Porter v. Miller

• Decision Date: 18 February 1960
• Docket Number: Gen. No. 10264
• Citation: 24 Ill.App.2d 424,164 N.E.2d 601
• Parties: George P. PORTER, as guardian of the estate of Patrick A. Porter, a minor, Plaintiff-Appellant, v. Nina E. MILLER and Emma Alms, Defendants. Emma Alms, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 601

164 N.E.2d 601

24 Ill.App.2d 424

George P. PORTER, as guardian of the estate of Patrick A Porter, a minor, Plaintiff-Appellant, v. Nina E. MILLER and Emma Alms, Defendants Emma Alms, Defendant-Appellee.

Gen. No. 10264.

Appellate Court of Illinois, Third District.

Feb. 18, 1960.

Philip C. Zimmerly, Champaign, for appellant.

Reno & O'Byrne, Champaign, for appellee.

ROETH, Justice.

Suit was brought by plaintiff George P. Porter, as guardian of Patrick A. Porter, a minor, against Nina Miller and Emma Alms for injuries sustained by the minor, who was burned in a fire started by Miller on land allegedly owned by Alms. Subsequently the suit was dismissed as to Miller with prejudice on motion of the plaintiff. The complaint as against Alms alleged that she was the owner of a certain vacant lot of land within the city limits of Champaign, Illinois, and adjacent to a home wherein Miller resided. That on April 18, 1957, Miller started a fire on the lot owned by Alms next to the home in which she resided, burning trash that she had taken out of her home; that she left the fire unattended and plaintiff was injured when his clothing caught fire while he was playing around the same. The complaint alleged that the lot was not fenced in and easily accessible and visible from the street near it and that Alms knew this and knew that children played on and were around the lot, and that she knew or should have known that the fire was on her lot and that it was dangerous. The complaint was not verified. Alms filed a verified answer in which she in substance denied ownership of the lot on April 18, 1957, and denied all material allegations of the complaint. As a part of her answer she set up a special defense in which she alleged in substance that on July 19, 1955, she and her husband had executed a contract of sale to one Kermit Nogle for the vacant lot; that they had also executed a warranty deed for said lot which was placed in escrow; that on July 19, 1955, she and her husband delivered possession of said lot to Kermit Nogle and that he accepted and took possession of the same; that said Kermit Nogle remained in possession of the lot until July 12, 1957; that Kermit Nogle paid all general taxes and special assessments levied against said lot from July 19, 1955, through July 12, 1957; that Kermit Nogle exercised complete possession and dominion over said lot, and that neither she nor her husband from July 19, 1955, to July 12, 1957, exercised any control, management, maintenance, operation or possession over said lot; that on April 18, 1957 (the date of plaintiff's injury) neither she nor her husband were in any way in possession of, nor were they exercising any control, management, operation or maintenance of said lot, nor did they have any right to do so. A copy of the contract of sale was attached to the answer.

Plaintiff then filed a reply to the special defense in which he either denied the allegations aforesaid or alleged that he had no personal knowledge of said allegations and 'therefore for the purposes of pleading denies the same'. (Emphasis supplied.) There is attached to this reply an affidavit by George P. Porter in which he swears that he has read the foregoing reply and that 'he is clear with the matter and things therein set forth, and that they are true as alleged'. Defendant Alms then filed a verified motion for summary judgment and attached affidavits of herself and the purchaser, along with a copy of the contract. The contract provided for the sale of two lots for a total price of $8,700, $500 to be paid at the time of the contract, July 19, 1955, and the balance in two installments, one of $4,000 on October 15, 1955, and the balance on October 15, 1956. From all that appears, the down payment and the first installment were paid, and the deed to the lot not involved herein was delivered to the buyer. The deed to the lot involved was, at the time of the contract, placed in escrow with directions to deliver the deed on fulfillment of the contract. The contract provided that possession of the lots would be delivered to the buyer immediately. From the notations appearing on the back of the contract, it appears that interest payments were made to October 15, 1956. A notation on the contract, signed by the parties, extended the time of payment to October 15, 1957, by mutual agreement. This is not dated and nothing is alleged as to the time this extension was granted. A further note on the contract declares the same null and void as of July 12, 1957. The affidavits of defendant and he purchaser allege the execution of the contract on July 15, 1955, and that the deed to the lot in question was placed in escrow. It further alleged that the contract was still in effect at the time of plaintiff's injuries, and that the deed was, at that time, still in escrow. It is also stated that possession, dominion and control of the real estate was transferred to the purchaser on July 19, 1955, subject only to the terms of the agreement and that defendant had not exercised any rights of possession, dominion and control of any kind whatsoever in connection with the real estate in question from July, 1955, to July, 1957. The purchaser in his affidavit stated he was in exclusive possession, dominion and control of the real estate at the time of the accident and that...