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La Grange Bk. #1713 v. Du Page County Bd.

OPINION FILED DECEMBER 21, 1979.

LA GRANGE BANK #1713, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

DU PAGE COUNTY BOARD OF REVIEW, DEFENDANT-APPELLEE AND CROSS-APPELLANT. — JACK L. URETSKY ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS PROPERTY TAX APPEAL BOARD, DEFENDANT-APPELLEE.



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

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Plaintiffs, real property taxpayers, bring these consolidated appeals from two proceedings in the circuit court of Du Page County, namely, a proceeding for administrative review from a decision of the State Property Tax Appeal Board (hereinafter PTAB), and a review by writ of certiorari of a decision of the Du Page County Board of Review (hereinafter Board). The Board also cross-appeals from the trial court's denial of its motion to dismiss the petition for writ of certiorari. In the proceeding for administrative review, plaintiffs challenged the affirmance of the 1974 real estate tax assessment by the PTAB. The property which is the subject of both appeals (subject property) is a 1 1/2-story brick house, located at 206 North Grant in Hinsdale, Illinois. Built in 1926, the house is situated on an 84- by 186-foot lot and has an area of 1681 square feet. A 21- by 20-foot stucco garage is also situated on the property. The house has a full basement, two baths, one of which is located on the second floor together with two bedrooms and an attic.

In 1973, the Downers Grove township assessor's office viewed the subject property for the 1974 assessment year. The assessment placed on the subject property as of January 1974 was as follows: land — $8,510, improvements — $17,950, totaling $26,460. The plaintiffs contested the assessment before the Board, and the property was viewed again. The second viewing of the subject property showed that it suffered from some deterioration due to deferred maintenance. As a result of this finding, the Board reduced the original assessment on the subject property to $24,290 total. Through the use of the Du Page County average sales assessment ratio of .3302, this assessment indicated that the approximate value of the subject property would be $73,600.

Thereupon, plaintiffs appealed the Board's decision to the PTAB. At the de novo hearing before the PTAB, plaintiffs' witness, Bert Snyder, an area realtor and appraiser, testified that he originally viewed the subject property in July of 1971, and in his opinion the value of the property at that time was $45,500. He again viewed the property in March of 1975; his opinion of the value of the property at that time was $49,500. In arriving at this valuation, he considered the occupancy of the property as a home and the depreciation in the market value of the property due to a general state of disrepair. However, the witness further testified that he did not view the property as of the assessment date of January 1974 nor did he attempt to determine the physical condition of the property as of January 1974. He further stated that the subject property could be worth approximately $70,000.

In support of the assessment, the Downers Grove township assessor testified concerning three properties, located in close proximity to the subject property and comparable to the subject property. The first comparable was a 1 1/2-story brick house with a full basement located at 138 North Grant in Hinsdale. The house is situated on an 82- by 202-foot lot and has 1871 square feet of space. A 13- by 23-foot brick garage is also situated on the property. The house was completed in 1922. This property was assessed for the 1974 year at $26,580; it sold in August of 1974 for $75,000. The second comparable was a two-story brick house with a basement located at 224 North Grant in Hinsdale. This house is situated on a 67- by 186-foot lot and has 1048 square feet of space. The house was completed in 1939. The 1974 assessment placed on this property was $21,260; the property sold in March of 1974 for $61,000. The third comparable property was a two-story brick house with a basement located at 220 North Grant in Hinsdale. This house is situated on a 57- by 186-foot lot and has 936 square feet of space. A 12- by 20-foot garage is also located on the property. This house was completed in 1926. The 1974 assessment placed on this property was $19,640, and it sold in April of 1974 for $67,500. Based on the above testimony, the PTAB determined that the correct 1974 assessment of the subject property was $24,290.

Thereafter, on March 23, 1976, a complaint for administrative review was filed in Cook County Circuit Court. On April 1, 1976, plaintiffs received a letter from the PTAB requiring payment of $245 for the preparation of the record of the proceedings before the PTAB for the administrative review action. Plaintiffs then filed a motion to compel the preparation of the record without cost. On April 12, at the hearing on this motion, the attorney for the PTAB informed the trial court of a possible defect in venue and suggested that the case be continued for a week or two so that the parties might resolve it; the plaintiffs agreed. On April 19, Judge Healy granted PTAB's motion for a transfer of venue to Du Page County. However, on August 18, 1976, Judge Healy vacated his order and transferred the case to Judge Berg of Cook County Circuit Court. On September 1, 1976, Judge Berg, on the motion of the PTAB, transferred the case to Du Page County where it was assigned to Judge Unverzagt. In an order entered on July 5, 1977, Judge Unverzagt affirmed the decision of the PTAB. In his letter opinion he found that PTAB's determination that $24,290 was the correct assessment to be supported by the evidence and in accordance with law.

During the pendency of the above proceedings, plaintiffs sought review of the Board's decision on the 1976 assessment by writ of certiorari. The Board filed a motion to strike and dismiss the petition which was denied by the trial court. After reviewing the transcript of proceedings and having heard the arguments of counsel, the trial court determined that the proceedings conducted by the Board were legal and quashed the writ. On October 25, 1977, upon plaintiff's motion, the trial court consolidated the 1974 assessment action with the 1976 assessment action. Thereafter, plaintiffs applied to the trial court for leave to join additional parties and to file a supplemental complaint, contesting the 1977 assessment. On February 3, 1977, Judge Teschner entered a final order denying that motion. This appeal followed.

• 1 The first issue on appeal is whether the trial court erred in granting defendant a change of venue from Cook County to Du Page County. Plaintiffs contend first, that the PTAB has waived any objection to venue when it demanded that plaintiffs pay $245 for the preparation of the record and made no objection to venue in Cook County at that time, and further, that the April 12 stipulation to a continuance by the PTAB's counsel amounted to a general appearance, giving the court jurisdiction over the PTAB. (People v. Estep (1955), 6 Ill.2d 127, 126 N.E.2d 637.) However, in Estep the defendant contended that a judgment entered against him was void due to improper service of process. During the pendency of the proceedings, counsel for defendant appeared several times only to move for a continuance of the proceedings. No objection was made on these occasions to the court's jurisdiction over defendant. On appeal, the reviewing court held that any action on the part of the defendant, including a stipulation for a continuance, except to object to the jurisdiction, which recognizes the case in court, will amount to a general appearance. In the case before us, however, at the April 12 hearing, plaintiff's motion to compel preparation of the record was never held and the only discussion centered on the question of venue. While present for the hearing on plaintiffs' motion, counsel for the PTAB informed the trial court at the outset of the hearing that there might be a problem of venue and requested a continuance in order for the parties to work it out, which was agreed to by plaintiffs. Therefore, we cannot conclude on the basis of the PTAB's presence by counsel at the April 12 hearing that the PTAB has waived any objection to venue.

Section 5 of the Administrative Review Act (Ill. Rev. Stat. 1975, ch. 110, par. 268) provides that where the particular statute involved does not prescribe venue (which is the case here), the action to review a final administrative decision may be commenced in the Circuit Court of any county in which "(1) any part of the hearing or proceeding culminating in the decision of the administrative agency was held, or (2) any part of the subject matter involved is situated, or (3) any part of the transaction which gave rise to the proceedings before the agency occurred." While plaintiff Uretsky was a resident of Cook County when the action was filed, the subject property was located in Du Page County and all the hearings were held in Du Page County. However, plaintiffs rely on the last sentence of section 5 which provides:

"* * * The court first acquiring jurisdiction of any action to review a final administrative decision shall have and retain jurisdiction of the action until final disposition thereof."

• 2 We do not quarrel with plaintiff's assertion that the circuit court of Cook County had the jurisdiction to hear administrative review actions in property tax cases. Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which the particular case belongs. (Compare Merit Chevrolet, Inc. v. Department of Revenue (1965), 33 Ill.2d 207, 210 N.E.2d 470.) The question here, however, is one of venue, not jurisdiction.

• 3 Section 8(2) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 8(2)) provides:

"All objections of improper venue are waived by a defendant unless a motion to transfer to a proper venue is made by him on or before the date upon which he is required to appear or within any further time that may be granted him to answer or move with respect to the complaint * * *."

Plaintiffs filed their complaint for administrative review on March 23, 1976; a summons was also issued on the same date. Under Supreme Court Rule 291 (Ill. Rev. Stat. 1975, ch. 110A, par. 291), the defendant was required to appear within 35 days after this date. Defendant filed its motion for change of venue on April 15, 1976. Since the motion was filed before the time that defendant was required to appear ...


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