Day v. Zimmer, 195 Ill. App. 547 (1915)

Dec. 13, 1915 · Illinois Appellate Court · Gen. No. 21,863
195 Ill. App. 547
Edwin C. Day, Trustee, Appellant, v. Michael Zimmer et al., Appellees

Edwin C. Day, Trustee, Appellant, v. Michael Zimmer et al., Appellees.

Gen. No. 21,863.

(Not to be reported in full.)

Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.

Heard in this court at the October term, 1915.

Appeal dismissed.

Opinion filed December 13, 1915.

Statement of the Case.

Action by Edwin C. Day, trustee, etc., plaintiff, against Michael Zimmer et al., defendants, in the Circuit Court of Cook county. From a judgment for plaintiff, defendant appeals.

The decree appealed from was entered April 30, 1915. In this decree the time limit of thirty days was *548fixed within which the appeal bond must be filed, and sixty days were allowed for the filing of a certificate of evidence.

Abstract of the Decision.

1. Appeal and error, § 627 * —when right of appeal from Circuit Court lost. If the time allowed in the order in the Circuit Court granting an appeal for filing an appeal bond expires before the appeal bond is filed, without an extension within the time allowed in the order, the right of appeal is lost.

2. Appeal and error, § 861 * —when time for filing certificate of evidence improperly extended. An order of the Circuit Court extending the time for filing a certificate of evidence entered at a term subsequent to that at which the appeal was taken is without force, the court having no jurisdiction to enter such order at such time.

The appeal bond was filed and approved June 1, 1915. The certificate of evidence was signed by Judge Baldwin (Judge Windes being the trial judge), September 21,1915, nunc pro tunc as of July 20,1915, and order filed as of the last-named date.

On July 1,1915, an order was entered extending the time within which to file the certificate of evidence thirty days from the 29th of June, 1915. The decree appealed' from was entered at the April term of the court and no extension of time within which to file the bond was asked or allowed at that term, and the bond was filed and approved after the lapse of the time allowed by the court and at the succeeding May term. On July 1, 1915, more than sixty days after the entering of the decree and after the term at which the appeal was allowed, an order was entered enlarging the time in which to file the certificate of evidence thirty days from June 29, 1915.

Thomas J. Johnson, for appellant.

Bither & Goff, for appellees.

Mr. Justice Holdom

delivered the opinion of the court.

*5493. Appeal and error, § 858 * —when certificate of evidence signed by judge not sitting in case a nullity. A certificate of evidence signed by a judge who did not sit in the case or enter the decree appealed from is a nullity where no reason is shown by the record for his so doing.

4. Appeal and error, § 858 * —when failure to file certificate of evidence in time fatal. Where a certificate of evidence is not seasonably filed, a motion of appellee to strike will be allowed by the Appellate Court