text:
    Capital Plumbing & Heating Supply Company, Plaintiff, v. John A. Snyder et al., Defendants-Appellees. — (Robert E. Midden, d/b/a Midden Supply Company, Defendants-Counterclaimants-Appellants.)
    (No. 11495;
    Fourth District
    — November 23, 1971.

      Baird, Latendresse, McCarthy & Weinman, of Decatur, (Donald G. Baird, of counsel,) for appellants.
    Rosenberg, Rosenberg, Bickes & Johnson, of Decatur, (Joseph L. Rosenberg and David L. Johnson, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an appeal from the denial by the trial court of two mechanics’ liens, one filed by a subcontractor, Ted Bates, and the other filed by a materialman, Robert Midden. The appellants herein are intervening petitioners in a mechanic s hen foreclosure suit filed by Capital Plumbing & Heating Supply Company. It is the second appeal arising out of the same factual situation, the first being reported in Capital Plumbing & Heating v. Snyder, 104 Ill.App.2d 431.

A more comprehensive review of the facts is contained in the former opinion. The material facts for the purpose of this appeal are as follows:

In June of 1965, Doris and John Snyder, the owners in joint tenancy of certain real estate, entered into a contract with GAC Construction Company for the construction on jointly-owned property of an apartment building for $92,600. GAC entered into an oral contract with Ted Bates, an appellant herein, in September of 1965 for certain ornamental metal work and air-conditioner stands for this apartment building. GAC also entered into a contract with Nichols and Camp for plumbing, heating and air-conditioning work. Nichols and Camp ordered and purchased from Robert Midden, the other appellant herein, during September to November of 1965, certain materials for the plumbing and heating work which Nichols and Camp had contracted to do with GAC.

Midden supplied the materials to Nichols and Camp between September 14 and October 18, 1965. These materials were installed on the premises owned by the Snyders. Between November 15 and November 18, 1965, Midden personally served a notice of lien addressed to both John A. Snyder and Doris L. Snyder on Doris L. Snyder.

Bates furnished and installed the air-conditioner stands and iron railings during the latter part of 1965 and early 1966. On January 3, 1966, he allegedly completed the work by going out to the construction site and installing a railing and painting some of the other rails. On March 4, 1966, Bates personally served a notice of lien on Doris L. Snyder. This notice of lien was directed to both John A. Snyder and Doris L. Snyder.

At the time of entering into a contract with GAC Construction Company, the Snyders had entered into a construction loan with Security Federal Savings of Decatur. Admitted into evidence is a payout record on this loan showing the dates and the parties to whom the payouts were made. These records show that as of November 15, 1965, the payouts on this construction loan amounted to approximately $62,000. They also show that subsequent to November 15, there were payouts from this fund of approximately $32,000 to $33,000 made to the general contractors, subcontractors and owners. As of March 4, 1966, the records show that the payments totalled $95,297.32 and there was only $382.00 left in the account; this amount was subsequently paid to Doris L. Snyder. From August 5 to September 27, 1965, there were four affidavits as required by Ill. Rev. Stat. 1965, ch. 82, par. 5, submitted to the Snyders by the contractor listing the subcontractors and materialmen and the amounts due to each. None of these affidavits listed either Bates or Midden.

The evidence also reveals that the Snyders ordered extras and that a contractor’s lien was filed showing the cost of these extras as being being approximately $8,821.88. Testimony was offered as to some of these extras and as to the items testified to, the cost was placed at $5,573.31. The record also reveals that between March 4, 1966, and the time of the trial, the owners paid out an additional $4,276.22 to contractors on the job.

In March of 1966, the Snyders sold the premises to Verle and Helen Jane Dollahan, subject to an escrow agreement for the payment of valid liens.

The appellants herein are intervening petitioners in the mechanic’s lien suit filed by Capital Plumbing & Heating Company. The matter went to hearing and after the hearing, the court ruled in favor of the owners, denying the validity of the hens. The trial court by its order found the following: (1) the service of the sixty-day subcontractors notice was effective only as to Doris L. Snyder and was ineffective as to the other joint tenant; (2) John A. Snyder and Doris L. Snyder have paid in excess of the price established in the contract between themselves and the general contractor; and (3) neither of the petitioners comes within the exceptions of Section 21 of the Mechanics’ Liens Act. The court in its order did not, however, establish what the contract price was.

As a result of the aforesaid findings, the court entered judgment against each of the intervening petitioners, Midden and Bates and dismissed their petitions to foreclose their liens for want of equity.

It is contended on this appeal that the service upon Doris L. Snyder was ineffective to bind the interest of the other joint tenant, her husband. The applicable section of the Mechanics’ Liens Act is Section 24 which provides:

“Sub-contractors, or party furnishing labor or materials * * w shall within sixty (60) days after the completion thereof * * * cause a written notice of his claim and the amount due or to become due thereunder, to be personally served on tire owner or his agent or architect * ° (Emphasis supplied.)

In regard to that section, it is stated in Love, Illinois Mechanics’ Liens, 2dEd., on page 363:

“The courts have consistently held that notice must be handed to the owner or his agent in person * *

Both Midden and Bates personally served the notice of lien upon Mrs. Snyder; this notice of lien was directed to both Mr. and Mrs. Snyder.

As has been pointed out by numerous cases, the statutory provisions of the Mechanics’ Liens Act are in derogation of the common law and are strictly construed and the rights of the parties are determined by strict compliance with the provisions of the statute. Marriage, although it creates a contractual relationship, does not create one of principal and agent. In Throgmorton v. Mosak, 245 Ill.App. 330, the court held that notice of lien served upon the wife was not sufficient to bind her husband even though the wife did deliver the notice to the husband. The court in that case, denying that the marriage creates an agency, stated on p. 333 as follows:

“The legislature has declared that such a notice must be personally served and the courts have no authority to say that service in a different manner shall be sufficient.”

Similarly, the fact of joint ownership of the real estate does not appoint the joint owner as an agent of the other owner for the purpose of receiving the notice of lien. Mantonya v. Reilly, 184 Ill. 183, 56 N.E. 425; Liese v. Hentze, 326 Ill. 633, 158 N.E. 428.

However, the foregoing cases are distinguishable from the situation at hand. In this case, there is not only the marriage and the service upon one of the spouses; there also is the fact of joint ownership of the real estate. Added to these factors, there is the testimony of both of the Snyders that they at different times appeared on the jobs and gave directions as to what they wanted done and the changes to be made. Both of them signed the construction contract with GAC Construction Company and were obligated thereunder. Both of them appeared at different times on the payout checks on the construction loan. Both of them stood to make a profit or sustain a loss. Under Illinois law, when two parties have made joint contributions to a venture in which they have a joint proprietorship interest and have exercised management and control over the venture, and are subject to making a profit or sustaining a loss, the relationship becomes one of a joint venture. In Carroll v. Caldwell, 12 Ill.2d 487,147 N.E.2d 69, the court stated as follows on pages 496-497:

“Accordingly, it can be said that a joint adventure contemplates an enterprise jointly undertaken; that it is an association of such joint undertakers to carry out a single project for profit; that there must be a community of interest in the performance of a common purpose, a proprietary interest in the subject matter, and a right to direct and govern the policy in connection therewith, and a duty, which may be altered by agreement, to share both in profit and losses.”

Service of notice of lien upon one of the two partners, or joint venturers as the case may be, has been held to be notice to both. (Lurya Lumber Co. v. Bernstein, 168 Ill.App. 85.) Similarly, the dictum in Western Plumbing Supply Co. v. Horn, 269 Ill.App. 612, indicated that service upon a husband who was acting as agent for the wife was proper service on the mechanics’ liens statute. The wife was served in this case and both parties had contributed their property to the venture and directed the construction of the building and jointly obligated themselves under the contract with the general contractor for the construction of the building and had approved various payouts made on the construction loan. Personal service upon one of the individuals under these circumstances is sufficient service to bind both parties to this joint venture.

A further issue raised by the appellees is the question of the timeliness of the service of the notice of hen with regard to the Bates claim. The appellees contend that the Bates claim was not served within the sixty days required by the statute. The trial court did not make any finding on this point. The evidence introduced in the trial court is that Bates was contracted by GAC on September 9,1965, for the furnishing of metal railings and other material and subsequently on December 8, 1965, for the furnishing of two air-conditioner stands. The special railings were delivered during various times. The testimony is that the last raffing which was a five foot ornamental railing was installed on January 3, 1966. There is also testimony that there was some painting done at that time on the railings previously installed. The appellees contend that insignificant and trivial work will not extend the sixty day period for service and cite Alexander-Hendry Co. v. Mooar, 242 Ill.App. 516, and Schaller-Hoerr v. Gentile, 153 Ill.App. 458. In each of these cases, the work involved was minimal. In the first case, the work was regarded by the court as an unwarranted attempt to revive the lien by work which had not been ordered and by doing repair work not under the original contract. In the latter case, the contract was regarded by the court as completed prior to the work and tire work was done to obtain a lien. The testimony here is sufficient to sustain the claim that the work was not completed until January 3, 1966, as at that time a railing was installed and painting was done on the railings that had previously been installed. There is no indication that this was work done for the purpose of frustrating the Mechanics’ Liens Act and its time limitations. The testimony is that it was done to complete the work so that the bill could be submitted to the general contractor, which was done on the same day. The notice of the mechanic’s hen being served on March 4, within sixty days of January 3, was timely.

The next point raised is the question of whether or not the owners should be required to pay more than the purchase price for the building. The court in its order held that the owners had paid in excess of the contract price. We assume from the trial court’s order that the contract price found by the court was the original $92,600, although the court did not make any explicit finding. Insofar as material herein, section 21 of the Mechanics’ Liens Act provides as follows:

“Every mechanic, workman or other person who shall furnish any materials * * * or furnish or perform services or labor for the contractor, or shall furnish any material to be employed in the process of construction # * shall be known under this act as a subcontractor, and shall have a hen for the value thereof * * *.
In no case, except as hereinafter provided, shall the owner be compelled to pay a greater sum for or on account of the completion of such house, building or other improvement than the price or sum stipulated in said original contract or agreement, unless payment be made to the contractor or to his order, in violation of the rights and interests of persons intended to be benefited by this * *

The appellees’ position is that they not only obtained Section 5 affidavits and paid out pursuant to these affidavits, but that they paid out more than the purchase price, thereby removing them from any liability. True, payments made in reliance on a Section 5 affidavit are credited to the owners. The risk is upon the sub-contractor, who to protect himself must serve a notice of lien. Until he does, the owner may pay out in accordance with the affidavit and even if a subcontractor’s name is omitted, the owner is protected. It has furthermore been held that there is no necessity of obtaining a Section 5 affidavit before each payment, one having been held sufficient. Sanaghan v. Lawndale National Bank, 90 Ill.App. 2d 254, 232 N.E.2d 546. However, once the owner is put on notice either by the contractor’s affidavit or the subcontractor’s notice of lien, he acts at his peril unless he retain sufficient funds to pay the subcontractor. Krack Corporation v. Sky Valley Foods, Inc. (Ill.App.2d), 273 N.E.2d 202.

The trial court’s holding was that the contract price had been paid. We conclude otherwise from our reading of the record. The contractor’s price is not only the contract price of $92,600, but includes the extras for which the owners are obliged to pay. According to the lien filed by GAG, these extras were supplied at a cost of $8,821.88, raising the contract price to $101,421.88. The testimony was that all of these items were orally ordered by the Snyders and testimony as to the cost was offered only to some of the items, which totalled $5,573.31, for a total contract price of $98,173.31. The total payments under the contract as shown in the exhibit of the escrow agent totalled $62,620.74 as of November 18, 1965, and $95,297.32 as of March 4, 1966, and subsequent to March 4, 1966, $4,276.22 was paid out, for a total of $99,246.54.

The appellees attempt to restrict the contract price to the $92,600 and exclude the extras on the ground that the contract required written orders which were not obtained. The uncontradicted testimony is that the items were ordered by the owners and placed on the premises. They are, therefore, estopped to deny the obligation to pay for these items. Salomon-Waterton Co. v. Union Asbestos & Rubber Co., 263 Ill.App. 583.

We therefore find that as of November 18, 1965, the date of the service of the Midden notice of lien and as of March 4, 1966, the date of the service of the notice of the Bates lien, the contract price had not been fully paid by the owners. Subsequent payments did not total the contract price if all the extras are included, but were in excess of it if only those extras are included for which there was testimony as to price. However, it is not material for this opinion to determine which of these figures is actually the correct figure for the reason that payments subsequent to the service of the notice of lien were wrongful and in neither case at tifie time of the service of the notice of lien, had the contract price been reached.

Section 27 provides as follows:

‘When the owner or his agent is notified as provided in this act, he shall retain from any money due or to become due the contractor, an amount sufficient to pay all demands that are or will become due such sub-contractor * * #. Any payment made by the owner to the contractor after such notice, without retaining sufficient money to pay such claims, shall be considered illegal * *

It is further stated in Love, Illinois Mechanics’ Lien, 2d Ed., p. 337, that when the owner has notice of sub-contractor’s rights through the original contractor’s statement under Section 5, or through the subcontractor’s sixty (60) day notice, and nevertheless makes payment to the original contractor without retaining funds for that sub-contractor, such payment is wrongful within the meaning of the Illinois Mechanics’ Liens Act. Cases so holding are Krack Corporation v. Sky Valley Foods, Inc., (Ill.App.2d), 273 N.E.2d 202; Butler v. Gain, 128 Ill. 23, 21 N.E. 350; Chicago & Riverdale Lumber Co. v. Quinliven, 204 Ill.App. 166; and Gilbert v. Croshaw, 178 Ill.App. 10. To allow the owner to pick and choose which one of the subcontractors or materialmen he wishes to pay and then to thumb his nose at the unpaid contractors and materialmen saying that he has paid its fuU contract price would seem not only contrary to the provisions of the Mechanics’ Lien Act but contrary to equity and good conscience. We, therefore, hold that the Midden and Bates claims for lien are valid liens upon the real estate here involved and reverse the trial court and direct that the court proceed in accordance with the opinion herein.

Reversed and remanded.

CRAVEN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel E. Mahnke, Defendant-Appellant.
    (No. 11374;
    Fourth District
    — December 9, 1971.
    Burger, Geisler & FombeUe, of Decatur, (Asher O. Geisler, of counsel,) for appeHant.
    Basü G. Greanias, State’s Attorney, of Decatur, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendant was convicted in a jury trial in the circuit court of Macon County for the unlawful sale of marijuana. At the time of the offense and the conviction marijuana was classified as a narcotic drug under the provisions of Ill. Rev. Stat. 1969, par. 22 — 3, et seq. of ch. 38. Upon conviction the defendant was sentenced for a term of not less than 10 nor more than 12 years. This appeal is from the conviction and sentence.

In People v. McCabe, 49 Ill.2d 338, the Illinois Supreme Comt held that the classification of marijuana in the Narcotic Drug Act above cited, under which the defendant was convicted, was arbitrary and that such classification deprives the defendant of equal protection of the law. Such unconstitutional classification required reversal of the conviction. Petition for rehearing was denied in McCabe on November 24, 1971.

In People v. Hudson, 50 Ill.2d 1, the Illinois Supreme Court considered the case of the defendant convicted of the unlawful sale of marijuana, as was the defendant here, and in relying upon McCabe reversed the conviction. Such result is required in this case.

The judgment of the circuit court of Macon County is reversed and the mandate of this Court is ordered to issue forthwith.

Judgment reversed.

TRAPP, P. J., and SMITH, J„ concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary Hopkins, Defendant-Appellant.
    (No. 11684;
    Fourth District
    — December 9, 1971.
    John F. McNichols, of Defender Project, of Springfield, (Brace L. Herr, of Defender Project, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, for the People.
   PER CURIAM:

The defendant was convicted of the unlawful sale of hashish, a form of marijuana, on April 6, 1971, and sentenced to a term of not less than 10 nor more than 15 years in prison. Conviction was under the then statutory provision found in Ill. Rev. Stat. 1969, par. 22 — 3, ch. 38, wherein marijuana was classified in the Narcotic Drag Act.

The Illinois Supreme Court, in the case of People v. McCabe, 49 Ill.2d 338, petition for rehearing denied on November 24, 1971, held that the classification of marijuana in the Narcotic Drug Act, under which the defendant was convicted, was arbitrary and that such classification deprives the defendant of equal protection of the law. The court there reversed the conviction. See also People v. Hudson, 50 Ill.2d 1, Illinois Supreme Court.

The disposition here is mandated by the holding in McCabe and Hudson.

Upon filing of a short record in this court defendant filed a motion for summary reversal. This court has previously allowed the defendant’s motion for release on a recognizance bond. The judgment of the circuit court of Champaign County is reversed and the mandate is ordered to issue forthwith.

Judgment reversed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary Hopkins, Defendant-Appellant.
    (No. 11685;
    Fourth District
    — December 9, 1971.
    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, for the People.
   PER CURIAM:

The defendant was convicted of the unlawful possession of marijuana on July 26, 1971, and sentenced to a term of not less than 2 nor more than 10 years imprisonment. In connection with his appeal of that conviction to this court he has filed a short record and a motion for summary reversal.

In No. 11684 we considered another proceeding involving an appeal by the defendant with reference to marijuana and the constitutional infirmities found by the Illinois Supreme Court in connection with prior statutory classification of marijuana.

For the reasons set forth in our opinion in No. 11684 the motion for summary reversal is allowed. The judgment of the circuit court of Champaign County is reversed and the mandate is ordered to issue forthwith.

Judgment reversed.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David C. Ely, Defendant-Appellant.
    (No. 11688;
    Fourth District
    — December 9, 1971.
    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    John G. Satter, State’s Attorney, of Pontiac, for the People.
   PER CURIAM:

On November 13, 1970, the defendant was found guilty in a jury trial of the unlawful possession of marijuana, then classified as a narcotic drug under par. 22 — 3, et seq. of ch. 38, Ill. Rev. Stat. 1969. Following that trial the circuit court of Livingston County granted the motion of the defendant for a new trial. Such new trial resulted in another conviction for the same offense on October 5, 1971. Defendant was denied probation and was sentenced to 120 days at the Illinois State Penal Farm. The sentence imposed was under the new Cannabis Control Act of 1971, the sentencing procedure apparently in accord with the opinion of this court in People v. Bailey, 273 N.E.2d 74.

Subsequent to the filing of the opinion of this Court in Bailey, the Illinois Supreme Court, in People v. McCabe, 49 Ill.2d 338, rehearing denied November 24, 1971, held that the classification of marijuana as a narcotic drug under the prior statute was arbitrary and unconstitutional. This defendant was convicted for a violation- of that statute. In his dissenting opinion Mr. Chief Justice Underwood made reference to Bailey. The majority opinion holds however that the classification is unconstitutional, without reference to sentencing under the new Cannabis Control Act.

The motion for summary reversal is therefore well taken, the motion is allowed, and the judgment of the circuit court of Livingston County is reversed and the mandate of this Court is ordered to issue forthwith.

Judgment reversed.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Allen Hanna, Defendant-Appellant. — (The People of the State of Illinois, Plaintiff-Appellee, v. Steven Allen Hanna, Defendant-Appellant.)
    (Nos. 11343, 11344 cons.;
    Fourth District
    — December 22, 1971.

      Morton Zwiclc, Director of Defender Project, of Chicago, (Bruce L. Herr, of counsel,) for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, (Matther A. Hutmacher, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was found guilty in a jury trial of armed robbery and sentenced to a term of from 3-10 years in the state penitentiary. Subsequently, defendant was indicted for perjury allegedly committed during his trial for armed robbery. Defendant was found guilty of testifying falsely as to the time that he left a certain apartment on the night of the robbery. The perjury conviction resulted in a sentence of from 1-5 years in the state penitentiary. The two sentences were to run concurrently.

On appeal, defendant contends that the judge faded to give defendant a reasonable opportunity to poll the jury in the trial for armed robbery. Defendant asserts in a separate appeal that the perjury conviction should be reversed because the evidence failed to prove beyond a reasonable doubt that the defendant made the perjurious statement; that the statement uttered by the defendant was an expression of belief rather than fact and thus not perjury; and that the evidence failed to prove beyond a reasonable doubt that the statement allegedly uttered by defendant was false. The two appeals have been consolidated.

At the close of the trial, the jury returned with a verdict. The original abstract filed with this court indicated that following the announcement of the verdict by the clerk, the judge discharged the jury explaining to them that their duties were fulfilled and that they need not return unless notified. Prior to oral argument, the appellee made a motion for leave to file a Supplemental Record and Supplemental Affidavits. The addition to the record shows that following the announcement of the verdict and before the dismissal of the jury, the judge made this statement: “Ladies * * * is there anything, gentlemen?” No response was made to this question. Defendant objected to the additional record asserting that the motion to supplement the record was untimely and that appellant’s abstract and brief were prepared and filed with this court in reliance on the first certified record. It was also argued that the inserted material was ambiguous.

At oral argument defense counsel conceded the accuracy of the supplemental statement and asserted that its importance would depend on the interpretation given it. This court allowed the addition to the record. Supreme Court Rule 329; Ill. Rev. Stat. 1969, ch. 110A.

After dismissal of the jury the judge asked counsel for motions, and defense counsel made a motion for probation. At that time defense counsel made no objection or request for polling the jury nor did he file a post-trial motion asserting the denial of the right to poll the jury.

The rule in Illinois is that defendant does have the right to poll the jury. However, defendant waives this right by failure to make a timely request that the jury be polled. (People v. Stevenson, 107 Ill.App.2d 441, 246 N.E.2d 309.) The prosecution contends that defendant did have a reasonable opportunity to poll the jury and that in failing to make the necessary request at the time of the trial or in a post-trial motion he waived his right to poll the jury. In this case, defense counsel could easily have made a request for polling in response to the judge’s question directed to counsel, prior to discharge of the jury. However, defendant made no effort to exercise his right to poll the jury. A request for polling could have been made any time after the verdict was announced and before the jury left the courtroom. There was no error committed by the trial judge. The defendant did not take advantage of his opportunity to request a poll of the jury and thereby waived the opportunity to do so.

The conviction and sentence in the armed robbery case, No. 11343, is affirmed.

The defendant asserts that the evidence failed to prove beyond a reasonable doubt that he uttered the alleged perjurious statement. The indictment charged defendant with perjury when he “stated he did not leave an apartment of Cynthia Cramer in Quincy, Illinois, until approximately the hour of 10 P.M. on February 26, 1969.” This was based upon defendant’s response to a question on direct examination by defense counsel which was as follows: “Mary Kay came by and picked me up around # # * the news was on * ° s I couldn’t be positive on the time. I think it was during the news. I am not sure what station was on. I think it was Channel 10.” Defendant did not specifically state the time at which he left the house. The time was essentially deduced from the testimony of the court reporter who testified that the news was broadcast at 10 P.M. every evening. Since the robbery occurred between 9:45 and 10:00 P.M., defendant could not have been at the scene of the crime if he had not left Cynthia Cramer’s house until 10 P.M. The time of defendant’s departure. became a crucial factor in his case. The existence of an alibi depends upon this time element.

Although the perjury indictment need not contain the exact words of the alleged false testimony, the case law in Illinois would require the prosecution to prove that defendant’s statement was substantially as alleged in the indictment. The prosecution failed to make this proof. The court reporter conceded that she wasn’t sure to which news defendant referred and that news broadcasts were televised at various times in the evening. The statement “I left while the news was on” cannot be found substantially file same as “I left at 10:00 P.M.” The perjury conviction must be reversed.

General No. 11343 affirmed. General No. 11344 reversed.

TRAPP, P. J., and SMITH, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Atheree Chaney, Defendant-Appellant.
    (No. 11449;
    Fourth District
    — December 22, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Kenneth L. Gillis and John F. McNichols, of Defender Project, of counsel,) for appellant.
    Basil Greanias, State’s Attorney, of Decatur, for appellant.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant Atheree Chaney was indicted for murder. He was represented, in the trial court, by counsel of his choice, and in this Court by appointed counsel.

Subsequently, as a result of plea negotiations in which the Court did not participate, an information was filed which charged the defendant with voluntary manslaughter, to which he entered a plea of guilty on September 18, 1970. Defendant was sentenced to an indeterminate term of six to fifteen years, whereupon the murder indictment was dismissed on motion of the People.

The plea bargain, negotiated between the State’s Attorney and defendant and his attorney was as follows: defendant would enter a plea of guilty to voluntary manslaughter, he would file a petition to be admitted to probation which the State’s Attorney would oppose, and if the Petition be denied the State’s Attorney would recommend a sentence of nine to twenty years in the penitentiary. While the record is not clear on the point, it apparently was also agreed that the murder indictment would be dismissed upon the entry of the plea to the charge of manslaughter, and dismissal was in fact made.

Defendant, after careful admonishment and explanation by the Court, then entered his plea. An evidentiary hearing was held on the Petition for Probation which the Court denied; hearing in aggravation and mitigation was held; the People recommended a sentence of nine to twenty years. The trial judge refused to follow the recommendation and imposed sentence, of six to fifteen years, on October 2, 1970. On October 5, 1970, the State’s Attorney filed with the Clerk of the Court, a document entitled “Statement of the State’s Attorney and Circuit Judge” dated October 2, 1970. The Statement indicates, on its face, that it is “Submitted in accordance with provisions of Section 203, Chapter 108, Ill. Rev. Stat., 1969.”; it was signed by the State’s Attorney and the Trial Judge noted his concurrence in the Statement. One portion of the Statement, which is a printed form, is entitled “Recommendations to Parole Board:” and under this heading appears the following language: “Be advised that the defendant, Atheree Chaney, was originally charged in this cause with the Crime of Murder. It was, when the charge was brought, and still is, the belief of this office that the operative facts and circumstances surrounding the crime would substantiate a charge of Murder. However, upon further investigation and a consideration of all the facets of this case and also the considered opinion of this office, that a plea of a reduced charge of Voluntary Manslaughter was justified. This office recommends that the charge reduction be considered by the Parole and Pardon Board before arriving at their decision regarding parole of this defendant”.

The foregoing portion of the Statement gives rise to defendant’s contention here, and he argues that he was not fully admonished of the consequences of his plea where “* # * the plea admonishments do not reveal that the defendant was informed that after a plea of guilty the prosecutor intended to — and did — take immediate steps to hinder or block early parole.”

He urges that the effect of the State’s Attorney’s Statement “* * * was to maximize the term in prison substantiaUy, * * and that the Statement “* * * concerning his parole had a great effect”. These statements are, of course, made without foundation in fact. Since defendant wiH not be ehgible for parole until he has served four years and three months of the sentence imposed, (assuming fuH credit for “good time” is aHowed) and the Board has had no occasion to consider whether or not to release him on parole, how can the Statement be said to have “* * * had a great effect” or that its effect was “to maximize the term in prison substantially, * * *”? Implicit in these contentions is the proposition that when parole is opposed by a State’s Attorney, it foHows, as night follows day, and with the same degree of certainty, that the Board’s wiH and reason are subordinated to the suggestion, and that no meaningful effort is made to determine the issue according to an acceptable standard. This argument is not based upon fact, and we accept it only for what it is: a bald, unsupported conclusion.

Defendant also argues that “he was informed and was presumed to have thought that he faced a minimum of six years”. Bearing in mind that this case hinges upon the admonishment given at the time of taking defendant’s plea this statement too, is patently inaccurate. What defendant was informed was that the People would and did recommend nine to twenty years, that the Trial Court was in no way bound by the recommendation and could impose sentence anywhere within the minimum of one year and the maximum of twenty years, as provided by the Statute, section 9-2 of the Code of Criminal Procedure, Ill. Rev. Stat. 1969, ch. 38, par. 9-2.). Nor did he have any reason, in view of the terms of the negotiated plea and the Court’s admonition, to presume anything other than that the sentence would faU within the statutory minimum and maximum.

That a defendant must be admonished as to the consequences of a plea of guilty is too firmly established in the law of the State to require citation. In support of his contentions here the defendant cites People v. Flannigan, (Ill.App.2d), 267 N.E.2d 739. In Flannigan the defendant, having been convicted of resisting a police officer, then entered a plea of guüty to reckless driving and was sentenced to terms of one year and of six months to run consecutively. The Supreme Court held that where a defendant is charged with more than one crime, the fact that the sentence may, where appropriate, be made consecutive “* * * must be considered as crucial to his decision as the admonition on tire maximum penalty for each of the charges.” It is noted that Supreme Court Rule 402 (effective September 1, 1970,) also provides that, before accepting a plea of guilty the defendant is to be admonished as to “* * * the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences: * * Flannigan, supra, is readily distinguishable from this case because there is no contention here that the Court failed to properly admonish as to the minimum and maximum sentence limits prescribed by the Statute, nor is any question of consecutive sentence involved.

Defendant also cites People v. Thomas, 41 Ill.2d 116, 242 N.E.2d 170 though the reason for his doing so is obscure. Thomas holds that the Court, in its admonition given prior to accepting a plea of guilty, is not required to advise the defendant of civil consequences of the plea such as loss of right to vote and to hold elective office. Defendants citation of People v. Mims, 42 Ill.2d 441, 248 N.E.2d 92 seems equally inapposite since it holds that under the particular circumstances involved (none of which bear the slightest resemblance to the issue here) the defendant had been properly admonished prior to acceptance of his plea and had, contrary to his contention, been afforded an opportunity to withdraw the plea. Nor is the holding in People v. Moore, 47 Ill.2d 57, 264 N.E.2d 184 relevant to the issue here. Under facts and circumstances presented there, the Court held that defendant had been properly admonished. Those facts and circumstances bear no discernable relationship to this case.

Defendant also cites Bye v. U.S., 435 Fed.2d 177; Berry v. U.S., 412 Fed.2d 189; Jenkins v. U.S., 420 Fed.2d 433; and Durant v. U.S., 410 Fed.2d 689. All of these cases involve the application of Rule 11 of the Federal Rules of Criminal Procedure and hold that when an individual enters a plea of guilty to a federal narcotics offense, without knowledge, that he will be ineligible for parole from, the sentence he receives due to a section of the statute which makes certain narcotics offenders ineligible, the plea is not made voluntarily with “understanding of the nature of the charge and the consequences of the plea”. In Bye, supra, the Court pointed out that the unavailability of parole made the mandatory period of incarceration three times as long as contrasted to sentence where parole is available (not taking into account allowance for good time). Berry, supra, also held that failure to advise defendant of statutory ineligibility for parole at the time of plea constitutes a failure to properly admonish as to the consequences of such a plea. To the same effect is Jenkins, supra, and Durant, supra. Defendant cites McCarthy v. U.S., 394 U.S. 459. There a defendant had entered a plea of guilty to attempting to evade Federal income tax payments. The government conceded that the District Judge had not personally inquired of the defendant whether he understood the charge, a duty imposed on the Judge by Rule 11 of the Federal Rules of Criminal Procedure. The Court held that Rule 11 cannot be complied with unless the judge personally inquires as to the defendant’s understanding of the charge.

None of the cases cited by the defendant afford any assistance in the resolution of the particular issue raised here, since none of them involve the right of the defendant to be admonished as to the possible consequences which might flow from an adverse report if, as, and when forwarded by a State’s Attorney to the Parole and Pardon Board. The most that can be said for defendant’s authorities is that they stand for the general proposition that the defendant must be admonished as to the consequences of a plea. No cases are cited by the People, who simply urge that the defendant was fully advised of the consequences of his plea.

We note that defendant does not suggest how the Rial court might have admonished him as to the contents of the Official Statement which was to be prepared subsequent to the imposition of sentence; it not being suggested that he was aware of the State’s Attorney’s intentions if, indeed, he had any at that juncture. The Statement was prepared and forwarded by the State’s Attorney as provided by Ill. Rev. Stat. 1969, ch. 108, par. 203 which requires a statement “* * # of tire facts and circumstances constituting the crime or offense * * * together with all other information accessible to them in regard to the career of the prisoner * * * prior to the time of the commitment for the crime * * * of which he or she was convicted * # * relative to his * * * habits, associates, disposition and reputation and any other facts and circumstances which may tend to throw light upon the question as to whether such prisoner * * * is capable of again becoming a law abiding citizen:”.

It is noted that par. 206 of the same Act requires the Parole and Pardon Board to send notices of hearings, relating to the granting of paroles at the time of expiration of the minimum sentence, to the State’s Attorney of the county where the applicant for parole was convicted, to the sentencing judge, and the complaining witnesses. These notices to be mailed not less than ten days prior to the date of the hearing in order that they, or any of them who so desire, may appear and be heard on the issue of the applicant’s eligibility to return to society during sentence. The State’s Attorney’s recommendation to the Parole Board may be considered as premature, but it is one which he would have had an opportunity to make at a later date, had he so desired, pursuant to the provisions of par. 206, supra.

The admonishment of a defendant as to the consequences of his plea, within the meaning of the cited Rules and case law on the subject, does not comprehend that he be instructed, lectured and reminded of each and every factor which might possibly or conceivably affect the decision, at a later date, of the Parole and Pardon Board to either grant or deny parole.

To hold to the contrary would be to require the judge to explain, for example, the concept of “good time” allowed in diminution of sentence, and that it applies both to the minimum and maximum. To explain that infractions of prison rules and regulations might affect, to some ill-defined degree, the decision to grant or deny parole, to spell out in detail what those prison rules are, that they change from time to time, and are not necessarily the same in each branch of the penal system. To discuss and explain “Merit Time”. Also to explain that if parole were granted he would have to sign the Parole Agreement required by the Parole and Pardon Board, and to explicate the meaning of each of the 17 numbered paragraphs of the Agreement, including the agreement to waive extradition. To advise that parole may, under certain circumstances, be revoked; and that at the time for public hearing on the question, the State’s Attorney, sentencing judge, complaining witness, or some member of the public unknown to the judge might appear and oppose parole and that this might have some effect on the decision, and so on ad infinitum.

To remark that this would result in a welter of speculative, technical requirements, and further involve the judge in a quagmire of uncertainty and irrelevant detail, almost incomprehensible in scope, is to belabor the obvious.

We have carefully examined the record here. It reveals that the trial judge carefully, in detail, and at length, admonished the defendant as to the consequences of his plea, and it further establishes that the defendant understood what was stated to him.

We therefore hold that, in admonishing a defendant as to the consequences of his plea, the judge need not advise him that at some time someone, including the State’s Attorney, may oppose his being admitted to parole.

Judgment affirmed.

SMITH, P. J„ and CRAVEN, J., concur.


author: PER CURIAM.

text:
    Hubert Dwiggins, Plaintiff-Appellant, v. Illini Production Credit Association et al., Defendants-Appellees.
    (No. 11457;
    Fourth District
    — December 22, 1971.
    D. A. McGrady, McGrady and Madden and Watson, Gillespie, of Carlinville, for appellant.
    Thomas P. Carmody, and Phelps and Russell, both of Carlinville, (Dennis L. Schwartz, of counsel,) for appellees.
   PER CURIAM.


author: Mr. JUSTICE SMITH

text:
    Clair Ingalsbe, Executor of the Estate of Floyd W. Ward, a/k/a Floyd W. Allen, Deceased, Plaintiff-Appellee, v. Lillie A. Gough et al., Defendants-Appellants.
    (No. 11501;
    Fourth District
    — December 22, 1971.

      John T. Allen, of Danville, for appellant.
    Harold A. Craig, of Danville, for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by an heir of the decedent from an order of the circuit court denying attorney fees of such heir in a suit to construe the will instituted by the executor. We affirmed the trial court’s construction of the will in Ingalsbe v. Gouge, 109 Ill.App.2d 232, 248 N.E.2d 522, and there held that the anti-lapse statute (Ill. Rev. Stat. 1967, ch. 3, par. 49), when applied to the facts in this case required that the estate go to four surviving beneficiaries out of a total of nine and did not descend as intestate property. The heir now petitioning for fees lost both in the trial court and here on the construction of the will. In the present appeal from the refusal of the trial court to allow him attorney fees in that court, the appeal is limited specifically to that issue and does not embrace or contemplate fees or expenses beyond those incurred in the trial court.

At the outset, it should be noted that there is no ambiguity on the face of this will. It directed the executor to do some specific things and then directed that “the balance of any and all accountings shall be divided into nine equal parts and pay one part to each of the following persons, [naming them]”. Only four of the nine persons survived the testator and on the face of the will no specific provision was made for the disposition of the property. The ambiguity appeared when extrinsic evidence indicated that five of the nine beneficiaries had died and there was a latent ambiguity. Such extrinsic evidence is proper. (Krog v. Hafka, 413 Ill. 290, 109 N.E.2d 213.) In Orme v. Northern Trust Co., 25 Ill.2d 151, 165, 183 N.E.2d 505, 513, our Supreme Court stated:

“In will construction cases, the costs of litigation are borne by the estate on the theory that the testator expressed his intention so ambiguously as to necessitate construction of the instrument in order to resolve adverse claims to the property. (Dean v. Northern Trust Co., 266 Ill. 205, 107 N.E. 186.) Legal fees are allowed to a party even though the construction adopted is adverse to his claim. [Citing cases.] However, such fees should not be authorized where such construction is unnecessary. The criterion is whether an honest difference of opinion exists. [Citing cases.].”

See also Rosenthal v. First National Bank of Chicago, 127 Ill.App.2d 371, 262 N.E.2d 262; St. Louis Union Trust Co. v. Hearne, 111 Ill.App.2d 411, 250 N.E.2d 674.

In the instant case, the amended anti-lapse statute was of recent origin and there was no case then in existence determining whether or not it applied to a circumstance such as we have here. It is clear from that opinion and from the authorities that the testator created the ambiguity here by making no specific provision in his will for the disposition of his property by the executor in event that one or more of the nine beneficiaries predeceased him. The question then was does the anti-lapse statute apply to this type of a residue or residuary clause. We held that it did. The authorities likewise indicate that the test is whether or not there is an honest difference of opinion. It is apparent that the executor did not feel “that it could safely proceed until there had been a judicial determination as to whether or not the anti-lapse statute applied to the facts here stated”. The petitioner here was made a defendant in the proceedings in the trial court. He was an involuntary party to the litigation. The executor instituted the “complaint for declaratory judgment for construing will” and alleged “an actual controversy between the parties, to-wit: The question as to the proper construction or interpretation of the will of Floyd W. Ward, a/k/a Floyd W. Allen.” It is thus quite clear that the executor did not feel that he could safely proceed with the administration without a judicial construction of the will. (Glaser v. Chicago Title & Trust Co., 401 Ill. 387, 82 N.E.2d 446.) The defendant-heir did not feel that the anti-lapse statute properly interpreted applied to this will. The trial court held otherwise — we affirmed the trial court. We cannot say, however, from this record that this case was not honestly and sincerely litigated in the trial court. Under our adversary proceedings, it would seem a strange and inequitable phenomena to allow the payment of executors attorney fees for the institution of this complaint and deny attorney fees to this heir who was made a party defendant and who presented his point of view even though not adopted by the trial court or this court. It was the testator who created the necessity for litigation. True, the heir hoped to benefit financially from the litigation and it might be said that in every will contest that is the ultimate goal or achievement of one who litigates. Be that as it may, we are required only to decide that there was a latent ambiguity, and there was, and that there was an honest difference of opinion between the parties as to the application of the anti-lapse statute — and there was.

Accordingly, this case must be reversed and remanded to the trial court with directions to fix and allow reasonable attorney fees to the petitioner for the interpretation of the will in the trial court only and to direct its payment out of the estate. It is so ordered.

Reversed and remanded with directions.

TRAPP, P. J., and CRAVEN, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Edmond George Bridewell, for the use and benefit of Horace Mann Insurance Company, Plaintiff-Appellant, v. Board of Education of Shawnee Community Unit School District No. 84, Defendant-Appellee.
    (No. 70-75;
    Fifth District
    — December 3, 1971.

      J. C. Mitchell and W. A. Armstrong, of Marion, for appellant.
    Feirich, Feirich & Green, of Carbondale, (Bill F. Green, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Plaintiff Edmund G. Bridewell brought this action against his employer, the school district, for the use and benefit of Horace Mann Insurance Company to recover attorneys’ fees and costs which were expended on behalf of the plaintiff by the said insurance company pursuant to a liability policy extending indemnity liability insurance coverage for legal liability imposed upon him in his capacity as a school teacher.

This cause is the second case to be brought to an appellate court by the respective insurance companies involved. The original litigation concerned the wrongful death action of a student of the present plaintiff while the present plaintiff was employed by the present defendant, The Board of Education of Shawnee Community Unit School District No. 84 of Union, Jackson and Alexander Counties, Illinois (School District).

In the original action one Treece filed suit naming the School District as Defendant in a wrongful death action. The present plaintiff (Bride-well) was added as a defendant and the School Board then attempted to file a third party complaint against Bridewell. Bridewell, with counsel retained by the Horace Mann Insurance Company (Mann), successfully defeated the motion for leave to add a third party defendant at the trial court. The decision was affirmed by the Illinois Supreme Court in Treece v. Shawnee Community Unit School District, et al., 39 Ill.2d 136, 233 N.E.2d 549.

At all times herein pertinent, Bridewell was employed by the School District and was covered by an insurance policy issued by Mann which contained among other provisions the following:

INSURING AGREEMENT
I. COVERAGE — LIABILITY
To pay on behalf of each and every insured member of the association (hereinafter called the insured) all sums which he shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, and as damages because of injury to or destruction of property, including the loss of use thereof, arising out of an occurrence in the course of his duties as an instruction, member of a faculty or teaching staff.
II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENTS As respect such insurance as is afforded by the other terms of this policy the company shall:
(a) Defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
CONDITIONS
6. Other insurance. If the insured has other insurance against a loss covered by this policy the company shall not be hable under this policy or a greater portion of such loss than the applicable limit of liability stated in the declaration bears to the total applicable limit of such liability of all valid and collectible insurance against such loss.
7. Subrogation. In the event of any payment under this policy, the company shall be subrogated to all the insured’s right of recovery therefore any person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.

Bridewell was also a covered employee under a policy issued by the St. Paul Insurance Company (St. Paul) to the School District:

INSUBING AGBEEMENTS
I. COVERAGE A — BODILY INJURY LIABILITY
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death, at any time resulting therefrom sustained by any person. * * *
II. DEFENSE, SETTLEMENT, SUPPLEMENTARY PAYMENT With respect to such insurance as is afforded by this policy, the company shall:
(a) Defend any suit against the insured alleging such injury, sickness, disease or destruction and seeldng damages on account thereof, even if such suit is groundless, false, or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient;
CONDITIONS
11. Other insurance. If the insured’s liability insured under this policy is covered by any other valid and collectible insurance, then this policy shall act as excess insurance over and above such other insurance.
12. Subrogation. In the event of any payment under this policy the company shall be subrogated to all the insured’s rights of recovery therefore and the insured shall execute all papers required and shall do everything that may be necessary to secure such rights.

There was in effect included as additional duties of a board of education, Ill. Rev. Stat., ch. 122, par. 10 — 21.6 (since repealed):

“To indemnify and protect school districts, members of boards of education, the employees and student teachers against death and bodily injury and property damage claims and suits, including defense thereof, when damages are sought for negligent or wrongful acts alleged to have been committed in the scope of employment or under the direction of the board of education. No agent may be afforded indemnification or protection unless he is a member of a board of education, an employee or a board of education, or a student teacher.”

The School District in attempting to file the above third party complaint contended that Bridewell was primarily liable and the School District secondarily liable. This contention was not adopted in Treece v. Shawne, supra. The statute requiring indemnification was held to be constitutional and “unmistakably was eliminating any right a school district might have to recover back from a negligent employee”. After the Illinois Supreme Court’s decision, St. Paul, through its attorney, entered an appearance for Bridewell and the case settled with the complaints being dismissed.

The law firm that represented St. Paul from the time of the filing of the suit by Treece, until the decision of the Illinois Supreme Court, had refused to defend Bridewell. Attorneys retained by Mann pursuant to its insurance policy with Bridewell provided Bridewell with defense until such time as the attorneys retained by St. Paul entered their appearance on behalf of Bridewell.

The present suit was commenced on November 19, 1968, by the filing of a complaint wherein Bridewell (for the use and benefit of Mann) prayed for damages in the amount of $4,174.13 and costs. The School District answered and in an affirmative defense asked that Mann be named the real party in interest and not entitled therefore to collect the fees and expenses.

The plaintiff filed a Motion to Strike the defendant’s Affirmative Defense. This motion was denied. The defendant then made Request for Admission of Fact to which the plaintiff filed no objection. Thereafter the defendant’s Motion for Summary Judgment was granted.

The question before this court on the plaintiff’s appeal is whether an insurance company (Mann) who insured the liability of a public school teacher may seek indemnity from the insurer (St. Paul) of a public school district under Ill. Rev. Stat., ch. 122, par. 10 — 21.6 for the cost of attorney fees and expenses paid by Mann in defending a “Motion for Leave to File a Third Party Complaint” filed by the public school district’s company, St. Paul, against the public school teacher’s insurance company, Mann.

Several further factors must be noted in considering this cause. Bride-well never was personally obligated to pay and has not paid any of the attorney fees in dispute. Mann’s policy had a $50,000 limit and St. Paul’s pohcy had a limit of $25,000. The claim by Treece was settled for an amount of $7,500 of which Mann made no contribution, St. Paul having paid the entire amount.

There is no dispute of any of the material facts of this cause. The only question to be decided is one of law and thus the cause is appropriate for summary judgment. (Phelps v. Elgin Academy, 125 Ill.App.2d 364, 260 N.E.2d 864; Cohen v. Northwestern Nat. Life Ins. Co., 124 Ill.App.2d 15, 259 N.E.2d 864.) However, for the summary judgment to be aUowed the moving party must, in fact, be entitled to a judgment or decree as a matter of law. Ill. Rev. Stat., ch. 110, par. 57(3), Stein v. Baum, 89 Ill.App.2d 142, 232 N.E.2d 96.

The appellee has presented three separate contentions to support the judgment of the trial court. These shall be considered in the order presented.

First, the appellee urges that the indemnification statute, Ill. Rev. Stat., ch. 122, par. 10 — 21.6, set forth above was in derogation of the common law and must be strictly construed in favor of the teacher’s exclusive benefit. We agree that the statute must be strictly construed as it was in derogation of the Common Law. (Anderson v. Board of Education of School Dist. 91, 390 Ill. 412, 61 N.E.2d 562; Summers v. Summers, 40 Ill.2d 338, 239 N.E.2d 795.) However, words and phrases of the statutes are to be construed according to common and approved usage. (Farrand Coal Co. v. Halpin, 10 Ill.2d 507, 140 N.E.2d 698.) To support the contention that the right to indemnification is a personal right of Bridewell the appellant cites the New York case of Sun Indemnity Co. v. Board of Education of the City of New York, 264 App.Div. 73, 34 N.Y.S.2d 475. This 1942 case construed a New York statute very similar to the one in question. The New York statute provided that the Board of Education was to be liable for, and to assume liability to the extent that it was to hold harmless any teacher for damages arising out of the teacher’s negligence while the teacher was within the scope of his employment. Sun Indemnity filed suit against the Board of Education for indemnification of a judgment that it paid for an insured school teacher. The New York court held that the statute was intended only to benefit the teacher and thus could not be extended by implication, assignment or subrogation. The court stated “It was passed for the exclusive benefit of teachers”.

The Sun case cites as its authority for refusal to extend the rights of subrogation the case of Royal Indemnity Co. v. Travelers Insurance Co., 244 App.Div. 582, aff'd. 270 N.Y. 574. The Royal case involved a suit by an insurance company of an employer attempting to recover by way of subrogation against a third party tort feasor for the amount of its workmen’s compensation payments made to the employer’s injured employee. The New York Court denied the company the relief it sought. This is not the law of this jurisdiction. In Illinois the employer does have a common law right of subrogation over against a third party tort feasor for workmen’s compensation paid to the employee. Geneva Const. Co. v. Martin Transfer & Storage, 4 Ill.2d 273, 122 N.E.2d 540.

We are unable to find, nor have the parties found, any IHinois cases that directly deal with the question here presented. We have been supplied with several citations to aid our deliberation. However, we find none of the cases so cited to be determinative of the issues. We are, however, persuaded by the language of General Accident Fire & Life Assurance Corp. v. Smith and Oby Co., 272 F.2d 581 (6th Cir.), 77 A.L.R.2d 1134, which involved an indemnification agreement between Ferguson, a general contractor, and Smith and Oby Co., a subcontractor. The subcontractor agreed to indemnify the general contractor against aU loss, liabüities, suits or obligations of every kind, paid or incurred by the general contractor on account of the failure of the subcontractor to perform as agreed. There were some further indemnifications also made by the subcontractor to the effect that the subcontractor would indemnify for any injmy sustained by any employee or others performing work for subcontractor arising “from any cause or any reason whatsoever in or about the premises where the work is being performed”. An employee of the subcontractor was injured whfie working on the project through the sole negligence of an employee of the general contractor. The injured employee sued the general contractor who asked the subcontractor to defend. The subcontractor refused to defend; whereupon the General Accident Co. proceeded under the terms of its pohcy with the general contractor to defendant and ultimately settle the claim. The General Accident Co. then filed suit against the subcontractor under the terms of the subrogation in its pohcy with the general contractor and upon the indemnification agreement between the general contractor and the subcontractor. While the court there was construing an agreement, and not a statute, we find that case persuasive of the issues of the present case. The Court states at page 586:

“The suit was against Ferguson but by reason of the insurance contract, General Accident stepped in and defended in place of Ferguson and assumed the responsibility for any judgment or settlement within the limits of the policy. If there had been no insurance, Ferguson would have been required to pay the settlement and the costs and attorney fees. By the subrogation agreement General Accident came into possession of aH the rights of Ferguson, which included the right to recover costs and attorney’s fees as well as the amount of the settlement. It may well be argued that Smith and Oby was not Hable for the settlement because it was not paid by Ferguson.
The indemnity agreement provides for the payment of expenses and it seems obvious that liability on the agreement carries with it costs and attorney fees as well as the amount of the settlement, * *

It does not appear to this court to be a worthy interpretation of the acts of the legislative body of this State to hold that whether an employee of a school district has or has not individual liability insurance should determine whether or not the individual is indemnified and granted the protection of the statute. Thus, where the statute specifically indemnified “including defense thereof’ the company who defended pursuant to contract with the teacher should be entitled to recover. If we were to otherwise hold, we would find ourselves in the position of holding that it would indeed take two wrongs to make a right. For there can be no disagreement that had not only St. Paul but also Mann refused to defend Bridewell and he then was forced, in spite of two valid indemnification contracts, to seek and be liable for his own defense Bridewell would have had a cause of action against both St. Paul and Mann. For these reasons the defendant’s first contentions must fail.

The second basis that the appellee urges in seeldng affirmance is that Mann defended for Bridewell under its Insurance Agreement II (set forth above) and thus Mann became primarily liable since II is an independent provision which is broader in scope than its Insuring Agreement I (set forth above). St. Paul contends further that to be entitled to indemnity, an actual legal liability must have been sustained and that subrogation does not exist in favor of one who pays a debt for which he is primarily liable. The appellee’s argument’s thrust is missed because the company with the primary liability for the defense and the costs therein is the appellee. Mann can but be considered as secondarily liable because it would have no duty to defend unless St. Paul failed to defend (or if the claim exceeded the policy limits of St. Paul).

The Cotut in the General Accident Case, supra, noted on page 586: “It is argued on behalf of the appellee that since Ferguson, the indemnitee, did not pay them, General Accident has no right to recover”. Our statements above and the reasons threin apply with equal appropriateness to the appellee’s second contention.

For the appellee’s final argument in support of an affirmance, it states that in an action by and between two insurance companies to determine which shall be held hable, the company held not to be hable shah not be allowed to recover fees from the company held to be primarily liable. It cites as authority for this contention Farmers Automobile Insurance Ass’n. v. Iowa Mutual Insurance Company, 77 Ill.App.2d 172, 221 N.E.2d 795. We believe that case should be distinguished factually from the case at hand. That case involves a declaratory judgment action by and between two insurance companies to determine the rights, duties and obligations of the parties thereto. The insured were not parties to the action and suffered no exposure to loss. This is not the present case wherein an insured was sued and faced the distinct possibilities of not only direct loss from a third party plaintiff’s verdict but also the certain expense of attorney fees and costs had Mann not performed as contracted.

We have considered the appellee’s assertions, in particular the North Carolina case, Fireman’s Fund Insurance Company and the Insurance Company of the State of Pennsylvania v. North Carolina Farm Bureau Mutual Insurance Company, 269 N.C. 358, 152 S.E.2d 513. We do not agree with the Supreme Court of North Carolina and are, of course, not bound by its holdings. We think the words of the Supreme Court of Illinois as stated in Geneva Construction Co. v. Martin Transfer and Storage Co., 4 Ill.2d 273, 122 N.E.2d 540, are applicable:

“* * * It is apparent that the issue is one of first impression in this jurisdiction and must be determined in terms of the essential elements of the doctrine of subrogation. This legal concept originated in equity, but is presently an integral part of common law, and is designed to place the ultimate responsibility for a loss upon the one on whom in good conscience it ought to fall, and to reimburse the innocent party who is compelled to pay. Under this doctrine, a person who, pursuant to a legal liability, has paid for a loss or injury resulting from the negligence or wrongful act of another, will be subrogated to the rights of the injured person against such wrongdoings. 83 C.J.S., Subrogation, § 16, page 616; Smith v. Clavey Ravinia Nurseries, Inc., 329 Ill.App. 548, 69 N.E.2d 921; Bennett v. Preferred Accident Insurance Co. of New York, 10 Cir., 192 F.2d 748, 751; Vance, Ins., 672-680; 71 C.J. 1548.
The Illinois Courts have recognized the broad purview of this doctrine. Cherry v. Aetna Casualty & Surety Co., 372 Ill. 534, 25 N.E.2d 11; Smith v. Clavey Ravinia Nurseries, Inc., 329 Ill.App. 548, 69 N.E.2d 921.”

It has long been recognized in Illinois that the doctrine of subrogation is not limited to contracts, it is broad enough to provide an equitable remedy. See Mobile Constr. Co. v. Phoenix Ins. Co., 119 Ill.App.2d 329, 256 N.E.2d 149.

For the reasons herein contained this cause is reversed and remanded to the circuit court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MORAN and CREBS, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kelly Payton, Defendant-Appellant.
    (No. 69-107;
    Fifth District
    — December 6, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Kenneth L. Gillis, of Defender Project, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, (Charles Stegemeyer, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant, Kelly Payton, was convicted of the crime of attempted murder in a jury trial in the circuit court of St. Clair County and received a sentence of not less than eight nor more than fifteen years in the penitentiary. In this appeal he contends that his indictment was fatally defective, that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in not excusing a juror allegedly partial, and in allowing the prosecutor to make an unfair characterization of witnesses in his final argument. In addition he argues that his sentence was excessive. In the same trial defendant was also convicted of unlawful use of weapons, but no appeal has been taken from this conviction.

The indictment charged, “That on the 12th day of November, 1968, in said County, Kelly Payton, committed the offense of attempt in that he, with intent to commit the offense of Murder fired a gun at the person of James H. Martin, in violation of Ill. Rev. Stat., ch. 38, par. 8 — 4.” Defendant argues that this indictment was fatally defective in that it failed to allege that the shooting was knowingly committed with intent to cause death or great bodily harm and failed to negate the possibility that it was done with justification. The argument is without merit. The test of a proper indictment is whether it adequately informs an accused of the nature and cause of the accusation against him so as to enable him to make preparation for his defense and to plead the judgment in bar of a subsequent prosecution. (People v. Drink, 85 Ill.App.2d 202.) Also, a gun is a deadly weapon per se and one who deliberately fires a gun at or towards another person, either with malice aforethought or with a total disregard of human life, may be convicted of assault with intent to kill. (People v. Wilson, 342 Ill. 358.) Here the indictment plainly alleges that defendant, using a gun, attempted the murder of a specified person on a specific date in a designated county. We hold this to be sufficient. Further allegations as to the manner of the attempt or whether it was without justification constitute matters of evidence and need not be set forth in the indictment.

Defendant’s other contentions necessitate a somewhat detailed recital of the background leading up to the shooting. The complaining witness, James Martin, testified that about one month prior to the incident he and his wife had separated amicably and that she had moved to an apartment for which he had supplied most of the furniture. During this month he visited his wife on several occasions and on November 6th he first met defendant at his wife’s apartment at which time they engaged in a friendly conversation. On November 12th Martin stated that he again visited his wife’s apartment about 9 or 10 o’clock in the morning for the purpose of discussing a final settlement as to their property. Receiving no answer to his knock at the front door he went to the rear and looking in the window he saw his wife and defendant standing next to the bed in their pajamas. On his threat to kick in the door his wife let him in and defendant ran out the front. He accused his wife of “shacking up” with defendant and after some discussion he demanded and took her wedding rings and wrist watch and told her he was going to Collinsville for his pick-up truck and some help so he could also remove his furniture. In Collinsville Martin contacted his son, his brother and his nephew, all of whom worked for him in his appliance store. It was suggested that the police should be contacted first in case they might need protection on their return to the apartment, so they all stopped at the police station. The police sent them to the State’s Attorney’s office where they waited for 15 minutes until they were told that nothing could be done until something happened. They then headed for the apartment with Martin and his son in the panel truck and the other two men following in the pick-up.

As the panel truck approached the apartment Martin called son’s attention to defendant coming out the front door. Both Martin and his son testified that defendant, upon seeing them, extended his arm, sighted his gun and shot twice, both buUets slamming into the side of the truck about 18 inches from Martin who was driving. At the time they were about 100 feet from defendant driving on the opposite side of the street from the apartment. Martin accelerated his truck, got behind a bus and drove a block away. Looking back both of them could see defendant still coming towards them so they hollered to the men foUowing in the other truck to caU the police. They then pulled quickly away and went to the State’s Attorney’s office to swear out a warrant. Martin further testified, as did all of those accompanying him, that neither he nor did anyone of them have a gun or malee any threatening gesture whatsoever toward defendant.

A police officer testified that he arrested defendant about one-half block from the apartment and that defendant denied taking part in any shooting. However, in defendant’s pocket the officer found one live .22 caliber shell and one casing, and five .38 caliber wadcutter flat head sheUs, two of which were spent. He also testified that such .38 caliber shells would make similar indentations as were made in Martin’s track.

For the defense Mrs. Martin reiterated her husband’s testimony as to their amicable separation, his help in moving, his visits and his friendly meeting with defendant. But, she testified defendant was not present when her husband came to her apartment on the morning of November 12th; that her husband had knocked on the front and back door and only after she had changed from her pajamas to her slacks did she decide to let him in; that when she opened the door he came bursting in with a gun in his hand, that he hit her, choked her, tore her clothing, tried to rape her, took her rings and other jewelry and told her he was going to Collinsville to get a track to move aU the furniture, and that when he returned neither she nor defendant better stand in his way or he would kill them both. She stated that not until her husband left did defendant come to the apartment. She told him what had happened but that he did not have to worry for she was going to kill her husband first. She said defendant took a small .22 caliber gun from her and stated that he would get a truck and they would get everything moved out before her husband came back. As defendant was leaving by tire front door she was in the hallway and she saw defendant raise his arm and she heard two shots fired but that she saw nothing further.

Defendant testified that he had known Mrs. Martin for approximately two and one-half months; that they worked the same night shift at a nearby hospital. He stated that he had visited Mrs. Martin’s apartment, had helped her in fixing it up, but that he had never been intimate with her. He denied that he was present when Martin first came to the apartment on the morning of the shooting but stated that he had arrived later and after hearing Mrs. Martin’s story he started out the door to get a truck to help her move. At this time he saw Martin’s TV panel truck coming up the street, heard a shout, saw a guy pointing an object out the window, and that “just to scare him” he feed two quick shots. He then ran and did not follow Martins truck. He admitted that when he was later stopped by the police he denied being involved in any shooting. In explanation of the shells in his pocket he stated he used them in target practice and they just happened to be in his pocket from the last time he had practiced.

On these facts defendant contends that he was not proven guilty beyond a reasonable doubt because no specific intent to harm or kill was shown, nor was there any evidence that he bore any malice or ill-will towards Martin. It is true that intent and malice are essential elements of the offense charged but such elements need not be proved directly. It is sufficient if in making the assault a person is shown to have acted with ' such a wanton and reckless disregard of human life as to denote malice, and under such circumstances that if death had ensued the killing would have been murder. The consequences of such an act clearly give rise to a presumptive intent. (People v. Coolidge, 26 Ill.2d 533; People v. Carter, 410 Ill. 462.) Here defendant admitted that he deliberately shot twice at Martin, ostensibly only to scare him but yet in each instance missing by only 18 inches at 100 feet. We find such act clearly demonstrated a total disregard of human life and that under all the facts and circumstances of the case the defendant was proved guilty beyond a reasonable doubt and the verdict of the jury was fully justified.

With reference to the question posed by defendant that the court erred in refusing to discharge a juror for partiality, it appears that after the trial had commenced and the complaining witness had testified one juror discovered and reported to the court that he was employed by a brother of the complaining witness. This fact was not known to him at the time of the voir dire. When the court brought these facts to the attention of the attorneys in chambers defendant’s counsel moved for a mistrial. The court offered to discharge the juror and substitute one of the alternate jurors but defense counsel refused to consent to such procedure stating that if he did so he was afraid he would thereby waive any error he might have if the court refused to grant a mistrial. The court then explained that he had examined the juror and had determined that the acquaintance of the juror with the brother of Martin was not close and that he could and would be fair to both sides, that under such circumstances he could not discharge him without the consent of defendant. When defendant persisted in his refusal to consent to the discharge and also to the substitution of the alternate juror, the court denied the motion for a mistrial and the trial proceeded with the original juror on the panel. We agree with the trial judge that since the jurors mere acquaintance with Martin’s brother would not have been grounds for a challenge for cause he could not, over defendant’s objection, arbitrarily substitute the alternate juror. To have done so might very well have furnished a sufficient basis for a subsequent claim of double jeopardy. (See 21 Am.Jr.2d, Criminal Law, Secs. 198 and 199.) Under.these circumstances we find defendant’s refusal to consent to the offers of the court constituted a waiver of any objection he may have had to the juror in question and his motions for a mistrial and a new trial on such grounds were properly overruled.

We have carefully examined the record relative to defendant’s next contention of improper argument on the part of the prosecutor, but we do not believe it necessary to burden this opinion with the details. Suffice it to say that the argument was not only mild and innocuous, but also was invited by remarks of defense counsel and defendant cannot claim prejudice for such rejoinder. People v. Hardaway, 108 Ill.App.2d 325.

Finally, defendant contends that his sentence was excessive. Before imposing sentence the trial court had an excellent opportunity to make a sound determination relative to sentence in view of the length of the probation hearing and the number of persons heard. Defendant himself, then 29 years of age, admitted that in his youth he had been convicted of armed robbery, pandering and stealing a car, receiving probation of three years and one year respectively on the first two convictions, and a sentence of one year and three months on the last one. It was clearly evident that defendant could be helpful and personable in many community projects when the occasion demanded, but likewise it was equally apparent from the facts of the case itself that he could be irresponsibly violent with an absolute disregard for human life when it suited his purpose. With little or no provocation or excuse he deliberately chose to take the law unto himself and summarily settle a domestic dispute between two individuals by attempting to kill one of them. Under such circumstances we cannot say that the trial court abused its discretion in imposing the sentence he did.

The judgment of the circuit court of St. Clair County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and MORAN, J., concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Town House Motel, Inc., Plaintiff, v. Richard T. Ward et al., Defendants, — (First National Bank of Belleville, Intervener-Appellant.)
    (No. 70-33;
    Fifth District
    — December 6, 1971.

      C. E. Heiligenstein, of Belleville, for appellants.
    Eugene H. Widman, of Belleville, for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Town House Motel, Inc., obtained a judgment against Richard T. Ward and Virginia M. Ward in the sum of $3,820.29. Thereafter a levy on the defendants’ personal property was had and the Wards’ 1967 Chrysler was seized. On December 1, 1967 the vehicle was sold at a sheriffs sale and purchased by the only bidder, Town House Motel, for the sum of $2,600. Subsequently a certificate of title was obtained from the Secretaiy of State of Illinois in the name of the motel and the car was then sold to an out-of-state dealer.

In February, 1968, the First National Bank of Belleville, hereinafter referred to as the Bank, filed an intervening complaint which alleged that the automobile had been titled in Ohio and bore 1967 Ohio license plates; that the Bank possessed the Ohio title upon which a chattel mortgage was indicated; that on October 21, 1967, there was due from the Wards the sum of $2,353 on said automobile; that the Town House Motel knew or should have known that the car was subject to a hen; that the levy, execution, and sale were in violation of the mortgage interest of tire bank; and that the bank be awarded damages from Town House Motel in the amount of the hen and costs. The Motel denied the material allegations of the complaint and further stated that it made a diligent search of available public records in the county and state and made inquiry for the purpose of ascertaining whether or not a notice of hen was filed in the county or state.

At the trial an officer of the bank testified that Richard Ward was a major in the Air Force, stationed at Scott Air Force Base and that in the past Major Ward had financed the purchase of cars through the Bank. In February of 1967 the Bank made a loan on the Chrysler Automobile. An Ohio certificate of title was issued in the name of Major Ward with an address in Lorain, Ohio. The certificate of title indicated that there was a chattel mortgage lien held by the Bank and this lien was recorded in Lorain County, Ohio. Monthly payments were made by Major Ward through October, 1967. In November of 1967 Major Ward called Mr. Stafford at the Bank and wanted to know if the Bank had repossessed his automobile. He was informed that the Bank had not repossessed his automobile and that actually he was ahead of schedule in his payments. On December 19 Major Ward again called after he had received a past due notice from the Bank. Mr, Stafford then went to the St. Clair County Court House and talked to a deputy sheriff, Paul Haas, who showed him that the car had been received by the sheriff under a levy and that it had been sold on December 1 to the Motel.

Paul Haas was a deputy sheriff of St. Clair County and also an officer of the Town House Motel. He knew that Major Ward was an Air Force officer and stationed at Scott Air Force Base. Major Ward had entered into a contract with the Motel and the resulting judgment related to that contract. Haas was the deputy who picked up the automobile and at that time it had Ohio plates. He realized that since the automobile was licensed in Ohio there would have to be some registration or license application filed in that state. Mr. Haas also testified that prior to the seizure and sheriff’s sale, he knew there was a lien or loan against the car. Prior to the sale, Mr. Haas checked the Recorder of Deeds Office in St. Clair County, Illinois and did not find any record of any lien. Notice of the sale was then given and Mr. Haas conducted the sale on behalf of the sheriff. Mr. Rapp, President of the Motel, was the only bidder present and the car was sold to him as a representative of the Motel. Thereafter, Mr. Haas went to the Secretary of State’s Office in Springfield, Illinois, to obtain an Illinois title for the car.

There is some dispute in the testimony of the Bank officials and Haas as to their first conversation regarding this car. Mr. Stafford testified that at the time of their conversation on December 19 Haas told him that he had not yet obtained an Illinois title for the vehicle, but that there would be no difficulty in getting the title despite the Bank’s lien. Glen Holtz, ■also a Bank employee, testified that on December 19 he and Mr. Stafford presented evidence of the Bank’s lien to Haas and were told that although the Motel did not yet have an Illinois title, there would be no difficulty in obtaining one. Haas testified that he had obtained the Illinois title on December 2 or 3 .and before any conversation with Bank officials. When Haas went to Springfield, he did not tell the Secretary of State’s office that he suspected that there was a hen against the car.

The trial court, sitting without a jury, found that the Motel perfected title to the said automobile and that the Bank failed to secure its interest in the Recorder’s Office of St. Clair County or the Secretary of State’s Office for the State of Illinois and dismissed the Bank’s complaint. The Bank appeals.

It is undisputed that a certificate of title on the automobile was issued by the State of Ohio and the security interest of the Bank was noted thereon and perfected under the law of Ohio. The issue presented is whether the Bank was required to have a certificate of title issued by the State of Illinois with its security interest noted thereon in order to protect its lien and security interest as against the Motel.

There are two statutes to be considered. The Bank contends that section 9 — 103(4) of the Uniform Commercial Code (Ill. Rev. Stat., ch. 26, par. 9 — 103(4)) is applicable, whereas the Motel contends that section 3 — 202 of the Illinois Vehicle Code (Ill. Rev. Stat, ch. 95-Yz, par. 3 — 202) applies. Section 9 — 103(3) of the Uniform Commercial Codes provides that if personal property is already subject to a security interest when brought into Illinois, the validity of the interest is to be determined by the law of the jurisdiction where the property was when the interest attached. This section goes on to provide that if at the time the interest attached, the parties understood that the property would be kept in Illinois and it was brought into this state within 30 days after the interest attached for purposes other than transportation through the state, then the validity of the security interest in this state is to be determined by the law of this state. This section further provides that if the interest was already perfected under the law of the jurisdiction where the property was when the interest attached, the interest continues in this state for four months and also thereafter if it is perfected in this state within the four-month period. Section 9 — 103(4) provides:

“Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of this jurisdiction, which issued the certificate.”

Section 3 — 202 of the Illinois Vehicle Code provides:

“(a) Unless excepted by Section 3 — 201, a security interest in a vehicle of a type for which a certificate of title is required is not valid against subsequent transferees or lienholders of the vehicle unless perfected as provided in this Act,
(b) A security interest is perfected by the delivery to the Secretary of State of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the lienholder and the date of his security agreement and the required fee. It is perfected as of the time of its creation if the delivery is completed within 21 days thereafter, otherwise as of the time of delivery.
(c) If a vehicle is subject to a security interest when brought into this State, the validity of the security interest is determined by the law of the jurisdiction where the vehicle was when the security interest attached, subject to the following:
1. If the parties understood at the time the security interest attached that the vehicle would be kept in this State and it was brought into this State within 30 days thereafter for purposes other than transportation through this State, the validity of the security interest in this State is determined by the law of this State.
2. If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached, the following rules apply:
(a) If the name of the lienholder is shown on an existing certificate of title issued by that jurisdiction, his security interest continues perfected in this State.”

The Motel contends that the Bank failed to perfect its lien in Illinois as prescribed in section 3 — 202 of the Illinois Vehicle Code. Subsection

(b) of 3 — 202 provides the method for perfection and specifies that an application for a certificate of title be made to the Secretary of State. However, Section 3 — 102 of the Illinois Vehicle Code states that a certificate of title need not be obtained for a vehicle owned by a non-resident of this state and not required by law to be registered in this state. Although there was evidence that Major Ward had purchased a home in Belleville, Illinois, and engaged in the operation of a lounge on the Motel’s premises, there was also evidence that he was a member of the military stationed at Scott Ah Force Base. It is not unusual for members of the military to continue to register their automobiles in other states, even though temporarily living in this state because of the military assignment. Since an Illinois certificate of title was not required, subsection (b) is not applicable. Neither is subsection (c) of 3 — 202 applicable because (c) applies only to motor vehicles purchased in other states and brought into Illinois. Since the car purchased by Major Ward was purchased in Illinois and was not brought in from another state, subsection (c) is also inapplicable.

The Motel contends that section 9-103(4) of the Uniform Commercial Code cannot apply because paragraph 3 — 207 of the Illinois Motor Vehicle Act provides the exclusive method in Illinois for perfecting security interests in motor vehicles. Section 3 — 207 reads: “The method provided in this act of perfecting and giving notice of security interests subject to this act is exclusive. * # *”

In our opinion the motor vehicle in question was not subject to the Illinois Motor Vehicle Act and therefore section 3-207 has no application. Were we to hold otherwise, we would be compelled to hold that section 3 — 207 of the Illinois Motor Vehicle Act repeals section 9 — 103(4) of the Uniform Commercial Code by implication. Both Chapter 95-Vs, par. 3 — 202 and ch. 26, par. 9 — 104 apply to motor vehicles. The Committee Comments to 9 — 104 states: “This section applies to personal property covered by a certificate of title, principally motor vehicles.” Where two statutes are enacted which have relation to the same subject, the earliest continues in force unless the two are clearly inconsistent with and repugnant to each other or unless in the latest statute some express notice is taken of the former plainly indicating an intention to repeal it, and where two acts are seemingly repugnant, they should, if possible, be so construed that the later may not operate as a repeal of the former by implication. It is not enough to justify the inference of repeal that the subsequent statute covers some, or even all, of the questions covered by the former. There must be an irreconcilable repugnancy. (People v. Board of Education, 349 Ill. 390; Caruthers v. Fisk University, 394 Ill. 151, 162.) We find no irreconcilable repugnancy between section 9 — 104 of the Uniform Commercial Code (Ill. Rev. Stat. ch. 26, par. 9 — 104) and section 3 — 202 of the IEinois Vehicle Motor Act. (Ill. Rev. Stat. ch. 95-Yz, par. 3 — 202.) Therefore, both sections can be construed so that both are operative.

The basic structure of Article 9 of the Uniform Commercial Code was to provide for the creation of a security interest with an established priority and a means of giving notice of that interest to third parties. (See Introductory Comment, Ill. Rev. Stat., ch. 26, par. 9.) The Bank did establish its priority and notice of that interest was given to third parties, including the Motel. The Motel knew the automobile was bearing Ohio license plates and thus knew that some registration or apphcation for Ecense was filed in that state. The Motel also knew that Major Ward was in the military. Likewise, it had knowledge through its treasurer, Paul Haas, that there was some Men against the automobile. Since the evidence is undisputed that the Bank did perfect its lien in Ohio, we hold that the provisions of section 9 — 103(4) of the Uniform Commercial Code apply to the present action.

There is no dispute about the amount of the bank’s lien. The evidence at trial was that the lien amounted to $2,458. Accordingly, judgment of the trial court is reversed and remanded with directions to enter judgment in favor of the bank in the amount of the lien.

Reversed and remanded with directions.

EBERSPACHER, P. J., and JONES, J., concur.