Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Affirmed in part, appeal
dismissed in part.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 25, 1965.
This is an appeal by Gerald A. Schroeder and Clara E. Schroeder (a) from an order of the circuit court of Cook County entered June 28, 1963, granting possession to and putting the County of Cook in possession of tract 993, Palatine Road; (b) from an order by the same court entered on June 28, 1963 ordering payment for tract 993 to the Clerk of the Court, and (c) from a purported order of the circuit court of Cook County entered June 28, 1963 denying petition of the Schroeders for writ of error in the nature of writ of error coram nobis or in the alternative audita querela.
The brief of appellants is most confusing. Under argument they start with Roman numeral IX and proceed in the following order: X, I, II, III, another X, XI and XII. They have omitted in the argument points IV, V, VI, VII and VIII. We will, however, endeavor to do complete justice to this appeal as presented.
These are the facts: On February 2, 1961 a petition to condemn certain lands, including tract 993 owned by the Schroeders, was filed in the circuit court of the County of Cook. The law firm of Wahler & Pecyna filed the appearance of Gerald A. Schroeder and Clara E. Schroeder, his wife, and their appearance as attorneys for said defendants. On June 30, 1961 Judge Charles S. Dougherty entered a judgment order of condemnation. A portion of this order reads as follows:
"And the Court having heard and considered the testimony presented, both oral and documentary, and the arguments and representations of counsel in open court, and the court being fully advised in the premises, finds and determines that the just compensation to be paid by the petitioner herein for fee simple title to said parcel or tract of real property to be as follows:
To Gerald A. Schroeder and Clara E. Schroeder, his wife, who are the persons interested in Tract 993, . . . as just compensation to said Gerald A. Schroeder and Clara E. Schroeder, his wife, for the taking of the fee simple title to said land, the sum of Nine Hundred Ten Dollars ($910.00) and $7.50 costs."
The judgment further provided that the petitioner, namely, the County of Cook, within 180 days from the entry of the judgment order pay to Gerald A. Schroeder and Clara E. Schroeder, his wife, the just compensation for the taking of the fee simple title to said parcel of land. The order further provided that upon payment of such sum the County of Cook shall thereby be vested with the fee simple title to said parcel so paid for by the petitioner, and the County of Cook was therein authorized and empowered to enter upon and take immediate possession of said parcel upon making said payment. The court in the order retained jurisdiction for the purpose of entering an order to put the County of Cook into possession of said parcel.
On September 25, 1961 the County of Cook issued its warrant No. 025036, payable to Gerald A. and Clara E. Schroeder, in the amount of $926.33 (representing the $910 judgment plus $7.50 costs and $8.83 interest from June 30 to September 25, 1961). On the same date, September 25, 1961, Mr. Daniel W. Pecyna, one of the attorneys of record for the Schroeders, signed a stipulation that payment had been made as required by the judgment order of June 30, 1961. This stipulation was ordered spread of record by Judge Dougherty on September 27, 1961.
On October 10, 1961 Wahler & Pecyna, the attorneys for the Schroeders, sent the County's warrant for $926.33 to the Schroeders. Thereafter Gerald Schroeder returned the warrant to his attorneys, indicating by letter that he would not endorse it for he felt the amount was insufficient compensation. Mr. Wahler testified that he returned the warrant again to Mr. Schroeder but Mr. Schroeder stated that he did not see it after he sent it back to the attorneys. The warrant has apparently become lost between the Schroeders and their attorneys, and it was not cashed. Neither the Schroeders nor their attorneys informed the County or its counsel, or the court, of the refusal or repudiation allegedly made by Mr. Schroeder as to his attorneys' action in the handling of the case.
The County just prior to June 18, 1963 sought possession of the property. The Schroeders refused to vacate the tract condemned and the County petitioned the court for an order of possession.
The Schroeders answered the petition on June 19, 1963, setting up that the condemnation award had not been paid within 180 days after the entry of judgment, and that such nonpayment amounted to abandonment of the condemnation proceeding, and that there was a failure of due process because of an alleged lack of hearing or notice of the entry of the original judgment of June 30, 1961. On the same date the Schroeders also filed a "Petition for Writ of Error Coram Nobis and Audita Querela," seeking vacation of the judgment order of June 30, 1961, alleging failure of just compensation and generally setting up the grounds set up in their answer to the County's petition for an order of possession. The court on motion ordered the "Petition for Writ of Error Coram Nobis and Audita Querela" stricken but allowed the Schroeders leave to file an amended petition in five days. The Schroeders filed a "First Amended Petition for Writ of Error Coram Nobis and in the Alternative Audita Querela" setting up the same matters set forth in their previously stricken petition, and added a charge of conspiracy between the attorneys for the County and "certain attorneys," which conspiracy consisted of making a "deal unbeknown to these petitioners who have no knowledge of and concerning the same, or the nature thereof. . . ."
A motion to strike the "First Amended Petition for Writ of Error Coram Nobis and in the Alternative Audita Querela" and to dismiss the cause was filed by the County setting up nine points therein. Thereafter Judge Dougherty heard evidence on the petition of the County of Cook for an order for possession of the property.
Mr. Wilbert J. Wahler testified that he entered his appearance as attorney for the Schroeders; that on June 30, 1961, a judgment order was entered directing that payment was to be made to the Schroeders. That thereafter the warrant was delivered to Daniel W. Pecyna, his law partner, by the County, which payment was acknowledged by stipulation and spread of record. The warrant was made payable to Gerald A. Schroeder and Clara E. Schroeder. The warrant was mailed by Wahler & Pecyna to the Schroeders on October 10, 1961, and was returned to Mr. Wahler with a note from Mr. Schroeder. The note expressed Mr. Schroeder's dissatisfaction with the amount and Mr. Schroeder refused to "sign off" for less than $2,500. Mr. Wahler further testified that he had been handling another matter for the Schroeders, and that in February, 1961, the Schroeders came in with the summons in this cause and asked that "we represent them and we filed our appearance for the Schroeders." He further testified that the case was pushed to trial and that he had called Mr. Schroeder a couple of ...