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Hogan v. Braudon

OPINION FILED JULY 22, 1976.

JOHN J. HOGAN, PLAINTIFF-APPELLEE,

v.

AARON BRAUDON ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Lake County; the Hon. BERNARD JURON, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 27, 1976.

This was an action filed June 27, 1962, to foreclose liens of special assessments purchased by plaintiff Hogan's predecessor in title from the City of Waukegan on November 15, 1950. The Circuit Court of Lake County entered a decree foreclosing the liens and directing sale of a parcel of real estate owned by defendants Joseph J. Drobnick, Jerome P. Drobnick, Mark J. Drobnick, as trustee etc., and First National Bank of Waukegan, as trustee, etc.

Defendants appeal contending:

1. That on the death of plaintiff Hogan on May 31, 1971 the action abated.

2. That due to failure of plaintiff to move the case to hearing for 12 years the cause should have been dismissed.

3. The purported assignee of the deceased Hogan did not prove an assignment.

4. The record shows an assignment from Hogan to the assignee dated January 10, 1974, an impossibility due to death of Hogan in 1971.

5. That defendant's attorney should be awarded $350 attorney fees for work in trial court and an additional $2,000 for the appeal.

1

• 1 At common law, the death of either party at any stage of the proceeding abated the action (People ex rel. Peace v. Taylor, 342 Ill. 88, 95), but even at common law if the interest to be protected was primarily a property interest then the action survived. (Shapiro v. Chernoff, 3 Ill. App.3d 396, 403.) If the right asserted in an action is assignable it survives Creighton v. County of Pope, 386 Ill. 468, 475. Special assessment liens were determined to be assignable in Hogan v. Dalziel, 40 Ill. App.2d 19, 28.

• 2 In Illinois most causes of action now survive. Section 54 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 54) gathers together the principal provisions relating to substitution of parties in cases in which the cause of action survives and establishes the procedures to be followed in these cases. There is no merit to defendant's contention that that action abated on death of Hogan.

2

The complaint herein was filed June 27, 1962. On July 27, 1962, the defendants appeared and filed a motion to dismiss. The motion asked dismissal on the grounds; that the 20-year statute of limitations applied; that the 5-year statute of limitations applied, and that section 9-2-70 of the Municipal Code (Ill. Rev. Stat., ch. 24, par. 9-2-70) applied. The defendants never called up their motion for hearing. At that time Hogan v. Bleeker, 29 Ill.2d 181, and Hogan v. Dalziel, 40 Ill. App.2d 19, were in the process of being appealed. Hogan v. Dalziel on February 1963 decided that neither the 20- nor the 5-year statute of limitations was applicable to preclude suits of this type. Hogan v. Bleeker on ...


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