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City of Chicago v. Cosmopolitan Nat'l Bk.

OPINION FILED SEPTEMBER 27, 1979.

THE CITY OF CHICAGO, PLAINTIFF-APPELLEE,

v.

COSMOPOLITAN NATIONAL BANK OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH L. BATH, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ The defendants' rental property was placed in receivership after a finding that it was in a dangerous and unsafe condition. The defendants appealed, contending that the order was improper, against the weight of the evidence and unconstitutional. They have also, in their brief and by various motions, complained of the receiver's acts or failure to act since his appointment and sought to have him dismissed. Finally they complain of the trial court's refusal to permit a supersedeas bond and have sought, in this court, to have the appointment stayed pending the appeal. We affirm the trial court's appointment of a receiver, and refusal to permit a supersedeas bond as being proper exercises of discretion. We rule that we have no jurisdiction to consider either the defendants' motion to have the appointment vacated or events occurring after the appeal.

The city of Chicago on August 3, 1978, filed an action against the defendants because of various violations of the Municipal Code. In count I the city charged that the defendants — the trustee, the owners, the managing agents, and others with a financial interest in the subject premises — had failed to maintain facilities and equipment, such as kitchens and stoves, in a safe and sound working condition, in violation of section 78-17.9 of the Municipal Code of Chicago, Illinois. It also charged that the defendants had failed to provide an adequate supply of hot water with a minimum temperature of 120 degrees F., in violation of section 78-13.11 of the Municipal Code. Count I prayed for the imposition of a fine upon the defendants for each day the violations continued.

Count II alleged that the commissioner of buildings of the city of Chicago had determined that the said building was in a dangerous and unsafe condition and that a fine would be inadequate to effectuate the abatement of the nuisances; it prayed for the entry of temporary and permanent injunctions and for the appointment of a receiver.

Special service of summons was made on the defendant trustee, Cosmopolitan National Bank of Chicago, on August 3, 1978. The summons announced that the case would be tried at 11 a.m. on August 4, 1978. Special service of the same summons was also effected on the defendant managing agent, Coates & Miller.

The attorney for defendant Coates & Miller appeared at the August 4 hearing and, having asked for and received a 10-minute continuance in which to file his appearance, did so. He made no objection to the fact that his client had been served only the day before. When the city at the August 4 hearing filed another motion (separate from that in count II of the complaint) for the appointment of a receiver, defense counsel did object to that motion on the grounds he had not received 48 hours' notice. This objection was overruled on the grounds the order was in the nature of a temporary restraining order.

Both parties presented evidence at the August 4 hearing. The first witness for the city was Edward R. Gordon, a tenant in the subject premises. He stated there were 15 other families living in the building. Gordon identified a number of photographs of the subject premises that had been taken in his presence by one Terry Rufus, as truly and accurately reflecting conditions existing at the time they were taken. The photographs showed the frame of a back door not intact, several broken windows, deteriorating plaster, a broken board on a second-floor landing, missing bannisters, a bathroom with deteriorating plaster around the sink, deteriorating plaster on a ceiling, plaster missing on a wall near a sink, plaster completely missing from a ceiling, tile missing from a bathroom in a burned-out apartment, the deteriorating ceiling of the same burned-out apartment, the destroyed floor of the same burned-out apartment, debris, a rat hole and water draining into a pan from the sink in the witness' kitchen. Counsel for the city supplied the information that the pictures were taken on July 24, 1978.

Plaintiff's photographic exhibits were admitted into evidence over objection.

The next witness for the city was Tony DeLucio, a special account representative employed by the Peoples Gas, Light and Coke Company. He stated that the gas company had records, kept in the ordinary course of business, relating to the building at 334 to 346 North Mason, also known as 5945 West Lake Street. The records showed that gas was being provided there for cooking only. Previously, gas had been supplied for hot water and heat, but the gas company discontinued such service on July 24, 1978. The building's gas meter was removed on that date because of past-due gas bills in the amount of $17,257.50.

Levi Washington, a code enforcement building inspector employed by the city of Chicago, was the third witness for the city. He testified that plaintiff's exhibits each depicted building code violations.

On cross-examination, Washington admitted that when he was there on the day before the hearing, someone was working on the porches.

Vera Allen, a tenant in the subject premises, also testified for the city. She stated that as she was opening a screen door on the premises a glass window fell out and hit her. She also said that the water in her apartment was hot in the morning but cooler later in the day and that it was not hot enough to take a bath in.

The defense called two witnesses. The first was Harrison Daniels. Without stating in what capacity he became informed of the substance of his testimony, he stated that the porches of the subject premises were in the process of being repaired, that a carpenter was working there, and that there was hot water in the building.

On cross-examination, Daniels said that the carpenter was employed by Coates & Miller to repair the back porches, that the carpenter was also doing work on the inside, that he had inspected the carpenter's work, that it was done in a workmanlike manner, that they were permit repairs, that the carpenter would also repair the interior staircases, that the carpenter had a helper, that the carpenter's name was Radolk, that he was a "general all around" worker, that he did plumbing as well as carpentry, and that he was going to fix the front door too. Daniels also testified that he had employed a Kenneth Moore to do some plastering and that Moore was going to do the job on the coming Saturday. Daniels said those workers did not have written contracts. Daniels admitted that he did not yet have a price on the job, saying that he first wanted to see if it was done correctly. He said Moore had been hired only for one job on the first floor.

On redirect examination, Daniels was shown the plaintiff's photographic exhibits and he expressed the opinion that the deterioration shown was the result of vandalism. Daniels testified that the burned-out apartment was unoccupied.

Robert Lark, the janitor of the subject premises, also testified for the defendants. He stated that there ...


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