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In Re Estate of Hardy

OPINION FILED JANUARY 28, 1976.

IN RE ESTATE OF DARRYL GENE HARDY, DECEASED. — (MARSHALL I. TEICHNER, PETITIONER-APPELLEE,

v.

JOHN W. DYAR ET AL., RESPONDENTS-APPELLANTS.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

The respondents, John W. Dyar, Robert S. Monroe, Vernon H. Houchen, Richard C. McDonald, Kirtley E. Wilson, John T. Taylor, individually, and as law partners, and Brenda K. Hardy, appeal from an injunction order entered by the Circuit Court of Cook County prohibiting them from seeking to void any contracts between Barbara L. Hardy and the petitioner, Marshall I. Teichner, in any other court.

The issues presented for review are whether it was error to issue the order because the venue of the estate in Cook County was improper, and whether the injunction was improperly issued because there was no showing the declaratory judgment proceeding would interfere with the orderly administration of the estate or it would result in fraud, gross wrong or oppression.

Darryl Gene Hardy, an employee of the Norfolk & Western Railroad, died on July 28, 1974, as the result of an explosion in the railroad yards at Decatur, Illinois. He died intestate as a resident of Macon County, Illinois, leaving his son, Darryl Gene Hardy, Jr., a minor, as his only heir. Brenda K. Hardy, the mother of the minor heir, was divorced from the decedent at the time of his death.

On July 31, 1974, Barbara L. Hardy, the mother of the decedent, represented by Marshall I. Teichner, filed a petition in the Circuit Court of Cook County, Probate Division, for appointment of herself as administrator of the decedent's estate. On August 2, 1974, the court entered an order making the appointment, and Teichner filed a personal injury action on behalf of the administrator against the Norfolk & Western Railroad in the Circuit Court of Cook County.

On August 1, 1974, Brenda K. Hardy, as a creditor of the estate of the decedent, filed a petition for letters of administration in the Circuit Court of Macon County nominating the First National Bank of Decatur as administrator, and on August 7, 1974, the court appointed the Bank as administrator to collect for the estate of the decedent.

On October 1, 1974, Brenda K. Hardy and the First National Bank of Decatur as administrator to collect, filed with the Circuit Court of Cook County a motion to transfer the estate from Cook County to Macon County because venue was improper in Cook County based on the decedent's residence in Macon County. On October 10, 1974, the First National Bank of Decatur was appointed guardian of the estate of Darryl Gene Hardy, Jr., by the Circuit Court of Macon County, and on October 30, 1974, it filed a motion in the Cook County proceeding to transfer the estate to Macon County because of improper venue. On December 17, 1974, the Circuit Court of Cook County denied the motions stating the Bank had no standing to intervene or raise the question of venue because it could not nominate the party to act as administrator under the statute.

Brenda K. Hardy, as natural guardian of the minor heir, then filed a complaint for declaratory judgment in the Circuit Court of Macon County. The complaint named as defendants Marshall I. Teichner, Barbara L. Hardy, and Leesa Hulvey, who was alleged to have been the girl friend of the decedent. The complaint asked for a determination that the contracts entered into between Teichner and Barbara L. Hardy and between Teichner and Leesa Hulvey were invalid because of the unlawful solicitation of business by Teichner. The complaint specifically alleged that Teichner had made cash payments of $200 each to Brenda K. Hardy and Leesa Hulvey and payment of "various sums of cash" to Barbara L. Hardy along with payment of certain expenses for her.

As a result of this complaint Teichner filed for an injunction in the probate proceedings in the Circuit Court of Cook County, and the court issued an order prohibiting the respondent attorneys from representing Brenda K. Hardy in an action in any court other than the Circuit Court of Cook to void any contracts between Barbara L. Hardy and Teichner and prohibiting Brenda K. Hardy from seeking to void any such contract. The court stated such actions interfere with the orderly administration of the estate.

• 1, 2 The respondents first argue the injunction should be reversed because it was entered by a court in which venue was improper. It is clear that venue was proper in Macon County under the statute (Ill. Rev. Stat. 1973, ch. 3, § 54), because that was the county of the decedent's residence. It is also clear the motion to change venue should have been granted pursuant to the motion of the guardian of the minor heir. Even though the guardian had no authority to nominate an executor, it cannot be doubted that it had sufficient interest in the litigation to enforce the venue statute. In re Estate of Provus (1975), 30 Ill. App.3d 378; In re Estate of Lipchik (1975), 27 Ill. App.3d 331.

However, we find the respondents have acquiesced in the venue of Cook County by not appealing from the order denying the motion for a change of venue. The respondents argue the order was not final or appealable, citing the case of In re Estate of Querciagrossa (1965), 65 Ill. App.2d 280. The administration of a probate estate is not analogous to the litigation resulting from a complaint filed at law. Here the order denying the motion to change venue expressly contemplated the possibility of an appeal. That order stated in part:

"It is ordered that the motion to dismiss for lack of venue or in the alternative to transfer the instant cause to Macon County, Illinois be, and it hereby is, denied.

It is further ordered that bond in the event of the appeal of this order be, and it hereby is fixed at the sum of five hundred and 00/00 ($500)."

• 3 The language of the order clearly indicated that the court considered it to be a final and appealable order, and failure on the part of the respondents to file a notice of appeal has resulted in an abandonment of the issue and a waiver of their right to assert venue in Macon County. It is well settled that a party may insist on proper venue or he may waive it. United Biscuit ...


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