APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
FIALA, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This case raises a question of notice. The defendants' trial counsel has been served with the village's notice of appeal, but he insists that his representation was limited to the trial level. The defendants have not been served and they have moved from their last known address without leaving a forwarding address. The village has filed its brief, but no appearance or brief has been filed on the defendants behalf. The notice intended by the criminal appeals rules has not been given, and we therefore dismiss the appeal.
On November 19, 1978, a country club then under construction and owned by the village of Arlington Heights was vandalized. Damages amounted to $15,428; damages to the contractors' property were $928. Defendant Daniel Suchocki was charged, by the State of Illinois through the Cook County State's Attorney, with criminal damage to property under section 21-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 21-1(a)). He pleaded guilty in juvenile court and was sentenced to 2 years probation. He was then charged with violating the Arlington Heights vandalism ordinance. The complaint named Teressa Allen [sic], his legal guardian, as an additional defendant. Under the village ordinance, parents or guardians of juvenile vandals are liable for the actual damages of their charges, plus fines, the ordinance presuming that the vandalism was committed with the knowledge and consent of the parent or legal guardian. Arlington Heights Code, art. VI, § 8-604(a).
The defendants moved through their trial counsel to dismiss the complaint because it placed them in double jeopardy. On July 26, 1979, the trial court granted the motion as to both defendants. Notice of appeal was filed by the village on August 20, 1979, 25 days after the dismissal.
The village sent a notice of the notice of appeal to the defendants' trial counsel by mail. On October 23, 1979, the clerk of the circuit court sent copies of the village's notice of appeal to the defendants' trial counsel and to the Attorney General. Nothing was sent to the defendants. On November 9, 1979, the village filed the record of the dismissal proceeding in the appellate court, sending a notice to defendants' trial counsel. On December 3, 1979, he responded by notifying the village and the appellate court that his representation of Suchocki and Allen had terminated on July 26, 1979, when the dismissal motion was granted. He suggested to the village that it comply with the Supreme Court Rules by giving his former clients notice of the appeal.
The village moved for extensions of time for the filing of its brief on December 11, 1979, and January 9, 1980, sending copies each time to the trial counsel and to the defendants at an Arlington Heights address, but there is no indication that the defendants received these documents. On January 16, 1980, the trial counsel filed another notice in the appellate court, reiterating that he was not defendants' appellate counsel. The village filed its brief on February 13, 1980.
The time for filing the defendants' brief passed without an appearance for them. The appellate court, acting under normal procedures, sent a letter to the defendants at their last known address, the address the village had used in sending copies of its motions to them. The appellate court's letter was returned unopened, marked "Return to Sender, Not Deliverable as Addressed." After consulting defendants' trial counsel, another address was obtained, this time in Hoffman Estates. This letter was also returned unopened, marked "Return to Sender, Moved Left no Address."
On its own motion, the appellate court then asked the village to file an additional memorandum of law to advise the court whether the apparent lack of notice precluded consideration of the case on appeal, and the village responded.
Supreme Court Rule 606(e) provides:
"(1) When Defendant is Appellant and Action is Prosecuted by the State. When the defendant is the appellant and the action was prosecuted by the State, the clerk shall send a copy of the notice of appeal to the State's Attorney of the county in which the judgment was entered and a copy to the Attorney General at his Springfield, Illinois, office.
(2) When Defendant is Appellant and the Action is Prosecuted by a Governmental Entity other than the State. If the defendant is the appellant and the action was prosecuted by a governmental entity other than the State for the violation of an ordinance, the copy of the notice of appeal shall be sent to the chief legal officer of the entity (e.g., corporation counsel, city attorney), or if his name and address does not appear of record, then to the chief administrative officer of the entity at his official address.
(3) When the Prosecuting Entity is the Appellant. When the State or other prosecuting entity is the appellant a copy of the notice of appeal shall be sent to the defendant and a copy to his counsel." (Ill. Rev. Stat. 1979, ch. 110A, par. 606(e).)
We believe that the notice required by that rule was not sent to the defendants. The circuit court clerk sent a notice of the appeal to the Attorney General instead of the defendants. But, in addition, the village made no effort to notify the defendants even after it was informed that they no longer employed their trial counsel.
The first step is to determine which rules apply here: the civil appeals rules or the criminal appeals rules. The village argued that under the civil appeals rules, service on the defendants' trial counsel constituted service on the defendants, at least until the trial counsel filed a formal withdrawal from the case. That is a correct statement of the law under Rules ...