author: Mr. JUSTICE EBERSPACHER Mr. JUSTICE GEORGE MORAN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert L. Robinson, Defendant-Appellant.
    (No. 71-238;
    Fifth District
    January 28, 1975.

      G. MORAN, J., dissenting.
    Robert Farrell and Brenda Richey, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Byron L. Connel, State’s Attorney, of Mound City (Ralph J. Meldelsohn, of Model State’s Attorneys Support Unit, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Albert “Preacher” Robinson, from an order entered by the circuit court of Pulaski County denying defendant’s petition for post-conviction relief, after holding an evidentiary hearing.

On January 14, 1963, an indictment was returned charging the defendant with the offense of murder. At the proceedings heard at the preliminary inquiry the defendant’s retained counsel advised the trial court that in his opinion the defendant was incompetent to the extent that he was unable to cooperate with his counsel in assisting in his defense. Whereupon the trial court continued the case “until such time as a jury can be empanled [.sic] pursuant to law to determine the matter of the sanity of Albert L. Robinson before plea and before trial.” Although the transcript of this competency hearing is not “presently available,” the “minutes of the court” as recorded in the common-law record reveal that a jury was impanelled, that the defendant called one witness, that people’s instruction number one was given without objection, that oral argument was waived, and that the jury returned the following finding; “We, the jury find that the defendant, Albert L. (Preacher) Robinson, was sane at the empaneling of this jury, and is now sane.” The common-law record includes a copy of this finding signed by the 12 jurors, together with a copy of people’s instruction number one.

The defendant continued to be represented by his retained counsel, who was present and represented him at the proceedings conducted on February 18, 1963, wherein the defendant entered his plea of guilty. The trial court accepted defendant’s plea of guilty, entered a judgment of conviction, and, upon the recommendation of the State’s attorney, sentenced the defendant to serve not less than 15 years nor more than 45 years in the penitentiary. From the trial court’s entry of the judgment of conviction of February 18, 1963, until February 16, 1970, when the defendant first requested transcripts of the foregoing proceedings, the defendant was incarcerated in the penitentiary. During this period he did not attempt to perfect any appeal from this judgment of conviction. And, only after a lapse of over 7 years has the defendant perfected his request for post-conviction relief pursuant to section 122 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 1).

On April 15, 1970, defendant filed a pro se petition for post-conviction relief, aUeging that his constitutional rights had been abridged in the following respects: (1) The defendant’s “competency” hearing had been improperly conducted and no record of said healing was available for review; (2) the defendant was not advised by the trial court of his right to appeal; and (3) defendant’s counsel provided inadequate representation. Counsel was appointed to represent the defendant and, on December 11, 1970, an amendment was filed to supplement the original pro se petition. The amendment alleged that: (1) The defendant was not indicted in a manner consistent with the Illinois Constitution; (2) the defendant could not understandingly have entered a plea of guilty since defendant was substantially denied a jury trial on whether or not he was sane, and further, that the instruction given the jury was so fundamentally unfair as to have denied the defendant due process of law; and (3) the defendant was denied adequate assistance of counsel. After the State’s motion to dismiss was denied, the State filed an answer and, on April 5, 1971, an evidentiary hearing was held by the trial court. The evidentiary hearing was continued until April 7, 1971. The defendant and Dr. Burton Bagby testified at the evidentiary hearing with respect to their recollection of the circumstances surrounding the defendant’s sanity hearing conducted on February 18, 1963. The defendant testified that he was in the courtroom on the morning of February 18, 1963, that there was a group of people in the jury box, that he did not sit at the counsel table, that Dr. Bagby was present in tire courtroom, that Dr. Bagby came over and spoke to him, but that the doctor did not take the witness stand and testify, that he was there when the jury went out, and that when they returned a short time later they handed a piece of paper to the judge. Dr. Bagby testified that he had known the defendant since his childhood, that he was called to testify on February 18, 1963, but that he had forgotten why he had been called, that he recalled talking to both the defendant and his attorney, but that he did not recall testifying. Under cross-examination, the doctor stated that if he had testified, he would only have spoken about the normal course of events in growing up together with the defendant. There is no record that any other witnesses were called to testify at the defendant’s sanity hearing. The State introduced the common-law record of the sanity hearing, together with the finding of sanity signed by the 12 jurors and the transcripts of the proceedings on February 14, 1963, and February 18, 1963, wherein the defendant pled guilty.

In an order entered April 8,1971, the trial court denied the defendant’s request for post-conviction relief; therein, the trial court made the following findings: (1) The defendant was not given a transcript of the hearing on his competency and that no transcript is presently available, (2) the petitioner was not advised of his right to appeal from the judgment of the court finding him guilty, after a plea of guilty, of the offenes of murder, (3) neither of these findings, (1) or (2), constituted a denial of the defendant’s constitutional rights, (4) the defendant’s counsel was competent and of the defendant’s own choosing, (5) a valid indictment was returned against the defendant, (6) a sanity hearing was held on February 18, 1963, before a jury, duly selected by law, and properly instructed, (7) the jury returned a signed verdict that the defendant was sane at the time of the impanelling of such jury, and was sane on February 18, 1963, (8) thereafter the defendant knowingly and understandingly entered a voluntary plea of guilty to said indictment, and (9) the defense counsel was not incompetent so as to deny defendant of his right to counsel as required by the Constitution.

In this appeal the defendant contends that the trial court erred when it denied the defendant’s “petition for post-conviction relief alleging that he had been denied due process of law in the 1963 hearing to determine if he was competent to stand trial.” More particularly, the defendant contends that (1) he “did not receive effective assistance of counsel at his 1963 competency hearing,” (2) the trial “court failed to insure that the defendant received a fair and adequate hearing on the question of his competency to stand trial,” and (3) the “instruction submitted to the jury on the question of the defendant’s competency improperly stated the law.”

1-5 We particularly note that here there was no direct appeal and that defendant entered a plea of guilty which is not alleged to have been entered involuntarily, although defendant contends the plea could not have been voluntarily entered. Points that could have been raised on direct appeal, even though of constitutional dimension, may be waived for post-conviction purposes, unless fundamental fairness requires otherwise. (People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663; People v. Hammonds, 21 Ill.App.3d 5, 314 N.E.2d 711); and a constitutional right, like any other right of an accused, may be waived, and a voluntary plea of guilty waives errors or irregularities that are not jurisdictional. (People v. Newell, 41 Ill.2d 329, 243 N.E.2d 200. ) Defendant does not here contend that the court had no jurisdiction to accept his plea. It is not within the purpose of the Post-Conviction Hearing Act to have claims considered which could have been presented on direct review of the conviction. (People v. Myers, 46 Ill.2d 270, 263 N.E.2d 113; People v. Armes, 37 Ill.2d 457, 227 N.E.2d 745.) Defendant does not here contend that he was denied a direct appeal because of the absence of a transcript in 1963 when he could have perfected a direct appeal. Furthermore, as we said in People v. Jackson, 19 Ill.App.3d 404, 406, 311 N.E.2d 714; “The right of appeal in a criminal case and the denial of a transcript are not per se constitutional questions.”

Before addressing the defendant’s contentions we believe it is necessary to review the general purposes and requirements of our Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 1 et seq.). The Post-Conviction Hearing Act provides a remedy which is civil in nature and in which the defendant has the burden of proving that he was deprived of a substantial constitutional right. (People v. Thomas, 51 Ill.2d 39, 280 N.E.2d 433.) Generally, claims which were or could have been raised on direct appeal may not later be raised in a petition for post-conviction relief. (People v. Brown, 52 Ill.2d 227, 287 N.E.2d 633.) Save fundamental fairness, “Any claim of substantial denial of constitutional rights not raised in the original or amended petition is waived.” (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 3.) Failure to raise the contention that the record fails to affirmatively show that a defendant’s plea was knowingly and voluntarily entered in defendant’s original or amended petition for post-conviction relief constitutes a waiver. (People v. Caldwell, 55 Ill.2d 152, 304 N.E.2d 292; People v. Barber, 51 II1.2d 268, 281 N.E.2d 676. See also People v. Williams, 52 Ill.2d 466, 288 N.E. 2d 353.) Accordingly, we find that the defendant’s failure to raise any contention regarding the inadequacy of the trial court’s admonitions in his pro se post-conviction petition, in his supplemental post-conviction petition (filed by his appointed counsel) or on this appeal constitutes a waiver of this contention, and since such waiver is not precluded by fundamental fairness (see People v. Caldwell; People v. Williams; People v. Barber), we will not consider this issue, on our own initiative, for the first time on this appeal from the denial of post-conviction relief. Having thus decided, we will limit our review to those issues presented by the defendant on this appeal.

As noted previously, the defendant’s claim for post-conviction relief centers around the hearing on his competency, held on February 18, 1963. The defendant’s counsel and the State’s attorney, by means of the common-law record and the testimony of the defendant and Dr. Bagby, were able to reconstruct the general format and content of the defendant’s 1963 competency healing, at the evidentiary hearing on the defendant’s post-conviction petition. Ordinarily, we would resolve any conflicts in the evidence proffered at the evidentiary hearing in favor of the State since the defendant has the burden of proof in a post-conviction hearing and, further, since the trial court found the defendant’s proof insufficient upon which to grant relief. We believe, however, that it would be fundamentally unfair to place such a heavy burden on the defendant in the instant case in view of the unavailability of a transcript to the defendant’s 1963 competency hearing.

We acknowledged the extreme importance of a trial transcript in People v. Bonn, 19 Ill.App.3d 443, 311 N.E.2d 766, wherein we noted that “[t]he purpose of a free transcript is to enable a defendant to review the proceedings in order to perfect his appeal or, as in this case, his petition for post-conviction relief.” (19 Ill.App.3d 443, 444-45, 311 N.E. 2d 766, 768.) We have seriously considered whether the absence of a transcript in the instant case resulted, ipso facto, in the denial of the defendant’s constitutional right to review the proceedings and perfect his request for post-conviction relief. However, Supreme Court Rule 323(c), (d) allows for the preparation of a record by alternative means where no verbatim transcript is available. (Ill. Rev. Stat. 1969, ch. 110A, par. 323(c), (d).) And, unless a defendant makes out a colorable need for a verbatim record of a criminal proceeding, an “alternative” record may be sufficient. See Mayer v. City of Chicago, 404 U.S. 189, 30 L.Ed.2d 372, 92 S.Ct. 410. See also People v. Kline, 16 Ill.App.3d 1017, 307 N.E.2d 398.

In the instant case neither the defendant’s contentions nor his argument in support thereof make out even a colorable need for verbatim record, i.e., a transcript, of his 1963 competency hearing. As noted by our supreme court in People v. McKinstray, 30 Ill.2d 611, 198 N.E.2d 829,

“Insanity which bars trial of an accused has been defined as inability to understand the nature of the crime charged or inability to reasonably and rationally defend against such charge, including cooperation with counsel. (People v. Burson, 11 Ill.2d 360, 369, 143 N.E.2d 239.) In a pretrial sanity hearing the defendant is required to offer evidence sufficient to rebut the presumption of his sanity, and then it is incumbent upon the People to prove his sanity by a preponderance of the evidence. People v. Bender, 20 Ill.2d 45, 169 N.E.2d 328.” (30 Ill.2d 611, 615, 198 N.E.2d 829, 832.)

Hence, in order for the State to have any burden in a pretrial sanity hearing, the defendant must offer evidence sufficient to rebut the presumption of his sanity. Not only does the record before us fail to show that the defendant rebutted the presumption of his sanity, but the defendant does not even suggest that he offered evidence sufficient to rebut this presumption or that such evidence was available at the time of his competency hearing. The only indication of the defendant’s incompetency must be derived from defense counsel’s statement at the preliminary inquiry that in his opinion the defendant was unable to cooperate with counsel and assist in his defense. Our supreme court in People v. Slaughter, 46 Ill.2d 114, 262 N.E.2d 904, held that a mere statement by defense counsel that defendant could not cooperate with him does not create such a bona fide doubt as to draw the defendant’s competency in question and require a competency hearing. Thus, even if defense counsel had reiterated this opinion at defendant’s competency hearing, it would not be sufficient to rebut the presumption of sanity.

Although the defendant raises three particular instances which he contends denied him his constitutional right to a properly conducted competency hearing, incompetency of counsel, the failure of the court to ensure a fair hearing, and erroneous instructions, none of these errors, if they may be said to exist at all, constituted prejudicial error. In People v. Farnsley, 53 Ill.2d 537, 293 N.E.2d 600, our supreme court stated:

“The burden is on the defendant to clearly set forth in what respect his constitutional rights were violated and support the aHegations with affidavits, records, or other evidence which establishes a violation of these rights. Absent such a showing, a petition may be dismissed without a hearing. (People v. Pierce, 48 Ill.2d 48, 50, 268 N.E.2d 373.)” (53 Ill.2d 537, 549, 293 N.E.2d 600, 608.)

This position was further amplified by the court in People v. Harris, 55 Ill.2d 15, 302 N.E.2d 1, where it stated:

“The defendant was offered a full hearing. He chose not to present additional evidence to support his contentions. The burden is upon the defendant to prove he has been denied his constitutional rights. (People v. Watson (1972), 50 Ill.2d 234, 236, 278 N.E.2d 79.) Wide latitude is offered as to the method of presenting evidence. (Ill. Rev. Stat. 1967, ch. 38, par. 122.6.) Absent any evidentiary basis to support the defendant’s allegations, we must conclude that the trial court was correct in denying the relief sought in the petition. We may not disturb the decision unless it was manifestly erroneous. People v. Stanley (1972), 50 Ill.2d 320, 322, 278 N.E.2d 792; People v. Stone (1970), 45 Ill.2d 100, 105, 256 N.E.2d 803.” (55 Ill.2d 15, 17-18, 302 N.E.2d 1, 3.)

While we are reluctant to place such a heavy evidentiary burden upon the defendant in the instant case, the defendant’s failure to clearly allege either the introduction of evidence which would tend to show the defendant’s insanity at the time of its hearing or its availability prevents our finding that any of the three alleged instances of error prejudiced the defendant. See United States ex rel. Feely v. Ragen (7th Cir. 1948), 166 F.2d 976; People v. Reeves, 412 Ill. 555, 107 N.E.2d 861.

In other words, before the unobjected to instruction, alleged to be erroneous, can be said to have prejudiced the defendant, it must be established that defendant proffered sufficient evidence to rebut the presumption of his sanity. Although the “minutes” recorded in the common-law record reflect that the defendant called one witness, which the State contends was Dr. Bagby, who admits being present at the defendant’s 1963 competency hearing, the defendant testified at his evidentiary hearing that Dr. Bagby did not testify. The defendant has made no attempt to establish that any witness was called in his behalf and, in fact, much of his argument is premised upon the fact that no evidence was offered in his behalf. Dr. Bagby testified that, although he did not recall testifying, if he testified in 1963 he would have only have spoken about the normal course of events in growing up together with the defendant. Under such circumstances we can only conclude that if any evidence was presented on behalf of the defendant it would have been the testimony of Dr. Bagby, which, according to Dr. Bagby, would have only concerned growing up together with the defendant and, therefore, would have been insufficient to rebut the presumption of the defendant’s sanity and shift the burden of going forward with the evidence to the State. Consequently, any error in the tendered instruction would not have prejudiced the defendant and would have been harmless error.

Similarly the defendant’s allegations that his counsel was incompetent and that the trial court was derelict in its duty of ensuring defendant a fair competency hearing are insufficient to grant the relief sought. This is true because the defendant has failed to allege what additional evidence, if any, was available to rebut the presumption of his sanity at the time of his 1963 competency hearing. In the absence of, at least, an allegation of the existence of evidence which could have been elicited by defendant’s counsel Qr the trial court, we are unable to say that action, or inaction, of either the defendant’s chosen counsel or the trial court denied the defendant his constitutional right to due process cognizable under the Post-Conviction Hearing Act.

Having determined that the defendant has failed to allege sufficient facts to establish any prejudicial error, much less the substantial denial of a constitutional right, and, further, having found that the unavailability of a transcript did not, under the facts alleged by the defendant, result in any undue prejudice to the defendant, we affirm the order entered by the circuit court of Pulaski County denying the defendant’s request for post-conviction relief.

Order affirmed.

CREBS, J., concurs.

Mr. JUSTICE GEORGE MORAN,

dissenting:

The defendant was charged with the crime of murder, and when he first appeared for arraignment his lawyer advised the trial court that in his opinion defendant was incompetent to the extent that he was unable to cooperate with his counsel in assisting in his defense. The trial court then continued the case for a competency hearing. At the competency hearing the defendant introduced one witness, and the case was then submitted to a jury which found him competent to stand trial. After the competency hearing the trial court informed the defendant that they had been going through the form of having a competency hearing that morning and that the juiy found him sane and capable of going to trial and that his lawyer had advised the trial court that defendant desired to plead guilty. The trial court then advised him that the grand jury had indicted him for killing with a gun without legal justification; that he was entitled to a jury trial, to the services of an attorney and that upon his plea of guilty the trial court could sentence him to an indeterminate term of not less than 14 years. The trial court then accepted defendant’s plea of guilty and, following the recommendation of the State’s attorney, sentenced to a minimum of 15 years and a maximum of 45 years in the penitentiary.

Defendant did not file a direct appeal, but filed a petition under the Post-Conviction Hearing Act. Prior to the time of the post-conviction proceeding, the defendant tried to obtain a transcript of the evidence heard during his competency hearing, but was informed by the court reporter that the notes had been destroyed.

Both parties agree that only one witness testified at defendant’s competency hearing, a Dr. Burton Bagby, who was called as a witness at the evidentiary hearing on defendant’s post-conviction proceeding. He testified that he had known the defendant since childhood. He had been called to testify at the sanity hearing but did not remember what his testimony was, although he remembered talking to defendant and his lawyer on the day of the competency hearing. Defendant testified that he was in the courtroom on the morning of February 18, 1963, and that there was a group of people in the jury box. He did not sit at the counsel table. He stated that he saw Dr. Bagby there that morning and that Dr. Bagby came over and spoke to him, but that the doctor did not testify. He said he was there when the jury went out and that when they returned they handed a piece of paper to the judge.

I conclude that the lack of a transcript cannot be blamed on the defendant, as the parties at the post-conviction proceeding did their best to reconstruct the testimony heard at the competency hearing with no success. At the conclusion of the post-conviction proceeding, the trial court stated:

“From my understanding of the law, the party who alleges incompetency to stand trial has the burden of proof. That was this defendants burden and the jury found that he did not sustain it. Now, what the jury considered, the Court does not know from the record, but the verdict was returned.”

The trial court then, on the same day, entered an order finding among other things that defendant was not given a transcript of the hearing on his competency and that none was available. The trial court further found that after the jury found defendant competent to stand trial, he knowingly and intelligently entered a voluntary plea to the indictment.

In my opinion, the record does not affirmatively disclose that the defendant entered his plea knowingly and understandingly as required by Boykin v. Alabama, 395 U.S., 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. In People v. Reeves, 50 Ill.2d 28, our supreme court said at pages 29-30:

“The constitutional requirement, both pre and post Boykin, is that a plea of guilty be ‘intelligent and voluntary.’ Boykin adds the requirement that if the guilty plea is to withstand appellate or post-conviction review ‘the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily.’ [Citation.] This requirement has been in effect in Illinois since 1948. See former Rule No. 27A, 400 Ill. 22.”

In the presentence hearing the trial court did not explain the nature of the charge to the defendant, and no determination was made as to whether or not any force or threats or any promises were made to the defendant to obtain his plea. The record does not otherwise disclose that defendant’s plea was knowingly and voluntarily made. This case is very similar to the case of People v. Meredith, 21 Ill.App.3d 305, 314 N.E.2d 612, wherein we remanded with instructions to allow the defendant to plead anew.

We should also reverse and remand because of the lack of a transcript of the evidence heard during defendant’s competency hearing, since its absence may not reasonably be attributed to the defendant. In People v. Couvion, 33 Ill.2d 408, our supreme court said at pages 410-11:

"The absence of a transcript may not reasonably be attributed to defendant, as it is the clear statutory duty of the duly appointed court reporter to ‘* * * take full stenographic notes of the evidence in all trials and proceedings in the court for which he is appointed, and furnish forthwith one transcript of the same, correctly made, to either party to the suit or proceedings upon the request of such party or his attorney.’ (Emphasis ours.) (Ill. Rev. Stat. 1961, chap. 37, par. 331, as amended by act approved July 5, 1957). Under the peculiar circumstances here prevailing, the order of commitment can not stand in the absence of a showing that defendant actually was made aware of his right to be represented by counsel upon proof of indigence.”

Through no fault of the defendant, we are unable to review whether or not the verdict of the jury finding the defendant competent was sustained by the evidence, because of the lack of a transcript.

This case is now wide open for a habeas corpus proceeding in the Federal court. Carroll v. Beto (5th Cir. 1970), 421 F.2d 1065,

For the foregoing reasons I dissent from the majority in this case.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE T. MORAN.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Kelly, Defendant-Appellant.
    (No. 72-352;
    Second District
    January 31, 1975.

      Charles S. Wilson, III, and Charles W. Toomey, both of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Thomas Sullivan, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE HALLETT

text:
    The People ex rel. Honorable Alfred E. Woodward, Plaintiff-Appellee, v. Frank W. Oliver, Defendant-Appellant.
    (No. 73-88;
    Second District (1st Division)
    January 20, 1975.

      Melvin B. Lewis, of Chicago, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

This is an appeal from a judgment finding defense attorney Frank Oliver guilty of contempt during a criminal trial and fining him. $350. Briefly stated, the specifications of contempt are: (1) that, in the presence of the jury, he refused to enter chambers when requested to do so by the court; and (2) that, during closing argument, he repeatedly referred to the trial judge’s rulings after the court had warned him that such comments would be regarded as contemptuous. The issues presented for review are: (I) whether the right of the defendant in the case-in-chief to a public trial justifies his counsel’s refusal to enter into an in camera discussion; (2) whether the contempt order is void for lack of specificity; (3) whether the statements made by Oliver during the course of his closing argument violated the court’s admonition to refrain from comment on the court’s rulings; and (4), assuming that Oliver did violate the court’s admonition in respect to his closing argument, whether such comments constitute contempt if there was no material disruption of the court proceedings.

After reviewing the record, we affirm the trial court.

The conduct upon which the citation for contempt is based occurred during the criminal trial of one Michael Seymour for unlawful possession and delivery of cannabis sativa, in which Oliver represented the defendant. On December 13, 1972, after the State had rested its case, Oliver delivered his opening statement, which had been deferred until that time. In the course of this statement, Oliver told the jury that his client would testify to his intention or state of mind at the time of the alleged transaction and would testify that he was then cognizant of the agents’ identity and was merely aiding them in the apprehension of the primary marijuana dealer. The State objected to the admissibility of die defendant’s testimony concerning his intention or state of mind. The court ruled that the defendant could not directly testify as to his intention and that the intention of the defendant was a conclusion to be drawn by the jury from the facts. Thus, the court held that.statements concerning the defendant’s intent made during the opening statement were improper since such direct testimony would not be admissible. At that point, Mr. Oliver stated that since the defendant was precluded from testifying to his intent in the transaction, the defense elected to rest its case. An in camera discussion, which was not transcribed, was held, and the jury was excused for the day.

It appears from the record that the next acts sequentiaHy were the closing arguments of State and defense. The main thrust of OHver’s argument to the jury was that intent was a crucial element in this offense, and he urged the jury to infer from the facts that the defendant did not possess the requisite criminal intent necessary to a finding of guilty, but rather that the defendant, cognizant of the agents’ identity, had merely attempted to aid them in the arrest of the dealer in marijuana. It should be noted that the trial court had not ruled that intent was not an element of the crime. Rather, the trial court’s ruling only precluded direct testimony of the defendant as to his intent, or state of mind, and, indeed, permitted the jury to infer the defendant’s intent from any facts in evidence. Thus, in arguing defendant’s lack of criminal intent from the facts in evidence, Oliver was merely urging the jury to draw an inference of innocent intent. This argument was well within the bounds of advocacy during closing argumentation. After Mr. Oliver had argued what he believed was the reasonable inference of intent from the facts in evidence, the foHowing occurred during his closing argument to the jury:

“MR. OLIVER: Now, in that connection, you may recaH that a couple of days ago I started to make an opening statement preparatory to putting on proof of the defendant’s case, and when I got to the point of telling you that Mike Seymour would get on the stand and tell you how he interpreted what was going on and what his intent was, —
THE COURT: Counsel, I think we had better go into chambers. MR. OLIVER: I don’t want to go into chambers, Judge.
THE COURT: Let’s go into chambers right now.
MR. OLIVER: No, I am not going to go into chambers. This is a public trial and I am going to have a public trial.
THE COURT: Bring the attorney in, Mr. Bailiff.
MR. OLIVER: I will not go into chambers unless I am — are you going to do it by force? You wiH have to do it by force, sir. Make your arrest. I am not going to do it. I am not going to do it. I am not going to go into chambers, under no circumstances.
THE COURT: All right, the jury will go into the jury room right at this time.
(The jury retired to the jury room, after which the following proceedings were had in open court, outside the hearing and presence of the jury:)
THE COURT: Mr. Oliver, you are aware of the fact that the Court has made certain rulings in this case and you are now taking up with the jury rulings that the Court has made, which is none of their business. The instructions so state it, and I am warning you at this time, if you comment in respect to any rulings the Court has made in this matter, which is not appropriate for the jury to hear, and they are to hear the evidence, in that event, you are going to be found in contempt by this Court. Now, you may proceed with your argument.
MR. OLIVER: I have stated, your Honor, what took place in the presence of the jury.
THE COURT: I am just warning you—
MR. OLIVER: And they observed me rest and I propose to remind them that they saw me rest.
THE COURT: I am just warning you at this time that you are not to comment to the jury in respect to any of the rulings that this Court made.”

After this episode, Mr. Oliver continued to argue the defendant’s lack of criminal intent. Without republication of the remainder of Mr. Oliver’s closing argument, the following excerpts are pertinent to the second specification of contempt.

“Mr. OLIVER: Now, this is a fair evaluation of what took place, rather than this inference that they are trying to create that the arrangement all the time was with Mike Seymour.
And you see, that is why he objected when I wanted to go into the Lisle Bowl thing. Wanted to keep the evidence out. Didn’t want you to hear it.
MR. KILANDER: Your Honor, I have got to object to comments of why objections are made.
THE COURT: Sustained. Counsel has a right to make objections and this is not proper argument before the jury, and I instruct you to cease that type of argument, Mr. Oliver.
MR. OLIVER: As I say, we don’t have any direct evidence of intent here, which might sound something like 1 understood they were policemen; I observed they were policemen; I want to help them. I couldn’t talk to them easily, but I felt they understood. I couldn’t talk to them because there were people around that they were trying to catch.’
And you know, it is funny, because these kinds of explanations are the kind that we sort of accept in everyday life.”

At this point, Mr. Oliver related to the jury two aUegorical situations. One concerned a child who had taken a piece of forbidden candy. He concluded this story by stating:

“In everyday life we let them teH us what their intentions are, and then we weigh those intentions or their account of then intentions against inferences that we may draw from facts. That is the way we operate in everyday life.”

The second allegory concerned a man with a gun who observed his worst enemy being pursued by a lion. The man with the gun fired it, killing the one who had been his worst enemy. The conclusion of this allegory was followed by the following statement:

“Now, you see, in everyday life we would expect a fellow who is asked about that or charged with it to be able to stand up in front of 12 people or 50 people or a thousand persons or one person or his God and to say, T really didn’t intend to hit the man. I don’t care if he was my enemy. I intended to hit the Hon.’ I wish I might have provided you with that direct evidence of intention, and beHeve me, when I suggested that I would do so, I did not intentionally suggest something that I thought to be improper, because in my mistaken way, for 20 years now, I have thought, always thought, that that was the very best evidence of intention in a courtroom, what a man said was in his head.”

Later, Mr. OHver stated to the jury:

“I don’t think in any event we would be chargeable with absence of evidence.
Number one, the law doesn’t require us to put in evidence. Number two, the State objected to the evidence I did want to put in which might have—
THE COURT: Counsel, that is improper comment and you are to cease and desist. I have warned you before.”

Subsequently, the jury returned a verdict of guilty. After the conclusion of the trial, the court proceeded as follows:

“THE COURT: Now, that completes this.
Mr. OHver, I would like to cite you for contempt for your refusal to accompany the bailiff to chambers as I requested.
You made it necessary for me to excuse the jury and send them into the jury room in order that we could discuss something that the Court felt was necessary.
Further, in your final argument you repeatedly made reference to matters that the Court sustained objections to.
Now, defendants are entitled to every right that they have in the book.
But also if the State makes a mistake, why the defendant gets a new trial.
If the defendants counsel takes advantage of the situation and goes beyond the rules, the only thing it seems to me we have to do is cite you for contempt.”

The court stated that it had waited until the conclusion of the trial to cite Oliver in order to avoid delaying the proceedings. A summary hearing on the contempt citation was then held wherein Oliver was given the opportunity to and did argue that his actions and statements were not contemptuous. At the conclusion of this hearing, the court found him guilty of contempt and fined him $250 on the first specification of contempt and $100 on the second specification.

The contempt order, insofar as this appeal is concerned, inter alia, recited:

“4. That on December 15, 1972, during the closing argument being made in behalf of the said MICHAEL SEYMOUR, the defendant, FRANK OLIVER, was requested by the Court to retire to Chambers for the purpose of discussing an objection that had been made and ruled upon by the Court; that the defendant, FRANK OLIVER, refused to accompany the Court into Chambers when requested, he then refused to accompany the Bailiff into Chambers as directed by the Court, and by reason of the foregoing the Court might confer with counsel pertaining to the objection then pending before the Court.
5. That later in said proceedings on the same date and during the final argument, the defendant, FRANK OLIVER, made repeated reference to matters excluded upon objection and not in evidence, being the intent of the defendant at the time of the offense; further, after being admonished in this regard by the Court, he continued to comment in the presence of the jury upon the rulings made by the Court on said objections.
6. That the conduct of the defendant, FRANK OLIVER, which took place in front of this Court while in open session and in the presence of the jury, tended to impede and interrupt the proceedings and lessen the dignity of this Court.”

Subsequently, Oliver moved to vacate the findings and fines and, when that was denied, this appeal was taken.

Contempt has been defined as “acts e 8 * which are ‘calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute’.” (In re Estate of Melody (1969), 42 Ill.2d 451, 452, 248 N.E.2d 104, 105; People v. Miller (1972), 51 Ill.2d 76, 78, 281 N.E.2d 292, 293.) This court is mindful that the contempt power is an extraordinary power of the court, and as such, should be exercised only in extreme situations. The court recognizes both the duty of an attorney as an advocate of his client’s cause and the duty of the trial judge as a fair and impartial administrator of justice. Although these duties are not inherently opposed to one another, often the two conflict. To avoid such conflicts between bench and bar, a balance must be struck between the role of the lawyer and the role of the trial judge.

Having briefly summarized the nature of the contempt power, we now consider the more specific issues presented for review with regard to the first specification of contempt. Oliver contends that he was justified in refusing to enter chambers based on his client’s right to a public trial. He further contends that the court had been made aware of his client’s desire to curtail in camera discussions, and that in light of this, the court should have excused the jury in lieu of holding an in camera discussion.

That the defendant is entitled to a public trial is an uncontroverted constitutional mandate. However, we doubt that, in this case, the'right to a public trial would have been infringed by an in camera discussion. It has been stated that “[t]he right to a public trial is violated only by a blanket exclusion of members of the public.” (People v. Dronso (1967), 83 Ill.App.2d 59, 70, 226 N.E.2d 460, 466.) Moreover, the court has recognized the propriety of holding in camera discussions when ruling upon objections.

“It is common practice in trials for a court to hold a conference in chambers to determine whether or not an objection should be sustained. Afterwards, when the trial is resumed, the court rules in the presence of the jury that the objection is sustained. We find no prejudice in this procedure.” People v. Jackson (1968), 98 Ill.App.2d 97, 98, 240 N.E.2d 364, 365.

In the case at bar, there appear from the record to have been numerous in camera discussions, to which Oliver did not object. Indeed, in the record before us, one of these discussions had been conducted without the presence of a court reporter. In every jury trial, there are numerous side-bar and in-chambers discussions. Mr. Oliver, an experienced attorney, is certainly familiar with the propriety of these discussions. It is the duty of the trial judge in a jury trial to protect the jurors from prejudice, and it is for this reason that side-bars and in chambers discussions are held. The trial judge, as administrator of a fair and impartial trial, was under a duty to conduct an in camera discussion to safeguard the jury from undue prejudice.

Indeed, the purpose of the judge in ordering the discussion out of the presence of the jury was to warn Oliver that further statements to the jury regarding the propriety of the court’s rulings would he regarded as contemptuous. To have warned Oliver of this in the jury’s presence might have placed him in an unfavorable light and prejudiced the jury against his client. Thus, Judge Woodward’s request for the in camera discussion to warn Oliver certainly was not for the purpose of depriving the defendant in that case of a public trial, but rather to insure that Oliver would not be placed in an unfavorable and prejudicial light in representing his client.

Oliver contends in this court that the trial judge had been informed of defendant Seymour’s “distress at the frequency with which proceedings had been conducted in chambers,” and that therefore, the trial court should have excused the jury rather tiran order an in chambers discussion. Although this is alluded to in the post-trial portions of the transcript, there is nothing in the record before us indicating that Judge Woodward had such knowledge at the time tire incident occurred. Even if we assume that the trial judge had knowledge of Seymour’s offended sensitivities to in camera discussions, we find defendant-contemnor’s argument to be without merit. Again, it is the duty of the trial judge to direct the course of the trial and administer justice fairly and impartially. It was the responsibility of Mr. Oliver to educate his client to the purposes of side-bar and in-chambers discussions. The failure of Oliver so to illuminate his client or the particular sensitivities of his client cannot be asserted as an attempt to shift the responsibility for the incident to the trial judge.

With respect to the first specification of contempt, we find that there was an obstruction of justice. Defendant urges us to reverse this citation on the basis of the similarity between the case at bar and In re McConnell (1962), 370 U.S. 230, 8 L.Ed.2d 434, 82 S.Ct. 1288, wherein counsel was found not to be contemptuous in stating that he would continue his line of questioning “until some bailiff stops us.” However, the cases must be viewed in the respective factual situations. In McConnell, the attorney’s remark, although threatening and insulting to the judge who had ordered that a particular line of questioning cease, did not result in an actual obstruction of justice. There, after a brief in-chambers discussion, the trial proceeded. Here, on the contrary, we are confronted with a situation in which the trial judge had ordered Oliver into his chambers and had already left the bench in expectation that his request would be heeded. Oliver’s refusal to accompany the judge compelled the judge to return to the bench and to excuse the jury in order to avoid a physical altercation between the bailiff and Oliver. In this case, there was a confrontation and a disruption in the proceedings, directly caused by Oliver’s conduct. The judge was, after and by this confrontation, forced to accede to the demands of Oliver by returning to the bench. That the authority of the court was diminished and brought into disrepute by Oliver’s behavior, which occurred in the presence of the jury, cannot be denied. We are of the opinion that the case at bar differs from In re McConnell when viewed in its factual setting. We must and do conclude that Oliver’s conduct was calculated to and did embarrass, hinder and obstruct the court in its administration of justice.

With respect to the second specification of contempt, defendant contends that the order lacks specificity as to what statements of the defendant violated the court’s admonition to refrain from comment on the trial court’s rulings. Defendant further argues that, assuming the defendant did violate this admonition, no actual and material disruption of the proceedings occurred.

It is not disputed that there must be a written order entered by the trial court and that such order must set forth the grounds upon which the contempt citation is based. This written order must contain not merely the opinions or conclusions of the trial judge, but rather the facts. (People v. Miller (1970), 130 Ill.App.2d 637, 645, 265 N.E.2d 175, redd on other grounds (1972), 51 Ill.2d 76, 281 N.E.2d 292.) Moreover, it has been held that no part of the essential facts can be supplied by presumptions or inferences. (People v. Loughran (1954), 2 Ill.2d 258, 118 N.E.2d 310; People v. Koniecki (1961), 28 Ill.App.2d 483, 487, 171 N.E.2d 666.) Defendant contends that People v. Miller (1970), 130 Ill. App.2d 637, 645, 265 N.E.2d 175, redd on other grounds (1972), 51 Ill. 2d 76, 281 N.E.2d 292) stands for the proposition that either the order or the record must identify with precision the basis for the contempt ruling. We disagree with defendant’s argument as to the meaning of Miller. While the order must be factual and specific in nature, this court is not prevented from reviewing the record on appeal together with the order. Indeed, it has been held that specific facts constituting the basis of a direct contempt may be incorporated by reference, if not set forth in the order itself. (People v. Tavernier (1943), 384 Ill. 388, as cited in People v. Baxter (1972), 50 Ill.2d 286, 289, 278 N.E.2d 777; In re Magnes (1972), 8 Ill.App.3d 249, 254, 290 N.E.2d 378.) Although it is preferable to set forth the facts with specificity in the order itself, the court upon review will consider the record to determine the correctness of the contempt order. People v. Baxter (1972), 50 Ill.2d 286, 289, 278 N.E.2d 777.

After examining the order, we find that it does set forth the factual basis of the contempt with sufficient specificity in light of the record. Although it might have been preferable for the order to contain with verbatim precision from the transcript the statements constituting “repeated reference to matters excluded upon objection and not in evidence” (Order, par. 5), we do not find the order void. In our statement of the facts, we have quoted extensively from the transcript those portions of the record which demonstrate Oliver’s repeated reference to matters not in evidence. The record substantiates the court’s finding of fact as set forth in the order of contempt. We find that the order contains facts rather than conclusions or opinions of the trial judge, and that this court may look to the record to determine if a finding of fact (that Oliver made “repeated reference to matters excluded upon objection and not in evidence”) is substantiated. The order contains the finding of fact; the record contains the evidence supporting the finding of fact.

Having reviewed the record, we hold that Oliver’s statements, as reflected above, did violate the court’s admonition to refrain from comment on the court’s rulings.

The final issue concerning the second specification of contempt is whether the element of an actual disruption of the proceedings is essential to a finding of contempt. Oliver’s position is that the finding based on the second specification should be reversed because there was no actual and material disruption of the court proceedings. Defendant would require pandemonium, chaos, confusion, or delay in the proceedings before the court is justified in invoking its contempt power. As we have noted previously, the contempt power should be exercised with caution and all due regard for the role of the attorney as an adovcate. In the heat of a trial, particularly in closing argument, it may be difficult to strike a balance bet-ween the role of the judge as an administrator of fair and impartial justice and the role of the attorney as an advocate. This court recognizes that liberality should guide the judge. However, it is also the duty of the trial judge to set limitations on argument in order to ensure orderly, expeditious, and fair trial proceedings. (In re Magnes (1972), 8 Ill.App.3d 249, 254, 290 N.E.2d 378.) Indeed, even the Federal courts,’ which apparently consider actual and material obstruction of the proceeding an essential element of contempt, have stated:

“[T]his is not to say that attorneys may press their positions beyond the court’s insistent direction to desist. On the contrary, the necessity for orderly administration of justice compels the view that the judge must have the power to set limits on argument. We simply encourage judges to exercise tolerance in determining those limits and to distinguish carefully between hesitating, begrudging obedience and open defiance.” In re Dellinger (7th Cir. 1972), 41 F.2d 389, 399.

In the case at bar, the record establishes that the trial judge did set limits on the closing argument by warning Oliver not to comment further on the rulings of the court. Such a limitation is proper, since the wisdom of our rules of evidence and the correctness of the judge’s rulings with respect to them are not matters for the consideration of the jury, but rather are matters of law solely for the court, which one may challenge only on appeal. Hence, the limitation imposed upon closing argumentation was proper and was one of which Oliver had foreknowledge.

We realize that some Federal courts’ position on this matter differs from ours (United States v. Oliver (7th Cir. 1972), 470 F.2d 10), but we conclude that when a limitation has been imposed upon the closing argument (as not within the province of the jury) and counsel has been specifically informed by the judge that further comment on such matters will be viewed as contemptuous, the contempt power can and should be exercised by the court. (See In re Magnes (1972), 8 Ill.App. 3d 249, 290 N.E.2d.378.) The orderly and impartial administration of justice requires the reasonable use of the contempt power, not only to ensure the defendant a fair trial, but also to ensure that the “interest of the public * * * shall not be thwarted.” (A.B.A. Standards, Function of the Trial Judge § 7.1 (1972).) If the State transgresses the limits imposed upon closing argument, the defendant may be entitled to a new trial and, in some instances, to reversal. No element of actual and material obstruction is required in such situations. If the defense transgresses the limits imposed upon closing argument, there is no corresponding remedy available to the State. Thus, the duty of the trial court to provide a fair and impartial trial both to defendant and to the public would be thwarted without the possible exercise of the contempt power. We conclude and hold that the citation of Oliver for contempt in the case at bar was a proper exercise of the trial judge’s contempt power.

Affirmed.

SEIDENFELD, P. J., and GUILD, J., concur.


text:
    Rose Calcese, Special Adm’r of the Estate of Charles Calcese, Deceased, Plaintiff-Appellant, v. Cunningham Cartage, Inc., et al., Defendants-Appellees.
    (No. 73-170;
    Second District (1st Division)
    January 29, 1975.
   * Calcese v. Cunningham Cartage, Inc., which appeared in abstract in the March 19, 1975, Advance Sheet at 25 Ill.App.3d 78, is now published in full at the end of this volume. It should be cited as 25 Ill.App.3d 1094.


author: Mr. JUSTICE TRAPP

text:
    The Illinois Commerce Commission et al., Defendants-Appellants, v. Central Illinois Public Service Company, Plaintiff-Appellee.
    (No. 11987;
    Fourth District
    January 28, 1975.

      William J. Scott, Attorney General, of Chicago (Peter A. Fasseas and James R. Sullivan, Assistant Attorneys General, and Nolan K. Sims, of counsel), for appellants.
    Nafziger & Otten, of Springfield, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Upon a complaint under sections 5 — 7 of the Electrical Supplier Act (Ill. Rev. Stat. 1969, ch. 111⅔, pars. 405 — 407) by Coles-Moultrie Electric Cooperative (designated defendant in administrative review), the Illinois Commerce Commission found that defendant was entitled to provide all electrical service to Lot 10, Block G of Annis subdivision to the City of Mattoon, and ordered that Central Illinois Public Service Company (designated plaintiff in administrative review) was to discontinue service and remove its facilities from such lot.

The Commission found that on July 1, 1965, defendant had entered into a written agreement with the owners of real estate which thereafter became the Annis Subdivision:

“[I]n which Coles-Moultrie Electric Cooperative agreed to provide electric service to the south 122 feet of the Annis Subdivision and is therefore entitled to provide all electric service to Lot 10 in Block G of Annis Subdivision.”

The right of defendant to provide electrical service was found to exist under the provisions of section 5 of the Electric Supplier Act (Ill. Rev. Stat. 1969, ch. 111⅔, par. 405.)

Upon administrative review the circuit court reversed the order of the Commission. In its memorandum the court determined that the findings of the Commission were not “supported by the law” for the reason that the contract was lacking in mutuality, and concluded that as of the date of the Annis contract such “could not be enforced by either side.”

The agreement at issue designated the owners of the described real estate, Annis, as “the DEVELOPER,” and it was executed by them, under such designation. The agreement recited that the “DEVELOPER” had title to land which was later described and was “desirous of electrical service to said land,” that defendant was a corporation “desiring to provide electrical service to the said land,” and after reciting valuable consideration and mutual agreement provided that the “Cooperative is to provide necessary electrical service to the following described land.” A subsequent paragraph provided that the contract “shall continue until July 1, 1995,” a term of 30 years, with provision for renewal for a further term of 30 years.

The record shows that on June 21, 1965, Annis had granted an easement to defendant to erect a system of lines upon such real estate upon the completion of a drainage ditch or “at the request of the owner.” The record shows that at the time of the proceedings, defendant had supplied underground electrical service to all 15 lots in Block G.

It appears that an engineer employee of plaintiff had purchased Lot 10 in Block G and thereupon demanded that defendant remove its facilities from the lot. Thereafter plaintiff had extended its lines 182 feet overhead and 742 feet underground to provide service to Lot 10, effective September 12, 1969. The record does not show any notice by plaintiff to defendant of such extension as is provided in section 7 of the Electric Supplier Act. (Ill. Rev. Stat., ch. 111⅔, par. 407.) It is not alleged that plaintiff came within any of the excéptiori provisions for giving notice.

Before the Commission, plaintiff argues that section 5 of the Electric Supplier Act did not authorize defendant to supply service because the Annis contract was lacking in mutuality and was unenforceable. It is generally said that one who is not a party to a contract cannot complain that it is not mutual in character. (17 C.J. Contracts § 100(l)b (1963).) Want of mutuality is no defense where a contract has been executed. (Corso v. Dixon, 348 Ill.App. 378, 109 N.E.2d 241; Hall v. Gruesen, 22 Ill.App.2d 465, 161 N.E.2d 345.) As of the time that the plaintiff extended its line to Lot 10, defendant had executed the Annis contract to provide service to all Lots.

In Illinois Power Co. v. Illinois Commerce Com. 39 Ill.2d 406, 235 N.E.2d 614, it was held that the proprietors of a subdivision were “customers” and that the subdivision constituted “premises” within the terms of the Electric Supplier Act, sections 3.3, 3.12 and 5, even though no construction had occurred in the subdivision and no service had been supplied.

We do not agree with the conclusion of the trial court that the provision of “the necessary electrical service” is here so lacking in detail as to be meaningless, or that Annis was not required to purchase any electricity from the defendant.

In Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 105, 133 N.E. 711, the court said:

“In construing a contract it is proper for a court to take into consideration the surrounding circumstances. It should place itself as nearly as it can in the same situation as the parties who made the contract, so that it may view the circumstances as they viewed them and so it may judge the meaning of the words and their application to the things described as the parties judged and applied them. [Citation.]”

The courts memorandum does not note or comment upon the fact that the Annis contract was for a term of 30 years with provision for extension for a like term and that the contract was designated as binding upon the heirs, successors and assigns of tire parties.

In Cook-Master, Inc. v. Nicro Steel Products, Inc., 339 Ill.App. 519, 90 N.E.2d 657, plaintiff sought damages for breach of contract. Defendant contended that the contract contained no specific agreement that plaintiff would purchase so that the contract lacked mutuality. The court held that under such contract a commitment to purchase was clearly implied. (See also Hillman v. Hodag Chemical Corp., 96 Ill.App.2d 204, 238 N.E. 2d 145.) In 1A Corbin, Contracts § 156, at 30-32 (1963), it is said:

“A promise to buy of another person or company all of some commodity or service that the promisor may thereafter need or require in his business is not an illusory promise; and such a promise is a sufficient consideration for a return promise. It is true that the amount to be delivered or paid for can not be determined at the time the contract is made; but the terms of the promise give a sufficiently definite objective standard to enable a court to determine the amount when the time comes for enforcement. It is not a promise to buy all that the buyer wishes or may thereafter choose to order; the amount is not left to the will of the promisor himself.”

Such agreements are sometimes described as “requirements contracts.”

Illinois has consistently enforced contracts of this character in National Furnace Co. v. Keystone Manufacturing Co., 110 Ill. 427; Hall v. Gruesen, 22 Ill.App.2d 465, 161 N.E.2d 345, and Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 133 N.E. 711.

In National Furnace, the contract was for all pig iron needed by plaintiff in the year 1879. Such contract was upheld as against the contention that it lacked mutuality. In Hall, the agreement was to manufacture tools needed for a stated “season,” and such was upheld against a claim of want of mutuality. In Armstrong Paint Works, a contract for the amounts of packages as required for actual use in a designated period of time was held enforceable.

Nor does the want of a stated price for the “necessary electrical service” make the contract unenforceable, for if the price has not been determined the buyer must pay a reasonable price. (Cook-Master, Inc. v. Nicro Steel Products, 339 Ill.App. 519, 90 N.E.2d 657.) It is appropriate to consider the analogy to section 2 — 305 of the Uniform Commercial Code (Ill. Rev. Stat. 1969, ch. 26, par. 2 — 305) which provides that if the agreement does not state the price, payment is to be a reasonable price at the time of delivery.

In arguing the want of mutuality, plaintiff cited Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215, 98 N.E. 263; Peru Wheel Co. v. Union Coal Co., 295 Ill.App. 276, 14 N.E.2d 998; Higbie v. Rust, 211 Ill. 333, 71 N.E. 1010, and Hodorowicz v. Szulc, 16 Ill.App.2d 317, 147 N.E.2d 887. These cases contained provisions which were construed as making the contract terminable at will. They were without any provision fixing a term of the contract. In National Furnace Co. v. Keystone Manufacturing Co., 110 Ill. 427, it was stated that there was a clear distinction between what a party might “want” and what was needed or required.

Plaintiff argues that the contract executed by defendant was ultra vires. In Mound City Warehouse Co. v. Illinois Central R.R. Co., 51 Ill. App.2d 103, 200 N.E.2d 919, plaintiff sought to enjoin defendant from leasing its right-of-way to other persons for warehouse purposes. It was held that while the ultra vires act of a corporation may be objected to by the State, by the corporation itself or by the person with whom the alleged ultra vires acts are had, third persons not concerned in the subject matter could not raise such issue. We conclude that such rule controls here. The cases from foreign jurisdictions cited by plaintiff do not appear to contradict such rule.

We have examined the other issues raised and in the light of the record find such to be without merit. The judgment entered on administrative review is reversed.

Reversed.

SMITH, J., and SIMKINS, P. J., concur.

      - “§ 5. Each electric supplier is entitled * * * to (b) furnish service to customers or premises which it is not now serving but which it had agreed to servé under contracts in existence on the effective date of this Act * *


author: Mr. JUSTICE CRAVEN

text:
    Weldon Co-Operative Grain Company, Petitioner v. The Pollution Control Board et al., Respondents.
    (No. 12122;
    Fourth District
    January 28, 1975.

      Lawrence Eaton, of Monticello, for petitioner.
    William J. Scott, Attorney General, of Springfield (Thomas J. Immel and Thomas A. Cengel, Assistant Attorneys General, of counsel), for respondents.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The Environmental Protection Agency by its amended complaint filed with the Pollution Control Board (PCB) charged the Weldon Co-Operative Grain Company (Weldon) with violating section 9(a) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1009(a)) and specified rules of the Air Pollution Control Board. After hearings, the PCB found that Weldon was in violation of the Act and imposed a $500 fine for the violation and further ordered that Weldon submit a program for ultimate compliance with the Act. Weldon petitions for review under provisions of the Environmental Protection Act and the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1041; Ill. Rev. Stat. 1971, ch. 10, par. 264 et seq.). We affirm.

In its petition, Weldon does not contend that the findings of the PCB as to the existence of violations were against the manifest weight of the evidence. Rather, Weldon contends that the Environmental Protection Act is unconstitutional for a diverse number of reasons and further that requiring it to comply with the order of the PCB imposes an arbitrary and unreasonable hardship.

In our opinion, each of the arguments advanced by Weldon is without merit and each has been definitively disposed of contrary to Weldons view by the courts. We will summarize the contentions and the holdings: (1) The Environmental Protection Act is not unconstitutional under the doctrine of separation of powers. (City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146.) (2) the terms “contaminant” and “air pollution” are not so vague as to confer arbitrary power upon the PCB. (Mystik Tape v. Pollution Control Board, 16 Ill. App.3d 778, 306 N.E.2d 574, appeal allowed, 56 Ill.2d 583; W.F. Hall Printing Co. v. Environmental Protection Agency, 16 Ill.App.3d 864, 306 N.E.2d 595.) (3) The Environmental Protection Act is not unconstitutional because it authorizes the imposition of civil penalties in the form of fines without provision for a jury trial. (City of Monmouth v. Pollution Control Board, 57 Ill.2d 482, 313 N.E.2d 161.) (4) The contentions of Weldon with reference to evidentiary matters and burden of proof are answered in the recent supreme court opinion in Incinerator, Inc. v. Pollution Control Board, 59 Ill.2d 290, 319 N.E.2d 794. Furthermore, Weldons contention in this regard fades into insignificance in face of its express concession made at oral argument that the findings of the PCB are not against the manifest weight of the evidence. (5) We find no merit in Weldons contention that section 41 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1041) is unconstitutional in that it purports to amend section 5 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 268) without compliance with the constitutional mandate that the amended section be inserted at length in the new act. The Administrative Review Act expressly provides that it is applicable to and governs every action to review judicially a final decision of any administrative agency where the act creating the agency or conferring power on it by express reference adopts the provisions of the Administrative Review Act. Such is the circumstance here. (Also see The Hertz Corp. v. Taylor, 15 Ill.2d 552, 155 N.E.2d 610.) The Environmental Protection Act adopts and incorporates the Administrative Review Act as is the case with innumerable other acts providing for judicial review. In the case of the Environmental Protection Act, there is a difference in that judicial review is initiated in the appellate rather than the circuit court. This can hardly be urged to be of any constitutional magnitude in view of the express constitutional authorization to place such review in the appellate courts. See Ill. Const. (1970), art. VI, sec. 6.

At the time of the enactment of the Environmental Protection Act, the General Assembly stated its purpose to be to establish a unified statewide program to restore, protect, and enhance the environment. (Ill. Rev. Stat. 1971, ch. 111½, par. 1002(b).) Judicial review in the appellate court as provided in section 41 of the Act eliminates two-court review and should result in more expeditious judicial determination of the issues sought to be administratively reviewed.

Finally, Weldons contention that compliance with the order of the PCB would impose an arbitrary and unreasonable hardship is not persuasive upon this record and in view of the language of the order under review which is supported by evidence in the record. The nature and extent of the compliance program as set forth in the order is as follows:

“Coupled with this, we find that Respondent could take significant steps at minimum cost to ameliorate this condition. Maintenance and improvement of existing facilities such as the canvas bags in the loading area would go far to abate this nuisance. Testimony with respect to the need for an expenditure of $113,000 to install new air pollution abatement equipment indicates that this figure is far more than necessary than needed to eliminate the nuisance since by this proceeding, we are not finding a violation of the regulations, but only a violation of the air pollution provisions of the statute. Respondent’s thrust should be directed toward repairing and improving its existing facilities including the maintenance of the primary cyclones and installation and repair of its canvas bags used in minimizing the dust emissions from loading and unloading operations. In our view, the abatement of the primary nuisance can be achieved with relatively slight expenditure and by improved housekeeping practices without the need for installation of expensive new air pollution abatement equipment. We shall order Respondent to submit a program to achieve this result and ask for its evaluation by the Environmental Protection Agency.”

We find this neither arbitrary nor unreasonable. The order of the PCB is affirmed.

SIMKINS, P. J., and TRAPP, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Lee Chalk, Defendant-Appellant.
    (No. 74-224;
    Third District
    January 31, 1975.

      James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Michael Mihm, State’s Attorney, of Peoria, for the People.
   PER CURIAM.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plantiff-Appellee, v. John Thomas, Defendant-Appellant.
    (No. 73-15;
    Third District
    January 31, 1975.

      James Geis and Richard Steck, both of State Appellate Defenders Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island (F. Stewart Merdian, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Rock Island County finding defendant guilty of armed robbery.

On appeal in this court defendant raises three issues: (1) that the trial court erred by refusing to discharge the defendant who had been incarcerated for over 120 days without coming to trial; (2) that the trial court erred in permitting the jury, over objection, to hear identification testimony which was inadmissible hearsay; and (3) that the trial court erred in permitting the prosecutor to argue before the juiy, over objection, that he could have called more witnesses who could have supported his case.

The record discloses that on June 28, 1972, defendant John Thomas was arrested in connection with an armed robbery which had occurred the previous December. Defendant was brought to trial on November 2, 1972, and was found guilty. As we have indicated he was sentenced on such conviction. It appears that he had been returned to Rock Island on July 3, 1972, was indicted on July 12, 1972, and was arraigned on July 14, 1972. On July 14, 1972, lie appeared without his attorney for the arraignment and was ruled to plead or have his attorney file motions by July 27. There was no compliance with the court’s order.

On September 29, the jury trial list was filed which noticed up the case for trial on October 10, well within the 120-day limit. Three days later, on October 2, private counsel, who had represented defendant, withdrew, presumably because defendant could not pay him. On the same day, at defendant’s request, the public defender was appointed to represent defendant. For the second time he was ruled to plead or file motions by October 16. On October 4, the public defender filed a 14-point discovery motion, a motion for a list of witnesses, production of confessions, and also demanding “immediate” trial. On October 5 an order was entered granting defendant’s motion for the list of witnesses and production of confessions. On the same day the People noticed for hearing defendant’s motion for discovery before trial. On October 6, the People filed a motion for pretrial discovery and noticed their motion for hearing together with defendant’s motion for discovery before trial for 6 days later. On October 12, the defendant’s motion for discovery before trial was allowed, and the People were given 1 week to answer the motion. On the same day, the public defender filed defendant’s answer to the People’s motion for pretrial discovery. On October 18, the People filed their answer to defendant’s motion for a list of witnesses and to produce confessions as well as defendant’s motion for discovery before trial. On Friday, October 27, the People filed additional answers to defendant’s motion for discovery before trial. On the same date, defense counsel filed a petition for discharge of defendant contending that it was the 121st day of defendant’s incarceration. On October 30, a hearing was had on defendant’s motion and, after considering the record, the trial court denied the motion and the attorneys were ordered to prepare the case for trial on November 1. On November 1, 96 days after defendant had originally been ordered to plead, he entered his plea of not guilty. He had originally been ordered to plead by July 27. The jury trial was commenced on November 1, and on November 2, defendant was found guilty by the jury.

In passing upon the petition for discharge, the trial court found that there had been a delay occasioned by defendant as a result of substitution of counsel and further delay necessitated by filing and answering defendant’s extensive discovery motions. There was a further observation by the trial court, when the issue was raised again in defendant’s post-trial motion, that after the trial list was served on defendant’s attomey he withdrew from the case and thereby necessitated the appointment of the public defender, which prevented a trial of defendant at the original designated time on the trial list of October 10.

It is clear that the motion to discharge was filed on the 121st day after defendant’s original arrest and that the trial was commenced on tihe 126th day from the date appellant was taken into custody. The basic inquiry was whether there was delay attributable to defendant.

It is provided in section 103 — 5(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5(a)) that:

“Every person in custody in this State for an alleged offense shall be tried * * * within 120 days from the date he was taken into custody unless delay is occasioned by the defendant.”

As indicated in People v. Scott, 13 Ill.App.3d 620, 630, 301 N.E.2d 118, in interpreting People v. Nunnery, 54 Ill.2d 372, a discovery motion which the State could answer quickly would cause little or no delay. Whether a motion falls into the category of one which would cause little delay or much delay calls for the trial court’s appraisal of the motion, its need, timeliness and complexity. It calls for the court’s appraisal of the State’s ability to answer the motion immediately or the merit of the State’s reasons for not doing so. The interpretation of the motion and of the availability of the required information, the reasonable time needed to answer and whether the proposed objections are genuine or dilatory should rest in the judgment of the trial court, and its decision as to accountability for the ensuing delay, if there is one, should be sustained on appeal unless it is clearly shown that the court’s discretion was abused. The same considerations obtain as to other factors which may contribute to delay, such as a change of counsel by defendant at a time when the case is set on the trial calendar. On the basis of the record before us, we do not believe that the trial court clearly abused its discretion in finding that the delay of only a 6-day period before trial commenced in this cause was attributable to defendant. Delays attributable to a defendant cover a number of situations roughly parallel with those we have in the cause before us. (People v. Hairston, 46 Ill.2d 348 (trial counsel not with defendant on the 120th day); People v. Jenkins, 101 Ill.App.2d 414 (request for new attorney and the attorney’s request for a psychiatric examination); People v. Behning, 130 Ill.App.2d 536 (substitution of attorney); People v. Denham, 33 Ill.2d 599 (where private counsel was retained until the 120-day period nearly expired and then obtained appointed counsel).) The motion to discharge was properly denied.

The case against appellant was based upon discovery of coins taken in the robbery still in the wrappings in possession of defendant; on the in-court identification of defendant by three eyewitnesses; and. on the testimony of Powell, the police investigator. Defendant presented no evidence. It is contended that the trial court erred when it permitted witness Powell to testify, over objection, that defendant was arrested on the basis of information given to Powell by Williamson and an unnamed informant. Powell is a police investigator. The State asserts that defendant has waived this issue. Defendant did not raise the issue in the trial court or even in the post-trial motion. Williamson was a confederate in the armed robbeiy. He pleaded guilty. Since the issue was not raised in the post-trial motion it cannot now be raised on appeal. (See People v. DeMarco, 44 Ill.App.2d 459, 195 N.E.2d 213, 216.) The . statement was properly, admitted, in any event, as testimony of the witness to the effect that another person made an extra-judicial statement, where the purpose is not to show the truth of such statement but to show the reason why the witness followed the course of conduct which he did and the fact that he relied and acted' upon the information so received. Such statement Was not objectionable on the ground that it was hearsay. (Clearly, Handbook of Illinois Evidence § 17.4, at 275 ( 2d ed. 1963); Hunter, Trial Handbook for Illinois Lawyers §§ 65.3 and 66.1, at 604 and 607) (4th ed. 1972). Powell did not testify as to what was said in the third-party conversation, as it pertained to defendant, but rather he testified that such statements as were made to him were the basis of his investigation that led to defendant’s arrest.

A final point is made that in his closing argumment, the prosecutor made reference to the testimony of certain persons who did not appear at the trial. He claimed he could have paraded witnesses before the jury which could have substantiated the reliability of identification witnesses. Defense made no objection, at least as concerns the statement that there were two unavailable persons who could support the conviction, at the time the argument was made.

Where a prosecutor asserts to a jury a fact not in evidence which is prejudicial to the defendant it could be reversible érror (Fox v. People, 95 Ill. 71; People v. Bond, 291 111. 74). In a trial where the evidence is highly conflicting, a defendant would be entitled to a new trial on the basis of such statement by the prosecutor in final argument. Where no objection is made to the assertion of facts not in the record and where defendant otherwise received a fair trial and the evidence of guilt is substantial, however, the error should not cause reversal. (People v. Oparka, 85 Ill.App.2d 33.) In the cause before us, the evidence against the defendant wás substantial. Three persons identified the defendant as the offender. Some of the coins were found with defendant’s personal property. No objection was made during the closing argument. While the references made by the prosecutor were improper, we do not believe that the error is such as to require reversal of this cause in view of the evidence otherwise presented and since there was no objection made.

Judgment of the Circuit Court of Rock Island County is, therefore, affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    Nathaniel Wells, Plaintiff-Appellee, v. Charles Kern et al., Defendants-Appellants.
    (No. 74-121;
    Fifth District
    January 30, 1975.

      Meyer & Meyer, of Greenville, for appellants.

      Durr & Durr, of Edwardsville (Wendell Durr, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This appeal arises as a result of a suit brought by the plaintiff, Nathaniel Wells, in the circuit court of Madison County to enforce a promissory note in the amount of $3,050, due December 1, 1969. A complaint was filed December 5, 1969, against the defendants, Charles Kern and Glenda Kern, his wife, alleging that this note was due and payable by the defendants, and that, after demand, no payment was forthcoming. Within 30 days of the filing of the complaint, defendants filed an answer denying the allegations of the complaint and alleging as an affirmative defense that defendant, Charles Kern, had been adjudicated bankrupt in Federal District Court and was thereby absolved from liability on the note.

On April 2, 1973, this cause was called for hearing and the defendants did not appear; after evidence was heard on the plaintiffs complaint, a judgment was entered for plaintiff against defendants. On May 30, 1973, a request for the issuance of a citation to discover assets was requested, and on June 7, 1973, this citation was issued and properly served on the defendants.

Defendants, on July 9, 1973, filed a “Motion to Set Aside Judgment and for Further Relief.” The hearing on the citation to discover assets was continued. The motion came on for hearing on November 8, 1973. All parties appeared by their respective counsel, arguments were heard and the “Motion to Set Aside Judgment and for Further Relief” was denied. No appeal was taken from the order of denial.

A second “Motion to Set Aside Judgment” was filed by the defendants on November 21, 1973. On February 8, 1974, the trial court heard arguments on this “Motion to Set Aside Judgment” with all the parties present by their respective attorneys. The court denied this motion as well; appeal bond was fixed, but no appeal has been taken from the order of denial entered upon that date.

On March 8, 1974, a notice of appeal was filed by the defendants, appealing from the trial court’s default judgment entered against defendants on April 2, 1973, and asking this court to reverse, set aside and arrest that judgment, or alternatively, to remand the cause for a new trial.

Both the defendants-appellants and the plaintiff-appellee have taken the position in their briefs and on oral argument that this appeal is one taken from the trial court’s orders denying defendants-appellants’ two motions to set aside judgment under section 72 of the Civil Practice Act (Illinois Rev. Stat., ch. 110, par. 72). This court cannot reach the merits of this appeal on this theory.

The threshold question in this case, as in every appeal, is whether this court has jurisdiction of this appeal. Our Supreme Court Rule 301 provides that:

“Every final judgment of a circuit court in a eral case is appealable as of right. The appeal is initiated by filing a notice of appeal. No other step is jurisdictional. An appeal is a continuation of the proceeding. AH rights that could have been asserted by appeal or writ of error may be asserted by appeal.” (Ill. Rev. Stat., ch. 110A, par. 301.)

Our Supreme Court Rules also provide that:

* the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or non-jury case, within 30 days after the entry of the order disposing of the motion.” Ill. Rev. Stat., ch. 110A, par. 303(a).

The Supreme Court Rules, in addition, contain a rule entitled “APPEALS FROM FINAL JUDGMENTS THAT DO NOT DISPOSE OF AN ENTIRE PROCEEDING.” (Ill. Rev. Stat., ch. 110A, par. 304.) Subsection (a) thereof requires an express written finding that there is no just reason for delaying enforcement or appeal. Subsection (b), however, provides that:

“The foHowing judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:
# # #
(3) A judgment or order granting or denying any of the relief prayed in a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 72).” (Ill. Rev. Stat., ch. 110A, par. 304(b).)

Section 72 of the Civil Practice Act provides that:

“(1) Relief from final orders, judgments and decrees, after 30 days from the entry thereof, may be had upon petition as provided in this section. * * *
(2) The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof. * * *
(3) The petition must be filed not later than 2 years after the entry of the order, judgment or decree. * * *
# * #
(6) Any order entered denying or granting any of the relief prayed in the petition is appealable.” Ill. Rev. Stat. 1971, ch. 110, par. 72.

The notice of appeal filed in this cause, as previously noted, appeals from the judgment entered by the trial court on April 2, 1973. It was filed March 8, 1974. It was clearly not filed within 30 days of the judgment appealed from as required by Supreme Court Rule 303. The first question, therefore, is whether the notice of appeal was filed within 30 days after the entry of an order disposing of a timely post-trial motion directed against the judgment. The second question is, assuming it was not so filed, does that notice of appeal give this court jurisdiction to review the order or orders denying the motion or motions filed under section 72 of the Civil Practice Act, as is apparently assumed by both parties in their briefs.

The rule in Illinois appears to be that section 72 of the Civil Practice Act, which substitutes a simple remedy by petition for various forms of post-judgment relief theretofore available, does not contemplate the review of orders from which a party could have appealed within the time prescribed by our Supreme Court Rules, and the provisions of section 72 providing a remedy by petition cannot be invoked as a substitute for the right of a party to appeal as provided by Supreme Court Rule and the Civil Practice Act. As stated in Oskvarek v. Richter, 32 Ill.App.2d 438, 443, 178 N.E.2d 209:

“It has been held that a motion in the nature of a writ of error coram nobis [now a section 72 petition] cannot be used as a substitute for an appeal. Jerome v. 5019-21 Quincy St. Bldg. Corp., supra; City of Chicago v. Roth, 322 Ill.App. 696, 54 N.E.2d 647 (Abst.). In the instant case the trial judge knew the facts. It is obvious that should the courts permit the use of section 72 for the relief of errors reviewable by appeal that the limitation in time for prosecuting an appeal would become ineffective.”

The court reached a similar conclusion in In re Village of Willowbrook, 42 Ill.App.2d 432, 437, 192 N.E.2d 553, wherein it stated:

“Section 72 does not contemplate a review of an order from which a party could have appealed within the time fixed by the Act, and its provisions cannot be invoked as a substitute for a party’s right to appeal. Jones v. Jones, 32 Ill.App.2d 64, 176 N.E.2d 635.”

Also see, for the same proposition, Jones v. Jones, 32 Ill.App.2d 64, 176 N.E.2d 635 (abstract opinion); Brockmeyer v. Duncan, 18 Ill.2d 502, 505; People v. Ilg, 60 Ill.App.2d 295, 298, 210 N.E.2d 20.

With respect to the question of whether, assuming a section 72 petition is not a timely post-trial motion under Rule 303(a), the filing of the notice of appeal in this cause gives this court jurisdiction to review the motion or motions filed under section 72 herein, the answer in Illinois appears to be in the negative. An appellate court has jurisdiction of only those matters raised in the notice of appeal. The court in People v. Harvey, 5 Ill.App.3d 499, 502, 285 N.E.2d 179, cert. denied, 410 U.S. 983, approached, and decided, this issue in the following manner:

“* * * we must first consider the threshold question of this court’s jurisdiction to entertain the issues raised by defendant in his brief. Appeals to this court in both civil and criminal cases are governed by Supreme Court Rules which provide that an appeal is perfected by the filing of a notice of appeal in the trial court and that such notice of appeal shall specify the judgment from which the appeal is taken. This is the only jurisdictional step in the appellate process. [Citations.] Similarly, the scope of review in this court is limited, inter alia, to the judgment appealed from. See Supreme Court Rules 366 and 615, Ill. Rev. Stat. 1969, ch. 110A, pars. 366 and 615.”

Also see Scheffler v. Ringhofer, 67 Ill.App.2d 222, 225, 214 N.E.2d 575.

It is also clear in Illinois that a section 72 petition is a new action and not a continuation of the original proceeding, irrespective of the requirement in the Civil Practice Act that it must be filed in the same proceeding. The Civil Practice Act expressly provides that:

“The petition must be filed in the same proceeding in which the order, judgment or decree was entered but is not a continuation thereof.” (Ill. Rev. Stat., ch. 110, par. 72(2).)

The case law is also quite clear on this point as evidenced by the court’s language in In re Estate of Peterson, 3 Ill.App.3d 636, 637, 279 N.E.2d 434:

“A petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) is not a continuation of the original proceeding. It marks the commencement of a new action and, as is the case with any original pleading, must set forth the grounds upon which the petitioner’s entitlement to the relief sought rests. [Citations.]”

A similar expression may be found in Kukuk v. Checker Taxi Co., 13 Ill.App.3d 5, 8-9, 299 N.E.2d 468, wherein the court stated:

“A petition under section 72 is a new action, i.e., it is not a continuation of the prior proceeding. (Ill. Rev. Stat. 1971, ch. 110, par. 72(2).) Like all other civil cases, the petition must state a good of action.”

The same proposition is distinctly set forth in Frandsen v. Anderson, 108 Ill.App.2d 194, 200, 247 N.E.2d 183; Fennema v. Vander Aa, 42 Ill.2d 309, 310, 247 N.E.2d 409; Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294.

The notice of appeal in this cause does not raise the issues presented in the two section 72 petitions, and, therefore, the final question in regard to this issue becomes, can the parties waive this failure as they have apparently tried to do by virtue of their arguments and briefs which treat this appeal as one from denial of the two section 72 motions. Aside from the problem that the notice of appeal was not filed within 30 days of the order entered dismissing the first such motion, it appears that such a waiver is not permitted under Illinois law. Thus, in Country Mutual Insurance Co. v. National Bank, 109 Ill.App.2d 133, 137, 248 N.E.2d 299, the court stated:

“There are certain legal rights and doctrines which the parties cannot waive or stipulate away. Some examples of these are: the requirement of law of filing a timely notice of appeal (McHale v. Marrs, 48 Ill.App.2d 171, 197 N.E.2d 736 ( 2d Dist 1964) and the requirement that the tribunal have jurisdiction of the subject matter of a case. [Citation.]”

In summary it appears that:

(1) This court lacks jurisdiction to review the original judgment because the notice of appeal therefrom was not filed within 30 days of the entry thereof.

(2) This corut lacks jurisdiction to review the original judgment because the notice of appeal therefrom was not filed within 30 days of the entry of an order determining a timely post-trial motion and because a section 72 petition is a new action and not a continuation of a prior proceeding.

(3) This court lacks jurisdiction to review the first section 72 petition because, first, it was not appealed from within 30 days of the entry of the order, and secondly, because a section 72 petition is a new action and not a continuation of the original action so that a notice of appeal from the original judgment is not a notice of appeal from a section 72 petition.

(4) This court lacks jurisdiction to review the second section 72 petition for the second reason enunciated under (3) above.

(5) The parties to this cause cannot waive these objections to this notice of appeal because the notice of appeal is the only jurisdictional requisite and is thus the basis of this court’s subject-matter jurisdiction of this cause.

For lack of jurisdiction, this appeal is dismissed.

CARTER and CREBS, JJ., concur.


author: Mr. JUSTICE DIXON.

text:
    Alice Louise Johnson, Plaintiff-Appellant, v. George Michael Johnson, Defendant-Appellee.
    (No. 73-407;
    Second District (2nd Division)
    February 3, 1975.
    Connolly, Oliver, Goddard, Coplan & Close, of Rockford, for appellant.
    No brief for appellee.
   Opinion by

Mr. JUSTICE DIXON.