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People Ex Rel. Armentrout v. City of Aurora

OPINION FILED MAY 1, 1981.

THE PEOPLE EX REL. EUGENE ARMENTROUT, KANE COUNTY STATE'S ATTORNEY, ET AL., PLAINTIFFS-APPELLEES,

v.

THE CITY OF AURORA, DEFENDANT-APPELLANT. — THE PEOPLE EX REL. EUGENE ARMENTROUT, STATE'S ATTORNEY, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF MONTGOMERY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. KRAUSE, Judge, presiding. MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

In these consolidated actions arising from annexation proceedings by competing municipalities, the City of Aurora appeals from a judgment of ouster (No. 80-635) and from a judgment denying Aurora's suit to oust the Village of Montgomery from the same territory (No. 80-475). Aurora contends principally that its prior annexation petition was controlling based upon valid notice. It also argues that Montgomery's subsequent annexation failed for want of proper notice and description of the property to be annexed.

No. 80-635 — AURORA'S ANNEXATION PETITION

Aurora's primary contention is that its notices sent to the trustees of the Montgomery and Countryside Fire Protection Districts properly complied with the statute. One notice was sent by registered mail return receipt requested to the trustees of the fire protection district addressed

"Trustees, Montgomery Fire Pro. Dist. Clay and Railroad Sts. Montgomery, Illinois 60538"

and the other to

"Trustees Montgomery Fire Pro. Dist. 111 S. River Street Montgomery, Ill. 60538."

Both receipts bear the signature "M. Manning" and indicate that the delivery date was June 21, 1978. There was testimony that the notices were sent on June 19, 1978. Counsel for Aurora testified that from the records available there was no indication that anyone named "M. Manning" was a trustee of the districts.

The applicable statute provides:

"When any land proposed to be annexed is part of any Fire Protection District * * * and the annexing municipality provides fire protection * * *, the Trustees of each District shall be notified in writing by certified or registered mail before any court hearing or other action is taken for annexation. Such notice shall be served 10 days in advance. * * *" Ill. Rev. Stat. 1977, ch. 24, par. 7-1-1.

• 1 The Illinois Supreme Court has recently ruled contrary to the argument of Aurora, holding that the failure to serve notice upon individual trustees even though inadvertent and amounting to a "formal defect" is not excused under the statute. (People ex rel. County of St. Clair v. Belleville (1981), 84 Ill.2d 1, 8.) In St. Clair, service upon a majority of the trustees was held not to be the same as service upon "the Trustees" as required by the statute. It follows that here service upon the trustees generally without service on any of the individual trustees amounted to noncompliance.

We conclude that the trial judge correctly concluded that Aurora's attempted annexation was invalid and properly entered a judgment of ouster.

No. 80-475 — MONTGOMERY'S ANNEXATION PETITION

Aurora urges two objections to the annexation by Montgomery. First it argues that the territory was not "wholly bounded by one or more municipalities" as required by section 7-1-13 of the Illinois Municipal Code. Ill. Rev. Stat. 1977, ch. 24, par. 7-1-13.

• 2 Aurora, however, has not preserved this contention for appeal. The present argument is based on the fact that there is a 33-foot gap in the continuity of the boundary of the Village of Montgomery with the land proposed to be annexed. Aurora's complaint in quo warrantor contains a description of the parcel which states that the north boundary is 33 feet south of the south line extended west of Gray Avenue; Montgomery's answer "admits that it exercises jurisdiction over the land described in the complaint" and Aurora's reply denies that Montgomery's exercise of jurisdiction is lawful and generally denies that Montgomery's annexation ordinance was lawful. The reply contains more specific objections but nowhere includes the "not wholly bounded" issue. In its argument for judgment at the close of Montgomery's case Aurora did not object that the territory was not wholly bounded. And ...


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