First Capitol Mortg. Corp. v. Talandis Const. Corp., 47665

• Court: Supreme Court of Illinois
• Writing for the Court: RYAN
• Citation: 345 N.E.2d 493,63 Ill.2d 128
• Parties: FIRST CAPITOL MORTGAGE CORPORATION, Appellee, v. TALANDIS CONSTRUCTION CORPORATION, Appellant.
• Docket Number: No. 47665,47665
• Decision Date: 29 March 1976

Page 493

345 N.E.2d 493 63 Ill.2d 128 FIRST CAPITOL MORTGAGE CORPORATION, Appellee,
v.
TALANDIS CONSTRUCTION CORPORATION, Appellant. No. 47665. Supreme Court of Illinois. March 29, 1976.

[63 Ill.2d 129] Morgan, Lanoff, Cook & Madigan, Chicago (John A. Cook, Chicago, of counsel), for appellant.

John Bernard Cashion, Chicago, and Paul F. Davidson, Kankakee, for appellee.

RYAN, Justice:

This is a suit for declaratory judgment and damages filed by the plaintiff, First Capitol Mortgage Corporation, against the defendant, Talandis Construction Corporation, in the circuit court of Cook County. The plaintiff contends that it was employed by the defendant to negotiate and procure a loan for the construction of a multiple unit apartment complex. The complaint sought a declaration of the rights of the parties under the agreement and prayed for judgment against the defendant in the amount of $19,403. Following a bench trial, the court [63 Ill.2d 130] entered a judgment in favor of the plaintiff and against the defendant in the amount prayed. Subsequently, pursuant to motion made by the defendant, the court vacated its previous judgment in favor of the plaintiff and entered

Page 494

judgment in favor of the defendant. Plaintiff appealed to the appellate court. The defendant-appellee failed to file a brief, and the appellate court reversed Pro forma specifically stating that the order of reversal did not entail a decision on the merits. The cause was remanded to the circuit court of Cook County with directions to reinstate the prior judgment in favor of the plaintiff. 28 Ill.App.3d 684, 329 N.E.2d 412.

The defendant contends that the appellate court erred in entering a Pro forma reversal of a judgment of the circuit court. We agree.

There is no authority contained in the rules of this court for the imposition of such a sanction for the failure of the appellee to file a brief in a court of review. Rule 352 (58 Ill.2d R. 352) contains the only provision in our rules for sanctions relating to the failure to file briefs. Rule 352 concerns oral arguments, and in paragraph (a) states: '* * * No party may argue unless he has filed his brief as required by the rule * * *.' This provision, of course, applies to both appellants and appellees. Former Rule 41(2) (7 Ill.2d R. 41(2)) concerned the filing of briefs and abstracts by appellants and stated: 'If * * * either the abstract or brief is not filed within the time prescribed, the appeal * * * will, on the call of the docket, be dismissed.' The rules contained no provision for a similar penalty to be imposed upon the appellee for failure to file its brief within the time prescribed. The committee comments to our present Rule 343 note that the provision of former Rule 41(2) discussed above has been omitted from the present rule as being both too strict and unnecessary, stating that the court has the inherent power to dismiss an appeal for any breach of its rules and if the appellant's brief is inexcusably not filed in time the court can dismiss the [63 Ill.2d 131] appeal without any specific authority in the rule to do so. 58 Ill.2d R. 343.

The dismissal of an appeal for failure of the appellant to file its brief produces a different result from that of reversing the judgment of the trial court Pro forma because of...