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Sizer v. Lotus Grain & Coal Co.

OPINION FILED APRIL 16, 1979.

DONALD E. SIZER, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

LOTUS GRAIN & COAL CO., INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT. — (THE ANDERSONS, DEFENDANT).



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

This matter turns in this court on the issue of appealability.

Do we have jurisdiction?

In sum — no.

We must dismiss.

A jury trial occurred on January 18, 1978, resulted in a verdict for Donald E. Sizer (plaintiff), and on February 15, 1978, Lotus Grain & Coal Co., Inc. (defendant) filed a post-trial motion. On May 10, 1978, the trial court denied this motion and motions for a directed verdict which were pending at that time. On May 15, 1978, defendant filed a "Motion to Expand Order" stating that the questions involved were matters of first impression in Illinois and that further explanation was needed to make the trial court's rulings clear to the higher courts>. This motion was denied by the trial court on July 6, 1978, and a notice of appeal was filed on July 28, 1978.

We do not reach the merits since this appeal must be dismissed for failure to file a timely notice of appeal.

Supreme Court Rule 303(a) (58 Ill.2d R. 303(a)) in part provides:

"(a) Time. Except as provided in paragraph (b) below, the 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 a non-jury case, within 30 days after the entry of the order disposing of the motion."

And Supreme Court Rule 301 (58 Ill.2d R. 301) makes the filing of a notice of appeal jurisdictional.

The trial court here denied the post-trial motion on May 10, 1978, and the notice of appeal was filed on July 28. This obviously is well beyond the 30-day period allowed.

• 1 An additional question is raised, however, by the defendant's election to file a "motion to expand." Section 68.1(3) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 68.1(3)) says:

"(3) 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 or any extensions thereof."

By the terms of this section, a trial court could extend the time for the filing of post-trial motions, thereby altering the deadline for the notice of appeal. It does not, however, give the trial court the authority to grant more than one opportunity for post-trial motions. In the case at bench, the defendant was given an opportunity to file a post-trial motion, which he did. Upon the ...


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