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Hall v. Turney

OPINION FILED DECEMBER 30, 1977.

JOSEPH HALL, PLAINTIFF-APPELLANT,

v.

GEORGE TURNEY, D/B/A OLD HOMESTEAD TAVERN, DEFENDANT-APPELLEE. — (ANNIE MOIS, TRUSTEE, ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff brought action against defendants under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135) for injuries sustained in the Old Homestead Tavern. At trial all defendants except appellee, George Turney, were dismissed, and the jury found for Turney. Judgment was entered upon the jury's verdict and plaintiff filed a post-trial motion. The court below denied this motion in an order dated October 7, 1975. Plaintiff then initiated the instant appeal by filing a notice of appeal from this order on October 14, 1975. Because of the nature of our disposition of this appeal, the procedural history of the case before us will be considered at length and a review of the evidence and plaintiff's contentions on appeal is unnecessary.

OPINION

I

Supreme Court Rule 323(b) (Ill. Rev. Stat. 1975, ch. 110A, par. 323(b)) provides that a report of proceedings shall be certified and filed in the trial court within 49 days after the filing of the notice of appeal. In the case at bar notice of appeal was filed on October 14, 1975. Hence, under the foregoing rule, plaintiff had to file the report of proceedings in the trial court prior to December 3, 1975. However, Supreme Court Rule 323(e) (Ill. Rev. Stat. 1975, ch. 110A, par. 323(e)) provides that any judge of either the trial or reviewing court may extend the time for filing the report of proceedings:

"* * * on motion made within the time provided by this rule or any extension thereof. The extensions of time granted in the trial court for filing the report of proceedings shall not aggregate more than 42 days in addition to the 49 days allowed by this rule. Further extensions of time may be granted only by the reviewing court or a judge thereof on motion made before the expiration of the original or extended time, or on motion filed within 35 days thereafter * * *." (Emphasis added.)

Plaintiff did not file a motion for an extension of time in the court below. Nevertheless, under this rule plaintiff could have filed such a motion with this court either: (1) before the expiration of the original 49 days, that is, prior to December 3, 1975; or (2) within 35 days after the expiration of the original time on December 2, 1975, that is, prior to January 7, 1976. No such motion was filed with this court prior to January 7, 1976. However, on January 14, 1976, plaintiff filed a motion in this court in which he requested an extension of time for filing the "complete Record on Appeal, including transcript." That motion was granted over defendant's objection on January 30, 1976, and it gave plaintiff a 45-day extension. The report of proceedings was filed in the court below on February 25, 1976.

• 1 Supreme Court Rule 323 has the force of law and is binding upon both the court and the litigant. (See In re Estate of Meirink (1957), 11 Ill.2d 561, 564, 144 N.E.2d 591; Portock v. Freeman (1977), 53 Ill. App.3d 1027, 369 N.E.2d 201; Nicaisse v. Plemmons (1976), 37 Ill. App.3d 85, 86, 345 N.E.2d 224; Shive v. Shive (1970), 130 Ill. App.2d 811, 812, 263 N.E.2d 713.) Plaintiff's motion in this court was neither made before the expiration of the original time nor filed within 35 days thereafter. Consequently, plaintiff's motion to this court on January 14, 1976, was not timely and under Supreme Court Rule 323 our subsequent action on the motion was ineffective to grant an extension of time for filing the report of proceedings. See Portock v. Freeman (1977), 53 Ill. App.3d 1027, 1031-32, 369 N.E.2d 201; cf. In re Estate of Meirink (1957), 11 Ill.2d 561, 563, 144 N.E.2d 591.

II

Supreme Court Rule 326 (Ill. Rev. Stat. 1975, ch. 110A, par. 326) requires the filing of the record on appeal in the reviewing court within 63 days after the filing of the notice of appeal or, if the time for filing a report of proceedings has been extended, within 14 days after the expiration of the extended time. Plaintiff filed the notice of appeal on October 14, 1975. It follows that the foregoing rule required filing of the record on appeal in this court prior to December 17, 1975, unless the time for filing the report of proceedings had been extended. No valid extension of time within which to file the report of proceedings was obtained in the instant case. Hence, it would appear that under Supreme Court Rule 326 the record on appeal should have been filed in this court prior to December 17, 1975. It was not filed in this court until February 27, 1976. However this rule also contains a 35-day "safety valve" provision under which this court may grant a motion for an extension of time for filing the record on appeal which is supported by a showing of reasonable excuse for failure to file earlier and which is filed in this court within 35 days after the expiration of the original 63 days. As we have indicated, plaintiff filed a motion in this court on January 14, 1976, and this filing was within the 35-day "safety valve" period. This motion was styled a motion pursuant to Supreme Court Rule 326 and requested, at the outset, an additional 45 days within which to file the "Record on Appeal." In this motion the affiant, plaintiff's counsel, stated that he did not previously file the record on appeal because plaintiff was unable to pay the cost of preparation of the report of proceedings. The affiant explained that while plaintiff's financial condition was the sole reason for the failure to previously file a record on appeal, it had improved to the point where plaintiff was now able to pay for the report of proceedings. The prayer at the end of the motion was for an additional 45 days within which to file the "complete Record on Appeal, including transcript."

On January 14, 1976, plaintiff also filed in this court a short record which contained the order appealed from, the notice of appeal and other portions of the common law record.

In written objections to the January 14 motion defendant pointed out that two praecipes for record were filed in the case at bar. The first was filed on October 14, 1975, the same day on which the notice of appeal was filed. In this praecipe, plaintiff asked the clerk of the court below to prepare "a transcript of record for appeal" including "all pleadings, motions, orders, half sheet and any and all other documents contained in the original court file, or copies thereof." On January 16, 1976, plaintiff, without leave of court, filed an "Amended Praecipe For Record" in the court below. In this praecipe plaintiff asked the clerk to include "in addition to the items contained in the original Praecipe for Record, the transcript of proceedings." Defendant maintained: (1) that the original praecipe did not request that the report of proceedings be included in the record on appeal; (2) that the second praecipe was not timely filed under Supreme Court Rule 322 (Ill. Rev. Stat. 1975, ch. 110A, par. 322); and (3) since it was not timely filed and was not filed with leave of court, the second praecipe was not properly filed on January 16, 1976. Defendant also argued that the January 14, 1976, motion to this court, which purported to be a motion under Supreme Court Rule 326 requesting an extension of time within which to file the record on appeal, was actually a motion under Supreme Court Rule 323 for an extension of time within which to file a report of proceedings. Defendant requested that the motion be denied because of lack of compliance with Supreme Court Rule 323 and plaintiff's failure to properly request that the report of proceedings be made a part of the record on appeal.

A

We agree with defendant that the original praecipe did not request that the report of proceedings be included in the record on appeal. Supreme Court Rule 322 explains that a praecipe is a statement designating the parts of the trial court record which the party filing the statement decides to have incorporated in the record on appeal. Supreme Court Rule 321 (Ill. Rev. Stat. 1975, ch. 110A, par. 321) states that the record on appeal shall consist of the judgment appealed from, the notice of appeal and the other parts of the trial court record designated in the praecipe. This rule also explains that the trial court record consists of both the report of proceedings and the common law record. The report of proceedings consists of testimony, oral rulings of the trial judge, matters upon which these rulings were made and other proceedings which the party submitting the report desires to have incorporated in the record on appeal. (See Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App.2d 287, 210 N.E.2d 614.) The common law record consists of other papers which are certified by the clerk of the trial court. (See Husted, 62 Ill. App.2d 287, 294, 210 N.E.2d 614.) It seems to us that plaintiff, in his first praecipe, asked the ...


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