Impey v. City of Wheaton

• Decision Date: 03 June 1965
• Docket Number: No. 64-41,64-41
• Citation: 208 N.E.2d 419,60 Ill.App.2d 99
• Parties: C. Walter IMPEY and Wanda Impey, his wife, Donald Impey and Frances Impey, his wife, W. Richard Impey and Jack W. Impey, Appellees, v. CITY OF WHEATON, a municipal corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 419

208 N.E.2d 419

60 Ill.App.2d 99

C. Walter IMPEY and Wanda Impey, his wife, Donald Impey and Frances Impey, his wife, W. Richard Impey and Jack W. Impey, Appellees, v. CITY OF WHEATON, a municipal corporation, Appellant.

No. 64-41.

Appellate Court of Illinois, Second District.

June 3, 1965.

Rehearing Denied July 8, 1965.

Leonard Bosgraf, Chicago, for appellant.

Corrigan & Mackay, Wheaton, for appellees.

CORYN, Justice.

On September 20, 1962, the City of Wheaton applied to the Circuit Court for a permanent order enjoining Walter and Wanda Impey and others, as beneficial owners, and Donald and Frances Impey, his wife, as occupants, from using a frame accessory building moved to the rear of the residential premises of Walter and Wanda Impey as an additional residence on a single lot, in violation of municipal ordinances. Subsequently, on April 22, 1963, the Impeys commenced an independent proceeding against the City praying a writ of mandamus requiring the City (a) to issue an occupancy permit for said accessory building, and (b) to approve a plat of re-subdivision of the premises, and (c) to issue a permit authorizing them to alter the structure, according to plans submitted, for use as a single family dwelling. These two causes were later consolidated with the Impeys designated as plaintiffs-counterdefendants- (HEREINAFTER CALLED PLAINTIFFS), AND THE CIty as defendant-counterplaintiffs (hereinafter called defendant). On March 3, 1964, after a hearing, the trial court entered an order finding (1) that plaintiffs have not complied with the requirements of the municipal building code and are not therefore entitled to mandamus for a residential occupancy permit, or for municipal approval of a submitted plat or re-subdivision; (2) that plaintiff's frame accessory structure fails by approximately 50 sq. ft., as now constructed, to meet the minimum gross first floor area requirements of 700 sq. ft. imposed by ordinance, and therefore does not now qualify for residential use; (3) that plaintiff's accessory building, as now constructed, fails to meet the ventilation requirements of a residence as imposed by the city code; (4) that said accessory building is being occupied for residential purposes without a municipally required Certificate of Occupancy; and (5) that the accessory building considered for residential use does, however, meet the rear yard requirements of the ordinance. The order then directs 'that a writ of mandamus issue herein forthwith, commanding the City * * * to issue a permit to the Plaintiffs * * * authorizing them to alter the * * * structure to permit its use as a single family dwelling upon Plaintiff's filing proper application for said building permit and complying with the building code with respect thereto; such application to be filed within 90 days and upon failure to do so the relief prayed * * * by the city * * * for an injunction prohibiting the occupancy of the premises as a residence will issue. * * *' The order then contains the recitation: 'It is further ordered that the court retain jurisdiction to enforce the above conditions.' The defendant City thereupon initiated this appeal. The case was transferred here from the Second District.

In support of its prayer for reversal and for an order dismissing the application for mandamus and directing the issuance of a permanent injunction, defendant argues that the trial court erred in the issuance of the writ of mandamus directing the City to grant a building permit since the evidence establishes, and the trial court so found, that plaintiffs failed to show compliance with the ordinances of the City, and therefore failed to show a clear legal right to this extraordinary remedy, and that mandamus may not be properly granted, in any event, to take effect conditionally or prospectively, as here. The City also argues that municipalities are entitled by statute to apply for injunctive relief to enforce compliance with its valid building and zoning ordinances, and that the trial court, when it made its findings that the City's ordinances were being violated, should have issued forthwith the injunctive relief requested, and that it erred in failure to grant a permanent restraining order. Plaintiffs argue that the order appealed from is fully sustained by the evidence and the law.

The jurisdiction of the Appellate Court to entertain the review of orders and decrees of the Circuit Courts derives from the provisions of Section 7 of Article VI of the Illinois Constitution, S.H.A., and is thereby limited to the consideration of final judgments, and to those interlocutory orders and decrees appealable by virtue of Supreme Court Rule 31, adopted pursuant to the same Constitutional authority. (Ill.Rev.Stat. ch. 110, § 101.31 (1963).) Where the order or decree appealed from is not a final one, and where it is not one otherwise specifically appealable by Supreme Court rule or statute, the Appellate Court is bound, on its own motion, to dismiss the appeal. General Electric Co. v. Gellman Mfg. Co., 318 Ill.App. 644, 48 N.E.2d 451.

In Bernard Bros. Inc. v. Deibler, 344 Ill.App. 222, 100 N.E.2d 512, it is stated that '[a]...