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Hoga v. Clark





Appeal from the Circuit Court of Madison County; the Hon. Thomas Hildebrand, Judge, presiding.


Plaintiffs, Dale and Irene Hoga, appeal from a judgment of the circuit court of Madison County finding them in "indirect civil contempt" of court and sentencing them to five and four months in jail respectively. Plaintiffs were found to have violated a previous order of the court enjoining them from interfering with the construction of a fence separating their property from that of defendants Charles and Beulah Clark. In this appeal plaintiffs contend (1) the trial court erred in denying their motion for change of venue based upon prejudice of the trial judge; (2) the evidence against them was insufficient to support the court's finding of contempt; and (3) the punishment imposed by the trial court was inappropriate and not supported by the record.

Initially, we note that the defendants-appellees have not filed a brief in this court. We will, however, consider the merits on the appeal pursuant to the authority of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

The proceedings giving rise to this appeal were commenced on June 12, 1980, when the plaintiffs filed a complaint for injunctive relief to prevent the defendants from encroaching upon their property. The parties own adjoining lots located in Langen Heights subdivision, Madison County, Illinois. The complaint alleged that the defendants had threatened to encroach upon the plaintiffs' property by building a fence that would be partly on their lot. The defendants filed an answer to the complaint and a counterclaim in which they alleged that the plaintiffs had encroached upon the defendants' property and had thwarted efforts to survey the premises by cutting lines and moving survey stakes and iron pipes left by the surveyors.

In an order entered October 30, 1980, the trial court noted that the issue of ownership and boundaries of the subject property had been settled by an order entered in a previous suit on November 7, 1977. The court ordered that the parties be bound by this previous determination of ownership and enjoined each of the parties from "harassing, bothering, interfering with, molesting, striking, or at any way contacting any of the opposite parties * * *." The court further stated that "each of the parties is enjoined from at any way encroaching upon the property of the other as described and allotted by [the November 1977 order] or from moving any survey stakes, iron pipes or other indicia of the boundaries of [the respective lots]." The court additionally stated that it would retain continuing jurisdiction of the parties and the subject matter of the suit.

On January 30, 1981, upon stipulation of the parties, the court ordered that the parties arrange to have the subject property surveyed so that permanent stakes could be placed at the lot corners to establish the boundaries of the respective lots. On April 7, 1981, the defendants filed a motion to enforce this order, alleging that the plaintiffs had refused to pay their portion of the survey costs. The court entered an order on April 20, 1981, directing the plaintiffs to pay for the survey, which was to be made within 30 days.

On July 28, 1981, an evidentiary hearing was held on the enforcement of the court's order of October 30, 1980. The court found "that the plaintiffs Dale and Irene Hoga have wilfully refused to obey this court's order and are in contempt of court." The order of July 28, 1981, continued as follows:

"A. The defendants shall be unmolested by the plaintiffs during the erection of a fence along the property line dividing the parties' property according to the court ordered survey.

B. The plaintiffs shall not trespass across lot 43 of the defendants' property.

C. Defendants' contractor is permitted to remove any portion of plaintiffs' fence which crosses defendants' property for the purpose of erecting defendant's fence.

D. The court reserves the issue of punishment for the plaintiffs' contempt until further hearing of this court.

E. Plaintiffs are warned that any harassment of the defendants' agents or of the defendants or any further violation of this court's order will subject them to an immediate hearing on the issue of contempt.

F. Plaintiffs shall be responsible for any acts of their agents in ...

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