dissenting in part and concurring in part:
I disagree with Judge Rarick’s conclusion that, with respect to the 220 acres, this appeal is rendered moot by Supreme Court Rule 305(i). (134 Ill. 2d R. 305(i).) It is my opinion that all of the requirements of Rule 305(i) have not been satisfied in this case because the transfer to trust GSA33 did not take place after the order became final within the meaning of Rule 305(i).
I think that a fair and reasonable interpretation of Rule 305(i) requires that the transfer of real estate must be made after the order appealed from becomes final, not in the sense that it is a final and appealable order, but in the sense that the 30-day time period for seeking review of the order, either in the trial court through a post-trial motion or in the appellate court through the filing of a notice of appeal, has run. This view is supported by our decision in Meeker v. Payne (1981), 101 Ill. App. 3d 723, 726, 428 N.E.2d 614, 616, in which we held that, where a transfer to a third party was made less than 30 days after entry of the order appealed from, it could not be said that the third party acquired title to the real estate after the judgment became final, and as a consequence, Supreme Court Rule 305(i) did not apply.
Indeed, to hold otherwise would allow the party who prevailed at trial to defeat the right of the opposing party to seek a stay and consequently a meaningful appeal from the judgment, by doing what the Estate did here, that is, transferring the real property immediately upon entry of the order and before the losing party has the opportunity to obtain an appeal bond and seek a stay of the order. If Rule 305(i) applies to such a case, then the losing party is effectively deprived of its right to meaningful review of the trial court’s order, as the appeal is rendered moot. This cannot be the intent of the rule.
Rule 305 allows a party 30 days in which to file an appeal bond and seek a stay pending appeal. (134 Ill. 2d R. 305.) Supreme Court Rule 303 allows a party 30 days in which to file a notice of appeal. (134 Ill. 2d R. 303.) Furthermore, parties who lose at trial are granted 30 days in which to file post-trial motions seeking review in the trial court. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1202, 2 — 1203.) If Rule 305(i) applies to transfers made within this 30-day period, a party can effectively defeat each of these rights, for any further review is rendered moot by the transfer. Supreme court rules, which are to be construed as are statutes (134 Ill. 2d R. 2), should be construed in a manner that avoids unjust results. (Croissant v. Joliet Park District (1990), 141 Ill. 2d 449, 455, 566 N.E.2d 248, 251.) To allow Rule 305(i) to apply to a case such as the one at bar would result in injustice.
Accordingly, I would find that the transfer by the Estate to trust GSA33 was not made after the order of September 27, 1990, became final. Therefore, Rule 305(i) would not apply in the instant case.
However, I wholeheartedly and completely agree with the reasoning and conclusion of Judge Rarick that the public policy of the State of Illinois, as expressed in City of Chicago v. Hasley (1861), 25 Ill. 595, and its progeny, prohibits a judgment creditor from executing upon essential city property in order to satisfy the judgment debt. I would go further than Judge Rarick, however, and find that the rule against execution upon city-owned property extends to all such property and not merely to property deemed necessary or essential to the functioning of the city.
It is my opinion that courts are not qualified to make decisions in cases such as this as to what property is necessary or essential to the functioning of a city. A city must make long-term planning decisions with respect to the property it owns, decisions which require foresight, an understanding of the workings of the city, the interrelationship of its many functions, and some level of expertise. City-owned property which does not appear to be essential or necessary today to the functioning of the city may be included as an integral or essential element in a future plan. To allow execution on such city-owned property may disrupt and interfere with a city’s long-term planning decisions, thus disrupting the functioning of the city in an indirect but long-term way.
Courts should not be placed in the position of analyzing and determining what city-owned property is necessary or essential to the functinning of the city, either because it is used today or because it is included in an essential long-term plan for the city. I would therefore extend the prohibition against execution on city-owned property to include all such property, rather than placing on the courts the onerous task of determining whether such property is necessary or essential to the immediate or long-term functioning of the city.
Finally, I note that Hasley makes no distinction between necessary and unnecessary city-owned property but holds that all city-owned property is exempt from execution by a judgment creditor. As Hasley expresses:
“[t]his power of taxation is plenary, and furnishes, ordinarily, the only means such corporations possess, by which to pay their debts. They cannot be said to possess property liable to execution, in the sense an individual owns property to subject, for they have the control of the corporate property only for corporate purposes, and to be used and disposed of to promote such purposes, and such only.” (25 Ill. at 596.)
Nor do any of the cases following Hasley recognize any distinction between necessary and unnecessary city-owned property.
In In re Application of County Collector (1979), 79 Ill. App. 3d 151, 398 N.E.2d 392, the property at issue was held by the Metropolitan Sanitary District of Greater Chicago, a municipal corporation, as a potential site for a surface retention reservoir. The court found that property belonging to a municipality cannot be executed upon, making no distinction between property which is presently necessary to the functioning of the city and property which may become necessary in the future because it is included in the city’s long-term plans.
Thus, I would not require the courts to determine in every case what city-owned property is considered necessary to the functioning of the city and may not be executed upon and what city-owned property is not considered necessary and may be executed upon. I would hold that no city-owned property may be executed upon to satisfy a judgment debt.