Hale v. Ault
| Decision Date | 14 November 1974 |
| Docket Number | No. 74--102,74--102 |
| Citation | 321 N.E.2d 151,24 Ill.App.3d 10 |
| Parties | Chester O. HALE and Genevieve A. Hale, Plaintiffs-Appellees, v. Lula L. AULT and Russell F. Ault, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Richard Whitman, Kritzer, Stansell & Critser, Monmouth, for defendants-appellants.
Dan A. Ribble, Long & Schrager Assoc., East Moline, for plaintiffs-appellees.
This is an appeal from an order of the Circuit Court of Warren County in a forcible entry and detainer suit ordering that plaintiffs, Chester O. Hale and Genevieve A. Hale, were entitled to recover possession of a farm located in Warren County from defendants, Lula L. Ault and Russell F. Ault. Two issues are presented on appeal, i.e., (1) does the court have jurisdiction to hear this appeal? and (2) was the trial court correct in finding that plaintiffs were entitled to possession in the forcible entry and detainer action?
From the record it appears that a Mr. Sands became the owner of the farm lands involved in this action sometime prior to October 2, 1970, but lost title to the property in a bankruptcy proceeding. People named Coffman purchased the premises at the sale conducted by the Trustee in Bankruptcy. They entered into an agreement with Sands by the terms of which the Coffmans agreed to sell the land to Sands on a contract based on payment of semiannual installments. The title to the land was to be transferred when the purchase price was paid. Time was of the essence and the contract could be forfeited at the option of the vendors upon default of the vendees. No method of forfeiture was specified in the contract.
It appears that Sands was unable to make the payments due July 1, 1971 and January 1, 1972, and that he remained in possession of the premises until May 5, 1972, when he assigned the contract to the Hales. The Coffmans accepted the assignment and promised to convey to the Hales by warranty deed upon receipt of an amount certain at 7% Interest. The amount of interest was reduced from 9% For which Sands and become obligated under his contract. It is not clear from the record as to whether the Hales were subject to the same installment schedule as Sands had been. The Hales made no payments and were unable to obtain financing. In the hearing on the cause, the trial court was not certain whether the Hales were actually in default, for the reason that the evidence was not clear as to whether the Hales were required to pay in semi-annual installments. On August 21, 1973, the Coffmans sent, by registered mail, a notice to the Hales stating that the Hales were in default and giving them 30 days from the 21st day of August to become current or that the Coffmans would cause a forfeiture to be made. On September 25, 1973, when no payments had been received by the Coffmans, they sent the Hales a notice of forfeiture. Four days thereafter, the Coffmans conveyed the premises to the Aults by warranty deed.
The Hales had been in possession and had arranged for the planting of crops. While they maintained their residence in Moline, Illinois, they were frequently on the farm and performed repair work thereon. On October 1, 1972, the Aults entered onto the premises without any notice or consent of the Hales and began to harvest the crops planted by Chester Hale. Thereafter, plaintiffs brought the forcible entry and detainer action against the Aults. As noted, the possession taken by the Aults was without the consent of the Hales and against their express objections. In April, 1974, the Hales tendered the past-due amount to the Aults who refused to accept the tender. In May 1974, the Hales brought a forcible entry and detainer action as against the Aults. The trial judge found in favor of the Hales as against the Aults, and this appeal ensued.
A primary issue before the court is whether it has jurisdiction to hear this appeal. Prior to the time that this cause came on for consideration on appeal, on July 5, 1974, plaintiffs-appellees Hales filed a motion to dismiss the appeal in this court. Objections were filed to such motion and the motion to amend a notice of appeal was filed by defendants-appellants, the Aults. At that time, this court had no opportunity to examine the briefs and abstract of record. As a matter of fact, the brief of appellant was filed on July 5 and the brief of the appellees-Hales was filed on August 30, 1974. This court, on July 23, 1974, had entered an order granting leave to appellant to amend the notice of appeal, and the motion to dismiss the appeal was then denied. In the brief of appellees-Hales, the issue of the jurisdiction of this court to hear the appeal is again raised, and upon review of the record in this cause this court has determined that its previous order had been entered improvidently, and that this court should now reconsider the issue relating to jurisdiction and the notice of appeal on the basis of adequate information now furnished by the parties to the cause. The order of July 23, 1974 allowing leave to amend the notice of appeal by appellants and denying the motion of appellees to dismiss the appeal is vacated.
As indicated in the course of this opinion, the Hales-appellees contend that this court lacks jurisdiction to hear this appeal for the reason that appellants-Aults are attempting to appeal from a memorandum opinion and not from a final judgment. The record on appeal filed in this cause discloses that on November 30, 1973, the defendants-Aults filed a post-trial motion in the trial court and that a hearing was held on such motion on February 7, 1974, at which time the court took the motion under advisement. The trial court filed a memorandum opinion and in that memorandum opinion requested that an order be prepared for entry in the case. On February 17, 1974, the Aults-defendants filed their notice of appeal stating that they wished to appeal from the 'judgment in this case in favor of plaintiffs Chester O. Hale and Genevieve A. Hale, entered February 8, 1974.' No order was in fact entered on February 8, 1974, and a final order, as requested by the court, was first entered on March 11, 1974.
It is thus evident that when the order of the trial court was entered denying defendant's post-trial motion, defendants had already filed their notice of appeal which related to a judgment...
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