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Daley v. Jack's Tivoli Liquor Lounge

DECEMBER 24, 1969.




Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Reversed and remanded with directions.


This is an appeal by plaintiff, the Local Liquor Control Commissioner, from an order of the Circuit Court (under the Administrative Review Act) affirming the License Appeal Commission's reversal of plaintiff's revocation of the liquor license of Jack's Tivoli Liquor Lounge, Inc.

Plaintiff's abstracts and briefs were filed in due course, but no briefs have been filed on behalf of defendants. Plaintiff has filed a motion calling our attention to this alleged default situation, and on that account requesting a judgment of reversal by this court without consideration of the case on its merits, citing a number of cases.

Granting that the authorities cited support the motion, we believe that we should not take the action requested (for reasons which we shall explain), but, rather, that we should consider the appeal on its merits, even though we do not have the benefit of an appellees' brief.

Our research on this subject has led us to very few cases decided prior to about five years ago. Since that time, however, their number has been legion, prompted largely, we have no doubt, by desire for a proper, but simple, and expeditious disposition of cases in the light of the alarming volume of appeals which have overwhelmed our Appellate Courts in recent years. This is particularly true of the First District, where all of our Divisions have filed opinions declaring that in the absence of a brief by appellee, the judgment of the trial court may be reversed without consideration of the case on its merits. E.g., Algozino v. Police Board of City of Chicago, 111 Ill. App.2d 34, 249 N.E.2d 720 (First Division); Beinarauskas v. Beinarauskas, 90 Ill. App.2d 381, 234 N.E.2d 16 (Second Division); Klein v. Priest, 92 Ill. App.2d 74, 235 N.E.2d 870 (Third Division); Tabron v. Pleasant, 64 Ill. App.2d 367, 212 N.E.2d 312 (Fourth Division). See, also, Shanholtzer v. McDaniel, 97 Ill. App.2d 81, 239 N.E.2d 459 (Second District); Village of Mount Prospect v. Malouf, 103 Ill. App.2d 88, 243 N.E.2d 434 (decided by Third District judges); Carlson v. Oberling, 73 Ill. App.2d 412, 218 N.E.2d 820 (Fourth District); and Timmerman v. Wilson, 74 Ill. App.2d 224, 219 N.E.2d 767 (Fifth District).

In all of the dozens of cases which we have examined in this matter, there is no citation to an Illinois Supreme Court decision, and we have found none which we consider controlling. There are some references to ILP, Appeal and Error, § 560, which states:

Where the appellee has filed no brief in the reviewing court, the court need not examine the record in detail or discuss the case at length, and may reverse and remand the cause, but reversal of the judgment is not required, and the reviewing court may consider and determine the case on its merits.

Among the footnote citations to this quotation is Glos v. Hallowell, 190 Ill. 65, 60 N.E. 62. The first headnote to that opinion reads, "Failure of the appellee to file a brief in the Supreme Court is of itself ground for reversal." It is true that no brief was filed by the appellee in that case and that the judgment of the trial court was reversed, but in its opinion the court discussed only the merits of the case, and a close reading discloses no basis for the quoted headnote.

In People ex rel. Houston v. Frye, 35 Ill.2d 591, 592, 221 N.E.2d 287, the court commented on the fact that it was without the assistance of a brief by the appellee, but then proceeded to consider the case on its merits, and affirmed the judgment of the trial court. That case involved habeas corpus, which is a civil proceeding (Ex parte Tom Tong, 108 U.S. 556) and, therefore, if it were to be considered authority at all on the point now before us, it would, by inference, favor the conclusion which we reach. Since, however, the point in question was neither argued nor stated, we do not believe the decision to be a directive in the instant case.

Among all the Appellate Court opinions which have declined to consider cases on their merits, about the strongest statement is to be found in People v. Spinelli, 83 Ill. App.2d 391, 393, 227 N.E.2d 779. Defendant-Appellant had been convicted of violating a village ordinance (a civil proceeding). The court said:

The plaintiff Village has filed no brief in this court. Such circumstance is regrettable since it leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled. Also, under this posture of the case, if this court is to proceed on its own initiative to determine the merits of the case, it must do so in the dual role of advocate and judge — a position abhorrent to any court.

Of late, there has been a growing tendency in this Judicial District on the part of certain attorneys on behalf of the State, its municipalities and political subdivisions, to omit the filing of an appellee's brief in compliance with Supreme Court Rule 341 and its predecessor rule. This dereliction is unfair to both the trial court and this reviewing court and, consequently, we have determined to reverse the judgment pro forma. (Emphasis supplied.)

Some cases have said simply, "Because of the failure of defendant to file a brief or argument, the order . . . is reversed. . . ." E.g., Johnson v. Lipsky, 88 Ill. App.2d 250, 232 N.E.2d 119. Some cases have held that, in the absence of an appellee's brief "judgment may be reversed without initial consideration of the cause on its merits." E.g., Beinarauskas v. Beinarauskas, 90 Ill. App.2d 381, 234 N.E.2d 16. Some have held that it is "unnecessary for us to discuss the case in full." E.g., Parkside Realty Co. v. License Appeal Commission of City of Chicago, 87 Ill. App.2d 374, 375. Others have said that "the reviewing court may reverse the judgment without further explanation of the merits of the appeal." E.g., Woodward v. Woodward, 96 Ill. App.2d 251, 252, 231 N.E.2d 654. Or, "this in and of itself would warrant the court in reversing the orders appealed." E.g., Dear v. Dear, 87 Ill. App.2d 77, 78, 230 N.E.2d 386. From a somewhat different point of view, some opinions have stated that the failure to file an appellee's brief "is tantamount to confession of error." E.g., Tabron v. Pleasant, 64 Ill. App.2d 367, 212 N.E.2d 312.

Some of the decisions have referred to court rules as requiring an appellee to file a brief, and his failure so to do as noncompliance with rules. E.g., Wind v. Paulson, 76 Ill. App.2d 389, 222 N.E.2d 137; Wieboldt Stores, Inc. v. Mautner, 61 Ill. App.2d 368, 210 N.E.2d 597; and People v. Spinelli, supra. At the time of the Wind and Wieboldt cases, for example, Supreme Court Rule 39 (made applicable to this court by our Rule 5) provided in part that "Each party to a cause in this court shall file a printed brief in which the parties shall be referred to as in the trial court. . . ." A study of Rule 39 in its entirety, and in context with Rules 40 and 41, reveals, in our opinion, that the subject dealt with was essentially the form, format, and limitation of time for the filing of briefs rather than a mandatory requirement that an appellee file a brief. Ill Rev Stats 1965, c 110, §§ 101.39-101.41. In the current rules covering the same subject matter (Supreme Court Rules 341 and 343 which were involved in Spinelli, supra), the text has made this clear, we believe, through a complete revision and elimination of the language of the former rule quoted above. Ill Rev Stats 1967, c 110A, §§ 341, 343. It is interesting, also, that the Committee Comments to Rule 343 refer to the provision in former Rule 41 to the effect that an appeal would be dismissed if the appellant's brief was not filed in time. The provision, the Committee said, was omitted "as both too strict and unnecessary" in the light of the ...

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