City of Elmhurst v. Kegerreis

• Decision Date: 17 January 1946
• Docket Number: No. 28920.,28920.
• Citation: 392 Ill. 195,64 N.E.2d 450
• Parties: CITY OF ELMHURST v. KEGERREIS.
• Court: Illinois Supreme Court

392 Ill. 195

64 N.E.2d 450

CITY OF ELMHURST

v.KEGERREIS.

No. 28920.

Supreme Court of Illinois.

Nov. 21, 1945.

Rehearing Denied Jan. 17, 1946.

Appeal from Circuit Court, Du Page County; Harry W. McEwen, judge.

Suit by the City of Elmhurst against Roy Kegerreis to enjoin defendant from operating an X-ray and diagnostic laboratory in an alleged residential zone. Decree for defendant, and plaintiff appeals on a certificate of trial judge that validity of a municipal ordinance is involved.

Affirmed.

Lawrence C. Trager, of Chicago, for appellant.

A. F. Wild, of Chicago (Carl N. Howig, of Chicago, of counsel), for appellee.

SMITH, Justice.

This is a direct appeal from a decree of the circuit court of Du Page county,on a certificate of the trial judge that the validity of a municipal ordinance is involved, in accordance with section 75(1) of the Civil Practice Act. Ill.Rev.Stat.1943, chap. 110, par. 199(1).

The suit was brought by the city of Elmhurst, a municipal corporation, for an injunction to restrain appellee from operating an X-ray and diagnostic laboratory in a remodeled residence located in what was alleged to be a residential zone or district as zoned and classified by a zoning ordinance of said city. The complaint alleged that effective January 1, 1941, and thereafter, there was in force in said city, a zoning ordinance, by section 3 of which the district in which the property was located was restricted to single-family dwellings and, with certain limitations, to churches and religious temples, schools, colleges and libraries, and, as to the land only, to farming and truck gardening. It was further alleged that appellee was a licensed physician; that prior to 1942, he had conducted an X-ray and diagnostic laboratory in another part of the city which was zoned for commercial uses; that in 1941 he remodeled and made extensive changes in the residence building involved, installed an X-ray, therapy and fluorscope machines, and other equipment for use in an X-ray and diagnostic laboratory; that he had vacated the premises formerly occupied by him and transferred such machines and laboratory and laboratory equipment, and had installed the same in the basement of the property in question; that the primary use to which he was devoting said property was a business purpose, namely, an X-ray and diagnostic laboratory; that such use was in violation of section 3 of the zoning ordinance. It was further alleged that on February 3, 1943, appellant caused a notice to be served on appellee, demanding that he cease his violation of the zoning ordinance, but that he had continued to operate said business in said building, in violation of said ordinance. The prayer of the complaint was for an injunction restraining the defendant from using the premises for an X-ray and diagnostic laboratory, and from the use of the same for any purpose which would constitute a violation of the zoning ordinance.

Appellee filed a motion to dismiss the complaint on the grounds that the complaint was substantially insufficient in law and equity; that the suit was barred by a prior judgment, and that the zoning ordinance was unreasonable and unlawful, and imposed unconstitutional restrictions upon appellee's use of the property; that it operated to unlawfully deprive him of the use of his property, in violation of the Constitution of this State and of the United States. An affidavit was attached to the motion in accordance with section 48(e) of the Civil Practice Act. In that affidavit, appellee set forth that the present proceeding was barred by an order and judgment for a writ of mandamus entered in a certain cause in the circuit court of Du Page county entitled Roy Kegerreis v. Wm. Hanebuth, Superintendent of Building Construction for the city of Elmhurst. This former proceeding will be hereafter referred to as the mandamus suit. The affidavit set out at length the complaint for a writ of mandamus, the answer of the defendant, the motion of the plaintiff to strike the answer, the order of the court sustaining the motion, and the final judgment of the court awarding the writ of mandamus, which was entered on September 16, 1941. By the complaint in the mandamus suit, the plaintiff therein, who is the defendant in the present suit and appellee here, prayed for a writ of mandamus against the superintendent of building construction of the city of Elmhurst compelling him to issue a permit for the installation of miscellaneous electrical apparatus and equipment in the property in question which would enable him to use the same as an X-ray and diagnostic laboratory.

To the complaint in the mandamus suit, the superintendent of building construction for the city of Elmhurst, the defendant named therein, filed an answer. By this answer it was alleged that the property in which the plaintiff sought a permit for the installation of the electrical machines, apparatus and equipment was, under section 3 of the zoning ordinance, zoned only for residential purposes; that the plaintiff sought to obtain the permit to install the electrical machines, apparatus and equipment described in the complaint in order that he might use the property as a business building and conduct therein an X-ray and diagnostic laboratory which, it was alleged, would be a use prohibited by section 3 of the zoning ordinance. That section of the zoning ordinance was set out in full in the answer. The plaintiff thereupon filed a motion to strike the answer. In this motion it was alleged, inter alia, that if the zoning ordinance be construed as tending to prohibit the alterations contemplated and the installation of the apparatus and equipment for which the permit was asked, or prohibited the plaintiff from conducting in said premises an X-ray and diagnostic laboratory, the ordinance was invalid. The motion to strike the answer was sustained by an order entered on August 18, 1941. By that order the defendant was given leave to file an amended answer within fifteen days. He declined to file any further answer. As already observed, on September 16, 1941, judgment was entered granting the writ of mandamus as prayed. No appeal was taken from that judgment. It will thus be seen that the validity of section 3 of the zoning ordinance was directly put in issue by the answer in the mandamus proceeding and the motion to strike that answer. The effect of the order sustaining the motion to strike the answer and the judgment granting the writ of mandamus as prayed was to decide that issue in favor of the plaintiff in the mandamus case.

The order and judgment in the mandamus case having been properly pleaded as a bar to the action in this case, it becomes necessary to first determine the effect of the judgment in the mandamus suit upon the parties to this cause. It is contended by appellee that such judgment constitutes a bar to this action for the reason that an issue was made in the mandamus case as to the validity of section 3 of the zoning ordinance; that that issue was determined against the defendant, who was the superintendent of building construction for the city of Elmhurst; that while the city of Elmhurst was not a party to the mandamus case, the officer whose duty it was to enforce the zoning ordinance was the defendant, and that, for all practical purposes, the mandamus suit was a suit against the city of Elmhurst; that the cause of action in the mandamus case and the cause of action in this case is one and the same; that in determining the issue of whether the city official whose duty it was to enforce the zoning ordinance should be compelled to issue the permit, the validity of section 3 of the zoning ordinance was directly and necessarily involved in the former proceeding; that the decision of that issue was against such city official and is binding upon the city in this case.

Appellant contends that the judgment in the mandamus case is not an estoppel or bar to appellant's cause of action in this case, because it alleges that there is no identity of the cause of action, the thing to be recovered, or the parties. It is contended that the mandamus suit involved only the question of the duty of the superintendent of building construction to issue the permit. It points out that, in this case, the action is for an injunction involving the use of the premises, after all permits have been issued and the alterations and installations and changes have been made in the property, hence it is alleged that there is no identity of the causes of action. The determination of the question whether the judgment in the mandamus suit is an estoppel or a bar to appellant's action in this case depends upon whether the cause of action or questions involved were determined by the former judgment and whether such former judgment is binding upon appellant in this a case.

The rules applicable to the doctrine of former adjudication and estoppel by verdict have been clearly defined by this court in many cases. In Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, 103 N.E. 227, 231, we said: ‘There is a welldefined distinction between a former judgment when it is relied on under plea of res judicata, and when it is pleaded by way of an estoppel by verdict upon some matter or fact which has been previously determined. In the former case it is necessary to support the defense that there should be an identity of parties and an identity of the cause of action with the one in which the defense is interposed. Such plea, in effect, says that the plaintiff has on a previous occasion brought an action against the defendant or against one under whom the defendant claims, for the very same cause of action now alleged, in which said former action, a judgment was given for the plaintiff or for the defendant, as may have been the case. Bigelow on Estoppel, p. 27. An ‘estoppel by verdict’ is but another branch of the doctrine of res judicata, and it rests upon the same principle of law; that is, that...