Chapman v. Woolsey, 54-0-12
| Decision Date | 01 February 1955 |
| Docket Number | No. 54-0-12,54-0-12 |
| Parties | Percy D. CHAPMAN and Mildred Chapman, Plaintiffs-Appellees, v. Fred WOOLSEY and Elizabeth Woolsey, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Irving M. Wiseman, Alton, for appellants.
Gilson Brown, Harold G. Talley, Alton, for appellees.
This is an appeal from an order of the County Court of Madison County allowing plaintiffs' motion for summary judgment in an action for recovery of premises owned by plaintiffs, and ordering a writ of restitution and the payment of rent to cover rental due and unpaid to the time of the judgment. The Court, likewise, in such order denied a motion to dismiss and ordered that the issue of double rental under Section 2 of the Landlord and Tenant's Act (1953 Illinois Revised Statutes, Chapter 80, Paragraph 2), be set for jury trial at the next setting of jury cases in the County Court.
On appeal in this Court it is contended by defendants that the Court erred in granting the plaintiffs' motion for summary judgment because there were presented two jury questions: (first) the question of double rental; and, (secondly) the question of waiver by acceptance of rent involving the question of whether a new tenancy was created thereby. Defendants also contend that since there was a prior suit pending between the same parties in the Circuit Court in a forcible entry and detainer action appealed from a judgment in another Justice of the Peace Court, the Court should have granted the motion to dismiss the appeal in the cause filed in the County Court.
The affidavit in support of the motion for summary judgment discloses that the plaintiffs, as landlords, had served a thirty-day notice of termination of a month-to-month tenancy, and had also served a five-day written demand for rent on defendants. Defendants, in their counter-affidavit, recite that another prior action was pending in the Circuit Court of Madison County, and that since the pendency and filing of the suit in the County Court defendants had paid plaintiffs several payments by way of check, which were accepted by plaintiffs as rent, and that this constituted a new leasing and a tenancy from month-to-month, and that by accepting the rent plaintiffs waived all right to proceed further. Defendants alleged only part payment of the rent and did not assert that they had paid all the rent in arrears and past due.
In the supplemental affidavit field in the County Court proceedings the plaintiffs pleaded the papers and pleadings on file in the Circuit Court in the previous action and stated that the defenses were without merit for the reason that the cause in the Circuit Court was not the same as the present cause and that the Circuit Court had no jurisdiction of the subject matter of the cause then on file in that Court.
The issues presented to the County Court substantially involved the question of, (a) whether acceptance of part payment of rent pending an appeal constituted a waiver of termination or forfeiture of the tenancy and created a new month-to-month tenancy; and (b) whether the Circuit Court proceeding operated to bar or abate the County Court proceeding, in view of the fact, among other things, that the Justice of Peace who heard the cause in the action appealed to the Circuit Court did not fix or ascertain the amount of the appeal bond.
The present action in forcible entry and detainer in the County Court arose from a wrongful holding over after termination of a tenancy. The original action in the Circuit Court was predicated on non-payment of rent. The County Court action for a wrongful holding over after termination of the tenancy and the original action in the Circuit Court for non-payment of rent are not, in fact, the same; and the pendency of the Circuit Court action would not abate or bar the County Court proceeding. Steele v. Grand Trunk Junction Ry. Co., 125 Ill. 385, 392, 17 N.E. 483; Merrin v. Lewis, 90 Ill. 505; O'Malia v. Glynn, 42 Ill.App. 51, 52.
The circumstance that the Justice in the Circuit Court case failed to fix the bond is unnecessary to a determination of this cause, although such failure would have deprived the Circuit Court of jurisdiction of the subject matter of such appeal. Fairbank v. Streeter, 142 Ill. 226, 228, 31 N.E. 494; Moy Fang Chung v. Blue Island Oil Products Co.,...
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