APPEAL from the Circuit Court of Cook County; the Hon. LESTER
JANKOWSKI, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is the second appeal of a forcible entry and detainer case (Ill. Rev. Stat. 1967, ch. 57, par. 1 et seq.) that was originally filed in the circuit court of Cook County on April 25, 1969. In the original appeal of this cause (Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 263 N.E.2d 833) the supreme court reversed the judgment for possession entered for the plaintiff and remanded the action to the circuit court holding that when the trial court struck defendants' answer and counterclaim on the ground that they were not germane to the issue of the right to possession and therefore prohibited under section 5 of the Act, it had acted improperly. Further proceedings in this cause were not taken upon the supreme court's mandate until September, 1972. After various motions by both plaintiff and defendants the defendants' original answer and counterclaim were again stricken and judgment awarded to plaintiff on March 26, 1973.
In their appeal from the second order of the circuit court striking their pleadings the defendants present two arguments to support their demand for reversal. First, the defendants argue that the plaintiff's failure to plead to the affirmative defenses raised in their answer and counterclaim for some 2 years after the supreme court order of reversal and remand, require judgment to be entered for them under Supreme Court Rule 182. (Ill. Rev. Stat. 1971, ch. 110A, par. 182.) Second, defendants argue that their answer and counterclaim are sufficient as a matter of law to join issue with the plaintiff and require further proceedings in the trial court under the provision of the original opinion in Rosewood v. Fisher, supra. The plaintiff answers these arguments and contends the order of the circuit court was proper.
The history of the litigation in this case began in 1968 as one of the many "contract buyers" cases instituted in the circuit court at about that time. The general factual background of these cases is set out in the original decision in this case (Rosewood v. Fisher, supra), and need not be set out here. As regards to the instant defendants, they agreed to purchase a home from the plaintiff in 1964. They agreed to pay $24,450 for the house, making a down payment of $1,950. The contract provided that the balance of $22,500 was to be paid over a period of approximately 28 years in monthly installments of $146, consisting of principal and interest of 6 1/2 percent per annum. The defendants took possession of the premises and made the contract payments for about four years. In August, 1968, they stopped making monthly payments and defaulted on their contract to buy.
Subsequently, the plaintiff caused the defendants to be served with the required statutory notices (Ill. Rev. Stat. 1967, ch. 57, par. 3), and in April, 1969, filed the instant suit for possession. The complaint was in the form prescribed by the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1967, ch. 57, par. 5) and consisted of two substantive paragraphs. Paragraph 1 alleged that the plaintiff was entitled to possession of certain real estate and gave the legal description of the Fisher property. Paragraph 2 alleged that the defendants unlawfully withheld possession of the real estate from plaintiff and that the plaintiff claimed possession thereof. In May, 1968, the plaintiff filed an "Addendum" (sic) to its complaint which included the real estate purchase contract signed by it and the defendants, and an allegation that all required notices had been served on the defendants.
The defendants then filed their answer and counterclaim that remains the subject of controversy in this case. The answer consisted of three paragraphs. In the first paragraph the defendants reasserted all the defenses set forth in their previously filed motion to strike and dismiss the complaint, the significant portion of which alleged that the procedure prescribed under the Forcible Entry and Detainer Act was special legislation that relied upon an unreasonable and arbitrary classification that denied the defendants due process of law. Paragraph 2 stated:
"2. Defendants' monthly contractual obligation to plaintiff has been satisfied. Defendants have paid plaintiff an amount far in excess of the fair market value (plus reasonable interest) of the premises described in the complaint to date. The contract should be reformed, otherwise any amount still alleged to be owing on the alleged contract is unconscionable and therefore unenforceable."
Paragraph 3 denied that the plaintiff served the defendants with certain demands for possession. In the counterclaim the defendants allege defenses of unconscionability and illegality and prayed that title to the property be awarded to them.
• 1 Subsequently, the trial court struck the answer and counterclaim for the reason that the equitable defenses raised by these pleadings were not "germane" to the distinctive purpose of the proceeding. (Ill. Rev. Stat. 1969, ch. 57, par. 5.) The defendants appeal of this determination resulted in the supreme court opinion of Rosewood v. Fisher, supra, wherein the court held that contract buyers may plead equitable defenses and that those defenses going to the validity and enforceability of the contract were germane to the distinctive purpose of the action. (46 Ill.2d 249, 256-57.) The mandate of the supreme court, dated October 15, 1970, reversed and remanded the case to the circuit court for further proceedings in accordance with the views expressed in the opinion.
The first proceeding of record after that opinion was not taken until September 19, 1972, when the plaintiff filed a motion to strike the answer and counterclaim in the circuit court. Among the grounds alleged in the motion was that defendants' answers did not state a defense as a matter of law and that their counterclaim did not state a cause of action as a matter of law. Various proceedings in the circuit court resulted in the court denying the plaintiff's motion to dismiss on other grounds that were enumerated in its motion (that the action was barred by res judicata). In January, 1973, the defendants moved to dismiss the complaint alleging that because the plaintiff had not pled to the counterclaim the allegations therein were admitted under section 40(2) of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 40(2).) Simultaneously, the plaintiff renewed its motion to strike the answers and counterclaim as insufficient as a matter of law. After a consideration of the motions the trial court, in February, 1973, denied the defendants' motion to dismiss the complaint and granted plaintiff's motion to strike the answer and counterclaim allowing the defendants time to file amended pleadings.
On March 26, 1973, the trial court entered an order in which it found that the defendants' pleadings were insufficient as a matter of law and ordered the defendants' answer and counterclaim stricken. The defendants elected to stand on the pleadings and judgment was again ordered for the plaintiff. It is this order from which the instant appeal is taken.
The defendants first contend that the plaintiff's failure to plead to the affirmative defenses in the answer and counterclaim for some 2 years after the reversal of the case requires judgment to be entered in their favor. The defendants cite various provisions of the Civil Practice Act and Supreme Court Rules which indicate that a party has 21 days to either answer or challenge a counterclaim (Ill. Rev. Stat. 1971, ch. 110A, par. 182) unless additional time is granted by order of the court. (Ill. Rev. Stat. 1971, ch. 110, par. 59; ch. 110A, par. 183.) They argue that because the plaintiff neither answered, nor received additional time to answer the counterclaim, after the case was remanded to the circuit court, the allegations therein were admitted. (Ill. Rev. Stat. 1971, ch. 110, par. 40(2).) We cannot agree.
The only case in Illinois similar to the instant case wherein both parties delayed in the pursuit of an action after a remandment of the cause by an appeals court is Tidwell v. Smith (1963), 43 Ill. App.2d 9, 192 N.E.2d 410. In that case the plaintiff's complaint was dismissed in the trial court. The appellate court found the trial court erred in dismissing the complaint and remanded the case for further proceedings. After a delay of approximately 2 years in which neither party pursued the action, the trial court ...