Behnami v. Martin Grinding & Machine Works, Inc.

280 N.E.2d 481, 4 Ill. App. 3d 171, 1972 Ill. App. LEXIS 1597

Opinion

Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from a judgment in favor of defendant entered on November 9, 1970, and from the denial on August 9, 1971, of plaintiff’s petition filed July 13, 1971, seeking an extension of time in which to file a motion for a new trial. The notice of appeal was filed on September 3, 1971.

Defendant moved to dismiss the appeal and then requested and received leave to file an amendment to its motion to dismiss.

Defendant contends that the appeal should be dismissed because (1) plaintiff did not file a motion for a new trial within the 30 day period required by paragraph 68.3(1) of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 68.3(1));

Footnotes

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* (2) plaintiff did not request an extension of time within said 30 days; and (3) plaintiff did not file the notice of appeal from the judgment of November 9, 1970, within the 30 day period required by Supreme Court Rule 303(a). Ill. Rev. Stat. 1969, ch. 110A, par. 303(a).

Obviously the notice of appeal from the judgment of November 9, 1970, filed over nine months after the entry of the judgment, is ineffective and does not vest jurisdiction in this court.

The order of August 9, 1971, denying plaintiff’s petition for an extension of time to file a motion for a new trial was clearly correct as the motion was not timely, but the order, in any event, is not an appeal-able order. Tomaska v. Barone, 104 Ill.App.2d 356, 244 N.E.2d 327.

Therefore the appeal is dismissed.

Appeal dismissed.

LORENZ, P. J., and ENGLISH, J., concur.

(Civil Practice Act, par. 68.3). “Motions after decree or judgment in non-jury cases. (1) In all cases tried without a jury, any party may, within 30 days after the entry of the decree or 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 decree or judgment or to vacate the decree or judgment or for other relief. Neither the filing of nor the failure to file a motion under this section limits the scope of review.”