author: Mr. JUSTICE McGLOON

text:
    Fred W. Stansell, Plaintiff-Appellant, v. International Fellowship, Inc., Defendants-Appellees.
    (No. 59475;
    First District (3rd Division)
    September 19, 1974.

      Wachowski & Wachowski, of Chicago, for appellant.
    Clausen, Miller, Gorman, Caffrey and Witous, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opirnon. of the court:

This is an appeal from an order of the circuit c~urt of Cook County quashing service of summons on Mildred Brown and dismissing her as a party defendant from this action. Brown was served with summons at her residence in Erie County, New York. She filed a special appearance in the circuit court of Cook County challenging the court’s jurisdiction over her person. (Ill. Rev. Stat. 1971, ch. 110, par. 20.) The trial court upheld her position and dismissed plaintiff’s action as to her. The other defendant in this action filed a general appearance and submitted to the court’s jurisd'ction. Defendant Brown now appears pursuant to .the express finding of the court that there was no just reason for delaying enforcement or appeal. Ill. Rev. Stat. 1971, ch. 110A, par. 304(a).

This appeal involves the Illinois “long-arm” statute, namely section 17(1) (b) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 17(1) (b)) and its application to Mrs. Brown. The only issue presented is whether the trial court correctly decided that it did not have the power to obtain personal jurisdiction over her.

We affirm.

The relevant information before the trial court was as follows. Plaintiff, acting as administrator of the estate of Leslie Ann Stansell, brought a wrongful death action (Ill. Rev. Stat. 1971, ch. 70, pars. 1, 2)- in the circuit court of Cook County, Illinois, against International Fellowship, Inc. (International), a corporation, and Mildred M. Brown, as president of International and in her individual capacity. According to the allegations of plaintiff’s amended complaint International, was a New York not-for-profit corporation with its principal place of business in New York. Its business was arranging foreign exchange programs whereby students of one country visited another country for a period of foreign study. The complaint further alleged that International and Mrs. Brown solicited Leslie Ann Stansell at her high school in Illinois to participate in one of their programs. Pursuant to an agreement between Leslie’s mother and father, the plaintiff in this action, on the one hand, and International, on the other hand, Leslie was enrolled in the foreign exchange program. The complaint alleged that by virtue of this agreement International and Brown owed a duty to provide decedent with a reasonably safe means of transportation. The complaint further alleged that Brown, as president of International, was in charge of selecting the airlines used for transportation of the students. Plaintiffs theory was that Brown breached this duty by selecting an unsafe airline, L.A.N.S.A., to transport decedent between Lima and Cuzco, Peru and Brown knew or should have known that the selection of L.A N.S.A. would expose decedent to an unreasonable risk to her safety. The plane crash and decedent’s resultant death took place in Peru. The complaint alleged that the breach of duty proximately caused decedent’s death.

Brown and International were served with summons in New York pursuant to the Illinois “long-arm” statute (Ill. Rev. Stat. 1971, ch. 110, pars. 16, 17). International filed a general appearance, thereby submitting to the circuit court’s jurisdiction. In her special and limited appearance Brown moved to quash the service of summons on her and to dismiss the action as to her. She submitted an affidavit which stated that she did not act in Illinois, either individually or in her capacity as president of International, which could serve as the basis of the court’s jurisdiction over her. Plaintiff filed a counter-affidavit. Paragraph No. 6 of that affidavit recited “that the defendant, Mildred M. Brown, president of International, was in charge of the transportation program arranged by International and also in charge of the representations made inter aha by International as to its expertise in the field of transportation as shown by a letter addressed to all parents and students, marked Exhibit B and made a part hereof; that said letter was distributed to the decedent and her parents in the State of Illinois.” The attached copy of an orientation letter purportedly sent to the Stansells boasts of an “enviable record over the past years in the area of transportation of our students.” The copy of the letter does not show a signature. The name of Mildred M. Brown and other names appear on the letterhead under the heading “Board of Directors” where she is listed as president.

In this appeal plaintiff contends that jurisdiction over Mrs. Brown rests on section 17(1) (b) of the Civil Practice Act. He argues that the acts of Brown which form the basis of the cause of action against her constitute “the commission of a tortious act within this State.”

In Nelson v. Miller (1957), 11 Ill.2d 378, 143 N.E.2d 673, a case upholding the constitutionality of sections 16 and 17 of tire Civil Practice Act, the court held that sections 16 and 17 reflect a conscious purpose to assert jurisdiction over non-resident defendants to the extent permitted by the due process clause. However, there are limits, circumscribed by the due process clause, to the exercise of personal jurisdiction. (Gray v. American Radiator & Standard Sanitary Corp. (1961), 22 Ill.2d 432, 176 N.E.2d 761.) In Hanson v. Denckla (1958), 357 U.S. 235, 2 L.Ed.2d 1283, 78 S.Ct. 1228, the United States Supreme Court stated: “However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the minimal contacts’ with that State that are a prerequisite to its exercise of power-over him.” 357 U.S. at 251.

We must evaluate each case of contested jurisdiction on its particular facts and circumstances. There is no mechanical test. (Gray v. American Radiator & Sanitary Corp., supra.) While we are mindful of the expansive reach of section 17(1) (b), nevertheless there has not been a showing of sufficient “contacts” between the alleged tortious acts of Mrs. Brown and the State of Illinois to allow maintenance of the action in Illinois.

In determining whether Mrs. Brown committed a tortious act in Illinois within the meaning of the statute, we must examine the elements of plaintiffs theory of recovery. For the purpose of this appeal, we draw the distinction between whether sufficient jurisdictional facts exist and whether the complaint is good, as a matter of substantive law, against a motion to dismiss for failure to state a cause of action. The examination of jurisdictional facts involve a preliminary inquiry into whether the complaint states a cause of action. This is to insure that acts or omissions which form the basis of a cause of action that is patently without merit will not serve to confer jurisdiction. (See Nelson v. Miller, 11 Ill.2d at 393, 143 N.E.2d at 681.) Any findings made during this preliminary inquiry are not determinative if the same issues should arise on the merits. Ill. Rev. Stat. 1971, ch. 10, par. 20(2).

The basic elements of recovery under the Wrongful Death Act are a duty of defendant toward the deceased, a breach of that duty, and pecuniary damages resulting therefrom to persons designated by the Act. (Flynn v. Vancil (1968), 41 Ill.2d 236, 240, 242 N.E.2d 237, 241.) The amended complaint alleged that International and Mrs. Brown owed a duty to decedent to provide a reasonably safe means of transportation. This duty arose out of the performance of the agreement between decedent’s parents and International. We have found authorities which are sufficiently analogous so as to lend support to this theory. Stevenson v. Four Winds Travel, Inc. (5th Cir. 1972), 462 F.2d 899; McCall v. Overseas Tankship Corp. (2d Cir. 1955), 222 F.2d 441; Restatement (Second) of Torts §307 (1965).

Assuming that plaintiff has adequately stated a cause of action for purposes of this appeal, we proceed to discuss the connection between the tortious act and the State of Illinois. It is true, as plaintiff points out, that even though Mrs. Brown was president of International she was not insulated from liability for her own tortious acts. (McDonald v. Frontier Lanes, Inc. (1971), 1 Ill.App.3d 345, 357-58, 272 N.E.2d 369, 377; Kulesza v. Chicago Daily News, Inc. (1941), 311 Ill.App. 117, 125, 35 N.E.2d 517, 521.) Nevertheless, in this record, we can find no act or omission in Illinois on the part of Mrs. Brown. Even assuming that she was in charge of selecting the airline, this act was not performed in Illinois. Likewise, decedent’s death occurred in Peru.

Plaintiff argues that Mrs. Brown breached a duty which was created in Illinois by virtue of the fact that decedent’s parents signed the agreement with International in Illinois. Plaintiff also argues that the decedent’s next of kin were Illinois residents. These two factors are not sufficient contacts with Illinois to confer jurisdiction under section 17(1) (b). The first factor concerns where the contract was executed and has no bearing on the locus of the tortious conduct alleged during the performance of that contract by International. The second factor is equally unimportant. Unquestionably the Illinois legislature has entrusted to the courts an interest in securing for its citizens redress for torts committed in Illinois. However, there must be the minimum contacts between the tortious activity and Illinois so that maintenance of the action would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154.

The order of the circuit court of Cook County quashing service of summons and dismissing defendant Brown is affirmed.

Order affirmed.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIE RINGER

license: Public Domain

text:
    The County of Cook et al., Plaintiffs-Appellants and Cross-Appellees, v. George J. Priester et al., Defendants-Appellees and Cross-Appellants—(George J. Priester et al., Defendants-Counterplaintiffs and Cross-Appellants, v. The County of Cook et al., Plaintiffs-Counterdefendants and Cross-Appellees).
    (No. 58308;
    First District (4th Division)
    September 25, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and John A. Dienner, III, Assistant State’s Attorneys, of counsel), for appellants.
    Charles J. O’Connor and Rosemarie J. Guadnolo, both of Arvey, Hodes, Costello & Burman, of Chicago, for appellees.
   Mr. JUSTICE DIE RINGER

delivered the opinion of the court:

This action was instituted in the Circuit Court of Cook County against George J. Priester, Veta L. Priester,' and the Waukee Realty Company, Inc., to enforce the provisions of a special use permit issued by the County. The County sought a permanent injunction and statutory penalties in the form of fines for alleged violations of certain zoning special use restrictions at Pal-Waukee Airport.

The Village of Wheeling was permitted to intervene on the plaintiff’s behalf, but at the close of the plaintiff’s case the trial judge dismissed it from the case based on his finding that it lacked standing and that it failed to show any damages to itsélf or its residents.

The court, sitting without a jury, found the restrictions to be void and held in favor of the defendants'. The County instituted this appeal from that judgment, and the Village of Wheeling appeals from its dismissal. Subsequent tb the plaintiff’s filing of a notice of appeal, the'trial court amended its decree.' A supplementary notice of appeal was filed by the County, and the defendants filed a cross-appeal from the unamended prior decree.

The issues on appeal are whether restrictions on the weight of aircraft is a proper exercise of a State’s police power; whether the Village of Wheeling has authority to challenge the violations of the terms of a special use permit granted by Coolc County; and whether a trial court has jurisdiction to amend its final decree after a notice of appeal has been filed.

The defendants and counter-plaintiffs, George J. Priester, Veta L. Priester and the Waukee Realty Company, Inc., are the owners of PalWaukee Airport, a private airport open to the public, located in an unincorporated area of Cook County. The Village of Wheeling is located near, but not contiguous to the northern boundary of the airport.

Under the Cook County zoning ordinance enacted in 1940, the airport property was classified and developed as a permitted use. In 1960, the Cook County Board of Commissioners reclassified the property as M-I, a restricted manufacturing district, and the property was classified as an existing special use thereunder.' In 1963, the Priesters applied to the Zoning Board of Appeals of Cook County for an extension of their existing special use in order to extend Runway 34/16. After conducting public hearings the Board made its recommendation to the Commissioners, a legislative body of Cook County vested with the authority to amend zoning ordinances and to grant special uses by ordinance.

On March 16, 1964, the Commissioners enacted an ordinance granting the Priesters a special use permit to lengthen Runway 34/16 subject to three conditions: (1) Runway 34/16 was not to be extended beyond a total length of 5000 feet from the starting point of the existing runway near Hintz Road. (2) Runway 34/16 was to be constructed for a load-bearing capacity under regular service not to exceed 60,000 pounds. (3) The landing and take-off visual flight patterns for the extended runway should lie to the east of the Village of Wheeling.

In 1970 Cook County brought an action against the Priesters alleging violations of conditions 1 and 2 and sought injunctive relief and criminal fines. The Village of Wheeling filed a petition to intervene under section 26.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 26.1) and also filed a complaint seeking injunctive relief alleging violation of all three of the conditions. In addition to their answer the Priesters filed a counterclaim seeking to have the three conditions declared unconstitutional on various grounds and to enjoin their enforcement. At the close of the evidence presented by the County and the Village, the court dismissed the criminal counts of the County’s complaint because the County had failed to prove the allegations beyond a reasonable doubt, and dismissed the complaint of the Village with prejudice on the ground that the Village was without standing and had failed to present any evidence showing harm to itself or to its residents. It also ruled that a permanent injunction issued against the County of Cook restraining it from enforcing the ordinance.

Pal-Waukee is classified as a “secondary airport” which includes such airports as Milwaukee, Detroit and Minneapolis, and is also classified as a reliever airport to O’Hare under the National Airport Plan. Airports included in the National Airport Plan are deemed by the Department of Transportation to be related to the national interest.

The airport ranks 51st in the nation in terms of general aviation and 95th in total operations out of the approximately 5000 airports in the United States. It has a total of between 170,000 and 220,000 flight operations per year, and has 75,000 itinerant flight operations. Itinerant flights are those which originate and terminate at different points and generally involve flights of substantial distance. Because of the heavy air traffic in the Chicago area, safety factors compel the Federal Aviation Administration to operate a tower at Pal-Waukee. It is only one of three privately owned airports in the country at which the FAA provides control tower service. The control tower is open from 6 A.M. until midnight, and during that time controls all ground movement, flight patterns, take-offs and landings of aircraft using the airport. When the tower is closed, aircraft using the airport are under the direction and control of the tower at O’Hare International Airport.

There are 350 to 400 aircraft based at Pal-Waukee, most of which are general aviation aircraft used for business purposes and owned by corporations. Four of these are jet aircraft weighing in excess of 60,000 pounds.

Charter flights land there on occasion, but there are no public airlines serving Pal-Waukee directly. The airport is also the headquarters of the Civil Air Patrol.

Runway 34/16 is one of the longest runways in the Chicago area with the exception of O’Hare. The longest runway at Midway Aiqport is 5678 feet long, Meigs Field has a maximum runway of 3345 feet, and DuPage County Airport has a runway of 4000 feet.

The airport is equipped with blast fences at the ends of Runway 34/16 to disperse aircraft exhaust as a protection for the nearby automobile traffic, and there are cement aircraft turn-around areas at each end of the runway that also serve as blast pads to eliminate the blowing of dust and debris. The airport is also equipped with Vasi lights, visual strobe-fight indicators, used to guide approaching aircraft, and the runways are equipped with high-intensity landing fights.

Prior to the extension of Runway 34/16 the largest aircraft using the airport was a DC-3, which weighed approximately 60,000 pounds when fully loaded with fuel and passengers or freight and no jets were in use.

The evidence at trial showed the runway was constructed with a load-bearing capacity of 60,000 to 75,000 pounds, and one aircraft, a BAC-111, has used the runway while weighing 79,000 pounds.

The County appeals from the judgment of the circuit court only with respect to the alleged violation of the 60,000-pound weight limitation. It states a zoning ordinance is-presumptively valid, and one who challenges it must prove by clear arid convincing evidence that it is arbitrary and Unreasonable. It contends there was no evidence presented to rebut the presumption that the 60,000 pound limitation was a saféty factor to the surrounding landowners, users, and passengers of users of the airport.

The County argues that even, though the FAA is the dominant authority in control of the national airspace, it does not exercise exclusive control over all aspects of aviation and airport regulation, and has never attempted to control the weight of an aircraft. The County maintains it has a legitimate interest and duty to protect the citizens living in the area surrounding the airport and is free to regulate activities within its boundaries which directly affect the public health, welfare and safety of its citizens.

It denies that navigable airspace is involved and denies the weight limitation is in contravention of the general Federal policy which speaks of developing safety within the air industry (49 U.S.C. 1303 (a) and (c)). The policy of the State of Illinois is to encourage air travel development “with the least possible restriction, consistent with their safety and with the safety and the rights of others.” Ill. Rev. Stat. 1971, ch. 1572, § 22.25.

The County • argues with regard to priblic safety, but does not state how the safety of the public is impaired by the operations of PalWaukee Airport. It suggests that heavier aircraft are more of a hazard to the community than lighter planes, yet the heavier, high-performing ■ aircraft are equipped with the latest navigational and guidance systems and are flown by pilots with more experience than the lighter, lesser ■equipped.planes; .This court takes note that Midway Airport in Cook 'County, as well as many other busy airports throughout the country, are located in areas more densely populated than that surrounding PalWaukee. ...

We find the restrictions are in contravention of the stated policies of both the, Illinois Aeronautics Act (Ill. Rev. Stat. 1971, ch. 1572, § 22.25) and the National Airport Plan (49 U.S.C. § 1301 et seq.). The purpose of the Illinois Aeronautics Act is to “further the public interest and aeronautical progress * * * by cooperating in effecting a uniformity of laws relating to * * * aeronautics in the several states # # The National Airport Plan envisions a full utilization of the nation’s airports. ...

The 60,000 pound weight restriction would neither promote uniformity of laws nor would it promote full utilization of its facilities. The inflexible standard would also discourage aviation technology from improving the capability of aircraft.

The effect of the ordinance is to manipulate the type and number of aircraft which Pal-Waukee may service in that it regulates air traffic beyond the boundaries of the county, under the guise of land use control. As a reliever airport to O’Hare under the National Airport Plan, and as an airport with substantial itinerant flight volume, its impact on aviation and interstate commerce is substantial, and is properly a subject of Federal regulation. If a number of airports were subject to the same type of limitations, the results would be chaotic.

• Section 1508 of the Federal Aviation Act (49 U.S.C. § 1508) provides in part: “The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States * * By sections 1348 (a) and (c) the Administrator of the FA A has been given broad authority to regulate the use of the navigable airspace, “in order to insure tibe safety of aircraft and the efficient utilization of such airspace #

In the case of Northwest Airlines, Inc. v. Minnesota (1944), 322 U.S. 292, 303, Mr. Justice Jackson’s concurring opinion stated:

“Federal control is intensive and exclusive. Planes do not wander about in the sky like vagrant clouds. They move only by federal permission, subject to federal inspection, in the hands of federally certified personnel and under an intricate system of federal commands. The moment a ship taxis onto? a runway it is caught up in an elaborate and detailed system of controls.”

In the case of City of Burbank v. Lockheed Air Terminal, Inc. (1973), 411 U.S. 624, the owner and operator of an airport brought suit against the city seeking a judgment declaring the invalidity of a city ordinance prohibiting jet aircraft from taking off between the hours of 11 P.M. and 7 A.M. the following morning. The circuit judge held that the pervasiveness of federal regulation in the field of air commerce, the intensity of the national interest in that regulation and the nature of air commerce itself compelled the conclusion that state and local regulation in that area had been pre-empted. The Supreme Court affirmed, based on the pervasiveness of the Federal Aviation Act (49 U.S.C. § 1301 et seq.) The Court quoted the district court as follows:

“The imposition of curfew ordinances on a nationwide basis would result in a bunching of flights in those hours immediately preceding the curfew. This bunching of flights during these hours would have the twofold effect of increasing an already serious congestion problem * * * by increasing flights in the period of greatest annoyance to surrounding communities. Such a result is totally inconsistent with the objectives of the federal statutory and regulatory scheme.” 411 U.S. at 627-628.

It also found “[t]he imposition of curfew ordinances on a nationwide basis would cause a serious loss of efficiency in the use of navigable airspace.”

The county nevertheless maintains that a local authority may make regulations which have the effect of curtailing activities not forbidden by federal regulation, citing the case of Aircraft Owners & Pilots Association v. Port Authority, 305 F.Supp. 93 (E.D.N.Y. 1969). That case is not applicable because there the power sustained by the court was not the result of the operation of police powers, but of a proprietary power vested in the Port Authority. This distinction was recognized in both the opinion of the Justices (1971), 271 N.E.2d 354, and in City of Burbank v. Lockheed Air Terminal, Inc. (1973), 411 U.S. 624, aff’g 457 F.2d 667.

We hold that the level of Federal regulation of air commerce by the Federal Aviation Agency is so pervasive as to deprive other governmental bodies of the power to act, and that the weight limitation ordinance violates the supremacy clause of article VI of the Constitution of the United States.

We also find the County had no authority to regulate the weight of the aircraft under the color of its power to regulate land use because a State’s police power does not extend to the regulation of a business. The details of operating a business are not reasonably related to the public health, safety, or welfare as required by Village of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365; and Schultz v. Village of Lisle (1972), 53 Ill.2d 39.

In the case of Naper Aero Club v. County of DuPage (1964), 30 Ill.2d 447, the county permitted a parcel of land to be used as an airstrip, but attached the condition limiting the use of the airstrip to landowners in a certain subdivision. The Illinois Supreme Court held that residence requirements bore no relationship to the use of the land and was therefore not a proper zoning consideration.

We also agree with the case of Schlosser v. Michaelis (1963), 18 App. Div. 940, 238 N.Y.S. 2d 433, where a wholesale florist was allowed to operate his business subject to limitations upon the number of employees, hours of operation, and upon the weight capacity of trucks stored outside the building. The court stated:

“In our opinion, the Board of Zoning Appeals here had no power to impose the aforementioned conditions. Such conditions applied to the details of the operation of the business and not to the zoning use of the premises.” 18 App. Div. 2d at 941, 238 N.Y.S. 2d at 434-435.

Also, see De Ville Homes, Inc. v. Michaelis (1960), 201 N.Y.S.2d 129.

In this case the size of the aircraft using the airport relates to the operation of the business as distinguished from the regulation of the land use itself.

The Village of Wheeling was permitted by the court to intervene pursuant to section 26.1 of fire Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, § 26.1.) The Village relied on section 3160 of the Counties Act (Ill. Rev. Stat. 1971, ch. 34, §3160), which provides that anyone whose property is affected by the use of land in violation of section 3151 et seq. of the Counties Act may institute any appropriate action in equity to prevent such unlawful use or to prevent any illegal act, conduct, business or use in or about such premises.

In dismissing the Village the court determined the Village had failed to show any harm to itself or its residents and that it lacked standing to challenge the acts of the defendants citing the following cases: Village of Bensenville v. County of DuPage (1961), 30 Ill.App.2d 324; Village of Mount Prospect v. County of Cook, (1969), 113 Ill.App.2d 336; Krembs v. County of Cook (1970), 121 Ill.App.2d 148.

The Village seeks to distinguish those cases based on the fact that in those cases the Villages were attacking County zoning, and in this case the Village is seeking to uphold the County zoning. The Village also states that in none of those cases is section 3160 of the Counties Act discussed.

After reviewing those cases it is apparent they stand for the proposition that a Village is without standing to litigate with respect to county zoning without reference to whether the Village seeks to attack or uphold.

Section 3160 of the Counties Act is not helpful to the Village because it provides that “any person the value or use of whose property is or may be affected by such violation, in addition to other remedies, may institute any appropriate action or proceedings in equity.” In this case the Village was not dismissed until the close of the plaintiff’s case and had the opportunity to show harm to itself or its residents, but did not do so.

Under section 3160 of the Counties Act, tire property owner must prove injury, and the mere showing of an alleged technical violation is not sufficient. (222 East Chestnut Street Corp. v. La Salle National Bank (1957), 15 Ill.App.2d 460.) We hold the order dismissing the Village of Wheeling was correct and is hereby affirmed.

Finally, the County contends the trial court was without jurisdiction to mod fy its final decree. On July 13, 1972, the trial court entered its original decree which declared the 60,000-pound weight limitation unconstitutional and imposed an 80,000-pound limitations. The 80,000-pound ' limitation was entered in an attempt to settle the litigation between the parties, and the trial court stated its hope that it would accommodate both parties.

The County filed its notice of appeal on July 27, 1972, and on August 1, 1972, the Priesters filed a motion to modify the decree on the basis that the 80,000-pound limitation was also invalid as an interference in an area which had been federally pre-empted.

On August 10, 1972, the Priesters filed a notice of cross-appeal from the portion of the decree entered on July 13, 1972, which provided for the 80,000-pound limitation.

On August 15, 1972, the trial court issued a modified decree which eliminated the 80,000-pound limitation on the use of the runway.

The County contends the court was without jurisdiction to modify the decree because the filing of its notice of appeal from the original decree divested the jurisdiction of the trial court, and cites language of Illinois Supreme Court Rule 301 (Ill. Rev. Stat. 1971, ch. 110A, § 301), which states that “the appeal is initiated by filing a notice of appeal. No other step is jurisdictional.”

The position of the defendants is that Supreme Court Rule 301 provides that every final judgment of the circuit court is appealable and that the appeal is initiated by filing a notice of appeal, but under section 68.3 the finality of the judgment is extended. Section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, § 68.3) provides:

“(1) In all cases tried without a jury, any part may, within 30 days after the entry of the decree or judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the decree of judgment or to vacate the decree or judgment or for other relief. Neither the filing of nor the failure to file a motion under this section limits the scope of review.
(2) A motion filed in apt time stays execution, and the time for appeal from the decree of judgment does not begin to run until the court rules upon the motion.”'

We find no merit in defendants’ contention that the above-mentioned section 68.3 extends the jurisdiction of the trial court after a notice of appeal is filed. In City of Chicago v. Myers (1967), 37 Ill.2d 470, at page 472, the court said:

“The jurisdiction of the appellate court attaches upon the proper filing of a notice of appeal. Thereafter, excepting certain instáncés not here concerned, the cause is beyond the jurisdiction of the trial court. This court in Brehm v. Piotrowski, 409 Ill. 87, 90, declared: ‘Filing of a notice of appeal within due time causes jurisdiction of the reviewing court to attach instanter and deprives the lower court of jurisdiction. Also, this court does not possess the jurisdiction to review proceedings of the lower court which happened after the notice of appeal was filed and served. (Wolcott v. Village of Lombard, 387 Ill. 621.)’ See also, People ex rel. Doty v. Dusher, 24 Ill.2d 309.”

For these reasons the amended decree is invalid and is hereby reversed.

We further consider the original decree and it becomes obvious the ruling establishing the 80,000-pound limitation is just as erroneous as the 60,000-pound limitation. Therefore, that part of the decree is reversed and the decree is modified accordingly. In all other respects the decree is affirmed.

The original decree is affirmed as modified. The modified decree entered after the notice of appeal was filed is reversed, vacated and set aside as invalid. The order dismissing the Village of Wheeling is affirmed.

Original decree affirmed; modified decree reversed; and order dismissing the Village of Wheeling affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE DIXON

text:
    Spaulding Elementary School District No. 58, Lake County, et al., Plaintiffs-Appellants, v. County Board of School Trustees of Lake County et al., Defendants-Appellees.
    (No. 73-151;
    Second District
    October 7, 1974.
    N. E. Hutson, of MonticeUo, for appeUants.

      Jack Hoogasian, State’s Attorney, and Lonchar & Nordigan, both of Waukegan, and Franke & Miller, of Chicago, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Lake County, Illinois, entered in administrative review proceedings, which affirmed orders of the County Board of School Trustees of Lake County attaching territory of a dissolved high school district, and underlying parts of two elementary districts, to an adjoining community unit district.

Waukegan Township High School District No. 119, in Lake County, failed for 2 consecutive years to maintain a school within its boundaries, and so it became automatically dissolved by reason of section 5 — 32 of the School Code. (Laws of Illinois 1967, p. 3396, § 1, now Ill. Rev. Stat. 1973, ch. 122, § 5 — 32, as amended.) It then became the duty of the County Board of School Trustees of Lake County to attach the territory of High School District No. 119 to some other district or districts, under section 7 — 11 of the School Code. (Ill. Rev. Stat. 1973, ch. 122 § 7 — 11.) Underlying High School District No. 119 were parts of two grade school districts, Spaulding Elementary School District No. 58 and Beach Park Community Consolidated School District No. 3, both of which maintained schools. A hearing was held by the County Board of School Trustees, as provided by section 7 — 11, and two orders were then entered by the Board. One of those orders dealt with that part of dissolved District No. 119’s territory which overlay Elementary District No. 58, and the other dealt with that part of District No. 119’s territory which overlay District No. 3. The two orders attached both of those areas, comprising all the territory of dissolved District No. 119, to the Waukegan Community Unit School District No. 60 which adjoined.

Elementary District No. 58, its board of education, and a group of persons residing in that part of its territory underlying dissolved District No. 119, then filed a complaint for administrative review, naming as defendants the County Board of School Trustees and other school districts and boards affected by its two orders. The plaintiffs wanted to prevent the division of their district and the disappearance of that part which underlay District No. 119 and was to be absorbed into the community unit district. They sought, therefore, to have High School District No. 119’s territory annexed to another high school district which also adjoined, Warren Township High School District No. 121, rather than to the unit district. This would have left the underlying grade school districts undisturbed. (See Community Unit School District No. 2 v. Moore, 46 Ill.App.2d 14, 21.) However, in the administrative review proceedings the action taken by the County Board of School Trustees was upheld, and so the plaintiffs have now appealed to this court.

The plaintiffs claim that the County Board of School Trustees and the circuit court misconstrued and misapplied the School Code, and that the findings and orders of the Board were not supported by the evidence but were against the man'fest weight of the evidence. We must therefore consider both the statutes and decisions applicable in this case and the evidence which was offered at the hearing before the Board.

It is the position of the plaintiffs that where a nonoperating high school district has been dissolved and it is adjoined by both a community unit district and another high school district, its territory must be attached to the like district so as not to destroy the underlying common school district or districts, by reason of what was said in the op'nion rendered by this court in Commun'ty Unit School Dist. No. 2 v. Moore. The defendants rely on our narrower holding in that same case as authority supporting what was done in the case now before us.

In Moore we similarly considered the dissolution of a high school district under section 5 — 32 for failure to maintain a high school for two consecutive years, and the ■ annexation of its territory to adjacent unit districts under section 7 — 11. Underlying was a functioning grade school district, like District No. 58 except for having exactly the same territorial boundaries as the high school district. Only unit districts adjoined, so the grade school district was imperilled. We upheld the annexation, and held that tire underlying elementary district was thereby destroyed, although we acknowledged that the legislature had not specifically provided for this result in section 7 — 11. In effect we imported language from section 7 — 27 of the School Code (Ill. Rev. Stat. 1973, ch. 122, §7 — 27), which deals in a similar way with annexation of territory eliminated from a non-high school district rather than territory of a dissolved nonoperating district, and which specifically states that upon the annexation of such territory to a district maintaining grades 1 to 12, inclusive, the underlying elementary district automatically becomes part of the district to which the territory is annexed. Statutes in pari materia should be construed together, and a provision omitted from one of them may be borrowed from another. (Scofield v. Board of Education, 411 Ill. 11, 20; Ketcham v. Board of Education, 324 Ill. 314, 317; People ex rel. Shriver v. Cowen, 283 Ill. 308, 315.) Thus Moore establishes that under the School Code a county board of school trustees does indeed have the power, by attaching the territory of a dissolved nonoperating high school district to an adjoining unit district, to end the independent existence of an underlying grade school district.

The plaintiffs point out, however, that in Moore this court said: “It would appear that the territory of High School District No. 18 could have been attached to a high school district or districts adjoining it without disturbing the legal status of 103. But no such districts adjoin. 18 is entirely surrounded by Unit School Districts.” (46 Ill.App.2d at 21.) The plaintiffs take this to mean: “If the territory of High School District No. 18 could have been attached to a high school district or districts adjoining it, that should have been done so as not to disturb the legal status of 103.” But this is not what was said, and Moore should not be considered to have established the proposit'on that preservation of the legal status of an underlying common school district is an imperative, or even an item which should receive consideration along with those other matters which section 7 — 11 of the School Code requires a county board of school trustees to take into consideration. We therefore hold that in the case before us the County Board of School Trustees of Lake County had the power to annex High School District No. 119’s territory to a community unit district though another high school district also adjoined, and pass on to the question of the propriety of its exercise of that power on the evidence presented.

We have reviewed the testimony, and it appears to us that there was adequate evidence to support the County Board in its findings. The testimony showed that Waukegan’s Community Unit School District No. 60 offered a much more comprehensive and diversified high school program than High School District No. 121; was the place where students from dissolved District No. 119 were already attending high school; and had planned to continue using the grade school buildings in the annexed territory for handling elementary students. On the other hand, High School District No. 121 was already experienc'ng a financial crisis; had no room for more students, nor extra busses and drivers to transport them; and officially opposed the annexation of dissolved District 119’s territory to District 121. The desire of the parents residing in that part of Elementary District No. 58 underlying dissolved District No. 119 to retain local control of their grade school was not something that could or should have been considered by the County Board under section 7 — 11. (Cf. Board of Education v. County Board of School Trustees, 12 Ill.App.2d 93.) We find that the County Board considered those things which the legislature directed it to consider in section 7 — 11 of the School Code, and that its findings and orders were supported by the evidence and were not against the manifest weight of thé evidence. We therefore affirm the order of the Circuit Court of Lake County which affirmed the orders of the County Board of School Trustees.

Order affirmed.

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


author: Mr. JUSTICE MILLS

text:
    William Fisher, Plaintiff-Appellant, v. Jerry Rhodes et al., Defendants-Appellees.
    (No. 74-33;
    Second District
    October 8, 1974.
    Redman, Shearer, O’Brien & Blood and Raymond F. Agrells, both of St. Charles, for appellant.
    Roy Safanda, of St. Charles, for appellees.
   Mr. JUSTICE MILLS

delivered the opinion of the court:

Procedure. That is the sole issue here posed. Whether or not the procedural vehicle employed was proper.

But first, the facts. Chronologically, the somewhat garbled factual events went thusly: Fisher, as agent for Trust #173, and Rhodes entered into a crop lease on 42 acres of land in Kane County for the crop year 1969-70 at a rental figure of $30 an acre. On March 11, 1970, Fisher obtained a judgment against Rhodes on the lease in the amount of $1,260 plus court costs and the order directed Rhodes to satisfy the entire judgment “within 30 days from the date of harvest of soybeans” on the leased farm land. Thereafter contempt proceedings were instituted against Rhodes, but before the sheriff was able to execute upon the contempt mittimus, the Rhodeses filed in bankruptcy in the Northern District of Illinois on September 14, 1970, and the referee issued a restraining order that same date. On October 5, 1970, Agent Fisher filed a memorandum of his judgment with the recorder of deeds and on November 20, 1970, the Rhodeses were discharged in bankruptcy. Apparently the Rhodeses were unaware that the memorandum of judgment had been filed until July 13, 1973, nearly Ska years after judgment, when they learned of the cloud on the title to other real property they were purchasing. Thereafter, the Rhodeses filed, in the subject cause of action, a motion to quash the writ of execution. This was denied and on October 24, 1973, Rhodes filed a petition to vacate pursuant to section 72 of the Illinois Civil Practice Act, reciting the fact that the Rhodeses were adjudicated bankrupt after entry of the judgment. This petition to vacate was allowed on November 21, 1973, and the judgment was “vacated and rendered null and void.” Fisher appeals and there is no cross-appeal.

The judgment order itself is in no way questioned by either of the parties to this appeal. It was duly entered by a magistrate, filed by the clerk on the same date, reflected that both parties were in open court, recited the judgment and amount, and ordered Rhodes to pay by a specific time, from a particular source. Whether the Rhodeses were charged with constructive knowledge of the filing of the memorandum of judgment, or whether under the circumstances in this cause such filing constituted a lien on real property, or whether the judgment debt was properly scheduled in the bankruptcy petition, or whether the filing of the memorandum was in violation of the adjudication of bankruptcy or whether the motion to quash execution after bankruptcy should have been allowed — these are not questions which fall within the pale of this appeal. The sole and only issue is: Should the trial court have allowed the section 72 petition to vacate and rendered the original judgment null and void?

Procedure, to be sure, is never an end in itself — it is only a means to a substantive finale. Procedure was defined by Lord Justice Lush, in Poyser v. Minors (1881), 7 Q.B.D. 329, 333, as the mode of proceeding by which a legal right is enforced, as distinguished from the law which gives or defines the right, and which, by means of the proceeding, the court is to administer; the machinery, as distinguished from its product. And in Mahoning Valley Ry. Co. v. Santoro (1915), 93 Ohio St. 53, 56, 112 N E. 190, 191, procedure was held to be that which regulates the formal steps in an action or other judicial proceeding; a form, manner, and order of conducting suits or prosecut:ons.

Every cause of action, of course, should be determined upon its own substantive merits, and obviously this is the preferred method of disposition, However, rules of practice and procedure are an absolute necess'ty in order to expeditiously arrive at an orderly substantive conclusion. Constitutional, statutory, decisional and court adopted rules and precepts of practice are intended to so channel and direct the flow of litigation that efficient and expeditious disposition can be achieved commensurate with substantive justice — the true end of our system of jurisprudence. Yet, if such procedural rules did not exist, and were not adhered to by parties and enforced by judges, the machinery of justice would not only grind more slowly, but indeed would cease to turn at all. No court relishes dismissing a suit for procedural acts of commission or omission, but failure to adhere to procedural requirements adopted for the purpose of expediting judicial workloads can have but one result: expanding the very problem that such rules were created to resolve.

Now to the procedural question before us. The joint committee comments and historical notes to the Illinois Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110) make it apparent that section 72 was created to furnish a comprehensive yet simple procedure in all equity, law and statutory proceedings, whereby a party may seek relief from a final judgment after 30 days from the entry thereof and after the time for appeal has expired. The variety of post-decree and judgment remedies that were formerly available at common law and by statute, such as writs and bills of review, were at once abolished and their purposes incorporated into this single petition. The reasons and grounds for seek'ng such relief from final orders after appeal time has passed, however, have been finely honed by the plethora of decisions of the reviewing courts in Illinois. Section 72 was not intended to perpetuate the life of litigation that has wound its way through regular court process, nor does it tolerate the reliance upon new legal theories of attack. The grounds and reasons which prior to the adoption of the Civil Practice Act supported the granting of relief under the old writs and bills of review (such as death, lack of jurisdiction, fraud, errors of law apparent on the face of the record, etc.) continue to be supportive under section 72. It has been repeatedly held that one purpose of this proceed'ng is to permit .a party to bring to the attention of the court factual matters which do riot appear of record and which, if known to the court at the time of the entry of judgment, would have prevented its rendition. However, it was never intended that this procedural provision should afford a l'tigani' a fresh opportunity to do that which he should have accomplished in an earlier proceeding, or to relieve him from the consequences of his own negligence. Nor does section 72 contemplate that it may be used as.a substitute vehicle for a right to appeal where a party failed to perfect h:s appeal within the proper time frame. Furthermore, although a petition hereunder is filed in the original action it is not a continuation thereof but is an entirely new action and proceeding, subject to the same rules of pleading as any other civil case or action, and petitioner must allege and prove a right to the relief that he seeks. Petitioner must not only state a cause of action but he must demonstrate that the failure to reveal the error of fact, or other ground for relief, to the court prior to judgment was not due to his own fault or negligence. See Calabrese v. Hatlen Heights Server & Water Co., 34 Ill.2d 483. 216 N.E 2d 145 146; Petrauskas v. Motejunas, 133 Ill.App 2d 293. 272 N.E.2d 895. 807-808; Muntz v. Wamsley, 127 Ill.App.2d 410, 262 N.E 2d 295, 297; Danforth v. Checker Taxi Co., 114 Ill.App.2d 471, 253 N.E 2d 114, 116; In re Petition to Annex Certain Territory, 42 Ill.App.2d 432 192 N E 2d 553, 556; Adelhart v. Adelhart, 34 Ill.App.2d 79. 180 N E.2d 209, 212; Fennema v. Vander Aa, 42 Ill.2d 309, 247 N.E.2d 409, 410; Brockmeyer v. Duncan, 18 Ill 2d 502. 165 N.E.2d 294, 296.

In addition to the above substantive and procedural requirements of a portion under section 72 the general assembly has imposed a statute cf limitations upon its filing. The petition must be filed not later than 2 years after entry-of the order be'ng challenged, and disability or duress of the person seeking relief and fraudulent concealment of the ground for relief are the only exceptions set forth which will toll the time. The reviewing courts of Ill'no's have mrformly held that this requirement is mandatory, that any petition under section 72 must be filed w'th'n the 2-year statutory period and a motion to dismiss the petition on this ground is entirely proper. (Withers v. People, 23 Ill.2d 131, 177 N E 2d 203. 205; Irving v. Rodriquez, 27 Ill.App.2d 75, 169 N.E.2d 145, 146.) And it is an established rule regarding statutes of limitations that no exceptions thereto will be implied for if the legislature had intended to except any class of persons from the effect of the statute, it would have done so and courts will not assume such authority or dominion. “Undoubtedly a hardship will result in many cases under this rule, but the court may construe only the clear words of the statute, and if its scope is to be enlarged, the remedy should be legislative rather than judicial. It is not for judicial tribunals to extend the law to all cases coming within the reason of it, so long as they are not within the letter. And whether, under a given set of facts, a statute of limitations is to be tolled, is a question of legislative intent as to whether the rights shall be enforceable after the prescribed time.” 51 Am.Jur.2d Limitation of Actions §138, at 708-709 (1970); Morgan v. People, 16 Ill.2d 374, 158 N.E.2d 24, 27.

The subject petition to vacate under section 72 contains no allegation that a meritorious defense existed against the judgment itself, is unsupported by any accompanying affidavit, and merely sets forth the fact “that subsequent to the entry of said judgment” the Rhodes were adjudicated bankrupt. We have no hesitation in holding that the judgment sought to be vacated is not open to review in this manner for two manifest reasons: (1) the petition was filed over 372 years after tire entry of the order sought to be vacated and no statutory standard for the tolling of the 2-year statute of limitations was presented, and (2) the petition itself fails to comply with any of the statutory and decisional standards traced herein and is totally defective for failure to state any ground for relief.

Ergo, we answer our initial inquiry in the negative — the procedural vehicle selected by petitioners was unavailable to them and the judgment order was not susceptible to challenge by a section 72 petition. This opinion, however, is not to be interpreted as to preclude appellees from pursuing whatever state or federal avenues remain open to them regarding the effect of bankruptcy on the instant judgment. We in no way entertain this matter on such merits; we merely hold that the precise procedure selected was improper.

Reversed and remanded for reinstatement of the judgment herein.

STOUDER, P. J., and ALLOY, J., concur.


author: Mr. JUSTICE KASSERMAN

text:
    Raymond Andersen, Individually and as Adm’r of the Estate of Myrtle Andersen, Deceased, and as Parent and Next Friend of Laura Beth Andersen, a Minor, Plaintiff-Appellant, v. James Wirt et al., Defendants-Appellees.
    (No. 73-278;
    Second District
    October 8, 1974.

      James J. Hermann, Jr., of Hall, Meyer, Fisher, Holmberg, Snook. & May, of Waukegan, for appellant.
    Wasneski, Yastrow, Kuseski & Flanigan, of Waukegan, for appellees.
   Mr. JUSTICE KASSERMAN

delivered the opinion of the court:

The question presented by this appeal is whether a party selling real estate under an installment sales contract is subject to liability on an action brought under the Illinois Dram Shop Act.

Plaintiff instituted action against the defendant, James Wirt, under the Wrongful Death- Act and against all other defendants under the Dram Shop Act. Plaintiff joined as defendants Arnold Nolan, as the licensee and operator of premises utilized for the sale of alcoholic liquor to the general public, John Lee Williams, as administrator of the estate pf John Taylor, deceased, who was the beneficiary of a land trust covering said premises and as contract seller of said premises, and Richard F., Beshack and David Lindskog as contract buyers. Defendant First National Bank of Waukegan was sued as trustee under a land trust covering the premises in which John Taylor was the original owner of the beneficial interest and to whose interest John Lee Williams succeeded as administrator by reason of his appointment upon the death of John Taylor.

/' After hearing arguments on a motion to dismiss, the trial court dismissed the complaint as to the First National Bank of Waukegan and John Lee Williams, as administrator of the estate of John Taylor, deceased. No appeal was perfected from the order dismissing the complaint as to the defendant bank; however, this appeal was filed on behalf of plaintiffs and relates only to the, order of the court dismissing the complaint as to the defendant John Lee Williams, as administrator of the estate of John Taylor, deceased.

The land trust agreement by which John Taylor retained the bene1 ficial interest was entered into on January 5, 1961, and provided that Taylor, as beneficiary, retained the power to direct disposition of the title to the property and the right to receive or direct the disposition of the proceeds from rentals and from mortgages, sales or other disposition of sa'd premises. On November 14, 1968, at the direction of Taylor, the bank, as trustee, entered into articles of agreement for warranty deed with one Mark Margoian who subsequently assigned his interest in the contract to the defendants Richard E. Beshack and David Lindskog. The contract was approved by Taylor, who at the time knew that the premises had been and would continue to be utilized for the sale of alcoholic beverages to the general public.

The assignment from Margoian to the defendants Richard F. Beshack and David Lindskog was prior to the occurrences which gave rise to the filing of the complaint in this cause, and John Lee Williams was appointed administrator of the estate of John Taylor upon his death prior to the institution of this action.

The Dram Shop Act provides as follows: “Every person who is injured in person or property by any intoxicated person, has a right of action in his own name, severally or jointly, against any person who by selling or giving alcoholic liquor, causes the intoxication of such person. Any person owning, renting, leasing or permitt'ng the occupation of any building or premises with knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused the intoxication of any person, shall be liable, severally or jointly, with the person selling or g'v'ng the liquors. * * * An action shall lie for injuries to means of support caused by an intoxicated person or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid.” (Ill. Rev. Stat. 1971, ch. 43, par. 135.)

Appellee argues that a contract seller is not an owner under the provisions of the Dram Shop Act but rather, from the dafe of the entry of the contract, he becomes a lien holder or mortgagee and argues that a contract seller has no rights or powers with respect to the possession, control or use of the real estate after the entry of the contract. Shay v. Penrose, 25 Ill.2d 447, 449, 185 N.E 2d 218, 219, 220 (1962); Wahl v. Fairbanks, 405 Ill. 290, 293, 90 N E 2d 735, 736, (1950); Anderson v. Cosmopolitan National Bank, 132 Ill.App 2d 307, 311, 270 N.E 2d 254, 256 257 (1971); Anderson v. Cosmopolitan National Bank of Chicago, 54 Ill.2d 504, 301 N.E.2d 296, 298, 299 (1973); Robinson v. Walker, 63 Ill.App 2d 204, 207, 208, 211 N.E.2d 488, 499, (1965); and Castle v. Fogerty, 19 Ill.App. 442, 444 (1885), are cited in support of this contention.

It is our opinion that the beneficiary under the trust in the case at bar occupies the same position as a seller under a contract deed in which no Rust agreement is involved. Tire trustee holds naked legal Rtle to the real estate as trustee for the beneficiary who historically has been viewed as the equitable owner of any real estate covered by the trust agreement. The fact that the trustee in this case bore no responsibility for the possession, control or use of the premises is evidenced by the fact that the trial court sustained a motion to dismiss the complaint as to the defendant trustee and no appeal was taken from that order.

Appellee contends that the principal of equitable conversion should be applied and that, as a result.thereof, John Lee Williams, as administrator of the estate of John Taylor, holds beneficial title to the premises in question in trust for Richard F. Beshack and David Lindskog, assignees of the buyer. Shay v. Penrose, 25 Ill.2d 447, 449, 185 N.E.2d 218, 219, 220 (1962), and Wahl v. Fairbanks, 405 Ill. 290, 293, 90 N.E.2d 735, 736 (1950), are cited in support of this argument In Shay v. Pen-rose, the appellate court held that the principal stems from the basic equitable principal that equity regards as done that which ought to be done; and in that case the court decided that real estate sold on contract was not the subject of partition because an equitable conversion had taken place at the time of execution of the contracts for sale and the seller no longer possessed an interest subject to partition. In Wahl v. Fairbanks the supreme court held that an equitable conversion had resulted in order to effect the true intention of the parties to a contract to sell real estate who later erroneously caused a deed to be prepared in which buyers received title as tenants in common instead of as joint tenants as provided in the contract. The court there concluded that the buyers in the contract acquired title to the premises as joint tenants at the time of execution of the contract by reason of an equitable conversion.

The question presented by this appeal was considered by the Appellate Court, First District, in the case of Wendt v. Richter, 17 Ill.App.3d 230 (1974), in which it was held that there is no uniform meaning to the term “owner” as used in the Dram Shop Act and that consideration must be given to the nature and purpose of the statute involved. The court further found that the Dram Shop Act is designed to fulfill a need for discipline of traffic in liquor and to provide a remedy for the evils and dangers which flow from such traffic, quoting Osinger v. Christian, 43 Ill.App.2d 480 (1963). The court then examined the articles of agreement for warranty deed and held that the seller had retained sufficient control of the premises in question to classify her as an owner. In restating the provisions of the articles of agreement, the court stated:

“Paragraph four of the articles of agreement prohibited the purchaser from transferring or assigning any interest in the agreement, or subletting or leasing the premises, without the written consent of the defendant. Paragraph five of the agreement provided that no right, title or interest, legal or equitable, would vest in the purchaser until the defendant delivered the deed. No such delivery was made. The defendant was the beneficiary of a land trust and, as such, was the equitable owner of the dram shop premises. The articles of agreement for warranty deed vested no title, legal or equitable, in the purchaser until delivery of the deed. The defendant, therefore, did not divest herself of her equitable title by entering into the agreement. The defendant retained sufficient control of the premises in question to be held liable as an ‘owner under the Dram Shop Act. Holding the defendant liable will provide ‘discipline of traffic in liquor and will serve the purpose of the Dram Shop Act.” 17 Ill.App.3d at 232.

The court then reiterated that the seller had waited over 4 years from the filing of suit before disclosing the articles of agreement with the purchaser, who was operating a tavern on the premises the entire time. It stated that the buyer had settled her case as operator during the pendency of the suit and held that if the buyer were found to be the owner as argued by the seller, the claim against the owner of the premises would be disposed of by such settlement. The court then concluded: “We consider the tactics employed here to be most unfair on the part of Richter (the seller) and Meyers (the buyer) and will not condone such actions.”

An examination of the articles of agreement for warranty deed in the case at bar discloses that it contains no provision prohibiting the buyers from transferring or assigning any interest in the agreement or subletting or leasing the premises without written consent of the seller, as was present in Wendt v. Richter. Further, the court in Wendt v. Richter considered the tactics employed by the seller and buyer to be “most unfair” in not making the articles of agreement public for four years. Neither of these factors are presented in this appeal. The agreement for warranty deed contained no prohibition against assignment of the agreement or subletting the premises without consent of the seller. The original buyer did, in' fact, assign his interest in the agreement; and, although such was not the case, it was permissible according to the terms of the agreement to devote the premises to uses other than the sale of intoxicating liquor. To require the seller constantly to appraise himself of the use to which the premises were being put in order to ascertain whether dram shop or some other special type of insurance were required would not be practical.

We are of the opinion that the case of Wendt v. Richter is distinguishable on its facts; however, we find that the question presented on this appeal is analogous to the question decided by the Supreme Court in Anderson v. Cosmopolitan National Bank, 54 Ill.2d 504, 301 N.E.2d 296 (1973). In the Anderson case, the supreme court reversed the appellate court’s decision that the seller was responsible for injuries to third parties on the premises because the seller knew of the defect causing the injury and the jury might infer from that fact that the contract buyer did not have a reasonable time in which to cure the defect. In that case, the court stated:

“The plaintiff does not urge us to affirm the judgment of the appellate court for the reasons stated in the opinion of that court. Rather, the argument is that those who sell real estate upon installment contract should be subjected to a different and more strict liability than is imposed upon other vendors. Specifically, it is urged that ‘the “contract seller” should be treated as an owner or lessor because of the significant rights that he retains under his contract. These rights usually include the right to enter and make repairs and to charge the cost to the buyer. The seller has the right to insure if the buyer fails to do so and, in the event of a default on the part of the buyer, has a simple remedy by which he may regain possession. We are not persuaded by this argument. Substantially similar arguments can be advanced with respect to mortgagees, who have the same or substantially similar rights. That the device of the installment contract as a means of financing the purchase of real estate is subject to abuse, and indeed has been abused, does not mean that it is not a useful credit device or that this court should impose upon a contract seller the liability of an owner of real estate.” 54 Ill.2d at 508-509.

In this cause, the contract seller had no rights or power with respect to possession, control or use of the premises. He had no means of limiting the assignment of the contract or the subletting and subsequent use of the premises; therefore, we are of the opinion that he was not an “owner” within the meaning of the Dram Shop Act.

The order of the trial court dismissing the complaint as to the defendant, John Lee Williams, administrator of the estate of John Taylor, deceased, is, for the reasons stated herein, affirmed.

Affirmed.

A. SCOTT and DIXON, JJ., concur.


author: Mr. JUSTICE HEIPLE

text:
    Amerco Field Office, Plaintiff-Appellant, v. Michael Onoforio, d/b/a A-1 Citgo, Defendant-Appellee.
    (No. 73-136;
    Second District
    October 8, 1974.
    Redman, Shearer, O’Brien & Blood, Ltd., of St. Charles, for appellant.

      Kuhn & Geraghty, of Glen Ellyn, for appellee.
   Mr. JUSTICE HEIPLE

delivered the opinion of the court:

This case arose out of a small claims complaint filed September 27, 1972, with the Circuit Court of Kane County. Plaintiff in this case is Amerco Field Office, a corporation, and, as such, a supplier of merchandise to the defendant, Michael Onoforio, d/b/a A-l Citgo, a gasoline service station. The defendant was duly served with a summons on October 5, 1972 which, in printed language, advised the defendant that if he failed to appear in court on November 2, 1972, to answer the complaint, that a judgment by default might be taken against him for the relief asked in the complaint. The defendant, in fact, did fail to appear before the court and a default judgment was entered against him on November 2, 1972, in the amount of $2,272.50 plus costs. An affidavit for garnishment was filed on December 21, 1972, naming the Addison State Bank as garnishee. The garnishment summons was served on the bank on January 2, 1973. The trial judge entered a court order on January 25, 1973, directing the garnishee bank to pay $2,114.80 to the plaintiff. This order was complied with and the plaintiff received $2,114.80 from the bank account of the defendant.

On February 1, 1973, the defendant, by his attorneys, caused to be filed with and presented to the trial judge a petition to vacate judgment. This petition was signed and sworn to by Attorney Carl W. Kuhn but was not signed or sworn to by the defendant. Although the petition did not specifically so state, it was regarded by the trial judge and by us as a proceeding under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, sec. 72). On the presentment of the petition to vacate judgment and over the objection of the plaintiff, the court ordered the judgment vacated and the funds obtained through garnishment turned over to the attorneys for the defendant. The defendant subsequently sought to obtain compliance with this February 1 order through contempt proceedings and a rule to show cause was entered against the plaintiff on February 15, 1973, with a return date of March 1, 1973.

On February 26, 1973, plaintiff filed a notice of appeal. On March 1, 1973, defendant’s attorney appeared in court and filed a motion to dismiss the complaint of the plaintiff and to dismiss the plaintiff’s appeal on the grounds that the plaintiff, allegedly a foreign corporation, had never qualified to transact business in Illinois pursuant to statute and asserting that plaintiff was, accordingly, not entitled to maintam a civil action in any court in this state until plaintiff had obtained a Certificate of Authority (Ill. Rev. Stat. 1971, ch. 32, par. 157.125).

The matter was continued by the trial judge to March 12,1973, and the plaintiffs supersedeas bond was set at $2,500. The plaintiffs supersedeas bond was approved by the court on March 2, 1973.

Other than a formal substitution of attorneys and certificate of the record, the report of proceedings does not indicate any further proceedings by the trial court. Specifically, the record does not reveal that the hearing scheduled for March 12, 1973, was ever held or that the trial court ever decided the question raised by the defendant in its petition filed March 1, 1973, challenging the legal standing of the plaintiff to maintain this action.

The plaintiff-appellant asks this court to review the trial court’s order of February 1, 1973, which vacated the default judgment on November 2, 1972. Appellant argues that the default judgment became final 30 days after its entiy and argues further that the trial court lacked jurisdiction to set aside and vacate that judgment since the defendant’s petition to vacate the judgment failed to meet the requirements of section 72 of the Civil Practice Act. An examination of the petition, the applicable statute and the authorities cited causes us to conclude that the appellant is correct in this contention. The statute provides for relief from judgments after 30 days from the entry thereof upon petition “support by affidavit or other appropriate showing as to matters not of record.” Such a petition must be filed not later than 2 years after the entry of the judgment. The statute further provides for the abolishment of the various common law writs and further provides that all relief heretofore obtainable and the grounds for relief heretofore available shall be available under this statute (Ill. Rev. Stat. 1971, ch. 110, sec. 72).

It should be noted that no separate affidavit was filed in this proceeding and no affidavit of the defendant himself was filed. The petition to vacate is sworn to by the defendant’s attorney. The defendant contends that this is a sufficient compliance with the statute. The statute requires that the petition “must be supported by affidavit or other appropriate showing as to matters not of record.” This means it must be supported by a sufficient and competent affidavit. An affidavit which was either insufficient or incompetent would not satisfy the statutory mandate. To state otherwise would be to render this statutory requirement a nullity. The verified petition to vacate judgment, which we are willing to treat as an affidavit, contains factual allegations admitting that the defendant had done business with the plaintiff and that an account had arisen. The petition states affirmatively that, at the request of die plaintiff, the defendant executed and delivered a judgment note to plaintiff and plaintiff agreed to stop all legal proceedings in exchange for the judgment note. •The petition further alleges that plaintiff then proceeded to sue defendant but that defendant took no action due to the statements of plaintiff. The petition further alleges that the “addendum” (ad damnum?) in the suit actually filed is in error as is reflected by the record of account of plaintiffs own books.

We believe the affidavit in this case is clearly insufficient, inadequate and incompetent in several respects. It does not appear- from the affidavit that the affiant has any personal knowledge whatever of the factual matters contained in the affidavit since the facts related to transactions that took place between the defendant personally and an agent or representative of the plaintiff. The only knowledge that the defendant’s attorney could have of these facts would be based on conversations that the defendant’s attorney had with the defendant. It does not appear affirmatively that the attorney-affiant was personally present or a witness to any of the transactions. This makes the affidavit of the attorney pure hearsay. One of the reasons for requiring an affidavit is to spare the court the burden of dealing with frivolous or false petitions. The filing of a false affidavit could give rise to a prosecution for perjury or a court imposed sanction for contempt of court. Neither remedy is available when an affidavit is based on pure hearsay since the affiant, in such a situation, could honestly state that he was told the factual matters and believed them to be true. Even if the matters in the affidavit were completely false, neither the court nor the aggrieved party litigant would have any recourse in such a situation since the party making the false statements would not have made them under oath or in any judicial proceeding and the party giving the affidavit would not be doing so corruptly but would be relying on what he may honestly have believed to be true statements. This circumstance standing alone is sufficient to render the petition to vacate the judgment inadequate and insufficient in law.

Even if the affidavit were the affidavit of the defendant himself, however, it would be insufficient in law since the affidavit fails to allege or set forth any showing of due diligence or of a meritorious defense to the plaintiffs cause of action, both of which are required under a section 72 proceeding. (Johnson-Olson Floor Coverings, Inc. v. Branthaver, 94 Ill.App.2d 394, 236 N.E.2d 903.) It is noteworthy that the affidavit indicates that the suit was commenced' after the alleged promise of the plaintiff and after the delivery of the promissory note. Notwithstanding any understanding that the defendant may or may not have had regarding the execution and delivery of a promissory note and the dropping of legal proceedings, it would seem that he proceeded at his own peril and risk in relying on this alleged understanding when he was served with a summons subsequent thereto. This circumstance negates any showing of due diligence and is quite a different situation than it would be if the promise and note were solicited and obtained after the filing of a suit and the service of a summons.

The petition contains an unsupported allegation that the “addendum” (ad damnum?) in the suit is in error as is reflected by the record of account of plaintiffs own books. This is a mere allegation. Nothing in the affidavit or the record discloses any factual error to this court. Thus, nothing whatever appears of record to indicate a meritorious defense. Unless a trial court has reason to believe that a meritorious defense exists, it would be improper and incorrect to vacate a default judgment. This rule of law is a rule of reason designed to spare the court and litigants useless proceedings. For the above reasons, the order of the trial court of February 1, 1973, vacating its judgment order of November 2, 1972, should be and the same is reversed.

Defendant-appellee contends that plaintiff-appellant, allegedly a foreign corporation, could not maintain this proceeding for failure to obtain a corporate certificate of authority. Though raised in the trial court, this matter was never ruled upon. The determination of this question is a factual one and involves the taking of evidence. The briefs indicate that this is a disputed issue. A court of review is not in a position to act as a trial court in this situation; particularly so where the matter was raised but not ruled upon by the trial court. On this point, nothing has been presented for review.

It should be noted, however, that this issue was first raised by defendant on March 1, 1973, some 5 months after service of summons, 4 months after judgment and a full month after obtaining a vacation of the default judgment. This ground was not set forth in the section 72 petition.

The failure of a foreign corporation to obtain a certificate of authority is not a prerequisite to the court’s acquiring jurisdiction over the litigation. The failure of the plaintiff to obtain a certificate, if required, is a defense which will be considered waived unless raised by the defendant at the earliest opportunity. In the case at hand, it cannot be said that defendant raised this defense at the earliest opportunity. Accordingly, we believe this defense has been waived and we do not remand. Lustre Products Corp. v. DeMichel, 13 Ill.App.3d 571, 300 N.E.2d 847.

For the reasons given, the order of the trial court entered February 1, 1973, which vacated the default judgment of November 2, 1972, is reversed. The judgment of November 2, I972? is ordered reinstated. Orders of the trial court predicated upon its order of February 1, 1973, are likewise vacated.

Order vacating judgment reversed; judgment reinstated.

G. MORAN and CARTER, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
      In re Michael Flynn et al., Minors—(Michael Flynn et al., Appellants).
    (No. 73-188;
    Third District
    September 27, 1974.

      Edward A. Berman, of Schlifkin & Berman, of Chicago, for appellants.
    Rafael Toruno, Assistant State’s Attorney, of Joliet, for appellees.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Appellants, Fred Michael Flynn and Rita Flynn, husband and wife, appeal from an order of the Circuit Court of Will County which found them unfit parents by reason of depravity and terminated the parental rights of appellants in their three children. In the court order, the Department of Children and Family Services through an administrator was appointed as guardian for the three children with the power to consent to adoption.

From the record it appears that the appellants were married in 1966: In 1972, Fred Flynn adopted his wife’s three children by her previous marriage and such children and their ages are as follows: Michael Britt Flynn, age 13; Rita Jackie Flynn, age 12; and Michelle Stacey Flynn, age 10. During the summer of 1972, Fred Flynn was driving a taxi cab and had a regular passenger named Harold Miller. Miller told him of his desire to meet and marry a young girl, and, also of his ability to help Flynn out financially. Flynn was heavily in debt at that time. In the next few months Flynn arranged several meetings, between Miller and Flynn’s daughter, Rita Jackie Flynn, age 12. Miller again spoke specifically of money, and, on March 13, 1973, he gave Flynn approximately $28,000, mostly or all in bonds. Four days later, the Flynn family met Miller at a Holiday Inn Motel. Thereafter Miller and Jackie departed for South Carolina, where they were to be married. It was indicated that Jackie was told by her mother that she did not have to go if she did not want to, but that it would be better for her to go and that she could.marry Miller if she wanted to; that she could thereby have a college education and everything else she wanted. It was understood that the parties were to be married in South Carolina. Daughter Jackie testified that she knew what she was doing when she left the State with Miller.

Miller and Jackie spent three nights in motels on the way to South Carolina before being apprehended by police in Ashville, North Carolina, as a result of information furnished authorities. There was no evidence of any sexual acts as between the parties. Jackie was returned to Illinois and the Will County State’s Attorney filed a petition thereafter seeking a declaration that the three Flynn children were neglected and that the Flynns were unfit parents. In the petition, termination of Flynns’ parental rights in the three children was requested as well as the appointment of a guardian with power to consent to adoption.

Hearings were held pursuant to the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, §§ 704, 705). The court then found that the conduct of the parents in the situation concerning Jackie with Miller constituted “depravity” within the meaning of the Adoption Act (Ill. Rev. Stat. 1973, ch. 4, § 9.1 — 1(D) (h)). The Flynns were declared to be unfit parents in the order. It is not clear from the record that a finding of neglect of the children was made. (See Ill. Rev. Stat. 1973, ch. 37, §§ 702 — 4(b), 704 — 8.) Apparently, the determination was made on the sole basis of the actions of the Flynns with respect to Jackie in relation to Miller.

On appeal in this court, defendants contend that the finding that appellants are “depraved,” even assuming that the single act of the arranged marriage was shown, failed to overcome the presumptions concerning custodial rights of parents to their children. While the appellants contend that the evidence did not justify a finding of unfitness by reason of depravity, they also specifically question the application of the trial court’s finding terminating their parental rights to the other two children, Michael and Michelle Flynn. They point out that under the precedents in Illinois, “[i]n order for the court to empower a guardian to consent to the adoption without the consent of the natural parent, the natural parent must be found to be unfit (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — 8), and such unfitness must be proven by clear and convincing evidence.” (In re Perez, 14 Ill.App.3d 1019, 1020, 304 N.E.2d 109, 110-111 (First Dist. 1973); See also In re Adoption of Walpole, 5 Ill.App.2d 362, 125 N.E.2d 645 (Third Dist. 1955).)

It is pointed out that with the standard of proof required, the evidence shows, in effect (as asserted by the prosecution) that the Flynns “sold” their daughter Jackie to a Harold MUIer. Appellants argued that the court erred in failing to admit into evidence Miller’s Federal gift tax return which showed the money given to the Flynn’s as a gift. We conclude, however, that, even considering the tax return, it is apparent from the facts in the record that the money was given in exchange for Jackie, or at least in consideration of the Flynns’ consent to her marriage to Miller. It was shown that the money was given just 4 days before Jackie and Miller left the State, and, in addition thereto, appellant Flynn himself, in a statement to police, admitted that the money was part of the overall transaction,

On the basis of the record, therefore, we cannot say that the trial court committed reversible error in determining that the conduct involved in such transaction was such as to be considered “depravity” within the meaning of the Adoption Act. It was shown that Flynn did not bother to check on Miller’s background, character or financial status and it is clear that the Flynns had not known Miller for more than a few months. They only saw him a few times when Jackie saw him. It is also apparent that the Flynns needed money badly and nearly all of it was spent within a month and a half of its receipt. They permitted Jackie to consent to the marriage when Miller suggested it and permitted her to travel alone with Miller by automobile to South Carolina. They agreed to fly there themselves, apparently to lie about Jackie’s age and they told their other children to tell other people that Jackie was in California with a sick aunt. They even represented to a relative that Jackie had run away. On behalf of the appellants, it was disclosed in the record that they showed affection for their children and adequately cared for them. The trial court apparently felt that the action in connection with the 12-year-old daughter raised a serious question as to the Flynns’ real interest in their children.

Even if the court were to accept the proposition that a contract to “sell” a child is valid, under some circumstances, if it is in the child’s best interest, even though contrary to public policy (see 59 Am.Jur.2d Parent and Child § 37), the record shows that the Flynns could not possibly have determined that the marriage would be in the best interests of 12-year-old Jackie. It is apparent from the record that the trial court properly felt that the Flynns abandoned Jackie’s interests in favor of their own.

Depravity is “an inherent deficiency of moral sense and rectitude.” (Stalder v. Stone, 412 Ill. 488, 498, 107 N.E.2d 696 (1952).) While “a single deviation from moral principles does not per se establish depravity” (Young v. Prather, 120 Ill.App.2d 395, 256 N.E.2d 670 (Fourth Dist. 1970)), the acts of the parents in the cause before us show a deficiency in moral values. It is true that Jackie consented to the marriage and claimed to know what she was doing. The trial court, however, found that Jackie’s 12-year-old mind was sufficiently immature and that she was effectively brainwashed by her parents into agreeing to marry Miller. The trial judge was in the best position to make such finding and as a court of review we cannot say that it was clearly contrary to the evidence.

We find more difficulty in the questions relating to custody and parental rights in the remaining two Flynn children. Normally, a finding as to unfitness of parents would allow the trial court to terminate the. parental rights of all the children. While the conduct of the Flynns was clearly wrong, it was specifically related to Jackie alone.

Nevertheless, we cannot say, on the basis of the record before us, that the order of the trial court finding unfitness of the parents as to the children was contrary to the manifest weight of the evidence. We recognize the difficulty of the parents in regaining custody of children, once they are taken away, even if the parents show signs of complete rehabilitation. We feel, however, that the trial court was in the best position to observe the parties and the children and while we might have hesitated in depriving the parents of the custody of Michael and Michelle Flynn, we cannot say that, on the record, the order of the trial court was contrary to evidence.

The order of the Circuit Court of Will County in this cause is, therefore, affirmed.

Affirmed.

SCOTT, P. J., and DIXON, J., concur.