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Kuhlman v. Cotter

MARCH 6, 1968.

BETTY JANE KUHLMAN, ADMINISTRATRIX OF THE ESTATE OF GUY E. REDMAN, DECEASED, PLAINTIFF-APPELLANT,

v.

RUSSELL EUGENE COTTER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Iroquois County, Twelfth Judicial Circuit; the Hon. DAVID E. ORAM, Judge, presiding. Reversed and remanded with directions.

ALLOY, P.J.

This action originated in consequence of a motor vehicle accident which occurred on December 9, 1960, and resulted in the filing of an action by Betty Jane Kuhlman as Administratrix of the Estate of Guy E. Redman, deceased, on July 31, 1961. In a trial of this action, the jury had returned a verdict in favor of defendant, Russell Eugene Cotter, on June 28, 1962. On July 9, 1963, the trial court allowed plaintiff's motion for a new trial. Thereafter, defendant petitioned for leave to appeal to the Appellate Court. This petition for leave to appeal was denied on October 19, 1963. The mandate of the Appellate Court denying the petition for leave to appeal was filed in the trial court on November 13, 1964, one year and 25 days following the entry of decision in the Appellate Court. The case was redocketed and defendant filed a motion to dismiss the action because the mandate was filed in the trial court more than one year after its issuance by the Appellate Court. The motion to dismiss was filed on November 13, 1964, the date of the filing of the mandate. A memorandum decision of the trial court granting the motion to dismiss was filed in the trial court on February 7, 1967. The stated cause for granting of the motion to dismiss was that plaintiff had failed to file her mandate from the Appellate Court in the trial court within one year from the date of entry of the ruling of the Appellate Court denying the petition for leave to appeal from the order granting a new trial.

In this court, appellant had supplemented the record by filing a copy of the notice of appeal pursuant to leave of court which was filed without objection from appellee. Nearly three months later, appellee filed a motion to dismiss the appeal on the ground that the appellant had failed to comply with the Supreme Court Rules and the Appellate Court Rules in not submitting a report of proceedings upon notice to the trial judge and in not advising appellee of the date of filing of the record on appeal, and also that the record on appeal did not include the copy of the notice of appeal referred to.

[1-3] There is no requirement under the Supreme Court Rules (Supreme Court Rule 321) that the record on appeal contain a transcript of proceedings unless review is requested of matters required to be included therein. The record on appeal before us does not contain a transcript of proceedings since the judgment appealed from relates only to a question of the law in a written decision of the trial court which was made part of the common-law record. For the purposes of appeal, the record on appeal is adequate. There is also a showing in this court that appellee was given notice of the filing of the record on appeal in timely and appropriate manner. The addition of the copy of the notice of appeal under Rule 366 of the Supreme Court Rules (which was made without objection on part of the appellee) was clearly within the power of this court on review. The motion to dismiss the appeal will, therefore, be denied.

The basic significant issue presented in this case is whether the statute (§ 88, c 110, 1965 Ill Rev Stats) require that the mandate of the Appellate Court be filed in the trial court within one year in order to permit the trial court to proceed in a civil case, when the Appellate Court has entered an order denying the petition for leave to appeal from an order granting a new trial. The pertinent provisions of the statute are as follows:

"MANDATE OF REVIEWING COURT FILED IN THE TRIAL COURT — NEW TRIAL OR HEARING.

"(1) If an appeal is dismissed, or a judgment, order or decree is affirmed, then upon the filing of the mandate of the reviewing court in the office of the clerk of the court from which the case was originally removed execution may issue and other proceedings may be had in all respects as if no appeal had been taken.

"(2) If any cause is remanded for a new trial or hearing, the reviewing court shall issue its mandate reversing and remanding the cause directly to the trial court. Upon the filing of the mandate in the trial court the cause or proceeding shall be reinstated therein, upon 10 days' notice being given to the adverse party or his attorney. Service of the notice may be made upon any party personally, whether found within or without the State, or upon the attorney of record of the party in the trial court in any manner provided for service of papers upon attorneys, or as the trial court may direct.

"(3) No new trial or hearing shall be had by reason of the reversal of any judgment, order or decree, unless the mandate is filed in the trial court within 1 year after the judgment, order or decree of the reviewing court has become final either through the denial of a petition for rehearing or the expiration of the time within which a petition for rehearing might have been filed.

"(4) Other than as provided in subdivisions (2) and (3) of this section, no notice of the filing of the mandate of the reviewing court need be given, and lapse of time is not a bar to the filing of the mandate in the trial court."

Other provisions of significance appear at chapter 110, § 101.30 and § 201.22, 1965 Illinois Revised Statutes. These sections provided as follows:

"If the petition is granted, the proceedings are stayed upon the filing of bond by the petitioner in an amount, and subject to conditions, to be fixed by the court, or a judge thereof in vacation. The case is then pending on appeal. Within 48 hours after the granting of the petition, the clerk shall send notice thereof to the clerk of the trial court."

It should be noted that this case is being determined on the basis of the statutory provisions then in existence and prior to the adoption of Illinois Supreme Court Rules 368 and 369 (requiring automatic issuance of mandate by the clerk of the reviewing court). The problem would not arise in this fashion under the present provisions for automatic filing of mandate by the clerk of the court on review as provided in current rules.

Under the statute and previous rules, a mandate was required to be filed following a decision of the Appellate Court in cases where there has been an appeal (other than from an order granting a new trial) and where the court of review has reversed and remanded the case. In such cases it was required that the mandate be filed within the one-year period if the successful party wished to avail himself of the relief granted by the court of review. In Busser v. Noble, 32 Ill. App.2d 181, 177 N.E.2d 251, the trial had resulted in a judgment for the defendant. Plaintiff appealed and the Appellate Court reversed and remanded the case to the Circuit Court for a new trial. The mandate of the Appellate Court was not filed with the trial court within one year from the date on which the petition for rehearing in the Appellate Court was denied. On motion of defendant, the court ordered the cause to be stricken from the docket and refused to allow the plaintiff to file the mandate after the one-year period had expired. In that case the plaintiff attempted to show illness of the attorney who prosecuted the appeal as his excuse for filing the mandate after the one-year period but the court held that there was no discretion to allow ...


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