13 N.E.2d 169 | Ill. | 1938
On April 5, 1935, the circuit court of Cook county entered judgment upon a verdict for $3500 in favor of William B. Johnson in an action of trespass brought by him against Cook county. No appeal was perfected within ninety days after the entry of the judgment, but on April 3, 1936, two days before the year expired, defendant filed a motion in the Appellate Court for the First District for leave to file notice of appeal in the circuit court. On April *161 16, 1936, the Appellate Court granted the motion or petition and on April 18, 1936, the notice of appeal, with a copy of the Appellate Court's order endorsed thereon, was duly served. Johnson's motion to dismiss the appeal was overruled and the Appellate Court reversed the judgment he had obtained. We have granted him leave to appeal.
Johnson contends that the Appellate Court erred in refusing to dismiss the appeal, because the notice of appeal was not filed in the circuit court within one year after the entry of the judgment complained of, as required by section 76 of the Civil Practice act (Ill. Rev. Stat. 1937, p. 2410) and by rule 34 of this court. The right to appeal must be availed of in strict compliance with the statute, (People v. Davis,
Section 76 of the Civil Practice act provides: "(1) No appeal shall be taken to the Supreme or Appellate Court after the expiration of ninety days from the entry of the order, decree, judgment or other determination complained of; but, notice of appeal may be filed after the expiration of said ninety days, and within the period of one year, by order of the reviewing court, upon motion and notice to adverse parties, and upon a showing by affidavit that there is merit in appellant's claim for an appeal and that the delay was not due to appellant's culpable negligence. * * * (2) An appeal shall be deemed perfected when the notice of appeal shall be filed in the lower court," etc.
Rule 34 of this court, as it existed prior to October, 1937, provided: "(1) A copy of the notice by which the appeal is perfected shall be served upon each appellee and upon any co-party who does not appear as appellant, and upon any other person or officer entitled by law to a notice of appeal, within five days after said notice of appeal is filed in the lower court. (a) Where the appeal is taken as *162 of right, such service shall be made within ninety days from the entry of the order, decree, judgment or other determination from which appeal is taken. (b) Where notice of appeal may be filed only by leave of the reviewing court, the time within which such service shall be made shall begin to run on the date when the notice of appeal, with the order of allowance endorsed thereon, is transmitted to and received by the court appealed from. Suchservice shall be made within one year from the entry of theorder, decree, judgment or other determination from which appealis taken." At the October term, 1937, we amended this rule by striking out the italicized sentence above.
The language of section 76 above quoted plainly requires that the notice of appeal shall be filed "within the period of one year," and rule 34 requires that notice of appeal shall be served within five days after it is filed in the court appealed from, except that where the appeal is taken as of right, such service must also be made within the ninety-day period after the entry of judgment. Where the notice of appeal is filed by leave of the reviewing court, the five days begins to run when the notice of appeal, with the order of allowance endorsed thereon, is received by the court appealed from, but in any event, as the rule then provided, service had to be made within the year. Rule 34 supplements section 76 of the Civil Practice act by providing for the manner and time of serving notice of appeal. It does not purport to nullify the plain directions of the statute that the notice of appeal must be filed within one year from the date of the order, decree, judgment or other determination complained of. Instead, as the rule stood prior to October, 1937, it imposed the additional requirement that service of the notice of appeal also had to be made within the times limited for perfecting an appeal either of right or by leave of the reviewing court. Section 76 of the Civil Practice act does not permit a reviewing court to allow a notice of appeal to be filed beyond the one-year *163 period. McCaskill, Illinois Civil Practice Act, Annotated, p. 280.
Appellee relies on Schroeder v. Merchants and Mechanics' Ins.Co.
Appellee urges that our amendment to rule 34 at the October term, 1937, aids his contention. As noted before, we struck the sentence which required the notice of appeal to be served in any event within one year from the entry of the order, decree, judgment or other determination complained of. This amendment does not purport to permit a notice of appeal to be filed after the expiration of the year, and we need not now pass upon the question of whether a notice of appeal filed within the year may be served after the year has expired, as that question is not presented.
The Appellate Court should have allowed appellant's motion to dismiss the appeal for want of jurisdiction. For this error the judgment is reversed and the cause is remanded to that court, with directions to dismiss the appeal.
Reversed and remanded, with directions.
Mr. JUSTICE WILSON, dissenting.