People ex rel. First Nat. Bank of Chicago v. City of North Chicago

• Decision Date: 14 June 1977
• Citation: 510 N.E.2d 577,109 Ill.Dec. 709,158 Ill.App.3d 85
• Parties: , 109 Ill.Dec. 709 The PEOPLE of the State of Illinois, ex rel. The FIRST NATIONAL BANK OF CHICAGO, as trustee under Trust Agreement dated
• Court: United States Appellate Court of Illinois

Page 577

510 N.E.2d 577

158 Ill.App.3d 85, 109 Ill.Dec. 709

The PEOPLE of the State of Illinois, ex rel. The FIRST NATIONAL BANK OF CHICAGO, as trustee under Trust Agreement dated June 14, 1977 and known as Trust No. 22-78092, the First National Bank of Chicago, Edward Foss Wilson and Helen Wilson Williams as cotrustees under Trust Agreement with Helen Wilson Williams dated June 17, 1959 and known as Trust No. 52794, Plaintiffs-Appellees, v. CITY OF NORTH CHICAGO, a Municipal Corporation, Defendant-Appellant.

No. 2-86-0416.

Appellate Court of Illinois Second District.

June 30, 1987.

Sullivan Smith Hauser & Noonan, Ltd., Richard J. Smith, Rosing Applehans & Smith, Ltd., Waukegan, for defendant-appellant.

Snyder Clarke Dalziel & Johnson, Clayton P. Voegtle, Waukegan, for plaintiffs-appellees.

Justice UNVERZAGT delivered the opinion of the court:

Defendant, the city of North Chicago, appeals from the judgment of the circuit court of Lake County denying its motions to strike and dismiss the plaintiff trusts' amended complaint in quo warranto, and granting the plaintiff trusts' motion for summary judgment.

This cause comes to us for the second time. In the first appeal, we considered whether the circuit court of Lake County had erred in denying a "Petition for Leave to File Complaint in Quo Warranto " presented to the court by seven plaintiffs, six trusts (two of them presently plaintiffs here) and a corporation. The plaintiffs sought to have declared invalid two annexations by North Chicago, one of a strip of land which occurred in 1977 and one of a triangular piece of property in 1982. The circuit court of Lake County denied plaintiffs leave to file the complaint in quo warranto. By order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23; 120 Ill.App.3d 1168), we found the owners of two of the tracts identified as B-1 and B-2 on the sketch appended hereto should not have been denied leave to file a complaint in quo warranto since portions of those owners' tracts comprised the triangular parcel annexed by North Chicago. Accordingly, we reversed the judgment of the trial court as to those plaintiffs, affirmed its judgment as to the remaining plaintiffs and remanded the cause for further proceedings.

Plaintiffs here then filed the detailed amended complaint in quo warranto which is at issue here. It is alleged that the strip of land which cuts across tracts B-1 and B-2 (shown on the sketch as Pulaski Drive) was condemned by Lake County in 1976 for a road right-of-way. Further, in 1977, North Chicago annexed this strip in addition to a portion of Fourteenth Street which essentially was the extension to the east of this strip of land. As was also alleged in their initial complaint filed on February 16, 1983, plaintiffs' amended complaint alleged this 1977 annexation was not of contiguous property and was an unlawful strip annexation. It is further alleged that in February 1982, the plaintiffs filed a "Petition to Annex" their property to Waukegan, and on June 4, 1982, Waukegan passed an ordinance annexing those tracts. An error was discovered in the legal description in the ordinance, and on October 18, 1982, Waukegan enacted an amended ordinance to correct the error. Prior to that amendment, however, on July 30, 1982, North Chicago instituted a quo warranto proceeding to challenge the annexation by Waukegan which was alleged to be "still pending" in the circuit court of Lake County under general number 82-MR-210.

We note here that a judgment of ouster was entered against Waukegan by the circuit court of Lake County upon North Chicago's complaint in quo warranto concerning that annexation. North Chicago's complaint alleged generally that the annexation of the approximately 600-acre area by Waukegan unlawfully included portions of the city of North Chicago. Prior to the hearing on the merits, however, the error in the legal description in the annexation ordinance was discovered which created an 82-foot gap between Waukegan and the area to be annexed. North Chicago objected to Waukegan's attempted amendment to the legal description, and its motion for judgment on the pleadings was granted on the grounds that the subject property was not contiguous to Waukegan.

On appeal, this court in an opinion filed July 5, 1983 (People ex rel. City of North Chicago v. City of Waukegan (1983), 116 Ill.App.3d 88, 71 Ill.Dec. 578, 451 N.E.2d 293), reversed and remanded, finding it was error to refuse to permit Waukegan to amend the legal description and that the trial court should have considered the legal description as correctly set forth in the petition for annexation, rather than as shown erroneously in the annexation ordinance. This court held that North Chicago had standing to bring the quo warranto action and remanded the cause for further proceedings. Consequently, the validity of Waukegan's annexation of the property was still at issue at the time plaintiffs here filed their amended complaint.

It is further alleged herein that on August 27, 1982, North Chicago gave notice that it would annex a triangular parcel of property consisting of 32.6 acres encompassing portions of the two tracts owned by the plaintiffs, and that North Chicago passed its ordinance annexing the triangular parcel on September 7, 1982. It is alleged that this annexation was illegal because the triangular parcel was not wholly bounded by one or more municipalities, and that it purported to annex some of the same property already annexed by Waukegan which was then at issue in the quo warranto action filed by North Chicago.

The amended complaint details the injuries caused by these unlawful annexations to the plaintiffs as owners of a portion of the total 600-acre tract which was the subject of the petition for annexation to Waukegan. Plaintiffs' prayed that the court direct North Chicago to show by what warrant it purported to have annexed the property in question and, if no warrant was found, that the court declare the annexations void and enter an order ousting North Chicago.

Thereafter, North Chicago filed a motion to dismiss on the basis the amended complaint "repeats many of the errors which were specifically rejected by the affirmants [sic ] of the trial court in the appellate court decision [our order pursuant to Supreme Court Rule 23 (120 Ill.App.3d 1168, 84 Ill.Dec. 318, 471 N.E.2d 1084) ]." Plaintiffs responded that since North Chicago's motion did not go to the merits of the complaint or their right to bring the action, it properly should be regarded as a motion to strike portions of the complaint as opposed to a motion to dismiss, and, for the reasons set forth in their response, should be denied.

The court heard argument on the motion to dismiss and several days later denied it. On that same date, November 11, 1984, the judge reassigned the matter to another judge, who, in turn, assigned it to the judge who heard the remainder of the cause and who also was then hearing North Chicago's quo warranto challenge to Waukegan's annexation of the entire 600-acre tract.

Plaintiffs herein filed a motion for summary judgment on November 30 alleging, inter alia, that North Chicago's 1977 annexation of the strip of land was, in fact, the annexation of a roadway strip which only met perpendicularly with the boundary of North Chicago and was, therefore, void as a matter of law. A certified copy of the ordinance annexing this roadway strip was filed with the amended complaint. Attached to the motion for summary judgment was a certified copy of a judgment order entered November 24, 1976, in the eminent domain proceeding by Lake County to obtain title to the land for the construction of a roadway (County Highway 78 a/k/a Pulaski Drive). The land described therein was alleged to be the same as the land described in North Chicago's assertedly void roadway strip annexation save for two exceptions detailed in plaintiffs' motion. It was alleged that the subsequent annexation by North Chicago of the triangular parcel on September 7, 1982, pursuant to section 7-1-13 of the Illinois Municipal Code (Ill.Rev.Stat.1981, ch. 24, par. 7-1-13) was void since, as a matter of law, a strip annexation of a roadway cannot be used to support the annexation of other territory not able to be annexed except by virtue of such strip annexation. It was further alleged the annexation of the triangular parcel also was void for the reason that the same territory was included within the territory already annexed by Waukegan on June 4, 1982, which annexation was challenged by North Chicago in a quo warranto proceeding filed by it on July 30, 1982, and which was still then pending. It was alleged that, as a matter of law, it is improper for one municipality to annex territory while a proceeding is pending for the annexation of the same territory.

Thereafter, on December 7, 1984, North Chicago filed a motion for reconsideration of the denial of its motion to strike or dismiss in view of the reassignment of judges. It also filed a "Motion Pursuant to Section 2-619" (Ill.Rev.Stat.1985, ch. 110, par. 2-619) alleging that the plaintiffs' attack on its 1977 annexation of the roadway strip was barred by the relevant statute of limitations (Ill.Rev.Stat.1983, ch. 24, par. 7-1-46) since no challenge to the annexation had been made within the one-year time period and, further, that the one exception to the statute was not applicable because the territory annexed in 1977 had since become contiguous by virtue of the subsequent annexation of the triangular parcel.

Plaintiffs responded to North Chicago's motions, and the court agreed to reconsider the motion to dismiss. It set North Chicago's additional "Motion to Dismiss Pursuant to Section 2-619" and the plaintiffs' motion for summary judgment for hearing. After hearing, the motions to dismiss were taken under advisement, and North Chicago was granted time to respond to the plaintiffs' motion for summary judgment.

North...