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Bond v. Dunmire





Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.


This appeal involves a complaint praying that defendants be enjoined from maintaining a barrier across East Street in the H.E. Haag subdivision located in the city of Benld, Macoupin County. The complaint was dismissed on two grounds: first, the cause was barred under the doctrine of res judicata by the judgment in a previous case, No. 79-CH-16; and second, the complaint failed to state a cause of action since plaintiffs did not allege the necessary elements for injunctive relief under the law. The complaint was dismissed with prejudice at plaintiffs' cost on the basis of the pleadings. Plaintiffs appeal from the judgment of the circuit court of Macoupin County. We affirm in part, reverse in part, and remand the cause.

Plaintiffs raise two issues on appeal: (1) whether the trial court erred in concluding the cause was barred by the prior judgment in No. 79-CH-16, Bond v. Dunmire, under the doctrine of res judicata; and (2) whether the court erred in dismissing the complaint for failure to state a cause of action.

An understanding of the facts in this case would be best served by examination of the following diagram of the street in question and the contiguous property appurtenant thereto. The property is located in the Haag subdivision, which was platted in 1905 and by which the one-block, 40-foot-wide street, East Street, was dedicated to the public use forever, along with all other streets and alleys as platted in the subdivision. The Bonds own lots 14, 15, 16, 17, 18, and 19, the eastern edge of the property abutting on East Street. The Dunmires own lots 9, 10, 11, 12, and 13, which lie south of the Bonds' property, and lot 13 is bordered on the east by East Street. Plaintiff Delaney owns a triangular property adjacent to the properties of the Bonds and Dunmires, the western border of which abuts East Street. The entire subdivision is bordered on the south by property along the northern border of which is a strip now referred to as Sawyerville Road. The Bonds alleged that both they and the defendants derived title to their properties from successors in title to H.E. Haag, the original owner of the subdivision land. These properties, as well as the triangular property belonging to plaintiff Delaney, appear within the platted subdivision as shown by the 1905 plat, an exhibit herein.

Around 1979, the Dunmires erected, and have since maintained, a barrier of railroad ties and wire across East Street along their property's northern border. The Bonds and Mr. Delaney commenced this action seeking an order requiring the Dunmires to remove the barrier from East Street, thereby allowing free ingress and egress to and from their properties. Count I of the complaint pertained to the Bonds, and count II of the complaint pertained to Mr. Delaney. Inasmuch as defendants' motion to dismiss raised the claim of res judicata only as to count I, we treat the counts separately.

Defendants argued, and the trial court so found, that the issues raised in count I of the complaint were substantially the same as the issues raised in cause No. 79-CH-16, Edward J. Bond v. Clarence Dunmire, wherein the amended complaint was dismissed at plaintiff's costs on April 8, 1980. In that case, as in this, Bond sought injunctive relief against Dunmire in the matter of the barrier across East Street on the basis of the plat and dedication of the streets and alleys therein to public use. The trial court reviewed the court file in No. 79-CH-16 and concluded that the complaint was dismissed for failure to state a cause of action and was, therefore, disposed of on its merits. The order of dismissal was thus involuntary and for reasons other than for lack of jurisdiction, improper venue, or failure to join an indispensable party and constituted an adjudication on the merits. See Supreme Court Rule 273 (87 Ill.2d R. 273).

Plaintiffs maintain that the order in No. 79-CH-16 was not a final judgment, since it neither contained the words "with prejudice," or words of similar meaning, nor stated specifically the basis on which the dismissal was granted. Plaintiffs urge that the dismissal in the prior action may have been upon some technical deficiency rather than on the merits and that, in view of the wording of the order, defendants have not sustained the burden of proving the complaint was dismissed on its merits.

This court recently discussed the principle of res judicata in Redfern v. Sullivan (1982), 111 Ill. App.3d 372, 375-76, 444 N.E.2d 205, 208. Res judicata is a doctrine which reflects the public policy favoring finality in litigation and judicial economy. (Smith v. Bishop (1962), 26 Ill.2d 434, 187 N.E.2d 217.) The doctrine of res judicata is divided into two branches: estoppel by judgment, sometimes referred to as res judicata, and estoppel by verdict, also known as collateral estoppel. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App.3d 972, 387 N.E.2d 785.

• 1-3 Estoppel by judgment (res judicata) provides that a valid judgment in a previous action between the parties bars a subsequent action between those parties on the same claim or cause of action. (City of Hickory Hills v. Village of Bridgeview (1977), 67 Ill.2d 399, 367 N.E.2d 1305.) Causes of action are identical where the evidence necessary to sustain a second verdict would sustain the first, i.e., where the causes of action are based upon a common core of operative facts. (Redfern v. Sullivan (1982), 111 Ill. App.3d 372, 444 N.E.2d 205.) The doctrine applies not only to those issues which were actually raised in the first proceeding, but also to any issues which might have been raised in that proceeding. (Kahler v. Don E. Williams Co. (1978), 59 Ill. App.3d 716, 375 N.E.2d 1034.) Where the doctrine of estoppel by judgment properly applies, it operates without regard to whether the prior adjudication is correct or erroneous. Morris v. Union Oil Co. (1981), 96 Ill. App.3d 148, 421 N.E.2d 278; La Salle National Bank v. County Board of School Trustees (1975), 61 Ill.2d 524, 528-29, 337 N.E.2d 19, cert. denied (1976), 425 U.S. 936, 48 L.Ed.2d 177, 96 S.Ct. 1668; People ex rel. McAllister v. East (1951), 409 Ill. 379, 100 N.E.2d 746; People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.

Count I of the complaint herein reflects an identity of parties or their privies, i.e., the Bonds and the Dunmires, and substantially the same demand involving the same barricade. Plaintiffs' counsel argued in the trial court that as new counsel in this matter, he sought to phrase the pleadings in this action consistent with those in Cook v. Mighell Construction Co. (1976), 40 Ill. App.3d 1032, 353 N.E.2d 43, wherein the complaint for injunctive relief was successful. Plaintiffs' counsel argued that the complaint herein alleged additional facts, e.g., that the city had for many years established and maintained East Street as a public street and, more recently, had attempted to abandon a portion or all of it. However, it does not appear from the record that this fact or any other fact essential to plaintiffs' cause of action has come into existence subsequent to the prior action. Hence, this cause is not within the exception from the application of res judicata referred to in Pratt v. Baker (1967), 79 Ill. App.2d 479, 223 N.E.2d 865, for premature actions where time for performance by a defendant has not arrived, or where the plaintiff has not performed a condition precedent to recovery.

Although the April 1980 order of dismissal did not use the words "with prejudice," which did appear in the dismissal orders considered in Brainerd v. First Lake County National Bank (1971), 1 Ill. App.3d 780, 275 N.E.2d 468, and Schaeffer v. Zaltsman (1975), 29 Ill. App.3d 1011, 331 N.E.2d 212, this does not deprive the order of its finality. In Bates v. Ulrich (1976), 38 Ill. App.3d 203, 204, 347 N.E.2d 286, 288, this court stated:

"A general dismissal with no right given to plead over, and followed by no request for leave to plead over is a final, appealable order. (Doner v. Phoenix Joint Stock Land Bank, 381 Ill. 106, 45 N.E.2d 20.) Substance, not form, determines whether the order is final. (Peach v. Peach, 73 Ill. App.2d 72, 218 N.E.2d 504.) The phrase that defendant `go hence without day' are not words of art essential to finality. (Lakatos v. Prudence Mutual Casualty Co., 113 Ill. App.2d 310, 314, 252 N.E.2d 123.) Neither does finality depend upon whether the `suit,' `cause of action' or `complaint' is dismissed. (Martin v. Masini, 90 Ill. App.2d 348, 354, 232 N.E.2d 770.) The record here demonstrates that the trial judge intended the order in question to be final. On the first two occasions his order specifically dismissed the complaint and granted leave to amend. The order in question dismissed the `cause' not the complaint, and assessed costs against the plaintiff. Had the order been other than final, the trial judge would have had no authority to assess the costs."

In No. 79-CH-16, the trial judge allowed defendant's first motion to dismiss, granting leave to amend. Later, the trial court allowed defendant's motion to dismiss the amended complaint without granting leave to amend or stating the basis for dismissal. The April 1980 order dismissing the first amended complaint assessed costs against plaintiff. Thereafter the trial court retained jurisdiction for 30 days for purposes of seeking leave to file a second amended complaint. Plaintiffs neither availed themselves of that jurisdiction nor took an appeal. In St. Joseph Data Service, Inc. v. Thomas Jefferson Life Insurance Company of America (1979), 73 Ill. App.3d 935, 393 N.E.2d 611, this court observed that Supreme Court Rule 273 functions to place the burden of clarity in the dismissal order on the plaintiff, i.e., the plaintiff must persuade the trial court either to include a specification that the dismissal is without prejudice or to permit an amendment. If the plaintiff is unsuccessful, his recourse is to appeal. The April 1980 dismissal order was final, and no appeal was taken.

Bates and St. Joseph Data are controlling on this issue, rather than the cases cited by plaintiffs. Branom v. Miller (1960), 25 Ill. App.2d 94, 166 N.E.2d 123, preceded the effective date of Supreme Court Rule 273. In In re Estate of Cochrane (1979), 72 Ill. App.3d 812, 391 N.E.2d 35, an executor filed a petition to recover alleged assets of an estate. The petition was dismissed on motion, and a second petition with additional allegations was filed within 30 days. As to the second petition, the trial court declined to apply the doctrine of res judicata, and subsequently held in favor of the executor. City of Chicago v. Westphalen (1981), 93 Ill. App.3d 1110, 418 N.E.2d 63, involved application of the doctrine of estoppel by verdict, or collateral estoppel, which poses a narrower bar than estoppel by judgment. See Decatur Housing Authority v. Christy-Foltz, Inc. (1983), 117 Ill. App.3d 1077, 454 N.E.2d 379.

• 4, 5 We conclude that the trial judge correctly dismissed count I on the ground of res judicata. Finality cannot be avoided merely by filing a new lawsuit. However, plaintiff Delaney was not a party to the prior action, nor did defendants' motion to dismiss raise res judicata as to him. We therefore reverse the trial court's dismissal on the ground of res judicata as to count II.

• 6 We next consider whether count II was properly dismissed for failure to state a cause of action. Count II alleged a description of Delaney's property and its relationship to East Street; described the Dunmires' property; stated that Haag's property was surveyed, subdivided and platted in April 1905; Haag adopted the survey, subdivision and plat as his act and dedicated to the public use forever the streets and alleys designated on the plat; the plat was filed and recorded (Exhibit A, incorporated into complaint); the plat set forth a street designated as East Street at a specified location; thereafter the city for many years established and maintained East Street as a public street; the city attempted to abandon a portion of the street; the property was surveyed in July 1980 (Exhibit B, incorporated into complaint); and he, as a landowner adjacent to East Street, and as a result of the city and the public using East Street as a public street, was entitled by common law easement and by easement by prescription to have the street remain open for public use. Count II further alleged that defendants erected a barrier across the street about 120 feet north of its southerly end in March 1979 and thereafter maintained the barrier so as to prevent Delaney free ingress and egress to his property; plaintiff had no other reasonable, adequate or existing means of ingress and egress to his property; defendants refused to remove the barrier as requested; his damages resulting from the obstruction of the roadway were recurrent, continuous and irreparable, and without adequate remedy at law; and that the defendants would continue maintaining the obstruction of the roadway unless restrained from doing so by injunction. Delaney sought an order requiring defendants to remove the barrier and refrain from further obstructing East Street.

Defendants' motion to dismiss alleged that count II failed to state a cause of action and set forth a proper basis for injunctive relief; Delaney's claim of a common law easement and easement by prescription acknowledged existence of a proper legal remedy; Delaney failed to state he had requested defendants to remove the barrier; the complaint failed to show a clear and palpable violation of Delaney's rights; and the ...

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