Scheuer v. Johns-Manville Products Corp., Gen. No. 10044.

Citation70 N.E.2d 876,330 Ill.App. 250
Decision Date03 February 1947
Docket NumberGen. No. 10044.
PartiesSCHEUER et al. v. JOHNS-MANVILLE PRODUCTS CORPORATION et al.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Lake County; Wm. L. Pierce, Judge.

Petition by L. J. Scheuer and others for the annexation to the City of Waukegan of territory contiguous to the city. Objections were filed by Johns-Manville Products Corporation and others. From an order of the circuit court quashing judgment and reversing order of County Court, objectors appeal.

Reversed and remanded with directions.Heth, Lister & Flynn, of Chicago, and Edwards & Block and Runyard & Behanna, all of Waukegan, for appellants.

J. E. Bairstow, of Waukegan, for appellees.

WOLFE, Presiding Justice.

On October 11, 1941, there was filed in the county court of Lake County a petition for the annexation to the City of Waukegan territory contiguous to the city. Said petition was signed by ninety-four persons. They stated that they are a majority of the owners of record, of the land and also a majority of the electors residing in the territory sought to be annexed. Objections to the petition were filed by Johns-Manville Products Corporation, North Waukegan Harbor & Dock Association, Hugh T. Birch and Arthur T. Galt, all owners of land in the territory. Among other objections, Birch and Galt specified that they are informed and believe, and upon such information and belief, state the fact to be, that the petitioners are not bona fide owners of any property within the territory.

The territory in question comprises approximately 500 acres. About ten acres thereof had been, in years past before the petition was filed, subdivided into lots and blocks by three surveys, platted and named Armstead Addition and the Lake Shore Subdivisions. The petitioners alleged that they are the owners of ninety-four lots in the addition and the subdivisions. It was contended and claimed in the county court by the objectors on the hearing on the petition that the petitioners became the owners of their lots very shortly before the petition was filed; that the deeds delivered to them for their respective lots were without consideration, and given to the petitioner to qualify them to sign the petition to carry out a conspiracy of the Corporation Counsel of the City of Waukegan, and other persons interested in obtaining the annexation. The question whether the petitioners are a majority of the bona fide owners of land in the territory, was contested at the hearing on the petition in the county court.

The hearing on the petition in the county court was commenced on December 2, 1941, and the next day the petitioners concluded their proof introduced to maintain the petition. On December 4, 1941, the objector, Johns-Manville Products Corporation, filed its complaint in the circuit court of Lake County for an injunction to restrain the annexation proceeding in the county court. The hearing in the county court was thereupon suspended.

On December 5, 1941, the Circuit Court refused to grant a temporary injunction as prayed in the complaint of Johns-Manville Products Corporation. On December 17, 1941, the petitioners made a motion in the county court for final judgment on the petition on their proof, making a prima facie case in favor of granting the prayer of the petition.

The foundation of the motion for a final judgment in the county court is that the objector, Johns-Manville Products Corporation, with the acquiescence of the other objectors, filed the suit for injunction and the circuit court, by its decision, refused to order the writ for a temporary injunction. The grounds which the petitioners made and urged for their motion may be summarized as follows: By filing the complaint the objectors, (1) admitted that the petition conformed to the law and that the facts therein stated are sufficient to warrant an order of the county court certifying to the City Council of the City of Waukegan, the question of the annexation of the territory described in the petition; (2) that the objectors had inconsistent remedies, and when they elected to proceed under their complaint for an injunction, they were barred from further proceeding in the county court. The motion of the petitioners for final judgment was denied, and the hearing on the petition was continued in the county court. The objectors introduced evidence, and claimed that the petitioners were not bona fide owners of the territory sought to be annexed when the petition was filed.

There is a final order by the county court which declares and finds, upon hearing of testimony of witnesses produced and examined in open court, ‘That the subject petition for annexation filed herein on October 11, 1941, is not signed by a majority of the bona fide property owners in the territory sought to be annexed, is not the voluntary, independent, expression of a majority of the property owners in such territory, and is legally insufficient and invalid under the statute.’ The order dismisses the petition at petitioners' cost.

After the entry of the final order by the county court, the petitioners filed a petition in the circuit court of Lake county for the common law writ of certiorari, and the record of the county court, with the evidence heard in said court on the petition, was certified to the circuit court on the return of the writ.

The circuit judge in a written opinion, which appears in the record, concluded that the Civil Practice Act enlarges the scope of review permitted under the common law writ of certiorari as defined and limited by decisions of our Supreme Court before the enactment of the act. The circuit judge found, ‘there is no evidence in the record to support the findings of the County Court or its judgment,’ and further, held that the county court improperly admitted evidence of the objectors in the county court and improperly interpreted and applied the law, wherefore the county court, ‘exceeded its jurisdiction in dismissing the petition,’ for annexation and ‘did not proceed according to law.'

The final order of the circuit court after reciting, ‘to the end that this controversy may be finally determined according to the substantive rights of the parties, pursuant to the power vested in this court by Section 4 and Section 50 of the Civil Practice Act [Ill.Rev.Stat.1945, c. 110, §§ 128, 174], the Court finds; makes extensive findings of fact and law as to the validity and legal sufficiency of the annexation petition; that the prayer of the petition should have been granted by the County Court.’ Denies the objectors' motion to quash the writ of certiorari and dismissed the petition therefor. Orders that, ‘The record of the judgment of the Court Court is quashed and said order by the County Court is reversed, set aside and wholly for naught esteemed.'

It is first contended here by the petitioners (appellees herein) that the county court did not proceed according to law for the reasons which they assigned as grounds to their motion for final judgment in the county court, which will be now considered.

The procedure for annexation of territory to a city is purely statutory. Original jurisdiction under such a procedure is by statute granted to the county courts. Circuit courts do not have concurrent jurisdiction with the county courts of the matter of annexation of territory to a city. The circuit courts may acquire jurisdiction of such a proceeding by its use of the common law writ of certiorari, and not otherwise. The circuit court of Lake county was without power to determine the legality of the petition for annexation as a matter of original jurisdiction under the complaint for an injunction filed in that court. Consequently, the circuit court could not pass on the legality of the petition under the complaint, nor was there an election of inconsistent remedies by the objectors as the statute does not grant two remedies applicable to the question whether territory should, or should not, be annexed to a city. Linnertz v. Dorway, 246 Ill. 485, 92 N.E. 938;Griesa v. Mutual L. Ins. Co., 8 Cir., 169 F. 509; 28 C.J.S., Election of Remedies, § 30.

The statute governing the proceedure for the annexation of territory to a city does not grant a statutory writ of certiorari with the provision that the circuit courts shall have power, under the writ, to determine all questions of law and fact determined by the county court. Such a provision, for example, does appear in the Retailers' Occupation Act, Workmen's Compensation Act and The Unemployment Compensation Act. The Civil Practice Act was enacted in 1933, the Retailers' Occupation Act in 1933, and The Unemployment Compensation Act in 1937. It is further to be observed that the annexation act does not provide for appeal, nor writ of error, and the only method of review is by the common law writ of certiorari. Superior Coal Co. v. O'Brien, 383 Ill. 394, 50 N.E.2d 453.

It is not contended by and party to this appeal that the County Court of Lake County did not have jurisdiction of the parties and the subject matter of the proceeding for the annexation. It is not contended that the record of the County Court does not show findings...

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  • Mapped out of local democracy.
    • United States
    • Stanford Law Review Vol. 62 No. 4, April - April 2010
    • 1 Abril 2010
    ...also People ex rel. Lake Bluff v. City of N. Chicago, 586 N.E.2d 802, 806-07 (Ill. App. Ct. 1992); Scheuer v. Johns-Manville Prod. Corp., 70 N.E.2d 876, 880 (Ill. App. Ct. 1947); Mayor and Council of Rockville v. Brookeville Tpk. Const. Co., 228 A.2d 263, 270 (Md. (63.) See, e.g., Bozung v.......

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