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Schneider v. Vine Street Clinic

OPINION FILED NOVEMBER 14, 1979.

NANCY SCHNEIDER, ADM'R OF THE ESTATE OF TERRI SCHNEIDER, DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

VINE STREET CLINIC ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Logan County; the Hon. JOHN T. McCULLOUGH, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiffs appeal from an order of the trial court which dismissed plaintiffs' amended complaint with prejudice under a written memorandum of findings that there was a failure to state a cause of action in terms of duty and proximate cause.

The order of dismissal was entered December 27, 1978. The notice of appeal and proof of service of that notice each bear the circuit clerk's stamped filing date of January 29, 1979. The 30th day for purposes of filing the timely notice of appeal is January 26, 1979.

• 1 Upon its own motion this court issued a rule to show cause why the appeal should not be dismissed for failure to file a timely notice of appeal. Plaintiffs' response to the motion states that the notice of appeal was deposited in the United States mail, addressed to the clerk of the circuit court, on January 26, 1979. We take judicial notice that January 26, 1979, was a Friday. Counsel addressed the issue at oral argument and this court dismissed from the bench.

Supreme Court Rule 303(a) (58 Ill.2d R. 303(a)), states that:

"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." (Emphasis supplied.)

The rule is mandatory in its language and terms and it is consistently held that the timely filing of the notice of appeal is "mandatory and jurisdictional." Portock v. Freeman (1977), 53 Ill. App.3d 1027, 369 N.E.2d 201; Norris v. Board of Fire & Police Commissioners (1975), 30 Ill. App.3d 224, 332 N.E.2d 553.

Plaintiffs cite In re Rauch (1977), 45 Ill. App.3d 784, 359 N.E.2d 894, as suggesting that the reviewing court has the "power" to consider this appeal even though the filing of the notice did not meet the terms of the rule. In Rauch, parental rights were terminated. Counsel appointed by the court asked that the time for appeal by the parents be extended to 50 days, and the State's Attorney suggested that such provision be incorporated into the order. The State's Attorney thereafter moved to dismiss the appeal for want of a timely notice. The appellate court stated that the trial court had exceeded its authority in extending the time to file a notice of appeal, but denied the motion to dismiss upon "the broad concept that a party whose own conduct contributes or causes another to commit an irregularity in judicial procedure, cannot later twist that irregularity to his own advantage." (45 Ill. App.3d 784, 787, 359 N.E.2d 894, 896.) Such considerations are not present here.

• 2 Plaintiffs also cite the provisions of Supreme Court Rule 303(e) (58 Ill.2d R. 303(e)):

"On motion supported by a showing of reasonable excuse for failure to file a notice of appeal, on time, accompanied by the proposed notice of appeal, filed in the reviewing court within 30 days of the expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing."

Such rule requires a showing of reasonable cause and the granting of leave to file a late notice of appeal becomes a matter of judicial discretion upon consideration of the reasons for delay. A notice of appeal, which is not timely filed, cannot be treated as such a motion under that rule.

• 3 Supreme Court Rule II provides that in the trial court there may be service by mail of papers other than the process and the complaint, and Rule 12(c) provides the effective date for papers which are so mailed. Supreme Court Rule 373 (58 Ill.2d R. 373) provides that papers to be filed in the reviewing court by a specified date may be filed by deposit in a United States Post Office with a postmark as evidence of compliance. No rule providing for the use of mail undertakes to modify the mandatory language of Supreme Court Rule 303(a). For such reason the appeal is dismissed.

Dismissed.

REARDON, P.J., ...


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