{
  "id": 5641129,
  "name": "HERMAN SNEED GRAHAM, JR., Plaintiff-Appellee, v. SANDRA LOU EVISCHI, Defendant-Appellant",
  "name_abbreviation": "Graham v. Evischi",
  "decision_date": "1977-07-08",
  "docket_number": "No. 76-491",
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  "last_updated": "2023-07-14T21:01:05.304449+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "HERMAN SNEED GRAHAM, JR., Plaintiff-Appellee, v. SANDRA LOU EVISCHI, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE GEORGE J. MORAN\ndelivered the opinion of the court: This is an appeal from a judgment of the circuit court of Marion County granting plaintiff\u2019s motion for summary judgment in a forcible entry and detainer action. 1\nPlaintiff and defendant were once husband and wife. They were married on June 4, 1954. On the third day of February 1959 the property which is the subject of this lawsuit was deeded to the plaintiff in his name alone. However, defendant contends that many times during the marriage, the plaintiff assured her that the title was in both their names and that they owned the property jointly.\nOn July 18, 1966, the parties entered into a property settlement agreement which was incorporated into a divorce decree which in pertinent part reads:\n\u201c3. First party, Sandra Lou Graham, shall have the right to live in the dwelling house formerly occupied by the parties as a home in Salem, Illinois, which they own in joint tenancy. Said first party may five in and occupy said property for and during her natural life or until she remarries. In the event that first party makes repairs to the dwelling house during her occupancy in excess of *100.00 per job, second party agrees that he will reimburse her for such expenditures, if and when the house is sold, his reimbursing being limited to one-half of the amount expended.\u201d\nOn January 12, 1974, the defendant married Donald Evischi. On February 13, 1976, the plaintiff filed a suit for possession of said premises, claiming that he was possessed of the premises on February 3, 1959; that the parties entered into the aforesaid property settlement on July 18, 1966; that defendant was married on January 12, 1974, and that the defendant unlawfully withheld possession of the premises from him.\nThereafter the plaintiff filed a motion for summary judgment alleging that he owned the property in fee simple and that the terms of the agreement precluded defendant from continued right to possession of the premises because she had remarried.\nDefendant, in answer to the motion, stated she had entered into the agreement for a valuable consideration and upon the representation that the property in question was owned by both parties in joint tenancy.\nThe trial court granted plaintiff\u2019s motion saying:\n\u201cCourt makes this entry only as to possession and in no way makes any finding in regard to ownership of the property involved.\u201d\nThe purpose of a summary judgment procedure is not to try an issue of fact, but rather to determine whether an issue of fact exists. (Midwest Grocery Co. v. Danno (1961), 29 Ill. App. 2d 118, 172 N.E.2d 648.) If the pleadings, affidavits and exhibits show that there is an issue as to any material fact, summary judgment must not be granted. American National Bank & Trust Co. v. Lembessis (1969), 116 Ill. App. 2d 5, 253 N.E.2d 126.\nPlaintiff bases his claim of right to possession on the provision of the separation agreement which provides that defendant may live in the house during her life or until she remarries. His claim is that since she has remarried she has lost the right to possession of the house and he is entitled to possession. However, plaintiff must show a right of possession in himself and cannot rely upon the lack of right in those he seeks to dispossess. Jordan v. Weston (1960), 26 Ill. App. 2d 498, 168 N.E.2d 809; Brunton v. Habel (1948), 333 Ill. App. 333, 77 N.E.2d 566.\nPlaintiff concedes in his brief that the controlling issue in this case is whether he has a right to possession by reason of the parties\u2019 agreement. The question of title in this case is therefore irrelevant. The agreement states that the defendant could live in the house during the term of her natural life or until she remarries. Her remarriage may have terminated her right to occupy the premises, but it did not automatically give the plaintiff the right to possession. As stated before, in a forcible entry and detainer action, plaintiff must show a right of possession in himself rather than relying solely upon the lack of right in the other party.\nWe note from the arguments in this case that there is another case now pending between the same parties involving title to these premises. We therefore call attention to the case of Clore v. Fredman (1974), 59 Ill. 2d 20, 28, 319 N.E.2d 18.\nWe had initially decided to dispose of this case pursuant to Supreme Court Rule 23 (Ill. Rev. Stat. 1975, ch. 110A, par. 23). However, upon reflection, we noticed certain precedential value in this opinion \u2014 it is brief.\nThe judgment of the circuit court of Marion County is reversed and this case is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nCARTER, P. J., concurs.",
        "type": "majority",
        "author": "Mr. JUSTICE GEORGE J. MORAN"
      },
      {
        "text": "Mr. JUSTICE JONES,\ndissenting:\nThe appellant in this case failed to file an abstract or excerpts of the record or to seek an order of waiver thereof. I accordingly am of the opinion that the case is governed by Freeman v. Augustine\u2019s, Inc., 46 Ill. App. 3d 230, Shaw v. Kronst, 9 Ill. App. 3d 807,293 N.E.2d 153, Village of Trement v. Albrecht, 44 Ill. App. 3d 373, and many other cases of recent vintage, and the appeal should be dismissed.",
        "type": "dissent",
        "author": "Mr. JUSTICE JONES,"
      }
    ],
    "attorneys": [
      "A. Ben Mitchell, of Craig & Craig, of Mt. Vernon, for appellant.",
      "Richard A. Cary, of Wham & Wham, of Centralia, for appellee."
    ],
    "corrections": "",
    "head_matter": "HERMAN SNEED GRAHAM, JR., Plaintiff-Appellee, v. SANDRA LOU EVISCHI, Defendant-Appellant.\nFifth District\nNo. 76-491\nOpinion filed July 8, 1977.\nJONES, J., dissenting.\nA. Ben Mitchell, of Craig & Craig, of Mt. Vernon, for appellant.\nRichard A. Cary, of Wham & Wham, of Centralia, for appellee."
  },
  "file_name": "0268-01",
  "first_page_order": 290,
  "last_page_order": 292
}