Mount Vernon Girl Scout Council v. Girl Scouts of U.S. of America
| Decision Date | 23 February 1965 |
| Docket Number | 64-26,Gen. Nos. 64-42 |
| Citation | 55 Ill.App.2d 443,205 N.E.2d 474 |
| Parties | MT. VERNON GIRL SCOUT COUNCIL, a Not for Profit Corporation, Plaintiff-Appellee, v. GIRL SCOUTS OF UNITED STATES OF AMERICA, a Not for Profit Corporation, and Shagbark Girl Scout Council, a Not for Profit Corporation, Defendants-Appellants. MT. VERNON GIRL SCOUT COUNCIL, a Not for Profit Corporation, Plaintiff-Appellant, v. GIRL SCOUTS OF UNITED STATES OF AMERICA, a Not for Profit Corporation, and Shagbark Girl Scout Council, a Not for Profit Corporation, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
The defendants, Girl Scouts of United States of America and Shagbark Girl Scout Council, appeal from the decree of the Circuit Court of Jefferson County entered on December 24, 1963, wherein the Court ordered the issuance of a writ of injunction restraining and enjoining the defendants from the commission of certain acts, and the issuance of a writ of mandamus directing the defendants to perform certain other acts. This appeal was filed in this court and assigned docket number 64-26. The plaintiff appeals from an order of the Circuit Court, entered on May 19, 1964, denying its motion to dismiss defendants' appeal. This latter appeal was filed in this court and assigned docket number 64-42. The two appeals were consolidated and were thereafter considered as one proceeding. A proper understanding of the issues here presented requires a review, in chronological order, of what transpired subsequent to the entry of the decree above described.
Defendants filed their notice of appeal, together with proof of service, on January 4, 1964. On January 29, 1964, on motion of defendants, the Circuit Court entered its order extending the time for filing the report of proceedings forty five days from March 13, 1964. On April 20, 1964, no record having been filed in this court, plaintiff filed a motion in the Circuit Court praying fismissal of the appeal on the ground that the Circuit Court had no authority to extend the time for filing the report of proceedings beyond April 8, 1964, and the order entered on January 29, 1964, which resulted in extending such time to April 27, 1964, was void. Thereafter, on April 22, 1964, two days after the motion was filed in the Circuit Court, defendants filed in this court the record on appeal, including the report of proceedings. The trial court heard arguments on plaintiff's motion on April 28, 1964, and on May 19, 1964, entered its order wherein it found that upon the record on appeal being filed on this court, the trial court lost jurisdiction to dismiss the appeal, and denied plaintiff's motion.
Rule 1(2)(d) of the Uniform Illinois Appellate Court Rules, and Rule 36(2)(d) of the Supreme Court Rules, Ill.Rev.Stat. 1963, c. 110, §§ 201.1(2)(d), 101.36(2)(d) provide:
Rule 1(1)(c) of the Uniform Illinois Appellate Court Rules and Rule 36(1)(c) of the Supreme Court Rules provide that the report of proceedings must be submitted to the trial judge for his certificate of correctness, and filed, duly certified, in the trial court, within 50 days after the notice of appeal shall have been filed. The rules further provide that upon application made before the expiration of the 50 day period or an extension thereof, on good cause shown, the trial court may extend the time for filing the report of proceedings, subject to the limitation that the extensions of time granted in the trial court shall not exceed, in the aggregate, a period of 45 days from the last day fixed by the rule for such filing, i. e., 50 days after the notice of appeal shall have been filed. Further extensions of time may be granted only by the reviewing court or a judge thereof, upon application made before the expiration of the extended period granted by the judge of the trial court. No application for extension of time was made to this court.
Applying the above rules to the situation at hand, the 50 days within which the report of proceedings must be filed, expired on February 23, 1964. Adding the maximum period of extension which the trial court could grant, the last day for filing the report of proceedings in the trial court was April 8, 1964. Under the applicable rule, the last day for filing the record on appeal in this court was April 18, 1964, Rule 1(2)(d) Appellate Court Rules, Rule 36(2)(d) Supreme Court Rules. The record reflects two certifications by the trial judge, one undated, and one dated February 25, 1964. The record on appeal is contained in three binders. The face sheet of one binder bears the Circuit Clerk's file mark dated April 8, 1964, the other two are file marked February 27, 1964, and April 15, 1964. The discrepancy in dates is not explained, however, in defendants' objections to plaintiff's motion to dismiss, defendants stated that the report of proceedings was filed in the Circuit Court on April 15, 1964.
Plaintiff contends that the order entered by the Circuit Court extending the time for filing the report of proceedings 45 days from March 13, 1964, was a nullity insofar as it purported to extend such filing time beyond April 8, 1964. Defendants contend that plaintiff, through its attorneys consented to the entry of the order and that this constitutes a waiver of any defect which may have existed in the procedure followed by defendants. This argument is predicated on the fact that prior to the entry of the trial court's...
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