Pipitone v. Mandala

Decision Date16 January 1962
Docket NumberGen. No. 11535
Citation33 Ill.App.2d 461,180 N.E.2d 33
PartiesAngeline PIPITONE, Appellee, v. Dominic MANDALA, Appellant.
CourtUnited States Appellate Court of Illinois

Sam J. Cannariato, Rockford, for Appellant.

Maynard & Maynard, Rockford, for appellee.

SMITH, Justice.

Plaintiff's action was for a declaratory judgment construing a lease, and for an injunction should the court adopt her interpretation. The court did so, the injunction was granted, and defendant appeals. We are not asked to decide whether the court below correctly construed the lease, instead, whether the court should have construed it at all. Reversal is urged on grounds extraneous to the lease; (a) that an estoppel by verdict barred plaintiff from the relief sought and obtained, and (b) that in any event she waived her interpretation by the acceptance of rentals.

We can put this in tighter perspective. Defendant's answer, while admitting the existence of the lease, denies practically every paragraph of the complaint, and as to each, he says:

'The facts alleged * * * were heretofore litigated in County Court Action No. 32148; that in said latter proceeding, the court ruled that the facts therein established did not uphold the right to forcible entry and detainer action; that judgment was, therefore, rendered in favor of the defendant in this cause, and against the plaintiff;'

Plaintiff did not reply to this affirmative matter. She did, however, deny by reply the second defense that she 'accepted rentals without objection or notice, and that such acceptance of rentals constitutes the full and complete waiver, * * * of all charges made in * * * [the] complaint'.

With regard to the first defense of estoppel we are not favored by any showing in the abstract of precisely the course this prior litigation took except that defendant was found 'not guilty'. Plaintiff contends that this dearth of abstracted material permits us to ignore the point. Richman Chemical Company v. Lowenthal, 16 Ill.App.2d 568, 571, 149 N.E.2d 351. She argues that to properly invoke the doctrine there must be, at the very least, a concrete showing that a material issue is being determined anew. Skidmore v. Johnson, 334 Ill.App. 347, 79 N.E.2d 762. Plaintiff says that since we cannot tell, the point need not be considered. Chicago Historical Society v. Paschen, 9 Ill.2d 378, 137 N.E.2d 832. Defendant, on the other hand, points to plaintiff's 'admission' of the affirmative material just quoted, which he says is a sufficient display in the abstract to invoke the doctrine. Plaintiff on her part parries this characterization by saying that silence may admit facts but it does not admit legal conclusions. Plaintiff is right if these defensive allegations are 'conclusions of law', Crerar Clinch Coal Company v. Board of Education, 13 Ill.App.2d 208, 141 N.E.2d 393, and defendant is right if they can be labeled 'statements of fact', Hudson v. Mandaback, 22 Ill.App.2d 296, 160 N.E.2d 715; Ill.Rev.Stat.1959, Chap. 110, Sec. 32 and 40(2). We eschew a determination as to who is right on this abstruse point. We preper to grapple with the substantive issue--if we can get there. Fortunately we think we can side-track this point by asking this question: Does a forcible entry and detainer action between A and B ever decide matters other than the right to immediate possession?

An action for forcible entry and detainer is purely possessory. Saxmann v. Allen, 410 Ill. 31, 101 N.E.2d 69. It is governed by statute (Ill.Rev.Stat.1959, Chap. 57, Sec. 1 et seq.) and the immediate right to possession is all that is involved. A court entertaining such an action is therefore a court of special and limited jurisdiction without equitable powers. Menagh v. Hill, 12 Ill.App.2d 80, 138 N.E.2d 707. Being purely possessory, title cannot be tried. This is true even though title documents are received in evidence. Urbach v. Green, 15 Ill.App.2d 186, 145 N.E.2d 808. Since the judgment cannot affect title, it is not determined, even though a question of title may be involved. Leslie v. Wyant, 293 Ill.App. 626, 12 N.E.2d 340.

What then is the effect of plaintiff admitting [if she does] that the facts alleged in her complaint 'were heretofore litigated' in the forcible entry and detainer action? Does this happenstance impinge on the present action? The answer is no. Defendant does not say that there has been a prior construction of the lease in his favor. What he says is that the facts litigated 'do not uphold the right to forcible entry and detainer action'. This is something quite apart from saying that such facts do not uphold the right to declaratory and injunctive relief. The County Court if it did construe the lease was construing it solely to determine if the plaintiff should be put into immediate possession. For all we know, the court may have found that defendant had indeed violated the terms of the lease--hence adopted plaintiff's interpretation--but even so found that such violation did not put defendant out. Text in one context is not always text for the next. Seno v. Franke, 16 Ill.App.2d 39, 147 N.E.2d 469.

We have thus answered our question. Serious questions of interpretation can no more be tried in a forcible entry and detainer action than questions of title, at least to the extent that the parties are bound forevermore. For the doctrine of estoppel by verdict to operate there must not only have been a finding of a specific fact in the former judgment material and controlling in both cases, but to act as a bar, it must have been so in issue that it was necessarily determined by the court rendering that judgment. 18 I.L.P., Estoppel § 4 page 67, Estoppel, Sec. 3 in Hoffman v. Hoffman, 330 Ill. 413, 418, 161 N.E. 723. In Seno, we find this statement: '* * * the judgment or ruling in the former suit concludes only those matters actually in issue and upon which the determination rested.' True, the facts may have been 'heretofore litigated', but that is not...

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    • United States Appellate Court of Illinois
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    ... ... See People ex rel. Scott v. Police Hall of Fame, Inc. (1978), 60 Ill.App.3d 331, 344, 17 Ill.Dec. 519, 529, 376 N.E.2d 665, 675; Pipitone v. Mandala (1962), 33 Ill.App.2d 461, 465, 180 N.E.2d 33, 35 ...         In Fred Olson Motor Service v. Container Corp. a truck driver ... ...
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    ... ... (See also Wright v. McGee (1st Dist. 1970), 131 Ill.App.2d 522, 526, 264 N.E.2d 882; Pipitone v. Mandala (2nd Dist. 1962), 33 Ill.App.2d 461, 467, 180 N.E.2d 33.) In our opinion plaintiff has waived any argument as to the validity of the ... ...
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    • 16 Febrero 1965
    ... ... A point made but not argued may be considered waived. Green v. Waller, 17 Ill.2d 392, 402, 161 N.E.2d 858; Pipitone v. Mandala, 33 Ill.App.2d 461, 467, 180 N.E.2d 33; River v. Atlantic & Pacific Tea Co., 31 Ill.App.2d 232, 239, 175 N.E.2d 593 (4th Dist.1961) ... ...
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    • 29 Septiembre 1983
    ... ... v. Addison Industrial ... [74 Ill.Dec. 386] Park, Inc. (1979), 70 Ill.App.3d 59, 26 Ill.Dec. 1, 387 N.E.2d 831; Pipitone v. Mandala (1962), 33 Ill.App.2d 461, 180 N.E.2d 33.) In order for a former judgment to operate as an estoppel, there must have been a finding of a ... ...
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