Jack Spring, Inc. v. Little

Decision Date28 January 1972
Docket Number41739,Nos. 41730,s. 41730
Citation50 Ill.2d 351,280 N.E.2d 208
CourtIllinois Supreme Court
PartiesJACK SPRING, INC., Appellee, v. Emma LITTLE, Appellant. SUTTON & PETERSON, INC., Appellee, v. Zeleta PRICE, Appellant.

Kleiman, Cornfield & Feldman, Chicago (Gilbert A. Cornfield and Barb J. Hillman, Chicago, of counsel), for appellants.

Irving Goodman and Nathan Einhorn, Chicago, for appllee Sutton and Peterson, Inc.

Stephen J. Epstein, Chicago, for appellee Jack Spring, Inc. Harry G. Fins, Chicago, for amicus curiae, Appellate Lawyers Assn.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago (Vernon M. Welsh and Frank L. Winter, Chicago, of counsel), for amicus curiae, Chicago Real Estate Board.


Defendants Emma Little and Zeleta Price appeal from judgments of the circuit court of Cook County awarding plaintiffs Jack Spring, Inc. and Sutton & Peterson, Inc. respectively, possession of premises described as '3901 West Jackson 3rd floor,' and 'a three room apartment on the second floor of premises located at 7804 Prairie,' both in Chicago. Because of the similarity of the issues involved we ordered the appeals consolidated for argument and opinion.

In the action against defendant Little, the complaint alleged that rent for the premises for a period of two months was due and owing, that there was due plaintiff from defendant for such rental the sum of $270, and that plaintiff claims possession of the property and $270 'as rent or damages.' It is not apparent from the record when or if the complaint was amended, but the judgment entered, and from which defendant Little appeals, is for possession of the premises only. In the action against defendant Price the complaint alleged that defendant unlawfully withheld possession of the premises and did not allege any failure to pay rent. The parties however, state in their briefs that plaintiff's claim to possession was based on defendant Price's failure to pay rent.

In her verified answer, as amended, defendant Little denied the allegations of the complaint and in four counts pleaded affirmative defenses. She alleged the existence of an 'oral lease;' plaintiff Jack Spring, Inc.'s promises, and the breach thereof, to make certain repairs; many structural defects which are violations of enumerated sections of the Municipal Code of Chicago; plaintiff's wilful neglect and intentional refusal to repair them, and that plaintiff, by reason of said refusal, was 'in violation of an implied covenant of habitability;' the filing of a suit by the building department of the city of Chicago against the owner of record of the premises to enforce the building code; that she had sought other housing through private sources and governmental agencies and had been unable to find suitable housing; that the Cook County Department of Public Aid was withholding payments of rent for welfare recipients who occupied apartments in the building, that plaintiff cannot sue for possession of the premises occupied by such welfare recipients (see Ill.Rev.Stat.1969, ch. 23, par. 11--23), and that to permit judgment to be entered against her for possession of the premises because she was employed and not a welfare recipient would violate her rights under the fourteenth amendment to the constitution of the United States.

She further alleged that the enforcement of plaintiff's 'illegal and unconstitutional' claim to possession will assist in perpetuation of slum housing, and will result in injury and detriment to defendant and other Negro citizens forced to occupy and reside in such slum housing.

In her verified answer, defendant Price denied the allegations of the complaint and, as affirmative defenses alleged the existence of a written lease, plaintiff's promise, and the breach thereof, to make certain repairs, and repeated complaints to the appropriate agencies of the city of Chicago and their failure to institute action to enforce compliance by plaintiff with enumerated provisions of the Municipal Code of Chicago. She also alleged that enforcement of certain provisions of the lease would violate the public policy of Illinois and deprive her of certain fourteenth amendment rights.

The circuit court allowed plaintiffs' motions to strike the answers and entered judgments for possession.

Upon entry of judgment and filing of notice of appeal each defendant moved in the circuit court for waiver of an appeal bond and supported the motion with an affidavit showing inability, by reason of proverty, to furnish bond. In each instance the motion was denied, and the court set the amount of the appeal bonds at $2,000 for defendant Little, and $1,200 for defendant Price.

The first issue presented arises from plaintiffs' contention that the appeals must be dismissed because of defendants' failure to file appeal bonds within 5 days as required by section 18 of 'An Act in regard to forcible entry and detainer' (hereafter called Forcible Entry and Detainer Act; Ill.Rev.Stat.1969, ch. 57, par. 19). Defendants contend that under the constitution and statutes of Illinois, and the rules of this court, in no situation except forcible entry and detainer is furnishing of bond a prerequisite to an appeal. They argue further that the mandatory conditions of the bond prescribed by the Forcible Entry and Detainer Act deny defendants the right, enjoyed by appellants in other types of cases, to have the conditions of the appeal bond fixed with reference to the character of the judgment as provided in our Rule 305(d), Ill.Rev.Stat.1971, c. 110A, § 305(d) 43 Ill.2d R. 305.

Plaintiffs contend that this court, in a long line of cases, has Sub silentio held section 18 to be constitutional. Amicus curiae Chicago Real Estate Board argues that equal protection does not required exact uniformity of procedure and cites authority approving shortened times for taking an appeal in certain types of cases. The parties have not cited, nor have we found, a case in which this court decided the question here presented, and obviously any alleged Sub silentio holding in no way precludes our consideration of the issue.

Section 7 of article VI of the constitution of Illinois (1870), S.H.A. and section 6, article VI of the constitution of Illinois (1970) provide for an appeal, as a matter of right, from all final judgments of the circuit court. Having created the right of appeal, the statutes adopted and the rules promulgated in implementation of that right may not serve to discriminate against appellants by reason of the inability to furnish an appeal bond. (Griffin v. Illinois (1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Boddie v. Connecticut (1971), 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113; Mayer v. City of Chicago (1971), 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372.) We hold, therefore, that insofar as section 18 of the Forcible Entry and Detainer Act requires the furnishing of bond as a prerequisite to prosecuting an appeal, it is violative of the fourteenth amendment to the constitution of the United States, of article II, section 2, and article VI, section 7, of the Illinois constitution of 1870, and article I, section 2, and article VI, section 6, of the Illinois constitution of 1970.

Defendants contend that the effect of the trial court's orders denying their motions for waiver of appeal bond and requiring them to furnish bonds conditioned as prescribed by section 19 of the Forcible Entry and Detainer Act (Ill.Rev.Stat.1969, ch. 57, par. 20) is to make 'the tenant's right to an appeal turn on his wealth.' They argue that if the statutes and rule (ch. 57, pars. 19 and 20; Supreme Court Rule 305) permit the requirement of such bonds 'they are unconstitutional on their face,' and in any event are unconstitutional as applied in these cases.

We find it unnecessary to decide whether section 19 of the Forcible Entry and Detainer Act is unconstitutional. The Civil Practice Act (Ill.Rev.Stat.1969, ch. 110) governs actions brought under the Forcible Entry and Detainer Act (Ill.Rev.Stat.1969, ch. 57, par. 11), and our rules govern appeals in those actions. Our Rule 303(b) provides: '(1) Forcible Entry and Detainer. The time and method of appeal in forcible entry and detainer cases shall be as provided by statute (Ill.Rev.Stat., ch. 57, § 19 Et seq.), and paragraph (e) of this rule is inapplicable to those cases,' and in view of our holding section 18 invalid to the extent that the rule purports to embody the provisions of that section, it is no longer operative. The stay of judgments pending appeal is governed by our Rule 305 and its provisions supersede those contained in section 19 of the Forcible Entry and Detainer Act. The right to an appeal is a matter separate and apart from the right to Supersedeas during the pendency of the appeal, and in being required to furnish a bond as a condition to staying the judgment, an appellant in an action in Forcible Entry and Detainer is in no different situation than an appellant who seeks a stay of the judgment in any other type of appeal.

This court, upon application of the defendants, granted Supersedeas conditioned, Inter alia, upon the payment of rental installments as they became due. Amicus curiae Chicago Real Estate Board and plaintiffs argue that this type of 'use and occupancy bonds' in many cases cannot protect the landlord's interests, and the additional coverage provided by a bond of the type contemplated by section 19 of the Forcible Entry and Detainer Act is essential to protect the premises occupied, the landlord and other tenants. In our opinion this type of bond is within the contemplation of Rule 305, and the motions to dismiss the appeals are denied.

Defendants contend the trial court erred in striking their affirmative defenses, thus refusing to permit them to raise the plaintiffs' prior breach of their obligation to maintain the premises as a condition to their right to possession. They argue that the obligation to pay 'full rent' under...

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