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First National Bank v. City of Aurora

OPINION FILED AUGUST 19, 1976.

FIRST NATIONAL BANK IN DE KALB, CONSERVATOR OF THE ESTATE OF ALLEN L. JARDINE, INCOMPETENT, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF AURORA, DEFENDANT-APPELLEE. — (LINCOLN-MERCURY DIVISION OF THE FORD MOTOR COMPANY ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Kane County; the Hon. ALFRED KIRKLAND, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 17, 1976.

Plaintiffs appeal the denial of a motion to vacate the dismissal of an amended complaint and denial of leave to file a second amended complaint. Allen Jardine was injured in a collision as he drove west and another car drove south into an uncontrolled intersection of two streets in the City of Aurora. He and his wife filed the initial complaints.

The complaints basically allege that the City was negligent in allowing the intersection to be uncontrolled and permitting a tree to obstruct the view of Allen Jardine.

IA

• 1 The abstract filed by appellant herein is little more than an index to the record. Even though the entire record is available for perusal by the reviewing court, appellants should remember that there is but one record while three or seven judges, as the case may be, have need of the relevant material. (Shaw v. Kronst, 9 Ill. App.3d 807.) The rule has been decisively announced that the reviewing court will not search the record for the purpose of finding error not shown in the abstract (Davis v. Davis, 128 Ill. App.2d 427), or for the purpose of overcoming deficiencies in the abstract (Thillens, Inc. v. Department of Financial Institutions, 24 Ill.2d 110) or in order to reverse the judgment (Spencer v. Burns, 413 Ill. 240) and that failure of the abstract to properly present the errors relied on warrants the court in affirming the judgment, all of course where there has been no good faith effort made to comply with Supreme Court Rule 342 (58 Ill.2d R. 342).

We would further point out to appellants that Supreme Court Rule 342(i) provides:

"Upon good cause shown after the filing of the record on appeal, the reviewing court or a judge thereof may excuse the filing of excerpts from record or an abstract or the abstracting of matters in the record even though they are to be considered on appeal."

Where the record is a short one, as here, we often excuse the filing of excerpts or abstract on the condition that the relevant material be appended to appellant's brief.

• 2 We believe that here there was a good faith effort to comply (see Supreme Court Rule 342(g)) with the rules and we will not summarily dismiss the appeal. We do not approve, however, of the failure to comply with the Rules.

IB

The City contends that this appeal should be dismissed for failure to timely file the record. It is asserted that Rule 326 sets forth the "jurisdictional requirement of filing the record or certificate in lieu thereof within 63 days after the filing of a notice of appeal." Although dismissal of an appeal for failure to timely file the record may be proper, we note that Supreme Court Rule 301 (58 Ill.2d R. 301) provides that, other than the filing of a notice of appeal, "No other step is jurisdictional." Thus, having jurisdiction, we choose to proceed to the merits of this appeal. See O'Brien v. Kawazoye, 27 Ill. App.3d 810.

IC

In their notice of appeal appellants stated:

"* * * and give notice of their appeal of the dismissal of the Amended Complaint as it applied to the City of Aurora * * *. Said order of dismissal was entered by Judge Alfred Y. Kirkland on Dec. 3, 1974; and said dismissal was reaffirmed by Judge John S. Peterson, on Jan. 2, 1975 by his denial of plaintiff's motion (* * *) to Vacate the Order of Dismissal and for Leave to file an Amended ...


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