text:
    Wilbert Beard, Plaintiff-Appellant, v. Board of Fire and Police Commissioners of the City of Cairo et al., Defendants-Appellees.
    (No. 73-76;
    Fifth District
    August 8, 1974.
    Robert L. Lansden, of Cairo (Larry Ruemmler, of counsel), for appellant.
    John G. Holland and George J. Kirialcos, both of Cairo, for appellees.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal under section 13 of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 276) of an order of the Board of Police and Fire Commissioners of the City of Cairo, dated November 4, 1970, which found appellant, Wilbert Beard, guilty of refusal to obey the orders of City Commissioner Meisenheimer and imposed a 30-day suspension without pay. The Board found the evidence insufficient to sustain a related charge of insubordination and dismissed that charge. The decision of the Board was affirmed by the Circuit Court of Alexander County on December 18, 1972.

Since there is no contention that the decision of the Board is contrary to the manifest weight of the evidence, the sole question on review is whether under the commission form of government the commissioner of public property (to whom the Police Department is assigned) is authorized, in the absence of a chief of police, to issue direct orders to senior officers on matters involving police expertise and experience.

The facts, which are undisputed, are as follows: Prior to September 26, 1970, the Cairo chief of police had resigned and the senior officer, Captain Abell, had been hospitalized. While no acting chief of police was formally appointed, the apparent understanding among the sergeants who were next in seniority was that they would each have charge of their respective shifts. On September 26, 1970, City Commissioner Meisenheimer verbally ordered the sergeants on duty to have officers on the street in the downtown business district where picketing was anticipated that afternoon. The appellant was in charge of the 2-to-10 P.M. shift that day. When the commissioner went downtown that afternoon to observe the picketing, he found that the order had not been complied with and that police officers were sitting in their cars near the site of the picketing.

To clarify the situation, the city commissioner held discussions with senior officers to reiterate his policy of having policemen “walking the streets” in case of picketing. The appellant expressed his disagreement with this policy in a private meeting on the subject. On the morning of October 3, the city commissioner caused to be posted on the bulletin-board written but unsigned orders to this effect as picketing was anticipated that day. He instructed another sergeant to malee sure appellant took note of the order.

The city commissioner went downtown that afternoon upon being informed that picketing was in progress and that officers had remained in their patrol cars. Appellant refused to place officers on the street after being ordered by the city commissioner. However, there is evidence that after the commissioner left to confer with the mayor, he (appellant) did in fact place officers on the street, ostensibly under the command of the city commissioner.

Appellant contends principally that the commissioner had no authority to issue or enforce his order because he was not a “superior officer” within the meaning of Rule 22 of the Rules and Regulations of the Cairo Police Department (hereinafter referred to as “Rules”) which requires obedience to orders of “superior officers.”

At the outset it should be noted that none of the statutory or judicial authority cited by either party is dispositive on his issue. However, there are indications in the cited authority as to the probable and proper scope of the commissioner’s powers.

Rule 22 provides that:

“Policemen are to obey strictly and execute promptly and in good faith the orders of their superior officers.
'Superior officer’ is defined in section 1 of the Rules as: # # * an officer having supervision either temporarily or permanently over officers of lower rank.”

Appellant contends that to be a superior officer the commissioner must first be shown to be an officer, which he cannot be because he is an elected official with no police training. The term “officer” is not defined in the Rules. Appellant, however, offers two statutory definitions which, it is argued, exclude the commissioner from the status of officer. The act governing rules of statutory construction (Ill. Rev. Stat. 1969, ch. 131, sec. 1.20) provides as follows:

“‘General superintendent of police,’ * * * ‘chief of police,’ * * * ‘city marshal,’ # # mean policemen employed in the service of a municipality’ * * * who are or shall hereafter be appointed and sworn as policemen.”

Appellant contends the commissioner does not fall within this formulation because he is not “employed in the service of a municipality” and “appointed and sworn as (a policeman).”

The question presented is whether “general superintendent of police” is intended to be synonymous with commissioner, thus making the latter a “policeman employed in the service of a municipality.” This is somewhat confused by the fact that persons performing the function of chief of police in some communities are given different titles, e.g., Commissioner of Police of Chicago. The solution appears to be found in the division of the Municipal Code stating the requirements of the commission form of municipal government (Ill. Rev. Stat. 1971, ch. 24, sec. 4 — 5 — 3.) Section 4 — 5 — 3 provides:

“The Commissioner of each department shall be superintendent of that department.”

This may be construed to mean that the city commissioner assigned the responsibility of the Police Department is tire “general superintendent of police” within section 1.20 and thus a “policeman employed in the service # # #

Under the commission form of government adopted by the city of Cairo, the mayor and four commissioners are elected to form a council. Each commissioner is assigned the supervision of one or more municipal departments. The Code does not specify all the powers and duties of commissioners; however, section 4 — 5 — 2 provides generally that the council and its members shall have all executive, administrative and legislative powers and duties now held by executive, legislative and administrative municipal officers of properly incorporated municipalities. Section 4 — 5 — 5 vests the council with the power to appoint and discharge heads of departments, unless the appropriate commissioner has been given this right by ordinance. Section 4 — 5 — 7 provides that where section 10 — 1 — 1 .through 10 — 1 — 45 (municipal civil service regulations) is adopted, then for purposes of that division, i.e., appointment and discharge, each commissioner is to be considered head of the department assigned to him. These provisions evidence the apparent intent of the drafters of the Code, in giving commissioners “superintendent” status, to vest them with a measure of discretionary authority in the supervision of the activities of their respective departments.

Appellant next cites section 10 — 3 — 1 of the Municipal Code to support the contention that the city commissioner is not an officer, and thus not a “superior officer” within Rule 22. Section 10 — 3 — 1 defines “policeman” for purposes of minimum salary requirements as:

“* * * member of a regularly constituted police department of a municipality, sworn and commissioned to perform police duties, and includes the chief of police * * (Emphasis added.)

Certain personnel, primarily part-time and temporary police, are specifically excluded by the section. The city commissioner is neither specifically included nor excluded. It should be noted that section 1 of the Rules incorporates by reference the above definition (formerly section 11 — 1 of the Cities and Villages Act).

Appellant next contends that section 1, Article II (par. 3) of the Rules puts the commissioner outside the chain of command of the Police Department, thus preventing him from being a “superior officer”:

“Subject to the approval of the Commissioner being first obtained, eveiy General order or Special order shall be issued by the Chief of Police. The officer in command is responsible for the successful operation and efficiency of the Police Department, and is allowed reasonable discretion in issuing orders for the active and proper functioning of the police.”

It is argued that the last sentence of this section vested appellant with the discretion to countermand orders which in good faith he believed to be unreasonable or inappropriate. The contention is without merit. It must be read together with Rule 22 requiring obedience to orders of superior officers.

This section does not purport to remove the city commissioner from a position of authority. Instead, authority is conferred upon him, since every general or special order issued by the chief of police must have the prior approval of the city commissioner. This suggests that he functions in more than an advisory capacity. Moreover, in situations where there is no chief of police, this section supports the position that the City Commissioner is in full command. The result of an elected official who is not a trained officer acting as functional head of the police department is a legislative determination which this court cannot alter.

Appellant cites two cases, neither of which are apposite here. In Gardner v. Village of Chicago Ridge (1970), 128 Ill.App.2d 157, 262 N.E.2d 829, cert. denied, 403 U.S. 919, 29 L.Ed.2d 696, 91 S.Ct. 2230, the issue was whether the village trustee, an officer analogous to commissioner, was under a mandatory duty (as distinguished from a permissible right) to instruct policemen in the performance of their duties. The court found no such duty and affirmed dismissal of the mandamus action.

Nolting v. Civil Service Commission (1955), 7 Ill.App.2d 147, 129 N.E.2d 236, involved an appeal of the discharge of a police officer, the primary question being the sufficiency of the commission’s findings. The portion of this case quoted by appellant is accurate, though in effect dictum. It precedes a rather forceful discussion on the need for discipline in a police force, culminating with the quoted comments of Judge Tuley in Coane v. Geary (1939), 298 Ill.App.199, 206:

“ ‘Police force is peculiar, sui generis, you may say, in its formation and in its relation to the city government. It is practically an organized force resembling in many respects a military force, organized under the laws of the United States and equally as important to the functions it is required to perform.
* * * And there is the same necessity of discipline * * *. Strict discipline must be enforced, and it must be enforced in a manner that is effective, and without the supervision or regulation of any other department of the state, and particularly, without any attempt on the part of the judicial department * * * to regulate it in any way, and particularly, to regulate its discipline. * *

Appellees contend generally that the city commissioner was a superior officer within Rule 22, citing a number of sections of the Municipal Code, some of which are referred to above, and several Illinois cases.

Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill.App. 3d 864, 278 N.E.2d 212, contains a recent restatement of the importance of discipline in the police force (see Coane v. Geary, supra). In Slocum v. Fire and Police Commissioners (1972), 8 Ill.App.3d 465, 290 N.E.2d 28, the court upheld the Board’s suspension of an officer for disobeying an order to wear an American flag on his uniform, an example of the extent to which courts will refrain from substituting their judgment for that of the head of police departments.

Williams v. Police Board (1972), 8 Ill.App.3d 345, 290 N.E.2d 669, again concerns the requirement of discipline in the police context. Williams is one of a line of cases holding that police officers refusing to submit to polygraph examinations are subject to disciplinary action, the guarantees of the fifth amendment notwithstanding.

The authority of the city commissioner in his capacity as a corporate officer of a municipality is best summarized in Cook County Police Association v. City of Harvey (1972), 8 Ill.App.3d 147, 149, 289 N.E.2d 226, where the issue was whether the city could be forced to recognize and bargain with the association:

“Defendants, as corporate authorities of a municipality, and in the exercise of official discretion, could prescribe duties and powers of all police officers employed by the City of Harvey. (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 1 — 2.) By law, the defendant commissioners had the power to regulate examinations, appointments, and removals of Harvey policemen. (Ill. Rev. Stat. 1969, ch. 24, par. 10 — 1 — 5.) As a municipality, the City of Harvey possessed not only express statutory authority to deal with its policemen but also the authority implicitly necessary for the administration of its police force. Absent manifest and palpable abuse of discretion, the wisdom, necessity or propriety of any action taken by defendants in the exercise of the authority vested in them by law were for them to decide. Hunt v. City of Peoria, 30 Ill.2d 230, 231, 234, 195 N.E.2d 719; and see People ex rel. Adamowski v. Wilson, 20 Ill.2d 568, 170 N.E.2d 605.”

One of the controlling principles in our democratic form of government is that any instrumentality involving the use of force or which may in any way impinge upon the guaranteed rights of its citizenry shall ultimately be responsible to officials elected by that citizenry. It is only when such public officials are in control of the police operation that such operation will reflect public judgment on essential issues affecting the work of the police. This does not mean that such officials shall interfere in the day-to-day work of the police or in their carrying out of duties which involve technical skill and judgment. Rut when elected officials in charge of a police department decide that under certain circumstances public policy dictates a particular line of action, then it could only result in chaos to say that the police are not bound by such decisions. Under the circumstances in this case Commissioner Meisen-heimer not only had the authority to make the kind of decision he did about controlling violence in the streets of Cairo, he had a duty to inform himself and make such decisions. The citizenry of Cairo could rightly have complained about dereliction if he had not stepped in and attempted to have the police function discharged in a manner consonant with the requirements of a disruptive situation.

Thus authority appears to support the contention that, absent abuse of the discretion vested in him as a “corporate authority,” the city commissioner was empowered to issue orders which were implicitly necessary for the administration of the Police Department. While the order concerning a decision to place officers on the street was subject to criticism or support by various sergeants of the Cairo police force, it seems clear that its issuance did not constitute an abuse of discretion, and therefore, that Sergeant Beard’s refusal to obey it was a violation of Rule 22 authorizing the disciplinary action taken here.

The judgment of the Circuit Court of Alexander County affirming the decision of the Board of Fire and Police Commissioners of the City of Cairo is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
    Luella Plowman, Adm’r of the Estate of John Lee Plowman, Deceased, Plaintiff-Appellee, v. John W. Edgington et al., d/b/a Bill’s Tavern, et al., Defendant-Appellants.
    (No. 73-423;
    Fifth District
    August 13, 1974.

      Samuel H. Taylor, of Lawrenceville, and Robert L. Douglas, of Robinson, for appellants.
    Gosnell, Benecki & Borden, Ltd., of Lawrenceville (Maurice E. Gos-nell, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order entered by the circuit court of Lawrence County denying defendant’s, Mildred Edgington’s, verifiied written “motion” to vacate and set aside the default judgment entered against her and defendant’s verified written “motion” for leave to appear and plead or answer to the complaint previously filed by the plaintiff, Luella Plowman, administrator of the estate of John Lee Plowman.

On October 28, 1971, plaintiff filed a complaint under the Dram Shop Act alleging that the defendant, defendant’s husband (John W. Edging-ton), and other named parties were liable for the death of John Lee Plowman who allegedly died as a direct and proximate result of his consumption of alcoholic liquors at Bill’s Tavern, which was allegedly owned and operated by the defendant, defendant’s husband, and other named parties. On November 6, 1971, a summons was served on defendant’s husband at Bill’s Tavern and, at the same time, a separate summons for the defendant was left with defendant’s husband. The officer who “served” said summonses did not mail a copy of the summons with postage fully paid to the place of defendant’s abode. Defendant’s husband died sometime thereafter.

On February 16, 1972, the trial court entered an order stating that:

“On motion of * # * attorneys for Plaintiff, summons in this suit, as it appears from the return of the Sheriff of Lawrence County, thereon, having been duly served upon the Defendants John W. Edgington and Mildred A. Edgington on November 6, 1971;
And said Defendants, John W. Edgington and Mildred A. Edgington, having failed to file an answer or otherwise make appearance herein, they are adjudged in default, and it is ordered that the complaint herein be taken as confessed against the said Defendants.”

On July 25, 1972, plaintiff withdrew her demand for a jury trial as to the defendant and her husband. On the same date, July 25, 1972, the trial court “after hearing the evidence of damages” entered a “default judgment order” against the defendant and her husband and assessed damages of $180,000. On March 26, 1973, defendant’s attorney filed a verified written “motion,” apparently under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) asking “for leave to file a Motion to Vacant [sic] Default Judgment » * * entered against

the Defendant on the 25th day of July, 1972, for reasons that the Defendant upon information believes she has a valid defense.” On April 5, 1973, the trial court, on motion of the plaintiff, ordered that the “default judgment order” of $180,000 against the defendant and her husband be remitted to the sum of $20,000. On April 26, 1973, defendant filed a “Motion to Set Aside Judgment.” Attached to said “motion” was an affidavit of the defendant stating in part:

“3. That John W. Edgington on November 7, 1971, engaged an attorney-at-law, licensed in the State of Illinois, and presented to him the summons and complaint in said cause.
4. That the attorney informed my late husband, John W. Edgington, that Plaintiffs case was without merit and for him to take no further action, that cause would never go to trial.
5. My late husband and I relied upon the advice of the attorney and believed it unnecessary to file an Answer to Plaintiffs Complaint.
6. That I did not receive any notice or have any knowledge of the existence of the default judgment rendered against me therein until on or about March 19, 1973 at which time my attorney, Samuel H. Taylor, informed me that on July 25, 1972, a $180,000.00 judgment, had been entered against me in this matter; judgment has now been remitted to $20,000.00.
7. That my said attorney further informed me that the Complaint herein charges that I caused or contributed to the death of one John Lee Plowman, but in truth and in fact, I did not cause or contribute to the death of said person and am in no way responsible therefor.
8. That immediately upon learning of the existence of said judgment, I instructed my attorney to take necessary steps to set aside and to obtain a trial of said cause upon its merits.”

On May 23, 1973, the defendant filed an amended affidavit stating, in addition to points one, six, seven, and eight of her previous affidavit, that:

“2. She was not served with summons in the above entitled cause.
3. That on November 6, 1971, summons was left with her husband, John W. Edgington only, now deceased, at his place of business, Russellville, Illinois.
4. At the time summons was served upon her husband, she was residing in her farm home, situated approximately two miles south of the Town of Russellville, Illinois.
5. That her late husband, John Edgington, at the time of the summons was served upon him, and for many months prior thereto, stayed in a trailer parked behind his place of business four or five nights a week. That summons in the above cause was never served upon her individually or any member of her family at her place of abode.”

-An answer to defendant’s “motion” to set aside judgment was filed on July 2, 1973. Plaintiff argued therein that the defendant appeared twice in this cause, March 25, 1973, and April 26, 1973, without questioning the jurisdiction of the trial court and that thereby defendant waived any jurisdictional defect.

Subsequently, the trial court issued a subpoena for Palmer Allee, the officer that had “served” the summons on the defendant and her husband. On August 14, 1973, Palmer Allee testified with respect to his knowledge of the facts surrounding the service of the summons on the defendant. He confirmed the fact that he neither served the defendant personally nor mailed a copy of said summons with postage fully paid to the place of defendant’s abode. After Palmer Allee testified, the trial court heard counsels’ oral arguments on the “motion.” On September 13, 1973, the trial court entered its order denying defendant’s motions. This appeal is taken therefrom.

It should be noted at the outset that defendant, appellant, has failed to comply with Supreme Court Rule 342 (Ill. Rev. Stat. 1971, ch. 110A, par. 342), in particular defendant has failed, without excuse, to file either excerpts from the record or an adequate abstract of the record. Defendant filed an abstract of the record which consists of three pages devoted entirely to the testimony of Palmer Allee. Not only is there a failure to present other matters of record which are necessary for a full understanding of the question presented for decision, but there is a failure to include “the judgment or order appealed from and the notice of appeal,” which as provided in Supreme Court Rule 342(3) (4), “shall always be included.” Under such circumstances we need not consider the merits of the case and we may, in our discretion, summarily dismiss the appeal. (Frederick Chusid & Co. v. Collins Tuttle & Co., Inc., 10 Ill. App.3d 818, 295 N.E.2d 74; Denenberg v. Prudence Mutual Casualty Co., 120 Ill.App.2d 68, 256 N.E.2d 71.) Nevertheless, in view of the nature of the case, the circumstances attendant, and the injustice which would result therefrom, we choose to decide the case on the merits.

Although a myriad of cases have considered what degree of statutory compliance is necessary to obtain personal jurisdiction by service of process and a similar number of cases have considered what acts constitute waiver of such defects, the instant case is one of first impression which must be decided on policy grounds. The facts set forth illustrate: first, that a summons was not personally served on the defendant and that the attempted service failed to meet the statutory requirements; second, that a “default judgment order of $180,000, remitted at the request of the plaintiff to $20,000, was entered in favor of the plaintiff and against the defendant; third, that the defendant, through her attorney, filed a general appearance in which it was stated that “she believes she has a valid defense” prior to alleging any jurisdictional defect on the ground that the defendant had not been properly served; fourth, that the defendant was not granted leave to file a motion to vacate and she did not attempt to establish any “valid defense” other than one based on her jurisdictional claims; and last, that the trial court denied defendant’s “motions,” which included a “motion” for leave to appear and plead to or answer plaintiff’s complaint.

Although the preceding synopsis of the facts relevant hereto reveals that the defendant submitted to the jurisdiction of the trial court through her general appearance, there was no hearing on the merits of plaintiffs complaint after such time. The only judicial action thereafter was the hearing on the jurisdictional issue. It thus becomes evident that the defendant has never been afforded an opportunity to set up a “meritorious defense” under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72).

The plaintiff urges this court to deny relief under section 72 on the ground that the defendant’s petition does not affirmatively show “both due diligence to protect the petitioner’s rights” and a “meritorious defense.” We believe, however, that since such time as the trial court acquired jurisdiction over the defendant, the defendant has acted diligently, i.e., without negligence. On the other hand the defendant has not attempted to establish a defense attacking the default judgment on its merits. We must, therefore, decide whether the defendant should be given an opportunity to plead anew and thereby attack the merits of the default judgment rendered prior to the trial court’s acquisition of jurisdiction over the defendant.

This question should be so resolved as to do substantial justice between the parties. As stated by the court in Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, 109, 167 N.E.2d 799:

“In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiffs basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. * * * What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.”

It is a fundamental principle in all proceedings whether common law, statutory, equitable, that a person must have an opportunity of being heard before a court can render judgment against him. In the instant case the defendant should, therefore, be permitted to plead anew under section 72 of the Civil Practice Act and establish whatever “meritorious defense” she may have. Such proceeding is, of course, to be conducted within the purview of section 72 and if the defendant’s petition and affidavits) fail to show a meritorious defense and due diligence from the time of her first general appearance the trial court should deny defendant’s petition and enter judgment therein.

Nothing we have stated in this opinion should be construed as justifying the position of the defendant or implying that either plaintiff's position or defendant’s position, as asserted in the pleadings, is or is not justified as a matter of law. The sole purpose of remandment is based upon the determination of this court that on the basis of the record before us the defendant should have her day in court.

Accordingly, the order of the circuit court of Lawrence County is reversed and this cause is remanded with directions that the defendant be allowed to plead anew under section 72 of the Civil Practice Act.

Order reversed and cause remanded with directions.

G. MORAN, P. J., and CARTER, J., concur.


author: Mr. JUSTICE CARTER

text:
      In re Estate of Raymond Oliver, Deceased—(Jane Oliver Admr’x, Defendant-Appellant, v. Melvin Oliver et al., Plaintiffs-Appellees.)
    (No. 74-75;
    Fifth District
    August 14, 1974.

      Bonan & Bonan, of McLeansboro, for appellant.

      John C. Robison, Jr., of Marshall, Feiger, Robison & Quindry, of Fair-field, for appellees.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

Appellant, Jane Oliver, the widow of Raymond Oliver, and the administrator of the estate of Raymond Oliver, deceased, has appealed the order of the Circuit Court of Hamilton County appointing William E. Hoffe as a “special administrator" for the limited purpose of representing the estate of Raymond Oliver, deceased. The appointment was made after a hearing on a petition for citation to recover property and to discover information which had been filed against Jane Oliver by the remaining heirs of the estate of Raymond Oliver, deceased.

Raymond Oliver died intestate on September 26, 1972, leaving as his heirs at law his widow, Jane Oliver, and nine other heirs (Melvin Oliver, et al., children and grandchildren of Raymond Oliver). Letters of administration were issued to the widow, Jane Oliver, in the Circuit Court of Hamilton County, and thereafter, Jane Oliver, administrator, filed an inventory of the estate.

The inventory did not fist or include a certain checking account in the White County Rank, Carmi, Illinois, in the purported amount of $11,-175.01. The appellees have asserted that certain chattel also was not listed or included in the inventory.

On July 2, 1973, the nine heirs filed a petition for citation to recover property and to discover information, seeking a citation to issue against Jane Oliver, in order for her to appear before the circuit court to answer interrogatories, touching on the checking account. The nine heirs also sought an order returning the proceeds of the checking account to the estate if the circuit court found that such checking account rightly belonged to the estate. In their petition for citation, the nine heirs asserted that the $11,175.01 checking account was not listed or included in the estate inventory, but was listed and included on the Illinois State inheritance tax return, which was signed by Jane Oliver,, affiant, as being property owned individually by Raymond Oliver at the time of his death. In addition, the nine heirs asserted that the same checking account had been fisted and included on the United States estate tax return as being property owned individually by Raymond Oliver at the time of his death.

The appellant, Jane Oliver, in her individual capacity and in her capacity as administrator of the estate, answered the petition for citation by denying that she, individually, was in the possession of any money or other property of the estate of Raymond Oliver, deceased, and further, she answered affirmatively that she had accounted for all property and assets of the decedent’s estate in her capacity as administrator.

After filing their petition for citation, the nine heirs then filed a petition for appointment of a special administrator, alleging inter alia that Jane Oliver was purporting to be the surviving joint tenant of the $11,175.01 checking account, and that, therefore, a conflict of interest had arisen between Jane Olivers individual interest in the checking account and Jane Oliver’s fiduciary duty as administrator to collect and preserve the assets of the estate. In essence, the nine heirs asked the circuit court to appoint a special administrator to represent the estate for the purpose of determining the matter of ownership of the checking account as raised in the petition for citation, and the nine heirs also requested that the circuit court order that the special administrator’s fees, including his attorney’s fees, be paid from the assets of the estate.

Apparently, the appellant, Jane Oliver, did not file a formal answer to the petition for appointment of a special administrator, but in view of our opinion below, we do not deem it necessary to comment on this point. There is nothing in the record, and nothing appears from the transcript to have been entered in evidence, to establish whether the $11,175.01 checking account was or was not held jointly by Raymond Oliver and Jane Oliver as joint tenants with right of survivorship. Indeed, the nine heirs alleged that this question should be determined at the hearing on their petition for citation, and that the special administrator should represent the estate at such hearing.

The circuit court found that there had arisen a conflict of interest between Jane Oliver’s individual interest and her fiduciary duty as administrator to collect and preserve all assets of the estate, and therefore, ordered that William E. Hoffe be appointed as “special administrator” for the specific purpose of representing the estate at the hearing on the petition for citation.

The appellant, Jane Oliver, seeks a reversal of the Circuit Court’s order appointing a “special administrator” on the ground that the Circuit Court should have appointed a “Guardian ad Litem” rather than a “special administrator,” and appellant cites as authority for her position, section 187 of the Illinois Probate Act (Ill. Rev. Stat. 1939, ch. 3, par. 339), which states as follows:

“If the executor, administrator, guardian or conservator is the respondent [in a citation proceeding brought pursuant to Ill. Rev. Stat. 1965, ch. 3, sec. 183], the court may appoint a guardian ad litem to appeal- and represent the estate. The court may permit the guardian ad litem to prosecute or defend an appeal.”

In essence, the appellant argues for reversal on the ground that there is no statutory authority for the Circuit Court to appoint Mr. Hoffe as a “special administrator”, even though there is statutory authority (section 187) to appoint him as a “Guardian ad Litem.” We disagree with the appellant on this point, for we can find no substantive distinction (nor has appellant brought to our attention any substantive distinction) in the use or mis-use of the title “special administrator” instead of the title “Guardian ad Litem.” To hold otherwise would encourage the triumph of form over substance.

The appellant fails to take into account the manifest purpose and intention of the statutory scheme set forth in sections 183, 184 and 187 of the Illinois Probate Act. These statutes provide for the appointment of a disinterested person in a citation proceeding, to represent an estate when the person acting as the duly appointed administrator is confronted with a conflict of interest regarding his right and interest in property as opposed to the estate’s right and interest in the same property. This, purpose and intention ought not be defeated by mislabelling of the disinterested third party. It should be noted here that the appellant has not questioned whether Mr. Hoffe is a disinterested person.

The statute providing for a proceeding on a petition for citation states:

“Upon the filing of a verified petition therefor, the probate court shall order a citation to issue for the appearance before it of any person whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property # * which belong to a person whose estate is being administered in that court, or which belongs to his estate * * Ill. Rev. Stat. 1939, ch. 3, par. 335.

The nine heirs in this case filed their petition for citation under the authority of section 184 of the Probate Act (Ill. Rev. Stat. 1939, ch. 3, par. 336), which states in part:

“The Petition may be filed by the executor, administrator, guardian or conservator or by another person interested in the estate # a a»

As cited above, section 187 (Ill. Rev. Stat. 1939, ch. 3, par. 339) provides for the special situation in which the verified petition for citation is filed against the person who is acting as the adminstrator of the estate. It is obvious that a distinterested third party must represent the estate at the citation proceeding, when the administrator is the respondent in the citation proceeding.

A useful comparison can be made with section 200 of the Probate Act (Ill. Rev. Stat. 1939, ch. 3, par. 352), which provides for the appointment of a “special administrator” to represent an estate when:

“* * * an executor, administrator, guardian or conservator has a claim against the estate he is administering * *

That the disinterested person appointed to represent the estate is called a "special administrator” when the administrator has a claim against the estate but is called a “Guardian ad Litem” when representing the estate in a citation proceeding brought against the administrator is a distinction in labelling only — it is a difference in form, not of substance.

Appellant also takes the position that a distinterested person cannot be appointed to represent the estate of Raymond Oliver, deceased, in the citation proceeding, because the nine heirs have not alleged any grounds permitted under section 273 of the Probate Act (Ill. Rev. Stat. 1939, ch. 3, par. 427) to remove her as administrator of the estate. We believe this argument is without merit, because the appointment of a Guardian ad Litem under section 187 (Ill. Rev. Stat. 1939, ch. 3, par. 339) is not conditioned upon the absolute removal of the administrator under section 276 (Ill. Rev. Stat. 1939, ch. 3, par. 430). Removal of an administrator is a serious matter, requiring pleading and proof of serious misconduct on the part of the administrator. The purpose of section 187 is to permit a disinterested person to step in and temporarily represent the estate in a situation where there is an obvious conflict of interest in a person acting in a dual capacity. To construe the statutory scheme of sections 183, 184 and 187 in any other light would be to deny the resolution of such conflict of interest, short of pleading and proving the serious facts required for the absolute removal of the administrator.

Another important purpose of the statutory plan of sections 183, 184 and 187 is to prevent the appearance of injustice which must arise when there is a conflict of interest between a person’s individual interest and such person’s fiduciary duty as administrator of an estate. In the instant case, especially with regard to the citation proceeding, appellant, Jane Oliver, acts in three distinguishable capacities:

1) as an individual, she denies that she holds property belonging to the estate, although the question has been put in issue by the nine heirs asserting that Jane Oliver is claiming the $11,175.01 checking account by right of survivorship;
2) as the administrator of the estate, she is acting in a fiduciary capacity and owes well known fiduciary duties to the estate and all of the heirs or beneficiaries of the estate; and
3) as the widow of the intestate decedent, Raymond Oliver, she is an heir entitled to one-third of the net estate proceeds at the time of distribution.

It is well established that a disinterested person should be appointed to represent the estate when a conflict of interest arises between the person acting as the administrator of the estate and such person acting as an individual and for his own benefit:

“Unsuitableness to administer may well consist in an adverse interest of some kind, or hostility to those immediately interested in the estate, whether as creditors or distributees, or even of an interest adverse to the estate itself.”

In Re: Estate of Abell, 395 Ill. 337, 346, 347, 70 N.E.2d 252; Estate of Storer v. Storer, 131 Ill.App.2d 1049, 269 N.E.2d 352; Estate of Vercillo v. Gagliardi, 27 Ill.App.2d 151, 169 N.E.2d 364.

The circuit court’s order appointing WiUiam E. Hoffe as special administrator to represent the estate in the citation proceedings is affirmed. However, there has been a non-prejudicial mislabelling of Mr. Hoffe’s title. Accordingly, while upholding the Circuit Court’s order, we amend Mr. Hoffe’s title to that of “Guardian ad Litem,” and the case is remanded to the Circuit Court of Hamilton County for further proceedings consistent with this opinion.

Affirmed, modified in part and remanded.

G. MORAN, P. J., and CREBS, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Jamison, a/k/a Dwight Hayden, et al., Defendants-Appellants.
    (No. 73-55;
    Second District
    August 19, 1974.

      Rehearing denied September 9, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Powell, Defendant-Appellant.
    (No. 73-295;
    Third District
    August 13, 1974.

      Richard Steck, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Jay H. Janssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Ronald Powell, the defendant, was indicted by the grand jury of Tazewell County for the offenses of burglary, aggravated battery, and felony escape. Pursuant to negotiations he entered pleas of guilty to these charges, which were accepted and he was then sentenced to concurrent terms in the penitentiary of not less than three (3) nor more than nine (9) years for burglary, not less than one (1) nor more than three (3) years for aggravated battery and not less than one (1) nor more than three (3) years for felony escape.

On appeal in this court the defendant contends that the trial court failed to properly admonish him in accordance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). His specific contention is that the court failed to advise him properly as to the nature of the charges against him and to further make a determination that he understood them pursuant to Supreme Court Rule 402(a)(1).

The record discloses that the defendant at arraignment appeared in court with his attorney. The trial court advised the defendant as to the charges against him and provided him with copies of the indictments which had been returned. As to the charge of burglary the trial court advised the defendant that he was being charged with this offense as the result of burglarizing a business known as Sip & Cue, 107 South Main in Mackinaw, with intent to commit a theft therein on March 29, 1973. The defendant was interrogated as to whether he had discussed the charges against him with his attorney and if he fully understood the nature of the offenses with which he was being charged. The record shows that the defendant answered on three occasions that he understood the charges against him,

We find the situation present in the case now before us quite similar to that which existed in People v. Trinka, 10 Ill.App.3d 183, 293 N.E.2d 179. In Trinka we affirmed a plea of guHty where defendant’s attorney, in the presence of the defendant, estabfished in open court that the attorney had gone over the information charging the defendant with misdemeanor theft, and where the defendant acknowledged that such was true and indicated a desire to plead guilty to the charge.

In the instant case it is clear that the defendant and his attorney considered the indictments in open court, that the defendant acknowledged that the charges in the indictments were true and he expressed a desire to enter pleas of guilty to them.

We are not of the opinion that the trial court is under a duty to recite all of the facts and elements of the crime with which a defendant is charged. (See People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223; People v. Hickman, 9 Ill.App.3d 39, 291 N.E.2d 523.) We are familiar with the case of People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550, in which the reviewing court held that the trial court must inform a defendant of aH the elements of the crime with which he is being charged, however, our court and reviewing courts in other appeHate court districts have held to the contrary and such holdings have been subsequent to the case of Ingeneri. We wHI adhere to the position we have previously taken and therefore find that the trial court adequately admonished the defendant as to the nature of the offenses and it is clear that the defendant repeatedly acknowledged that he understood the nature of them.

Lastly the defendant claims that the trial court erred by ordering judgment of conviction and sentence on both the charges of aggravated battery and escape since both charges arose from the same or identical conduct. The People agree with this contention of the defendant and rightfully so. See People v. Lilly, 56 Ill. 493, 309 N.E.2d 1; People v. Lerch, 52 Ill.2d 78, 284 N.E.2d 293.

For the reasons stated the judgments of the circuit court of Tazewell County entered on the offenses of burglary and aggravated battery and the sentences imposed thereon are affirmed. The judgment is reversed and vacated as to the offense of escape.

Affirmed in part and vacated in part.

ALLOY and STOUDER, JJ„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Padget, Defendant-Appellant.
    (No. 72-148;
    Third District
    August 13, 1974.

      Jack Brunnenmeyer, of Peoria, for appellant.
    James Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Ralph Padget, was tried by a jury in the Circuit Court of Peoria County after an indictment had been returned against him in which two counts charged the crime of murder and two counts charged the crime of voluntary manslaughter. The defendant was found guilty of voluntary manslaughter and was sentenced to a term of not less than five (5) nor more than fifteen (15) years in the penitentiary.

A recital of the facts which resulted in the trial of the defendant is as follows. On the evening of September 25, 1971, the defendant was the owner and operator of a tavern and discotheque known as Ralph’s Playhouse. The evidence is conflicting as to whether at approximately 10 or 10:30 on the night of September 25 a James May, the ultimate victim, came into the tavern and refused to display an identification card when he attempted to purchase a drink. It is the defendant’s testimony that James May did make an appearance at such time and after being refused a drink because of his youthful appearance left the tavern, but only after becoming belligerent and threatening to return and “blow off” the head of the defendant. From the record it is clear that the victim, James May, did return to the tavern at approximately 3 o’clock A.M. on September 26, 1971. After walking out of the tavern which fronts on an alley, James May met three companions and while they were conversing the defendant appeared in the tavern doorway and accused them of loitering and ordered them to move away from the premises. Immediately thereafter an argument ensued between the defendant and James May which resulted in May striking the defendant in the face with his fist. Upon being hit the defendant stepped back, drew a pistol from the holster of his security guard and then shot the victim, James May, in the chest. This wound proved to be fatal.

In this appeal it is the defendant’s contention that he was not proven guilty beyond a reasonable doubt.

Directing our attention to this issue we find upon closely examining the evidence that the only discrepancy of any importance relates to what the victim did after he struck the defendant. The defendant’s testimony is that after being struck the victim made a movement or motion as if reaching behind his back for a pistol or gun, the defendant’s theory presumably being that it was necessary for him to shoot the victim in order to prevent the infliction of death or harm on himself. The testimony of the security guard was also to the effect that the victim made the menacing movement described by the defendant.

It should be noted that a number of other occurrence witnesses testified, none of whom saw the victim make any suspicious or threatening move after he had struck the defendant. It is further pertinent to recognize that no evidence was submitted as to any gun or weapon being found on or near the body of the victim after he was shot. The judgment of a reviewing court may not be substituted for the judgment of the jury as to the credibility of witnesses and the weight to be given evidence. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.) .With the conviction of the defendant it is obvious that the jury did not believe his testimony nor that of his security guard. That there were reasons for questioning the credibility of such testimony is also quite obvious in that the defendant naturally did not wish to be convicted and that the security guard was an employee of the defendant at the time of the killing and continuously thereafter, including the time of the trial. The jury preferred to believe the testimony of other witnesses who did not see any overt threatening act or gesture on the part of the victim after he struck the defendant.

The defendant by his own testimony ruled out the defense that he was acting under an intense passion when he testified that he never did get angry at the victim. It was then incumbent upon him to convince the jury that he was put in such a position by the victim that he believed the force he used was necessary to prevent the infliction of death or great bodily harm to himself or to someone else and that his belief was a reasonable one. The crucial question is whether or not the defendant’s belief was a reasonable one. (See Ill. Rev. Stat. 1971, ch. 38, par. 9— 2(b).) The jury decided that the defendant’s belief that he was using the force he did, to wit, shooting the victim, in order to prevent death to himself or another was not a reasonable belief. A further review of the evidence is unnecessary since the evidence upon which the jury based its verdict was clearly not so improbable as to raise a reasonable doubt as to the defendant’s guilt, and not being so improbable a reviewing court should not set aside a conviction. See People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.

The defendant next assigns as error the trial court’s refusal to give certain instructions to the jury. The defendant submitted defendant’s instructions number 2 and 3 which the court refused to approve and tender to the jury. An examination of these instructions discloses that they are IPI criminal instructions numbered 7.04 and 7.06 except that the defendant added the following language to each of them, “That the defendant was not justified in using the force which he used.” IPI criminal instruction 7.04 sets forth the issues necessary to be proven to sustain a charge of voluntary manslaughter based on provocation, while IPI criminal instruction 7.06 relates to tire requisite issues to be proven in order to sustain a charge of voluntary manslaughter where a belief of justification is an element of the crime. Our criminal code contains a provision concerning the use of justifiable force (Ill. Rev. Stat., ch. 38, par. 7 — 1) and the test as to whether the use of force is war-ranted is whether a reasonable belief was entertained by the defendant that his actions were taken to prevent imminent threat of death or great bodily harm to himself or another. This statutory provision or guideline is the basis for IPI criminal instruction 24.06 which was given by the trial court as a People’s instruction. The defendant, whose defense was that the amount of force he used, to wit, the shooting of the victim, was a justifiable use of force, was further protected and rightly so by the trial court’s giving of a People’s instruction which was in fact IPI voluntary manslaughter instruction 7.06.

We fail to see where the trial court committed error in refusing to give defendant’s instructions numbered 2 and 3. The jury was appropriately and adequately advised as to every issue presented in the case. The adding of additional language to defendant’s instructions 2 and 3 could only serve to confuse the jury as to elements which were properly presented to and explained to them in other instructions. Defendant’s instructions 2 and 3 were repetitious and unnecessary and the trial court was correct in refusing to give them. See People v. Sledge, 71 ILl.App.2d 285, 218 N.E.2d 845.

The defendant further claims that reversible error was committed by the failure of the trial court to give to the jury proper forms of verdict as to the offenses charged in the indictment. At the outset we note that this question of proper verdict forms is not properly before this court. The defendant offered no alternative form of verdict nor did he object to that tendered by the People. The trial court is under no duty to give instruction on its own motion. (City of Chicago v. Baird, 132 Ill.App.2d 644, 270 N.E.2d 259.) We, however, are not inclined to dispose of this claimed error on the ground that it was not properly preserved for review since we do not deem the form of verdict given to the jury to be an incorrect one. Supreme Court Rule 451 (Ill. Rev. Stat., ch. 110A, par. 451), provides in substance that whenever applicable the relevant IPI criminal instruction be used. In the instant case the form of verdict proffered by the People without objection by the defendant was IPI criminal instruction 26.05. This instruction provides for the following form of verdict: “We the jury find the defendant Ralph Padget guilty of Voluntary Manslaughter.” This is the only form of verdict presented in IPI criminal instructions for a verdict of guilty for a particular offense. In the instant case it was broad enough to cover the crime of voluntary manslaughter and to justify a finding of guilty under either the theory of intense passion or unreasonable belief as to amount of force to be used to prevent harm or death to himself. We fail to agree with the defendant that error was committed by the use of an improper form of verdict.

Lastly the defendant argues that the trial court abused its discretion in refusing to grant him probation. The defendant in this case was convicted of a Class 2 felony. (See Ill. Rev. Stat., ch. 38, sec. 9 — 2(c).) The sentence for such a felony is to be a minimum of one (1) year and a maximum of twenty (20) years. (See Ill. Rev. Stat., ch. 38, sec. 1005 — 8— 1(b)(3).) It is clear that the sentence imposed by the trial court, being a minimum of five (5) and a maximum of fifteen (15) years, is within the prescribed statutory limitations. The authority given reviewing courts to reduce sentences imposed by trial judges should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do appellate tribunals. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) In the instant case the defendant was found guilty of taking the life of a fellow man and accordingly we cannot conclude that the penalty imposed is disproportionate to the crime committed and we will therefore not disturb the defendant’s sentence.

For the reasons stated herein the judgment of the Circuit Court of Peoria County and the conviction imposed thereon is affirmed.

Affirmed.

DIXON and STOUDER, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Irvin McNeal, Defendant-Appellant.
    (No. 12418;
    Fourth District
    August 15, 1974.
    John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appeHant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction of burglary and theft entered upon jury verdicts. The court imposed sentence of 1 to 3 years.

The opinion of the supreme court in People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, controls the first issue raised upon appeal.

Defendant correctly urges that the theft for which he was convicted was not independently motivated or otherwise separable from the acts constituting the burglary. Under such circumstances the conviction of theft must be reversed. People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679.

The conviction of burglary and the sentence imposed are affirmed. The conviction for theft is reversed and the cause is remanded to the trial court with directions to issue an amended mittimus.

Affirmed in part, reversed in part and remanded with directions.

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


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Nichols, Defendant-Appellant.
    (No. 12449;
    Fourth District
    August 15, 1974.
    Hagin Harper, of Champaign, for appellant.
    Lawrence Eaton, State’s Attorney, of Monticello (John W. Foltz, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant appeals from his conviction by a jury of the offense of aggravated assault in violation of section 12 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2) and from a sentence of 2 years’ probation.

The defendant, Robert Nichols, age 41, was the owner of a building in the business district of Bement, Illinois, which was used as both a store and a residence. On September 13, 1972, defendant posted in the front window of his building a notice containing a list of names of individuals, who were described in very vulgar and derogatory language, and who were to be permanently barred from the premises. The admission of the notice into evidence was stipulated to by defense counsel. Later on the day in question George Dick, age 26, the complaining witness, read the notice, found his name thereon, and angrily proceeded to enter the store. Defendant immediately demanded that Dick leave, but Dick refused. Dick testified that he wanted to know why his name was on the list, and defendant testified that he told him why. Nevertheless, defendant repeatedly requested Dick to leave, but Dick repeatedly refused. Dick admitted using rough language with the defendant. Defendant then stated that he would force Dick to leave and went upstairs to his bedroom. Dick still did not leave during defendant’s absence. After some time had elapsed, Dick saw the barrel of a rifle coming down the stairs. Defendant then re-entered the room, loaded the gun and aimed it at Dick, who at that point proceeded to leave the premises. On January 15, 1973, defendant was found guilty by the jury of aggravated assault.

Defendant first contends that he was justified as a matter of law in threatening the use of such force. We disagree. Section 7 — 3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 7 — 3) states:

“Use of force in defense of other property. A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other's trespass on or other tortious or criminal interference with either real property (other than a dwelling) or personal property, lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent the commission of a forcible felony.” (Emphasis added.)

In the instant case defendant tendered without objection an instruction on the defense of justification under section 7 — 3 as to whether the threat of force used- by defendant was reasonably necessary to eject plaintiff from the premises. Clearly then whether defendant’s threat of force was reasonable was a question of fact for the jury to decide. The jury, however, obviously found that defendant’s acts in that regard were unreasonable, and such a finding in light of the record before us is not clearly erroneous.

Defendant also contends that the court erred in admitting the notice into evidence without deleting obscene language therein which was obviously prejudicial to defendant. Defense counsel, however, stipulated to the introduction of the sign into evidence. It is well established that failure to object to the admission of evidence waives the objection and precludes consideration of the question on appeal. (People v. Scott, 52 Ill.2d 432, 288 N.E.2d 478.) An examination of the record indicates this to be a proper case for application of that rule.

For the reasons stated above the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Malone, Defendant-Appellant.
    (No. 12453;
    Fourth District
    August 15, 1974.
    John F. McNichols, J. Daniel Stewart, and Daniel D. Yuhas, all of State Appellate Defenders Office, of Springfield, for appellant.
    . Robert L. Welch, State’s Attorney, of Virginia, for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction upon a negotiated plea to possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56%, par. 1402(b)). A sentence of 1 to 2 years was imposed.

The only issue remaining upon appeal following oral argument is the sufficiency of the indictment alleging “possession [of] less than 200 grams of a substance containing a derivative of barbituric acid #

It is primarily contended that the indictment failed to specify the controlled substance, secobarbital, and that such omission could make defendant subject to a subsequent prosecution for the same acts.

In People v. Jones, 53 Ill.2d 460, 464, 292 N.E.2d 361, the court said:

“The liberalization of criminal pleading also reflects a lessening in importance of the indictment’s secondary functions. The indictment as a means of informing defendants of particulars concerning the case is now far overshadowed by the array of discovery procedures available to the defense. Similarly, the time when an indictment defined the limits of jeopardy has passed and a prior prosecution on the same facts may be proved by resort to the record.”

We find that the record includes the proceedings at a preliminary hearing wherein the date, time and place, together with persons present or having knowledge of the offense, are set out in detail. At such hearing secobarbital was identified as the substance. Such record establishes a bar to subsequent prosecution for the same offense.

A plea of guilty waives any irregularity in an indictment which is not jurisdictional. People v. Hubbard, 46 Ill.2d 563, 264 N.E.2d 144.

In the absence of a genuine issue that defendant was unable to prepare a defense, or that he was subject to a subsequent prosecution for the same acts, the conviction and sentence must be affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Richard J. Scholin, Defendant-Appellee.
    (No. 12430;
    Fourth District
    August 15, 1974.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Donald R. Parkinson, Assistant State’s Attorney, and Oscar Marquis, Senior Law Student, of counsel), for the People.
    Lawrence E. Johnson and Associates, of Champaign (L. Keith Hays, of counsel), for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by the State under Supreme Court Rule 604(a) (Ill. Rev. Stat. 1971, ch. 110A, ft 604(a)), from an order dismissing two counts of a complaint and information brought against defendant for the alleged offense of theft. The dismissal was with leave for the State to file an amended information within 5 days. On appeal, the State urges two issues for review. However, we find that the appeal is improperly brought and should be dismissed.

The trial court dismissed the two counts on the ground that the complaint failed to adequately state the ownership of the property in question. The State was given 5 days to remedy the defect and file an amended information. Notwithstanding the fact the State did not inform the court it intended to stand on the original complaint, it immediately appealed.

Supreme Court Rule 604(a)(1) permits the State to appeal “» * * an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; * * It is true that section 114 — 1(a)(8) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, f 114 — (a) (8)) mandates that pursuant to defendant’s written motion, the charging instrument (indictment, information or complaint) must be dismissed if it fails to charge an offense. The State relies upon this provision to legitimize its appeal herein; however, the salient facts in this case do not demonstrate that the court’s order is sufficiently final as envisaged by Rule 604(a)(1) to warrant an appeal. The court’s order mandated that the State file an amended information within 5 days and that the defendant would be arraigned thereunder. Accordingly, the appeal is dismissed.

Appeal dismissed.

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


author:
Mr. JUSTICE SIMKINS
      Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Charles Fuller, II, Defendant-Appellant.
    (No. 11840;
    Fourth District
    August 15, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John J. McCarthy, Jr., State’s Attorney, of Charleston (Paul C. Kom-ada, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Thomas Charles Fuller, II, was convicted October 23, 1968, on pleas of guilty to 5 counts of murder. The defendant shot, and killed, 5 children. The victims were Louis Cox, age 16, Theresa Cox, age 9, Mary Cox, age 8, Gary Cox, age 7, and Kenneth Cox, age 5. Hearing in aggravation and mitigation commenced on November 4, 1968, lasted 5 days, and was concluded on November 11, 1968. Defendant was sentenced on December 10, 1968, to indeterminate terms of 70 to 99 years on each count of the indictment. The sentences involving the murder of Theresa Cox and Mary Cox to run concurrently but consecutively to the concurrent sentences imposed on the counts relating to the deaths of Gary Cox, Louis Cox and Kenneth Cox. There was no direct appeal.

On July 14, 1971, appointed counsel filed an amended post-conviction petition alleging certain constitutional deprivations. Following an evi-dentiary hearing the trial court entered its order denying the relief sought, and this appeal ensued. Only two issues are presented, the first of which is stated in defendant’s brief as follows:

“1. Was the defendant denied his constitutional right to the effective assistance of counsel because one of his appointed attorneys had a conflict of interest by having a contract with the. defendant to handle publication rights to certain written and other materials of the defendant relating to the crimes with which he was charged?”

The evidentiary background against which the issue is posed may be summarized as follows: The defendant was arrested in connection with these offenses on April 28, 1968, and on that date William A. Cherikos, public defender of Coles County, was appointed as counsel for the defendant. Preliminary hearing was had on May 3, 1968. On May 20 ©r May 23, 1968, another attorney, Mr. Whitney D. Hardy, was appointed as co-counsel. Both attorneys served as counsel for the defendant until the case was terminated by imposition of sentence by the trial judge.

Sometime between Attorney Hardy’s appointment in May, 1968, and December 8, 1968, the contract, prepared by Hardy, was entered into between the defendant, Attorney Hardy and defendant’s mother, Mrs. Lucy Fuller. Defendant was 18 years of age at the time.

The precise date on which the agreement was signed is unclear, the evidence tends to establish that it was signed in the month of December, 1968, and probably between December 5 and December 8, 1968. On defendant’s request Attorney Hardy surrendered the contract in the month of January, 1969. The defendant had submitted to psychiatric examination at the Menninger Clinic, and the examinations had been recorded on video tape. It also appears that the defendant had written three books, and had kept a diary. It does not appear from the record that any writing of the defendant had ever been published. Under the terms of the contract Hardy agreed to protect defendant’s “common-law” rights to the unpublished writings and the video tapes, in consideration of a contingent fee equal to one-third of any royalties received if, as and when publication occurred.

In January, 1969, Hardy terminated the contract on request of the defendant.

The issue presented is narrow, and it is precise. It is as important to recognize what defendant does not claim as it is to realize that which he does contend. He does not contend that Attorney Cherikos had any conflict of interest or that his representation was anything other than competent. He does not contend that he had a defense to the charges which counsel bungled or failed to present. Indeed the record establishes guilt not only beyond reasonable doubt, but beyond any doubt. He does not contend that his plea was coerced, that the taking of the plea was involuntary in any sense, or that any constitutional infirmity of any sort surrounded the taking of the plea or the decision to plead, nor does he urge any constitutional deprivations obtaining prior to or after his arrest.

What defendant does argue, and state the issue to be, is that once a conflict of interest appears on the part of counsel a per se rule applies which mandates reversal without a showing of prejudice. Defendant bottoms this argument upon several supreme court and appellate court decisions. He cites People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421. In Ware, an attorney represented both co-defendants whose positions were antagonistic. In reversing the court reaffirmed the rule enunciated in People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389, which held that co-defendants have a right to separate counsel if their positions are antagonistic. The court in Ware further stated that it would not “* * * attempt to measure the prejudice sustained by the defendant, for, as the Supreme Court stated in Glasser v. United States, 315 U.S. 60, 76, 86 L.Ed. 680, 62 S.Ct. 457: The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial’.” 39 Ill.2d at 68.

Defendant also relies upon People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81. There defendant entered a plea of guilty to the crime of burglary while represented by appointed counsel who also represented the defendant’s wife on a possible dramshop action against the tavern where defendant had been drinking prior to commission of the crime. In reversing the conviction and remanding for the purpose of permitting defendant the opportunity of withdrawing his plea the court noted that counsel “* * * conceivably stood to gain a contingent fee which would presumably increase in proportion to the length of defendant’s sentence.” (46 Ill.2d at 152.) The court also criticized counsel’s neglect to call to the attention of the sentencing judge the State’s Attorney’s recommendation of sentence which was for a term less than that imposed.

Defendant cites People v. Richardson, 7 Ill.App.3d 367, 287 N.E.2d 517, and People v. Krause, 7 Ill.App.3d 701, 288 N.E.2d 530. Richardson dealt with the same conflict of interest described in People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81, and this court held that Meyers controlled. In Krause appointed counsel, at the time of his first appearance advised the court that a conflict of interest existed, and that it had arisen prior to his appointment. Despite defendant’s statement to the court that the attorney’s appointment was agreeable to the defendant counsel reiterated that the conflict existed and that defendant should have other representation. The trial judge made no inquiry as to the extent or nature of the conflict nor is it revealed in the record. Under these circumstances this court reversed and remanded with directions to permit defendant to plead anew because of the refusal of the trial judge to allow counsel’s motion to vacate the appointment.

Lastly, defendant cites People v. Stoval, 40 Ill.2d 109, 239 N.E.2d 441, and Glasser v. United States, 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, the latter being cited in the opinion in Stoval. In Stoval, defendant was charged with burglary. Appointed counsel had personally represented the victim and his law firm was currently representing the victim. The Stoval court reversed the conviction and remanded for further proceedings stating that Tn a case involving such a conflict there is no necessity for the defendant to show actual prejudice. Glasser v. United States, 315 U.S. 60; Goodson v. Peyton (4thCir.) 351 F.2d 905.” This holding in Stoval is the source of defendants contention that no prejudice need be demonstrated once a conflict of interest on the part of counsel appears, as to put the matter another way it is contended that under the above quoted language from Stoval, Illinois promulgated a per se rule governing all conflicts of interest.

We first note that both Stoval and People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81, involve a commitment to others on the part of counsel. The court in Stoval, as above noted, cited Glasser v. United States, 315 U.S. 60, and Goodson v. Peyton (4thCir.) 351 F.2d 905, in support of its ruling that in “* * * such a conflict” no prejudice need be shown. Glasser also involved appointed counsel representing co-defendants with conflicting interests. The possibility of the conflict arising during trial had been brought to the attention of the trial judge. The conflict was in fact demonstrated by the declination of counsel to cross examine one witness whose testimony was damaging to Glasser but not to his co-defendant. The Supreme Court reversed because of the denial of Glasser s sixth amendment rights to assistance of counsel and remarked that it would not indulge in weighing the amount of prejudice arising from the denial. Glasser, as does Stoval and Meyers, involves a commitment to others on the part of counsel.

Goodson v. Peyton, 351 F.2d 905, is also cited in Stoval. In Goodson, the defendant was convicted of the crime of escape in the circuit court of Powhatan County, Virginia. His appointed counsel was the Commonwealth Attorney for the neighboring county of Cumberland. On appeal the defendant claimed that his representation by an attorney whose responsibility as a public official was to seek enforcement of the law demonstrated a conflict of interest on the part of counsel in that he had a commitment to others (i.e., the public at large) which conflicted with his responsibility to the defendant. In affirming the conviction the court stated, “Thus it is now settled that a lawyer representing multiple defendants whose interests are conflicting cannot act with that degree of loyalty which effective representation requires. [Glasser v. United States, 315 U.S. 60.] He cannot do so if he has conflicting commitments to other clients not on trial, [Porter v. United States, (5th Cir.) 298 F.2d 461] * * The court went on to state that in the instant case it found no conflict and also, “In light of the charge and its simplicity, we have no hesitancy in concluding that Goodson suffered no actual prejudice by reason of his representation by a lawyer who, at the time, was Commonwealth’s attorney of another county.” (Emphasis added.) Thus, in Goodson, the court refused to apply a per se rule when the conflict asserted did not involve a commitment to others within the concept of Glosser.

In Porter v. United States, 298 F.2d 461, defendant was convicted on a charge of violation of Federal narcotics law. His retained counsel, was at the time (but this fact was unknown to defendant) attorney for one Glass, an officer on the Fort Worth Police Department. Glass was involved in defendant’s case, but defendant’s counsel refused to call him as a witness. In reversing the conviction the court held that effective representation by counsel is lacking when counsel’s “* # * full talents * * * are hobbled or fettered or restrained by commitments to others.” (Emphasis added). Glosser v. United States, 315 U.S. 60.

In Ray v. Rose,-F.2d-(6th Cir. 1974), counsel for defendant had entered into an agreement with defendant whereby counsel was to receive a percentage of the royalties from a book or books to be written by another after interviews with the defendant. The fact that the agreement had been entered into was not in dispute. Following his conviction on a plea of guilty and imposition of sentence the defendant brought his petition for a writ of habeas corpus alleging that his plea was coerced by counsel, that his representation was motivated by a desire for profits from the publications. This case does not involve a commitment to others. The court did not apply a per se rule but rather remanded for an evidentiary hearing for the purpose of determining whether the defendant’s plea was voluntarily and intelligently made.

To summarize, we hold that Illinois has adopted a per se rule where counsel's conflict of interest arises from a commitment to others, but that it has not, thus far, adopted such a rule where the conflict arises in another fashion.

The defendant was also represented during the entire course of the proceedings in the trial court by the public defender, Attorney William Cherikos. As above noted there is no claim of conflict as to him, nor is there any contention that the representation afforded to defendant by Cherikos was in any way incompetent. Defendant testified at the evidentiary hearing on the petition, that Cherikos only consulted with him four or five times after the preliminary hearing. Cherikos testified that he represented the defendant “* * # throughout all stages of the consideration of the murder charges in this court * * * until the date he was sentenced and mittimus was issued”. Cherikos further testified that he consulted with defendant many times at the county-jail and estimated the number of those visits to be between 25 and 30, sometimes in the company of Attorney Hardy. It is also clear from the record that Cherikos was involved as was Hardy during the discussion with defendant and members of defendant’s family during the conference at which the defendant’s decision to enter his plea was made. Cherikos’ active participation as defendant’s counsel is also demonstrated by the fact that he was as involved in the examination and cross-examination of the witnesses who testified during the lengthy hearing in aggravation and mitigation. Defendant’s testimony that he relied on Hardy’s advice to enter his plea is a statement concerning defendant’s state of mind, it is to be weighed against the demonstrated extent of Cherikos’ active participation in the case and his participation in the final conference with defendant and members of defendant’s family during which the decision to enter a plea was made.

There is no disputing the proposition that Hardy’s entering into the contract was a violation of Illinois Code of Professional Responsibility, Canon 5, DR 5-104(3), which specifically prohibits an attorney from securing a beneficial ownership in publication rights relating to the subject matter of the employment prior to the termination of all aspects of the matter giving rise to the employment, even though employment has previously ended. But the issue here is whether that conduct invoked the per se rule enunciated in Stoval. Since it did not involve a commitment to others, we hold that the rule was not invoked. That Cherikos’ representation of defendant measured up to the sixth amendment guarantee of effective assistance of counsel is not questioned, nor is Hardy’s actual performance of his duties as counsel for defendant questioned. Accordingly we agree with the holding of the trial judge that defendant was not denied his sixth amendment right to counsel.

Defendant also contends that the sentences in question offend the provisions of article I, section 11, of the Illinois Constitution of 1970 in that the sentences cannot be said to comport with the objective of restoring the offender to useful citizenship. We see no useful end to be gained by the recital of the details of these crimes. Suffice it to say that the lives of 5 children were criminally destroyed. The sentences were imposed by the trial judge after 5 days of hearings in aggravation and mitigation, and the record reflects his careful, conscientious consideration of that evidence. The sentences imposed are within statutory limits. We further note that parole eligibility is to be determined under the provisions of the Unified Code of Corrections (People ex rel. Weaver v. Longo, 57 Ill.2d 67), with eligibility occurring in 20 years less credit for good time served. Accordingly the judgment of the trial court is affirmed.

Judgment affirmed.

SMITH, P. J., concurs.

Mr. JUSTICE CRAVEN

dissenting:

I must respectfully disagree with the conclusion of my colleagues. As I understand the cases in this jurisdiction and the cases from the Federal courts, it is well established that the right to effective assistance of counsel is fundamental and entitles the person represented to the undivided loyalty of counsel. When facts are shown to establish that a defendant did not have the undivided loyalty of counsel and that counsel, whether retained or appointed, represented the defendant and at the same time had undertaken potential conflicting responsibilities, that fact without the necessity of a showing of actual prejudice constitutes a denial of the effective assistance of counsel and requires a new proceeding.

In People v. Stoval, 40 ILl.2d 109, 239 N.E.2d 441, Mr. Justice Ward, speaking for a majority of the court, specifically held that the existence of a possible conflict of interest placed too great a burden on counsel, however conscientious, and exposes counsel unnecessarily to later charges that his representation was not completely faithful. In a case involving such conflict, the court held that there was no necessity for the defendants to show actual prejudice. As the majority opinion notes, the Illinois Supreme Court relied upon Glosser and Goodson. The dissenting opinion by Justice House serves to emphasize the clear holding of the majority that Illinois had a per se rule. In People v. Meyers, 46 Ill.2d 149, 263 N.E.2d 81, Mr. Chief Justice Underwood, spealdng for a unanimous court, reiterated the holding in Stoval and held that where appointed counsel conceivably stood to gain a contingent fee which would presumably increase with the length of the defendant’s sentence, representation by that counsel of the defendant was such a conflict as to require the conviction to be vacated without a showing of prejudice. This court in People v. Richardson, 7 Ill.App.3d 367, 287 N.E.2d 517, following Meyers, held exactly the same thing and concluded that there need be no showing of prejudice, intentional fraud or misrepresentation, but the mere existence of a conflict was sufficient to set aside a conviction. In Richardson, the conflict was that counsel had undertaken to represent claimants in a dramshop suit.

In the majority opinion there is a clear acknowledgment of the Illinois per se rule when the conflict arises from a commitment to others. The majority would distinguish this case from the line of cited cases by asserting that here the commitment was not to others but was to the lawyer himself. I am unable to make, such a distinction. Where, as here, the lawyer has a contract by the terms of which he gets a percentage of the royalties from publication, I believe it is more of a conflict than a mere undertaking to represent a third party in a dramshop action with a possible contingent fee. The fact that there were two lawyers would seem to make no difference. The conflict was there and by reason of that conflict the defendant was denied the effective assistance of counsel. See Ray v. Rose,-F.2d-(6th Cir. 1974), cert, denied, 42 L.W. 3663.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Cissna Park State Bank, Plaintiff-Appellant, v. Paul E. Johnson et al., Defendants-Appellees—(First National Bank in Paxton, Plaintiff-Appellant, v. Paul E. Johnson et al., Defendants-Appellees.)
    (Nos. 12315, 12317 cons.;
    Fourth District
    August 8, 1974.

      Rehearing denied September 12, 1974.

      Mitchem & Tepper, of Urbana (John M. Mitchem and Michael Tepper, of counsel), for appellants.
    Martensen & Martensen, of Paxton, for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

These cases were consolidated for trial in the Ford County Circuit Court and for oral argument in this court. However, separate appeals were taken, and they are now consolidated for opinion in this court as the parties and the issues are basically the same.

Judgments by confession were taken by the respective banks against the defendants. Defendant Gerald P. Johnson was the son of Paul and Ruby Johnson and operated an implement dealership financed through loans from the First National Bank in Paxton over a period of several years winding up in a note for $50,000 upon which judgment was taken by the First National Bank in Paxton against the three Johnsons. A second note to First National Bank was subsequently sold without recourse to Cissna Park State Bank for $47,000 plus and was originally executed by Paul Johnson alone to cover checks written by Gerald which had been refused payment by First National Bank for want of sufficient funds. Some 30 days after each of these notes had been signed, defendant Ruby E. Johnson was called into the First National Bank by its president and asked to sign both notes. The banker told her, “We have to have your signature on these.” Later on April 10, Gerald took bankruptcy. On May 10, First National Bank in Paxton sold the $47,000 note to Cissna Park State Bank without recourse for its face value and before it was due. On August 19, the banks took judgment on their respective notes. On motion, the trial court opened up both judgments and permitted the parties to plead. After the judgments were taken Paul died and Ruby was named executor of his estate. The cases proceeded against her both in her capacity as executor and individually. The trial court reinstated the judgment against Paul’s estate and vacated the judgment against Ruby individually.

The record shows that at the time of Ruby’s signature she was told nothing about the reason for requesting her signature. No agreement had been made at the time of the original execution of the notes that she would be asked to sign, and no new consideration passed to her at the time of her signing. The record shows from the testimony of the bank officer that the reason they wanted her signature was that her husband, Paul, then 71 years of age, was in failing health and the First National Bank in Paxton had learned that most if not all of their property was owned in joint tenancy. The trial judge entered judgments against Ruby as executor and a judgment in favor of Ruby individually on each note. The judgments in her favor individually were based on the proposition that there was no consideration for her signature and that there was evidence of lack of good faith on the part of the bank by failing to inform Ruby of either the reasons or necessity for her signature. Under these circumstances, the primary questions for our determination are (1) to determine Ruby’s status and determine whether or not consideration for her signature was required before a liability on the note became hers, and (2) was the bank required to disclose to her the reasons for requiring her signature some 30 days after the notes were executed and delivered by all other parties?

When Ruby Johnson affixed her name to these notes, all transactions surrounding the notes at the time of their execution originally had been completed. There was no factual change between the parties, except the addition of her signature. The First National Bank in Paxton had dealt with Gerald Johnson over the years, had financial statements from him and knew that he had written several checks (about 25 in 3-4 months) without sufficient funds. So far as this record shows, the Cissna Park State Bank purchased the second note without knowledge that Ruby Johnson had signed the note after its original execution or of the financial condition of Gerald Johnson. Neither bank, however, claims to be a holder in due course, and we accordingly treat each as a holder for value within the meaning of the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 1 — 101 et seq.). Section 3 — 415(1) of the Uniform Commercial Code states, “An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” Treating Ruby as an accommodation maker, it is clear that the Illinois decisions prior to the effective date of the Commercial Code required no new consideration when the accommodation party was a part of the original execution of the note, but when it was entered into subsequently by the accommodation party, a new and independent undertaking is bom and it must be supported by a new and independent consideration. (Joslyn v. Collinson, 26 ILl. 62; Melvin State Bank v. Crowe, 97 Ill.App.2d 82, 239 N.E.2d 483; Judson v. Gookwin, 37 Ill. 286; Dillman v. Nadelhojfer, 160 Ill. 121, 43 N.E. 378; Edwards v. Trustees of Schools, 30 Ill.App. 528; Haven v. Chicago Sash, D. & B. Co., 96 Ill.App. 92; Martin v. Stubbings, 20 Ill.App. 381.) In Melvin State Bank, this court held that a judgment in favor of the plaintiff bank should be reversed for failure of consideration where the defendant’s signature was obtained after the note had been executed and delivered and the defendant received no consideration for her signature. Melvin State Bank did not discuss the sections of the Code with which we here deal and concerned itself with matters apart from those here involved.

The resolution of Ruby’s status depends upon a proper interpretation of section 3 — 408, which provides, “Want or failure of consideration is a defense as against any person not having the rights of a holder in due course * e except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind." (Emphasis supplied.) The committee comment on this section indicates, “The ‘except’ clause is intended to remove the difficulties which have arisen where a note or a draft, or an endorsement of either, is given as payment or as security for a debt already owed by the party giving it, or by a third person." (Emphasis supplied.) (Smith-Hurd Ill. Ann. Stat., ch. 26, § 3 — 408, at 261.) The provision is intended to change the result of decisions holding that where no extension of time or other concession is given by a creditor, the new obligation fails for lack of legal consideration. Section 3 — 415 provides: “(2) When the instrument has been taken for value before it is due the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation.” It would seem reasonably clear from this section that it applies only to the situation where the accommodation party’s signature is on the paper at the time the instrument is taken for value. This would seem to follow from the use of the words “even though the taker knows of the accommodation” because a taker for value could hardly be expected to know of the accommodation status of a party whose name does not appear on the note at the time of its execution and delivery to him. Thus, this section would apply to Cissna but would not by its terms apply to Paxton. However, the committee comments to this section state: “The obligation of the accommodation party is supported by any consideration for which the instrument is taken before it is due. Subsection (2) is intended to change occasional decisions holding that there is no sufficient consideration where an accommodation party signs a note after it is in the hands of a holder who has given value. The party is liable to the holder in such a case even though there is no extension of time or other concession. This is consistent with the provision as to antecedent obligations as consideration (section 3 — 408).” (Smith-Hurd Ill. Ann. Stat., ch. 26, § 3 — 415 at 302.) We do have here an antecedent obligation owed by a third party. Thus, the statute plus the committee comments suggest that the sections were placed in the statute by the legislature for the very purpose of creating a liability on people such as Ruby and to change the result in the cases above cited holding that new consideration is required to hold an accommodation maker who signs after the note is originally executed. So construed, Ruby is liable both as executor and individually.

So far as Cissna is concerned Ruby’s liability seems clear. Cissna acquired this note from the First National Bank in Paxton for its face value before due and Ruby’s name was on the note as a maker at the time it was taken by Cissna for value.

Tmning now to Paxton, section 3 — 307 of the Code states: “(2) When the signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” Ruby asked no questions and also asked no questions when her husband indicated she should sign. There is no suggestion that there was any over-reaching by the bank, any misrepresentation or any intimation that the reasons for her signature would not have been freely discussed. The circumstances of her signing provide no defense to her liability on the note.

In Central Republic Trust Co. v. Evans, 378 Ill. 58, 37 N.E.2d 745, it was stated that where a note is given to a bank and tire money procured on such note is applied to the credit of some other person or is used to make a previous loan legal which is otherwise excessive, such other person is the accommodated party. In that case, it was pointed out that the payee bank could not be the accommodated party; it was the one which advanced the money upon the note of the defendants. The money was deposited to the credit of another bank and the case, likewise, points out that under such circumstances the accommodated party would have been that other bank. It seems beyond question that we have an analogous situation here with the son as the accommodated party.

The fact that no consideration passes to Ruby is beside the point; In 28 Ill. L. & P. Negotiable Instruments § 59 (1957) it is stated: “A consideration passing from the original payee to the maker of accommodation paper is not necessary to its validity, it being considered that the maker of such paper by his signature holds himself out to the public to be bound to every person who shall take the paper for value the same as though it were paid to himself. The very nature of accommodation paper presupposes that there was no consideration given for it.” In 2 Anderson on the Uniform Commercial Code (2d ed. 1971), § 3— 415: 8, it is stated: “An accommodation party cannot claim that there is no consideration for his accommodation as the value received by the principal debtor, the person accommodated, is the consideration for which the accommodation party lends his credit.” Ruby signed as a co-maker. She signed at the bank’s request. She turned to her husband and he indicated that she should. She did. What the consequences may have been had she failed to do so become immaterial. Whatever they may have been, they were precluded by her signature.

Accordingly, the judgments in favor of each bank against Ruby as executor of her husband’s estate are affirmed. The judgments in her favor against the First National Bank in Paxton and against the Cissna Park State Bank are each reversed and this cause is remanded to the trial comt with directions to reinstate those judgments against Ruby individually.

Affirmed in part; reversed in part and remanded with directions.

TRAPP and CRAVEN, JJ., concur.