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Dept. of Conservation v. Cox

OPINION FILED APRIL 23, 1981.

THE DEPARTMENT OF CONSERVATION, PETITIONER-APPELLANT,

v.

KIM CARROLL COX ET AL., DEFENDANTS. — (KIM CARROLL COX, DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Crawford County; the Hon. ROBERT W. WHITMER, Judge, presiding.

MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The Department of Conservation of the State of Illinois sought by eminent domain to take the private property here involved for the public purpose of creating a nature preserve. To that end it filed a petition for condemnation on September 20, 1974. On March 10, 1980, the trial court granted the motion of defendant, Kim Carroll Cox, to dismiss the action for lack of diligent prosecution. From this order of dismissal petitioner appeals.

Defendant's property is part of Chauncey Marsh, proposed to be acquired and dedicated as a nature preserve for scientific and educational use. The petition that was filed on September 20, 1974, named as defendants, "Carroll T. Cox, Alice M. Cox, Caswell J. Crebs, Mary W. Crebs, and Unknown Owners or Persons in Interest." On October 23, 1974, defendants moved to have dismissed all named defendants except Carroll T. Cox, "the only person interested in the land sought to be condemned." Between October 23, 1974, and November 19, 1976, over two years later, the record sheet shows no further activity whatever with regard to this suit.

The entry on the record sheet for November 19, 1976, refers to a "Letter of November 19th 1976 from Special Assistant Attorney General filed as a motion." The letter, addressed to the clerk of the circuit court, states:

"By your letter of October 15, 1976 you have refused our request that the above-captioned matter be placed on the docket for pre-trial conference. However, it is our understanding that Illinois Supreme Court Rule 218(c) provides that an action shall be placed for consideration on the pre-trial calendar on motion of any party. No mention is made in the rule of both parties [sic] having to agree upon a date, as you intimated in your letter referred to above.

If necessary in order to place this cause on the pre-trial calendar, we direct that this letter be considered as a motion and filed with the court file of the above-captioned cause, in which case we do hereby move on behalf of the Department of Conservation that the above-captioned cause be placed on the docket for pre-trial conference.

We further request that you forward to us a certified copy of the Letters of Office issued in the estate of the late Carroll Cox. We do not know your file number for said estate, due to the fact that the attorney for the estate has refused to divulge such information to this office."

Between the date of this letter, November 19, 1976, and March 21, 1978, a period of nearly 1 1/2 years, the record sheet again shows no further activity whatever with regard to this suit.

After this time had passed, petitioner filed, on March 21, 1978, a suggestion of death of Carroll T. Cox and motion to substitute his devisee, Kim Carroll Cox, as defendant. Thereafter, for a period of approximately eight months, until November 13, 1978, the record sheet evidences considerable activity in this cause. During this period of time those defendants who had no interest in the real property in issue were ordered dismissed, and Kim Carroll Cox was ordered substituted as defendant, replacing the deceased Carroll T. Cox. Defendant filed a cross-petition for damages, caused by the taking, to the remainder of the tract. Various motions were filed by both parties, and certain evidentiary and discovery matters were taken up, most of which need not be discussed here.

Part of the entry in the record sheet for August 21, 1978, states:

"Amended Petition to be filed by Sept. 1, 1978 and responsive pleading thereto by Sept. 19, 1978. Hearing for preliminary motions not requiring evidence set for Sept. 29, 1978 at 10 AM and hearing on traverse and other evidentiary issues other than damages set for Oct. 10, 1978 at 10 A.M."

On October 17, 1978, upon defendant's motion, the trial court ordered Robert Corrigan, chief of the land acquisition division of the Department of Conservation, to appear for deposition. Ten days later, on October 27, 1978, defendant took his evidence deposition. Shortly thereafter, on November 6, 1978, defendant filed a notice for appearance at trial of three of petitioner's employees, including its Director, David Kenney. Petitioner subsequently moved, on November 13, 1978, to quash the defendant's notice for appearance at trial of David Kenney. That same day the court heard arguments on the motion to quash and, among its rulings, ordered the "[t]raverse hearing continued to allow Def't to take additional Discovery from Petitioner." This is the last entry on the record sheet for over a year, until December 21, 1979, when defendant filed a motion to dismiss for lack of diligent prosecution.

In this motion to dismiss, having referred to the "great lapses of time" that had taken place "in the activity in this file," defendant stated:

"3. That the last activity in said file has been more than 1 year ago, at which time the Defendant was granted the right to take the discovery deposition of David Kenney, Director, ...


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