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City of Palos Heights v. Village of Worth

JUNE 5, 1975.

THE CITY OF PALOS HEIGHTS ET AL., PLAINTIFFS-APPELLEES,

v.

THE VILLAGE OF WORTH ET AL., DEFENDANTS-APPELLANTS. — (HARLEM AVENUE PETROLEUM WAREHOUSING COMPANY, INC., ET AL., DEFENDANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL A. COVELLI, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 17, 1975.

This is an appeal from an order of the trial court granting plaintiffs' motion for a voluntary non-suit which order also provided that the defendant Village of Worth furnish notice to the plaintiffs of future applications to the Village for the development of certain premises for the processing or storage of petroleum oils. The sole issue upon appeal is whether the trial court erred in including the provisions for notice in the order granting the voluntary non-suit. A summary of the necessary facts follows.

This action was commenced on March 1, 1973, by a complaint for declaratory judgment and injunctive relief to prevent certain property located in the Village of Worth from being developed as an oil storage facility. The original plaintiffs were the City of Palos Heights, the Navajo Hills Homeowner's Association, and Lanoco Service Corp. In addition to the Village of Worth, a municipal corporation, defendants included Rock Road Construction Co. (Rock Road), Sag Warehouse & Terminal Corp. (Sag), and other defendants who were alleged to be owners, lessees, or developers of the subject property. The several defendants responded by filing either answers, motions to strike, or motions to dismiss the complaint. Thereafter, 21 individual property owners residing within the Village of Worth petitioned for leave to intervene as party-plaintiffs. The trial court entered an order denying the motions to dismiss, granting the motions to strike, and granting leave to plaintiffs to file an amended complaint joining as party-plaintiffs the individual property owners. Upon the filing by plaintiffs of an amended complaint, each of the defendants filed answers. Defendant Village of Worth presented a motion to set the cause for trial, and the trial court continued the hearing on the motion to December 5, 1973.

The record discloses that on the date set for hearing of the motion plaintiffs advised the trial court that all current plans to develop the subject property as an oil storage facility had been withdrawn. Plaintiffs then moved for a voluntary non-suit without prejudice to refiling and requested that defendant Village of Worth be required to furnish notice to plaintiffs of any future applications for the development of the premises for processing or storage of oils. Defendants objected to including any notice requirement. After stating that the requirement was merely the extension of a courtesy to a neighboring town, the trial court on December 5, 1973, entered the order here involved which provided in pertinent part:

"NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

(1) That Plaintiffs' Motion to voluntarily non-suit this cause without prejudice to the refiling thereof be and it is hereby granted, and said cause be and it is hereby non-suited without prejudice to the refiling thereof; and

(2) Plaintiffs shall pay costs to the defendants pursuant to Section 52 of the Civil Practice Act; and

(3) That the Defendant, THE VILLAGE OF WORTH, and its appropriate governmental commissions and boards furnish notice to the Plaintiffs of future applications, including applications for building permits, for the development of the premises described in Exhibit A attached hereto and by reference incorporated herein with facilities for the processing or storage of petroleum oils or byproducts therefrom, which notice shall be furnished to the Plaintiffs, or their attorneys, Warren L. Swanson and David A. Lowe, within a reasonable time prior to any hearing before any body, commission or board of said Village of Worth, and within a reasonable time prior to the taking of any action by any such body, commission or board with regard to such application.

(4) This order is a final order and there is no just cause to delay enforcement thereof or appeal therefrom."

On December 19, 1973, defendant Village of Worth moved that paragraph (3) of the order be vacated, which motion was denied. On January 3 and January 4, 1974, notices of appeal from the order of December 5, 1973, were filed by defendants Village of Worth, Rock Road and Sag.

Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 52(1)) provides:

"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof."

Defendants contend that the trial court was without authority to extend affirmative relief to the plaintiffs in the dismissal order, and further, that even if such authority existed, there was no basis in the record of any evidence or showing that plaintiffs were entitled to such relief. Plaintiffs assert that under section 52(1) the trial court must fix the terms of a voluntary non-suit after a trial or hearing has begun and that prior thereto the trial court may in its discretion fix the terms of a voluntary non-suit upon the request of the moving plaintiffs. The purpose of section 52 was to prevent a voluntary dismissal where it would be unfair or unjust to a defendant to permit; the terms "non-suit" and "voluntary dismissal without prejudice" are used interchangeably because there is no difference in effect between them. Juen v. Juen (1973), 12 Ill. App.3d 284, 297 N.E.2d 633.

• 1 Plaintiffs' interpretation of section 52(1) as to the discretion of the trial court before a trial or hearing has begun is erroneous. The trial court is clearly vested with discretion to fix such terms after trial or hearing has begun, but it does not follow that the court has the same discretion prior thereto. Upon proper notice and payment of costs, a plaintiff has an absolute right to dismiss his action before a trial or hearing has begun, and the trial court has no discretion to interfere with the exercise of that right. (Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1947), 17 Ill. App.3d 460, 308 N.E.2d 164; Bernick v. Chicago Title & Trust Co. (1945), 325 Ill. App. 495, 60 N.E.2d 442.) It therefore follows that if the trial court cannot fix terms to the detriment of a plaintiff as to a voluntary non-suit before a trial or hearing has begun, neither can it fix terms for a voluntary ...


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