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First National Bank v. Bernius

OPINION FILED AUGUST 21, 1984.

FIRST NATIONAL BANK OF SULLIVAN, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

ROBERT R. BERNIUS, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from the Circuit Court of Moultrie County; the Hon. James N. Sherrick, Judge, presiding.

JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

On June 14, 1982, plaintiff, First National Bank of Sullivan (Bank), filed suit in the circuit court of Moultrie County against defendant, Robert R. Bernius, seeking recovery on two promissory notes. Count I concerned a note in the principal sum of $53,170.64, and a jury trial was held on that count in May 1983. On May 12, 1983, the jury returned a verdict in favor of defendant. Judgment was subsequently entered on the verdict. Plaintiff appeals. Defendant has cross-appealed. We affirm.

We consider the cross-appeal first. Defendant claims that the trial court erred in denying his motion to dismiss plaintiff's post-trial motion because that motion was not filed within 30 days of the entry of the judgment on the verdict as required by section 2-1202(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1202(c)). The post-trial motion was filed on July 1, 1983. A dispute exists as to whether the judgment on the verdict was (1) entered on May 31, 1983, as maintained by defendant, in which case the July 1, 1983, motion was tardy, or (2) entered on June 1, 1983, as asserted by plaintiff, in which case it was timely.

The docket (1) indicated that a judgment on the verdict was pronounced in open court on May 12, 1983, and also (2) contained a notation stating "Written Order to be filed." The docket for May 31, 1983, then stated "Judgment Orders on Counts I and II on file." However, a written judgment order as to count I, signed by the trial judge stating that it was "entered" on May 31, 1983, but bearing the file mark of June 1, 1983, appears in the record.

Supreme Court Rule 272 (87 Ill.2d R. 272) provides that if, when final judgment is pronounced, the judge directs that a written form of judgment be signed by him, the clerk shall, as here, so note "and the judgment becomes final only when the signed judgment is filed." (Emphasis added.) The parties do not dispute that the time for filing the post-trial motion began to run upon the filing of the signed order. Thus, the dispute is as to whether the file mark of June 1, 1983, or the docket entry stating that the filing took place on May 31, 1983, should have been followed.

• 1-3 We hold that plaintiff's post-trial motion was timely filed on July 1, 1983, because the judgment attacked was entered on June 1, 1983. In making our decision we note that the Director of the Administrative Office of the Illinois Courts> has not designated the circuit court of Moultrie County to be a court in which the Supreme Court Administrative Order on record keeping (Ill. Ann. Stat., ch. 25, par. 16 (Smith-Hurd 1984 Supp.)) is applicable. Accordingly, we need not consider the effect, if any, that order might have here. Under prior precedent, a docket entry is not the ultimate entry of the court's judgment in a civil case, at least when there is an additional entry to be made. (See Scott v. Dreis & Krump Manufacturing Co. (1975), 26 Ill. App.3d 971, 983-84, 326 N.E.2d 74, 82.) By analogy, a docket entry would not control over the ultimate order even as to the filing date when a written order is required. (See Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc. (1971), 2 Ill. App.3d 524, 275 N.E.2d 654.) It did not do so here.

Uncontradicted affidavits submitted by plaintiff in support of its response to defendant's motion to dismiss the post-trial motion clearly showed that (1) the trial judge signed the judgment on May 31, 1983, and mailed it on that date from his office in his county of residence to the Moultrie County circuit clerk, (2) the clerk filed the judgment on June 1, 1983, and (3) the docket entry showing the filing date of May 31, 1983, was entered by inadvertence. We need not decide whether this information was proper for consideration in interpreting the court records but, if we are permitted to consider the affidavits, they fully support our decision.

Our ruling on defendant's cross-appeal obviates a need for us to consider, sua sponte, whether we are deprived of jurisdiction on the theory that (1) the post-trial motion was tardy and a nullity, (2) thus, the time for filing notice of appeal began upon the entry of the judgment on the verdict, and (3) notice of appeal was not filed within 30 days from that date.

We now consider the issues raised on plaintiff's appeal. It contends that (1) the trial court should have entered judgment n.o.v. in favor of plaintiff; (2) error arose from rulings on evidence; (3) defense trial tactics improperly prejudiced plaintiff; and (4) the court erred in ruling on instructions. It requests that a judgment n.o.v. in its favor be entered, or in the alternative, that it be awarded a new trial.

On March 17, 1980, Michael Bernius, defendant's son, gave the Bank a short term note in exchange for a loan of $55,690.61. The proceeds were used in partial payment of a previous loan. At the same time Michael sold his home, using part of the proceeds to pay the balance of the previous loan and another part of the proceeds to purchase a house with the deed taken in defendant's name. Some days after Michael executed that note, defendant also signed it. By the terms of the document, his liability was limited to his equity in that real estate. On June 17, 1980, Michael met at the Bank with its cashier, Richard H. Burcham, and signed the note upon which count I was brought. It was in the principal sum of $53,170.64, bore interest at the rate of 17% per annum, and had a duration of three months. The March 17, 1980, note was paid with the proceeds of this note and by money which Michael had received from the sale of a boat. After some payments had been made on the June 17, 1980, note, Michael's obligation on the note was discharged by his bankruptcy.

A signature purporting to be that of defendant also appeared as a maker on the June 17, 1980, note. This note contained no provision which purported to limit the liability of defendant. The parties are in agreement that defendant did not sign the note on June 17, 1980. The dispute is as to whether he signed the note later. Defendant concedes that if he did, in fact, sign the note, he has no defense on the note. Thus, the question of whether plaintiff was entitled to a judgment n.o.v. depends entirely upon whether the proof that defendant did sign the note is so strong that a contrary decision could never stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

The thrust of the plaintiff's proof that the defendant had signed the note was the testimony of Burcham. He stated (1) that when Michael signed the note, he told Michael to have his father come over to the bank and sign the note, and (2) that several days later, defendant came over and, after reading the note, signed without comment. The Bank's president, John Hagen, testified that the note had been in the continuous possession of the Bank from June 17, 1980, until turned over to its attorneys for collection.

When shown a copy of the June 17, 1980, note while testifying in his own behalf, defendant denied signing the note. When asked if the signature on the note purporting to be his was, in fact, his, defendant answered, "No, I don't think it is, no." He stated that he was positive that no one from the Bank ever asked him to sign the note and that the first he heard that the Bank might be looking at him for payment was a letter from Hagen on October 6, 1981. Evidence was introduced of a deposition wherein defendant had testified that he could not remember signing the note, but the signature could be his and then stated, "No, I am not saying that I didn't sign it, no." However, defendant testified that he had studied the matter since suit was filed and had become positive that he had not signed the note. He further testified that he would not have signed a note for the amount of money involved, because he could never have paid the note.

Defendant's testimony was supported by that of his son Michael, who denied that (1) Burcham had asked him to obtain defendant's signature, (2) he had asked defendant to sign the note in question, or (3) he had placed the disputed signature on the note himself. Certain circumstantial evidence also supported the defense. When Michael had signed the note, he had immediately been given a copy of the note, although it was not usual bank practice to disburse copies of a note until all of the signatures had been obtained. The Bank also treated the prior note as having been discharged on July 17, 1980, even though, admittedly, defendant's signature had not yet been obtained. ...


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