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Leyden Fire Prot. Dist. v. Twsp. Bd. of Leyden

FEBRUARY 11, 1975.

LEYDEN FIRE PROTECTION DISTRICT, PLAINTIFF-APPELLEE,

v.

TOWNSHIP BOARD OF LEYDEN TOWNSHIP ET AL., DEFENDANTS. — (TOWNSHIP BOARD OF LEYDEN TOWNSHIP ET AL., DEFENDANTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD F. HEALY, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 4, 1975.

This appeal stems from a declaratory judgment action brought to determine which unit of local government had the authority to appoint a board of trustees for the plaintiff Leyden Fire Protection District.

Pursuant to section 4 of "An Act in relation to fire protection districts" (Ill. Rev. Stat. 1971, ch. 127 1/2, par. 24), various authorities appointed four individuals to the three trusteeship positions. The Circuit Court of Cook County appointed Michael Frankiewicz, whose right to office is not at issue. Defendant Township Board of Leyden Township appointed (the record does not disclose the date of such appointment) Richard C. Blomberg and James Robinson; and George W. Dunne, President of the Board of Commissioners of Cook County, on September 19, 1972, appointed Thomas Calvo.

In light of the surplus of appointees, plaintiff, on December 7, 1972, filed its complaint for declaratory judgment seeking a declaration as to which trustees were properly appointed. The Township Board of Leyden Township, all five of its members, and the President and members of the Board of Commissioners of Cook County were named as defendants. The township board and its members filed an answer to the complaint; however, there is nothing in the record to indicate either service on or an answer filed by the President or members of the Board of Commissioners of Cook County. Plaintiff thereafter filed a motion for judgment on the pleadings.

Based upon these pleadings, the trial court entered its order declaring that the "President of the Cook County Board" (sic: Board of Commissioners of Cook County) was the proper appointing authority for plaintiff; that Blomberg and Robinson were not qualified to act as trustees; and that Calvo and one Robert Koenig *fn1 were the legally appointed and duly qualified trustees of plaintiff.

Defendants township board and its members now prosecute this appeal form that order.

We note at the outset that only one brief has been filed in this matter — that of the township board and its members. The President and members of the Board of Commissioners of Cook County submitted no brief, and our search of the entire record reveals that, while appellants have filed their notice of appeal, there is no evidence that they served notice of their appeal upon the President of the Board of Commissioners of Cook County, any of its members, or the "County of Cook, a municipal corporation" as described in the complaint.

Supreme Court Rule 303(d) specifically provides that:

"No later than 7 days after the notice of appeal or an amendment as of right is filed in the circuit court, the party filing it shall serve, in a manner provided by Rule 11, a copy of the notice of appeal and notice of the date of filing upon every other party and upon any other person or officer entitled by law to notice of the appeal. Proof of service must be filed within 7 days after service is made, and no action shall be taken until it is filed." Ill. Rev. Stat. 1973, ch. 110A, par. 303(d).

Supreme Court Rule 11 sets forth the manner of service and Rule 12 sets forth the requirements for proof of service in the trial and reviewing courts.

The question then becomes whether a party who has defaulted in the lower court is entitled to be served with a notice of appeal when, as here, there is nothing in the record to establish service was ever effected in the trial court or in this court.

In Lewis v. Renfro (1937), 291 Ill. App. 396, 9 N.E.2d 652, the Fourth Appellate District dismissed defendant-appellants' appeal from a judgment in a mortgage foreclosure action where they had not served a notice of appeal upon those defendants who failed to appear in the trial court. In its opinion the court noted that the Civil Practice Act makes no "* * * distinction between coparties who have defaulted and those that have not in so far as the question of notice of appeal is concerned." (291 Ill. App. 396, 398.) Recognizing that a defaulting defendant would be precluded from raising many questions on appeal, the court stated that nonetheless:

"[T]he statute directs that the appeal is the continuation of the cause and we are of the opinion that the rule requires notice of appeal to all coparties whether in default or not to the end that all parties will be before the court until ...


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