Mahler v. Sanche, 117 Ill. App. 572 (1905)

Jan. 6, 1905 · Illinois Appellate Court · Gen. No. 11,397

117 Ill. App. 572

Myrtle G. Mahler, et al., v. Hercules Sanche.

Gen. No. 11,397.

1. Additional record—when Appellate Court without jurisdiction to permit filing of. Where the appellant, on or before the second day of the term to which the appeal is taken, does not file a transcript showing the existence of the judgment or decree appealed from and the formal requisites to transfer the cause from the trial to the Appellate Court, the latter court is without jurisdiction to permit the filing of an additional transcript.

Bill for accounting,.etc. Appeal from the Circuit Court of Cook County; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1903.

Appeal dismissed.

Opinion filed January 6, 1905.

Frank P. Blair and L. A. Gilmore, for appellants.

Edward J. Hill, for appellee.

Mr. Justice Smith

delivered the opinion of the court.

On October 6, 1903, appellants filed in this court copies of the record of an order entered on the 6th day of March, 1903, directing that an injunction order theretofore entered stand in abeyance pending the disposition of the appeal in said cause, and granting an appeal upon the defendants filing a good and sufficient bond in the sum of $3,000 within thirty days from that date. The record so filed also shows a copy of an appeal bond filed and approved on March 6, 1903. On October 7, 1903, appellants suggested a diminution of record and was given twentj7 days to supply the record. On October 26,1903, appellants filed an additional record which did not contain the final decree appealed from. Appellee filed his motion to dismiss this appeal for want of sufficient record January 13, 1904, and on January 19, 1904, this motion was presented to the court and taken, and its decision was reserved to the final hearing of the cause. On that day appellants filed a supplemental record showing for the first time the final decree.

Section 72 of the Practice Act required appellant to file bis transcript in the office of the clerk of this court on or before the second day of the term unless further time was granted by this court upon good cause shown. a In order to obtain further time, a transcript showing the existence of a judgment in the trial court and the formal requisites to transfer the cause from the trial court to the Appellate Court should be filed on or before the second day of the term. There should be enough to show a judgment or decree of the court, the allowance of an appeal and perfecting the appeal by the bond, so as to show the pendency of the cause in the Appellate Court on appeal. With such a transcript authorizing the Appellate Court to act, the appellant may make an application for an extension of time to complete the record.” Thomas v. Lumber Co., 185 Ill. 376.

No such transcript was filed in this cause on or before the second day of this term. The court therefore was without jurisdiction to extend the time for the completion of the record. That order, and the order taking the case for decision, are vacated and the appeal is dismissed.

Appeal dismissed.