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Sears, Roebuck & Co. v. Industrial Com.





Appeal from the Circuit Court of Cook County, the Hon. Arthur L. Dunne, Judge, presiding.


Rehearing denied March 28, 1980.

An Industrial Commission arbitrator awarded compensation to claimant, the widow of Richard Stas, as a result of Stas' death on February 10, 1974. After hearing additional testimony, the Commission affirmed the arbitrator's decision, but the circuit court of Cook County reversed. Claimant has appealed directly to this court under Rule 302(a). 73 Ill.2d R. 302(a).

While this cause was pending before us, respondent filed a motion to dismiss. In support of its motion, respondent maintains that claimant failed to file a timely notice of appeal from the circuit court judgment and that, consequently, this court is without jurisdiction.

Supreme Court Rule 303(a), governing appeals from final judgments of the circuit court in civil cases, states:

"[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, * * * within 30 days after the entry of the order disposing of the motion." (73 Ill.2d R. 303(a).)

Section 68.3(1) of the Civil Practice Act, in turn, governs motions after judgment in non-jury cases and provides:

"[A]ny party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief." (Ill. Rev. Stat. 1977, ch. 110, par. 68.3(1).)

For purposes of the foregoing provisions, workmen's compensation cases are treated in the same manner as other civil cases. Brady v. Industrial Com. (1970), 45 Ill.2d 469, 472.

The circuit court judgment in favor of respondent was entered on December 14, 1978; a notice of appeal was filed February 13, 1979. Respondent admits that, during the intervening time period, it received notice of a motion for rehearing, but states that it never received a copy of the motion, and that no written motion for rehearing was ever filed with the circuit court clerk. In this regard, respondent correctly points out that a notice of motion, without the accompanying written motion, is insufficient to toll the running of the time for appeal. Section 50(5) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 50(5)) requires that a motion to set aside a final order, judgment or decree be filed within 30 days after entry thereof. Kollath v. Chicago Title & Trust Co. (1975), 62 Ill.2d 8, decided under section 50(5), held that a notice of motion alone, filed within the 30-day period, did not satisfy such requirement. There, in ruling that the circuit court lacked jurisdiction to entertain plaintiff's oral motion, presented more than 30 days after dismissal of the case, this court relied on the fact that plaintiff had failed, within the specified time, to seek a vacation of the order of dismissal. 62 Ill.2d 8, 10.

Claimant concedes that a written motion for rehearing was not filed. In contrast to Kollath, however, claimant and respondent appeared before the circuit court on January 12, 1979, within 30 days after entry of judgment, and claimant, at that time, orally moved for a rehearing. The court excused claimant from filing a written motion for rehearing and set arguments on the motion for January 31, 1979. After respondent expressed concern over the effect of the order, the court assured respondent that it was not granting claimant's motion, but merely agreeing to hear arguments on the motion. The court further indicated that the effect of its ruling would be to stay the running of the appeal time until January 31, 1979. Respondent did not object to the claimant's failure to file a written motion. Moreover, in response to the court's reference to the time for appeal, respondent stated, "I'll have no quarrel with the staying at this time." Thereafter, at the January 31, 1979, hearing, the circuit court denied claimant's motion for rehearing. Claimant filed a notice of appeal on February 13, 1979.

While the actions and proceedings surrounding the motion below are not a model of proper civil procedure, respondent's acquiescence served to cure any errors that may have occurred. With the approval of the court and the assent of respondent, and within 30 days after judgment, as required by section 68.3(1) of the Civil Practice Act, claimant moved orally for a rehearing. One effect of the foregoing was to prevent the December 14 judgment from becoming final until 30 days after the court's order disposing of the motion. Claimant thereafter filed the notice of appeal within the requisite time period. Under the circumstances, respondent's motion to dismiss is denied.

Stas was employed by respondent, Sears, Roebuck & Company, as a shop technician, repairing gear cases. On October 31, 1973, he entered Lutheran General Hospital, where he was placed in the Alcoholic Rehabilitation Center. There, a program was designed for the treatment of Stas' alcoholism. It included sessions with a therapist, and was to involve the participation of his family and his employer. As his treatment progressed, an appointment was made for approximately 1 p.m. on November 16, 1973, when Stas was to meet with his therapist and Herb Grunde, his supervisor at Sears. Shortly before the scheduled conference, however, Stas suffered a myocardial infarction and, at approximately 12:50 p.m., was transferred to the hospital's emergency room. On December 8, 1973, he was released from the hospital and returned home. Stas went back to work on February 4, 1974, but, under doctor's orders, was limited to light work for half days only. Grunde testified that when Stas returned to work on February 4, 1974, he looked greatly improved and moved faster than he had prior to his hospitalization, but the claimant testified that, although Stas said on his first day back at work that he was happy to have resumed employment, he appeared to be tired during the remainder of the week. On Friday evening, February 8, claimant noticed that her husband appeared very tired, his color was grayish, and he had very little appetite. On Saturday, Stas slept late, had little appetite and rested most of the day. That evening he complained to claimant that his left arm was bothering him. He asked for some Bromo Seltzer, which claimant prepared for him. Stas got up at 2 a.m. on Sunday, February 10, and told claimant, who also awoke, that he ached all ...

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