Germania Federal Sav. and Loan Ass'n v. Jacoby

• Decision Date: 08 October 1974
• Docket Number: No. 74--20,74--20
• Citation: 23 Ill.App.3d 145,318 N.E.2d 734
• Parties: GERMANIA FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, Plaintiff-Appellee, v. Virgil M. JACOBY et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 734

318 N.E.2d 734

23 Ill.App.3d 145

GERMANIA FEDERAL SAVINGS AND LOAN ASSOCIATION, a corporation, Plaintiff-Appellee, v. Virgil M. JACOBY et al., Defendants-Appellants.

No. 74--20.

Appellate Court of Illinois, Fifth District.

Oct. 8, 1974.

Rehearing Denied Nov. 21, 1974.

Jacoby, Patton & Manns, Roach, Keshner & Wyss, Alton, for defendants-appellant; P. J. O'Neill, Alton, of counsel.

Hoagland, Maucker, Bernard & Almeter, Alton, for plaintiff-appellee; William H. Hoagland, Alton, of counsel.

CARTER, Justice.

This is an appeal from a forcible entry and detainer action in which possession was granted to the lessor, Germania Federal Savings and Loan Association, through a directed verdict.

The law firm of Jacoby, Patton and Manns occupied space in the Germania Federal Savings and Loan Association building as lessees from March 1, 1958, to March 1, 1961. Occupancy was under a written lease. This lease was extended or renewed from time to time, the last renewal being for a three-year period terminating on March 15, 1973. The record discloses that during this last period of occupancy appellee on more than one occasion indicated to the appellant that it desired this space for its own use after March 15, 1973. This last period of occupancy was under a final option in the rpevious 'extension of office lease' and under its term expired at the end of the day on March 14, 1973. On February 15, 1973, appellee delivered to appellant a formal demand for possession as of March 15, 1973. On March 15 defendants were still in the premises, and a complaint for forcible entry and detainer was filed that same day.

Appellant filed an answer to the complaint containing a general denial, separate affirmative defenses and a counterclaim for damages alleged to be due for overpayment of rent. Appellant also asked for a jury trial which was granted. On motion of the appellee, the court struck the affirmative defenses and severed the counterclaim. The trial court specifically ruled that the matter was to be tried on the sole issue of who had the right to possession. Nevertheless, during the trial appellant introduced matters relating to the affirmative defenses and the counterclaim. Counsel and the judge met several times out of the presence of the jury, and on motion of the appellee the judge granted a protective order to keep matters not germane to the possessory action from being introduced. When it appeared to the trial judge that no testimony would be offered to refute the right to possession as of March 15, he directed the jury to bring in a verdict awarding possession to the appellee.

This appeal presents two basic issues: 1) Did the trial court have authority to sever the counterclaim and affirmative defenses from the principal action and limit the issue to the right of possession? 2) Did the trial court, in the absence of a motion by the appellee, have the power to direct a verdict for the appellee?

We believe that the trial court had the right to act as it did on the two issues presented for appeal. Section 5 of the Forcible Entry and Detainer Act (Ill.Rev.Stat.1971, ch. 57) provides that 'The defendant may under a general denial of the allegation of the complaint give in evidence any matter in defense of the action. No matters Not germane to the distinctive purpose (emphasis added) of the proceedings shall be introduced by joinder, counterclaim or otherwise; provided however that a claim for rent may be joined in the complaint and judgment obtained for the amount of rent found due.'

With respect to the first issue, namely, whether or not the court had authority to sever the affirmative defenses and counterclaim and try only the issue of possession, there has been some shifting in position by both Illinois and Federal courts. The original view was that the forcible entry and detainer action was solely for the purpose of determining the right to possession. It was intended to be summary in nature and, hence, a quick and definite method through which an owner could retrieve his property unless the lessee could show he still had a possessory right. The amendment to the Illinois law which permitted the landlord to add a count for rent opened the way for a tenant to introduce matters which could defeat or reduce the claim for rent. Beyond cases in which there are questions about rent, the courts appear to have moved cautiously.

In Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 263 N.E.2d 833, a purchase contract rather than a lease was involved and the question was whether or not the contract was enforcible or had been breached by the seller. Obviously, a purchaser should be permitted to make defenses that, after all, go to the right of possession. Such a defense is germane. The recent decision of the Appellate Court (First District) in Rosewood Corp. v. Fisher, 314 N.E.2d 294, does not change this principle. In Marine Park Associates v. Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645, the Federal Civil Right Act was involved (42 U.S.C. Sec. 3604(a) and Sec. 1982); hence, it was germane to permit the defendant to introduce evidence regarding violation of the Federal Law because it had to do with his right to continue possession or to renewal. Even in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208, the case relied on most heavily by the appellant and one which might be read as materially changing the concept of defense to a forcible entry and detainer...