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12/06/89 William W. Sweasy Et Al., v. Richard Snyder Et Al.

December 6, 1989




Before addressing defendants' arguments, we will dispose of the "cross-appeal." We have repeatedly stated that this court's jurisdiction will not be assumed and will be determined sua sponte even in the absence of a motion to dismiss. (See Trizzino v. Kline Brothers Co. (1982), 106 Ill. App. 3d 230, 435 N.E.2d 958.) In this case, the record on appeal contains no notice of cross-appeal as required by Supreme Court Rule 303 (107 Ill. 2d R. 303). Moreover, even if the notice were filed, we would reject the cross-appeal for plaintiffs' failure to allude to any authority in support of their arguments. We have previously cautioned parties that this court will not accept the burden of the appellees' argument and research. (Dillard v. Kean (1989), 183 Ill. App. 3d 28, 538 N.E.2d 914.) Accordingly, we dismiss the "cross-appeal."


549 N.E.2d 613, 192 Ill. App. 3d 749, 139 Ill. Dec. 887 1989.IL.1886

Appeal from the Circuit Court of Peoria County; the Hon. John A. Whitney, Judge, presiding.


JUSTICE BARRY delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.


This is a landlord-tenant dispute. Plaintiffs William W. and Sherrie L. Sweasy are the owners and lessors of residential property located at 2701 South Cameron Lane in Bartonville, Illinois. Defendants Richard and Angela Snyder were lessees of the property during a one-year period from July 1, 1986, through June 30, 1987. The suit arose in June 1987, when defendants failed to make their monthly rental payment of $550 on June 1, the date it was due pursuant to the parties' lease agreement. William Sweasy, an attorney, filed his complaint pro se on June 11, seeking to recover the unpaid rent together with a $5-per-day late payment penalty, attorney fees and court costs as provided for in the lease.

On June 23, Sweasy appeared in court and orally petitioned for an ex parte order of ne exeat on the ground that defendants had threatened to move themselves and their personal property out of State the following day. The court granted plaintiffs' petition. The court further ordered defendants to post a cash bond in the amount of $2,000 and accepted plaintiffs' "personal bond" in the amount of $500. Defendants resisted the ne exeat order by filing a motion to quash on grounds that the bond set for them was excessive and the bond set for plaintiffs was inadequate to cover defendants' damages resulting from improper issuance of the order. Subsequently, on July 1, defendants paid plaintiffs $850, representing the June rent and late charges.

On July 2, the date set for a hearing on defendants' motion to quash, plaintiffs filed a response and a motion to amend their complaint to add allegations of damages for repairs to an air-conditioning unit and a riding lawn mower. The court heard the pending motions and granted them both, but ordered that the bonds ordered in connection with the order of ne exeat be continued.

On July 10, defendants answered the amended complaint and counterclaimed in two counts for damages for plaintiffs' alleged breaches of the implied warranty of habitability and the duty to repair. Numerous mesne motions, responses, and plaintiffs' second amended complaint were filed, and hearings were had. The matter was ultimately tried to the court in several settings between May 1988 and January 1989. Because of Judge Whitney's imminent retirement, the court ordered that the matter would be concluded by 5 p.m. of January 20, 1989, the last date set for completion of the trial on the main complaint. Defendants' motion for a continuance based on the unavailability of defendants' lead counsel, Wayne Harvey, was denied that morning. Harvey returned to court after the lunch break; and, under the circumstances, moved for and was granted a voluntary dismissal of defendants' countercomplaint. On January 30, the court entered its order finding that plaintiffs had met their burden of proof with respect to the June rent, mower repairs, and attorney fees and costs, for a total sum of $4,886.08. Plaintiffs' claims for repairs to the air-conditioning unit and late payment penalties were denied. The court allowed a $1,400 offset for defendants' $550 security deposit and the $850 paid on July 1, 1987, and entered judgment for plaintiffs in the amount of $3,486.08. It is from this order that defendants appeal.

The issues defendants present for our consideration are: (1) whether the trial court erred in entering judgment for plaintiffs' attorney fees in the amount of $4,125; (2) whether the trial court's award of damages for repair of the riding lawn mower was improper; and (3) whether the trial court erred in granting plaintiffs an order of ne exeat without requiring them to post a cash bond. In their appellees' brief, plaintiffs raise additional issues charging error in the trial court's failure to award late payment charges pursuant to the parties' lease and in returning defendants' $2,000 cash ne exeat bond.

Next, we consider defendants' argument concerning the trial court's issuance of the ne exeat order. Defendants' primary contention is that the $500 "personal bond" posted by plaintiffs in lieu of a cash bond was not sufficient to justify issuance of the extraordinary relief. (See Andersen v. Andersen (1942), 315 Ill. App. 380, 43 N.E.2d 176.) Ne exeat is a statutory remedy to prevent a defendant from leaving the jurisdiction of the court. It is authorized by virtue of Article 16 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 16-101 et seq.). Pursuant to section 16-101:

"Relief by ne exeat republica may be granted, in cases where the debt or claim is not actually due, but exists fairly and bona fide in expectancy at the time of making application, and in cases where the claim is due; and it is not necessary, to authorize the granting of such relief by ne exeat, that the applicant show that his or her debt or claim is purely of an equitable character." (Ill. Rev. Stat. 1987, ch. 110, par. 16-101.)

When the relief is granted, section 16-104 provides for the posting of bonds by both petitioner and respondent. With respect to ...

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