People ex rel. Highsmith v. Jefferson County

• Decision Date: 02 September 1967
• Docket Number: Gen. No. 66--118
• Citation: 87 Ill.App.2d 145,230 N.E.2d 480
• Parties: The PEOPLE of the State of Illinois on the relation of Wilma HIGHSMITH, Plaintiff-Appellant, v. COUNTY OF JEFFERSON et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 480

230 N.E.2d 480

87 Ill.App.2d 145

The PEOPLE of the State of Illinois on the relation of Wilma HIGHSMITH, Plaintiff-Appellant, v. COUNTY OF JEFFERSON et al., Defendants-Appellees.

Gen. No. 66--118.

Appellate Court of Illinois, Fifth District.

Sept. 2, 1967.

Hanagan & Dousman, Mt. Vernon, for appellant.

Frank H. Walker, State's Attorney of Jefferson Co., Mt. Vernon, for appellees.

EBERSPACHER, Justice.

This is an appeal from an order of the Circuit Court of Jefferson County, dismissing, pursuant to defendant's motion, a petition for a writ of mandamus.

Appellant had obtained a judgment in the United States District Court for the Eastern District of Illinois on March 22, 1963, which judgment was not appealed from and became final, and defendants concede that it is not subject to collateral attack in these proceedings.

Appellant then filed her verified petition for writ of mandamus in the Circuit Court of Jefferson County, alleging her monetary judgment in the District Court, its finality, and sought compliance by the County and County Board with the provisions of Ch. 34, Sec. 604, Ill. Rev'dStat.1965, for the payment of the judgment, interest and costs. Defendants then filed their motion to dismiss and an amended motion to dismiss in which they incorporated a copy of the Finding of Fact and Conclusions of Law of the U.S. District Judge entered in the original tort action ¹ and the opinion of the Circuit Court of Appeals in Highsmith v. Aetna Casualty & Surety Company, 7 Cir., 339 F.2d 985. Nothing was offered by way of evidence or affidavit to show that that case, in which these defendants were not parties, had any connection or bearing with the matter at hand. Defendants' motions were not verified. Appellant then filed her verified motion for summary judgment. Defendants responded by motion to strike the motion for summary judgment, and an alternate motion to dismiss appellant's complaint, neither of which was verified, and no affidavits were attached thereto, Appellant then filed a verified motion to strike each of defendants' motions, alleging, verification of the complaint, that verification had not been excused by the court, and the failure of defendants to verify their pleadings; and renewed her motion for summary judgment. At the same time appellant filed a verified alternative motion to strike defendants' motion directed against the motion for summary judgment.

Upon all motions being heard, the trial court sustained defendants' alternate motion to dismiss, and dismissed the petition for writ of mandamus, 'after considering the pleadings and arguments'. The sustained alternative motion to dismiss alleged that 'it appears from the pleadings that the County of Jefferson was not liable in tort to Wilma Highsmith on the alleged cause of action', that the nature of the original tort action was not changed by recovering a judgment on it and that the trial court 'is not precluded from ascertaining whether the claim is really one of such nature that the court is authorized to enforce it by mandamus'; and that the original tort action did not constitute a corporate debt under Article 9, Section 9 of the Illinois Constitution, and that the District Court judgment had the same standing as the original cause of action. At the most these were only legal conclusions of the pleader; and plaintiff's verified petition alleged nothing from which it could be assumed or inferred that plaintiff's judgment in the U.S. District Court was based on a tort claim.

Here appellant contends that since their petition was verified, appellees' unverified motions (each of them) should have been stricken. Sec. 35(1) of the Civil Practice Act (Ch. 110, Sec. 35(1), Ill. Rev'dStat.1965) provides:

'* * * If any pleading is so verified, every subsequent pleading must also be verified, unless the verification is is excused by the court.'

The requisite of affidavits, in opposition to a motion for summary judgment, are set forth in Supreme Court Rule 15, (Ch. 110, Sec. 101.15, Ill. Rev'dStat.1965), and although Sec. 57 of the Practice Act (Ch. 110, Sec. 57, Ill. Rev'dStat.1965) permits either a plaintiff or defendant to move for a summary judgment, with or without supporting affidavits, we know of no authority for opposing a verified motion for summary judgment on a verified complaint, by any pleading that is neither verified or supported by affidavits, and cannot condone such practice. Affidavits opposing the entry of summary judgment, which were based on information and belief, and which stated no facts but contained conclusions have been held inadequate, and an affidavit of merits which denied only in general terms, has been held insufficient. I.L.P. Judgments, Sec. 75. Here appellees filed no affidavits, alleged no facts, but only the conclusions of the pleaders as to the law. Appellees have not, previous to their argument in this Court, pleaded any factual defense to the petition nor to the motion for summary judgment. They have made no proper record of any defense to either the petition or the motion for summary judgment. Each of appellees' motions admitted each and every well pleaded allegation of plaintiff's petition.

A motion for summary judgment is the procedural equivalent of a trial. The motion for summary judgment searches the record, and, where made by plaintiff, it admits every material averment in the answer or affidavit of defense and reopens the question of the sufficiency of the complaint. Gliwa v. Washington Polish Loan & Building Ass'n, 310 Ill.App. 465, 34 N.E.2d 736. However, only such facts as are well pleaded as a defense or counterclaim are to be taken as admitted, and not defendants' conclusions therefrom. Tansey v. Robinson, 24 Ill.App.2d 227, 164 N.E.2d 272. Summary judgment should be granted when no genuine issue as to any material fact is presented. Supreme Court Rule 15, Bryant v. Metropolitan Motorists Ass'n, 23 Ill.App.2d 261, 161 N.E.2d 879; Allen v. Meyer, 14 Ill.2d 284, 152 N.E.2d 576; and a mere denial is not sufficient to raise a triable issue as against uncontroverted evidentiary matter under Section 57(3) of the Practice Act.

Appellees' motions purported to call upon the court to decide the law applicable to a particular fact situation, without properly presenting any facts to contradict those alleged in plaintiff's verified petition. The alternate motion to dismiss, which the court granted, purported to raise questions of law only, but the question of applicable law could only be determined and applied to a particular fact situation, and the only fact situation that was properly before the court consisted of those facts alleged in plaintiff's verified petition. Although appellant, both in the trial court and in this Court, argued the insufficiency of each of the appellees' motions, appellees, both below and here, have ignored this argument, making no argument or brief on any of the pleading questions. Their alternate motion to dismiss purports to be in the nature of a motion filed under Sec. 48 of The Practice Act, but that section required the support of the motion by affidavits 'If the grounds do not appear on the face of the pleading attacked'. Here the pleading attacked is the verified petition, which states a good cause of action; and the opposite party (defendants here) have presented no affidavits or other proof denying the facts alleged or establishing facts alleviating any grounds of defect, so that the Court could hear and determine the factual situation, as is provided for in (3) of Sec. 48. (Ch. 110, Sec. 48, Ill. Rev'dStat.1965).

Throughout the years and centuries of common and code law, there have evolved certain rules in the conduct of litigation. These rules, if obeyed, are designed to result in the orderly administration of justice. If, contrary to The Practice Act and Supreme Court Rules, parties are allowed to inject unverified matters, not included in the abstract, without the filing of a supplemental abstract, and assume facts which have not been properly presented, and if they are allowed to controvert verified pleadings by their conclusions and the filing of unverified allegations, there would be no point in the courts' having any rules.

It has been suggested, since rights of the public and public funds are here involved, that this cause should not be determined on the technicalities of The Civil Practice Act; defendants have not seen fit, in their brief, to answer any of those points. Instead, they seek affirmance of the trial court's dismissal of the complaint on the merits, although they have failed to properly present a factual situation other than that presented by plaintiff's verified complaint, either in the trial court or in this Court. They here contend that the plaintiff's judgment in the U.S. District Court was unenforcible because on the date on which plaintiff's claim arose, December 24, 1958, the county had governmental immunity, that date being previous to the abolishment of the doctrine of governmental immunity by the decision in Molitor v. Kaneland Community Unit School District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469. They completely overlook the fact that the District Court judgment was based on the stipulated fact that the Defendant County of Jefferson was insured at the time of plaintiff's injury, and entered such a finding of fact, and that the judgment of the District Court entered on such finding of fact and conclusions of law was never appealed from; although the defendant county filed a post trial motion in that Court which defendant made a part of this record complaining of the inadequacy of the proof of insurance coverage in that case, which was denied for failure to comply with rules of that Court, on October 18, 1963. In that motion this defendant conceded that judgment on the tort claim could properly be entered where there was insurance coverage. In the absence of appeal that judgment became final and...