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County of Winnebago v. Willsey

APRIL 15, 1970.

COUNTY OF WINNEBAGO, A BODY CORPORATE POLITIC, PLAINTIFF-APPELLEE,

v.

LESTER E. WILLSEY AND JUANITA M. WILLSEY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. WILLIAM R. NASH, Judge, presiding. Judgment affirmed.

MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 21, 1970.

This appeal is from an order of the Circuit Court of Winnebago County, which permanently enjoined and restrained the defendants from using certain described premises for the storage of commercial truck trailers or truck tractors and uses incidental thereto, or as otherwise permitted in the agricultural district under the County zoning ordinance.

On March 20, 1968, the defendants purchased the land in question which is located at 3101 North Central Avenue in an unincorporated area. Pursuant to ordinance passed in 1947, the premises are zoned for agricultural purposes, which zoning does not permit general business uses or storage of vehicles. The property consists of approximately 6 3/4 acres, a substantial part of which defendants used for growing corn, for pasture, for raising some chickens and for horses.

One of the defendants, Lester E. Willsey, appearing pro se at the time of trial, testified that he is engaged in the moving and storage business under the name "Willsey Transfer"; that he owned or had an interest in fifteen semitrailers, eight of which were parked at the rear of the land in question; that the Willsey Transfer office address was 3101 North Central Avenue; that he derived his income from the transfer and storage business and from investments; that he had used two of the trailers for the storage of hay, but that the last bale of hay was gone by the time of trial; that most of the trailers were old and obsolete, and that the basic use for the majority of them was to rent them out to stores such as J.C. Penney for the storage of tires.

The prosecution introduced into evidence an advertisement from the yellow pages of the local telephone directory, which showed the address of Willsey Transfer to be 3101 North Central Avenue.

The first question raised is defendant's assertion that the complaint did not state a cause of action because (1) the name of the plaintiff was not set forth in the body of the complaint (although it appeared in the caption and introductory paragraph); (2) it did not allege that the plaintiff is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois; (3) it did not allege that the plaintiff has the legal capacity to sue; and (4) it did not allege that the plaintiff had a remedial interest in the cause of action asserted.

The sufficiency of the complaint was not challenged by the defendants in the trial, but is raised for the first time on review. Defendants' only citation of authority is Ill Rev Stats 1967, c 110, § 21(4). This particular subsection states, as follows:

"A party shall set forth in the body of his pleading the names of all parties for and against whom relief is sought thereby."

Defendants' contention is that, since the plaintiff's name was not set forth in the body of the complaint and its legal existence was not alleged therein, the complaint was totally defective. This same contention was considered in the case of Federal Ins. Co. v. Ainsworth, 31 Ill. App.2d 19, 175 N.E.2d 804 (1961). The court there held that where the introductory paragraph of a complaint stated that plaintiff was a corporation (as in the instant case), there is sufficient compliance with the requirements of section 21(4) of the Civil Practice Act provision, and that the fact that there was no numbered allegation of the corporate status of the plaintiff did not render the complaint insufficient.

In addition, section 45(1) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 45(1)) provides, "All objections to pleadings shall be raised by motion," which ". . . shall point out specifically the defects complained of, and shall ask for appropriate relief. . . ." Section 42(3), (2) of the Act further provides that, "All defects in pleadings, either in form or substance, not objected to in the trial court are waived," and also recites that, "No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet."

The rule to be applied when the question of the sufficiency of a pleading is raised for the first time on appeal, is that it will only be considered when the complaint fails wholly to state a cause of action and will not be considered when the allegations are merely defective or imperfectly set forth. Lion Specialty and Properties, Inc. v. Chicago Zoning Board of Appeals, 107 Ill. App.2d 354, 247 N.E.2d 30 (1969).

In the case at bar, the defendants answered the complaint in its present form, without objection, and the case proceeded to trial. This court is of the opinion that the complaint substantially alleged a cause of action, although somewhat imperfectly, and that defendants waived any defect therein. Further, the complaint contained sufficient information to reasonably inform the defendants of the nature of the claim they were called upon to meet.

The defendants' next contention is that an affirmative defense raised in their answer was admitted by the failure of the plaintiff to reply to the same. Again, no objection was raised at the trial and defendants produced evidence in ...


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