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In Re Annexation of Certain Territory

DECEMBER 10, 1973.

IN RE ANNEXATION OF CERTAIN TERRITORY TO THE CITY OF DARIEN — (THOMAS DUBLINSKI ET AL., OBJECTORS-APPELLEES.)


APPEAL from the Circuit Court of Du Page County; the Hon. WILLIAM C. ATTEN, Judge, presiding.

MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

After a hearing on objections to an annexation petition, the circuit court of Du Page County entered an order on April 12, 1971 which recited that the objections to the annexation petition were timely filed and directed that the seven parcels which were the subject of the objections were to be deleted from the requested annexation. On November 29, 1971, the circuit court entered its last order which stated that the annexation petition conformed to Article 7, Division I of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7-1-1 et seq.), and directed that the question of annexation be submitted to the corporate authorities of the annexing municipality, the City of Darien.

Within thirty days of the entry of the November 29, 1971 order, petitioners, a substantial number of property owners living within the tract of land sought to be annexed, filed their notice of appeal which designated the April 12th, 1971 order as the one appealed from. Essentially, petitioners contend that six of the seven objectors who filed objections to the proposed annexation did not file within the time prescribed by the Illinois Municipal Code (supra, par. 7-1-3). In response, the Objectors-Appellees, owners of seven parcels within the tract sought to be annexed, question the timeliness of this appeal; thus contending that we do not have jurisdiction to consider the merits of the case.

The petitioners commenced this annexation proceeding on March 30, 1970 by filing an appropriate petition. No order was entered by the circuit court judge setting a date for hearing on the petition, although notice of the filing of the petition was published on April 11, 1970 and designated "April 29th" as the date set for hearing on the petition.

One of the Objectors-Appellees, Thomas Dublinski, filed an objection to the annexation petition on April 24th, 1970. (The timeliness of Dublinski's objection is not questioned in this appeal.) No hearing was had on this date, and on October 8, 1970, upon Dublinski's motion, the circuit court judge allowed the owners of five other parcels within the tract sought to be annexed to join with Dublinski in an amended objection to the annexation. The court thereupon entered an order deleting the six parcels from the proposed annexation. This was the first of two orders entered pertaining to the objections to the requested annexation. The petitioners filed a motion to vacate this order, but no hearing on the motion was ever held.

The last objection to the requested annexation was filed by another property owner, Cities Service Oil Company, on January 19, 1971; approximately nine and one-half months after the annexation petition had been filed. At the time this last objection was filed no hearing had ever been held to determine the validity of the annexation petition.

The facts just related precipitated the entry of the circuit court's order of April 12, 1971 here appealed from. This was the last order entered concerning the objections to the annexation. The order stated that no date for hearing on the annexation petition had ever been set by order of court, and thus the objections had been timely filed. The order further required that the seven parcels owned by the objectors were to be deleted from the proposed annexation.

The annexation proceeding did not again come before the circuit court until November 29, 1971 when a hearing was finally had on the validity of the petition. After this hearing, the circuit court entered its last order which recited, among other things, that the petition conformed to the statutory requirements of the Illinois Municipal Code, supra.

The Objectors-Appellees contend that the April 12th, 1971 order from which this appeal is taken, was a final and appealable order. They argue that the petitioners should have appealed from this order immediately rather than waiting until the entire cause was terminated upon entry of the last order on November 29, 1971.

• 1 It is rudimentary that a judgment or decree is final and reviewable when it terminates the litigation on the merits of the case and determines the rights of the parties (Almon v. American Carloading Corp. (1942), 380 Ill. 524, 44 N.E.2d 592), either upon the entire controversy or upon some definite and separate part of it. (Village of Niles v. Szczesny (1958), 13 Ill.2d 45, 147 N.E.2d 371; Peach v. Peach (1966), 73 Ill. App.2d 72, 218 N.E.2d 504.) A final order, however, need not dispose of all the issues presented by the pleadings. Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill. App.2d 310, 252 N.E.2d 123.

• 2 Having noted these basic procedural tenets, it is relevant to point out that there are essentially two issues inherent in an annexation proceeding in Illinois: Firstly, whether the petition conforms to the requirements set forth in Sec. 7-1-1 et seq. of the Illinois Municipal Code, supra; and secondly, whether the objections to the requested annexation have been filed within the time prescribed in the Municipal Code and whether they are proper.

• 3 The April 12, 1971 order pertained only to this second issue in the annexation proceeding. It terminated the litigation between the parties and disposed of their rights as to the issue of the propriety and timeliness of the objections. Therefore, it was final in nature. (Peach v. Peach, supra; In re Estate of Ireland (1971), 132 Ill. App.2d 157, 267 N.E.2d 681.) However, only one of the two annexation issues was finally resolved by this order thus bringing Illinois Supreme Court Rule 304(a) into operation which controls the timing of appeals from final judgments that do not dispose of the entire cause of action. Ill. Rev. Stat. 1971, ch. 110A, par. 304(a).

• 4 The effect of Rule 304 (a) is to postpone until the termination of the litigation the time for appealing such a final order, unless the trial court expressly finds that "there is no just reason for delaying enforcement or appeal" of the order. This express finding enables immediate appeal of a final order as to fewer than all parties or issues. (Goodrich v. City National Bank & Trust Co. (1969), 113 Ill. App.2d 471, 251 N.E.2d 548.) If the trial court does not make such a finding, the time for appealing from the order does not commence until entry of the final order which adjudicates all, or the remaining, claims or rights of the parties. Beach v. City of Springfield (1961), 32 Ill. App.2d 256, 177 N.E.2d 436; P. Tone and Stifler, Joinder of Parties and Consolidation of Multiparty Actions (1967), Ill. L.F. 209, 230-31.

Accordingly, since the final order of April 12, 1971 did not contain the express finding required by Rule 304 (a), it did not become appealable until the order of November 29, 1971 was entered which adjudicated the remaining issue in the annexation proceeding, i.e., the petition's validity. Our ...


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