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Rizzo v. Bd. of Fire & Police Commrs.

APRIL 16, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. EDWARD J. EGAN, Judge, presiding. MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

The trial court, on a sworn petition under section 72 of the Civil Practice Act alleging perjured testimony, entered a final order vacating its own previous order under the Administrative Review Act (affirming the findings and decision of the Board of Fire and Police Commissioners of the Village of Franklin Park finding policeman Rizzo guilty of certain charges and discharging him from the force) and remanded the matter to said Board for a hearing de novo. The Board has appealed from this order and the court's subsequent refusal to vacate it.

The plaintiff was a policeman of the Village of Franklin Park and charges were filed before its Board of Fire and Police Commissioners alleging in substance that he was guilty of improper conduct in that he had in his possession a 1967 Chevrolet automobile, stolen from Avis Rent-A-Car, under circumstances where he knew or should have known that it had been stolen.

The Board heard the matter and, in March of 1968, found him guilty and discharged him from the force. The trial court, on Administrative Review, referred the matter back to the Board for further hearings and, in August of 1968, the Board, after such hearings, affirmed its earlier findings and decision. The trial court, in November of 1968, affirmed and Rizzo appealed to this court.

In October of 1968, after said hearings had been completed, Rizzo was tried in the criminal court and was found not guilty of stealing the automobile but guilty of having possessed it "without knowledge of the fact" that its manufacturer's serial number had been altered and he was fined $200. During the pendency of these charges Rizzo attempted to take depositions of Sergeant Zahn, Patrolman LaGioia and Joseph Miller of Avis Rent-A-Car but, on the motion of the State's Attorney, his subpoenas were quashed and he was enjoined from taking such depositions. In June of 1970, after the criminal trial, depositions were taken of these witnesses. In December of 1970 the trial court's order of 1968, affirming the Board's findings and discharge, was affirmed by this court and in January of 1971 rehearing was denied. (Rizzo v. Board of Fire & Police Commrs., 131 Ill. App.2d 229, 267 N.E.2d 7.)

In June of 1971 Rizzo filed his sworn petition under section 72 asking the trial court to vacate its 1968 order and to remand the cause to the Board to hear further evidence and enter new findings and a new decision. The Board moved to dismiss and Rizzo amended his petition to add paragraphs 17 through 26, setting out in considerable detail the allegedly perjured testimony, and why its perjurous character could not have been discovered and presented earlier.

The Board again moved to dismiss and Rizzo again amended. On January 17, 1972, the trial court denied the Board's motion and the Board elected to stand on it. The court in the same order found that the petition was sufficient under section 72, vacated its own previous order of 1968 and remanded the cause to the Board for hearing de novo. After the court denied the Board's motion to vacate, it appealed to this court.

Before reaching what we deem to be the three main issues, we shall dispose of certain preliminary matters.

• 1 The Board's original motion to dismiss the petition as amended raised only the ground that the petition had not been filed within two years from November 25, 1968, as required by section 72(3) of the Civil Practice Act, which ground has, of course, been waived by its failure to urge it here. (People ex rel. Davis v. Chicago, Burlington & Quincy R.R. Co., 48 Ill.2d 176, 268 N.E.2d 411.) After said motion had been denied, the Board stood on that motion and the remandment order here under attack was entered. The Board within term time, did, however, move to vacate said order and in that motion raised the grounds now urged on this appeal. The trial court, in denying said motion to vacate expressly ruled on these contentions.

• 2 Rizzo has moved to dismiss the appeal or to affirm the order below on the ground that, by these actions, the Board is precluded from now raising these grounds because they "were not raised in the trial court", citing City of Chicago v. Sunnyside Properties, Inc., 6 Ill. App.3d 921, 287 N.E.2d 58, where the contention was not raised in the trial court. His motion was taken with the case. Matters going to the sufficiency of the petition are not so readily waived (Schuman v. Dept. of Revenue, 38 Ill.2d 571, 232 N.E.2d 732), and, as already pointed out, these matters were, within term time, raised and the trial court not only had the opportunity to but did pass upon them. The contention lacks merit and the motion to dismiss the appeal or to affirm on this ground is denied.

• 3 Rizzo also contends that the trial court's order vacating its earlier order and remanding the cause to the Board must be affirmed because no report of proceedings has been filed. This argument is unsound in that such an order, under the Administrative Review Act, is based not on evidence heard by the trial court but on the petition under section 72, the allegations of which are admitted by the action of the Board in standing on its motion to dismiss after said motion had been denied. The cases cited (Vail v. Vail, 98 Ill. App.2d 234, 240 N.E.2d 519, and People v. Markley, 340 Ill. App. 191, 91 N.E.2d 630), do not support his position and the argument is not well founded.

• 4 Rizzo also contends that the failure of Sergeant Zahn to plead or answer or appeal constitutes an admission that his (Rizzo's) petition is well founded. The proceeding in the trial court court was an action, under the Administrative Review Act, to review the Board's discharge, and Sergeant Zahn, although named, was not and could not have been a proper defendant. Counsel and the trial court were justified in ignoring him. The Board's motion to dismiss were made on behalf of all of the members of the Board, who were the only proper defendants.

• 5 Turning now to the Board's contentions, while one of the older cases cited (People v. Touhy, 397 Ill. 19, 72 N.E.2d 827), does say, among other things (p. 25), that the writ of error coram nobis (now replaced by section 72) did not lie "for alleged false testimony at the trial nor for newly discovered evidence", the later cases, such as People v. Lewis, 22 Ill.2d 68, 174 N.E.2d 197, hold (p. 70) that:

"section 72 does afford a remedy, in a proper case, to obtain relief from a judgment based on perjured testimony."

• 6 The Board also relies on the said Touhy case for certain language 397 Ill. 19 at 27, 72 N.E.2d 827), to the effect that a petition based on perjured testimony must be "supported by affidavits showing the perjury", but, in our view, a sworn petition setting out in detail the original testimony and in what respects its perjurous character is demonstrated in ...

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