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Southland Corp. v. Hoffman Est.

SEPTEMBER 21, 1970.

SOUTHLAND CORPORATION, A TEXAS CORPORATION, AND BERNARD KAREY, PLAINTIFFS-APPELLEES,

v.

VILLAGE OF HOFFMAN ESTATES, A BODY POLITIC AND CORPORATE, FREDERICK E. DOWNEY, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. Judgment reversed in part, reversed in part and remanded with directions. MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

This case involves a mandamus action instituted by the Southland Corporation, the owner of certain property, and Bernard Karey, the contract purchaser of the same property. Plaintiffs' real estate is located outside the corporate limits of the Village of Hoffman Estates. The defendants are the Village, certain individuals, who are members of the Village's Board of Trustees and various other officials of said Village. Plaintiffs' petition alleged that the Village had the duty of operating and maintaining a water and sewer system "situated within and surrounding the corporate boundaries of the Village of Hoffman Estates", which included the plaintiffs' property. The petition stated that the plaintiffs had made application to the Village's water and sewer system. Plaintiffs averred that the defendants had refused such application without legal justification and that plaintiffs sought a writ of mandamus directing the defendants to permit the plaintiffs to connect into the water and sewer system.

The defendants' answer denied any duty to operate or maintain a water and sewer system outside the corporate limits of the Village. The Village admitted that on prior occasions, it had voluntarily supplied such services to certain properties located without its corporate limits. The defendants admitted also that the plaintiffs' application had been tendered and then refused. The defendants stated that the water and sewer system was not for the use and benefit of the public but rather for the use and benefit of the Village and its residents.

Subsequently, the plaintiffs moved for summary judgment and on August 25, 1969, the trial court granted their motion, directing a writ of mandamus to the Village Clerk, a party defendant, to issue permits to the plaintiff Bernard Karey. On August 28, 1969, the defendants filed their notice of appeal from this order. The plaintiffs filed a notice of cross-appeal on September 2, 1969, from the trial judge's refusal to allow plaintiffs' recovery of damages. The cross-appeal is not before this court. Then, on October 2, 1969, and 35 days after the defendants' notice of appeal, the plaintiffs filed a motion requesting the trial court to amend the order of August 25, 1969, nunc pro tunc to include Southland Corporation because that party had been inadvertently omitted from the judgment order. The trial judge granted the motion on October 2, 1969. Defendants have also appealed the nunc pro tunc amendment of the order.

Defendants seek reversal by arguing two main issues. The first is that the trial court was without jurisdiction to enter the order of October 2, 1969, which amended the order of August 25, 1969, to include Southland Corporation and that error was committed in the granting of summary judgment directing the issuance of the writ of mandamus.

The first issue raised by the defendants presents a substantial question of procedural law. The defendants have urged several theories which they contend make the order of October 2, 1969, erroneous. From the record it appears that both plaintiffs had petitioned for a writ of mandamus and that the defendants' answer denied that plaintiffs were entitled to it. The motion for summary judgment was urged by both plaintiffs but requested that the Village Clerk "issue permits to Bernard Karey." The judgment order of August 25, 1969, referred to the plaintiffs' motion and granted the issuance of a writ of mandamus solely to the plaintiff Bernard Karey. Defendants' notice of appeal was from the order as to the relief granted to the plaintiffs. The writ of mandamus referred only to Karey. Subsequently, plaintiffs' motion for the nunc pro tunc amendment of the August 25 order alleged the inadvertent omission of the Southland Corporation from the provision commanding the issuance of permits for the connection of water and sewer services. The transcript from the hearing of October 2, 1969, discloses that the trial judge relied upon Supreme Court Rule 329 (Ill Rev Stats, c 110A, § 329, 1969) for amending what the plaintiffs alleged was an inadvertent omission. The trial court granted the motion and issued a new order, nunc pro tunc as of August 25, 1969, which gave relief to both Karey and Southland Corporation.

The first theory asserted by the defendants is that the trial court lacked jurisdiction to enter this nunc pro tunc amendment of the judgment order after a notice of appeal had been filed from that order. Defendants have cited a number of decisions that have discussed the powers of a trial court once a notice of appeal has been filed. These cases use various terms to describe the effect of an appeal on the trial court's jurisdiction. It has been stated that the trial court is "deprived" of jurisdiction, Brehm v. Piotrowski, 409 Ill. 87, 98 N.E.2d 725 (1951); People v. Dusher, 24 Ill.2d 309, 181 N.E.2d 166 (1962), and that the notice of appeal "restrains the trial court from entering any order which would change or modify the judgment or decree, or the scope thereof, . . . which would have the effect of interfering with the review of the judgment or decree," Lind v. Spannuth, 8 Ill. App.2d 442, 453, 131 N.E.2d 796 (1956). A more recent statement is found in City of Chicago v. Myers, 37 Ill.2d 470, 227 N.E.2d 760 (1967) where the court said, at page 472:

"The jurisdiction of the appellate court attaches upon the proper filing of notice of appeal. Thereafter, excepting certain instances not here concerned, the cause is beyond the jurisdiction of the trial court." [Emphasis supplied.]

See also O'Donnell v. Woods, 94 Ill. App.2d 134, 236 N.E.2d 324 (1968). As can be noted from the words we have emphasized, the rule expressed in the Myers case recognized that certain exceptions exist.

Some of these exceptions were discussed in an article entitled "Jurisdiction of Trial Court after Notice of Appeal", 53 Ill Bar Journal 30 (1964). Plaintiffs have relied upon that article where, at page 37, it was stated:

"While an appeal is pending the trial court may amend the record to correct matters of inadvertence or mistake, but it is denied the power to remedy defects of substance which would make it a new case."

We believe that the above authorities establish that a trial court's post-appeal jurisdiction is not completely abrogated by the filing of a notice of appeal. Certain of the trial court's powers have been held to be abrogated. For instance, in Butler v. Palm, 36 Ill. App.2d 351, 184 N.E.2d 633 (1962), it was held that the trial court could not grant leave to amend a pleading after notice of appeal was filed by an adverse party. See also First Federal Savings & Loan v. American Nat. Bank, 100 Ill. App.2d 460, 241 N.E.2d 615 (1968). Furthermore, a trial court is without jurisdiction to consider post-trial motions after a notice of appeal is filed, People v. Brigham, 47 Ill. App.2d 444, 198 N.E.2d 106 (1964). Another example is Dunwoody & Co. v. Washington, 315 Ill. App. 54, 42 N.E.2d 113 (1942), where it was error to allow a nunc pro tunc amendment of a judgment, after notice of appeal, in order to justify the issuance of a body execution on that judgment. The above decisions are examples of the type of post-appeal trial court proceedings which result in substantive changes. Reviewing courts should not consider such changes which are in effect making the suit a "new case."

On the other hand, the case of Arndt v. Arndt, 331 Ill. App. 85, 72 N.E.2d 718 (1947), illustrates an exception to the general rule. In Arndt, the trial court was considered the tribunal with jurisdiction to consider a question of fixing attorney's fees despite an intervening appeal. The Arndt decision states, at pages 93-94:

"The general rule that a case leaves the jurisdiction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over the case taken to the higher court."

Other recognized exceptions are the setting of appropriate bonds, the supervision of the record and approval thereof, and other supplemental ...


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