{ "id": 5167067, "name": "George Vincent Menagh and Lillian Menagh, Appellees, v. Frances Hill, Appellant", "name_abbreviation": "Menagh v. Hill", "decision_date": "1956-12-05", "docket_number": "Gen. No. 47,010", "first_page": "80", "last_page": "84", "citations": [ { "type": "official", "cite": "12 Ill. App. 2d 80" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "70 Ill. App. 253", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5252107 ], "opinion_index": 0, "case_paths": [ "/ill-app/70/0253-01" ] }, { "cite": "71 Ill. 557", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5312552 ], "opinion_index": 0, "case_paths": [ "/ill/71/0557-01" ] }, { "cite": "77 Ill. 567", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821814 ], "opinion_index": 0, "case_paths": [ "/ill/77/0567-01" ] }, { "cite": "37 Ill. App. 549", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 859916 ], "opinion_index": 0, "case_paths": [ "/ill-app/37/0549-01" ] }, { "cite": "50 Ill. 442", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2605544 ], "opinion_index": 0, "case_paths": [ "/ill/50/0442-01" ] } ], "analysis": { "cardinality": 370, "char_count": 5722, "ocr_confidence": 0.532, "pagerank": { "raw": 8.410637242304401e-08, "percentile": 0.48277582978775985 }, "sha256": "186761c6c54cf3745aff3871a068986a55f78ae3e10205fdb30d24a940603f2d", "simhash": "1:bad7d6ffb2277508", "word_count": 948 }, "last_updated": "2023-07-14T20:54:16.519843+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "FEINBERG, P. J. and KILEY, J., concur." ], "parties": [ "George Vincent Menagh and Lillian Menagh, Appellees, v. Frances Hill, Appellant." ], "opinions": [ { "text": "JUDGE LEWE\ndelivered the opinion of the court.\nPlaintiffs recovered a judgment before a police magistrate in a forcible entry and detainer suit. On appeal by defendant to the Circuit Court, the judgment was affirmed, whereupon defendant appealed to this court.\nThe facts are substantially as follows: Since October 1932, defendant has been living at 15005 Chicago Road, Dalton, Illinois. In 1932, these premises were improved with an old building formerly used as a real estate office. At that time, one Jacobson told defendant that she could live in the building if she partitioned it and replaced the doors and windows. About that time, defendant was also told by one Menn that he owned the building but not the land. Menn granted defendant permission to live in the premises in question without paying rent.\nPlaintiffs claim ownership of the land and the right of possession under a quitclaim deed from plaintiff George Menagh\u2019s father and mother dated in 1945. Over defendant\u2019s objection, plaintiffs introduced in evidence a trustee\u2019s deed and a contract for the sale of the premises from Union Bank of Chicago to plaintiff\u2019s father. These documents were dated in the year 1925.\nAn attorney testifying in plaintiffs\u2019 behalf, said that in 1950, he showed defendant the deeds held by plaintiffs and requested a monthly rent of $10. Two letters, one dated in August and one in September, 1950, were received in evidence, purportedly written to defendant requesting the rent payment and threatening legal action.\nOver defendant\u2019s objection, plaintiffs also introduced in evidence tax and special assessment receipts, showing payment by plaintiffs as owners of the property, and a survey of the property in question made in 1949.\nThe first question presented for determination is whether in the absence of a complaint in writing as required by Chapter 57, section 5, Ill. Eev. Stat. 1955 (State Bar Ass\u2019n ed.), the police magistrate had jurisdiction of the subject matter.\nThe pertinent part of section five reads:\n\u201cOn complaint in writing by the party or parties entitled to the possession of such premises being filed in any court of record, or with any justice of the peace in the county where such premises are situated, stating that such party is entitled to the possession of such premises (describing the same with reasonable certainty), and that the defendant (naming him) unlawfully withholds the possession thereof from him or them, the clerk of such court or such justice of the peace shall issue a summons.\n\u201cNo further pleading shall be required in cases before justices of the peace.\u201d\nSince forcible entry and detainer is a statutory proceeding in derogation of the common law, a court entertaining such an action will be considered as a court of special and limited jurisdiction, and the procedure prescribed by the statute must be strictly followed. (See, 19 Ill. Law and Practice \u00a7 7, page 523.)\nIn the early case of Stolberg v. Ohnmacht, 50 Ill. 442, an action for forcible entry and detainer, it appears that the justice issued a summons without an affidavit having been previously filed, in accordance with the provisions of a statute substantially the same as that involved in the present case. The Court said at page 443:\n\u201cThe affidavit is the foundation of the jurisdiction, and has been constantly so held in this court. The justice had no jurisdiction when he issued the summons, and could acquire none, for the purposes of that suit, by allowing an affidavit to be filed on the day of trial.\u201d\nIn Abbott v. Kruse, 37 Ill. App. 549, this court held that in a forcible detainer proceeding before a justice, a complaint in writing is jurisdictional (citing Schaumtoeffel v. Belm, 77 Ill. 567, and Center v. Gribney, 71 Ill. 557) and if the justice had no jurisdiction of the case the court on appeal had none.\nIn Redfern v. Botham, 70 Ill. App. 253, the transcript of the proceedings before the justice disclosed a \u201ccomplaint filed,\u201d but no complaint in writing as required by statute was transmitted by the justice to the Circuit Court. In the Circuit Court, as in the case at bar, no proof was made or offered that a written complaint did exist. The court said at page 254: \u201cA written complaint is necessary to the jurisdiction of the justice in forcible detainer proceedings, and unless the justice has, jurisdiction, the Circuit Court on appeal has none.\u201d\nIn the instant case, plaintiffs say \u201ca written complaint was before the court.\u201d An examination of the transcript on appeal from the police magistrate fails to disclose such a written complaint.\nIn any event, plaintiffs say this objection was waived by defendant because she did not raise it in the Circuit Court. No rule of law, statutory or decisional, is cited by plaintiffs to support this proposition. We think plaintiffs\u2019 position is untenable, since the law seems well established that the filing of a written complaint before the police magistrate is jurisdictional. It follows, therefore, that the police magistrate and the Circuit Court had no jurisdiction over the subject matter.\nWe have considered the other points urged and the authorities cited in support thereof, but in the view we take of this case we deem it unnecessary to discuss them.\nFor the reasons stated, the judgment is reversed.\nJudgment reversed.\nFEINBERG, P. J. and KILEY, J., concur.", "type": "majority", "author": "JUDGE LEWE" } ], "attorneys": [ "Traeger, Bolger & Traeger and J ohn A. Kahonn, all of Chicago, for appellant.", "Bergstrom, Evans & Nelson and Benjamin J. Sachs, all of Chicago, for appellees; Edward H. Nelson, of counsel." ], "corrections": "", "head_matter": "George Vincent Menagh and Lillian Menagh, Appellees, v. Frances Hill, Appellant.\nGen. No. 47,010.\nFirst District, Third Division.\nDecember 5, 1956.\nReleased for publication January 2, 1957.\nTraeger, Bolger & Traeger and J ohn A. Kahonn, all of Chicago, for appellant.\nBergstrom, Evans & Nelson and Benjamin J. Sachs, all of Chicago, for appellees; Edward H. Nelson, of counsel." }, "file_name": "0080-01", "first_page_order": 92, "last_page_order": 96 }