Illinois Western Railroad v. Gay

Per Curiam. The final decree was rendered in this cause on the 29th of September, 1879, and an appeal allowed upon appellant filing bond in twenty days from date of decree. The bond was filed, but no certificate of evidence prepared and signed by the judge trying the cause.- On the second day of the present term of this court, a certified copy of the decree and bond was filed in this court, but no motion was made within the first two days of the term, for an extension of the time to file transcript of the record of the court below. On the third day of the term motion was made by appellant for a continuance of the cause, based upon the fact that the certificate of evidence had not yet been signed, and hence a full record conld not be filed in this court. The motion to continue being overruled, the appellant suggested a diminution of the record, and moved for a certiorari, referring the court to the affidavit filed in support of the motion to continue. As already stated, this affidavit shows that there was no certificate of evidence on file in the court below, which is the part of the record desired by the appellant. When the last day of the term of court, at which a judgment or decree appealed from is rendered, is more than twenty days prior to the first day of the succeeding term of this court, the statute is peremptory that the transcript of the record shall be filed with the clerk of this court, on or before the second day of the term, otherwise the appeal shall be dismissed, “ unless further time to file the same shall have been granted by the court upon good cause shown.” Sess. Laws, 1879, page 221. And the application for further time in which to file tile record must be made to the court before the time allowed by the statute has expired. Adams v. Robertson, 40 Ill. 40 ; Simpson v. Simpson et al. 3 Bradwell, 432. Had the appellant in this case made his application in a proper way, for further time to file the record during the first two days of the term, the court under the statute would have been authorized to grant an extension of time for such purpose, but not having done so, the court is now powerless in the premises, notwithstanding the motion' assumes the form of one for a certiorari, the true object being, as shown by the proofs, to obtain further time in which to obtain and file the record. The motion will be overruled and the appeal dismissed. Appeal dismissed.