APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. BUCKLEY, Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
Defendants Emma Little and Zeleta Price appeal from judgments of the circuit court of Cook County awarding plaintiffs Jack Spring, Inc. and Sutton & Peterson, Inc. respectively, possession of premises described as "3901 West Jackson 3rd floor," and "a three room apartment on the second floor of premises located at 7804 Prairie," both in Chicago. Because of the similarity of the issues involved we ordered the appeals consolidated for argument and opinion.
In the action against defendant Little, the complaint alleged that rent for the premises for a period of two months was due and owing, that there was due plaintiff from defendant for such rental the sum of $270, and that plaintiff claims possession of the property and $270 "as rent or damages." It is not apparent from the record when or if the complaint was amended, but the judgment entered, and from which defendant Little appeals, is for possession of the premises only. In the action against defendant Price the complaint alleged that defendant unlawfully withheld possession of the premises and did not allege any failure to pay rent. The parties however, state in their briefs that plaintiff's claim to possession was based on defendant Price's failure to pay rent.
In her verified answer, as amended, defendant Little denied the allegations of the complaint and in four counts pleaded affirmative defenses. She alleged the existence of an "oral lease;" plaintiff Jack Spring, Inc.'s promises, and the breach thereof, to make certain repairs; many structural defects which are violations of enumerated sections of the Municipal Code of Chicago; plaintiff's wilful neglect and intentional refusal to repair them, and that plaintiff, by reason of said refusal, was "in violation of an implied covenant of habitability;" the filing of a suit by the building department of the city of Chicago against the owner of record of the premises to enforce the building code; that she had sought other housing through private sources and governmental agencies and had been unable to find suitable housing; that the Cook County Department of Public Aid was withholding payments of rent for welfare recipients who occupied apartments in the building, that plaintiff cannot sue for possession of the premises occupied by such welfare recipients (see Ill. Rev. Stat. 1969, ch. 23, par. 11-23), and that to permit judgment to be entered against her for possession of the premises because she was employed and not a welfare recipient would violate her rights under the fourteenth amendment to the constitution of the United States.
She further alleged that the enforcement of plaintiff's "illegal and unconstitutional" claim to possession will assist in perpetuation of slum housing, and will result in injury and detriment to defendant and other Negro citizens forced to occupy and reside in such slum housing.
In her verified answer, defendant Price denied the allegations of the complaint and, as affirmative defenses alleged the existence of a written lease, plaintiff's promise, and the breach thereof, to make certain repairs, and repeated complaints to the appropriate agencies of the city of Chicago and their failure to institute action to enforce compliance by plaintiff with enumerated provisions of the Municipal Code of Chicago. She also alleged that enforcement of certain provisions of the lease would violate the public policy of Illinois and deprive her of certain fourteenth amendment rights.
The circuit court allowed plaintiffs' motions to strike the answers and entered judgments for possession.
Upon entry of judgment and filing of notice of appeal each defendant moved in the circuit court for waiver of an appeal bond and supported the motion with an affidavit showing inability, by reason of poverty, to furnish bond. In each instance the motion was denied, and the court set the amount of the appeal bonds at $2,000 for defendant Little, and $1,200 for defendant Price.
The first issue presented arises from plaintiffs' contention that the appeals must be dismissed because of defendants' failure to file appeal bonds within 5 days as required by section 18 of "An Act in regard to forcible entry and detainer" (hereafter called Forcible Entry and Detainer Act; Ill. Rev. Stat. 1969, ch. 57, par. 19). Defendants contend that under the constitution and statutes of Illinois, and the rules of this court, in no situation except forcible entry and detainer is furnishing of bond a prerequisite to an appeal. They argue further that the mandatory conditions of the bond prescribed by the Forcible Entry and Detainer Act deny defendants the right, enjoyed by appellants in other types of cases, to have the conditions of the appeal bond fixed with reference to the character of the judgment as provided in our Rule 305(d). 43 Ill.2d R. 305.
Plaintiffs contend that this court, in a long line of cases, has sub silentio held section 18 to be constitutional. Amicus curiae Chicago Real Estate Board argues that equal protection does not require exact uniformity of procedure and cites authority approving shortened times for taking an appeal in certain types of cases. The parties have not cited, nor have we found, a case in which this court decided the question here presented, and obviously any alleged sub silentio holding in no way precludes our consideration of the issue.
Section 7 of article VI of the constitution of Illinois (1870) and section 6, article VI of the constitution of Illinois (1970) provide for an appeal, as a matter of right, from all final judgments of the circuit court. Having created the right of appeal, the statutes adopted and the rules promulgated in implementation of that right may not serve to discriminate against appellants by reason of the inability to furnish an appeal bond. (Griffin v. Illinois (1956), 351 U.S. 12, 100 L.Ed. 891, 76 S.Ct. 585; Boddie v. Connecticut (1971), 401 U.S. 371, 28 L.Ed.2d 113, 91 S.Ct. 780; Mayer v. City of Chicago (1971), 404 U.S. 189, 30 L.Ed.2d 372, 92 S.Ct. 410.) We hold, therefore, that insofar as section 18 of the Forcible Entry and Detainer Act requires the furnishing of bond as a prerequisite to prosecuting an appeal, it is violative of the fourteenth amendment to the constitution of the United States, of article II, section 2, and article VI, section 7, of the Illinois constitution of 1870, and article I, section 2, and article VI, section 6, of the Illinois constitution of 1970.
Defendants contend that the effect of the trial court's orders denying their motions for waiver of appeal bond and requiring them to furnish bonds conditioned as prescribed by section 19 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 20) is to make "the tenant's right to an appeal turn on his wealth." They argue that if the statutes and rule (ch. 57, pars. 19 and 20; Supreme Court Rule 305) permit the requirement of such bonds "they are unconstitutional on their face," and in any event are unconstitutional as applied in these cases.
We find it unnecessary to decide whether section 19 of the Forcible Entry and Detainer Act is unconstitutional. The Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110) governs actions brought under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1969, ch. 57, par. 11), and our rules govern appeals in those actions. Our Rule 303(b) provides: "(1) Forcible Entry and Detainer. The time and method of appeal in forcible entry and detainer cases shall be as provided by statute (Ill. Rev. Stat., ch. 57, par. 19 et seq.), and paragraph (e) of this rule is inapplicable to those cases," and in view of our holding section 18 invalid, to the extent that the rule purports to embody the provisions of that section, it is no longer operative. The stay of judgments pending appeal is governed by our Rule 305 and its provisions supersede those contained in section 19 of the Forcible Entry and Detainer Act. The right to an appeal is a matter separate and apart from the right to supersedeas during the pendency of the appeal, and in being required to furnish a bond as a condition to staying the judgment, an appellant in an action in Forcible Entry and Detainer is in no different situation than an appellant who seeks a stay of the judgment in any other type of appeal.
This court, upon application of the defendants, granted supersedeas conditioned, inter alia, upon the payment of rental installments as they became due. Amicus curiae Chicago Real Estate Board and plaintiffs argue that this type of "use and occupancy bonds" in many cases cannot protect the landlord's interests, and the additional coverage provided by a bond of the type contemplated by section 19 of the Forcible Entry and Detainer Act is essential to protect the premises occupied, the landlord and other tenants. In our opinion this type of bond is within the contemplation of Rule 305, and the motions to dismiss the appeals are denied.
Defendants contend the trial court erred in striking their affirmative defenses, thus refusing to permit them to raise the plaintiffs' prior breach of their obligation to maintain the premises as a condition to their right to possession. They argue that the obligation to pay "full rent" under a lease is interdependent with the landlord's obligation to maintain and repair the premises, that summary eviction in face of the landlord's failure to maintain the premises is contrary to principles of equity, and that summary eviction based upon an "unconscionable lease" is violative of defendants' constitutional rights.
Plaintiffs contend the only issue in a forcible detainer action is the right to possession, and no equitable defenses can be recognized. Citing Rubens v. Hill, 213 Ill. 523, and Automobile Supply Co. v. The Scene-In-Action Corp., 340 Ill. 196, the Chicago Real Estate Board argues that "under well settled Illinois law no implied covenant to repair is imposed on a landlord, a covenant to pay rent is independent of a covenant to repair and a breach of a covenant to repair is not a germane defense in a forcible detainer suit based on non-payment of rent." Plaintiffs and amicus curiae contend further that defendants seek in this action "far-reaching changes in long established landlord-tenant law; such request is appropriate for legislative rather than judicial consideration."
The resolution of the issue presented requires an examination of section 5 of the Forcible Entry and Detainer Act.
Section 5 as enacted in 1874 provided that upon filing in a justice of the peace court or a court of record of a complaint in writing by the party entitled to possession of premises described in the complaint, stating he was entitled to possession and that a defendant named in the complaint was unlawfully withholding possession, summons was to issue. In 1935 (Laws of 1935, pp. 891, 892) the following provision was added: "No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise." In 1937 (Laws of 1937, p. 611) the following provision was added: "Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due." In 1965 (Laws of 1965, p. 51) a further amendment deleted the references to justices of the peace and courts of record and provided for the filing of the complaint in the circuit court for the county where such premises are situated. At the time of the enactment of the 1935 amendment the sole remedy available under the Act, and therefore the "distinctive purpose" of any proceeding based thereon, was recovery of the premises. Upon enactment of the 1937 amendment with its provision for recovery of rent, the proceeding, to some extent, lost its distinctive purpose. To hold that a landlord, at his option, may expand the issues in a proceeding brought under the statute and the tenant may not is violative of common sense and accepted rules of statutory interpretation.
Section 2 of the Forcible Entry and Detainer Act provides that one entitled to the possession of lands may be restored thereto under this Act when, inter alia, "a peaceable entry is made and the possession unlawfully withheld." In these cases there is no question that when defendants, in one instance under an oral agreement, and in the other under a written lease, entered upon possession of the premises, they were peaceable entries, and unless, as claimed by plaintiffs, rent is due and remains unpaid, possession is not "unlawfully withheld." It is apparent, therefore, that even though the plaintiffs do not seek to recover rent in these actions, the question of whether rent is due and owing is not only germane, but in these cases where the right to possession is asserted solely by reason of nonpayment, is the crucial and decisive issue for determination.
We have stated above the respective contentions of the parties. With respect to plaintiffs' first contention that the only issue in a forcible detainer action is the right to possession and no equitable defenses can be recognized, Rosewood Corp. v. Fisher, 46 Ill.2d 249, holds to the contrary.
It is established law that liability for rent continues so long as the tenant is in possession and equally well established that a tenant may bring an action against his landlord for breach of a covenant or may recoup for damages in an action brought to recover rent. Rubens v. Hill, 213 Ill. 523, 534; Selz v. Stafford, 284 Ill. 610, 617.
The salutary trend toward determination of the rights and liabilities of litigants in one, rather than multiple proceedings, is demonstrated by our opinions in Miller v. DeWitt, 37 Ill.2d 273, and Muhlbauer v. Kruzel, 39 Ill.2d 226. It would be paradoxical, indeed, to hold that if these were actions to recover sums owed for rent the defendants would be permitted to prove that damages suffered as the result of the plaintiffs' breach of warranty equaled or exceeded the rent claimed to be due, and therefore, that no rent was owed, and at the same time hold that because the plaintiffs seek possession of the premises, to which admittedly, they are not entitled unless rent is due and unpaid after demand, the defendants are precluded from proving that because of the breach of warranty no rent is in fact owed. The argument that the landlords' claim is for rent and the tenants' for damages should not be permitted to obfuscate the sole and decisive issue, which simply stated is whether the tenants owe the landlords rent which is due and remains unpaid.
Insofar as defendants' affirmative defenses alleged the breach of express covenants to repair, they were germane to the issue of whether the defendants were indebted to plaintiffs for rent and we find no impediment in our earlier opinions to the determination of the issue in one rather than multiple actions. We hold, therefore, that the trial court erred in striking these affirmative defenses.
We consider now whether the answers allege the existence of implied warranties or covenants and the breach thereof, and if so, whether the matters pleaded were "germane to the distinctive purpose of the proceeding."
Plaintiffs and amicus curiae Chicago Real Estate Board argue that there is no implied covenant to repair imposed on a landlord, and therefore, no implied warranty of habitability. The concept of an implied ...