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Richter v. Collinsville Township

OPINION FILED JULY 1, 1981.

MELVIN RICHTER, HIGHWAY COMMISSIONER, PLAINTIFF-APPELLEE,

v.

COLLINSVILLE TOWNSHIP ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. P.J. O'NEILL, Judge, presiding.

MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This case involves a complaint for a writ of mandamus to compel defendants, Collinsville Township and Viola Tucker, treasurer of the town fund of Collinsville Township, to transfer $40,000 from the town fund to the general road and bridge fund of Collinsville Township. The complaint is predicated upon a resolution which was adopted by the voters of Collinsville Township present at the annual town meeting conducted on April 10, 1979. The resolution states:

"I [Melvin Koenig], a registered voter of the Township of Collinsville submit the following resolution to the voters at the annual Town Meeting held on April 10, 1979.

Be it resolved that whereas the estimated amounts for the proper and necessary charges and expenses from the Town Fund of Collinsville Township for the fiscal year commencing April 1, 1979, shall total approximately $131,460.00 and whereas the estimated total receipts collected in the Town Fund total approximately $219,000.00 and whereas there exists a surplus in said Town Fund;

NOW THEREFORE, it is proposed that $40,000.00 of said surplus existing in the Town Fund be designated as surplus funds and said surplus funds be transferred to and paid into the General Road Fund to be used by the Highway Commissioner of Collinsville Township for improving and maintaining the roads of said Township."

As of December 21, 1979, no funds had been transferred from the town fund to the general road and bridge fund pursuant to the resolution. On this date, Melvin Richter, highway commissioner of the road district located in Collinsville Township, filed a complaint seeking a writ of mandamus to compel the defendant township to transfer $40,000 in accordance with the resolution. The township counterclaimed on January 30, 1980, alleging that the statute authorizing the transfer of surplus funds was of no force and effect and that the transfer resolution consequently would be of no force and effect. An amended complaint was filed February 29, 1980, naming Viola Tucker as an additional defendant.

Defendants filed a motion for summary judgment on March 27, 1980, contending that no genuine issue existed as to any material fact and that the complaint was barred by laches. The motion was denied and the cause came to trial on April 29, 1980. Following a bench trial, judgment was entered in favor of plaintiff and an order was entered allowing the writs of mandamus to issue. Neither the report of proceedings nor the judgment order indicates that the trial court made any special or separate findings of fact on the issues raised in the counterclaim.

Defendants raise the following issues on appeal: (1) whether the trial court erred in ruling that plaintiff's cause of action was not barred by laches; (2) whether the trial court erred in denying the motion for summary judgment; (3) whether a surplus existed in the town fund on April 10, 1979, so that the $40,000 could have been transferred to the road and bridge fund; and (4) whether the trial court erred in ordering the writ of mandamus to issue against defendants.

• 1 Prior to considering the issues raised by defendants, we address plaintiff's contention that this appeal should be dismissed because all issues have been rendered moot. Based upon affidavits submitted to this court on appeal, plaintiff asserts that the town board of trustees passed a resolution on May 27, 1980, directing the transfer of $40,000 from the town fund to the general road and bridge fund; that the actual transfer occurred on June 4, 1980; and that plaintiff accepted the funds and a portion of them have been expended for road purposes. Plaintiff concludes that this transfer rendered moot the underlying question of whether a writ of mandamus should issue.

The board's resolution provides in part:

"WHEREAS, by Orders of Associate Judge P.J. O'Neill, a Writ of Mandamus has been issued to compel Town Treasurer Viola Tucker to pay $40,000.00 in town funds to Highway Commissioner Melvin `Butts' Richter by June 9, 1980;

WHEREAS, Town Treasurer Viola Tucker will therefore pay $40,000.00 in town funds to the highway commissioner;

NOW, THEREFORE, IT IS HEREBY RESOLVED that Frank B. Hudak, Attorney for the Town of Collinsville be, and hereby is, authorized to appeal and to take all necessary and proper action required to prosecute an appeal * * * of the Orders entered by Associate Judge P.J. O'Neill * * *."

The enacting clause of this resolution merely authorizes the retention of counsel to prosecute the instant appeal; it does not call for the transfer of any money to the general road and bridge fund. The only reference to such a transfer is in the preamble wherein it is acknowledged that Viola Tucker is under court order to transfer the money and that she will comply with the wishes of the court. On the basis of this resolution, the board cannot be said to have ordered the transfer.

Furthermore, it is well settled that payment of a money judgment does not destroy a judgment debtor's right to appeal. (First National Bank v. Road District No. 8 (1945), 389 Ill. 156, 58 N.E.2d 884; Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill.2d 518, 202 N.E.2d 512; Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 226 N.E.2d 624; Alexander Lumber Co. v. Busboom (1970), 122 Ill. App.2d 342, 259 N.E.2d 76.) Consequently, had the funds been transferred pursuant to the resolution of the township board of trustees after the judgment had been rendered, Viola Tucker ...


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