Appellate Law

Illinois Supreme Court Rule 365 Doesn?t Save Notice Of Appeal Improperly Filed In Appellate Court

By Steven R. Merican

Here?s another reason to read and re-read the rules. This one involved pro se appellants who tried to appeal a summary judgment entered against them on their counterclaim against a bank. They filed their Notice of Appeal in the appellate court, not in the trial court as is required by Illinois Supreme Court Rule 303. Nor did Rule 365 save the appeal. So the appeal was dismissed.

The Second District Illinois Appellate Court explained:

As pertinent here, Rule 365 states, "If a case is appealed to either the Supreme Court or the Appellate Court, or the wrong district of the Appellate Court, which should have been appealed to a different court, the case shall be transferred to the proper court." ? That language simply has nothing to do with this case. Had defendants timely filed their notice of appeal in the trial court but wrongly stated that they were seeking review in the supreme court or in a district of the appellate court other than this one, then Rule 365 would have required the transfer of the case to this court. However, defendants did not appeal to the wrong court. They appealed to the proper court but did not file the notice of appeal in the trial court on time. Rule 365 did not excuse defendants from their obligation under Rule 303(a)(1) to file a timely notice of appeal in the trial court.

The whole case, First Bank v. Phillips, No. 2-07-0130 (2/8/08), is available by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on April 23, 2008 (boomark / email).