APPEAL from the Circuit Court of Lake County; the Hon. ALBERT
S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order entered in the circuit court of Lake County setting aside verdicts of a jury awarding compensation in a condemnation case and granting a new trial. Petition for leave to appeal pursuant to section 77(2) of the Civil Practice Act (Ill. Rev. Stat. 1961, chap. 110, par. 77(2) and Rule 30 of the Supreme Court, has been granted.
The property involved is located on Skokie Highway, U.S. Route 41, in the city of Highland Park, Lake County, Illinois. The total holdings of the respondents consisted of approximately 49 acres of land on the easterly side of Skokie Highway. Tract No. 6, one of the parcels to be acquired in these proceedings, is an irregularly shaped parcel of land containing 3.827 acres. Tract No. 6A, another parcel to be acquired, consists of a strip of land 17 feet wide by about 280 feet long, containing about 1/10 of an acre.
The purpose of the taking was for the improvement known as the Deerfield Road Skokie Highway Overpass, a cloverleaf type traffic interchange. The subject property is located at the northerly extremity of this highway improvement.
The land was vacant at the time of the filing of the petition to condemn on March 17, 1960. It was zoned under the zoning ordinance of the city of Highland Park in the A District, which provides for three-acre minimum lot size and residential uses, but on May 4, 1959, prior to the filing of the condemnation petition, the city council of Highland Park adopted an ordinance which granted a special permit to the Singers for the construction of a shopping center on that part of subject properties laying north of West Park Avenue.
The subject properties are adjoined on the north by the sanitary land fill and garbage dump operated by the city of Highland Park. The East Skokie drainage ditch flowed through the subject properties near their eastern border. The properties were adjoined by vacant lands to the east, both north and south of West Park Avenue.
Petitioner's three real-estate experts valued tract 6 from $36,500 to $38,500, and tract 6A from $1,000 to $1,200, and considered no damage to the remainder. The respondent property owners adduced the opinion of three witnesses who testified that the highest and best use of the premises was for a shopping center, and that tract 6 had a value of $250,000 and damage to the remainder would be $250,000. Respondents' evidence of the value of tract 6A was $7,158.
The jury returned verdicts awarding respondents $72,100.59 for tract 6 and $2,298.45 for tract 6A, and nothing for damage to the remainder of tract 6. The respondents filed a post-trial motion for a new trial, basing their motion on the grounds that counsel for petitioner was guilty of prejudicial misconduct which deprived respondents of a fair trial, and that the verdicts are contrary to the weight of the evidence.
On August 3, 1962, the trial judge entered an order allowing the motion for a new trial, and petitioner filed petition for leave to appeal, which we have granted.
On December 13, 1962, the trial judge filed a memorandum of decision in support of his order granting a new trial. The memorandum, incorporated in the record, stated in part as follows:
"1. Counsel for the Petitioner made repeated demonstrations before the jury throughout the trial of this case, challenging the rulings of the Court by gestures, by uttering comments, by long pauses with a purported amazed look on his face following an adverse ruling by the Court, by commenting in a loud voice to the jury `what's going on here,' when the Court sustained an objection to Respondents' Counsel's questions, by shaking papers as a protest in demonstrating after an adverse ruling by the Court, by walking back and forth in an excited and protesting manner after adverse rulings by the Court.
"2. Petitioner's Counsel, during the entire three days of the trial, conducted himself in the manner which made it very difficult for the Court to properly conduct the trial in a fair and impartial manner. And the Court on a number of occasions, outside of the presence of the jury, instructed the Counsel for the Petitioner that he should refrain from the conduct discussed. However, he refused to comply with the Court's request.
"3. Counsel for the Petitioner repeatedly directed a personal attack upon the Counsel for the Respondent, challenging his motives in securing the passing of a zoning ordinance, charging that he purchased the property knowing it would become involved in condemnation proceedings. And in his argument to the jury after the Court had sustained an objection to certain argument, he picked up a paper from counsel table and read same to the jury, over the objections of Counsel for the Respondent, and over the rulings of the Court, which was highly prejudicial.
"Due to the conduct of Counsel, and the constant ruling of the Court, I am of the opinion that the Respondents did not receive a fair and impartial trial in this case, and that the ...