¶1specially concurring:
¶2Cross-defendant contends that when an appeal is perfected the jurisdiction or control of the court below ceased, and there being no case pending in the court below during the appeal, the lower court has no authority to enter any order in the case until it is properly reinstated after remandment by the reviewing court; that in the absence of a proper reinstatement in compliance with the statute, the trial court has no jurisdiction of the subject matter or of the person, and all proceedings in the lower court are coram non judice or void.
¶3Cross-defendant relies upon Austin v. Dufour, 110 Ill. 85, 87, 88, and Watkins v. Dunbar, 318 Ill. 174, 177. In the Austin case the court held that after reversal and remandment to the trial court “by the filing of the transcript in the trial court that court again obtains jurisdiction over the subject matter of the suit. But this is not sufficient, of itself, to authorize the court to proceed. Before any steps can be taken in the cause, the court must also obtain jurisdiction over the person of the adverse party, and this, in the absence of a voluntary appearance, can only be done by giving the notice required by the section of the statute above mentioned. It is hardly necessary to add, unless the court has jurisdiction both of the person and subject matter of the suit, its proceedings will be coram non judice, — or, in other words, void.” It was there also said:
“. . . and it is clear a mere inspection of the record in this case would have fully apprised appellant of the fact that the proceedings, after the filing of the remanding order, were but a continuation of the original suit.”
¶4The "Watkins case is not applicable.
¶5We are confronted with these questions:
¶6To what extent does the lower court lose jurisdiction of the subject matter and of the person by a perfected appeal under the present Civil Practice Act?
¶7Are proceedings in the lower court had after the appeal is perfected, and a bond filed, which acts as a supersedeas, void or voidable?
¶8As early as Oakes v. Williams, 107 Ill. 154, 157, the court said:
“What was the effect of the appeal by McBean from the judgment of the Circuit to the Supreme Court, recovered by McGlanery & Co. ? Did it render the execution issued upon it, and all subsequent proceedings under it pending the appeal, void or voidable? That it operated as a stay of further proceedings during the pendency of the appeal has never been questioned. The appeal operates as a supersedeas granted on a writ of error, or the order of a circuit judge staying a judgment in the circuit court. That all proceedings under a judgment stayed by appeal, by supersedeas, or by such an order of a judge, are irregular, and may be set aside, on motion to quash, or other appropriate proceedings, there can be no question. But it is not every irregularity in issuing and executing process that will render the process void.” (Italics ours.)
¶9This holding was followed with approval in Shirk v. Metropolis & New Columbia Gravel Road Co., 110 Ill. 661. It was there held that the only effect of the appeal is to stay further proceedings until the appeal is disposed of; “that the issue of an execution on a judgment pending an appeal is irregular, but that it is not void, and that a sale of land under such an execution is subject to be set aside, on motion made in proper time, by the defendant whose land has been sold.”
¶10Such expressions as, “that after the notice of appeal was filed in the trial court, that court lost jurisdiction of the ease, and the jurisdiction of this court attached and continued until that appeal was disposed of,” are found in Simon v. Balasic, 316 Ill. App. 442 (Abst.). That case was cited with approval in Cowdery v. Northern Trust Co., 321 Ill. App. 243, with the further statement, “This ousts the jurisdiction of the lower court, even though no bond is filed on the appeal.” (Italics ours.)
¶11In Nye v. Nye, 342 Ill. App. 11, 16, the statement is:
“The general rule is that when the notice of appeal is filed the jurisdiction of the trial court ceases and the jurisdiction of the Appellate Court attached.” (Citing Cowdery v. Northern Trust Co., supra.) (Italics ours.)
¶12To the same effect is Sunbeam Corp. v. Central Housekeeping Mart, Inc., 2 Ill.App.2d 543, 559.
¶13In First Nat. Bank of Jonesboro v. Road Dist. No. 8, 389 Ill. 156, where there first was an appeal to the Appellate Court from a decree which directed distribution of certain funds held by the Drainage District, no appeal bond was filed, so that the appeal did not act as a supersedeas. Pending the appeal the fund was distributed in accordance with the decree. A motion was made in the Appellate Court to dismiss the appeal because the questions there pending became moot, since the decree was satisfied by the distribution of the fund. The Appellate Court dismissed the appeal on that ground. The appeal to the Supreme Court followed. It was there held that the questions on appeal in the Appellate Court had not become moot merely because the proceedings in the lower court had not .been stayed by the filing of a bond, which would act as a supersedeas; that if benefits are received from the erroneous decree or judgment, the party must, after reversal, make restitution, and if he has sold property erroneously adjudged to belong to him, he must account to the true owner for the value. The reversal of such a decree leaves the cause as it stood prior to the entry of the decree. To the same effect is Willett Co. v. Carpentier, 4 Ill.2d 407, 412.
¶14The court there did not hold that the notice of appeal, when filed in the trial court, “ousts that court of jurisdiction, even if no appeal bond is filed,” or that the jurisdiction of the lower court “ceases,” or that the trial court “lost jurisdiction of the case,” as stated in the Appellate Court cases above cited upon this question. We think these expressions in the Appellate Court cases are not an accurate statement of the rule and are likely to lead to confusion. After a careful study of the Appellate and Supreme Court cases upon the question of jurisdiction of the trial court, where an appeal is perfected, the following conclusions are justified:
That the filing of a notice of appeal in the trial court is all that is necessary to perfect the appeal, and the jurisdiction of the Appellate Court attaches ;
That the trial court never loses jurisdiction of the subject matter or of the person pending an appeal, and the appeal is a continuation of the original suit;
That the appeal restrains the trial court from entering any order which would change or modify the judgment or decree, or the scope thereof, and from entering any order which would have the effect of interfering with the review of the judgment or decree;
That the giving of a bond merely stays the efficacy of the decree or judgment (First Nat. Bank of Jonesboro v. Road Dist. No. 8, supra); and
That proceedings in violation of a supersedeas may be vacated or set aside, attempted violations may be restrained, and any action in defiance of the force and effect of the supersedeas is punishable as a contempt of court. (Gumberts v. East Oak Street Hotel Co., 404 Ill. 386, 389, 390.)
¶15In the latter case cited, there is no intimation by the court that proceedings in the lower court in violation of a supersedeas are void.
¶16If the doctrine of the Appellate Court cases cited is sound, then to be consistent it would necessarily follow that proceedings in the lower court, after the filing of the notice of appeal, or even where the bond is filed that acts as a supersedeas, would have to be deemed void, not voidable. This is not supported by the reasoning in the Supreme Court cases.
¶17In Strauss v. Danielson, 396 Ill. 315, 321, it appears that after the appeal to the Appellate Court had been perfected, the death of the trustee, Herman Strauss, was suggested, and on application to the Superior Court an order was entered, appointing the Trust Company of Chicago successor trustee. Later the Appellate Court permitted the successor trustee to be substituted in that court. It was contended in the Supreme Court that the Superior Court lacked jurisdiction to make such an appointment, and that the Appellate Court erred in allowing the substitution. The Supreme Court overruled the contention and approved of the order entered in the Superior Court and in the Appellate Court.
¶18Under the doctrine of the Appellate Court cases, such an order entered by the Superior Court, in the case last cited, would have to be held void, because the court had been ousted of jurisdiction by the perfected appeal.
¶19A case in point, which coincides with our view, is Burr v. State Bank of St. Charles, 344 Ill. App. 332. That was an action for damages for wilful violation of a supersedeas resulting from a perfected appeal to the Appellate Court. It appears that there had been a bill to foreclose a mortgage and a decree of foreclosure entered. Pending the appeal to the Appellate Court and the giving of an appeal bond, which acted as a supersedeas, the plaintiff procured a sale under the decree, by the master, and the court entered a decree approving the sale of the master. It was there said:
“In cases where there has been a judgment and a sale under an execution pursuant to the judgment and where the enforcement of the judgment has been stayed by an appeal and supersedeas, any action in violation of the supersedeas is regarded as an irregularity and is not void.” (Citing Oakes v. Williams, and Shirk v. Metropolis & New Columbia Gravel Road Co., supra.)
¶20In the light of the foregoing, upon the filing of the mandate of the Appellate Court in the instant case, the mere defective notice to reinstate the cause and to enter judgment upon the mandate does not make the proceedings in the trial court void, but only voidable, which could have been corrected by proper motion in the trial court. State Bank of St. Charles v. Burr, 372 Ill.114, 119.
¶21I regard the foregoing as additional reasons for affirming the judgment.