Newport v. McPherson

Mr. Justice Barnes delivered the opinion of the court. Motion is made by appellees to dismiss the appeal herein, which was prayed and allowed January 18, 1915, from a judgment of the Municipal Court of Chicago rendered the same day. No time was specified within which to file the appeal bond. In such a case it is assumed that the time given was twenty days, the shortest time allowed by the statute. (Bairstow v. New York Life Ins. Co., 148 Ill. App. 186.) On February 16th, twenty-nine days after allowing the appeal, the court on appellants’ motion entered an order nunc pro tunc allowing forty days from January 18th, in which to file the bond. The order does not appear to have been made to supply any omission from the record. If the court did not on January 18th actually make an order of that character that the clerk omitted to enter, there was no basis for an order nunc pro tunc (Lindauer v. Pease, 192 Ill. 457), and facts supporting authority to enter such an order must affirmatively appear of record. (People v. Rosenwald, 266 Ill. 548.) As, therefore, the time for filing the bond expired twenty days after January 18th, viz., on February 7th, the court had no jurisdiction thereafter, even within the thirty days it retained control over the judgment (Grubb v. Milan, 249 Ill. 456), to extend the time for filing the bond. This was settled beyond all question in Hill v. City of Chicago, 218 Ill. 178. But, even if the court had not lost jurisdiction to enter the order of February 16th, and even though the bond was filed February 27th, the last day of the period fixed thereby, still as the bond was not approved (as shown by the indorsement of the judge thereon) until February 28th, forty-one days after January 18th, there was a failure to perfect the appeal, which required the approval as well as the filing of the bond within the time allowed therefor. (Phoenix Ins. Co. v. Hedrick, 69 Ill. App. 184.) The statute granting the right of appeal must be strictly complied with (Hill v. City of Chicago, supra), and it manifestly contemplates what, so far as we have knowledge, has always been the practice, the approval of the bond before it is filed; and the procedure with regard thereto is not as appellants contend analogous to that which justifies the judge’s retention of a bill of exceptions after the period for filing the same before affixing his signature. The appeal will be dismissed. Appeal dismissed.