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01/17/97 PEOPLE STATE ILLINOIS EX REL. ADAMS

January 17, 1997

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. ADAMS ELECTRICAL COOPERATIVE, PLAINTIFF-APPELLANT, AND NANCY LAW ANDERSON, PLAINTIFF,
v.
THE VILLAGE OF CAMP POINT, A MUNICIPAL CORPORATION, GEORGE E. SCHRAGE III, COUNTY CLERK OF ADAMS COUNTY, ILLINOIS, AND HOWARD WEAR, JR., COUNTY TREASURER AND COLLECTOR OF ADAMS COUNTY, ILLINOIS, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Adams County. No. 93MR17. Honorable Dennis K. Cashman, Judge Presiding.

As Corrected February 24, 1997.

Honorable John T. McCullough, J., Honorable James A. Knecht, J. - Concur, Honorable Frederick S. Green, J. - Concur. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiff Adams Electrical Cooperative (Co-op) appeals from a summary judgment entered in the circuit court of Adams County in favor of defendants Village of Camp Point (Village); George E. Schrage III, county clerk of Adams County; and Howard Wear, Jr., county treasurer and collector of Adams County. Co-op sought a declaratory judgment that the real estate that was the subject of this litigation was not now and had never been located within the territorial limits of the Village and (2) in a quo warranto action, asserted that the Village was exercising power and authority by assessing ad valorem real estate property taxes over the subject property without a legally sufficient annexation ordinance.

The issues are whether (1) any genuine issue of material fact remains in this case concerning the real estate property taxing authority such that summary judgment was improperly granted in favor of the Village; and (2) even if no genuine issue of material fact remained, should summary judgment have been granted in favor of taxpayer Co-op instead of the Village. We affirm.

On April 14, 1993, Co-op and Nancy Law Anderson filed (1) an application for leave of court to file proceeding in quo warranto instanter, and (2) a complaint for declaratory judgment and other relief. On April 23, 1993, the trial court granted the application for leave to file a complaint in quo warranto instanter. Pursuant to the stipulation and agreement of the parties, the petition was voluntarily dismissed as to Anderson on July 25, 1994.

The complaint alleged that on March 11, 1992, the Co-op was notified by the Village that the following described property, owned by Co-op, (1) was within the Village's territorial limits, (2) had not been assessed for real estate taxes under the Village's levy, and (3) records were being corrected to reflect the inclusion of the property within the Village's territorial boundaries:

"All that part of the Southeast Quarter of Section Twenty-six (26), bounded and described as follows, to wit: Beginning at a stone at the Southeast corner of said Quarter Section, running thence North to a stone at the Northeast corner of said Quarter Section, thence West twenty-two hundred seventy-four and five tenths (2274.5) feet, more or less, thence South two hundred ninety-five (295) feet, more or less, to the right-of-way of the Wabash Railway Company, thence Southeasterly along said right-of-way two hundred twenty-nine and six tenths (229.6) feet, more or less, thence South to the South line of said Section, and thence East Twenty hundred eighty-one (2081) feet, more or less, to the place of beginning, except that part now occupied as a State Highway Route 31 and Federal 24, all in Township One (1) North of the Base Line, and in Range Six (6) West of the Fourth Principal Meridian, situated in the County of Adams, in the State of Illinois."

The Co-op challenged the Village's authority to so act.

After the Village filed an answer to the complaint in this case, the Co-op filed a motion for summary judgment. In its response to the motion for summary judgment, the Village requested the entry of summary judgment in its favor. The supporting documents for these pleadings will be discussed as necessary later in this disposition.

The trial court entered summary judgment in favor of the Village. In its order, the trial court found there was no genuine issue of material fact, and any factual issues that did exist were unimportant to the disposition of this case. The trial court found, as a matter of law, the Village's ordinance No. 1 included the subject real estate.

"Merely because the parties filed cross-motions for summary judgment alleging that no genuine issue of material fact existed does not obligate the trial court to grant summary judgment. Mutual Life Insurance Co. v. Washburn (1989), 183 Ill. App. 3d 978, 981, 539 N.E.2d 1278, 1280, 132 Ill. Dec. 472, rev'd on other grounds (1990), 137 Ill. 2d 312, 561 N.E.2d 29, 148 Ill. Dec. 723.

'The purpose of summary judgment is to determine whether there are any genuine issues of material fact ( Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec. 305, 489 N.E.2d 867), and summary judgment should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (Ill. Rev. Stat. 1989, ch. 110, par. 2-1005(c)). Although summary judgment is an expeditious method of disposing of a lawsuit, it should only be allowed when the right of the moving party is clear and free from doubt. ( Purtill, 111 Ill. 2d at 240.)' ( Colvin v. Hobart Brothers (1993), 156 Ill. 2d 166, 169-70, 189 Ill. Dec. 407, 620 N.E.2d 375.)

On appeal, the reviewing court's role is to consider anew the facts and law relating to the case and determine whether the trial court was correct in finding that no genuine issue of material fact existed, and if none exists, whether the judgment was correctly entered as a matter of law. University of Illinois v. Continental Casualty Co. (1992), 234 Ill. App. 3d 340, 343, 599 N.E.2d 1338, 1341, 175 Ill. ...


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