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Department of Transportation v. Galley

JUNE 29, 1973.

THE DEPARTMENT OF TRANSPORTATION, PETITIONER-APPELLANT,

v.

ALFRED A. GALLEY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Madison County; the Hon. HAROLD R. CLARK, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 6, 1973.

This is an appeal by the Illinois Department of Transportation from a judgment rendered upon a jury verdict in the Circuit Court of Madison County in an eminent domain proceeding. The judgment awarded defendants-appellees $4,000.00 for land taken, $100.00 for a temporary construction easement, and $50,000.00 for damages to land not taken. It is contended that reversible error was committed in the admission of certain testimony, in the refusal of the court to give one of petitioner's instructions, and the alleged prejudicial final argument of counsel for defendants.

At the request of defendants a prehearing conference was held in this court under Supreme Court Rule 310, (Ill. Rev. Stat., ch. 110A, sec. 310.) At this hearing the facts were stipulated substantially as follows. Defendants owned and operated a building materials and lumber supply business, consisting of an aggregation of buildings utilized as a single unit with a frontage of 450 feet abutting Route 140 in Madison County. The depth of the property was 270 feet. It was proposed that Route 140 be widened from two lanes to four lanes, necessitating the taking of six feet of defendants' property along its entire length for right of way purposes. The taking reduced the parking area in front of defendants' buildings from a previous width of 35 feet to 29 feet. The petition did not seek elimination of access as such, but construction plans provided for the installation of a curb and gutter along the new right of way line and four entrance driveways, 35 feet in width. In effect, this eliminated the former use of the State right of way for parking, and altered the formerly broad entrance to defendants' property by restricting it to the four 35 foot driveways.

For convenience purposes at the trial the property was described with tract numbers, and these numbers were used in the jury verdict, the post trial motions, the judgment, and again here on appeal. The verdict and judgments were $4,000.00 for land taken, Tract 415A; $100 for the temporary easement, Tract 415B; and $50,000.00 for damages to land not taken, Tract 415.

At the prehearing conference it was agreed and stipulated between the parties that the issues on appeal would be limited solely to that part of the judgment relating to the award of $50,000.00 for land not taken, and that defendants could withdraw or receive payment in the amount of $4,000.00 for land taken and $100.00 for the temporary construction easement. It was further specifically stated that the notice of appeal filed by petitioners would be considered as amended to reflect this agreement.

At the conclusion of the prehearing conference on April 13, 1972, a proposed order was drawn stating that the stipulations and agreements of the parties were adopted and approved by the court and made a part of the record on appeal; that abstracts of the record need be prepared only insofar as germane to the issue agreed upon; that a statement of facts and issues on appeal should be omitted from the briefs; and that times for filing briefs and abstracts should be computed from the date of the prehearing order.

On April 17, 1972 defendants filed a motion to strike said order and to dismiss petitioner's appeal. It was contended that petitioner's original notice of appeal was fatally defective in that it specified an appeal only from the judgments entered with respect to Tracts Nos. 415A and 415B, and that it failed to mention Tract No. 415. It was argued further that at the prehearing conference petitioner had abandoned its appeal relative to Tracts 415A and 415B, and, because Tract 415 was not included in the notice of appeal, the appellate court was without jurisdiction to entertain the appeal. It was also argued that the attempted amendment of the notice at the prehearing conference limiting the issue to Tract 415 was ineffective in that it was not made within 90 days after judgment. We denied this motion on April 26, 1972, stating that defendants cannot avail themselves of changes in position created by prehearing conference procedures taken for clarification and simplification of issues on appeal, and that, in our opinion, the notice of appeal was sufficiently addressed to the form of judgment entered in the trial court so as to place squarely in issue the amount of damages to land not taken, i.e. Tract No. 415.

In their briefs defendants have now reiterated their argument relative to the alleged deficiency of petitioner's notice of appeal and we shall first address ourselves to this matter.

• 1-4 Stated broadly, the purpose of a notice of appeal is to inform the party in whose favor a judgment or decree has been rendered that the unsuccessful party desires a review of the case by a higher tribunal. Admittedly, the notice is jurisdictional, but it has been generally held that where the deficiency in the notice is one of form only, and not of substance, the appellate court is not necessarily deprived of jurisdiction. (Bank of Republic v. Kaspar State Bank, 369 Ill. 34.) Also the notice should be considered as a whole and where the notice fairly and adequately sets out the judgment complained of and the relief sought so that the successful party is advised of the nature of the proceedings, then the absence of strict technical compliance with the form of notice is not fatal. (People v. N.Y.C.R.R. Co., 391 Ill. 377.) More specifically, a notice which clearly states that an appeal is from a judgment issued on a certain date, is sufficient as an appeal from the entire judgment and not just a portion thereof even though the notice did not quote the entire judgment order. Woods v. Village of LaGrange, 298 Ill. App. 595.

Here, it is clear that the notice of appeal specifically refers to the trial court judgment of August 5, 1971, in which defendant was awarded $4,000.00 for land taken, $100.00 for a temporary construction easement, and $50,000.00 for damages to land not taken. Also the notice prays that said "Order be reversed and the judgment entered in the above named cause be set aside". This is conceded by defendants. However, it is contended that further language in the notice limits the appeal solely to those portions of the judgment involving Tracts 415A and 415B because only those tracts are specifically mentioned; and that the omission of any specific mention of Tract 415 constitutes a failure to perfect an appeal as to that tract involving the $50,000.00 damage to land not taken. We cannot accept this argument.

• 5, 6 The order itself mis-described the tract numbers, but there was no doubt in the minds of defendants or anyone else that the order entered judgment in accordance with the findings of the jury as to each respective tract. In fact, not until almost one year after the trial, only after the pre-hearing conference, did defendants file a motion to dismiss the appeal based on the same grounds advanced here. We denied the motion for the reasons above stated. We have been given no reason now to change our position. Based on the rules above cited the deficiency, if any, in the notice is one of form only, and not of substance. Considered as a whole it fairly and adequately sets out the judgment complained of and the relief sought. The defendants were fully apprised of the nature of the appeal, and they were fully aware that a review was sought of the entire judgment relating to defendant's property and not just the two lesser portions thereof. Nor have defendants been prejudiced in any way. To the contrary, it is they who seek an unfair advantage on purely technical grounds. We find the notice of appeal was sufficient in itself, and no amendment thereof was contemplated or made at the prehearing conference as suggested by defendants. At such hearing the petitioner's abandonment of the appeal as to the two lesser portions of the judgment constituted the only "amendment" of the notice; and the appeal of that portion of the judgment referring to damages to land not taken remained intact.

We shall now proceed to a consideration of the case on its merits.

For petitioner, William Blacklock testified that the fair cash market value of the entire property was $250,000.00, that the taking would affect the remainder and cause damages in the amount of $180.00 to relocate a concrete base sand box. He stated there would be no effect on the truck loading and unloading and that customer parking would be affected only to the extent that parking would have to be angular and not perpendicular. Robert Warford testified that fair cash market value in his opinion was $150,000; that there was ...


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