Shaw v. Kronst
| Decision Date | 17 January 1973 |
| Docket Number | No. 71--281,71--281 |
| Parties | William SHAW et al., Plaintiffs-Appellees, v. Robert E. KRONST, Illinois District Highway Engineer et al., Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
William J. Scott, Atty. Gen., Springfield, for defendants-appellants; William P. Ryan, Asst. Atty. Gen., Ronald C. Mottaz, Sp. Asst. Atty. Gen., Alton, of counsel.
Durr & Durr by Wendell Durr, Edwardsville, for plaintiffs-appellees.
Plaintiffs-appellee commenced an action against defendants-appellants seeking an order for writ of mandamus which would compel defendants to institute eminent domain proceedings which would have the effect of compensating plaintiffs for damage to lands not taken ancillary to the conversion of U.S. Route 66 in Madison County to limited access highway Interstate 55. To plaintiffs' petition defendants filed a motion to dismiss, which was denied. Defendants then filed an answer to the petition and to this plaintiffs replied. Apparently after a trial on the merits the court below entered an order for the writ of mandamus to issue. Defendants appeal.
We reluctantly dismiss this appeal because of the failure of appellants to comply with the Supreme Court Rules governing the preparation and presentation of the record, excerpts and briefs on appeal. The deficiencies in appellants' presentation of their case on appeal are not of a minor nature and thus require the stringent treatment we accord it.
Under the heading in appellants' brief entitled 'Nature of the Case' appellants state that they are appealing from the judgment of the court which ordered a writ of mandamus to issue and directed defendants to pay costs. Under the heading in appellants' brief entitled 'Issues Presented for Review' appellants set forth the following: The concluding portion of appellants' brief is as follows:
'Petitioner respectfully submits that the Order requiring a Writ of Mandamus to issue was in error.
WHEREFORE, Appellant prays that said cause be reversed.'
The abstract of the record filed by the appellants contains plaintiffs' petition and defendants' motion to dismiss and their subsequent answer to the petition but neither the order denying defendants' motion to dismiss nor the order directing the writ of mandamus to issue are included. This omission is contrary to the provisions of Supreme Court Rule 342 (Ill.Rev.Stat., ch. 110A, sec. 342) which expressly requires that the judgment order appealed shall aways be included in appellants' abstract. This deficiency alone is sufficient for dismissal of the appeal. (Husted v. Thompson-Hayward Chemical Co., 62 Ill.App.2d 287, 210 N.E.2d 614; Gribben v. Interstate Motor Freight System Co., 38 Ill.App.2d 123, 186 N.E.2d 100; Dowling v. Jensen, 28 Ill.App.2d 174, 171 N.E.2d 107; Harris v. Annuzio,411 Ill. 124, 103 N.E.2d 477.) But the omission of the order or judgment from which the appeal is taken is not the only serious defect.
No notice of appeal is included in the abstract. By reference to the record we are able to ascertain that a notice of appeal was filed 'from the order of the Circuit Court of Madison County, Illinois, entered in said cause on July 30, 1971, finding the issues in favor of the plaintiffs-appellees and against the above named defendants-appellants.' Further examination of the record reveals that a judgment order was filed July 30, 1971 but the order does not find the issues in favor of the plaintiffs and against the defendants. Rather, it is an order for a writ of mandamus to issue and adjudging that plaintiffs have their costs. It is clear that the notice of appeal of necessity appeals from certain specific action and is the principal pleading on appeal and that pursuant to Supreme Court Rule 342 it must be included in the abstract. (See Stevenson v. Illinois State Trust Co., 292 Ill.App. 528, 11 N.E.2d 840; Shaw v. Davis, 289 Ill.App. 447, 7 N.E.2d 331.)
Defendants' abstract of the record is devoted entirely to matters appearing in the common law record and it contains nothing of the report of proceedings. Furthermore the praecipe for record makes no reference to the report of proceedings. While it appears from the judgment order filed July 30, 1971 that the parties stipulated that the testimony and exhibits in Cause No. 67 E 68 between the parties may be incorporated by reference as the evidence and exhibits in this case, neither the stipulation nor any of the testimony or exhibits of that case appear in the abstract or in a report of proceedings. The appellee has filed a three page Supplemental Abstract containing what are apparently some excerpts of testimony and other matters but nothing appears that would indicate such testimony was properly...
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...or excerpts from the record as required by Supreme Court Rule 342. Ill.Rev.Stat.1975, ch. 110A, par. 342. In Shaw v. Kronst, 9 Ill.App.3d 807, 293 N.E.2d 153 (5th Dist.1973), and more recently in Ahlvers v. Terminal Railroad Association, 31 Ill.App.3d 166, 334 N.E.2d 329 (5th Dist. 1975), w......
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