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Department of Pub. Wks. & Bldgs. v. Gieseking

APRIL 1, 1969.

THE DEPARTMENT OF PUBLIC WORKS AND BUILDINGS OF THE STATE OF ILLINOIS FOR AND IN BEHALF OF THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EDWARD C. GIESEKING, SR., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Madison County; the Hon. WILLIAM G. EOVALDI, Judge, presiding. Affirmed and remanded with directions.

EBERSPACHER, J.

This is an appeal from the order denying appellants' post-trial motion for a new trial in an Eminent Domain proceeding. Prior to the hearing, which resulted in the rendition of the jury's verdicts, title to the property involved in this appeal was vested in the State of Illinois, pursuant to "quick take" proceedings under the Eminent Domain Act; *fn1 the landowners had petitioned and received 80% of the monies deposited, and had filed their cross petitions for damages.

The proceedings involved the taking of portions of an approximate 200-acre tract, which we shall refer to as the Hosto tract, and portions of an 80-acre tract, which we shall refer to as the Tegmeyer tract. Both the Hosto tract and the Tegmeyer tract, which were adjacent, were bisected by Federal Aid Interstate Route No. 70. From the Hosto tract the State had taken Tract 168 consisting of 9.01 acres and Tract 169, consisting of 9.77 acres, both in fee; the State also had taken easements for the purpose of channel changes on Tract 168C consisting of 1.92 acres and Tract 169C consisting of 0.46 acres; the State had also taken temporary construction easements on Tract 168T consisting of 3.17 acres and Tract 169T consisting of 0.20 acres. From the Tegmeyer tract the State had taken Tract 167 consisting of 10.03 acres, in fee.

Upon the jury returning their verdicts, *fn2 each of which was within the range of the evidence, the court entered them verbatim in the Minute Record and there recited that they were signed by all 12 jurors, naming them; entered an order discharging the jury and the following: "Judgments entered on the verdicts per order to be filed herein." No formal written order of judgment was ever filed. Appellants have pointed to section 68(1) of the Civil Practice Act (c 110, Ill Rev Stats 1963) which provides: "Promptly upon the return of a verdict, the court shall enter judgment thereon," and contend failure to follow the statute is a fatal error, in effect that there is no valid judgment. Their position, of course, is that in order to comply with the time requirement of a post-trial motion they had to treat the situation as if a judgment had been properly entered, although the post-trial motion raised the matter of the absence of a judgment.

The State points out that the only matter for determination in the hearing was the amount of final just compensation and that the record in this case includes the verdicts followed by the sentence, "Which verdict is signed by all 12 jurors," followed by, and immediately preceding the certification of the official court reporter to the report of proceedings, the following sentence: "Thereupon the court entered judgment on the verdicts." This they contend shows that a judgment was pronounced by the court.

[1-3] In eminent domain, a judgment becomes effective when pronounced by the court and is not dependent upon the signing of an order; it is a law proceeding and not a chancery proceeding. Chicago Great Western R. Co. v. Ashelford, 268 Ill. 87, 91-92, 108 NE 761. Here the final order appealed from is properly the order denying the post-trial motion, which is a final appealable order.

The general rule is that a judgment must designate the parties for and against whom it is rendered or it will not be a valid final judgment. Kaley v. Carr, 348 Ill. App. 151, 108 N.E.2d 512, and cases cited therein. We do not condone entry of a purported judgment which does not meet that requirement; the parties are entitled to know precisely the status of the matter and where they stand, without searching the record, once the issues have been determined. Even assuming the judgments here to be defective, on such bases we would not remand for a new trial, and if the verdict is sufficient to sustain the judgments we could affirm the lower court proceedings, granting leave to the State to move for a proper judgment on the verdicts, Meyer v. Village of Teutopolis, 131 Ill. 522, 556, 23 N.E. 651, or in the alternative could exercise our appellate and supervisory powers, (Supreme Court Rule 366(a)), to correct any technical deficiencies observed in the lower court. While the appellants may have been inconvenienced by the procedure followed, we fail to comprehend how they have in any way been prejudiced.

Appellants contend that the court erred in allowing evidence as to the purchase price of a portion of the Hosto tract; (80 acres which defendant Hosto had purchased from parties named Gusewelle approximately 5 years prior to the filing of the Petition in this cause), over appellants' objection, and that the owners of both tracts were so prejudiced by the introduction of that evidence that they were all entitled to a new trial.

Mr. Marshall, one of the State's witnesses, testified that the highest and best use of both the Hosto and Tegmeyer tracts was agricultural with a potential for rural residence. On cross-examination he testified that land in Madison County, in which the tracts are situated, had increased steadily in value in the ten years preceding the taking, faster than the statewide average, and that he was familiar with the elements which had created the upsurge in land values. Mr. Piepergerdes, the other State witness, testified that the highest and best use of both tracts was for agricultural purposes, and on cross-examination stated that he had not taken residential possibilities into consideration in determining values but had only considered the land for agricultural purposes.

Appellants here contend that since the State's two appraiser witnesses made no comparative estimates to other tracts, were not residents of Madison County, and were not registered brokers or salesmen, and had made no sales or purchases of either agricultural tracts or subdivision tracts in Madison County, that the testimony of Marshall "should have been disregarded and the jury told to ignore it" and that the court should have excluded the testimony of Piepergerdes. Had motions to this effect concerning the testimony of otherwise qualified witnesses been timely made below we would have little difficulty in sustaining the trial court's denial of them; here we do not consider such contentions since they were never made in the trial court.

Mr. Tegmeyer, a broker and experienced appraiser, and one of the owners of the Tegmeyer tract, testified on behalf of appellants with reference to the Tegmeyer tract. He considered that its highest and best use in April 1964 was country residential and that people want to "have the rural atmosphere" and "are buying tracts of land of 5 acres." (The hearing was held in December 1966.) He testified the Tegmeyer tract was located 1 1/2 miles from Troy and that there was residential construction in the area of the Tegmeyer and Hosto tracts within the 3 years previous to the filing of the petition. He admitted that the land was zoned agricultural and that the owners had never made a request for a zoning change.

Mr. Hosto testified that he had bought and sold five different laundry, linen supply and cleaning businesses in as many states; was an officer in two companies presently engaged in that service; had organized and was an officer in a plastic firm; owned residential properties in approximately 15 towns and a subdivision in an adjoining county from which lots were sold for mobile homes. He testified that he had put together 4 different tracts in Missouri to form a 1,340-acre farm, and that "was strictly farming over there" and continued that the Hosto tract in this proceeding was put together by purchases from 4 different owners and was bought for a certain purpose and was not bought for agricultural purposes. In response to the question as to what use was being made of the tract at the time of the filing of the petition he stated, "we bought it as an investment with the idea of flooding that whole valley without running water on anyone else, but it was used as cattle grazing and farmland as a holding operation." He testified that he had taken out some of the undesirable trees but had left walnuts and good oaks "which adds to the beauty of the ground when we go to sell it." He testified that he was president of Modern Courts, Incorporated, O'Fallon, which had a mobile homes park, and had laid out a lot of mobile home sites. He also testified that he had a mobile home site on a 10-acre strip on the Hosto tract on which one of his employees lived, and that the highest and best use of the tract at the time of taking was country residential, and in response to the question "Tell the jury what you mean by that?" referring to country residential, said "Well, I found it was readily saleable in 5-acre tracts. I have had a multitude of inquiries constantly." He testified that the Hosto tract was a mile and a quarter from the city limits of Troy, and that there had been some building out from Troy toward the tract. On cross-examination he testified that approximately 2 years previous to the hearing 39 acres of the Hosto tract had been rezoned from agricultural to highway business and that he had never asked to have the rest of it rezoned. It was after this testimony that he was asked on cross-examination, after testifying that he purchased it in April 1959, the price he paid for the north 80 acres. Over objection and a denied motion for mistrial, Hosto was directed to answer and was allowed to show that it could only be bought on an installment contract and interest paid over a five-year period.

Another witness for appellants testified that the highest and best use of both the Tegmeyer and Hosto tracts, at the time of taking, was agricultural with a potential for tract subdivision.

The question of whether sales of property are voluntarily made, and therefore admissible, rests largely in the discretion of the trial court, and the degree of similarity required between property to be taken and other tracts of land shown in evidence cannot be governed by fixed rule but the admissibility of such testimony must, in each instance, be determined by the trial judge ...


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