Flassig v. Newman
| Decision Date | 02 March 1943 |
| Docket Number | Gen. No. 42316. |
| Citation | 317 Ill.App. 635,47 N.E.2d 527 |
| Parties | FLASSIG ET AL. v. NEWMAN ET AL. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Cook County; Francis B. Allegretti, Judge.
Action by Carl H. Flassig and Bertha Flassig against Henry C. Newman and Martha Newman in forcible entry and detainer. From order denying plaintiffs' motion for change of venue, to vacate and set aside judgment against them, and from judgment entered against plaintiffs on the merits, plaintiffs appeal.
Affirmed. Meyers & Meyers, of Chicago (Ben Meyers) and Hart E. Baker, both of Chicago, of counsel), for appellants.
Walter F. Briody, of Blue Island, for appellees.
Plaintiffs appeal from a judgment of the Superior court in favor of defendants on the merits of the cause, and also from several orders entered in the course of the proceeding which were adverse to plaintiffs, including a denial of their petition for a change of venue.
The cause was initiated by the filing of a complaint in forcible entry and detainer May 28, 1941, in which plaintiffs sought possession of a strip of land some 135 feet long and varying in width from 2 feet 7 5/8 inches to 3 feet 1 inch. Defendants' answer denied making any entry on the premises, and they averred that the question in dispute was the proper location of the boundary line to the property, that it would be necessary to adjudicate the titles of the parties and to locate the proper boundary lines between their properties, that the court did not have jurisdiction to try questions of title or to determine boundaries in a suit in forcible entry and detainer, and asked dismissal of the complaint.
July 8, 1941, plaintiffs served notice on defendants to have the cause placed on the non-jury calendar assigned to Judge Francis Allegretti. When the case was reached on the regular trial call November 19, 1941, plaintiffs' counsel made an opening statement, and thereupon the opposing attorney called the court's attention to the fact that the question in issue was one of title and disputed boundary lines, which could not be tried in an action of forcible entry. Thereafter both sides submitted authorities to Judge Allegretti, who held that under the pleadings the proper remedy was an action in ejectment or a suit in chancery, and that if it appeared that questions of boundary and title were involved, the court would be obliged to hold against plaintiffs in the forcible entry action; and it was suggested by the court that plaintiffs amend their complaint to an action in ejectment. Plaintiffs' counsel declined to follow the court's suggestion and said that he wanted to proceed with his proof under the complaint in forcible entry. This request was granted, and plaintiffs thereupon introduced in evidence a written demand for possession and a certified copy of a plat showing the location of the respective properties. Certified copies of various conveyances in the chain of title of the two parcels were also offered in evidence, but the court sustained objections to their admissibility on the ground that those documents involved questions of title. One of the plaintiffs was then called to the stand, and in the course of his direct examination was asked several questions relating to adverse possession of the premises by plaintiffs and their predecessors in title. Objections to these questions, on the ground that they were designed to elicit testimony showing legal title by adverse possession and that the question of title could not be litigated in the forcible entry suit, were likewise sustained. Plaintiffs' counsel then stated to the court that he could not proceed and asked leave to follow the court's suggestion to file an amended complaint in ejectment. That request was granted, and the cause was removed from the trial calendar to be brought up on notice, and at the same time plaintiffs had leave to file an amended complaint, to which defendants were to plead or answer in due course. Subsequently November 24, 1941, plaintiffs filed their amended complaint and on November 26 moved for the entry of an order requiring defendants to plead thereto. Defendants' counsel called the court's attention to the fact that the amended complaint consisted of a count in ejectment and another count which was an exact repetition of the original complaint in forcible entry and detainer, and in his brief commented on the impropriety of repeating the allegations of the original complaint which had been withdrawn at the prior hearing on plaintiffs' request to file a complaint in ejectment. The court said that in view of what had occurred at the trial on November 19, he was of opinion that the forcible entry action was not properly in the case, and that if plaintiffs had included the same claim in forcible entry as a count in their amended complaint, he would be obliged to find against them on that count because he had already determined that question; and accordingly an order was entered requiring defendants to plead or answer to the amended complaint within 10 days.
Six days thereafter plaintiffs presented their petition for change of venue, alleging that they believed and feared they would not receive a fair trial before Judge Allegretti and 13 other judges named in the petition, on ground of prejudice. When the petition was presented on December 2, an order was entered allowing defendants 10 days to answer the petition, which was thereupon set for hearing January 9, 1942. In the interim defendants filed their answer to the petition, wherein they related the proceedings had in the cause, and averred that it had been partially tried on the issue of forcible entry, that the question of the propriety of the forcible entry suit had been argued before the court, that the judge had indicated by his statements and rulings on evidence that legal title and boundary lines were involved, and that forcible entry was not the proper remedy; also that after the court had indicated its rulings, plaintiffs asked for and had leave to withdraw their complaint in forcible entry and to file an amended complaint in ejectment; and that the amended complaint subsequently filed by plaintiffs contained a count in ejectment and another count which was identical with the original complaint in forcible entry, following which the petition for change of venue was presented. Upon presentation of the answer, the court found that plaintiffs were not entitled to a change of venue and denied their petition.
About a month before the entry of that order defendants had filed a motion to strike the amended complaint on the ground that the original complaint in forcible entry had been partially tried, that the plaintiffs during that trial had been granted leave to withdraw their complaint and to file an amended one in ejectment, and that count 2 of the amended complaint was identical with the original complaint in forcible entry, and also contrary to the conditions under which plaintiffs were granted leave to file their amendment. The motion to strike was heard January 13, 1942, pursuant to due notice, and an order was accordingly entered dismissing the complaint as to count 2 and granting defendants leave to answer count 1 within 10 days. Defendants complied with the order by answering count 1, and they filed a notice to place the cause on the non-jury calendar. The case was set for trial March 9, 1942, and when it was reached on that day defendants introduced evidence which resulted in the judgment in their favor, from which plaintiffs appeal. Plaintiffs' counsel said on oral argument that they knew the cause was on hearing but stayed...
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