APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. PRESIDING JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1975.
This is an appeal from a judgment dismissing petition to annex certain territory to the Village of Green Oaks without allowing petitioners to put in their proof. The trial court based dismissal on the ground that our holding in In re Petition to Annex to Village of Green Oaks, 1 Ill. App.3d 773 (affirming dismissal of an earlier petition "70 MC 2") was res judicata of the issues in this case, and that the pendency of that appeal was a prior action pending within the provisions of section 48(1)(c) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 48(1)(c)).
In that case the trial court dismissed the annexation petition after objections were filed and after full hearing, on the ground of lack of contiguity under the applicable statute, pointing to the failure to include in the territory sought to be annexed all of O'Plaine Road, an adjacent highway which crossed the Illinois Toll Highway via an overpass bridge, and the fact that the territory was divided by the Illinois Toll Road which was not included in the petition. We affirmed.
A few days after the dismissal of 70 MC 2 another annexation petition was filed (70 MC 8) which, but for the addition of two more petitioners and one new parcel, the deletion of another parcel, and the inclusion of all of O'Plaine Road where adjacent to the area sought to be annexed, was similar to the 70 MC 2 petition. Appellees filed their motion to dismiss (instead of "objections"). This motion was supplemented after our affirmance of the dismissal of 70 MC 2, based on the doctrine of res judicata in view of the substantial identity of parties and territory. The petitioners then moved to strike the motion to dismiss and the supplemental motion on the ground of the failure of the "movants" to file timely "objections," as required by section 7-1-3 of the Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 7-1-3). The trial court denied the petitioners' motion to strike and dismissed the petition in 70 MC 8, and petitioners filed their notice of appeal.
During the pendency of this appeal section 7-1-1 of the Cities and Villages Act (Ill. Rev. Stat. 1973, ch. 24, par. 7-1-1) was amended by the legislature by the addition of another paragraph reading as follows:
"For the purpose of this section, a toll highway or connection between parcels via an overpass bridge over toll highway, shall not be considered a deterent to the definition of contiguous territory."
We first consider whether the pendency of the appeal in 70 MC 2 required dismissal of the annexation petition in 70 MC 8 merely because overlapping property was included. It should be noted that 2 days after the dismissal of 70 MC 2, other petitioners filed an annexation petition numbered 70 MC 7 covering overlapping territory for annexation to the City of Waukegan. That petition was filed one day earlier than the petition involved in the instant case (70 MC 8). Instead of proceeding to test the validity of that petition in (70 MC 7) after our affirmance of the dismissal of the petition in 70 MC 2, those petitioners moved to dismiss their 70 MC 7 petition. But for that fact, 70 MC 7 would have had precedence over the petition in the instant case, 70 MC 8.
The filing of successive annexation petitions with overlapping territory was involved in an early (1965) Green Oaks annexation case, People ex rel. Saam v. Village of Green Oaks, 55 Ill. App.2d 51. There the Village of Libertyville contended that the theory of preemption prevented the filing of other petitions once a petition was filed, and that any subsequent petition was void if filed before the termination of the annexation proceedings which was commenced earlier. We there said (at page 57):
"We do not so understand the rule and determine that to preempt the field in an annexation proceedings the petition must be valid and comply with the requirements of the statute in order to give the County Court jurisdiction."
• 1 The petition in the original case (70 MC 2) was held invalid by the trial court and by this court, and the petition in 70 MC 7 was withdrawn voluntarily. Under the circumstances 70 MC 8 was properly filed, and the pendency of 70 MC 2 did not require dismissal.
We next consider whether the ruling dismissing the petition in 70 MC 2 was res judicata of the issues presented in the instant case. In 70 MC 2 we based our opinion in part on the fact that only one-half of O'Plaine Road "for a distance of over one mile" had been included in the territory sought to be annexed, and, there being no proof that the territory on both sides of the Illinois Toll Road was already a community, and no proof as to any services by the Village of Green Oaks, the overpass bridge did not provide the required contiguity.
In the instant case the petitioners have included all of O'Plaine Road where adjacent to the territory sought to be annexed, instead of only a portion of it as in 70 MC 2; also, there are two additional ...