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Mooring v. Village of Glen Ellyn

OPINION FILED FEBRUARY 7, 1978

JEAN MOORING, PLAINTIFF-APPELLANT,

v.

VILLAGE OF GLEN ELLYN, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Du Page County; the Hon. JOHN J. BOWMAN, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 17, 1978.

On December 14, 1963, two bond issues were approved by the voters of the Village of Glen Ellyn. The first concerned the construction of a surface water drainage system and the second the development of recreational facilities within the Village. The bonds thus approved were issued, and approximately 200 acres of real estate were acquired by the Village to accomplish the purposes of the bond issues. One tract of land acquired in this manner was 20 acres, referred to herein as the Lambert Lake site. On August 28, 1976, the Village of Glen Ellyn issued a special use permit for the Lambert Lake site to allow the construction of a storage, maintenance and office facility for the Glen Ellyn Public Works department. The plaintiff, Jean Mooring, commenced a taxpayer action against the Village of Glen Ellyn seeking to enjoin the construction of the public works facility.

On December 7, 1976, a motion for summary judgment was filed by the plaintiff. Subsequently, the defendant filed a motion for summary judgment, which was later superseded by an amended motion. On January 27, 1977, the trial court entered an order denying the plaintiff's motion for summary judgment and granting the defendant's amended motion. Plaintiff has appealed.

We are faced here with two issues necessary for the determination of this case. First, whether the question of the denial of the plaintiff's motion for summary judgment had been properly preserved for review by this court and, second, whether the granting of the defendant's motion for summary judgment was an appropriate action, given the state of the record in this particular case.

• 1, 2 The rules governing appeals in this State have long been a matter of settled law. One of these rules, jurisdictional in nature, is that the appealed from and relief sought from the reviewing court in his notice of appeal. (Supreme Court Rule 303(c)(2), Ill. Rev. Stat. 1975, ch. 110A, par. 303(c)(2).) It has been generally held, however, that where a deficiency in the notice of appeal is one of form only and not of substance, the appellate court is not necessarily deprived of jurisdiction. (National Bank of the Republic v. Kaspar American State Bank (1938), 369 Ill. 34, 15 N.E.2d 721; Department of Transportation v. Galley (1973), 12 Ill. App.3d 1072, 299 N.E.2d 810.) In addition, the notice should be considered as a whole, and where it fairly and adequately sets out both the judgment complained of and the relief sought, so that the successful party is advised of the nature of the proceedings, the absence of a strict or technical compliance with the form of the notice is not fatal. (People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 63 N.E.2d 405; Department of Transportation v. Galley.) The notice of appeal filed in this case reads as follows:

"YOU ARE HEREBY NOTIFIED THAT JEAN MOORING, Plaintiff, hereby appeals (to the Appellate Court of Illinois, Second Judicial District, Elgin, Illinois), from the judgment in this case in favor of Village of Glen Ellyn entered on the 27th day of January, 1977 granting Defendant's Motion for Summary Judgment, and the Plaintiff-Appellant prays that the reviewing Court reverse said judgment and award to Plaintiff-Appellant a new trial and remand this cause for a new trial."

Any fair reading of this notice of appeal, taking into consideration both the judgment complained of and the relief sought, would limit the proceeding before this court to a review of the order granting the defendant's amended motion for summary judgment. The plaintiff's failure to mention the denial of her motion for summary judgment in the notice of appeal is a matter of substance and not mere form. Accordingly, we will not concern ourselves with the appropriateness of the trial court's denial of her motion.

We turn to the question of whether the granting of the defendant's amended motion for summary judgment was appropriate under the circumstances of this case. The law of summary judgment has been consistently reiterated by the courts of this State, including this court. In the case of Lesser v. Village of Mundelein (1975), 36 Ill. App.3d 433, 437, 344 N.E.2d 29, 32-33, we summarized the rules of law applicable to situations of summary judgment:

"A motion for summary judgment should be granted where there is no genuine issue as to any material fact. The court is to determine the existence or absence of a genuine issue as to any material fact from the affidavits, depositions, admissions, exhibits and pleadings in the case. Pleadings may constitute admissions or be statements of fact, especially where verified.

The summary judgment procedure is not intended to be used as a means of trying an issue of fact, but rather, the function of such procedure is to determine whether there is an issue of fact to be tried. The right of the moving party must be clear, undisputed and free from doubt, and determinable solely as a question of law. Facts must be presented, not conclusions and the judge may not, on a motion for summary judgment draw fact inferences. [Citation.]

The right to summary judgment must be clear beyond question. [Citation.] If the court is presented with any set of facts about which reasonable men might disagree, summary judgment should be denied. [Citation.]

If the issue is debatable the drastic remedy of summary judgment should not be granted and it should not be granted where the facts, although not in dispute, are subject to conflicting inferences and the parties disagree us to what their intention was as shown by the facts."

It is also well settled that in making its determination of the existence of issues of material fact a trial court should construe the pleadings and other documentation strictly against the moving party and liberally in favor of the opponent. Washington v. Draper & Kramer, Inc. (1973), 11 Ill. App.3d 952, 298 N.E.2d 270; Board of ...


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