Keating v. Iozzo
508 N.E.2d 503
155 Ill.App.3d 774, 508 N.E.2d 503, 108 Ill.Dec. 342
(Cite as: 155 Ill.App.3d 774, 508 N.E.2d 503, 108 Ill.Dec. 342)
must be filed are to remain open for the receipt of such petitions until 5 p.m. on the last day of the filing period.
(Ill.Rev.Stat.1985, ch. 46, par. 1-4.) There is no comparable
provision for the filing of objections. Thus, the Board was
operating from a mistaken legal premise.
*777 Since it based its decision on what it thought to be the
law, the Board did not consider whether, under all the circumstances in evidence, respondent Iozzo's failure to file on
February 2 rendered his objections untimely. After review
of the record and the law, it is our opinion that the trial court
correctly reversed the decision on this issue since the
Board's unsupported conclusion was contrary to the manifest weight of the evidence.
While the precise issue now before the court is one of first
impression, there are numerous cases in which a party
sought to extend a statutorily prescribed time period for performance of an act because the last day of the period fell on
a Saturday, Sunday, or a holiday; the office where performance was to take place was closed; and the deadline could
not be met. In the instant case the problem is not with the
lack of Saturday or Sunday hours, but with an election official who was neither personally present all day on a weekday to accept objections nor represented by a deputy clerk
appointed to accept in her place. (The last day for filing
here, February 2, 1987, was a Monday.) Nevertheless, some
of the cases, particularly those where Saturday was the last
day, provide some guidance.
Pettigrove v. Parro Construction Corp. (1963), 44
Ill.App.2d 421, 194 N.E.2d 521, involved the final date for
filing a petition to reinstate a previously dismissed cause of
action. The plaintiff was unable to file on the last day because it was a Saturday and the office of the clerk of the circuit court was closed all day. The court held that the time
for filing had been extended to the next day the clerk's office was open.
The Pettigrove court noted that a statute authorized the closing of the clerk's office by rule of court. However, no determination was made as to whether such a rule had been
adopted by the circuit court. Rather, the court said: "But
whether closed by rule or not, as a practical matter the office
was closed so that there was no opportunity for the plaintiffs
Page 3
to file their petition." (**506***345Pettigrove v. Parro
Construction Corp. (1963), 44 Ill.App.2d 421, 426, 194
N.E.2d 521.) The court then noted that it is commonly
known that circuit clerk's offices in Illinois usually close on
Saturday and explained that the legislature did not intend for
any rule to require a litigant to do something which cannot
be done. It was logical to find that where the last day fell on
a Saturday and the office was closed on Saturday, the
plaintiffs could not follow the statute or an order of the
court. Thus, the exclusion of the day the office was closed
was proper. The court focused on what it called the practical
application of the law and said: "[W]here an office is closed
on the final day for the doing of any act provided by law
*778 to be done, that day shall also be excluded." (44
Ill.App.2d 421, 426, 194 N.E.2d 521.) The plaintiff's petition was held to be filed on time.
In Burgess v. Erickson (1966), 72 Ill.App.2d 85, 218 N.E.2d
111, a record on appeal was filed two days late because the
office of the clerk of the appellate court was closed on the
last day for filing which was a Saturday. Following Pettigrove, the court stated that the time for filing is computed by
excluding the first day and including the last day, unless the
last day is a Sunday, a legal holiday, "or a day on which the
office of the clerk of this court is closed." (72 Ill.App.2d 85,
86, 218 N.E.2d 111.) The late filing was allowed.
Although Pettigrove and Burgess involved offices which
were closed on Saturday, the significant factor in those
cases was not that the last day for filing was a Saturday, but
that the office was closed all day on Saturday. The Burgess
court made this clear when it said that a day when the office
is closed should be one of the exclusions from computation
of the time period. Thus, the day the office was closed could
just as easily have been a Monday as a Saturday. In this
sense these cases are similar to the case at bar.
The Pettigrove court adhered to the principle that the legislature did not intend to require something of a litigant which
could not be done and noted that the litigant there did not
even have an opportunity to file. In the present case respondent cannot claim that he had no opportunity to file.
Unlike the offices in Pettigrove and Burgess which were
closed all day, it is undisputed here that the village clerk
was present in her office for at least part of the morning and
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
309
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