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Texaco, Inc. v. Barnes

OPINION FILED MAY 18, 1978.

TEXACO, INC., PLAINTIFF-APPELLEE,

v.

HECTOR BARNES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. AUBREY F. KAPLAN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 15, 1978.

This is an appeal from the decision of the circuit court of Cook County in a forcible entry and detainer suit determining that plaintiff, Texaco, Inc., was entitled to recover possession of commercial property from defendant, Hector F. Barnes. The primary question raised by the record on appeal is whether the filing of defendant's notice of appeal is sufficient to confer jurisdiction on this court.

The facts pertinent to this issue follow. On March 24, 1971, plaintiff and defendant entered into a year-to-year lease agreement for commercial premises. On November 6, 1975, plaintiff notified defendant by mail that it was terminating the lease effective March 31, 1976. On April 12, 1976, after defendant had refused to vacate the premises, plaintiff filed a suit pursuant to the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1975, ch. 57, pars. 1 through 22), to regain possession of the premises.

Defendant filed an answer and jury demand and, subsequently, filed a counterclaim seeking certain monies allegedly collected by plaintiff and punitive damages for alleged injury to his business reputation. After plaintiff moved to strike defendant's jury demand and counterclaim, defendant filed an amended answer to the complaint and a response to plaintiff's motion to strike.

A hearing was held on November 4, 1976, at which time the trial court announced its decision, directing that defendant's jury demand and counterclaim be stricken and awarding possession of the premises to plaintiff. Defendant filed his notice of appeal from this oral decision of the court on November 9, 1976.

As amended and corrected by three supplemental volumes, the record indicates that at the November 4 hearing, the trial judge asked each side to submit a draft written judgment order. A draft judgment order, consisting of four pages of findings and conclusions and a one-page final order, was submitted to the trial court by plaintiff on November 12, 1976. The one-page, uncaptioned, final order was mistakenly separated from the first four pages of findings and conclusions and erroneously bears the typed date November 4, 1976. Counsel for defendant submitted a draft judgment order by letter dated November 15, 1976, which was received by the trial court on November 17, 1976.

Sometime after receiving the draft judgment orders submitted by counsel, the trial judge signed plaintiff's erroneously dated draft judgment order. This final judgment order was made available to the attorneys on November 23, 1976, in the trial judge's chambers.

By motion in the trial court, plaintiff sought to correct the record to reflect that the judgment order had been entered on November 18, 1976, and to indicate that the final judgment order consisted of five pages rather than one. A transcript of the hearing on that motion, including the remarks of the trial judge and his order correcting the record pursuant to Supreme Court Rule 329 (Ill. Rev. Stat. 1977, ch. 110A, par. 329), have been included in the record on appeal.

In this court plaintiff filed a motion to dismiss the appeal contending that the defendant's notice of appeal was filed prior to the entry of a final judgment order in the trial court and was insufficient to confer jurisdiction on this court. We directed that plaintiff's motion to dismiss would be taken with the case.

OPINION

A reviewing court must decline to proceed in a case over which it has no jurisdiction. (In re Kerwood (1976), 44 Ill. App.3d 1040, 359 N.E.2d 183; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App.3d 224, 332 N.E.2d 553.) The jurisdiction of the appellate court is dependent upon the timely filing of the notice of appeal after the entry of a final judgment. Ill. Rev. Stat. 1975, ch. 110A, pars. 301 and 303(a); Grissom v. Buckley-Loda Community Unit School District No. 8 (1973), 11 Ill. App.3d 55, 296 N.E.2d 624; Hale v. Ault (1974), 24 Ill. App.3d 10, 321 N.E.2d 151.

• 1 Supreme Court Rule 272 (Ill. Rev. Stat. 1975, ch. 110A, par. 272), provides in pertinent part:

"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment ...


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