Bergstrom, R. W.

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 17 | Issue 2 Article 5March 1939Civil Practice Act Cases;Notes and CommentsR. W. BergstromFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion inChicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contactdginsberg@kentlaw.iit.edu.Recommended CitationR. W. Bergstrom, Civil Practice Act Cases;Notes and Comments, 17 Chi.-Kent L. Rev. 175 (1939).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol17/iss2/5NOTES AND COMMENTSCIVIL PRACTICE ACT CASESAPPEAL AND ERROR--CO-PARTIES-NECESSITY UNDER CIVIL PRAcTIcE ACT OFSERVING NoTIcE OF APPEAL ON DEFAULTED PARTms.-The unsettled questionas to whether Rule 341 of the Illinois Supreme Court required service ofnotice of appeal on defaulted parties has been settled by the case ofKaminskas v. Cepauskis.2 From an adverse decree in a foreclosure suit,the plaintiffs appealed, neglecting to serve notice of appeal on thetrustee under the trust deed and the mortgagor's heirs, who had defaultedin the trial court. The Appellate Court denied the motion to dismiss theappeal despite the contention that Rule 34 had been violated, and theruling was affirmed by the Supreme Court, which said: "It is obviousthe trustee was only a nominal party and had no interest in the appeal.It is likewise clear that the heirs of the mortgagor could not be affectedby a reversal of the decree by the Appellate Court .... Having no interestwhich could be affected by the appeal, they were not necessary par-ties ......There has previously been a conflict as to this question, the AppellateCourt, Fourth District, holding in Lewis v. Renfros that notice of appealmust be given even to defaulted parties, while the Appellate Court, FirstDistrict, had held that parties need only be served where they have aninterest in the outcome of the appeal.4 The instant case in the SupremeCourt resolves this conflict. Rule 34 has also been amended to requireservice of notice only upon parties "who would be adversely affectedby any reversal or modification of the order, judgment or decree ......Although this amendment became effective August 1, 1938, and henceinapplicable to the instant case, the decision therein will yet be of valuein relation to cases in which appeal had been taken before such amend-ment, and it may serve to throw light oti the meaning of the words "ad-versely affected" as used in the amended rule. R. W. BERGSTROMAPPEAL AND ERROR-PROCESS AND NOricE-VALTDITY OF SERVICE OF Copy OFNOTICE OF APPEAL BEFORE SUCH NOTICE Is FILED.-A possible means of thwart-ing appeal by a technicality has been eliminated by the Illinois SupremeCourt in Schafer v. Robillard.1 The court, in construing that section ofSupreme Court Rule 34 which says "A copy of the notice by which theappeal is perfected shall be served . . . within 5 days after said noticeof appeal is filed ... ,"2 held that this is a mere limitation upon thetime for such service and that hence a service of the copy before thefiling of the notice is valid. R. W. BERGSTROM1 "A copy of the notice by which the appeal is perfected shall be served uponeach appellee and upon any co-party who does not appear as appellant. .... "Ill. Rev. Stat. 1937, Ch. 110, § 259.34.2 369 Ill. 566, 17 N.E. (2d) 558 (1938).s 291 Il. App. 396, 9 N.E. (2d) 652 (1937). See note, 16 CHICAGO-KENT REvmw 52.4 People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill. App. 362,13 N.E. (2d) 990 (1938). See note, 16 CHICAGO-KENT REVx[w 273.1 370 Ill. 92 (1938).2 Ill. Rev. Stat. 1937, Ch. 110, § 259.34.

Civil Practice Act Cases;Notes and Comments

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Civil Practice Act Cases;Notes and Comments

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