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05/17/89 In Re Application of Edward Busse (Chicago Title and Trust

May 17, 1989

IN RE APPLICATION OF EDWARD BUSSE (CHICAGO TITLE AND TRUST


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

Company, Trustee, et al., Petitioners-Appellants, v.

Trustees of Schools of Township 41 North, Range 11, East of

the Third Principal Meridian, Cook County, et al.,

Respondents-Appellees)

539 N.E.2d 323, 183 Ill. App. 3d 682, 132 Ill. Dec. 13 1989.IL.746

Appeal from the Circuit Court of Cook County; the Hon. Francis Barth, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Petitioners, Michael Schiessle (Schiessle) and Chicago Title and Trust Company, under provision of trust agreement dated the 17th day of November 1972 and known as trust No. 61065 (Chicago Title), appeal from an order of the circuit court of Cook County dismissing their petition for correction of registrar's error (the petition). Since we agree with petitioners that the Petition is not barred by the dismissal of a similar petition filed by Chicago Title in 1976, we must reverse the order of the circuit court.

Facts

The history of this litigation up to 1986 is outlined in our opinion entitled In re Application of Busse (1986), 145 Ill. App. 3d 530, 495 N.E.2d 1188 (Busse I) and will not be repeated at length herein.

On October 28, 1976, Chicago Title filed a petition to correct an alleged error of respondent registrar of titles of Cook County (the Registrar) with regard to the registration of certain real property located in Mt. Prospect. *fn1 The trustees of schools of township 41 North, range 11, east of the third principal meridian, Cook County (the School Trustees), who claim title to the real property, were also named as respondents. On November 10, 1982, respondents filed a motion to dismiss the 1976 Petition for failure to join Schiessle as an indispensable party plaintiff. The motion to dismiss was heard by Judge LaPorta who, on August 22, 1983, granted the motion and allowed Chicago Title 28 days to amend the 1976 Petition to join Schiessle as a copetitioner. Chicago Title then attempted to amend the 1976 Petition by adding Schiessle as a party defendant in light of his alleged refusal to be joined as a plaintiff. On October 3, 1983, Judge LaPorta struck the amendment as being inconsistent with the order of August 22 and gave Chicago Title an additional 14 days to add Schiessle as a copetitioner. However, Chicago Title failed to add Schiessle as a copetitioner, and, on January 9, 1984, Judge LaPorta dismissed the 1976 Petition.

Chicago Title filed a timely appeal from the dismissal of the 1976 Petition. We affirmed Judge LaPorta's order in Busse I. On September 3, 1987, Chicago Title, joined by Schiessle, filed the petition at issue. The Petition was assigned to Judge Barth of the circuit court. On November 23, 1987, the School Trustees filed a motion to dismiss the Petition in which they argued that the 1976 Petition was dismissed as a sanction against Chicago Title and Schiessle for their failure to comply with rules or court orders concerning discovery. The School Trustees maintained that the dismissal was an adjudication on the merits and consequently barred the subsequent action by Chicago Title and Schiessle. Judge Barth ...


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