Hale v. Ault

• Decision Date: 31 March 1980
• Docket Number: No. 79-481,79-481
• Citation: 38 Ill.Dec. 404,403 N.E.2d 635,83 Ill.App.3d 78
• Parties: , 38 Ill.Dec. 404 Chester O. HALE and Genevieve A. Hale, Plaintiffs-Appellants, v. Lula L. AULT, Russell F. Ault, T. J. Coffman, and Joyce Coffman, Defendants- Appellees.
• Court: United States Appellate Court of Illinois

Page 635

403 N.E.2d 635

83 Ill.App.3d 78, 38 Ill.Dec. 404

Chester O. HALE and Genevieve A. Hale, Plaintiffs-Appellants, v. Lula L. AULT, Russell F. Ault, T. J. Coffman, and Joyce Coffman, Defendants- Appellees.

No. 79-481.

Appellate Court of Illinois, Third District.

March 31, 1980.

Rehearing Denied May 13, 1980.

William R. Stengel, Jr., Coyle, Gilman & Stengel, Rock Island, for plaintiffs-appellants.

Richard Whitman, Kritzer, Stansell, Critser & Whitman, Monmouth, and Stephen E. Holland, Bushnell, for Lula L. Ault & Russell F. Ault.

S. David Simpson, McLaughlin, Hattery & Simpson, Galesburg, for T. J. Coffman and Joyce Coffman.

WEBBER, Justice:

This exasperatingly endless litigation now makes a fourth appearance before this court, and with reluctance we remand it to the trial court for further proceedings in the almost certain knowledge that we will see Act V of the drama in due time.

The prior opinions, Hale v. Ault (1974), 24 Ill.App.3d 10, 321 N.E.2d 151 (Hale I ), and Hale v. Ault (1977), 51 Ill.App.3d 634, 9 Ill.Dec. 659, 367 N.E.2d 93 (Hale II ), detail most of the factual background of the dispute but for purposes of clarity a complete resumee appears to be in order.

Some people named Coffman agreed to sell by contract for deed farm land in Warren County to some people named Sands. The contract was made in 1970 with a purchase price of $79,070 to be paid in semi-annual installments. The Sandses, as buyers, with the consent of the Coffmans, assigned their interest in the contract to the Hales on May 5, 1972. Hales made no payments under the contract and on August 21, 1972, Coffmans sent them a notice declaring that unless defaults were made good within 30 days, a forfeiture of the contract would take place. No payments having been made, Coffmans sent Hales a notice of forfeiture on September 25, 1972, and four days later, September 29, 1972, conveyed the premises to Aults.

Hales lived in Moline but had planted crops and were in possession of the premises. On October 1, 1972, Aults entered upon the farm and began to harvest the crops planted by Hales. This was without the consent of the Hales and against their objections. Hales brought an action in forcible entry against the Aults (Ill.Rev.Stat.1971, ch. 57, par. 1 et seq.). The trial court found in favor of the Hales and this led to the first appeal, Hale I, in which this court held that there was no appealable order and dismissed the appeal.

Two facts of cardinal importance should be noted concerning Hale I : (1) because of the jurisdictional defect the appellate court never reached the merits of the controversy; and (2) the essential holding of the trial court was that the notice of forfeiture was ineffective because of timeliness.

Following the opinion in Hale I which was handed down on November 14, 1974, the Hales brought the instant litigation against the Aults and the Coffmans. Count I is for specific performance of the contract and alleges that Hales made a tender of all amounts due under the contract to Aults on December 12, 1974. Count II is for an accounting and alleges that Aults have been in possession since October 1, 1972.

Both defendants filed answers and affirmative defenses. Coffmans denied the tender and alleged that Hales were in default and set up the notices of default and forfeiture given to them as recited above. Aults likewise denied the tender and set up the forfeiture by Hales.

Hales filed a motion to strike the affirmative defenses and claimed that Hale I, having been decided in their favor, conclusively established that there had been no forfeiture.

Both Aults and Coffmans filed motions for summary judgment. Their history is somewhat tangled since at various times in these proceedings they were denied, refiled and amended. In substance, the allegations by the Aults were that Hales were clearly in default. Hales responded with two counteraffidavits; one set up again the res judicata claim arising out of Hale I ; the other made by Hale himself averred that he had tendered all amounts due on two occasions, and that the assignment had altered the terms of the contract in that Coffmans had told him that they wanted a lump sum payment rather than installments. Aults filed a reply to Hale's affidavit claiming that it was in violation of the parol evidence rule.

Coffman's motion for summary decree followed essentially the allegations of the Ault motion for summary judgment, and added an affidavit by Coffman that he had never told Hale that he did not have to comply with the terms of the contract, including the due dates of the semi-annual payments.

The proceedings then went into abeyance when Ault filed a petition under section 72 of the Civil Practice Act (Ill.Rev.Stat.1973, ch. 110, par. 72), attacking the forcible entry judgment rendered in favor of the Hales. That matter was decided by this court in Hale II on June 14, 1977. The petition was a three-pronged attack on the forcible entry judgment and was allowed by the trial court. This court reversed, holding that the judgment was not void and hence not subject to collateral attack via the section 72 petition and order.

Following the remand in Hale II, proceedings on the trial level again commenced. Aults filed a revised motion for summary judgment as to both counts of the complaint. The motion essentially reiterated their prior arguments. Aults also asked leave to file two counterclaims, one sounding in ejectment and the other in forcible entry. Hales filed a motion for voluntary dismissal as to the Coffmans under section 52 of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 52). Coffmans objected to the dismissal on the grounds that their motion for summary decree cut off any option to dismiss under section 52. Hales filed a further counteraffidavit to the motion for summary judgment in which they set up late payment of a tax bill, and argued that this constituted a waiver of the time-is-of-the-essence provision of the contract.

On October 6, 1978, the trial court entered a series of rulings disposing of matters then pending before it as follows:

(1) It denied the Hale motion to dismiss Coffmans under section 52.

(2) It denied the Hale motion to strike the affirmative defenses concerning the res judicata effect of Hale I.

(3) It allowed the Ault revised motion for summary judgment and the Coffman motion for summary decree.

(4) It allowed Aults to file their counterclaims.

(5) It struck Hale's affidavit concerning the tax bill as a violation of the parol evidence rule.

On October 19, 1978, about two weeks following the orders of the trial court, which appeared to tie up all the loose ends of the litigation, Hales moved for and were granted leave to file a First Amended Complaint against the Aults only. This complaint, like the original one, was in two counts, one for specific performance and another for accounting from October 1, 1972 to February 7, 1978. The latter date was made by later amendment which set up that Hales had been restored to possession by a writ of assistance granted in Hale II.

Aults responded to the First Amended Complaint by filing a motion for summary judgment which was essentially similar to all those previously filed. They also filed two counterclaims like the previous ones, ejectment and forcible entry, but added the fact that they were in possession under a lease from Hales for one year expiring March 1, 1979.

Coffmans, who were not made defendants to the First Amended Complaint, asked leave to intervene and to file a motion for summary judgment.

Another chapter in this legal saga then was written. On November 6, 1978, Hales filed a notice of appeal from the orders entered October 6, 1978. Several days later there was a hearing on motions directed at Hale's First Amended Complaint, and the trial court pointed out that it had no jurisdiction in view of the notice of appeal. Similarly, on February 8, 1979, when Hales moved in the trial court for a finding under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), the trial court dismissed the motion for lack of jurisdiction. Finally on March 6, 1979, this court dismissed the appeal of November 6, 1978, for lack of an appealable order.

The scene then shifted back to the trial court where Hales filed a motion to dismiss Aults' counterclaims on the basis that one in possession cannot maintain suits either in ejectment nor in forcible entry.

On May 24, 1979, some four and one-half years after the filing of the instant litigation, some six and one-half years after the original forcible entry suit which was its genesis, and after three journeys through the appellate court, none of which reached the merits, final orders were entered in the trial court from which this appeal reaches us. Briefly summarized those orders were as follows:

(1) Coffmans were permitted to intervene as to the First Amended Complaint.

(2) Aults' motion for summary judgment as to the First Amended Complaint was allowed.

(3) Hales' motion to strike Aults' counterclaims in ejectment was entered for Aults on those counterclaims.

(4) Coffmans' motion for summary decree as to the original complaint was allowed.

(5) Hales' motion to strike the counterclaims to the original complaint was denied.

Hales have appealed this order of May 24, 1979, as well as the former order of October 6, 1978. We are thus faced with four principal issues: (1) Whether it was error for the trial court to deny Hale's motion to strike the affirmative defenses, the motion being based on the purported effect of res judicata growing out of the decision in Hale I ; (2) whether it was error to grant the motions of Aults and Coffmans for summary judgment; (3) whether it was error to deny Hale's motion for voluntary dismissal of Coffmans; and (4) whether it was error to deny Hale's motion to strike the Ault counterclaims in ejectment and forcible entry. We have concluded that the trial court was correct in denying the motion...