Theobault-Olson Co. v. Petta

Appellate Court of Illinois

Theobault-Olson Co. v. Petta

286 N.E.2d 163, 6 Ill. App. 3d 537, 1972 Ill. App. LEXIS 2538

CourtAppellate Court of Illinois

DecidedJune 30, 1972

DocketNo. 56148

StatusPublished

Cited by4 cases

This text of 286 N.E.2d 163 (Theobault-Olson Co. v. Petta) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Theobault-Olson Co. v. Petta, 286 N.E.2d 163, 6 Ill. App. 3d 537, 1972 Ill. App. LEXIS 2538 (Ill. Ct. App. 1972).

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Opinions

Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from a non-jury decision of the circuit court directing a verdict at the close of the plaintiffs case for the defendant Joseph Woods, Sheriff of Cook County. Also joined as parties defendant at the trial were Lawrence Petta, John Rita and Stephen Driscoll, as officers of the Calumet Township Regular Democratic Party. The court found in their favor and against the plaintiff at the close of all the evidence. They are not parties to this appeal.

Plaintiff sought damages for the alleged conversion of a “chuck-a-luck” wheel it had rented to the Calumet Township Democrats for use at a carnival. The wheel was seized at the carnival by the defendant Woods and subsequently destroyed because it was allegedly an illegal gambling device.

Various issues are raised on appeal. However, we need not consider them because our own review of the record reveals that we lack jurisdiction in this matter since plaintiff failed to file a timely notice of appeal. Filing a timely notice of appeal is the sole action a party must take in order to give this court jurisdiction. In re Estate of Schwarz, 63 Ill.App.2d 456, 462, 212 N.E.2d 329.

Supreme Court Rule 303(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 303(a)), provides in relevant part:

“[TJhe 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 nonjury case, within 30 days after the entry of the order disposing of the motion.”

In the instant case judgment was entered against plaintiff on March 11, 1971. Notice of appeal was filed on April 28, 1971, beyond the 30-day requirement for timely filing. While Rule 303(a) does provide that the filing of a post-trial motion will prevent the running of the 30-day period until the motion has been ruled upon, no post-trial motion was filed within the 30-day period required by section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 68.3), for motions after judgment. On April 28, 1971, (more than 30 days after the entry of the judgment) an oral motion was made to vacate the judgment of March 11, 1971, and for a new trial as to. Sheriff Woods. This untimely motion did not bar the running of the 30 day requirement for filing a notice of appeal.

The record does show a completely unexplained continuance of the case from April 7, 1971, to April 12 and that on April 28 a motion by plaintiff to vacate the judgment and for a new trial as to the defendants other than Woods was withdrawn. These entries are of no benefit to plaintiff. See Tomaska v. Barone, 104 Ill.App.2d 356, 244 N.E.2d 327.

In conclusion, plaintiff failed to file a timely notice of appeal. This court, therefore, lacks jurisdiction to proceed. We are compelled to dismiss the appeal.

Appeal dismissed.

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

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Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from a non-jury decision of the circuit court directing a verdict at the close of the plaintiffs case for the defendant Joseph Woods, Sheriff of Cook County. Also joined as parties defendant at the trial were Lawrence Petta, John Rita and Stephen Driscoll, as officers of the Calumet Township Regular Democratic Party. The court found in their favor and against the plaintiff at the close of all the evidence. They are not parties to this appeal.

Plaintiff sought damages for the alleged conversion of a “chuck-a-luck” wheel it had rented to the Calumet Township Democrats for use at a carnival. The wheel was seized at the carnival by the defendant Woods and subsequently destroyed because it was allegedly an illegal gambling device.

Various issues are raised on appeal. However, we need not consider them because our own review of the record reveals that we lack jurisdiction in this matter since plaintiff failed to file a timely notice of appeal. Filing a timely notice of appeal is the sole action a party must take in order to give this court jurisdiction. In re Estate of Schwarz, 63 Ill.App.2d 456, 462, 212 N.E.2d 329.

Supreme Court Rule 303(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 303(a)), provides in relevant part:

“[TJhe 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 nonjury case, within 30 days after the entry of the order disposing of the motion.”

In the instant case judgment was entered against plaintiff on March 11, 1971. Notice of appeal was filed on April 28, 1971, beyond the 30-day requirement for timely filing. While Rule 303(a) does provide that the filing of a post-trial motion will prevent the running of the 30-day period until the motion has been ruled upon, no post-trial motion was filed within the 30-day period required by section 68.3 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 68.3), for motions after judgment. On April 28, 1971, (more than 30 days after the entry of the judgment) an oral motion was made to vacate the judgment of March 11, 1971, and for a new trial as to. Sheriff Woods. This untimely motion did not bar the running of the 30 day requirement for filing a notice of appeal.

The record does show a completely unexplained continuance of the case from April 7, 1971, to April 12 and that on April 28 a motion by plaintiff to vacate the judgment and for a new trial as to the defendants other than Woods was withdrawn. These entries are of no benefit to plaintiff. See Tomaska v. Barone, 104 Ill.App.2d 356, 244 N.E.2d 327.

In conclusion, plaintiff failed to file a timely notice of appeal. This court, therefore, lacks jurisdiction to proceed. We are compelled to dismiss the appeal.

Appeal dismissed.

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

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Bluebook (online)

286 N.E.2d 163, 6 Ill. App. 3d 537, 1972 Ill. App. LEXIS 2538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/theobault-olson-co-v-petta-illappct-1972.

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