{ "id": 3218130, "name": "In re PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN TERRITORY (The Village of Kildeer, Appellant, v. Robert Schwake et al., Appellees)", "name_abbreviation": "Village of Kildeer v. Schwake", "decision_date": "1988-10-20", "docket_number": "No. 66205", "first_page": "533", "last_page": "552", "citations": [ { "type": "official", "cite": "124 Ill. 2d 533" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "18 Ill. 2d 526", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5329325 ], "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0526-01" ] }, { "cite": "89 S. Ct. 864", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1960, "opinion_index": 0 }, { "cite": "21 L. Ed. 2d 775", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1960, "opinion_index": 0 }, { "cite": "393 U.S. 1082", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11425572, 11425158, 11425293, 11425487, 11425234, 11425402, 11425183 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/us/393/1082-07", "/us/393/1082-01", "/us/393/1082-04", "/us/393/1082-06", "/us/393/1082-03", "/us/393/1082-05", "/us/393/1082-02" ] }, { "cite": "94 Ill. App. 2d 265", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2478087 ], "weight": 2, "year": 1969, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0265-01" ] }, { "cite": "37 Ill. App. 2d 393", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5257796 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/37/0393-01" ] }, { "cite": "39 Ill. 2d 464", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858779 ], "pin_cites": [ { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0464-01" ] }, { "cite": "65 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435207 ], "year": 1968, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0304-01" ] }, { "cite": "113 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173410 ], "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0206-01" ] }, { "cite": "123 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5551260 ], "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0095-01" ] }, { "cite": "122 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5549737 ], "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0001-01" ] }, { "cite": "118 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188213 ], "pin_cites": [ { "page": "270-71" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0263-01" ] }, { "cite": "122 Ill. 2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550001 ], "year": 1987, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0392-01" ] }, { "cite": "42 Ill. 2d 241", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2849529 ], "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0241-01" ] }, { "cite": "53 Ill. 2d 399", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925683 ], "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0399-01" ] }, { "cite": "27 Ill. 2d 609", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358431 ], "pin_cites": [ { "page": "613" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0609-01" ] }, { "cite": "412 Ill. 285", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664013 ], "weight": 2, "pin_cites": [ { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0285-01" ] }, { "cite": "114 Ill. 2d 209", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542740 ], "weight": 10, "year": 1952, "pin_cites": [ { "page": "220" }, { "page": "220" }, { "page": "221" }, { "page": "221" }, { "page": "220-21" }, { "page": "220-21" }, { "page": "220-21" }, { "page": "222" }, { "page": "222" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0209-01" ] }, { "cite": "162 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3509375 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0262-01" ] } ], "analysis": { "cardinality": 969, "char_count": 29100, "ocr_confidence": 0.775, "pagerank": { "raw": 5.021867032099836e-07, "percentile": 0.9365283458610908 }, "sha256": "4b237473c46e5724c9d956a57dafc77919a736c8d9d1937ff30dc9816358c59e", "simhash": "1:beb068150ee02b5f", "word_count": 4830 }, "last_updated": "2023-07-14T20:47:15.482559+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN TERRITORY (The Village of Kildeer, Appellant, v. Robert Schwake et al., Appellees)." ], "opinions": [ { "text": "CHIEF JUSTICE MORAN\ndelivered the opinion of the court:\nIn three separate proceedings in the circuit court of Lake County (86-MC-2, 86-MC-3, and 86-MC-4), the Village of Kildeer (Kildeer) petitioned to annex certain unincorporated territories pursuant to the annexation provisions of the Illinois Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20141 et seq.). The three petitions were assigned to three different circuit court judges. In March 1986, each circuit court judge approved the annexation ordinance pending before him and ordered a referendum for November 4, 1986. (Ill. Rev. Stat. 1985, ch. 24, pars. 7 \u2014 1\u20144, 7 \u2014 1\u20146.) In August 1986, the American National Bank as trustee, the Mount Prospect State Bank as trustee, and affected property owners (objectors) filed in each case a verified petition, together with supporting affidavits, to vacate the three orders pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401). The petitions allege, inter alia, that Kildeer adopted invalid annexation ordinances and caused improper notice of each hearing to be published.\nIn each of the three proceedings, the circuit court granted objectors\u2019 petition to vacate. However, in 86\u2014 MC \u2014 3 and 86 \u2014 MC\u20144, the circuit court held that Kildeer complied with the statutory notice requirements. Furthermore, in 86 \u2014 MC\u20143, the circuit court did not allow Kildeer the opportunity to answer the motion to vacate. In 86 \u2014 MC\u20142, the circuit court held that although Kildeer technically complied with the statutory notice requirement, notice was inadequate as to objectors because it was designed to circumvent the purpose of the statute.\nKildeer appealed all three of the decisions granting the petitions to vacate. Objectors cross-appealed the findings in 86 \u2014 MC\u20143 and 86 \u2014 MC\u20144 that Kildeer complied with the statutory notice requirement. The appellate court consolidated the three causes.\nIn 86 \u2014 MC\u20144, the appellate court affirmed the petition to vacate and reversed the decision regarding notice. It held that although Kildeer technically complied with the statutory notice requirement, the notice was inadequate as to objectors. In 86 \u2014 MC\u20142, the appellate court affirmed the decision in its entirety. In 86 \u2014 MC\u20143, the appellate court reversed and remanded the case in order to allow Kildeer the opportunity to file an answer. The appellate court instructed the circuit court to conduct a new evidentiary hearing on the petition only if Kildeer\u2019s answer alleges facts controverting the central allegations of objectors\u2019 section 2 \u2014 1401 petition. The appellate court did not rule on the cross-appeal in 86\u2014 MC \u2014 3 because it was not timely filed. (162 Ill. App. 3d 262.) We granted Kildeer\u2019s petition for leave to appeal (107 Ill. 2d R. 315).\nThe issues presented on review are: (1) whether an interested party can petition to vacate, pursuant to section 2 \u2014 1401, a final order approving an annexation ordinance under section 7 \u2014 1\u20144 of the Municipal Code (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20144); and (2) if so, whether the vacation of each of the final orders was a proper exercise of the circuit court\u2019s discretion.\nThe record reveals the following uncontroverted facts. Kildeer filed three petitions to annex certain unincorporated territories on February 26, 1986. The petitions had been initiated by three municipal ordinances. The petitions were thereafter assigned to separate circuit court judges. Each judge was unaware of the petitions pending before the other two judges. Kildeer then caused a separate notice to be published in the Chicago Sun-Times for each hearing. Notice was published on March 3, 1986, for 86 \u2014 MC\u20144; March 6, 1986, for 86\u2014 MC \u2014 3; and March 7, 1986, for 86 \u2014 MC\u20142. None of the objectors were aware of the notices and none appeared at the subsequent hearings. Consequently, on March 20, 24 and 25, 1986, in 86-MC-4, 86-MC-3 and 86-MC \u2014 2, respectively, each judge approved the ordinance pending before him and ordered a referendum for November 4,1986.\nThe three ordinances, taken together, form a hollow, irregular rectangle and embrace certain properties which lie in an unincorporated area between the Village of Kildeer and the Village of Lake Zurich. The relevant properties are known as the \u201cSchwake property,\u201d which totals approximately 117 acres; the \u201cGrethe property,\u201d which totals approximately 60 acres; and the \u201cRiley property,\u201d which totals approximately 12 acres. The three ordinances include portions of these properties, while the remaining portions of these properties fall inside and around the rectangle. In 86 \u2014 MC\u20142, the property described in the ordinance is divided into six parcels: parcels 2 and 3 encompass a portion of the Schwake property, parcels 4 and 6 encompass a portion of the Grethe property, and parcel 5 encompasses a portion of the Riley property. In 86 \u2014 MC\u20143, the property described in the ordinance is divided into eight parcels: parcels 2, 3, 4, 5 and 7 encompass a portion of the Schwake property and parcel 8 encompasses a portion of the Grethe property. In 86 \u2014 MC\u20144, the property described in the ordinance is divided into five parcels: parcel 4 encompasses a portion of the Schwake property. The remaining parcels are not relevant for the purposes of this review. The map appended at the end of this opinion is demonstrative.\nOn August 11, 12 and 14, 1986, in 86 \u2014 MC\u20143, 86\u2014 MC \u2014 2 and 86 \u2014 MC\u20144, respectively, objectors filed their petitions to vacate each of the orders.\nThe following facts were adduced at the three hearings on the petitions to vacate. Jack Squardo, the president of the Village of Kildeer, testified that he met with Henry Paulus, the president of the Village of Lake Zurich, in February of 1986 to discuss rumors that Lake Zurich was planning to annex the Schwake and Grethe properties. Squardo stated that he then convened with the counsel for Kildeer to discuss Lake Zurich\u2019s interest in the unincorporated area, and at that meeting, they drew a rough sketch on a cocktail napkin of a possible annexation by Kildeer. He further testified that he then retained Dean R. Crouse and Associates to prepare plats of annexation of the disputed areas. Once the plats were completed, he called a special meeting of the Kildeer board of trustees for February 22, 1986. After an executive session in which they discussed Lake Zurich\u2019s interest in the Schwake property, Kildeer voted on and passed its three annexation ordinances.\nSquardo also testified that it was his decision to publish notice of each hearing in the Chicago Sun-Times. He stated that Kildeer customarily published its notices in the Frontier Enterprise and the Lake Zurich Herald, and it had never before published any notice in the Chicago Sun-Times.\nThomas Walsh, district manager of the circulation department of the Chicago Sun-Times, testified, on behalf of Kildeer, that the circulation of the Sun-Times was 55 copies per day in Kildeer and 415 copies per day in Lake Zurich.\nDelmar Hosier, village administrator of Lake Zurich, testified that as part of his duties he monitored the local newspapers for legal notices. He stated that, to the best of his knowledge, Kildeer never published any notice in any of the Chicago newspapers. He further testified that, as a matter of procedure, he would inform the appropriate officials whenever he would see a relevant legal notice in one of the local newspapers.\nLaurel Schreiber, the clerk of the Village of Kildeer, testified that she attended a public meeting on March 13, 1986, in Lake Zurich, at the direction of Jack Squardo. Lake Zurich officials discussed the proposed rezoning of the Schwake property. She stated that she observed the meeting, but did not inform Lake Zurich officials of the three pending ordinances.\nSchreiber also testified that she attended a public meeting on June 16, 1986, in Lake Zurich, again at the direction of Jack Squardo. Lake Zurich officials conducted a hearing on the proposed annexation of the Schwake property. At the end of the meeting, she read a prepared statement advising Lake Zurich officials that Kildeer had already initiated annexation proceedings. She further stated that Squardo instructed her to refrain from answering questions or making additional comments.\nKichard Piggott, an employee of the Lexington Development Company (Lexington), the contract purchaser of the Schwake property, testified that he attended the June 16 meeting in Lake Zurich and first learned of the pending annexation ordinances at that time. He testified that he instructed another employee, Bill Rotolo, to attain copies of the ordinances.\nRotolo testified that he promptly requested all of the relevant documentation from the village clerk of Kildeer, but his request was denied. He then filed a Freedom of Information request, and on June 30, 1986, Kildeer produced copies of the ordinances and the minutes from the appropriate meetings. Kildeer did not produce copies of the plats of annexation. Rotolo stated that, as a result, he went to the courthouse to get copies of the plats of annexation, but Kildeer had not filed any plats with the court.\nRobert Schwake, one of the property owners affected by the annexation, testified that he first learned of the ordinances on July 5, 1986, when an official from Lexington notified him. He stated that he met with his attorney and certain officials from Lexington to discuss how to prevent Kildeer from completing its annexation.\nJames Blaekledge, a land surveyor, testified that Lexington retained him in the middle of July to prepare a map of the three ordinances. With respect to 86\u2014 MC \u2014 2, Blaekledge concluded that parcels 2 and 3 embrace 8.88 acres of the Schwake property, parcels 4 and 6 embrace approximately 20 acres of the Grethe property and parcel 5 embraces 6.8 acres of the Riley property. With respect to 86 \u2014 MC\u20143, he concluded that parcels 2, 3, 4, 5 and 7 embrace 11.56 acres of the Schwake property and parcel 8 embraces 3.08 acres of the Grethe property. With respect to 86 \u2014 MC\u20144, he concluded that parcel 4 embraces 9.95 acres of the Schwake property. Blaekledge stated that he completed his work in August of 1986.\nAccording to the plat of annexation prepared by Dean R. Crouse and Associates, which was submitted into evidence by objectors, parcels 2, 3, 4, 5 and 7 in 86 \u2014 MC\u20143 only embrace 9.41 acres of the Schwake property.\nJack Squardo testified that the reason Kildeer\u2019s annexation was divided into three separate ordinances was to allow the electors in each area the opportunity to vote on the respective ordinances. However, he also stated that the purpose for dividing the annexation into three ordinances was because \u201cit would be illegal to do that in one ordinance.\u201d\nRobert Schwake, Herbert Grethe and Albert Riley, the property owners affected by the annexation, testified that they did not consent to the annexation.\nI\nThe first issue Kildeer raises is whether relief under section 2 \u2014 1401 is even applicable to a final order approving an annexation ordinance under section 7 \u2014 1\u20144 of the Municipal Code. Kildeer contends that post-judgment relief under section 2 \u2014 1401 is unavailable to objectors. In response, objectors argue that post-judgment relief under section 2 \u2014 1401 is the appropriate method to challenge a final order approving an annexation ordinance. We agree with objectors.\nSection 2 \u2014 1401 is a procedural device to vacate an order or judgment. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220; Ellman v. De Ruiter (1952), 412 Ill. 285, 291.) The order or judgment must be final, and the moving party must petition to vacate the order not less than 30 days nor more than two years after the date of entry thereof. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401.) The purpose of vacating a final order is to achieve a just and fair result and to avoid unjust, unfair or unconscionable circumstances. Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 613.\nSection 1 \u2014 108(b) of the Code of Civil Procedure provides that article II of the Code, which includes section 2 \u2014 1401, controls matters of procedure to the extent that they are not regulated by other statutes. (Ill. Rev. Stat. 1985, ch. 110, par. 1 \u2014 108; see City of Danville v. Hartshorn (1973), 53 Ill. 2d 399, 403.) The Municipal Code includes certain procedural rules, such as procedural requirements for filing a petition. (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20142.) However, the Municipal Code is silent on the issue of vacating a final order. Section 2 \u2014 1401 therefore applies to the Municipal Code.\nKildeer asserts that section 2 \u2014 1401 should not apply because it is substantive in nature and section 1 \u2014 108(b) of the Code of Civil Procedure applies only to procedural matters. Kildeer does not cite any cases in support of this proposition. In fact, this court has previously characterized section 2 \u2014 1401 as a procedural device to vacate a final judgment. Smith, 114 Ill. 2d at 220; Ellman, 412 Ill. at 291,\nKildeer next asserts that a section 7 \u2014 1\u20144 order is not final. However, section 7 \u2014 1\u20144 specifically provides that it is a final and appealable order. Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20144.\nKildeer also asserts that any post-judgment relief is limited to quo warranto relief. Indeed, the proper action for challenging a completed annexation is quo warranto. (Edgewood Park No. 2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill. 2d 241, 245.) However, the annexations in the instant case are not yet completed. Each circuit court judge approved the annexation ordinance pending before him and ordered a referendum. (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20146.) Subsequently, the orders were vacated, the referenda were set aside and the annexations were not completed. A section 2 \u2014 1401 petition is the proper method to chailenge a final order under section 7 \u2014 1\u20144 where the annexation has not yet been completed.\nFinally, Kildeer asserts that the two-year limitation period under section 2 \u2014 1401 inherently conflicts with the one-year limitation period under section 7 \u2014 1\u201446 to contest an annexation. Therefore, Kildeer contends that section 2 \u2014 1401 does not apply to the Municipal Code. Kildeer is mistaken. Under section 2 \u2014 1401, a party may petition to vacate a final order under section 7 \u2014 1\u20144 approving an annexation ordinance. (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20144.) The moving party must file the petition within two years of the date of entry of the final order. (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 1401.) Once the annexation is completed, the party has one year, pursuant to section 7 \u2014 1\u201446 of the Municipal Code, to contest the annexation. Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u201446.\nII\nAs a party may petition to vacate, pursuant to section 2 \u2014 1401, a final order under section 7 \u2014 1\u20144 of the Municipal Code, the next issue Kildeer raises is whether the circuit court properly granted the petitions to vacate. The quantum of proof necessary to sustain a section 2 \u2014 1401 petition is a preponderance of the evidence. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221.) A reviewing court will not disturb the judgment below unless the circuit court abused its discretion. Smith, 114 Ill. 2d at 221.\nUnder section 2 \u2014 1401, the moving party must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 \u2014 1401 petition for relief. (Smith, 114 Ill. 2d at 220-21.) Kildeer claims that objectors failed to set forth factual allegations in support of any of the three elements. Objectors argue that they did sufficiently set forth factual allegations establishing all three of the elements. We agree with objectors.\nA\nFirst, the moving party must show the existence of a meritorious defense. (Smith, 114 Ill. 2d at 220-21.) Objectors argue, as their defense, that all three of the annexation ordinances violate section 7 \u2014 1\u20142 of the Municipal Code. Kildeer asserts that the three ordinances do not violate the express provisions of the statute.\nSection 7 \u2014 1\u20142 provides in pertinent part:\n\u201c[T]he corporate authorities of any such municipality may initiate the proceedings by enacting an ordinance expressing their desire to annex such described territory; provided, no tract of land in excess of 10 acres in area may be included in the ordinances of a municipality initiating the proceedings without the express consent of the owner '***.\u201d (Emphasis added.) Ill. Rev. Stat. 1985, ch. 24, par. 7-1-2.\nThe underlying issue is one of statutory interpretation: whether section 7 \u2014 1\u20142 permits a municipality to carve out a parcel of land of less than 10 acres from a tract of land greater than 10 acres. (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20142.) In construing a statute, a court must ascertain and give effect to the legislative intent. (M.I.G. Investments, Inc. v. Environmental Protection Agency (1988), 122 Ill. 2d 392, 397; People v. Haywood (1987), 118 Ill. 2d 263, 270-71.) In doing so, we must look to the language of the statute (Weingart v. Department of Labor (1988), 122 Ill. 2d 1, 7), as well as the purposes to be attained by the law (Canteen Corp. v. Department of Revenue (1988), 123 Ill. 2d 95, 104).\nThe evidence shows that each of the three ordinances includes parcels of land of less than 10 acres carved out of tracts of land in excess of 10 acres. First, the Sch-wake property totals approximately 117 acres. The ordinance in 86 \u2014 MC\u20142 embraces 8.8 acres of that tract of land. The ordinance in 86 \u2014 MC\u20144 embraces 9.95 acres. There is a dispute as to whether the ordinance in 86\u2014 MC \u2014 3 embraces 11.56 or 9.41 acres. For the purpose of this review, we will assume, arguendo, that the ordinance embraces 9.41 acres. Therefore, each ordinance includes a parcel of land of less than 10 acres carved out of a tract of 117 acres.\nLikewise, the Grethe property totals approximately 60 acres. The ordinance in 86 \u2014 MC\u20143 embraces 3.08 acres of that tract of land. The ordinance in 86 \u2014 MC\u20142 includes two parcels of the Grethe property, each parcel embraces approximately 10 acres. It is unclear from the record whether objectors adequately proved that the two parcels fall under one common ownership. Nevertheless, in its brief, Kildeer admits that each parcel totals approximately 10 acres, and each is carved out of a tract of land in excess of 10 acres.\nFinally, the Riley property totals approximately 12 acres. The ordinance in 86 \u2014 MC\u20142 embraces 6.8 acres of that tract of land.\nKildeer contends that each ordinance includes separate tracts of land of less than 10 acres, and therefore argues that the ordinances are in compliance with the 10-acre limitation. We find Kildeer\u2019s contention to be untenable.\nUnder section 7 \u2014 1\u20142 a municipality may commence its annexation proceedings by enacting appropriate ordinances. However, the municipality may not include a \u201ctract of land in excess of 10 acres *** in the ordinances.\u201d (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u20142.) The legislature specifically used the singular form of the word \u201ctract\u201d and the plural form of the word \u201cordinance.\u201d Therefore, the legislature clearly intended that a municipality may not annex a tract of land which exceeds 10 acres, no matter how many ordinances it adopts to annex that tract of land. The location and the boundaries of the tract which the municipality seeks to annex must be determined by a source independent of the annexation ordinance itself. The ordinance can only attempt to annex an already existing tract of land. The ordinance does not create a tract of land.\nFurthermore, serious practical difficulties would result if a municipality were allowed to annex less than 10 acres out of a tract greater than 10 acres. For example, a municipality may annex 9 acres out of a tract of 18 acres. In the future, the same municipality may annex the remaining 9 acres. Each ordinance, on its own, would conform to the technical requirements of the statute as interpreted by Kildeer, but the net effect of the two ordinances would violate the express terms of the statute. This piecemeal method of annexation indirectly violates the 10-acre limitation. It is axiomatic that a party cannot circumvent the purpose of the statute by doing indirectly what he cannot do directly. Hopkins v. Powers (1986), 113 Ill. 2d 206, 212.\nIn view of the above, each of the ordinances that Kildeer adopted is invalid. Section 7 \u2014 1\u20142 prohibits a municipality from carving a parcel of less than 10 acres from a tract greater than 10 acres. Therefore, the circuit court in each of the proceedings properly exercised its discretion in holding that objectors have set forth factual allegations in support of a meritorious defense.\nB\nThe second element that the moving party must establish under section 2 \u2014 1401 is that it exercised due diligence in presenting the meritorious defense in the original action. (Smith, 114 Ill. 2d at 220-21.) To do so, the party must show that it was neither negligent nor at fault in failing to present the meritorious defense in the original action. (Diacou v. Palos State Bank (1976), 65 Ill. 2d 304, 310; Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 467.) To determine if the moving party was not negligent, or in other words, if it acted reasonably under the circumstances, we may consider all of the attendant circumstances, including the conduct of the litigants. Smith, 114 Ill. 2d at 222.\nIt is not disputed on review that Kildeer technically complied with the statutory notice requirement when it caused notice of each hearing to be published in the Chicago Sun-Times. (Ill. Rev. Stat. 1985, ch. 24, par. 7 \u2014 1\u2014 2.) Nevertheless, the circuit court could have found, based on the evidence in the record, that Kildeer\u2019s entire course of conduct, in addition to the actual publication of the notices, was calculated in such a manner as to prevent objectors from becoming aware of the legal notices. (See In re Petition to Annex Certain Territory to the Village of Willowbrook (1962), 37 Ill. App. 2d 393.) Consequently, in the context of a section 2 \u2014 1401 petition, objectors can sufficiently allege facts establishing \u201cdue diligence\u201d even though Kildeer did technically comply with the statutory notice requirement.\nAlthough Kildeer filed all three of the petitions on February 26, 1986, it caused notice of each hearing to be published on three separate days in March. Furthermore, Jack Squardo admitted that Kildeer customarily published its notices in the local newspapers, and it had never before published any notice in the Chicago Sun-Times. Delmar Hosier testified that he monitored the local newspapers for legal notices, but he did not monitor the Chicago newspapers since Kildeer never placed legal notices in those newspapers. The evidence also shows that although the Chicago Sun-Times is a paper of general circulation, the actual circulation in Kildeer is only 55 copies per day.\nMoreover, Kildeer did not file the plats of annexation with the circuit court in any of the hearings. Kildeer did not inform any of the circuit court judges of the ordinances pending before the other two judges, nor did Kildeer request that the matters be consolidated. Additionally, Squardo testified that he knew that Schwake was one of the property owners. He even admitted that he had had a conversation with Schwake several years back concerning the property. Finally, on March 13, 1986, seven days before the first of the three hearings, Laurel Schreiber attended a public meeting in Lake Zurich, at the direction of Squardo. She learned that Lake Zurich officials and the affected property owners were unaware of the pending ordinances. She did not bother to inform any Lake Zurich official of the upcoming hearings.\nDespite this egregious conduct, Kildeer still contends that technical compliance with the terms of the statute is sufficient. Kildeer relies on People ex rel. Landwer v. Village of North Barrington (1968), 94 Ill. App. 2d 265, cert. denied (1969), 393 U.S. 1082, 21 L. Ed. 2d 775, 89 S. Ct. 864, which held that a municipality need only comply with the statutory notice requirement, it need not provide superior notice. The appellate court in that case followed the reasoning of Spaulding School District No. 58 v. City of Waukegan (1960), 18 Ill. 2d 526, 528, in which this court reaffirmed the well-established principle that it is the function of the legislature to define the annexation procedures and the role of the court to determine whether the municipality complied with those procedures.\nThe question raised in Landwer was whether the municipality complied with the statutory notice requirement. In resolving this issue, the appellate court limited its holding to whether the municipality did in fact comply with the statutory notice requirement; it did not decide whether the notice was fraudulent. Landwer, 94 Ill. App. 2d at 271.\nIn the instant case Kildeer did technically comply with the terms of the statute. Therefore, the question raised is whether Kildeer\u2019s compliance was accomplished in such a manner as to deprive objectors of the notice contemplated by the Municipal Code. As noted above, under section 2 \u2014 1401 this court may consider all of the surrounding circumstances, including the conduct of the litigants and their attorneys, in determining whether the moving party established due diligence. (Smith, 114 Ill. 2d at 222.) The facts in the instant case indicate that Kildeer proceeded in a manner that was calculated to prevent objectors from discovering the legal notices. Kildeer\u2019s entire course of conduct, in addition to the publication of the notices, vitiated the effectiveness of the notice as to the affected property owners. Therefore, in the context of a motion to vacate under section 2 \u2014 1401, we cannot say that the circuit court in each of the proceedings abused its discretion in finding that objectors were not negligent in failing to discover the legal notices. Accordingly, objectors have set forth factual allegations establishing that they exercised due diligence in presenting the defense in the original action.\nC\nThe third element that the moving party must establish is that it exercised due diligence in filing the section 2 \u2014 1401 petition for relief. (Smith, 114 Ill. 2d at 221.) Here, Kildeer contends that objectors waited too long in seeking relief once they discovered the existence of the ordinances. Objectors argue that they proceeded with due diligence in filing the section 2 \u2014 1401 petition.\nThe evidence shows that on June 18, 1986, Laurel Schreiber read a prepared statement at a public meeting in Lake Zurich informing officials that Kildeer .had already initiated annexation proceedings. She did not answer any questions. Immediately thereafter, Lexington requested copies of the ordinances from Kildeer, but the request was denied. Lexington then filed a Freedom of Information request, and in response, Kildeer produced copies of the ordinances on June 30, 1986. Kildeer did not produce copies of the plats of annexation. On July 5, 1986, Lexington informed the property owners of the pending ordinances. In the middle of July, Lexington retained a land surveyor to prepare maps of the disputed area. The survey was completed in early August. Objectors then filed their section 2 \u2014 1401 petitions on August 11, 12 and 14, respectively. The section 2 \u2014 1401 petitions were therefore filed reasonably soon after objectors became aware that they were affected by the ordinances. Based on these facts, the circuit court in each of the proceedings did not abuse its discretion in holding that objectors have set forth factual allegations establishing that they exercised due diligence in filing the section 2\u2014 1401 petition.\nIll\nFinally, Kildeer has filed a motion asking this court to take judicial notice of briefs filed in an earlier and unrelated proceeding, or, in the alternative, to amend the record on appeal to include these briefs. This motion was taken with the case. We are not required to take judicial notice of briefs filed in an earlier and unrelated proceeding (Ill. Rev. Stat. 1985, ch. 110, par. 8 \u2014 1002), and we find no compelling reason to do so. Furthermore, since Kildeer has not shown the record to be anything other than true, correct, and sufficient to present fully and fairly the questions involved, we are not required to amend the record on appeal. (107 Ill. 2d R. 329.) Therefore, Kildeer\u2019s motion is denied.\nFor the reasons set forth above, we affirm the order of the appellate court.\nAppellate court affirmed.", "type": "majority", "author": "CHIEF JUSTICE MORAN" } ], "attorneys": [ "John M. Mullen, of Waukegan, for appellant.", "James S. Gordon and Edward Slovick, of Chicago (Joseph N. Sikes, of Grayslake, of counsel), for appellees." ], "corrections": "", "head_matter": "(No. 66205.\nIn re PETITION OF THE VILLAGE OF KILDEER TO ANNEX CERTAIN TERRITORY (The Village of Kildeer, Appellant, v. Robert Schwake et al., Appellees).\nOpinion filed October 20, 1988.\nJohn M. Mullen, of Waukegan, for appellant.\nJames S. Gordon and Edward Slovick, of Chicago (Joseph N. Sikes, of Grayslake, of counsel), for appellees." }, "file_name": "0533-01", "first_page_order": 543, "last_page_order": 562 }