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In Re Petition To Annex Certain Territory

DECEMBER 19, 1961.

IN THE MATTER OF A PETITION TO ANNEX CERTAIN TERRITORY TO THE VILLAGE OF METTAWA, LAKE COUNTY, ILLINOIS. JOHN A. MILLINGTON, ET AL., PETITIONERS-APPELLEES,

v.

CENTRAL STANDARD LIFE INSURANCE COMPANY, A CORPORATION, AND CHICAGO TITLE AND TRUST COMPANY, AS TRUSTEE UNDER ITS TRUST NO. 42438, ET AL., OBJECTORS-APPELLANTS.



Appeal from the County Court of Lake County; the Hon. MINARD E. HULSE, Judge, presiding. Affirmed.

SPIVEY, P.J.

The County Court of Lake County entered an order finding an annexation petition for certain territory to the Village of Mettawa, Illinois, conformed to Article VII of the Revised Cities and Villages Act (Chap 24, Sect 7-1 et seq., Ill. Rev Stat 1959). The order further directed the question of annexation be submitted to the corporate authorities for final action.

The annexation petition contained all of the necessary allegations required by Section 7-2 of the Act. As required by Section 7-4 of the Act, the petition was supported by the affidavit of one of the petitioners. Omitting formal matters, the affidavit reads as follows,

"The undersigned, being first duly sworn, on oath deposes and says that she is of legal age and is one of the petitioners in this cause and executes this affidavit on behalf of said petitioners; that the signatures on the attached annexation petition represent a majority of the property owners of record and the owners of record of more than 50% of the land in the territory described in said petition, and also a majority of the electors residing in said territory; that each of the signatures on said petition is the genuine signature of the person it purports to be, and that this affiant has read the foregoing petition and has knowledge of the facts set out therein, and that the same are true in substance and in fact."

Following the filing of the petition, the Judge of the County Court fixed the time for the hearing upon the petition on August 16, 1960. Petitioners gave the required publication notice provided by Section 7-2.

The pleadings are rather voluminous in number and length. In view of errors assigned in this appeal, we feel that no useful purpose would be served by further discussion of them except in so far as they become appropriate in passing upon those assigned errors.

Appellants-Objectors, Central Standard Life Insurance Company and others, assign as error the single proposition that the petition was shown to be invalid for the reasons that, one of the signing petitioners was not in fact a landowner of record; the affidavit of Marjorie Elting was in fact based upon information and belief, rather than first hand knowledge; and the affidavit states conclusions only and not facts.

Appellants' suggestion, that the petition is invalid in that it is signed by one person who is in fact not a landowner, is without merit.

One of the very purposes of the hearing under Section 7-4 is to determine among other things whether or not the petition is signed by the requisite number of property owners of record.

We find no reason to hold an annexation petition invalid merely because it is signed by a person not contemplated by the statute, so long as the validity of the petition is not dependent upon that signature. Appellants do not contend that absent this signature the petition would lack the requisite number of signatures. No authority nor good reason to the contrary has been suggested to this court.

Appellants admit that the affidavit of Marjorie Elting is not defective on its face. However, they contend that her testimony at the hearing to determine the petition's validity when called as an adverse witness by the objectors under Section 60 of the Civil Practice Act, disclosed that her affidavit was not made upon her personal knowledge but upon information and belief.

Section 7-4 of the Act provides in part, "All petitions shall be supported by an affidavit of one or more of the petitioners, or someone on their behalf, that the signatures on the petition represent a majority of the property owners of record and the owners of record of more than 50% of the land in the territory described and a majority of the electors of the territory therein described. Petitions so verified shall be accepted as prima facie evidence of such facts."

As abstracted, a fair condensation of Mrs. Elting's testimony discloses that her affidavit was based upon her knowledge of landowners by discussions with them; that she had not checked with the Title Company; that she was familiar with the territory and knew who voted there; that the surveyor and petitioners' attorney informed her as to the area of the territory; and that based upon the best of her knowledge knowing the people and the area the matters contained in the affidavit were true. She further testified she personally saw some of the petitioners sign the petition and was familiar with the signatures of those persons who did not sign the petition in her presence; that she is not familiar with the signatures of all of the petitioners but as to those persons she personally talked to, all but a few told her they had signed the petition; that as to those few she was told by Jim Heyworth that those named petitioners had signed it; and that as to the genuineness of the signatures, she believes them to be genuine.

Section 7-4 is explicit in its affidavit requirements. No particular form nor the source of knowledge of the affiant is spelled out. Neither does this section require that ...


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