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County of Cook v. Triangle Sign Co.

JANUARY 30, 1963.

COUNTY OF COOK, A BODY POLITIC AND CORPORATE, PLAINTIFF-APPELLEE,

v.

TRIANGLE SIGN COMPANY, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLANT, FRED DAHLMAN, PETITIONING INTERVENOR-APPELLANT.



Appeal from the Superior Court of Cook County; the Hon. SAMUEL B. EPSTEIN, Chancellor, presiding. Affirmed in part; appeals dismissed in part.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

These appeals are taken from an order of the Superior Court of Cook County directing the Triangle Sign Company, Inc. to remove six advertising devices and denying Fred Dahlman, the petitioning intervenor, leave to intervene in the proceedings.

The procedure in this case is unique; consequently we are stating in detail various orders entered therein. At the time the suit was commenced there were in existence two corporations, one, the Triangle Sign Company, Inc. (the defendant-appellant, hereinafter referred to as "Triangle"), and the other, the Triangle Outdoor Advertising Company (hereinafter referred to as "Outdoor"). Both corporations had the same officers and directors. Outdoor had entered into certain leases with various land owners, including Dahlman, by which it acquired the right to erect and maintain advertising signboards at a place adjacent to and within 300 feet of certain expressways in Cook County, Illinois. In accordance with this lease from Dahlman advertising boards approximately 56 x 20 feet were erected on the west side of Calumet Expressway less than 300 feet from the right of way, without having first obtained a permit from Cook County. At the time there was in full force and effect section 17 of the zoning ordinance of Cook County which provided that no advertising device the face of which is visible from the highway shall be erected within 300 feet of the right of way line of such limited access highway, and the ordinance further defined a limited access highway as one to which the owners and abutting property owners have no legal right of access except at such points as are designated by the proper public authority. The portion of Calumet Expressway adjacent to which these signs were erected fell within that definition. Sections 8.12, 9.10 and 10.17 of that ordinance forbade the erection or relocation of any advertising device within 300 feet of the right of way line of a limited access highway.

On May 9, 1960 the County of Cook filed a complaint setting up the ordinance and alleging that Triangle was engaged in the business of erecting and maintaining billboard signs and other advertising devices and did erect the signs in question in violation of the zoning ordinance, and prayed that it be ordered and directed to remove such advertising devices and that a temporary injunction be issued restraining it, pending a disposition of the cause, from erecting any advertising device without first obtaining a permit therefor. The complaint also contained a prayer for general relief. On July 6, 1960 Triangle filed an appearance. On July 15, 1960 it filed an answer admitting that it was in the business of erecting and maintaining billboard signs, and stating that it "did erect billboards as set forth in the complaint herein, over a period of years" and that at no time had complaint been made by the County. The answer further set up that Triangle has entered into yearly contracts for advertising media which have been placed on such billboards, and it prayed that if the billboards must be removed Triangle be given a reasonable time within which to comply.

On July 27, 1960 the County filed a motion asking the court to enter a decree in favor of the County because the answer of Triangle was substantially insufficient in law, and alleging that the answer admits all of the allegations set forth in the complaint and sets out no facts alleging any defense. On July 28, 1960 the court entered an order directing the clerk of the court to issue a writ of injunction against Triangle directing it to remove the signs within 90 days from the date of the order, and on the same day a mandatory writ of injunction was issued out of the court directed to Triangle ordering it to remove the designated signs within 90 days from July 28, 1960. The writ of injunction was served upon Triangle on August 2nd.

On December 1, 1960 the County filed a petition for a rule to show cause alleging that Triangle had not removed the signs. This petition was supported by affidavits. A rule to show cause was entered on December 12, 1960 ordering Triangle to appear before the court on December 27, 1960 to show cause as to why it should not be adjudged guilty of contempt. On January 26, 1961 an order permitting substitution of attorneys for Triangle was entered by the court, and on the same day the return of the rule to show cause was continued generally.

On June 23, 1961 Triangle filed an answer to the rule to show cause, in which it was set up that Outdoor and Triangle are separate legal entities, that Outdoor was not made a party nor served in the proceedings, and that Outdoor controls the premises and the advertising devices. There are also allegations attacking the constitutionality of the ordinance. Filed with that answer was an affidavit executed by one Henry Kanter, in which it is stated that he is the secretary of both Triangle and Outdoor; that both companies do business at 448 North Orleans Street, Chicago; that the advertising devices set out in the complaint were not erected, set up or owned by Triangle; that they were the exclusive property of Outdoor; that the signs were located on property owned by persons to whom Outdoor pays rental under a lease; that the lease provides, among other things, that in the event Outdoor shall be required to remove the signs because they are deemed to have been illegally erected the lessors on ten days' notice shall refund to Outdoor a pro rata share of the rent paid; and that Triangle is not a party to the lease or connected therewith in any way.

The County on July 5, 1961 filed a motion to strike Triangle's answer to the rule to show cause, hearing on which motion was continued to July 17, 1961, when the court entered an order striking the answer to the rule to show cause. On the same day, without leave of court, Triangle filed an amended answer to the rule to show cause, which realleged the matters contained in the original answer, and further stated that since no hearing had been moved by the County on the rule to show cause until June 9, 1961 Triangle believed that its conduct was no longer regarded as contumacious by the County. The answer further alleges that the complaint, rule to show cause, and the injunction did not name or require service over all parties of interest, particularly the lessors of the property, who had a contractual interest under the terms of the lease. It then contains the further allegation (as appears in the abstract) that "Triangle Outdoor Advertising Company, is not the defendant herein despite the fact that it erected and maintained the signs in question and it is the lessee with the several property owners; granting the relief prayed will not only deprive Triangle Outdoor Advertising Company of income from the signs but will cause it to forfeit rent paid to the lessors, all without having been joined as a party to this action and thus constituting" a violation of its constitutional rights. On the same date Triangle filed a petition to vacate the decree entered on July 28, 1960 and the injunction issued on the same date, and in that petition it is set up that the County inadvertently and because of a mistake of fact caused Triangle to be a party defendant rather than Outdoor, and that the attorney for Triangle filed an unverified answer which in substance admitted that Triangle had erected and maintained the advertising devices; that as a matter of fact Outdoor was the corporation which was involved; and that if the court had known of the facts alleged in this petition it would not have entered the order and the injunction would not have been issued.

Attached to the amended answer to the rule to show cause are purported leases. The one which is of importance in this case is exhibit "C," and is executed on the letterhead of Outdoor. That document provides that the lessor leases to Outdoor the premises described as follows: Route 6 on Mr. Fred Dahlman's property one signboard not to exceed 60 feet in length, to be located on the south end of farm property. Imprinted on the document is "TRIANGLE OUTDOOR (SEAL) By [unsigned]," and it is signed by Fred Dahlman. This lease does not appear in the abstract.

On July 17, 1961 the amended answer was stricken, and in its order the court denied Triangle's petition to vacate the decree and injunction, ordered the defendant to remove the advertising signs by July 28, 1961, and stated that if the signs were not removed by said date the defendant shall be adjudged guilty of and punished for contempt of court.

A petition for leave to intervene as additional party defendant was filed by Fred Dahlman. With reference to that petition the record contains the following statement: "Be it remembered that heretofore, to-wit, a certain Petition for leave to Intervene as additional Party Defendant was found in file of Case #60 S 8360 undated & not filed or registered & referred to in Orders of Judge Samuel B. Epstein of August 10, 1961, Sept. 18, 1961, & Oct. 20, 1961; in the Office of the Clerk of said Court in words and figures following, to-wit," and the petition, which was verified by Fred Dahlman on July 24, 1961, was then set forth in the record. On August 10, 1961 an order was entered continuing the petition to September 22, 1961, which order provided that all pending proceedings be stayed until the further order of the court. On September 18, 1961 the petition was continued to October 6, 1961, and again on October 13, 1961 it was continued until October 18, 1961. On October 20, 1961 an order was entered in the trial court ordering that the petition for leave to intervene be and the same is hereby denied "as to the six counts included in the complaint heretofore filed," and the order further provides "that the defendant, TRIANGLE SIGN CO., INC. remove the six (6) certain advertising devices, said devices being the subject matter of this law suit, as required of it by the injunction decree heretofore entered in this Court, by the 27th day of October, 1961; IT IS FURTHER ORDERED that if said devices are not removed by the said 27th day of October, 1961, the defendant, on that date, shall be adjudged guilty of and punished for contempt of this Court."

On October 23, 1961 Triangle filed a notice of appeal from the "order, judgment and decree rendered and entered in the Superior Court of Cook County on October 20, 1961 directing the said defendant to remove six certain advertising devices set forth and described in plaintiff's Complaint for injunction by the 27th day of October, 1961 and, further, ordering and decreeing that if the said devices are not removed by the aforesaid date the defendant shall be adjudged guilty of and punished for contempt of court." On the same day a notice of appeal was filed by Fred Dahlman, appealing from the order of the court entered on the 20th day of October, 1961 denying the petition for leave to intervene.

We will first consider the appeal of Triangle.

The County of Cook urges this court to dismiss the appeal because it was taken from the order of October 20, 1961, asserting it was not a final order. Triangle argues that it is not appealing from the original injunction order entered in the trial court on July 28, 1960, but that it is appealing from the order of the trial ...


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