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Portock v. Freeman

OPINION FILED OCTOBER 14, 1977.

PETER PORTOCK, PLAINTIFF-APPELLANT,

v.

ROBERT FREEMAN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff, Peter Portock, brought action against defendant, Robert Freeman, for injuries allegedly sustained on August 21, 1970, when plaintiff's car was struck from the rear by defendant's car. At trial, defendant admitted liability but denied that plaintiff had sustained any injuries resulting from the accident. On July 21, 1975, the jury returned a verdict in favor of plaintiff but awarded him zero damages; judgment was entered on the verdict. Plaintiff's motion for a new trial was denied and he appeals.

A detailed review of evidence and plaintiff's contentions on appeal is unnecessary because we have determined that the instant appeal must be dismissed. Only the procedural history of the case following judgment is necessary to our decision today.

Following entry of the judgment on July 21, 1975, plaintiff obtained three separate extensions of time in which to file his post-trial motion. While only one such extension is reflected in the record, both parties agree that plaintiff's three motions for extensions were timely. The third extension, granted on October 10, ordered plaintiff to file his post-trial motion with the court on or before November 5, 1975, with a subsequent hearing date of November 12, 1975, established by the trial court. Plaintiff did not file his motion until November 12, which filing was objected to by defendant on grounds of timeliness. After arguments the trial court entered the following order:

"* * * That plaintiff's motion for a new trial is hereby denied. It is further found that plaintiff did not file said motion until November 12, 1975 and that defendant's attorney has raised an objection to the timeliness of said motion and this court's jurisdiction to entering an order upon the same and this court makes no ruling upon defendant's objections in order that the same issue may be included in an appeal of this cause and determined by the appellate court over the attorney for plaintiff's objection."

Plaintiff also appeals from this order of November 12 denying his motion for a new trial.

OPINION

Plaintiff in the instant case has not complied with the procedural methods for perfecting an appeal and preserving questions for review. Initially, we consider whether the appeal has been properly taken so as to invoke our jurisdiction. See Artoe v. Illinois Bell Telephone Co. (1975), 26 Ill. App.3d 483, 325 N.E.2d 698.

• 1 The timely filing of a notice of appeal is mandatory and jurisdictional. (Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App.3d 224, 332 N.E.2d 553; Ill. Rev. Stat. 1975, ch. 110A, pars. 301, 303(a).) In the instant case, plaintiff's notice of appeal filed on December 4, 1975, was not timely, and thus this court is without jurisdiction to hear this appeal.

Supreme Court Rule 303(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a)) provides as follows:

"* * * [T]he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion. * * *." (Emphasis added.)

The key word here is timely. Clearly, plaintiff's notice of appeal was not filed within 30 days of the July 21 judgment. In addition, however, since plaintiff's post-trial motion was not timely filed, the alternative provision for filing the notice of appeal within 30 days after disposing of the motion is not here applicable.

• 2 Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 68.1(3)) provides as follows:

"Post-trial motions must be filed within 30 days after the entry of judgment or the discharge of the jury, if no verdict is reached, or within any further time the court may allow within the 30 days ...


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