Court: Appellate Court of Illinois; December 30, 1977; Illinois; State Appellate Court
Plaintiff filed a lawsuit against defendants under the Dramshop Act for injuries incurred at Old Homestead Tavern. After the trial, all defendants except George Turney were dismissed, and the jury ruled in favor of Turney. The plaintiff's post-trial motion was denied, prompting an appeal filed on October 14, 1975. According to Supreme Court Rule 323(b), the report of proceedings was required to be filed within 49 days of the appeal notice, specifically by December 3, 1975. The plaintiff did not request an extension in the trial court and failed to file a motion for an extension in this court either before the original deadline or within 35 days after it, thus missing the January 7, 1976 deadline. A motion for an extension was eventually filed on January 14, 1976, but this was deemed untimely. The court concluded that the plaintiff's late motion rendered any subsequent action on it ineffective, thereby not granting an extension for filing the report of proceedings, which was ultimately filed on February 25, 1976. The ruling emphasized that compliance with Supreme Court Rule 323 is mandatory for both litigants and the court.
Supreme Court Rule 326 mandates that the record on appeal must be filed within 63 days of the notice of appeal, or within 14 days if an extension for filing the report of proceedings has been granted. The plaintiff's notice of appeal was filed on October 14, 1975, establishing a deadline for filing the record by December 17, 1975, unless an extension was obtained, which did not occur. The actual filing of the record took place on February 27, 1976, well past the deadline. However, Rule 326 allows for a 35-day extension if a motion is filed with a reasonable excuse for the delay. The plaintiff submitted a motion on January 14, 1976, seeking an additional 45 days to file the complete record, citing financial inability to cover the preparation costs as the reason for the delay. Alongside this, a short record was filed, containing essential documents related to the appeal.
In response, the defendant raised objections, noting that two praecipes for the record were filed: the first on the same day as the notice of appeal, which did not request the report of proceedings, and a second, amended praecipe filed on January 16, 1976, without court leave, which sought to include the transcript of proceedings. The defendant argued that since the second praecipe was not timely filed, it was invalid, and contended that the January 14 motion was improperly categorized as a motion for an extension under Rule 326 when it should have been considered under Rule 323 regarding the report of proceedings. The defendant requested denial of the motion due to these alleged procedural deficiencies.
The original praecipe filed by the plaintiff did not request the inclusion of the report of proceedings in the appeal record, as clarified by Supreme Court Rule 322, which allows a party to designate parts of the trial court record for inclusion. Supreme Court Rule 321 outlines that the appeal record consists of the judgment, notice of appeal, and parts designated in the praecipe. The trial court record includes both the report of proceedings (testimony and oral rulings) and the common law record (certified documents from the clerk). The plaintiff's initial praecipe appears to have requested only the common law record, with the second praecipe providing no new designation for the report of proceedings.
The second praecipe was filed improperly—untimely and without court approval. Had the plaintiff sought permission, it is likely his actions would have been deemed acceptable. The January 14 motion was found to be incorrectly categorized as one under Supreme Court Rule 326, as its justification for delay was the plaintiff's inability to afford a stenographic transcript. A short record was submitted the same day, but the second praecipe only referred to the "transcript of proceedings."
Following the granting of the January 30 motion, the plaintiff sought a hearing for certification of the report of proceedings, but the trial judge determined that the report had not been timely presented according to Supreme Court Rule 323. Despite this, the judge eventually certified the report under the court's order, revealing that the January 14 motion was essentially a request for an extension under Rule 323, which was not timely filed, rendering the court's later actions ineffective. Supreme Court Rules 323 and 326 both require a reasonable excuse for late filing, and doubts were raised about the reason provided, which only cited the inability to pay for the transcript.
Plaintiff's inability to pay for a stenographic transcript does not justify his failure to utilize alternatives under Supreme Court Rules 323(c) and (d). Rule 323(d) allows parties to submit a written stipulation of facts in lieu of a transcript, while Rule 323(c) permits the appellant to create a "bystander’s report" based on available sources, including personal recollection. The court has previously indicated that compliance with these rules is not burdensome for small claims appellants, as demonstrated in Abbey Plumbing, Heating, Inc. v. Brown. Plaintiff failed to pursue either alternative method for reporting the proceedings. The court noted that in similar cases, appellants were expected to provide a bystander’s report when unable to afford a transcript, as seen in Royer v. Bedwell and Petrauskas v. Kipnis. The inability to pay for a transcript does not constitute a reasonable excuse for noncompliance with Rule 323, and this rationale could also apply to Rule 326. Consequently, the court deemed the January 14 motion for an extension of time ineffective, as it appeared aimed at circumventing compliance with Rule 323. There are no limits on the number of extensions under Rule 323(e), but such motions must be timely and demonstrate a reasonable excuse if invoking the "safety valve" provision.
The plaintiff failed to utilize available options for filing a report of proceedings despite claiming financial constraints regarding a verbatim report. The court emphasizes the importance of adhering to Supreme Court Rule 323, cautioning against undermining its authority by allowing deviations. The court distinguishes its stance from that in Ray v. Winter, asserting that it cannot overlook procedural missteps. Since the report of proceedings is not properly submitted, the appellant’s issues on appeal cannot be reviewed, leading to the affirmation of the Circuit Court of Cook County's order. Judges Sullivan and Lorenz concur with this decision.
