City of Des Plaines v. Scientific Machinery Movers, Inc.

• Decision Date: 19 December 1972
• Docket Number: No. 55541,55541
• Citation: 9 Ill.App.3d 438,292 N.E.2d 154
• Parties: COTY OF DES PLAINES, a municipal corporation, Plaintiff-Appellee, v. SCIENTIFIC MACHINERY MOVERS, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 154

292 N.E.2d 154

9 Ill.App.3d 438

COTY OF DES PLAINES, a municipal corporation, Plaintiff-Appellee, v. SCIENTIFIC MACHINERY MOVERS, INC., Defendant-Appellant.

No. 55541.

Appellate Court of Illinois, First District, Second Division.

Dec. 19, 1972.

Rudnick, Wolfe, Snyderman & Foreman, Chicago, for defendant-appellant; Jerome L. Fels, of counsel.

Robert J. Di Leonardi, Des Plaines, for plaintiff-appellee.

STAMOS, Presiding Justice.

Scientific Machinery Movers, Inc. (hereinafter referred to as Scientific) is engaged in the business of trading in, receiving, moving, storing and installing heavy industrial machinery. The company has maintained its office and warehouse facilities at 517 Laurel Ave., Des Plaines, Illinois, since beginning operation in 1965.

The area in which the business is located was originally zoned C--2 for light commercial enterprises, and the business was a non-conforming use under this classification. In about 1967, however, the area was rezoned by the city to R--5, a residential classification. Prior to the instant litigation, no action had ever been taken by the city to abate the non-conforming use.

On February 25, 1969, the City of Des Plaines filed a complaint in the Circuit Court of Cook County. Count I alleged use of the property in violation of the zoning ordinances of the city and prayed for a 'penalty' judgment of $200 per day for the period of the non-conforming use and an injunction restraining Scientific from conducting business at its present location. Count II alleged that the conduct of the business constitutes a public nuisance to the extent that the outside of the building on the premises is used to store machinery, equipment, inoperative rolling stock and junk. The city prayed for penalty fines of $200 for each violation involving junk and $150 for each additional nuisance offense.

After being served with a copy of this complaint, officials of the corporation consulted their regular attorney (hereinafter referred to as General Counsel). Since the case involved litigation, he recommended that an attorney experienced in the field be retained to handle the matter. A trial attorney (hereinafter referred to as Special Counsel) was contacted and he began negotiations with the city to settle the dispute.

The record before us indicates that during the period the negotiations were being conducted, Special Counsel requested and received several extensions of time within which to file an answer to the complaint. During the same period, both General and Special Counsel became aware that Scientific had purchased property outside of the City of Des Plaines which was zoned for heavy industrial activity. It is apparent that neither attorney undertook to discuss these proposed plans in detail with officers of the corporation. However, the information was conveyed to counsel for the city who indicated that movement of the business from the city could form the basis for an equitable out-of-court settlement, and an agreement was subsequently reached which was to be incorporated into a consent decree. The agreement provided that (1) Scientific was to remove all heavy industrial machinery, equipment and tangible personal property from the premises outside of the building, (2) a fence was to be erected around the premises, (3) Scientific would be allowed to keep rolling stock within the fence enclosure, (4) the parkway at the rear of the building was to be resodded, (5) the entire operation of the business within the City of Des Plaines was to cease completely not later than September 3, 1970 (about one year later), and (6) the city would agree to dismiss the lawsuit with prejudice and relinquish any right to fines, costs and penalties resulting from the alleged violations.

Verbal agreement to the above terms was reached by negotiation between counsel for the city, Special Counsel and, to a lesser extent, General Counsel, but was never reduced to the form of a signed document. Special Counsel later testified that he had understood counsel for the city to Imply during the discussions that the term providing for cessation of all business in Des Plaines would not be enforced, but was merely a lever to force compliance with the remainder of the provisions.

Following this agreement, Special Counsel contacted officers of Scientific and communicated all of the terms of the proposed decree to them, except the provision for discontinuance of the business. Based upon the information received, verbal consent to the settlement was given. During this period, however, the extensions of time during which defendant would be allowed to answer expired and Scientific stood in default for failure to file a responsive pleading. Subsequently, counsel for the city drafted a 'Consent Decree,' incorporating the agreed terms and including a statement indicating that the order was to be entered in default, and provided Special Counsel with a copy. No objection was made to its terms, and, after proper notice to all attorneys involved, the decree was entered by a magistrate of the Circuit Court on September 17, 1969. Special Counsel spoke to counsel for the city in the courthouse on that day but did not appear in court to enter any objections.

Special Counsel later advised Scientific by letter that a settlement had been reached, itemized the terms of the decree, but once again omitted any mention of the provision for the complete cessation of business within one year of the default.

Officers of Scientific later learned of the cessation of business provision and, on September 10, 1970, filed a petition under Section 72 of the Civil Practice Act to vacate the decree. After hearing evidence and argument for both sides, the court denied relief and petitioner now appeals from that decision.

In urging reversal, Scientific contends that (1) the magistrate who entered the decree was completely without jurisdiction to act in the case and therefore the decree is void and (2) the denial of the petitioner's motion to vacate the order was an abuse of discretion in that the relief granted went beyond that requested in the complaint, the order is a consent decree which lacked the actual consent of Scientific and the attorney acted without authority in agreeing to it and the decree is therefore void.

OPINION

Petitioner's initial contention is an attack on the jurisdiction of the magistrate. Article VI, par. 8 of the Illinois Constitution of 1870, which was in force at the time of this case, provided that: 'The General Assembly shall limit or define the matters to be assigned to magistrates.' Ill.Rev.Stat.1969, ch. 37, pars. 621--29 contains 'An Act to limit or define matters to be assigned to magistrates.' Nowhere in that Act is there a provision which grants jurisdiction to a magistrate to enter the relief prayed for in the complaint filed by respondent. Consequently, petitioner contends that the magistrate completely lacked jurisdiction of the subject matter in the case and thus the decree was void.

We disagree. Even though the case may have been improperly assigned, the magistrate in the case at bar had jurisdiction of the subject matter and the decree entered is not void. (Coleman v. Scott, 38 Ill.2d 387, 389, 231 N.E.2d 408). Improper assignment is an error which can be waived.

Ill.Rev.Stat., ch. 37, par. 628 provides:

'All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate.'

Petitioner argues, however, that...