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In Re Petition of Dolan

FEBRUARY 1, 1972.

IN RE PETITION OF PAUL DOLAN, PETITIONERS-APPELLEE. — (WINDSOR FIRE PROTECTION DISTRICT, RESPONDENT-APPELLANT.)


APPEAL from the Circuit Court of Moultrie County; the Hon. JAMES N. SHERRICK, Judge, presiding.

MR. JUSTICE VERTICCHIO DELIVERED THE OPINION OF THE COURT:

This case involves an appeal from a decree of the circuit court of Moultrie County concerning a petition filed by certain citizens to disconnect their property from the Windsor Fire Protection District located in Shelby and Moultrie Counties, hereafter referred to as Windsor, and to annex said property to the Sullivan Fire Protection District located in Moultrie County, hereafter referred to as Sullivan. The petition was filed on August 20, 1969. Windsor, through its attorney, filed objections to said petition, which objections were overruled on December 17, 1969.

Thereafter, on December 29, 1969, the circuit court of Moultrie County entered a decree setting the matter for a referendum submitting the issue to the electorate pursuant to secs. 21 and 37 of ch. 127 1/2, Ill. Rev. Stat. (1969).

The election was called for February 21, 1970, between the hours of 12 o'clock noon and 6 o'clock P.M. Subsequently, affidavits were filed to establish compliance with the election procedures.

On February 17, 1970, a motion was filed by the petitioners to vacate the decree of December 29, 1969, on the grounds there had been an error in defining the election precincts for the area involved. This petition was denied on April 24, 1970.

On February 17, 1970, the election was cancelled by notice of the petitioners' attorney without an agreement between the parties nor court authority for the cancellation.

On July 28, 1970, a petition for modification of the decree of December 29, 1969 was filed under the provisions of sec. 72 of the Civ. Pr. Act. On August 21, 1970, a motion to dismiss the petition was denied, and on the same date the decree was modified with the appropriate election changes being made. The referendum date was reset for October 17, 1970.

A notice of appeal was timely filed and a supersedeas was entered on September 25, 1970.

The election was not held. The appeal to this court is on the issue as to whether or not the trial court had authority under provisions of sec. 72 of the Civ. Pr. Act to modify the original decree.

• 1 At first blush it would appear that the appeal should be dismissed because the election date had passed, leaving a moot question, and an issue will not be decided merely for the purpose of setting a precedent. (People v. Village of Oak Park, 356 Ill. 154.) Careful deliberation and scrutiny of the true issue reveals that the date of the election is not the issue before this court, but the issue is whether the trial court had authority under sec. 72 to modify the original decree.

This court does not have the benefit of the court's findings as to its order of April 24, 1970, denying the petitioners' motion to vacate the decree of December 29, 1969, filed on February 17, 1970. The motion alleged that the decree referred to certain territory as the Village of Bruce, an incorporated village; that the corporate boundaries of the Village of Bruce were designated as Precinct Number One for the purpose of the election. The motion further alleged that the said Village of Bruce is not incorporated and, therefore, there are no corporate boundaries. The petitioners, in their motion, prayed for an order vacating the decree entered on December 29, 1969, and for the entry of a new decree establishing and fixing the boundaries of one or more voting precincts within the territory involved in the proceedings and the polling place for each precinct, and for the appointment of three judges for each polling place, and fixing and establishing the date of said election.

As hereinabove indicated, the court did not make any findings or reasons for denying the motion to vacate the decree.

• 2 This court, in attempting to fill in the void, takes judicial notice of the fact that the original decree was entered on December 29, 1969, and the motion to vacate was filed on February 17, 1970, which is more than thirty days later. Thus the trial court lost jurisdiction to vacate the decree pursuant to sec. 50(5) of the Civ. Pr. Act. The respondents contend that the remedy provided for under sec. 72 of the Civ. Pr. Act was not available to the petitioners. In support of this position they argue that since the same parties were involved and all the questions were fully litigated, the petitioners ...


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