APPEAL from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Plaintiff, Thornton, Ltd., brought an action in mandamus in the circuit court of Cook County seeking a writ compelling defendants, Cook County treasurer and ex-officio collector Edward J. Rosewell and Cook County clerk Stanley T. Kusper, to issue to plaintiff a certificate of purchase to a parcel of real property. Both plaintiff and defendants moved for summary judgment and the court entered judgment in favor of defendants. Plaintiff appeals.
Plaintiff argues that it was entitled to summary judgment as a matter of law upon the stipulated facts, where (1) defendants' answer pleaded only those defenses which had been raised in their motion to strike and dismiss, which had been denied and which defenses therefore had been ruled insufficient as a matter of law, and (2) the defenses are insufficient to overcome plaintiff's right to a certificate of purchase, where plaintiff purchased the property for taxes in reliance on public records maintained by defendants and had timely paid to defendants all sums due as shown by the records, and defendants have refused to issue the certificate until further sums not shown on the records relied on are paid.
The undisputed facts reveal that plaintiff was the successful bidder at a tax judgment sale held in Cook County on January 22, 1976, for an improved parcel of real estate. Plaintiff timely paid the sum of $15,065.96. Before bidding at the sale, plaintiff had examined the tax judgment, sale, redemption and forfeiture record (hereinafter referred to as the Record) to discover the amount of taxes due and owing against the property it proposed to buy. The Record, required by statute to be maintained by the county collector and kept in the office of the county clerk (Ill. Rev. Stat. 1975, ch. 120, par. 713), showed the taxes for 1972 stamped as "paid" and the taxes for 1973 were not indicated as unpaid. According to the Record, therefore, there were no taxes due and outstanding against the parcel except for the 1974 taxes, which were the subject of the sale. After paying $15,065.96, plaintiff applied to the clerk for a statement of all taxes remaining due and unpaid on the property and not included in the defendants' advertisement offering the property for sale, in conformity with the statute (Ill. Rev. Stat. 1975, ch. 120, par. 728). It is uncontroverted that plaintiff reasonably believed that this statement would reveal no additional taxes as due and owing. However, defendant clerk's statement revealed that the Record was in error; that the collector's warrant book revealed that the general taxes for 1972 and 1973 for this parcel had not been paid, amounting to an additional $36,000; and that payment in this amount was required before a certificate of purchase would be issued to the plaintiff.
Plaintiff refused to pay the additional $36,000 and demanded a certificate of purchase be issued to it, tendering the required fee for the certificate. When the demand was rejected and the tender refused by defendant clerk, plaintiff filed this suit for mandamus. Defendants moved to strike and dismiss the complaint, asserting that plaintiff failed to state a cause of action in mandamus because plaintiff had no clear right to the relief requested, that plaintiff came to equity with unclean hands, that the relief requested would not promote substantial justice and that the complaint otherwise did not state a cause of action.
This motion was denied, the court stating in response to defendants' offer to stipulate to certain facts:
"If you want to offer evidence, I will deny your motion to dismiss, give you 10 days to file an answer and continue the temporary restraining order until further order of Court, and dispose of it on the answer because I can't take evidence on the motion to dismiss."
Defendants filed an answer and raised affirmative defenses which were substantially the same issues and arguments as had been presented in the motion to strike and dismiss. Plaintiff moved to strike the answer and moved for summary judgment. Defendants cross-moved for summary judgment, to which plaintiff responded with a motion to strike.
A hearing on all the above motions was held on June 4, 1976. The court, in first considering the question of defendants raising in answer the same matters which had been raised in their motion to strike and dismiss, stated:
"Let me tell you this. I want to know I will straighten out all the pleadings. A judge has control of all of the orders of his case. I want to know under what theory of law you have a right to relief in this case. If I have to straighten out the pleadings in order to do this, * * *."
The court then denied all of plaintiff's motions, including an oral motion to reply or otherwise plead to defendants' affirmative defenses, and entered summary judgment in favor of defendants.
Plaintiff timely moved to vacate the judgment. This motion was denied after argument on July 22, 1976.
• 1 Plaintiff argues on the procedural issue that, once the court denied defendants' motion to strike and dismiss, it had determined that plaintiff's allegations, if proven, entitled plaintiff to the relief sought. As a consequence, it is contended, the court erred in allowing defendants to relitigate the same issues through their answer and the court erroneously reversed itself in granting summary judgment to defendants. Plaintiff principally relies on section 48(4) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 48(4)), which provides that the raising of issues by motion to dismiss does not preclude the raising of them subsequently by answer "unless the court has disposed of the motion on its merits." Plaintiff also cites Randall Dairy Co. v. Pevely Dairy Co. (1937), 291 Ill. App. 380, 9 N.E.2d 657, and Citizens National Bank v. Glassbrenner (1941), 377 Ill. 270, 36 N.E.2d 364, as cases where the rule has been enforced against the pleader. (See also Hitchcock v. Reynolds (1935), 278 Ill. App. 559.) But plaintiff has not cited, nor has our research revealed, any reported cases in which an Illinois reviewing court has held it to be error for a trial court to refuse to preclude a defendant from raising an issue, by way of answer, which has already been raised in a motion to dismiss.
• 2 We have read the transcript of the hearing on the motion to strike and dismiss and conclude that the motion was not decided on the merits. The court was concerned that the owner of the property had not been served with notice of the proceeding and a discussion of this matter was had. Another point argued at the hearing and decided in plaintiff's favor was whether a temporary restraining order should issue to defendants to prevent the 10-day period described in section 247 of the Revenue Act of 1939 (Ill. Rev. Stat. 1975, ch. 120, par. 728) from running against plaintiff. The portion of the record quoted above also discloses that the court denied the motion on the procedural ground that it appeared defendants were offering evidence and the court found it inappropriate to hear evidence on a motion to strike and dismiss. ...