text:
    Walter E. Walz, et al., Plaintiffs-Appellants, v. Traders Development Corporation, an Illinois Corporation, and The City of Peoria, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 66-63.
    Third District.
    March 9, 1967.

      Leiter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for appellants.
    Swain, Johnson & Card, and Max J. Lipkin, of Peoria, for appellees.
   CORYN, J.

This is an appeal by plaintiffs from a judgment of the Circuit Court of Peoria County affirming, in a declaratory judgment proceeding, the validity of zoning ordinance #8002, of defendant, City of Peoria, which rezoned the property of defendant, Traders Development Corporation, from R-l low density residential district to C-3 general commercial district. Traders’ property consisted of approximately thirty-two acres located at the northwest comer of the intersection of Lake Avenue with Sheridan Road in Peoria. Plaintiffs are owners of four residential properties located on the east side of Sheridan Road directly across the street from Traders’ property.

Traders filed a petition with the Peoria Planning Commission requesting rezoning of this property, their stated purpose being to develop a shopping center. The Planning Commission, after a public hearing, voted to deny the request for rezoning. The matter was then presented to the City Council of Peoria, and on June 22, 1965, the City Council granted the rezoning by adopting ordinance #8002. Plaintiffs then filed this declaratory judgment action in the Circuit Court. Pursuant to stipulation of all parties, the matter was submitted for decision on the pleadings and designated portions of the evidence and exhibits produced at the hearing before the Planning Commission. This evidence indicates that all four corners of the intersection of Lake Avenue with Sheridan Road are presently zoned and being used for commercial purposes. Traders’ property does not include the northwest corner of this intersection, but Traders’ property surrounds this corner with substantial frontage on Lake Avenue and on Sheridan Road. Immediately across Lake Street to the south from Traders’ property is located the Sheridan Village Shopping Center, a commercially zoned regional type shopping area. Immediately west of Traders is the Peoria Pleasure Driveway and Park District, a community activity center which includes a swimming pool, ice skating rink, theatre, and an art and science center. Immediately north of this community activity center is a 40-acre tract known as Northland Shopping Center, which is zoned and used for commercial purposes. Traders owns the property immediately to the north of the property that is the subject of this zoning dispute, which property extends to Glen Avenue. The intersection of Glen Avenue with Sheridan Road is zoned and used for commercial purposes.

At the hearing before the Planning Commission, plaintiffs, in addition to their own written objections, filed objections signed by 125 residents of the area. Traders filed written consents to the zoning signed by 285 residents of the area. Walter E. Walz, one of the plaintiffs, testified that he and the other plaintiffs are opposed to the rezoning request because they feel that the proposed shopping center would cause additional traffic on Sheridan Road and would depreciate the value of their homes. Donald C. McDonald, a witness for the plaintiffs and a local realtor, testified that plaintiffs’ residential properties would depreciate some twenty to twenty-five percent if the shopping center were constructed. On cross-examination, McDonald admitted that some depreciation had already occurred because of the increased traffic on Sheridan Road caused by the Sheridan Village Shopping Center. He further admitted that homes in the area constructed or sold in 1946 for $10,500 were now selling for approximately $18,000.

A traffic study was submitted to the Planning Commission by Traders in compliance with the rules of said commission, and the County Superintendent of Highways, after reviewing this traffic study, testified that in his opinion the present highway facilities could handle the increased traffic that was anticipated because of the construction of the proposed shopping center. Traders presented to the Planning Commission an economic feasibility study, which incorporated an artist’s conception of the proposed shopping center, a plot plan showing the location of the proposed buildings and parking area, a detailed study of the need for such a development, and an analysis of its likelihood of success. This study concluded that existing retail facilities now serving that trade area were grossly inadequate for the needs of the residents and that the proximity of the Traders’ site to the Sheridan Village Shopping Center made it desirable and logical for commercial development, and that these shopping centers would complement one another and provide “maximum convenience and allow buyers a better opportunity for comparison shopping.” The proposed shopping center would be mall type, consist of 300,000 square feet of floor space, and would cost approximately three and one-half million dollars.

The subject property was acquired by Traders in 1950 and is undeveloped at the present time. Henry Welch testified that the proximity of homes in Knollcrest Subdivision, a residential area immediately east across Sheridan Road from the Sheridan Village Shopping Center, had not affected the salability of these homes. Norma Orndorff, whose home in Knollcrest Subdivision abuts Lake Avenue, opined that the development of Traders Shopping Center would enhance her enjoyment of the area and might enhance the value of her property. Other testimony and exhibits were presented to the trial court in addition to that summarized herein-above.

Ordinance #8002, granting the requested rezoning, provided that the zoning was conditioned upon Traders dedicating for right-of-way purposes a ten-foot strip of land on that part of Traders’ property adjacent to Lake Avenue, and required Traders to execute and record a declaration of restrictions which limited the use of its land to an integrated commercial shopping center requiring a fifty-foot buffer strip on the west and north sides of the shopping center, and a forty-foot buffer strip along the south side of the shopping center.

There is a presumption in favor of the validity of a zoning ordinance, whether amendatory or the initial zoning ordinance, and those attacking the validity of such ordinances, as plaintiffs are here, must prove by clear and affirmative evidence that the ordinance is arbitrary, capricious, and unreasonable. Stratford Aire Ass’n v. Hibser, 26 Ill App2d 214, 167 NE2d 586. In LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 145 NE2d 65, the Supreme Court stated that in determining the reasonableness or unreasonableness of a zoning ordinance, the following facts and circumstances should be considered: “(1) The existing uses and zoning of nearby property, (2) the extent to which property values are diminished by the particular zoning restrictions, (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals and general welfare of the public, (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner, (5) the suitability of the subject property for the zoned purposes, and (6) the length of time the property has been vacant as zoned considered in the context of land development in the area in the vicinity of the subject property.” Courts will not interfere with legislative judgment where the issue of the reasonableness of a zoning classification effected by an ordinance is fairly debatable. Stratford Aire Ass’n v. Hibser, supra.

As in most zoning cases, there is no conflict in the evidence regarding existing physical facts, but there is conflict in the opinion evidence of the various landowners, nearby residents, realtors, engineers, developers and architects. Substantial commercial and recreational facilities already exist in the vicinity of the intersection of Sheridan Road and Lake Avenue. Whether the creation of Traders Shopping Center will diminish the residential use and depreciate the value of plaintiffs’ homes on Sheridan Road is fairly debatable. Traders’ property has remained vacant for many years, and its location is suitable for the development of a shopping center. Whether the public will gain from such a development, again, is debatable. This case was tried by the trial court, without a jury, and therefore it was the function of the trial court to weigh this evidence, and to draw inferences and conclusions therefrom, and these findings of the trial court will not be disturbed on review, unless contrary to the manifest weight of the evidence. LaSalle Nat. Bank v. County of Cook, supra. It seems clear to us that the determination of the trial court that Ordinance #8002 “is not arbitrary, unreasonable and discriminatory, but that the same is legal, valid and constitutional” is supported by the evidence, insofar as plaintiffs here are concerned. Accordingly, the judgment of the Circuit Court of Peoria County is affirmed.

Affirmed.

STOUDER, P. J. and HOFFMAN, J., concur.


source: Caselaw Access Project

author: HOFFMAN, J.

license: Public Domain

text:
    Roy W. Hughes, Individually and as Class Representative, and Futterman Peoria Corporation, an Illinois Corporation, Plaintiffs-Appellants, v. City of Peoria, Illinois, a Municipality, Carson Pirie Scott & Company, an Illinois Corporation, and Traders Development Corporation, an Illinois Corporation, Defendants-Appellees.
    Gen. No. 66-17.
    Third District.
    March 9, 1967.
    Rehearing denied April 19, 1967.

      Leiter, Newlin, Fraser & McCord, and Joseph J. Solis, all of Peoria, and Sheldon J. Plager, of Urbana, for appellants.
    Max J. Lipkin, and Davis, Morgan & Witherell, all of Peoria, for appellees.
   HOFFMAN, J.

The complaint in this case was for a declaratory judgment attacking the validity of a Peoria ordinance changing the zoning classification of some 30 acres of land from residential to commercial to permit a new shopping center.

The plaintiff in his complaint claims to represent a group of persons, firms and corporations who own property and operate their businesses in the central business district of Peoria. In their complaint they represent that the zoning reclassification will have a “destructive effect . . . upon said properties and businesses”; that their businesses and properties “will be greatly depressed and depreciated in value”; that they “have been deprived of their property without due process of law”; and, that they “have invested large sums of money in their respective businesses and properties in reliance upon the classification of lands” existing prior to the reclassification ordinance. Each of these allegations of damage was specifically denied by defendants.

Subsequent to the filing of their answer, defendants moved for summary judgment. Attached to their motion was an affidavit of one of their employees, Richard Iben, and a memorandum and affidavit of R. E. Dunlavey, the city Planning Director. Prior to the hearing of said motion, the evidence deposition of Mr. Dunlavey was taken at the instigation of plaintiffs. The court, considering all these matters, allowed the motion for summary judgment, and entered an order dismissing the complaint. From this order plaintiffs appeal.

This is not the ordinary case of an owner complaining of a restriction placed upon the use of his land. Actually, the proposed new shopping center is from 3 to 4 miles distant from plaintiffs’ properties and businesses. Instead, it is claimed here, by plaintiffs, that the Peoria authorities have wrongfully permitted a use on defendants’ property. In such a situation the plaintiffs have the burden of proving that they will suffer a special damage, by reason of the new use, which will differ from that to be suffered by the general public. Garner v. County of Du Page, 8 Ill2d 155,133 NE2d 303.

The allegations in the complaint of damages to plaintiffs’ businesses and properties are allegations of special damage, Brown v. County of Lake, 67 Ill App2d 144, 213 NE2d 790, and the defendant’s answer, denying said damages, puts this question at issue.

The summary judgment statute (Ill Rev Stats, c 110, § 57) provides that summary judgment shall be decreed “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.”

By this statute the issue of fact, nominally created by the pleadings, can be overcome if it appears to the court from the affidavits and depositions that, in reality, there “is no genuine issue as to any material fact.” St. Louis Fire & Marine Ins. Co. v. Garnier, 24 Ill App2d 408, 164 NE2d 625; Solone v. Reck, 32 Ill App2d 308, 311, 177 NE2d 879.

We have carefully reviewed the Iben affidavit and the Dunlavey deposition. In them it is set forth that the rezoning will not “adversely affect property values in adjacent areas.” But there is no statement that the rezoning will not adversely affect plaintiffs’ businesses and properties in the central business district, except for the categorical assumption by one of the affiants that plaintiffs’ “properties cannot be adversely affected” because they lie 4 miles from the rezoned site. To the contrary, one of the affiants admits that there will be an “impact” from the rezoning “on the downtown.” And, it was admitted, that the findings and recommendations of the Planning and Zoning Commission made “no findings with regard to possible adverse effect on the downtown merchants’ properties.”

The trial court found that “the properties of the plaintiffs . . . are located so far distant from the [re-zoned property] as to preclude any damage to any plaintiff. . . .” We do not believe that the facts set forth in the affidavits and deposition submitted with the motion for summary judgment justify or suggest any basis for such a finding, nor do we believe such documents show that the issue of fact raised by the pleadings may not be genuine. The facts argued by defendants to the effect that the Commission staffs exhaustively studied the problem, examined, mapped and checked the area and made “due allowance for the development of the entire municipality,” and the further argument that no facts are alleged which would overcome the presumption of validity which attaches to the ordinance, do not negative plaintiffs’ allegations of special damage. Brown v. County of Lake, supra.

Furthermore, we know of no law, and none has been cited to us, to support the legal conclusion that the distance which separates the properties here involved, standing alone, “precludes any damage to any plaintiff.” In both Garner v. County of DuPage, supra, and Speroni v. Board of Appeals of Sterling, 368 Ill 568, 15 NE2d 302, cited by defendants, the causes reached review only after trials on the merits below, which established that the respective plaintiffs could not prove damage, and which developed many facts in addition to the distance which separated the properties.

We therefore conclude that the court below erred in allowing the motion for summary judgment.

In addition to the complaints of special damage made by appellants, as set forth above, appellants also complain that they will be “greatly disadvantaged in competition with” the new proposed shopping center. There is no basis in Illinois law that this complaint is a recognizable special damage. Although it is true that this precise point has never reached a published decision of one of our reviewing courts, all the cases from other jurisdictions, which have been cited to our attention, clearly hold that increased business competition provides no standing to complain of a zoning change. See: London v. Planning & Zoning Commission of Town of Stratford, 149 Conn 282, 179 A2d 614 (1962); Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass 427, 86 NE2d 920 (1949); Board of County Sup’rs of Fairfax County v. Davis, 200 Va 316, 106 SE2d 152 (1958) ; Paolangeli v. Stevens, 19 App Div2d 763, 241 NYS2d 518 (1963); In re Lieb’s Appeal, 179 Pa Super 22, 116 A2d 860 (1955); Kreatchman v. Ramsburg, 224 Md 209, 167 A2d 345 (1961); Whitney Theater Co. v. Zoning Board of Appeals of Town of Hamden, 150 Conn 285, 189 A2d 396 (1963); Lehrer v. Board of Adjustment of City of Newark (NJ Super), 58 A2d 265 (1948).

The order appealed from is reversed and the cause remanded to the Circuit Court of Peoria County for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.

STOUDER, P. J. and CORYN, J., concur.


author: HANNAH, J.

text:
    Orville B. Gorin, et al., Plaintiffs v. James M. McFarland, et al., Defendants. R. Wayne Gill, et al., Plaintiffs-Appellees, v. Charles H. Ruedi, et al., Defendants-Appellants. Charles H. Ruedi, et al., Plaintiffs-Appellants, v. R. Wayne Gill, et al., Defendants-Appellants.
    Gen. Nos. 10,801, 10,812.
    Fourth District.
    March 16, 1967.

      Harris & Harris, of Lincoln, and Lee Boland, of Decatur, for appellants.
    Downing, Smith, Jorgensen & Uhl, of Decatur (Elbert S. Smith, of counsel), for appellees.
   HANNAH, J.

These are two separate and distinct cases involving the same parties, both cases arising out of the administration of a charitable trust created by the Last Will of James Millikin, deceased. The parties in both cases are the five successor trustees of said trust; namely, R. Wayne Gill, Jesse W. Patterson, William G. Traver, Lee Boland and Charles H. Ruedi. Both cases involve a dispute between the trustees, R. Wayne Gill, Jesse W. Patterson and William G. Traver on the one side as opposed to Lee Boland and Charles H. Ruedi.

By his Last Will, James Millikin, who died in 1909, created two trusts, one private and the other educational or charitable. It provided for five trustees to administer the trusts. The private trust was fulfilled and terminated in 1941. The charitable trust was created for the use and benefit of two departments of the James Millikin University, the departments being styled as “Decatur College and Industrial School” and “Lincoln College”. The terms of the trust are unimportant to this case, there being no question as to the manner of its administration.

Both suits are filed in the trust estate proceedings. Two questions are presented. The first case, No. 10801, is entitled R. Wayne Gill, Jesse W. Patterson and William G. Traver, trustee plaintiffs, against Lee Boland and Charles H. Ruedi, trustee defendants. All parties are the duly appointed and qualified successor trustees of the charitable trust. The plaintiffs filed their complaint seeking a declaratory judgment determining that the powers of the trustees of the educational or charitable trust might be exercised by majority vote as distinguished from unanimous agreement or decision. This is contrary to the position of the defendants, they contending they must be exercised by unanimous decision. The Will contained no provisions covering this question.

The second case, No. 10,812, involves the approval of the 1965 annual report of the trustees, and the allowance of compensation to them for their services in administering the trust. The dispute here lies in the allowability of fees and expenses to the trustees of a charitable trust. Trustees R. Wayne Gill, Jesse W. Patterson and William G. Traver contend they are not allowable, while trustees Lee Boland and Charles H. Ruedi claim they are allowable.

The two cases have been consolidated in this court because the parties are the same and governed by the same evidence. No oral evidence was heard in either case, and the only material documentary evidence is the Millikin Will and Codicil, and a certified copy of a circuit court decree entered in the trust estate on March 23, 1916, wherein none of the present trustees were parties. This 1916 decree relates only to the second case.

We shall first consider Case No. 10,801, being the complaint seeking a declaratory judgment that the powers of the trustees may be exercised by a majority vote and need not be exercised by unanimous approval. Since the decision in this case must hinge upon procedural matters determining the power of the trial court to enter its final decree, we must review the course of pleading and procedure followed. Following legal process might be compared to traveling on a highway to a given destination, the destination in this case being the point at which the court is empowered to enter a final judgment or decree. The road is clearly marked by highway signs in the form of rules of procedure. There are no byroads or shortcuts to the ultimate destination. Our question is to determine whether the court ever reached that ultimate destination.

The first cardinal rule of jurisprudence is that in every suit each party shall be accorded “due process.” Fixed and specific procedure is provided by statute, rules of court and judicial decision as to the route to be followed which will assure each party that right of hearing. If these rules be not followed thereby denying that right, then the final decision of the court must, upon appeal, be reversed. The defendants contend they were denied the right to be heard. We are bound by what the record discloses.

On January 21, 1966, the three plaintiff trustees filed their complaint against the remaining two trustees, seeking a declaratory judgment that the powers of the trustees may be exercised by the will of the majority. They allege, in substance, that before the termination of the private trust it was considered necessary in the administration of the two trusts (private and charitable) that all trustees concur in all decisions arising in the course of the administration of the two trusts, but now that the private trust has been terminated (it was terminated in 1941) the powers of the trustees may be exercised by a majority decision. This question apparently now arises in this estate for the first time. Apparently from the date of the termination of the private trust in 1941 to the time of filing this action, the trustees had acted by unanimous agreement.

The complaint alleges that the defendant trustees contend that under the law the powers of the trustees must be exercised by unanimous decision. This disagreement, it is alleged, casts a cloud upon the power and authority of the trustees to act. There are no allegations in the complaint of any present dispute over any present existing actual or contemplated acts of administration. But it is alleged that unless the dispute is determined it will work injury to the trust estate and its beneficiaries in the course of administration. On the same date, January 21, the plaintiffs also filed a motion asking an early hearing, to which was attached an affidavit alleging there was then an actual controversy involving the voting of 55% of the stock in the Millikin National Bank, said shares being assets of the trust estate.

On January 26, 1966, the defendants entered their special appearance to object to the jurisdiction of the court. This motion was never heard, and on February 23, they filed their motion to strike the plaintiffs’ complaint for a declaratory judgment, alleging (1) that the complaint was insufficient in law to entitle the plaintiffs to a declaratory judgment, (2) that the petition did not allege an actual controversy pursuant to the requirements of Ill Rev Stats 1965, c 110, § 57.1, (3) that it sought only legal advice on procedural questions, and submitted a moot question, and that other adequate remedies were available. Thus there was presented a proper question as to the sufficiency of the complaint.

On March 1, plaintiffs filed a motion for a default against the defendants, or, in the alternative, to strike the defendants’ motion to strike the original complaint. On March 7, all parties being present, a hearing, and the only hearing, was had and a judgment pronounced granting the relief prayed by the complaint.

In considering these questions, let us review the proceedings at the hearing on March 7, which was the only hearing had, as disclosed by the Report of Trial Proceedings. Here we find the court proceeding to a hearing upon the merits of the complaint without first ruling upon defendants’ motion to strike the complaint for its alleged insufficiency, and without ruling the defendants to answer, and without the formation of an issue. All this was against the remonstrance of the defendants. Without the formation of an issue the court proceeded to pronounce judgment granting the prayer of the complaint. “Due process” for the defendants was nonexistent. In the language of Burket v. Reliance Bank & Trust Co., 367 Ill 196,11 NE2d 6, at page 9:

“. . . It is of no avail if one be summoned to a court and the issues determined against him without the hearing and determination of questions of fact. . . .”

As disclosed by the Report of Trial Proceedings, on March 7, the plaintiffs opened the hearing with the introduction of record evidence, notwithstanding the defendants’ motion had not been passed upon and the cause was not at issue. Upon plaintiffs’ counsel’s offer to call the plaintiffs as witnesses in support of their complaint the court stated, in substance, that this was not necessary as it deemed the complaint sufficient. Accordingly the plaintiffs offered no evidence in support of the allegation that there was an actual controversy, which is basic to the relief of a declaratory judgment, Ill Rev Stats 1965, c 110, § 57.1. The court then called upon defendants to proceed. Counsel for defendants then stated:

“As I explained to the Court this morning, as I had understood, there would be a hearing upon the petition and motion. ... I was not prepared to introduce any evidence.”

After further comment defendants’ counsel continued.

“I don’t know exactly what the Court may have as to a next step or procedure in the case, except possibly to obtain the law that the Court can consider on these motions and on the general situation. If that is satisfactory, I will be glad, probably by tomorrow, if possible, to submit a brief on the propositions that are now material in the pleadings in the case, and reply to the brief submitted by Mr. Smith.”

It therefore appears clear that defendants were seeking to be heard upon their motion to strike the plaintiffs’ complaint and to have a ruling upon it. To all this the court replied:

“The Court: I propose to enter an order on this matter today.”

Thereupon, without further hearing, according to the record, the court pronounced a judgment granting the relief prayed. All this was without an issue being formulated and without evidence. The written final decree was entered on May 10. The decree recites all the proceedings had, but in the inverse order of their occurrence. We are bound by the recitations of the signed decree.

Examining it, we find that paragraph 3 of the decree recites:

“The petitioners’ motion to default the defendants Lee Boland and Charles H. Ruedi, or in the alternative to overrule the said defendants’ motion to strike is denied.”

The court in denying the plaintiffs’ motion for default and also in denying their motion to strike defendants’ motion to strike the complaint thereby determined the defendants’ motion to strike the complaint to be sufficient in form and substance to raise a question of law as to the sufficiency of plaintiffs’ complaint. It therefore became incumbent upon the court to determine the sufficiency of the complaint in the light of the requirements of Ill Rev Stats 1965, c 110, § 57.1. If the complaint was insufficient then that would terminate the case, unless there be necessary amendments. But the trial court did not pass upon the motion, and the motion was not withdrawn and it still stands unanswered. It is not for this court to rule upon this motion to strike the complaint, that is the trial court’s obligation.

Next, in paragraph 2 of the decree, we find the following:

“That the motion of Lee Boland and Charles H. Ruedi to strike the petition for declaratory judgment is sufficient to join the issues raised by the verified petition for declaratory judgment. . . . And said motion of the defendants may stand as an answer to the petition, and by the pleadings before the Court the Court is able to pass on the ultimate issues presented.”

Here we find the court finding the defendants’ motion to strike to be sufficient to join issues on the complaint, and thereby, upon its own motion, ordering defendants’ motion to stand as their answer. All this was against the defendants’ continuous and vigorous protest, they at all times insisting upon a hearing upon their motion. It is obvious this motion did not purport to be an answer to the complaint. It was not intended as such. It was for the defendants and not the court to decide the nature of their defenses, and to set them forth at a proper time and in proper manner. Various defenses might be conceivable. But the defendants were denied the right to plead them. In fact, that stage had not been reached.

After the court had upon its own motion ordered the defendants’ motion to strike to stand as an answer, it inconsistently makes the following finding and order:

“That no answer being filed or tendered by the defendants, Lee Boland and Charles H. Ruedi explicitly denying the allegations contained in the verified petition for declaratory judgment filed herein, or in the alternative stating that said defendants have no knowledge of the matters contained in such allegations, the allegations as set forth in said verified petition for the declaratory judgment are deemed to be admitted by the defendants.”

The court having first denied the motion to default the defendants, and having ordered their motion to stand as an answer, which obviously it was not and could not by any stretch of the imagination be so deemed, now finds them in default for want of an answer. Then for want of answer the court finds they have admitted the allegations of the complaint. And all this takes place while the defendants are begging to be heard upon their motion to strike the complaint for its alleged insufficiency. Even had the court found the complaint sufficient, before it could proceed to judgment it would have to rule the defendants to answer, which was never done. At no time were the defendants ever accorded an opportunity to plead or offer evidence. How could it be said the defendants admitted the allegations of the complaint?

It is also to be noted that upon the day the decree was entered, March 10, the defendants filed written objections to the proposed decree, they having been furnished a copy. And here again they reasserted all their objections. Then again on April 7, they filed a post-trial motion asking that the decree be set aside and that they be heard on their motion to strike the complaint, and for an opportunity to be heard. But this motion was also denied. It is fundamental that “due process” be accorded every litigant. Not only must he be given notice, but be accorded the opportunity to be heard and to give evidence, Burket v. Reliance Bank & Trust Co., 367 Ill 196, 11 NE2d 6. Without this any judgment is for naught.

Likewise an issue must be formulated. This may be accomplished by appropriate pleading or default. This has always been the rule. Until an issue has been formed the court is powerless to enter a final judgment. Merriweather v. Gregory, 2 Scam (3 Ill) 50; Clark v. People ex rel. Crane, 15 Ill 213; McKeon v. McKeon, 4 Ill App2d 515, 124 NE2d 564.

Here no issue was ever formulated. Whether there was a good and sufficient complaint under Ill Rev Stats .1965, c 110, § 57.1 has never been determined. That question still remains for the trial court to determine. This is not presently a question for a court of review.

In the light of this record, we find the language used in County Board of School Trustees v. Bendt, 30 Ill App 2d 329, 333, 174 NE2d 404, 406, most apropos:

“There is an aura of suspicion surrounding this record that the judgment order of the trial court was entered without benefit of evidence. If so, the order was ‘still born’ and clearly violates the rule laid down in Topel v. Personal Loan and Savings Bank, 290 Ill App 558. . . .”

Under this state of the record there can be no doubt but that the defendants were denied their day in court. All the guideposts and signs directing the route of the highway to be followed to reach the ultimate destination of decision were ignored. Under the condition of this record the decree of the circuit court must be and is set aside, and the cause is reversed and remanded to the trial court for further proceedings beginning with a hearing and ruling upon the defendants’ motion to strike the petition. If that motion be allowed, the suit should be dismissed; if it should be overruled, then the defendants should be ruled to answer or otherwise plead within a reasonable time to be fixed by the court. Nothing in this opinion shall be construed as indicating any opinion upon the sufficiency of the complaint.

We now come to General No. 10,812, an appeal from an order of the trial court denying compensation to the trustees of a charitable trust created by the Last Will and Testament of James Millikin, Deceased. This is the same will and trust involved in the preceding case consolidated herewith. The Will contains no provision relative to the allowance of compensation to the trustees for their services in administering the trusts.

The annual report of the trustees for the year January 1, 1965, to December 31, 1965, was filed March 29, 1966. The report bears the names of the trustees Lee Boland, Charles H. Ruedi, R. Wayne Gill, J. W. Patterson and William G. Traver, purportedly signed by Lee Boland as their attorney, and verified by Charles H. Ruedi, one of the trustees. The report purports to be a full and complete report of the acts and doings of the trustees in the administration of a charitable trust, and is accompanied by a complete audit for that year. The correctness of the report and audit as to the administration of the trust is not questioned. The private trust created by the will was terminated in 1941, since which time only the charitable trust has been in operation.

Paragraph eight of the report sets forth the character of the services rendered by the respective trustees, except William G. Traver who had been recently appointed. The prayer of the report is that it be approved, and that the court fix and determine the several compensations to be allowed and paid to each of the trustees for their services rendered during the period covered by the report.

The only dispute relates to the allowance of compensation to the trustees. The will creating the trust is silent upon the question of the allowance of compensation to the trustees. On April 7, 1966, three of the trustees, R. Wayne Gill, J. W. Patterson and W. G. Traver, whom we shall refer to as the objectors, filed their written motion praying that paragraph 8 of the report and the prayer for the fixation and allowance of compensation to the trustees be stricken.

In support of this motion, the objectors assigned several grounds, some of which are not here urged. Those urged may be summarized as follows:

First, that by a decree of the circuit court entered in the Millikin Estate on March 23, 1916, it was adjudged that the trustees of the charitable trust created by the Millikin Will were not entitled to compensation for their services rendered in administering the trust. While the words “res judicata” are not used, it is in effect a plea of res judicata.

Second, that as a matter of law no trustee under the Will of James Millikin, deceased, is entitled to compensation for services rendered in 1965.

Third, that as a matter of law a trustee cannot deal with himself or make any contract binding upon the trust estate which would otherwise inure to the benefit of the trustee as an individual.

Fourth, that by the decree of the circuit court, entered March 10, 1966, it was there determined that the defendants had admitted as true the allegations of the petition in that case. By this objectors apparently seek to plead the decree in that case (10,801 hereinbefore reversed) as determinative of objectors’ right, as a majority, to waive compensation for all trustees.

The trial court allowed the objectors’ motion and struck paragraph 8 and the prayer for compensation from the report, and denied compensation. In the interest of clarity to this opinion we quote the material portions of the court’s order or decree:

“And the Court being well and sufficiently advised in the premises finds that the Circuit Court of Macon County on March 23, 1916, entered an order in this cause finding that the trust created by the eighth item of the will of James Millikin, deceased, as a public or charitable trust and that the Trustees of said trust were not entitled to any compensation for their services in administering said public or charitable trust, and the said counsel having not shown that said order has been rescinded, modified or reversed but on the other hand it was entered in this cause, as to the nature of the trust now in dispute, and as to compensation of Trustees for services now in question.
“And the Court further finds that the majority of the Trustees move that the prayer for compensation to the Trustees be stricken from their current report and that such compensation be denied.
“It is ordered and adjudged by the Court . . . that the petitioners’ motion to strike such portions of the . Annual Report of the Trustees for the year Í965 as prays for compensation for services be granted;' that compensation for services as Trustees of this charitable trust, be, and they are hereby denied; and that the Annual Report for 1965 is otherwise approved, as per order thereto filed as of this date.”

We will consider the grounds assigned by objectors in support of their motion in the order we have stated them. Our first question is, was the decree of the Macon County circuit court entered March 23, 1916, res judicata of the question here presented? While neither the objectors nor the court use the words “res judicata,” the effect of their allegation and the finding of the court is that of a plea of res judicata. Whether that decree, if erroneous in substance and conclusion would have been binding upon the circuit court in the instant case, need not be here decided. In any event, if it be erroneous, it is not binding upon a court of review. But did it have the necessary elements to render it a good plea of res judi-cata in the present case ?

To operate as res judicata it must appear that the matter then in issue and adjudicated in 1916 was the same matter in issue here, and that the parties in each action were the same, or stood in the relation of privies in the same subject matter. The rule is stated in Hedlund v. Miner, 395 Ill 217, 69 NE2d 862, 868, in this language:

. . The doctrine of res judicata is that a point once adjudicated by a court of competent jurisdiction may be relied upon as conclusive upon the same matter, as between the parties or their privies. . . .”

This rule has been repeatedly announced by our courts. It is further the rule that the party pleading res judicata has the burden of establishing the like identity of the issues as well as the identity of the parties. Ray v. Starr, 351 Ill App 344,115 NE2d 112.

What was the issue before the court in the decree of 1916? The only evidence presented upon this question is the 1916 decree itself. The issues necessary to that decree can only be ascertained from an examination of the pleadings, and they are not before us. We cannot be oblivious to the fact that upon occasions courts go beyond the issues presented to them for decision, and offer or make voluntary statements regarding the law on matters not then before them. Such volunteered expressions have been designated as obiter dictum. Whether there was actually a question as to the actual approval and allowance of requested fees to trustees for the administration of a charitable trust does not appear. The decree recites that it is based upon “certain portions of said amended bill of complaint and the amendments thereto, relating to the compensation of complainants as trustees under the Will of James Millikin, deceased, as set out in said demurrer.” Neither the complaint nor the demurrer are before this court. However, it does appear, from the Will itself, that the private trust was created by paragraph 5 thereof, and the charitable trust by paragraph 8. It further appears that the charitable trust did not become operative until the termination of the private trust. The decree of the circuit court in the present case determines that the private trust was terminated in 1941, and it is so admitted. Accordingly, the charitable trust became active a period of 25 years after the decree of 1916. The question of the allowance of compensation to trustees of the charitable trust could not have been before the court in 1916.

To be effective,

“A motion based upon the plea of res judicata can be sustained only if the precise issue involved in the present suit was determined in a prior proceeding.” Ray v. Starr, 351 Ill App 344, 349, 115 NE2d 112,115.

Another requisite to sustain a plea of res judicata is that in the two suits the parties must be the sanie, or a relationship of privity in estate must exist between them. “Privity” is defined in Lang v. Metzger, 206 Ill 475, 69 NE 493, 498, as follows:

“The term ‘privity’ denotes mutual or successive relationship to the same rights of property . . . and a ‘privy in estate is a successor to the same estate, not to a different estate in the same property’ ”. . . .

Counsel for objectors state (appellees’ brief p 12) that “no party to this appeal denies that the 1916 case and the instant case involve the same subject matter, i. e., James Millikin’s testamentary trust . . .” and further state “the parties in the 1916 case were the trustees under the Will of James Millikin, deceased.” From these facts counsel seeks to conclude that the issues and parties in the 1916 and 1966 cases are the same, and so thereby conclude that the doctrine of res judicata applies to the present case. This is an artful and ingenious, but deceptive and fallacious argument because it substitutes general facts instead of the specific premises necessary to reach the conclusion of res judicata. In effect the plaintiffs point out this erroneous reasoning.

It is true both cases arise out of the total Millikin testamentary trust, and the parties are trustees thereunder, but of separate and distinct trusts. The basic premises necessary to reach the conclusion of res judicata are (1) that the issues must have been the same, and (2) the identity of the parties the same, or they stand in a relation of privity to each other. This sameness in relationship does not exist in the two cases. Assuming that the actual allowance of compensation to trustees was involved in the 1916 case, it was only in relation to a private trust, which involved the 1891 Act, and it was not affected by the 1913 amended Act. The charitable trust, while conceived, was not to be bom into activity until 25 years later. A private trust and a charitable trust are separate and distinct entities. Objectors contend that the law as to compensation to trustees for administering the respective trusts is different. Admitting, as objectors do, that the private trust did not terminate until 1941, at which time the charitable trust first became operative, it becomes obvious that the allowance of compensation to trastees for administering the charitable trust was not before the court in 1916. Thus the necessary element of the sameness of issue, for a plea of res judicata is absent.

That the parties in 1916 and the parties in 1966 are not the same is obvious. It is admitted they are not the same individuals. It cannot be denied that the trustees in 1916 were acting in behalf of a private trust, while the parties in the instant case are acting in behalf of a charitable trust. We can see no privity of relationship between the trustees of 1916 and those of 1966. All the elements necessary to a plea of res judicata are absent.

Counsel for defendants urge that the allowance of compensation would in effect countenance “self-dealing” by the trustees with the subject matter of their trust. This argument is also fallacious in that the trustees do not claim any interest in the trust estate. Their claim has nothing to do with the performance of their duties in the administering and handling of the trust in accordance with the provisions of the trust. Neither does the making of a claim constitute any contractual relation between them and the trust estate. Arnold v. Alden, 173 Ill 229, 50 NE 704. In making a claim for compensation they are not claiming any interest in the trust estate. In a sense the trustees are but employees of the founder of the trust, charged with a duty to execute the trust in accordance with the directions given by the founder. Theirs is a service rendered, and is in no sense a part of the trust itself.

This right of a trustee to claim eompensasation for his services is personal to him. No other trustee can waive or assert that claim for him. The court alone determines the justness of the claim and its amount to be based upon the character of the services rendered. What the trustees in 1916 may have claimed, or waived, or what that court may have determined with reference to such claims, is not binding upon or of concern to the trustees in 1966. We find no privity existing between the present trustees and those trustees who were serving fifty years ago so far as compensation is concerned. Accordingly the 1916 decree lacks all of the elements necessary to invest it with the authority of res judicata, and objectors have failed to bear their burden of proof.

We now approach the question as to whether there was and is any law which authorizes or permits the allowance of compensation to trustees of a charitable trust for their services in administering such a trust, where trust is created by will or codicil, and where no provision is made regarding compensation to the trustees. The objectors claim there is no such law.

Under the common law compensation to trustees, in the absence of specific provision therefor, was not allowable. This was based upon grounds of public policy. It was considered that a trustee should execute the trust for the benefit of the beneficiary alone, and that the trustee should derive no profit by reason of the trust. In 1891 the legislature, in its wisdom, deemed that justice required the changing of this rule, and so enacted a statute entitled “An Act concerning compensation of trustees.” Ill Rev Stats 1911, c 3, § 136, Hurd’s, as follows:

“Where a trustee or trustees shall hereafter act under any power or appointment given or created by any will, testament or codicil . . . except in case ■ of trusts for charitable, religious or educational purposes, shall be contained no provision respecting the compensation to be allowed or paid such trustee or trustees, a reasonable compensation may be charged and allowed, demanded and collected therefor.”

This Act came under consideration in Arnold v. Alden, 173 Ill 229, 50 NE 704, decided in 1908, where the allowance of compensation to the trustees of a private trust was upheld. The question of compensation to trustees of a charitable or educational trust was not there involved. However that case does contain some informative discussion of this statute, which we shall not repeat at length. But among other things it is there pointed ouf that the relation between the trustee and the creator of the trust is not one of contract. It was further pointed out, that while one who accepts an office to which no compensation is attached is presumed to undertake to serve gratuitously, and cannot recover anything upon an implied contract, still where such an office is wholly within the control of the legislature, it may, in the absence of constitutional prohibition, alter or change the compensation. The Supreme Court deemed this statute as coming within this doctrine. It accordingly held the trustee of a private trust coming within the limitations of the statute, to be entitled to compensation for his services rendered after the passage of the Act.

The 1891 Act contained an exception to the allowance of compensation, stated in these words “except in cases of trusts for charitable, religious or educational purposes.” Whether at a later time the legislature deemed this exception to be ambiguous, or whether they deemed it wise to limit the exception, we are unable to say. But the fact remains that in 1913 they amended the 1891 Act by adding thereto the following:

“The exception in this Act, in regard to trusts for charitable, religious or educational purposes, is intended to apply only to trustees ‘of charitable, religious or educational institutions, and not to the trustees created by any will, testament or codicil. The county court of the county where the will was admitted to probate or the circuit court of such county, in case such court shall take jurisdiction of a trust estate, may allow a reasonable fee to such trustee or trustees so created by will, testament or codicil.’ ” (Emphasis added.)

In 1965 this Act was again amended and reenacted to make it compatible with the Judicial Reform Act, but in all other particulars it remained the same. Much time is spent by objectors in argument concerning the 1913 Act. But this Act was superseded by the 1965 Act. It was under this 1965 Act these proceedings were initiated and not the 1913 Act.

Accordingly we find there is specific statutory provision authorizing compensation to trustees of a charitable trust created by will or codicil where no provision is made in the instrument itself regarding compensation. The 1913 Act continued in force and application from its enactment until August 1965 when it was superseded by the 1965 Act. The latter Act is the 1913 Act amended to conform with the Judicial Amendment. In Conant v. Lansden, 341 Ill App 488, 94 NE2d 594 (1950) there was a suit for accounting against trustees of a charitable trust, among other things seeking to have the trustees of a charitable trust account for fees they had received and taken for their services, as such trustees, we find this statement:

“As to (3) the deductions for compensation, it is the law of this state that a trustee is entitled to reasonable compensation for services rendered. Ill Rev Stats ch 148, ¶ 31, (Jones Ill Stats Ann 135.18). The fact that charges were made at regular intervals over a term of years, and payment therefor made, raises no presumption of bad faith or self-dealing.”

This case was later appealed to the Supreme Court, and while reversed upon other grounds, the right of trustees of a charitable trust to compensation under this Act was upheld. Conant v. Lansden, 409 Ill 149, 98 NE2d 773.

The reason and intent for the amendment of 1913 to the original Act of 1891 seems apparent. The exception in the 1891 Act was in these words, “except in cases of trusts for charitable, religious or educational purposes,” while the 1913 amendment declares this exception to now be limited to “trustees of charitable, religious or educational institutions,” and thereby excluded from the 1891 exception trusts created by will or codicil. The Millikin University is an institution and has its own trustees. The charitable trust here is not an institution, but is created from a private estate. Obviously the legislature felt it was not just to permit a private founder of a trust to impose the obligation upon others to administer his estate gratuitously in the absence of his failure to make any provision relative to compensation for the services of his trustees. A trust will not be permitted to fail for want of a trustee, and if no method of compensation be provided by the founder of the private trust, then the court would be in a position of compelling some one or more to act gratuitously. The duties in administering the trust might become very onerous. That the legislature may by amendment expand or restrict the application of a particular statute, so long as not violating constitutional limitations nor defeating the obligation of contract, seems clear.

Whether the objectors seek to raise a constitutional question by relying upon a finding in the 1916 decree that the 1913 Act was unconstitutional we do not know. A careful examination of the pleadings here fails to disclose any direct attack by the objectors upon the constitutionality of the 1913 Act, and certainly there has been no attack upon the constitutionality of the 1965 Act under which these proceedings were initiated. The constitutionality of a statute can only be raised by a direct attack in the lower court. The circuit court in the instant case did not purport to pass upon the question of the constitutionality of either the 1913 or 1965 Act.

As heretofore noted, the 1916 decree was offered only in support of what amounted to a plea of res judicata. The circuit court in the instant case likewise treated it as a matter of res judicata. It might also be noted that while the 1916 decree made a “finding” that the 1913 Act was unconstitutional, it entered no decretal order declaring it to be unconstitutional. Furthermore,' as elsewhere noted, the 1913 amendment, which con-cemed only public, charitable and educational trusts, was not actually before the court in 1916, since the charitable trust did not become active until some 25 years later.

No recognition has ever been given to the 1916 decree. (See Conant v. Lansden, 341 Ill App 488, 94 NE2d 594; 409 Ill 149, 98 NE2d 773, decided in 1950.) In fact, the objectors and the circuit court for 25 years have accorded no consideration to this decree. Reference to the audit, made part of the annual 1965 report, discloses that these same trustees (except Traver) claimed, were allowed and paid compensation for their services rendered in 1964. There was paid to objectors R. Wayne Gill and J. W. Patterson $2,000 each; to Roy M. Hamilton (Traver’s predecessor) $1,750; to Lee Boland $4,000; and to Charles H. Ruedi $3,000. On oral argument before this court counsel for objectors stated that the trustees of this charitable trust had all claimed and received compensation since 1941, when the trust first became operative. They were bound by all lawful orders and decrees entered in this trust, and if the 1916 decree was one which is binding now, then it was binding for the 25 years between 1941 and 1965. Consistency on the part of the objectors would indicate as proper a proffer to return to the estate the fruits by them unlawfully gathered from the garden of their sacred trust. We find no such offer. Their inconsistency inspires but little weight to their contention.

With reference to the third ground, viz., that the allowance of compensation would be permitting the trustees to deal with themselves, and to make contracts with the estate, we find no merit therein. The answer to this contention is found in Arnold v. Alden, 173 Ill 229, supra. As we have pointed out the trustees are comparable to special employees, chosen and appointed to administer a trust in accordance with the directions of the founder. They claim no interest in the trust itself. They have no fixed rights to any definite amount of compensation. Neither is there any contractual relationship between them and the trust. It is the court who determines whether their services merit compensation, and the reasonable amount, if any. But they do have the right to make claim for reasonable compensation.

We now approach the fourth assigned ground, viz., whether under and by virtue of the decree of March 10, 1966, rendered in Case 10,801 consolidated herewith, a majority of the trustees may determine that no compensation may be claimed or allowed to any or all of the trustees of this charitable trust. That decree has been set aside and reversed by this court, as herein-before set forth. Consequently it is eliminated as a valid ground to support either the objectors’ contention or the court’s order.

But directing our attention to this limited question as to the right of the majority trustees to waive the right of all trustees to compensation, it is our opinion they cannot do this. We have heretofore discussed the distinction between a claim for compensation and the determination of policies relating to the administration of the trust. In passing upon the want of power in a majority to waive claims for compensation we are not passing upon the power or right of a majority to determine policies in the administration of the trust. The two matters are distinct and unrelated. The latter question has been referred back to the trial court for determination.

The right to claim compensation fpr services rendered in performing the duties necessary to administer the trust, is personal to each trustee. He may waive his personal right to claim compensation, if he so desires, but he cannot waive the personal right of another. Referring to the compensation allowed for the year 1964, it will be observed the compensation allowed was in varying amounts, ranging from $1,750 to $4,000, obviously based upon the amount and character of services rendered. We are of the opinion a majority of the trustees cannot waive the right of other trustees to claim compensation.

For the reasons herein assigned, it is the opinion of the court that each trustee of this charitable trust is entitled to a reasonable compensation for his services rendered in administering this trust for the year 1965. The amount is a matter for determination by the trial court in the light of all the facts, circumstances, and character of services rendered. The judgment and decree of the circuit court is reversed and set aside, and the cause remanded for further proceedings consistent with the opinion of this court.

No. 10,801 — Reversed and remanded.

No. 10,812 — Reversed and remanded.

TRAPP, P. J. and SMITH, J., concur.


author: ALLOY, J.

text:
    Raymond Defenbaugh, a Minor, by His Father and Next Friend, Charles Defenbaugh, Plaintiff-Appellant, v. Streator Canning Company, a Corporation, Defendant-Appellee.
    Gen. No. 66-25.
    Third District.
    March 10, 1967.
    Rehearing denied April 7, 1967.

      Thomson, Thomson & Mirza, of Bloomington (Jerome Mirza, of counsel), for appellant.
    Adsit, Thompson, Strock & Strong, of Pontiac, Livingston, Barger, Brandt, Slater & Schroeder, of Blooming-ton, and Robson, Masters, Ryan & Belom, Gray, Thomas, Wallace & O’Brien, and Murphy, Timm & Lennon, all of Joliet, for appellee.
   ALLOY, J.

The action from which this appeal is taken was originated as a complaint in several counts and as against four different defendants including defendant-appellee, Streator Canning Company, a Corporation. The complaint alleges that plaintiff, Raymond Defenbaugh, on or about August 15, 1963, while performing certain duties on a farm owned by Walter Lenz, one of the defendants, was instructed by Donald Wulzen, another of the defendants, to pick corn upon the Lenz farm through use of a tractor and corn picker; that the corn picker contained a mechanically controlled hydraulic boom which upon operation was raised from the ground in a perpendicular direction; and that in operating the com picker plaintiff was injured when the corn picker struck high voltage wires overhead. The utility company, Public Service Company, was also made a defendant in such action.

In Count II of the complaint, plaintiff seeks to impose liability on defendant Streator Canning Company. It is alleged in such Count that defendant Wulzen was, at the time, an employee of Streator Canning Company, and acting within the scope of his employment, but affirmatively asserts that plaintiff was an employee of defendant Donald Wulzen in performing certain duties upon the farm referred to. The defendant denied all the allegations of this Count of the complaint. In other counts referring to Streator Canning Company, Streator Canning Company was alleged to be a negligent employer of plaintiff rather than defendant Wulzen. As to such counts, defendant Streator Canning Company filed a demand for a bill of particulars as to how, when and where plaintiff was an employee of defendant Streator Canning Company. Plaintiff’s answer was that plaintiff was paid by said defendant, and at its direction and control and with its machinery he was harvesting corn at the time of the accident. Defendant Streator Canning Company also alleged affirmatively that it maintained workmen’s compensation insurance at the time of the accident and that plaintiff had no common law or statutory right of action against it. Plaintiff responded that he had no knowledge of the existence of the insurance policy and also alleged that defendant Streator Canning Company had failed to comply with section 6 of the Workmen’s Compensation Act (1965 Ill Rev Stats, c 48, § 138.-6). It was disclosed through a subsequent demand for a bill of particulars and answer thereto, that plaintiff contended that Streator Canning Company had failed to post notice of workmen’s compensation coverage in accordance with rules and regulations of the Industrial Commission. Defendant Streator Canning Company filed a further answer in which it alleged that it had in fact posted notices in accordance with such rules and regulations.

Thereafter, defendant Streator Canning Company made a motion to dismiss the complaint as amended, asserting that the allegation of employment contained in Count VI of the complaint constituted an admission that plaintiff was an employee of Streator Canning Company and that the Workmen’s Compensation Act, therefore, barred any common law or statutory right of action against it. The Circuit Court of Will County, on September 27, 1965, ordered that the complaint, as amended, be dismissed stating that the parties were operating under the Workmen’s Compensation Act and that no common law or statutory right of action, therefore, existed as against Streator Canning Company. This order simply provided: “It is ordered that plaintiff’s complaint as amended as against defendant Streator Canning Company, a Corporation, is dismissed.”

On February 14, 1966, plaintiff filed a motion to vacate the order of September 27, 1965, asserting that an issue of fact existed with respect to coverage of the parties under the Workmen’s Compensation Act; that the allegation of employment in Count VI did not affect the cause of action stated in Count II; and that Count II and Count VI were separate causes of action and alternative pleadings. It was also requested that the Court permit plaintiff to amend Count VI to strike out the word “employed” and substitute therefor the word “instructed” so that there would be no allegation of employment of plaintiff by Streator Canning Company as employer. The Court denied such motion to vacate on February 25, 1966, and found further that there was no reason to further delay the enforcement of or appeal from this order and ordered that the plaintiff take nothing by his suit against the defendant-appellee. It was indicated that the reason for delay in filing the motion to vacate arose from the fact that no information or knowledge was communicated to plaintiff’s counsel of the entry of the original order dismissing the complaint, until shortly before the motion to vacate was filed.

There has also been filed in this Court, a motion under section 92(c) of the Illinois Civil Practice Act (1965 Ill Rev Stats, c 110, § 92(c)), for entry of an order adding to the record, which motion was taken with the case for consideration. Since the record on appeal has been certified as correct by the trial judge prior to the making of this motion and the exhibits referred to were not part of the record in the trial court and would not be determinative in any manner as to whether the trial court action should be sustained or reversed, we find no reason or basis for allowing such motion.

On appeal in this case, defendant contends that plaintiff was not entitled to the relief requested in the motion to vacate, first, on the ground that it did not comply with section 72 of the Civil Practice Act (1965 Ill Rev Stats, c 110, § 72). Defendant also contends that the Circuit Court properly dismissed the amended complaint against Streator Canning Company because it was barred by the Workmen’s Compensation Act on the specific points that (1) that no issues of fact were presented by the pleadings since the defendant conclusively demonstrated that it had insured whatever liability. it had to plaintiff under the Workmen’s Compensation Act, and (2) that the failure to post notice of workmen’s compensation coverage, even if such omission was a fact, would not eliminate the bar of the Workmen’s Compensation Act to the common-law action instituted by plaintiff. ,

Plaintiff, however, makes clear that the motion to vacate and the appeal were not intended as actions under section 72 for post-judgment form of relief, but that the procedure in this appeal was an orderly attempt to obtain relief from the trial court’s order of February 25, 1966. Plaintiff also contends the allegation of employment and its admission by defendant was not a binding judicial admission for all purposes since under section 43(2) of the Civil Practice Act (1965 Ill Rev Stats, ch 110, § 43 (2)) and the precedents in this State, inconsistent and alternative pleadings are permitted and allegations in such pleadings do not constitute judicial admissions.

We have noted that the order allowing the motion to dismiss was not a final order as determined by a number of cases decided in this State (Cook County v. Hoytt, 41 Ill App2d 122, 190 NE2d 150; Ariola v. Nigro, 13 Ill 2d 200, 148 NE2d 787). The order of September 27,' 1965, did not contain any words indicating that it was a final order and it was not until the order of February 25, 1966, that words indicating a final order contained the expression that there was no just reason for delaying enforcement or appeal or that plaintiff take nothing by his action. Rule 304 of the Illinois Supreme Court Rules, effective January 1, 1967, codified the applicable rule which was based on the provisions of section 50, Paragraph 2, of the Illinois Civil Practice Act (1965 Ill Rev Stats, c 110, § 50 (2)). The new rule specifically provides that time for filing notice of appeal would run from the time of entry of a finding by the trial court that there is no just reason for delaying enforcement or appeal where a judgment is entered as to one or more, but fewer than all of the parties or claims asserted in the trial court. In the cause before us, neither order at any time sought to affect any of the other parties to the action. As a consequence, the appeal was undertaken in timely and appropriate fashion and is being properly considered in this Court. We are aware of the case of Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504, but such precedent does not apply in the instant case since the court action there was based on a determination by the court that the proof actually received in the case during its trial indicated that the statute of limitations did in fact apply. Similarly, in the instant case, if the actual trial discloses that plaintiff was in fact an employee of defendant Streator Canning Company, and if there was no further reason why the Workmen’s Compensation Act should not apply to plaintiff under the record as actually made in the cause, then action similar to that undertaken in the Peach case would be justified.

We have noted that Count II of the complaint sets forth a theoretical cause of action. It is an inconsistent and alternative pleading to other counts in the complaint. Such method of pleading is justified under the Civil Practice Act (1965 Ill Rev Stats, c 110, § 43 (2); Nystrom v. Bub, 36 Ill App2d 333, 348, 184 NE2d 273; Johnson v. Illini Mut. Ins. Co., 18 Ill App2d 211, 217, 151 NE2d 634; McCormick v. Kopmann, 23 Ill App 2d 189, 203, 161 NE2d 720). Under the terms of the Civil Practice Act and the precedents in this State, there would be no judicial admission which would be binding on plaintiff by reason of the alternative allegation of employment as contained in other counts since Count II is not predicated on the theory of employment by Streator Canning Company. It is obvious that Streator Canning Company had elected to come within the provisions of the Act by insuring its liability with the workmen’s compensation carrier (1963 Ill Rev Stats, c 48, § 138.-2). Plaintiff admits that defendant had thus voluntarily insured its liability and asserts only that a failure to post notice would operate to vitiate such coverage. The policy of this State has been to maintain workmen’s compensation coverage even as to questionable employees where agricultural work is undertaken if there is an election to accept the provisions of the Act by the employer by obtaining an insurance policy to protect the employer from workmen’s compensation claims (Calvert v. Illinois Power & Light Corp., 291 Ill App 243, 9 NE2d 443). The fact that notices of coverage under the Workmen’s Compensation Act were not posted in accordance with section 6 of the Workmen’s Compensation Act would not operate to terminate such coverage whether asserted by defendant as an avenue of escape or by a plaintiff in the maintenance of a common-law action. The provision for posting of notices is nowhere made a condition of coverage. The employer’s status would not change simply because he failed to perform this act of posting notice or failed to support accidents as required by section 6 or to furnish medical treatment in accordance with the provisions of section 4. The violation of such provisions are obviously not the basis for terminating liability under the Workmen’s Compensation Act. The only penalty specified for such failure is the provision that such omission constitutes a misdemeanor punishable by a fine in the discretion of the court (1963 Ill Rev Stats, c 48, § 138.26). If Count VI alone were being considered, then the action of the court, on the record before us, would have been justified.

It is notable, likewise, that there was no motion for summary judgment but that the motion was simply made to dismiss the complaint and the counts thereof as to defendant Streator Canning Company. No basis appears in the record which would justify the dismissal of the complaint as to Count II. As we have indicated, it may develop in the trial of the cause that plaintiff was in fact the employee of the Streator Canning Company and that the Workmen’s Compensation Act does apply. This, however, cannot be determined conclusively on the basis of the pleadings and procedures thus far undertaken in the trial court, and a dismissal of Streator Canning Company was not justified. The Circuit Court, therefore, erred in entering the order of February 25, 1966, in denying the motion to vacate heretofore referred to.

This cause will, therefore, be reversed and remanded to the Circuit Court of Will County with directions to allow the motion to vacate herein referred to and to proceed in this cause in accordance with the views expressed in this opinion.

Reversed and remanded.

STOUDER, P. J. and CORYN, J., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    Gerald A. Schroeder, et al., Plaintiffs-Appellants and Cross-Appellees, v. J. C. Busenhart, et al., Defendants-Appellees and Cross-Appellants.
    Gen. No. 49,983.
    First District, Fourth Division.
    March 10, 1967.
    Rehearing denied April 14, 1967.

      McCoy, Ming & Black, William R. Ming, Jr., Helen I. Cohen, John J. Hoellen, Alfred M. Loeser and Stephen Lee, of Chicago, for appellants.
    Albert E. Jenner, Jr., Philip W. Tone, Donald R. Harris and Albert J. Horrel, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellees.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

This appeal is from a summary judgment in favor of some fifty defendants alleged in the complaint to have participated in an unlawful conspiracy to deprive plaintiffs of their fruit and vegetable business which had been conducted on plaintiffs’ land before it was taken for school purposes through condemnation proceedings. The complaint also alleged separate wrongful acts by individual defendants, and, as to these allegations, the complaint was dismissed without prejudice to plaintiffs’ right to institute separate suits against the individual defendants. Defendants have filed a cross appeal from that portion of the order which denied their motion to tax against plaintiffs certain of defendants’ expenses and attorney’s fees.

On November 6, 1959, proceedings were brought by Township School Trustees to have the land of the Schroeders (plaintiffs in the instant case) condemned for the use and benefit of School District No. 57, Cook County, Illinois. The Schroeders filed a traverse, which, as amended, denied that the School District intended to take the property for public purposes. After the traverse was overruled, the case was tried before a jury which returned a verdict awarding the Schroeders $267,083.33. A motion for a new trial by the School Trustees was granted. On appeal by the Schroeders, the Supreme Court reversed and remanded with directions to enter judgment on the verdict, but refused to review the ruling on the traverse. Trustees of Schools of Township No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 23 Ill2d 74, 177 NE2d 178. Pursuant to this mandate the Circuit Court set aside its order granting a new trial, and entered judgment for the amount of the verdict and costs. On October 23, 1961, an order was entered finding that the judgment award had been satisfied by payment to the County Treasurer for the benefit of the Schroeders, and that the School Trustees had thereupon become vested with the fee simple title to the land and the right to enter thereon and take possession. Pursuant to another order of the Circuit Court directed to the Sheriff, the Schroeders and most of their personal property were removed from the condemned premises and the School Trustees were put in possession of the property on December 13, 1961. The Schroeders appealed from the order vesting title to the property in the School Trustees on the ground that the particular school district involved could not take land by eminent domain within 40 rods of the owners’ dwelling. This appeal was also decided adversely to the Schroeders. Trustees of Schools of Township No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 25 Ill2d 289, 184 NE2d 872.

Immediately following the decision in this second appeal, the Schroeders obtained new counsel, who filed motions in the Supreme Court for leave to file their additional appearances on behalf of the Schroeders, for leave to file an additional petition for rehearing, and for an order restraining any construction on the property. These motions were all denied by the Supreme Court on September 12,1962.

Meanwhile, the Schroeders themselves were not idle. They allegedly reentered the premises and took possession of the condemned property during the 1962 Labor Day weekend. The School Trustees, on September 4, 1962, filed a petition for a supplemental writ of possession to remove the Schroeders and to restrain them from further interfering with the rightful possession of the School Trustees. The answer of the Schroeders to this petition denied that the Schroeders had retaken possession of the property, and further charged:

4. These Respondents further say that there is great and intense feeling against the graft, corruption and debauchery as shown by the attempted taking of this large tract of land for just an elementary school, the large contractors [sic] entered into and the eagerness and avidity with which the consummation of contracts is sought, the People of Mt. Prospect are up in arms against this project and are going to great lengths because they do not wish to see their tax monies dissipated with the result that things are done and Respondents blamed therefor.

The above charge was stricken as scurrilous by the Circuit Court on its own motion. An Assistant State’s Attorney investigating the charge interviewed the Schroe-ders and Alfred Loeser, one of their new attorneys, and reported to the court that the Schroeders had no foundation for the charge.

The Schroeders’ new counsel also filed several other documents in the Circuit Court. On August 16, 1962, they filed a paper charging that the School Trustees had abandoned their petition to condemn because the compensation required to be paid by the original judgment order entered October 27, 1960, was not paid within 150 days of the entry of that order. In addition, a motion was filed charging that there were severál defects in the condemnation proceedings' and seeking , to-restrain the School Trustees from dealing with the coh- v demned property, On September 25, 1962, the Schroe-ders filed another petition in the Circuit Court in which they charged that the court had no authority to enter an order evicting them from the property and no authority to vest title in the School Trustees.

On October 4, 1962, the Circuit Court granted the order prayed for in the September 4, 1962, petition of the School Trustees, and denied the various motions and petitions of the Schroeders. The Schroeders thereupon filed notice of appeal and on November 2, 1962, again requested the Circuit Court to restrain the School Trustees from dealing with the condemned land until after the decision.of the new appeal, to the Supreme Court. This petition was denied by the Circuit Court.

In a wholly separate action commenced prior to the denial of the petition for rehearing on the second appeal, the new counsel for the Schroeders, on their behalf and on behalf of various other alleged taxpayers in the School District, filed a petition in the Circuit Court (under Ill Rev Stats 1961, c 102, §§ 11-16) for leave to file a taxpayers’ complaint to enjoin the Board of Education from expending public funds for construction of a school on the condemned property. Leave to file this taxpayers’ complaint was denied by the Circuit Court, and the Schroeders again appealed.

The Supreme Court, over objection of the Schroeders, consolidated these two last-mentioned appeals and again ruled against the Schroeders’ contentions. Matters raised in regard to the condemnation suit were held to have been conclusively adjudicated in an earlier appeal, while some of the matters raised in the taxpayers’ complaint were held to have been improperly pleaded because they constituted a collateral attack on a final judgment. Other matters raised in the taxpayers’ complaint were said to be conclusions of the pleader or of too indefinite a nature to constitute reasonable grounds upon which to predicate a taxpayers’ suit. Both rulings of the Circuit Court were therefore affirmed in an opinion filed September 27, 1963. People ex rel. White v. Busenhart, 29 H12d 156,193 NE2d 850.

The Schroeders next instituted suit in the United States District Court on January 20, 1964, against the School Trustees and the Board of Education, among others, in which they sought to have the various proceedings, judgments and orders of the Illinois courts declared null and void. The complaint was dismissed with prejudice for want of jurisdiction, and the Court of Appeals affirmed on the ground that the suit was nothing more than an improper collateral attack on a valid judgment. Schroeder v. Illinois, 354 F2d 561 (7th Cir, 1965). Petition of the Schroeders for certiorari was denied (384 US 972).

Shortly before the Federal Court action was filed, the instant suit was commenced on December 11, 1963, generally charging a conspiracy and, in addition, charging numerous wrongful acts against various individual defendants. The conspiracy count charges that some fifty defendants, including certain School Trustees and Sheriff’s deputies, on or about December 12, 1961, “. . . conspired together and formed deliberate design and purpose to ruin, oppress and impoverish these Plaintiffs and to destroy and damage their business also.” The complaint states that plaintiffs were the owners of the property in question on December 12, 1961, at which time the defendants caused the removal of plaintiffs and the destruction and removal of various pieces of plaintiffs’ personal property from the premises pursuant to the conspiracy.

Plaintiffs’ conspiracy theory is apparently based on the ground that the removal of their personal property from the condemned premises had never been litigated. But the question of ownership of the condemned property had been conclusively litigated, with the consequence that the conspiracy charge in plaintiffs’ complaint is barred under the doctrine of res judicata.

The Illinois Supreme Court had finally adjudicated that the condemnation proceedings had been initiated for a valid public purpose and that fee simple title to the property resided in the School Trustees as of October 23, 1961. That was the date on which the Circuit Court issued an order directing the Sheriff to remove the Schroeders and their personal property from the condemned premises. This order was carried out at about the time plaintiffs allege that the conspiracy and various individual torts were committed by defendants. Plaintiffs are no longer in a position to argue that the school authorities were not put in possession of the condemned premises pursuant to a valid public purpose. That fact had already been established, and the condemnation proceeding was the only forum in which to determine the issue of whether the taking was for a bona fide public purpose. Deerfield Park Dist. v. Progress Development Corp., 22 Ill2d 132, 174 NE2d 850.

The time for the Schroeders to have advanced the accusation of a conspiracy to destroy their business was also in the condemnation proceeding, and such an allegation at this juncture again constitutes an improper collateral attack. Duffy v. Frankenberg, 144 Ill App 103. In Duffy, plaintiff instituted an action charging that she was forced to pay money as a result of a default judgment allegedly obtained pursuant to a conspiracy. The court held that plaintiff’s conspiracy action was barred while the judgment remained in effect, since the judgment had been entered by a court having full jurisdiction of the parties and the subject matter, and was therefore not subject to collateral attack.

All that plaintiffs’ conspiracy count alleges to have been done by defendants was done at the direction of the Circuit Court. Consequently, the court judicially knows that defendants’ taking possession of plaintiffs’ property could not have been pursuant to conspiracy, since it knows that the action had been taken pursuant to the adjudicated right of the school authorities to possession for a valid public purpose. As previously stated, the affirmance of the trial court’s order by the Supreme Court conclusively makes applicable the doctrine of res judicata. Entry of summary judgment in this circumstance was therefore correct. Harwood v. Harwood, 412 Ill 131, 134136, 105 NE2d 719; McKinney v. City of East St. Louis, 39 Ill App2d 137, 139, 188 NE2d 341.

Similarly, that part of the complaint that charges individual acts of wrongdoing by various defendants does no more than outline conduct carried on to effectuate the Circuit Court’s order that the school authorities be put in possession of the condemned premises. While plaintiffs may claim that certain defendants exceeded the bounds of the court order by their conduct, the individual charges of wrongful acts are insufficient because they are stated indefinitely and are largely in the nature of conclusions of the pleader. Richardson v. Eichhorn, 18 Ill App2d 273, 151 NE2d 819; Ill Rev Stats 1963, c 110, § 33(1). Moreover, because the conspiracy count fails on the ground of res judicata, the individual torts pleaded against various defendants are without adequate relation to each other for the purpose of being joined in a single action. Opal v. Material Service Corp., 9 Ill App2d 433, 442-444, 133 NE2d 733. While the court could have granted plaintiffs leave to file an amended complaint in which to plead each individual tort in a separate count, the record does now show that plaintiffs requested permission to amend their complaint. In this circumstance we conclude that the court properly dismissed without prejudice the several individual tort claims.

Defendants contend that it was error for the trial court to deny their motion to tax against plaintiffs’ certain expenses and attorney’s fees made necessary because of the allegations in the complaint, (1) that defendants were members of a conspiracy to ruin the plaintiffs’ business; (2) that the plaintiffs owned the condemned property after May 25, 1962, and (3) that the black surface soil on the property was converted by defendants. We must therefore decide whether any of these charges (all of which were, in effect, found by the trial court to have been untrue) justify the imposition of the sanctions authorized by section 41 of the Civil Practice Act. Ill Rev Stats 1963, c 110, § 41. That section provides:

Untrue statements. Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reásonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.

On the date of filing the complaint none of the above allegations could have been upheld, because the Supreme Court had already determined that the school authorities, not the Schroeders, were the owners of the condemned property at the time in question. Trustees of Schools of Township No. 42, Board of Education of School Dist. No. 57, Cook County v. Schroeder, 25 Ill2d 289, 184 NE2d 872. The history of this apparently unending litigation, as set forth in the record before us, contains abundant evidence that plaintiffs knew, or could reasonably be expected to have known, that they were foreclosed from relitigating the question of ownership of the condemned property and matters collateral thereto. While an unfounded claim of ownership might ordinarily not be the kind of statement covered by Section 41, it certainly becomes so after repeated judicial determination by the Supreme' Court adverse to the claimant. And there is authority for the proposition that where, as here, a suit is dismissed on the ground of res judicata, the sanctions of section 41 will be imposed. Elston-Damen Currency Exchange, Inc. v. Sheon, 46 Ill App2d 218, 197 NE2d 143. We think that the record in this case affords ample justification for a finding that the above allegations of plaintiffs’ complaint were untrue, were made without reasonable cause, and were made in bad faith. Consequently, that part of the trial court’s order denying defendants’ motion under section 41 to tax plaintiffs with pertinent expenses and reasonable attorney’s fees is reversed, and the cause is remanded for a hearing to ascertain the amount thereof, and to tax the same accordingly.

Affirmed in part, reversed in part, and remanded with directions.

DRUCKER and McCORMICK, JJ., concur.


author: MR. JUSTICE MCCORMICK

text:
    Jesse Williams, et al., Plaintiffs-Appellants, v. Chauncey L. Morton, M.D., Defendant-Appellee.
    Gen. No. 51,163.
    First District, Fourth Division.
    March 10, 1967.
    Stewart and May, of Chicago (Charles M. May and Roland M. Stewart, of counsel), for appellants.
    Aaron H. Payne, of Chicago, for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This action was brought by Jesse Williams to recover damages allegedly sustained by him as a result of alleged negligent surgical procedures by Chauncey L. Morton, defendant, a physician.

A count in the complaint alleges consequential damages suffered by Thelma Williams, wife of Jesse Williams. The complaint was filed and the defendant was served with summons. On June 29, 1965, an order of default was entered in the Circuit Court of Cook County against the defendant, which order provided that the matter be transferred to the assignment judge for assignment for a prove up as a default matter.

On December 1, 1965, after hearing the case as a default matter, a judge in the Circuit Court entered judgment against the defendant, Morton, in the sum of $25,000. On December 13, 1965, the defendant filed a motion to vacate the said judgment; objections to the motion were filed by plaintiffs; and a hearing was held in the trial court on December 16, 1965. On that date an order was entered vacating the default judgment. It was further ordered that th"e defendant be permitted to file his answer or otherwise plead to plaintiffs’ complaint within 20 days. It is from this order that plaintiffs seek to appeal.

Former section 77 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 77) provided that appeals are allowed to the Appellate Court to review final judgments, orders or decrees of various courts in Illinois. Section 77 was repealed, effective January 1, 1964. In the Historical and Practice Notes by Jenner and Tone in SHA c 110, § 77, it is said: “Subsection (1) of Section 77 was repealed because the same subjects are covered in Sections 5 and 7 of the new Judicial Article.” The amended Article 6 of the Illinois Constitution, commonly referred to as the new Judicial Article, became effective January 1,1964. Section 7 provides:

“In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court ...”

Cases dealing with the finality and appealability of a judgment decided under section 77 of the Civil Practice Act are applicable under section 7 of the new Judicial Article. See Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32.

In the instant case the order appealed from is one vacating a default judgment and resetting the case for hearing. In Dross v. Farrell-Birmingham Co., Inc., 51 Ill App2d 192, 200 NE2d 912, the court said:

“The present appeal is from an order granting a motion to vacate a default judgment and allowing the defendant leave to file an answer. It has been repeatedly held that such an order is interlocutory and, therefore, not final or appealable. Chamness v. Minton, 39 Ill App2d 325, 188 NE2d 873; La Vida, Inc. v. Robbins, 33 Ill App2d 243, 178 NE2d 412.”

Phillips v. Getz, 55 Ill App2d 479 (Abst.), 205 NE2d 278, was a suit in which a default judgment had been entered against the defendant. The court entered an order vacating the default judgment and assigned a new trial date.- The appeal was from that order of the court. The court stated:

“The parties have raised and argued several points in their respective briefs but have overlooked entirely this court’s lack of jurisdiction to hear this appeal. Although neither of the parties raised the question of jurisdiction, it is our duty to do so sua sponte when we find jurisdiction wanting. McKee v. Standard Cartage Co., 34 Ill App2d 151, 180 NE 2d 739; Reynolds v. Wangelin, 314 Ill App 12, 40 NE2d 900. The Civil Practice Act limits the right of review to appeals from final judgments, orders and decrees. Ill Rev Stats, 1963, chap 110, sec 77. The order in question is one vacating a default judgment and resetting the case for hearing. This court has repeatedly held such an order is interlocutory and, therefore, neither final nor appealable. Dross v. Farrell-Birmingham Co., Inc., 51 Ill App2d 192, 200 NE2d 912; Chamness v. Minton, 39 Ill App2d 325, 188 NE2d 873.”

The Phillips case was decided under section 77 of the Civil Practice Act, and the same rule is applicable under the provisions of the judicial amendment. An order vacating a default judgment and resetting the case for hearing is neither final nor appealable.

The appeal must be dismissed.

Appeal dismissed.

ENGLISH, P. J. and DRUCKER, J., concur.

       This judgment order does not appear in the abstract but does appear in the record.