Stein (appellant) made arguments, not based upon any evidence in the record, to the effect that his note was not endorsed with the subordination agreement; that his note bore an endorsement that it was secured by a first mortgage when he acquired it; and that Winter & Hirsch, from whom he acquired the note, was never in the chain of title. The note held by Stein is not a part of the record before us, nor is the trust deed, securing said note, in this record. The record filed by defendant Stein does not disclose what endorsements, if any, were made on the note owned by Stein and the trust deed securing that note. The chain of title is not in the record, and therefore the statement that Winter & Hirsch was never in the chain of title is not supported by the record. The plaintiff in its answering brief sought to confine itself to the record.
The decree of foreclosure in this case found in part as follows:
"4. That the note secured by the Trust Deed to Ralph Brown as Trustee, Document No. 17462725, is now owned by Jack Stein; that prior to Mr. Stein's acquisition of said note from Winter & Hirsch, Inc. the lien of the Trust Deed securing said note was duly subordinated to the lien of the Plaintiff's Mortgage; that the rights and interests of the Defendants Jack Stein and Ralph Brown, Trustee, in and to the property hereinafter described are subject and subordinate to the lien of the Plaintiff mentioned in paragraph 3 of this Decree."
The evidence heard by the trial court on this point is presumed to have been sufficient to have sustained the finding, where a report of proceedings involving the trial court's hearing is not before us on appeal.
In Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill. App.2d 218, 197 N.E.2d 143, the court on page 225 said:
"The record on the appeal before us does not contain a report of the proceedings involving the trial court's hearing on the petitions and answers thereto for sanctions. The record before us does indicate that: `the court after having heard the evidence and arguments of counsel' entered the judgments or sanctions. Therefore, we must presume that the evidence was sufficient to sustain the findings below and to support the decision of the trial court on said issues. Smith v. Smith (1955), 5 Ill. App.2d 383, 125 N.E.2d 693."
Any doubt arising from the incompleteness of the record will be resolved against appellant. People v. Zimmerman, 57 Ill. App.2d 190, 206 N.E.2d 741.
In Culver v. Schroth, 153 Ill. 437, 39 N.E. 115, it was held that in the absence of a complete record the decree of the circuit court will be supported by every reasonable intendment and presumption.
The clerk of the trial court, in certifying to the record, struck out the words "perfect and complete" which preceded the words "transcript of record." The clerk did, however, ...