APPEAL from the Circuit Court of Madison County; the Hon.
JOSEPH J. BARR, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 25, 1974.
This is an appeal from the summary judgment entered on behalf of plaintiff in an action for forcible entry and detainer, by the circuit court of Madison County.
The plaintiff, Russell A. Stamm, brought this suit as the third of a series of actions all concerned with the same real estate transaction. The defendants, Jack and Sandra D. Lucas, purchased under a contract for deed, a certain residence dwelling located in the town of Moro, County of Madison, State of Illinois.
The plaintiff, alleging that the defendants were in default in the contract for deed, filed a complaint asking for possession and damages in the amount of $4834. The complaint was filed on July 16, 1973. It was supported by sworn affidavit of rent due, demand for possession, notice of cancellation and termination of contract for deed and intention to proceed against purchaser (the defendants) and, finally, the agreement for deed.
The agreement for deed was signed by the parties hereto on the 18th of February, 1971; this document provided, among other things, for the payment by the defendants of $1000 towards the purchase price of $36,000 at the time of execution, for the payment of an additional $1000 on or before February 15, 1972, and for the payment of $175 per month thereafter until fully paid. The stated intention of the contract was to allow for and to have the defendants obtain financing sometime within 5 years of the date of the agreement. Then, at the time of their obtaining financing, the plaintiff-vendor was to deliver a deed to the defendants-purchasers.
Obviously, something has gone amiss in the stated desires of the parties. The plaintiff has filed one lawsuit on April 13, 1972, being case #72-E-82 in the circuit court of Madison County. The plaintiff, on September 26, 1972, next filed case #72-SED-571 also in the circuit court of Madison County. These two cases have been consolidated. From the judgment order, minute record and the parties' briefs, it appears that these cases involve the same transaction as the present case. Indeed, the present case has in part been consolidated with those two preceding lawsuits.
As noted earlier, this lawsuit was filed on July 16, 1973. On July 30, 1973, the defendants filed a "Motion to Dismiss and Petition for Attorney's Fees". The motion stated the defendants were being harassed by the filing of this present lawsuit and noted the existence of the other two prior lawsuits.
The plaintiff next on August 2, 1973, filed a motion for summary judgment stating:
"1. Plaintiff is the owner of the premises and entitled to possession pursuant to Notice to Quit, Demand for Possession and Forfeiture Notice, which is not denied;
2. Plaintiff is entitled to immediate possession, regardless of any pending litigation. There is no material issue of fact.
3. Defendants have withheld possession for over 18 months without payment of contract installments or payment of rent and without any excuse from such payments by any competent or authorized authority.
WHEREFORE, Plaintiff prays for immediate Summary Judgment based on the uncontradicted allegations of the verified Complaint."
Defendants filed on August 6, 1973, a pleading entitled "Suggestions in Opposition to Plaintiff's Motion for Summary Judgment" stating therein, among other things, that the motion for summary judgment is premature ...