{
  "id": 5270393,
  "name": "Benjamin M. Thomas v. John O'Brien Lumber Co. et al.",
  "name_abbreviation": "Thomas v. John O'Brien Lumber Co.",
  "decision_date": "1899-12-19",
  "docket_number": "",
  "first_page": "181",
  "last_page": "183",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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        "/ill-app/13/0463-01"
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    {
      "cite": "34 Ill. App. 323",
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    {
      "cite": "79 Ill. App. 191",
      "category": "reporters:state",
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  "last_updated": "2023-07-14T16:28:30.258939+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Benjamin M. Thomas v. John O'Brien Lumber Co. et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Shepard\ndelivered the opinion of the court.\nA \u201c short record \u201d (consisting of the decree, appeal order and appeal bond) was filed in this cause on the second day of the October term, 1898, of this court. On the eleventh day of the said term, diminution of the record was suggested and leave given to file, instanter, a supplemental record, which was done.\nThe leave so given was granted out of a desire by the court to afford to appellant additional time within which to perfect his appeal, but under a misapprehension of the law. The appellee Lumber Company moved upon a short record brought up by it, in this cause, to have the appeal dismissed with statutory damages, and such motion was taken to be considered when this appeal should be reached. The application for an extension of time within which to file the supplemental record should have been made within the first two days of the term. Afterward was too late, and the additional time allowed by the order was something this court had no power to grant.\nThe supplemental record having been filed under an improvident and erroneous order, must therefore be stricken from the files, and the \u201c short record \u201d being insufficient to found any of the assigned errors upon, the appeal must, in accordance with the statute, be dismissed. Sec. 72, Practice Act, Chap. 110, Rev. Stat.; O\u2019Kane v. West End Dry Goods Store, 79 Ill. App. 191.\nAnd to the numerous authorities there cited, we add Ross v. Plano Steel Works, 34 Ill. App. 323; Mason v. Gibson, 13 Ill. App. 463; Palmer v. Gardiner, 77 Ill. 143; Chicago City Ry. Co. v. Smith, 82 Ill. App. 305, and the still later and conclusive case (if there were doubt before) of Gadwood v. Kerr, 181 Ill. 162.\nBut the decree is not one for the payment of money Avithin the meaning of Sec. 73 (Rev. Stat. 1898, Sec. 74), Practice Act.\nThe proceeding was to enforce m\u00e9chanio\u2019s lien claims, and the decree found the amounts of the several liens, and ordered the premises sold unless the liens were paid in three days.\nSuch a decree is an alternative one, and not one for the recovery of money. Statutory damages are, therefore, not allowable. Arentz v. Reilly, 67 Ill. App. 307; Hamburger Company v. Glover, 157 Ill. 521.\nThe order will be that the supplemental transcript of the record filed herein October 14, 1898, be stricken from the files, and the appeal dismissed for failure by appellant to file record as required by law, and statutory damages denied. Appeal dismissed.\nOpinion\nper Curiam.\nThe appellee Lumber Company brought to this court a short record in the above entitled cause and moved that appellant\u2019s appeal be dismissed with statutory damages. The motion was reserved to be considered upon the hearing of the same cause upon a record previously brought up by appellant. That record having now been considered, and the appeal dismissed, without statutory damages, the motion to dismiss with damages is denied, and the appeal docketed under this number is dismissed at the costs of the appellee Lumber Company. Appeal dismissed at costs of appellee.",
        "type": "majority",
        "author": "Mr. Justice Shepard per Curiam."
      }
    ],
    "attorneys": [
      "Benjamin M. Thomas, attorney pro se.",
      "Levi Sprague, attorney for appellee John O\u2019Brien Lumber Co.",
      "Dunn & Byron and John T. Donahue, attorneys for appellees Von Platen & Dick, A. T. Stewart & Co., Holmes & Awburn, and Gray, Tuthill & Co.",
      "Charles H. Hamill, attorney for appellees Aaron B. Mead and Samuel Knowlton."
    ],
    "corrections": "",
    "head_matter": "Benjamin M. Thomas v. John O'Brien Lumber Co. et al.\n1. Appellate Court Practice\u2014Filing Supplemental Records.\u2014An application for an extension of time within which to file a supplemental record should be made within the first two days of the term.\n2. Same\u2014Damages on Dismissal of an Appeal.\u2014Where a decree is not for the payment of money within the meaning of Sec. 73 of the Practice Act, statutory damages are not allowable.\nMotion to Dismiss Appeal.\u2014Appeal from the Superior Court of Cook County; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1898.\nDismissed.\nOpinion filed December 19, 1899.\nBenjamin M. Thomas, attorney pro se.\nLevi Sprague, attorney for appellee John O\u2019Brien Lumber Co.\nDunn & Byron and John T. Donahue, attorneys for appellees Von Platen & Dick, A. T. Stewart & Co., Holmes & Awburn, and Gray, Tuthill & Co.\nCharles H. Hamill, attorney for appellees Aaron B. Mead and Samuel Knowlton."
  },
  "file_name": "0181-01",
  "first_page_order": 189,
  "last_page_order": 191
}
