Lack Of Notary Dooms Husband’s Notice Of Appeal

Anita and Sushil Sheth got divorced. Sushil was custodian on several of the couple’s two children’s financial accounts. Anita asked the trial court to remove Sushil as custodian. The trial court did so, and also denied Sushil’s reconsideration request.

Sushil appealed. He apparently mailed the notice of appeal within the 30-day jurisdictional requirement. But his “Certificate of Service” was not notarized. The court received Sushil’s notice of appeal after the 30 days passed.

The First District Illinois Appellate Court dismissed Sushil’s appeal. The court ruled that it did not have jurisdiction to consider Sushil’s arguments because Sushil did not submit proper proof — that is, a notarized Proof of Service — that the notice of appeal had been mailed within the 30-day deadline  So even though Sushil’s proof of service included all of the required information, his appeal was dismissed for lack of a notary public’s stamp.

Here’s how the court explained it:

[T]here was no certificate by an attorney or affidavit by a nonattorney as required by [Illinois Supreme Court] Rule 12(b)(3). While Sushil submitted a “Certificate of Service,” that document was not notarized, meaning that it cannot be considered an affidavit. Our supreme court has stated that “Illinois courts have defined the term [‘affidavit’] in consistent fashion for over 100 years,” and that “an affidavit must be sworn to, and statements in a writing not sworn to before an authorized person cannot be considered affidavits.” . . .  Here, since Sushil’s “Certificate of Service” was not sworn to before an authorized person, it cannot be considered an affidavit and, therefore, Sushil has not complied with Rule 12(b)(3)’s requirement that proof of mailing be in the form of a certificate by an attorney or an affidavit of a nonattorney.

Read the whole case, IRMO Sheth, 2014 IL App (1st) 132611, by clicking here.