Rosewood Corp. v. Fisher

• Decision Date: 15 April 1970
• Docket Number: 42881,42651,Nos. 42433,42882 and 42915,s. 42433
• Citation: 46 Ill.2d 249,263 N.E.2d 833
• Parties: ROSEWOOD CORPORATION et al., Appellees, v. Chester J. FISHER et al., Appellants.
• Court: Illinois Supreme Court

Page 833

263 N.E.2d 833

46 Ill.2d 249

ROSEWOOD CORPORATION et al., Appellees, v. Chester J. FISHER et al., Appellants.

Nos. 42433, 42651, 42881, 42882 and 42915.

Supreme Court of Illinois.

April 15, 1970.

Rehearing Denied Oct. 6, 1970.

William R. Ming, Jr., and Aldus S. Mitchell, Jr., of McCoy, Ming & Black, Thomas B. McNeill, Robert M. Berger, John R. Schmidt and David Frick, of Mayer, Friedlich, Spiess, Tierney, Brown & Platt, Thomas P. Sullivan, John G. Stifler and David C. Roston, of Jenner & Block; Thomas J. Boodell, Jr., and Marshall Patner, of Patner & Karaganis, Chicago, for appellants.

Burton Y. Weitzenfeld, Jacob J. Gordon and John F. McClure, Chicago (Arnstein, Gluck, Weitzenfeld & Minow, Chicago, of counsel), for appellees.

PER CURIAM:

We here consider consolidated appeals, prosecuted from judgments for possession entered by the circuit court of Cook County in favor of plaintiffs, which present issues relating to the construction and constitutional validity of the Forcible Entry and Detainer Act, (Ill.Rev.Stat.1967, ch. 57,) the distinctive and limited purpose of which is to supply a speedy remedy to permit persons entitled to the possession of lands to be restored thereto. Wall v. Goodenough (1855), 16 Ill. 415.

General factual background reveals that all the defendants are members of the Negro race who, at various times during the 1960's, entered into installment contracts for the purchase of residential properties. Some were of new construction; others were older properties. The plaintiffs-sellers, for the most part, were developers and builders of residential areas, and others dealing in the sale of real estate. Generally speaking, it appears that the contract prices for new residences were in the vicinity of $25,000. Monthly installments on such contracts ranged from $140 to $160. Defendants, for the most part, complied with their contracts and accumulated equities in their respective properties until 1968 when a general feeling of dissatisfaction arose among the contract buyers stemming from beliefs that they had been overcharged for their properties, and that unfair advantage and discrimination, made possible by the social and economic problems encountered by members of their race in the purchase of suitable residence properties, had been practiced against them. We do not find, however, nor have we been so advised, that any of the contract purchasers then took any affirmative steps to pursue State remedies for obtaining judicial relief from the allegedly unconscionable contracts. Instead, they appear to have embarked upon a concerted course of self-determination and self-help, for an apparent purpose of securing a modification and renegotiation of their contracts, and stopped making their installment payments. In so doing, they defaulted on their contract obligations and, by the terms of the contracts, exposed themselves to forfeiture of their contract rights and equities and to suits for possession.

Early in 1969 two class actions, predicated on section 3 of the Civil Rights Act of 1866 (42 U.S.C. § 1982; and see: Jones v. Alfred H. Hayer Co. (1968), 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189), were filed in a Federal district court on behalf of contract purchasers of both new and old properties. In those actions it was alleged that the contracts were unlawful and in violation of various constitutional and statutory rights of the purchasers, and the relief requested was that the payment and forfeiture provisions be declared presently unenforcible and that the contracts be rescinded or reformed. We digress to state that these actions are still pending, a panel of three judges having decided on February 11, 1970, at the instance of the contract sellers, to follow a course of abstention until the issues of the present case have been decided.

In May, 1969, the Federal actions withstood motions by the contract sellers to have them dismissed and, commencing at about that point of time, the sellers proceeded with forcible entry and detainer actions, now numbering in the hundreds, in the circuit court of Cook County. And it is from this background that the principal issues in the present appeal have arisen. As noted, all of such actions have concluded with judgments for possession being entered for the plaintiffs. Some of the defendants perfected appeals; some sought to appeal by filing notice but suffered dismissal for failure to file an appeal bond as required by sections 18 and 19 of our Act, (Ill.Rev.Stat.1967, ch. 57, pars. 19, 20,) while still others took no steps toward an appeal. Where appeals were not perfected, evictions reaching mass proportions have followed.

During September, 1969, some 370 contract buyers filed a declaratory judgment action in the circuit court of Cook County for a declaration that certain defenses which were being denied to defendants in the actions for possession could be advanced and litigated, or an alternative declaration that the Forcible Entry and Detainer Act was unconstitutional if it was to be construed as meaning that such defenses could not be advanced and litigated. This action, the caption of which was Alexander et al. v. Hamilton Corporation et al., was dismissed on motion of the defendants thereto and the plaintiffs perfected an appeal to the appellate court. We have since allowed the appeal to be transferred to this court and have caused it to be consolidated with appeals taken from the forcible entry and detainer actions.

The first of the appeals from the judgments for possession to reach this court was in the case of Rosemont Corporation, plaintiff-appellee versus Chester J. Fisher and Julia M. Fisher, defendants-appellants. And although notice of appeal was filed May 23, 1969, it was not until January 21, 1970, that the record on appeal was filed in this court. In addition to constitutional questions, this appeal, as shall subsequently be discussed in greater detail, also raised an issue, involving a construction of the Forcible Entry and Detainer Act, as to whether the trial court erred in refusing to permit certain defenses relied upon by defendants to be pleaded and heard. Thereafter, on January 22, 1970, we permitted the appeal in Lawson Corporation v. Jackson to be transferred to this court from the appellate court and to be consolidated with Fisher, inasmuch as a similar issue relating to defensive pleadings was involved. By subsequent orders continuing up to the time this court convened for its March, 1970, Term, we caused some 156 additional appeals to be consolidated with Fisher either by permitting their transfer from the appellate court, or by granting defendants who had suffered adverse judgments in the trial court to file notices of appeal to this court. In all of these additional cases, as in Fisher and Jackson, there is involved a construction of our Act insofar as it relates to the pleadings of defendants.

Section 2 of the Forcible Entry and Detainer Act provides in pertinent part that a person entitled to possession of lands may maintain an action and be restored to possession: 'Fifty, When a vendee having obtained possession under a written or verbal agreement to purchase lands or tenements, and having failed to comply with this agreement, withholds possession thereof, after demand in writing by the person entitled to such possession.' (Ill.Rev.Stat.1967, ch. 57, par. 2.) Section 5 thereafter provides that a person entitled to possession may initiate an action by filing a complaint in the circuit court of the county where the premises are situated and then continues: 'The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise: * * *.' (Emphasis added.) But it is clear that matters germane to the distinctive purpose of the action may be introduced by a defendant by way of counterclaim or otherwise, inasmuch as section II of the Act directs that: 'The provisions of the Civil Practice Act, and all existing and future amendments of said Act and modifications thereof, and the rules now or hereafter adopted pursuant to said Act, shall apply to all proceedings hereunder in courts, except as otherwise provided in this Act.' Indeed, it was not until the Civil Practice Act was adopted that the words emphasized in the quotation from section 5, appearing above, were added to the section. (Cf. Ill.Rev.Stat.1933, ch. 57, par. 5, with Ill.Rev.Stat.1935, ch. 57, par. 5.) And so far as the distinctive purpose of the Forcible Entry and Detainer Act is concerned it has been accurately and succinctly stated in Bleck v. Cosgrove, 32 Ill.App.2d 267, 272, 177 N.E.2d 647, 649, that: 'Forcible entry and detainer is a summary statutory proceeding to adjudicate rights to possession and is unhampered and unimpeded by questions of title and other collateral matters not directly connected with the question of possession.'

In the Fisher and Jackson cases, whose pleadings are treated upon severally and taken as being representative of those in all the possession cases to which this appeal has been extended, the defendant sought to introduce by way of answer, counterclaim or affirmative defense, various matters going to the validity and enforcibility of the contracts upon which plaintiffs based their claim of a right to possession. Included were allegations that the contracts were unconscionable and unenforcible; that they were usurious; that they were extracted and induced by fraud; and that they were in violation of the civil and various constitutional rights of the defendants. And while a contention is made by plaintiffs that such matters were improperly and insufficiently pleaded, that issue is not open to our consideration. It is well settled that the sufficiency of a pleading may not be attacked for the first time in a court of review. (...