People v. Krueger
| Decision Date | 02 June 1986 |
| Docket Number | No. 3-85-0555,3-85-0555 |
| Citation | 495 N.E.2d 993,146 Ill.App.3d 530,99 Ill.Dec. 258 |
| Parties | , 99 Ill.Dec. 258 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard KRUEGER, Defendant, and Andrew J. Schneider and Geraldine R. Schneider, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Geraldine R. Schneider, pro se.
Marc Bernabei, State's Atty., Princeton, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, Scott Madson, Asst. State's Atty., Princeton, for plaintiff-appellee.
Defendant appeals a default judgment entered by the circuit court of Bureau County. The court found that defendants were in violation of a local zoning ordinance, ordered defendants to comply with the ordinance, and directed the sheriff of Bureau County to abate the violation in the event that defendants failed to comply with the ordinance. The facts follow.
On December 18, 1981, the County of Bureau (County) filed an amended complaint alleging that defendants, Andrew J. Schneider and Geraldine R. Schneider, as owners or possessors of certain property situated in the County, were in violation of a County zoning ordinance in that defendants stored tractor trailers on that property. The County requested that a monetary penalty be assessed against defendants.
Defendants, through an attorney, filed a notice of special appearance. On June 4, 1982, defendants filed three motions to dismiss, arguing that the amended complaint should be dismissed because: (1) defendants have no control or possession over the relevant property; (2) defendants' use of the property constitutes a valid nonconforming preexisting use, and (3) first amendment protections prohibit enforcement of the ordinance against defendants. Although a hearing on the motions was scheduled, the record does not reveal whether the court acted upon the motions.
Following withdrawal of defendants' attorney and substitution of a new judge, the court on July 23, 1985, granted leave to the County to file a second amended complaint. The second amended complaint contained three counts. All three counts alleged that defendants were in violation of a County zoning ordinance. Count I requested that a monetary penalty be assessed against defendants; count II requested that an injunction be issued ordering defendants to comply with the ordinance; count III requested an order directing the sheriff of Bureau County to abate the violation. Defendants were ordered to respond to the complaint within 28 days.
On August 23, 1985, a nearly incomprehensible letter from defendant Andrew Schneider was received by the court.
On August 23, 1985, the court entered an order finding that defendants failed to file responsive pleadings and were therefore in default. The matter was continued to August 30, 1985, and notice was sent to defendants informing them of the continuance.
On August 28, 1985, a letter from defendant Geraldine Schneider was received by the court. In her letter she stated that the letter from her husband served as an answer. She also challenged the jurisdiction of the court and the propriety of enforcing the zoning ordinance against her and her husband.
On August 30, 1985, another nearly incomprehensible letter from Andrew Schneider was received by the court.
On August 30, 1985, a hearing was held at which defendants failed to appear. The court took judicial notice of records kept by the clerk of Bureau County indicating that defendants held title to the subject property. The County also presented evidence showing that defendants possessed the subject property. The County presented evidence showing that defendants' use of the subject property violated applicable zoning ordinances. The subject property was classified as R2--a classification for single family residential use. Defendants' use of the property violated the zoning classification in that defendants kept approximately 11 to 14 trailers on the property with writing on the sides of the trailers. Arguing that a monetary penalty would be insufficient to compel compliance with the ordinance, the County sought leave to withdraw count I of the second amended complaint.
On the same date as the hearing, the court entered a written order finding defendants in violation of the ordinance. The court granted the State's request to withdraw count I of the second amended complaint. The court ordered defendants to achieve compliance with the ordinance by removing the trailers and signs by 6 p.m. September 6, 1985. The court authorized and directed the sheriff of Bureau County to abate the violation in the event that defendants failed to comply with the court's order.
A notice of appeal was filed September 5, 1985. Although the notice stated that the appeal was taken by both Andrew and Geraldine Schneider, only Geraldine signed the notice.
On September 6, 1985, the court received another nearly incomprehensible letter from Andrew. Another such letter was filed on September 17, 1985.
Although Geraldine has filed a brief in this court, Andrew has failed to do so. In her brief Geraldine argues that: (1) the action below was not taken against her properly since the subject property was owned by the Wayside Bible Church; (2) the use made of the subject property by the Wayside Bible Church and defendants constitutes a valid nonconforming preexisting use. Geraldine seeks reversal of the default judgment and remandment for a new trial. The County argues that the issues raised by Geraldine are not properly before this court and are nevertheless without merit. Before reaching the arguments of the parties, we must first address two preliminary matters.
First, although the record fails to reveal whether the court ruled upon defendants' motions to dismiss, the judgment below is nonetheless final for purposes of appeal. Rule 2.1(j) of the Rules of Practice of the Circuit Court for the 13th Judicial Circuit provides that "the burden of obtaining an allotment for hearing in a civil case is on the party making the motion." The rule provides further that if a hearing is not obtained by the moving party within 90 days from the filing date, the motion may be deemed withdrawn and the relief requested therein may be denied. Therefore, we must assume that defendants' motions were deemed withdrawn and the relief requested therein was denied.
Second, although the notice of appeal states that an appeal has been taken on behalf of both Andrew and Geraldine Schneider, only Geraldine has signed the notice of appeal. Rule 303(c)(3) (103 Ill.2d R. 303(c)(3)) provides that the notice of appeal "shall contain the signature and address of each appellant or his attorney." Because the notice of appeal was not signed by Andrew, w...
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