Chicago Federation of Musicians v. American Musicians' Union of North America, 234 Ill. 504 (1908)

April 23, 1908 · Illinois Supreme Court

234 Ill. 504

The Chicago Federation of Musicians, Appellant, vs. The American Musicians’ Union of North America, Appellee.

Announced orally April 23, 1908.

Appeals and Errors—allowance of statutory damages on failure to prosecute appeal is imperative. A motion for the allowance of damages on dismissal of an appeal for failure of the appellant to prosecute, as required by statute, (Laws of 1907, sec. 101, p. 464,) is not answered by showing that the appeal was prayed in good faith, but that thereafter, and before time to file abstract, an opinion was filed by the court to which the appeal was taken, decisive of the question involved, rendering it useless to proceed, the statute commanding allowance of damages being in such case imperative.

Appeal from the Appellate Court for the First District.

Whitfield & Whitfield, for appellant.

Heckman, Elsdon & Shaw, for appellee.

Mr. Justice Scott

announced the opinion of the court:

A motion is made by the appellee to affirm the judgment in this case with damages. The appeal was taken in November from the October term of the Appellate Court for the First District. No transcript was filed on or before the second day of this term, as provided by the statute. There are objections filed to the allowance of the motion, setting up that the appeal was prayed in good faith, but that, intervening the appeal and this term of court, to which the appeal properly came, an opinion was filed by this court which was decisive of the question involved, so that the appellant could no longer prosecute its appeal with any effect, and therefore it has neglected to file the transcript. The appellant asks that this motion be denied and that it be allowed to dismiss the appeal. Its failure to comply with the statute is not excused by the facts stated. Under these circumstances the judgment must be affirmed, or the appeal dismissed, with damages. The appeal will therefore be dismissed on the motion of appellee with $50 damages.

Appeal dismissed.