author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph J. Schmidt, Defendant-Appellant.
    (No. 72-164;
    Third District
    February 20, 1975.

      James Geis, of State Appellate Defenders Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

■ A grand jury of Rock Island County indicted Ralph J. Schmidt, the defendant, for the crimes of forgery and conspiracy. After trial by jury he was found guilty and sentenced to a term in the penitentiary of not less than 3 nor more than 9 years. A further recitation of facts which resulted in the defendant’s conviction and sentence of imprisonment will be set forth as they become pertinent to the issues raised in this appeal.

The first issue raised by the defendant is that his conviction for the crime of conspiracy should be vacated since he was also convicted of the principal offense, to-wit, the crime of forgery. We agree with the defendant. That one may not be convicted of both the principal- and inchoate offense is clear from an examination of our Criminal Code. (See Ill. Rev. Stat. 1973, ch. 38, par. 8 — 5.) The judgment and sentence imposed on the charge of conspiracy to commit forgery must be set aside. (See People v. Radford, 87 Ill.App.2d 308, 232 N.E.2d 100.) However, the error in convicting on the conspiracy charge does not constitute error affecting the conviction on the principal charge, and the latter conviction may stand. People v. Miller, 74 Ill.App.2d 356, 220 N.E.2d 1.

The defendant further argues that the trial court’s imposition of a sentence which is close to the maximum provided by statute was an abuse, of discretion when his self-confessed accomplices received probation or were not prosecuted. Our Criminal Code provides that the crime of forgery is a Class 3 felony (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(d)), and our Unified Code of Correction provides that maximum sentence for such felonies shall be any term in excess of 1 year not exceeding 10 years, unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term which shall not be greater than one-third of the maximum term set in that case by the court. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b)(4), (c)(4).

It is the defendant’s reasoning that the maximum possible sentence which could have been imposed upon him would have been for a term of not less than 3% years nor more than 10 years, and consequently the sentence he received is quite close to the maximum allowable for a Class 3 felony. The defendant further argues that the sentence he received constitutes an abuse of the trial court’s discretion in that it is violative of the goal of providing parole authorities with the opportunity of rehabilitating him. The defendant further buttresses his argument that the trial court abused its discretion by calling attention to the fact that two accomplices did not receive any sentence of imprisonment. One accomplice who testified against the defendant was never prosecuted and the other, after testifying against the defendant, had the charge of forgery against him dismissed arid in lieu thereof he pleaded guilty to the crime of conspiracy to commit forgery and was granted probation.

The narrow issue presented to us is whether the sentence imposed on the defendant constituted an abuse of discretion in that (1) it was discriminatory against him when weighed in the light of the action or non-action of the People in regard to his accomplices, and (2) it interferes with the rehabilitation functions of the parole and pardon board.

We do not agree with the defendant. Equality in sentencing is not required for all participants in the same criminal act. (People v. Winchell, 100 Ill.App.2d 149, 241 N.E.2d 200 (abstract opinion).) The sentences should be molded to fit the criminal as well as the crime. (People v. Cox, 119 Ill.App.2d 163.) In the instant case it is apparent that the trial court was imposing a sentence to fit the criminal since the defendant had a history of forgery convictions spanning a period of 20 years. The record further discloses that the defendant was a much older man than the accomplices and that he was not only the instigator of the criminal act but in fact coerced one of the accomplices into participating in the crime. Such a factual situation illustrates the soundness of the rule that equality in sentencing is not required for all participants in the same criminal act.

We further do not find merit in the defendant’s contention that the sentence he received defeats or interferes with the Parole and Pardon Board’s functions regarding rehabilitation of a criminal to such an extent that his sentence should be reduced. To conclude otherwise would result in a finding that the determination of rehabilitation is vested solely in the Parole and Pardon Board. Our legislature has also entrusted to the courts the power to make a determination pertaining to a defendant’s rehabilitation, and such determination is one which should not be overturned by a reviewing court absent a showing of manifest abuse. (See People v. Brown, 60 Ill.App.2d 447, 208 N.E.2d 629.) The defendant in support of his argument for a reduction of his sentence cites the case of People v. Lillie, 79 Ill.App.2d 174, 223 N.E.2d 716. In Lillie the reviewing court stated: “Adequacy of the punishment should determine the minimum sentence, with the maximum dependent upon the court’s divination as to the length of time required to achieve rehabilitation.” (79 Ill.App.2d 174, 178.) Applying the standard as set forth in Lillie to the case now before us, we are of the opinion that the trial court properly utilized the powers given to it to impose a sentence higher than that allowable. Such a conclusion is inescapable because in the instant case we have a 38-year-old defendant with a history of felony convictions for forgery. There is no evidence of any history of mental problems which could be the basis of his criminal conduct. Having been previously convicted for the crime of forgery on several occasions over a 20-year period of time, it is obvious that past efforts to rehabilitate the defendant were to no avail. Under such circumstances we cannot quarrel with the sentence of the tiial court. We are mindful of the case of People v. Griffin, 8 Ill.App.3d 1070, 290 N.E.2d 620, which is cited and relied on by the defendant. In Griffin the defendant was 18 years old. He had a record of minor offenses and a history of mental illness. Also, the monetary value of the check involved in Griffin was $18. Suffice to say the Griffin case is not applicable in the instant case as an authority for. reducing the trial court’s sentence.

For the reasons set forth, the conviction and sentence imposed thereon by the Circuit Court of Rock Island County for the crime of conspiracy are reversed and vacated. However, the conviction and sentence imposed thereon for the crime of forgery are hereby affirmed.

Affirmed in part and reversed in part.

ALLOY and STOUDER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    Ruth (Comer) Martin, Plaintiff-Appellant, v. Herbert Comer, Defendant-Appellee.
    (No. 73-306;
    Third District
    February 20, 1975.

      Peter F. Ferracuti Assoc., of Ottawa (Bradley J. Schwager, of counsel), for appellant.
    Wolslegel & Armstrong, of Ottawa, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This appeal is from that part of an order of the circuit court of La Salle County denying plaintiff, Ruth (Comer) Martin, child-support arrearage from her former husband, Herbert Comer, for her twin sons. Plaintiff and defendant were married in June, 1953, gave birth to son Paul in June, 1954, and were divorced in January, 1957, pursuant to a decree in favor of plaintiff entered by a court in the State of Arkansas. Plaintiff gave birth to twin boys in March, 1957. The support of Paul Comer is not in issue.

The decree of divorce required defendant to pay $60 per month for the maintenance of the minor child Paul as well as the unborn child. Paul lived with his father, the defendant, from 1960 until August of 1971. Subsequent to the divorce in 1957 and prior to 1960, Paul lived with defendant’s mother, and the payments for Paul’s support as required by the decree were made. The twins have been supported by plaintiff’s second husband, whom she married in 1958. The twins always lived with their mother except for the period from October, 1972, to January, 1973.

Plaintiff appeals from that part of the ruling wherein the trial court held she was equitably estopped from asserting her claim for child support some 16 years after the Arkansas decree of divorce was entered.

On appeal, issues are raised regarding the applicability of full faith and credit and the statute of limitations, but due to the view we take of this case, it is necessary here to deal only with the issue relating to equitable estoppel.

The principal factual dispute concerns the. existence or nonexistence of an agreement between the parties allegedly'made prior to the divorce decree to the effect that defendant would pay for the divorce and the hospital bill at the time the unborn child would be born and the sum of $15 a week for child support for their son Paul but no support for the unborn child. Plaintiff denies such an agreement.

It should be noted that the plaintiff’s claim for child-support arrearages comes 16 years after the divorce decree in Arkansas. The parties moved to Ottawa, Illinois, in 1954 and have all lived in Illinois except for.6. years during which time the plaintiff and the twins lived in Arkansas.

Plaintiff argues that in the absence of a showing that defendant has been inequitably affected by plaintiff’s conduct, defendant cannot be relieved of his duty to support his minor children. Defendant argues plaintiff should be equitably estopped from asserting a right to child-support arrearage because of her conduct at the time of and subsequent to the entry of the divorce decree. Included in such conduct is the defendant’s claim that there was an understanding between the parties that he would not be required to support any child born after the divorce because such a child was not his.' Plaintiff argues that even if it is found that an agreement as alleged by defendant did exist, and even if it is found that the doctrine of res judicata did not apply, such an agreement could not be given any effect in that it would be void as against public policy.

Plaintiff states several general principles of law with which this court agrees. Leland v. Brower, 28 Ill.2d ‘598, 192 N.E.2d 831, is cited for the proposition that a father cannot be relieved of his obligation to support his minor child by agreement with the mother; Kaifer v. Kaifer, 286 Ill.App. 433, 3 N.E.2d 886, is cited to the effect that laches is not available as a defense unless the party pleading it was prejudiced by the opposite party’s delay. Hurt v. Hurt, 351 Ill.App. 427, 115 N.E.2d 638, is cited for the rule that a father’s duty to support his child is not destroyed by a divorce decree nor a decree granting the care -and custody of his child to his wife or some other person. This court does not dispute the foregoing principles of law, but we do not believe they are applicable to the factual situation presented on this appeal.

It should be noted that the proceeding at bar is not an action to enforce an alleged agreement, nor does the defendant seek to assert rights based on an agreement. Rather, the issue is whether the conduct of the plaintiff, as shown by all of the facts and circumstances, including the reasons therefore, are-sufficient to justify the conclusion that the enforcement of the decree would be unjust and inequitable. In Atwater v. Atwater, 18 Ill.App.3d 202, 309 N.E.2d 632, the court discusses the doctrine of equitable estoppel in the context of a property settlement incorporated in a divorce decree. The court in Atwater held the doctrine inapplicable because the former wife continued to insist that she had not been married (a condition which would have terminated the obligations under the decree), even though the husband believed a remarriage had occurred. It should also be noted that it is axiomatic that the mere passage of time does not bring into effect the principle of equitable estoppel. What we have in the case at bar constitutes considerably more than the mere passage of time. The parties were divorced in 1957, at which time plaintiff was pregnant with children defendant claims then and now were not his. According to defendant’s testimony, prior to and at the time of the divorce there was no intention or expectation that he would support or would be required to support any child bom after the divorce because of the question of paternity. The parties lived in the same general area for about 10 of the 16 years between the divorce and the petition for child-support arrearage. The other 6 years plaintiff lived with the twin boys about 15 miles from the court in which the divorce decree was entered. The parties’ minor son Paul lived with defendant for 11 years. Plaintiff was obviously aware of defendant’s whereabouts during the 16 years subsequent to the divorce decree, and there was evidence of periodic contact between the parties. At no time did plaintiff ever make any demands for support for the twins or in any way intimate or suggest that defendant was neglectful of any of his obligations under the divorce decree. Furthermore, the evidence indicates the twins were substantially supported by plaintiff’s second husband without any objection on his part or again without any intimation that the support of said twins was expected to be made by defendant pursuant to the decree. From the evidence, it may be inferred that plaintiff did not expect support for the twins from the defendant but instead expected that such support would come from her second husband. Her conduct over the years was consistent with this position, and there can be little doubt but that she intended that defendant rely on these circumstances and that the defendant did so rely on such circumstances, believing the necessity of modifying the decree of divorce unnecessary. All of these facts and circumstances are sufficient to characterize and delineate the plaintiff’s conduct as such that the defendant’s reliance thereon is sufficient to invoke the principle of estoppel. Such circumstances justify the court’s conclusion that to enforce the decree concerning arrearage would be unjust and inequitable. Were this a situation where defendant had absconded or refused to make payments upon plaintiff’s assertion of her rights through the courts, the result we reach here would have to be different. Within a framework of the specific facts in this case, we must find that defendant would be unjustly affected by an order requiring him to pay child-support arrearages. We therefore must find that the trial court's application of the doctrine of equitable estoppel is supported by the facts.

For the foregoing reasons, the judgment of the circuit court of La Salle County is affirmed.

Judgment affirmed.

ALLOY and SCOTT, JJ., concur.


author: Mr. JUSTICE STENGEL

text:
    Florence Looger, Plaintiff-Appellant, v. James R. Reynolds, Defendant-Appellee.
    (No. 74-112;
    Third District
    February 20, 1975.
    Warren E. Danz, of Peoria (Richard Leiser, of counsel), for appellant.
    Kuhfuss & Kuhfuss, of Pekin (Harold Kuhfuss, of counsel), for appellee.
   Mr. JUSTICE STENGEL

delivered the opinion of the court:

Plaintiff, alleged guest of defendant’s tenant, filed a third amended complaint to recover for personal injuries she sustained in a fall on the porch which she asserts to have been defective. She appeals here from orders dismissing this pleading for failure to state a cause of action and denying her motion to reconsider.

The pleading alleges at Count II, as a basis for the duty giving rise to defendant’s alleged liability in tort, that defendant at the time of leasing the premises to plaintiff’s host specifically undertook with his tenant an obligation to repair the defective porchway, and that his default in that respect was the proximate cause of plaintiff’s injury. The issue presented here is whether as a matter of law that statement of defendant’s undertaking with his tenant may be the basis of a legal duty to plaintiff, as the tenant’s invitee.

In support of her position that the pleading is sufficient, plaintiff argues that this court should accept as prevailing law the rule found at 2 Restatement (Second) of Torts § 357, as follows:

“A lesser * * * is subject to liability for physical harm caused to his lessee and others upon the land, with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if (a) the lessor, as such, has contracted hy a covenant in the lease or otherwise to keep the land in repair, and (b) the disrepair creates an unreasonable risk * * w and (c) the lessor fails to exercise reasonable care to perform his contract.” (Emphasis added.)

Three rationales are cited in support of acceptance for the Restatement rule: (1) The landlord, by the agreement to repair, reserved a privilege to entry and supervision of the premises by virtue of which he retained “control” of the premises and ought to be liable as an occupier of the land; (2) the lessor by his promises, induced the tenant to forego repairs of his own, and so by his misleading undertaking has made himself responsible for the consequences; and (3) the landlord stands in a special relation to the tenant and, by entering into the covenant to repair, undertakes an additional responsibility which extends the relationship. The best statement of this is Dean v. Hershowitz, 119 Conn. 398, 117 A. 262 (1935).

Until recently, the prevailing view in this state has been that a landlord’s failure to perform a covenant to repair given in his lease would not give rise to liability in tort for injuries sustained by the tenant from a defective condition. The landlord was deemed to have no liability in tort to his tenant for injuries sustained from a condition of the premises after tenant took possession except in instances where landlord knew or had reason to know of latent defects of which he failed to inform tenant, or where he fraudently concealed defects. Some other exceptions were sometimes recognized. For injuries occasioned by landlord’s failure to perform a covenant to repair, the tenant was generally confined, however, to his remedy for breach of contract. . ,

These rules appear to have been relaxed in Moldenhauer v. Krynski, 62 Ill.App.2d 382, 210 N.E.2d 809 (1st Dist. 1965), where a tenant was allowed to recover damages in tort for personal injuries proximately caused by defendant-landlord’s failure to perform a promise to repair. More recently, the Illinois law was brought in closer conformity with the Restatement rule by a decision in Lulay v. Southside Trust & Savings Bank, 4 Ill.App.3d 483, 280 N.E.2d 803 (3rd Dist. 1972). In that case, a tenant’s daughter was permitted to recover damages in tort occasioned by the landlord’s failure to abide by a covenant to repair given in his lease. The court stated at 4 Ill.App.3d 483, 485:

“A growing number of courts adhere to the rule that a landlord who has covenanted to keep premises in repair is liable for injuries received by the tenant, his family, servants, [and] invitees because of his failure to do so.” (Emphasis added.)

In our judgment, there is no meaningful distinction to be made between the facts in Lulay and those alleged here. We therefore accept the Restatement principle as the modem prevailing rule of law and hold that clearly, under Illinois precedents, Count II of plaintiff’s third amended complaint states a sufficient cause of action.

The judgment of the circuit court i.s accordingly reversed, and the cause is remanded for further proceedings consistent with tírese views.

Reversed and remanded.

ALLOY, P. J., and BARRY, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wesley Ward, Defendant-Appellant.
    (No. 72-200;
    Third District
    February 20, 1975.
    Reno, O’Byrne & Kepley, of Champaign (Donald M. Reno, Jr., of counsel), for appellant.
    Michael Mihm, State’s Attorney, of Peoria (Thomas M. Pennell, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the ppinion of the court:

This is an appeal from the judgment of the circuit court of Peoria County finding defendant, Wesley Ward, guilty of violating section 11— 20(a)(1) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11— 20(a) (1)) by selling two obscene publications. Defendant waived a jury and after bench trial was found guilty and sentenced to 1 day in jail and fined $200. The only witness for the State, was the..complaining police officer who testified he purchased the two publications, “Bizarre World” and “Illustrated Case Histories, a Study of Sado-Masochism,” at defendant’s store. The police officer’s testimony and the magazines themselves were the sole evidence presented by the State. Defendant presented no evidence, and after his motion for judgment was denied, judgment was entered against the defendant.

There are three principal issues on this appeal. The resolution on each of these is governed by the case of People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691, which was granted certiorari by the United States Supreme Court in 413 U.S. 912, 37 L.Ed.2d 1030, 93 S.Ct. 3046. The Supreme Court vacated the judgment and remanded the case to the Illinois Supreme Court, 59 Ill.2d 362, which affirmed the convictions of the defendant. The United States Supreme Court, in vacating and remanding tire initial decision in the Ridens case, directed the Illinois Supreme Court to reconsider the case in light of the holdings of the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607, and other related cases decided by the Court at the same time. After reconsideration of the Ridens case the Illinois Supreme Court reaffirmed the defendant’s conviction and concluded that the Illinois obscenity statute (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 20) complied with the standards announced in the United States Supreme Court cases.

The first issue is whether the State’s evidence consisting of magazines made up almost exclusively of photographs constituted sufficient proof to establish violation of the obscenity statute and, therefore, whether the failure to present opinion testimony as to contemporary community standards was fatal to the State’s case. The Illinois Supreme Court in People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691, held that such opinion testimony was not required. The court there held that the publications themselves constituted sufficient evidence to support defendant’s conviction for violating the statute.

The second issue is whether it was necessary for the State to prove either the sale to minors or the intrusion upon the privacy of unwilling adults in order to convict defendant of violating the statute by selling the magazines. The court in People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691, held that defendant’s claim that the obscenity ordinance and code were deficient because they did not require proof that .the offending publications -were sold to minors or intruded upon the privacy of unwilling adults was -ytithout merit. In accord with this case, we hold here that it was not necessary ¡fpr /the State to prove either the sale to minors or the intrusion upon the privacy <Qjf ¡unwilling adults.

The final issue Bfi ¡this appeal is whether the two publications were ¡obsceqe as a matter of lavy. Again, the case of People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691, is dispositive of the issue in the case at bar. The magazines in this case do not differ in any substantial sense from the magazines described in Ridens, and they fall within that category prohibited by the statute. See also People v. Gould, 60 Ill.2d 159.

For the foregoing reasons the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred M. Williams, Defendant-Appellant.
    (No. 73-181;
    Third District
    February 20, 1975.
    Mark Burkhalter, of State Appellate Defenders Office, of Ottawa, for appellant.
    Edward Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

In 1970 Fred M. Williams, the defendant, tendered a plea of guilty to the charge of aggravated battery. This plea was accepted, judgment was entered thereon by the Circuit Court of Kankakee County and he was sentenced to a term of imprisonment for not less than 7 nor more than 10 years. This conviction was appealed unsuccessfully to this court. See People v. Williams, 2 Ill.App.3d 939, 275 N.E.2d 215.

On March 12, 1973, in the Circuit Court of Kankakee County, he filed a petition for Post-Conviction relief, the basis of which was that his sentence was unlawfully, disproportionately and unconstitutionally severe and as such violated article II, section II, of the Constitution of Illinois (1870). The following day the People filed a motion to dismiss the petition for post-comdction hearing. On March 15, 1973, the trial court ordered the petition dismissed. From a memorandum opinion filed by the trial court it is apparent that the dismissal order was based on the premises that the allegations of the defendant in his petition for post-conviction relief had been disposed of by his appeal to this court and that the petition failed to allege a basis for relief.

The defendant appeals from this order of dismissal and raises the issue that the trial court erred in failing to appoint counsel to perfect his petition for post-conviction relief.

Our criminal code provides for the appointment of counsel to represent an indigent petitioner in post-conviction hearing; however, the statutory language provides that such indigency be alleged and that a request for representation by counsel be made. See Ill. Rev. Stat., ch. 38, par. 122 — 4.

In the instant case it is clear that the defendant neither alleged indigence or requested counsel in regard to his petition for post-conviction relief. Failure to make such an allegation or requést does not, however, absolve the trial court from appointing counsel or ascertaining if the defendant desires assistance of counsel if it appears from the docket sheet that the defendant had previously been found to be an indigent person. This is clearly the law as set forth by our supreme court in the case of People v. Dye, 50 Ill.2d 49, 277 N.E.2d 133.

An examination of the trial court’s docket sheet, being the same one upon which the dismissal of the post-conviction petition appears, discloses that the defendant was found to be indigent and was represented by court-appointed counsel at the time of his conviction and also on his appeal to this court. The defendant, because of indigency, was further provided with' a free transcript of the proceedings which resulted in his conviction. We follow the dictates set forth on the case of Dye and conclude that under these circumstances the trial court should have appointed counsel for the defendant or at least ascertained that he did not desire assistance of counsel before allowing the People’s motion to dismiss. Further following the case of Dye, we direct that appointed counsel shall proceed as required by People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566.

Having reached this conclusion the remaining question raised by the defendant, to-wit, whether or not his pro se petition presented a substantial denial of a constitutional right, is now moot and will not be considered by this court.

For the reasons set forth the judgment of the circuit court is reversed and the cause remanded with directions to proceed in accordance therewith.

Reversed and remanded.

ALLOY and DIXON, JJ., concur.


text:
    Emma J. Cassidy el al., Plaintiffs-Appellants, v. Robert J. Lehnhausen, Director of the Department of Local Governmental Affairs, et al., Defendants-Appellees.
    (No. 74-351;
    Third District
    February 20, 1975.
    Kavanagh, Scully, Sudow, White & Fredericks, of Peoria, for appellants.
    Michael M. Mihm, State’s Attorney, of Peoria, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is a class action, brought by the plaintiffs, Emma J. Cassidy and Eugene L. White, on behalf of all taxpayers of Peoria County, Illinois, paying personal property taxes, other than corporations. The defendants are Robert J. Lehnhausen, Director of Local Government Affairs, Milo W. Nelson, county clerk of Peoria County, and Edward T. O’Connor, county treasurer and ex officio county collector of Peoria County. The plaintiffs sought to have certain personal property taxes in the hands of the Peoria County treasurer retained in a separate fund pending the decision of the United States Supreme Court in its review of Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592. A consent judgment granting the relief requested was entered by the circuit court of Peoria County, but the plaintiffs’ later petition for allowance of fees was denied.

In our initial opinion this court in a split decision affirmed the judgment of the circuit court of Peoria County denying the allowance of attorney fees. Based on the recent decision of the Illinois Supreme Court in Flynn v. Kucharski, 59 Ill.2d 61, 319 N.E.2d 1, the plaintiffs filed their petition for rehearing, and in view of such decision we granted the petition for rehearing and withdrew our previous opinions in this case. We now reverse the judgment of the trial court.

Whether die plaintiffs should be awarded attorney fees is the only question presented to us for review. The consent judgment was entered on June 13, 1972. It required the county treasurer to set up an escrow fund for personal property taxes received from all taxpayers other than corporations, without the necessity of the taxes being paid under protest, and restrained the county clerk and the county treasurer from making any distribution of those taxes. By the enactment of section 195.01 of the Revenue Act of 1939 (Ill. Rev. Stat. 1973, ch. 120, par. 676.01), effective July 27, 1972, the Illinois legislature directed the creation of special escrow accounts for personal property taxes received in 1972 from natural persons pending final disposition of the Korzen case, excused the necessity of making payment of those taxes under protest, and held up distribution of those personal property taxes.

The plaintiffs maintain that fees should be allowed in a class action when a fund has been created and where the others in the class have received benefits from the plaintiffs’ efforts; that a fund was created here by court order; and that the class of taxpayers benefited because the county collector would otherwise have been under a duty, before the Legislature acted, to distribute the taxes he had theretofore collected, and it should be presumed that he would perform his duty.

Defendants, in support of the judgment of the trial court urge that the class of plaintiffs were not benefited because the legislation was unnecessary and that attorney fees are not allowable in this type of case, relying on Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill.2d 126, 281 N.E.2d 338, and Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465.

It should be noted that Lake Shore Auto Parts Co. v. Korzen, 49 Ill.2d 137, 273 N.E.2d 592, was reversed in Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 35 L.Ed.2d 351, 93 S.Ct. 1001, and that as a consequence of said decision the exemption of individuals from the payment of personal property tax was approved. Accordingly, the individual taxpayers were entitled to repayment of personal property taxes previously paid when the exemption was held invalid by the Illinois Supreme Court.

At the time this action was commenced and at the time the injunction was entered there can be little doubt that except for the force and effect of such legal proceedings the defendants were under a duty to distribute the tax receipts from the assessment of personal property to the various taxing bodies. (Ill. Rev. Stat. 1971, ch. 120, par. 761.) Tire fact that the legislature weeks later enacted legislation which accomplished the same purpose as that of the injunction cannot be said to have rendered the initial injunction unnecessary and therefore of no benefit to the plaintiffs.

In view of Flynn v. Kucharski, 59 Ill.2d 61, 319 N.E.2d 1, a case similar to the one at bar in its significant facts, we hold that this is a case in which attorney fees are allowable. The court in the Flynn case held that Rosemont Building Supply, Inc. v. Illinois Highway Trust Authority, 51 Ill.2d 126, 281 N.E.2d 338, and Hoffman v. Lehnhausen, 48 Ill.2d 323, 269 N.E.2d 465, are not applicable to factual situations such as exist in the present case. The Flynn case also discusses the factors which should be considered in the determination of a reasonable attorney fee. We conclude the plaintiffs are entitled to reasonable attorney fees, and consequently the trial court’s decision to the contrary was erroneous.

For the foregoing reasons the judgment of the circuit court of Peoria County is reversed, and this cause is remanded to such court for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

DIXON and SCOTT, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David E. Bruce, Defendant-Appellant.
    (No. 74-130;
    Third District
    February 21, 1975.

      Moody, Venturelli & Diamond, of Decatur, (Scott B. Diamond, of counsel), for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This appeal is from the order of the circuit court of Warren County dismissing the post-conviction petition of petitioner, David Bruce.

On June 3, 1973, petition was arrested for driving while under the influence of intoxicating liquor. On October 11, 1973, he pleaded guilty and was sentenced to pay a fine of $300. On March 19, 1974, over 5 months after entry of judgment on his plea of guilty, he filed a post-conviction petition alleging he was not offered a jury trial, was not admonished as to his rights pursuant to Supreme Court Rule 402, and the complaint did not state the chapter number under which petitioner was charged. The trial court hearing the petition entered an order stating that in the absence of a transcript or a bystander’s report of proceedings, it did not have sufficient information on which to make a ruling. Petitioner appeals from this order.

Due to the view we take of this case, the only issue we need deal with is the one raised by the People in its brief. The People argue that petitioner is not entitled to a proceeding in the nature of a proceeding under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122) since petitioner did not follow the proper procedure as set out by the Illinois Supreme Court in People v. Warr, 54 Ill.2d 487, 298 N.E.2d 164. The court in Warr stated at page 493:

“[W]e direct, in the exercise of our supervisory jurisdiction, that until otherwise provided by rule of this court or by statute a defendant convicted of a misdemeanor who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his constitutional rights may institute a proceeding in the nature of a proceeding under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1971, ch. 38, pars. 122 — 1, 122 — 7.) Such a proceeding shall be governed by the Post-Corivietior) Hearing Act except jn the following respects:
9 9 »
(2) the proceeding shall be commenced within 4 months after rendition of final judgment if judgment was entered upon a plea of guilty * *

In the instant case over 5 months elapsed between date of entry of final judgment pursuant to petitioner s guilty plea (October 11, 1973) and his petition for post-conviction relief (March 19, 1974).

In light of People v. Wan, 54 Ill.2d 487, 298 N.E.2d 164, we hold here that petitioner cannot bring his petition 5 months after rendition of final judgment entered upon his plea of guilty. It may be noted in passing, regarding the merits of petitioner s contentions, that in the absence of a transcript or bystanders report of proceedings it would be impossible for the trial court to determine the validity of petitioners allegations.

For the foregoing reasons the judgment of the circuit court of Warren County is affirmed.

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


text:
    The City of Lockport, Plaintiff-Appellee, v. George Geuther et al., Defendants-Appellants.
    (No. 74-96;
    Third District
    February 21, 1975.

      Saxon, Niznik & Peterson, of Plainfield (Samuel Saxon, of counsel), for appellants.
    Wenger & Korst, of Lockport (Eugene Korst, of counsel), for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Will County finding defendant George Geuther and others guilty of violating a parking ordinance of the City of Lockport. The judgment was based on nine citations issued by police officers of the City of Lockport. After a bench trial a fine of $10 and costs was levied from which judgment and penalty the defendant has appealed.

In 1970 the City of Lockport enacted an ordinance which in section 5 — 1103 prohibited parking on the parkways within the City of Lockport. Parkways refer to the areas immediately adjacent to the traveled portion of the street. By section 5 — 1104 an exception to the prohibition against parking on parkways is granted to those who apply for and secure a permit from the municipal authorities for such parking. Although this section of the ordinance which authorizes the permit does not so indicate, it was apparently the intention to permit such off-street parking if the owner of the adjacent premises would suitably surface and maintain the parkway upon which parking was permitted.

In September, 1971, the appellant applied to the city for a permit so that he and the tenants of his building could park on the parkway in front of his premises. This application was considered by the Lockport City Council and on November 1 the application was approved and the issuance of a permit authorized, and thereafter the permit was issued. According to the city the minutes of the meeting indicate that the appellant was required to improve the parkway with hard surfacing as a condition of the permit. Appellant did not provide for any hard surfacing on the parkway area, although he and his tenants did use the area for parking their cars. As a result, the nine citations or tickets which are the subject of this action were issued to the appellant and some of his tenants.

At the hearing defendant raised several constitutional objections to the ordinance, and on this appeal he has renewed such constitutional objecRons. These objections relate primarily to appellants contention that it was the duty of the city to hard surface the parkway, and further, the section of the ordinance relating to exceptions was so vague and without standards that both' the exception and the prohibition were rendered unconstitutional. Appellant also argues that the court erred in finding him guilty of violating the ordinance prohibiting parking on the parkway because a permit to do so had been issued by the City of Lockport pursuant to a provision in the ordinance. Because we believe the resolution of this latter issue is dispositive of this appeal it will be unnecessary to consider or determine the constitutional issues raised by appellant.

After reviewing and considering section 5 — 1103, the section which appellant is alleged to have violated, and section 5 — 1104, the permit section, and their relation to one another, it is our conclusion that where a permit has been issued and is outstanding, parking on the parkway area cannot be deemed a violation of section 5 — 1103. This section does not purport to deal with conduct which might violate the terms of the permit, and in our opinion the existence of a permit authorized by the ordinance to do that which is otherwise prohibited is a complete defense to any claimed violation.

Recognizing the procedural problem occasioned by the existence of the permit, the city has argued the permit was conditional on resurfacing tire parkway area and that in any event the permit was revoked by the issuance of the first citation or ticket. We believe both of these arguments are without merit. It is undisputed the permit was issued under the authority of and with the approval of the city council, and there is no claim made that such permit was void ab initio or that it was secured by fraud or other misconduct. This being the case, the permit must be deemed to be in full force and effect until and unless revoked. In this connection it should be noted the ordinances neither make any attempt to specify the conditions which may be attached to a permit nor do they purport to make illegal, in the sense of justifying sanctions, violations of any conditions of permits. We also note there is nothing in the ordinances which would support the claim issuance of a citation or ticket is the revocation of a permit. Indeed, even if such a procedure were authorized by ordinance it would be doubtful whether such a procedure would conform to constitutional standards.

For the foregoing reasons the judgment of the circuit court of Will County is reversed.

Judgment reversed.

ALLOY and DIXON, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Conley Winters, Defendant-Appellant.
    (No. 74-275;
    Third District
    February 21, 1975.

      William Makovic, of East Peoria, for appellant.
    C. Brett Bode, State’s Attorney, of Pekin (Jay H. Janssen, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

Tins is an appeal from a judgment of the Circuit Court of Tazewell County finding defendant Conley Winters guilty of unlawful delivery of a controlled substance (heroin) pursuant to which he was sentenced to the penitentiary for an indeterminate term of not less than IY2 years nor more than 5 years.

On appeal in this court defendant asserts (1) that he was not fully admonished concerning the minimum and maximum sentences prescribed by law in compliance with Supreme Court Rule 402 (Ill. Rev. Stat. 1973, eh. 110A, par. 402), (2) that at the presentence hearing, defendant was not allowed a full opportunity for presentation of evidence in mitigation, (3) that the argument by the assistant State’s attorney to the court at the hearing in aggravation and mitigation prior to sentence was not within proper limits, and (4) that for reasons shown of record in the cause the sentence imposed of not less than 1% nor more than 5 years was excessive and should be reduced or that defendant should have been eligible for probation or a lesser sentence.

While defendant was a high school senior he was indicted on three counts of unlawful delivery of a controlled substance, one being for LSD, another for amphetamines, and the third for .3 of a gram of heroin. On March 25, 1974, the date the cases were reached for trial, defendant informed the court that he desired to withdraw his plea of not guilty to the count of the indictment with respect to the sale of heroin. There was no negotiated plea agreement in the case. Defendant was represented by private counsel.

The defendant was thereafter admonished fully by the trial court before the plea of guilty was accepted and particularly was told that the plea of guilty could result in a sentence of imprisonment in the penitentiary for an indeterminate term, the duration of which could not be less than one year nor more than 20 years and that within those limits the court could fix the minimum and maximum terms. The court illustrated the possible types of sentences which might be imposed, all of which ranging from 1 to 3 years to 6 to 20 years. Defendant indicated he understood the admonition clearly. The People dismissed Counts I and II of the indictment, retaining only the charge relating to the heroin. The factual basis of the sale to an I.B.I. agent was clearly described and shown, and the facts recited were admitted by defendant.

Defendant contends that the trial court’s admonitions were inadequate in that the court failed to advise him that his prior good record would not qualify him for periodic imprisonment, for probation or for the minimum required by statute. It is clear from the record that the trial court clearly illustrated the potential sentences and that defendant could have been under no illusion that he would receive probation or periodic imprisonment or a minimum sentence as he contends. It is also contended that during the hearing in aggravation and mitigation, the trial court improperly prevented defendant from entering evidence in mitigation. The evidence referred to related to circumstances surrounding the offense to which defendant pleaded guilty. In his argument for a lesser penalty, counsel for defendant stated that there were repeated attempts by the arresting agents to persuade defendant to obtain the heroin. This was asserted to show the hesitancy with which defendant committed the offense. The prosecutor objected to the statement on the ground that it pertained to the guilt or innocence of defendant. The court simply responded by stating that the issue would be better understood if information came from the participants instead of from the argument of counsel. Defendant’s attorney agreed. It appears, therefore, that the trial judge did not foreclose defendant from offering the desired evidence. He simply suggested it be given in a different form. Defendant had ample opportunity to testify as to such matters or to present evidence in support of this contention if so desired.

It is also contended that the prosecutor’s argument to the court at the conclusion of the sentencing hearing constituted reversible error when the prosecutor referred to heroin as “poison” and stated that .3 of a gram involved in the case was a substantial amount and that he would be remiss if as prosecutor he did not urge imprisonment as the sanction to be imposed. A prosecutor is given much latitude in the language and manner of presenting his ease in closing argument and is entitled to comment on the actions of defendant, particularly when made to a court out of the presence of a jury. Under such circumstances, it is obvious that there would be no reversible error by reason of the prosecutor’s argument. People v. Fort, 14 Ill.2d 491; People v. Drumwright, 48 Ill.App.2d 392.

The basic issue raised by defendant is a contention that the imposition of a sentence with a minimum term 6 months greater than the minimum specified by the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3)) was improper. The violation of the statute with respect to the sale of heroin (Ill. Rev. Stat. 1973, ch. 56y2, par. 1401(b)), results in a Class 2 felony punishable by a minimum term of 1 year unless the court “having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum.” The trial court had before it a presentence report compiled by a probation officer in which the probation officer indicated defendant had a potential for rehabilitation either with or without incarceration. The father of defendant testified that defendant had resided with his parents since birth. A clinical psychologist, who was familiar with defendant, testified that, in his opinion, incarceration would serve no useful rehabilitative function. Defendant admitted remorse for his conduct and felt he would exhibit a more exemplary behavior in the future. Defendant had been permitted to remain in high school, and the proceedings were delayed until after he had graduated. Defendant in expressing remorse indicated he was unduly influenced by the peer group with whom he associated in high school.

In the record before us, there was no evidence in aggravation but simply evidence in mitigation. The defendant had no previous criminal record. While the sentence was within the prescribed limits and not excessive under normal considerations, it appears from the record, in view of the presentence report and evidence presented before the court, that there was no evidence which, considering the history and character of defendant and the nature and circumstance of the offense, would call for a minimum greater than 1 year. While we are normally reluctant to modify a sentence which is within the statutory limits and feel that such sentence should normally be left to the trial judge, it appears from the record that nothing substantial from the standpoint of protection of society or rehabilitation of defendant could be achieved by the additional 6 months added to the minimum in this cause.

We accordingly conclude that the minimum sentence should be reduced to 1 year so as to give more opportunity for rehabilitative procedures on the part of prison authorities in this cause. The sentence imposed on defendant is, therefore, modified to reduce the minimum to 1 year and, as modified, the judgment and sentence in this court are affirmed.

Modified and affirmed.


author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    Ralph Cantrell et al., Plaintiffs-Appellees, v. William Kruck et al., Defendants-Appellants.
    (No. 73-279;
    Second District (1st Division)
    February 25, 1975.

      Reid, Ochsenschlager, Murphy & Hupp, of Aurora (John A. Lundquist, William C. Murphy and Timothy A. Rueland, of counsel), for appellants.
    Benn E. G. Eilert, of Geneva, for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendants appeal from a judgment ordering them to convey real estate to the plaintiffs in specific enforcement of a contract. They contend that the plaintiffs were in default at the time set for closing and that the court erred in refusing to give effect to the provision of the contract providing time to be of tire essence.

The real estate sales contract, concerning a 3.5279 acre parcel, was entered into on June 5,1971, by the defendants William Kruck and Paula C. Kruck, as sellers, and the plaintiffs Ralph Cantrell, Rose Rita Cantrell, John V. Krai and Darleen M. Krai, as purchasers. The selling price was $67,500. Ralph Cantrell and John Krai signed a note for the earnest money ($6,200) which was made payable on December 1, 1971, to the sellers’ real estate agent. The closing date specified in the contract was December I, 1971 (or 20 days after notice of procurement of a rezoning ordinance, whichever date was later). The customary printed form of the real estate sales contract was used, and it provided that “[t]ime is of the essence of this contract.”

It is undisputed that the sellers orally agreed t© extend the closing date beyond the December 1 date. The basic dispute is whether the closing was to be postponed only to December 3, 1971, as the sellers claim, or to a reasonable time after December 1.

Ralph Cantrell testified that after the contract had been entered into and before the December 1 date he had visited the property about six times and had a friendly relationship with the sellers. He testified that he and Krai planned to pay for the property by obtaining a mortgage from the Bank of Elmhurst for $50,000. The remainder of Krai’s portion of the purchase price was to come from a loan, and Cantrell’s remaining portion was to come from the proceeds of the sale of an apartment he owned. He expected to have these proceeds available by December 1.

Some time in November the plaintiffs obtained the personal assurance of the president of the Bank of Elmhurst that their application for the mortgage funds would be approved. Also in November Cantrell learned that his apartment sale might not be closed by December 1, and he then approached the sellers for a conference regarding an extension of the December 1 closing date.

On cross-examination Cantrell stated that he could have closed the present transaction with the defendants even without the apartment sale. This testimony, however, contradicted his previous deposition, during which he had said that he could not have closed the sale with the defendants without the proceeds from his other deal. In explanation of the inconsistency, he testified that what he meant in his deposition was that he preferred to use the proceeds from the other transaction, but that if the proceeds were unavailable he did have other funds with which to close the transaction on December 1.

A conference was held in the Krucks’ home late in November between Ralph Cantrell and John Krai representing the purchasers and the Krucks. The testimony is conflicting as to what was said at the conference by the various parties. Cantrell stated that after he and Krai had arrived at Krucks’ home and after a social conversation, he explained the possibility of his apartment transaction closing later than he had originally expected. He then requested a closing date of December 10 or 11, to which Mr. Kruck responded, “I don’t care whether it is two days, two weeks or two months. What is the difference?”, which in the context of the conversation was a reference to the fact that the sellers were going to continue to live on the property as the tenants of the purchasers. Krai essentially corroborated Cantrell’s testimony.

On cross-examination Cantrell admitted to having previously stated in his deposition that he had no recollection of how long an extension he had requested from the Krucks.

The defendant, William Kruck, testified that after Cantrell asked for “a couple of days extension on the closing date,” he responded by saying “O.K. That makes it December 3rd. Two more days will not make any difference on a good deal.”

Mrs. Kruck stated that Cantrell asked for 2 days because tire deal which was originally supposed to close earlier had been delayed and he needed tifie extra time. She stated that her husband then said, “Two days. Fine. It is a good deal.” She admitted, however, in cross-examination that Cantrell might have said “a couple of days” or “several days,” but she was definite that her husband used the specific date of December 3 in the conversation.

An attorney for the defendants testified that Mrs. Kruck called her on approximately November 23 and advised her that December 3 was the closing date. The attorney testified that she then called plaintiffs’ attorney on November 26, 1971, and stated her understanding that tire parties were going to close on December 3. She said that the plaintiffs’ attorney’s only concern was the location of the closing; he never questioned her understanding of December 3 as the date. She again called the plaintiffs’ attorney on November 29, and she was told to call him back on the following day because he still did not know where the closing would be held. She again called on November 30 and this time was told that plaintiffs could not close on December 3 but that they thought they could close on December 10, a date which they felt would be agreeable to the defendants.

The plaintiffs’ attorney, however, testified differently. He stated that all he said on November 26 was that the deal would to closed in the near future; on November 30 he advised defendants’ attorney that the parties had agreed to an extension of time for closing, which she apparently did not know, and she said if that was the agreement it would be all right with her.

A letter dated November 30 from plaintiffs’ attorneys to defendants’ attorney confirmed the plaintiffs’ attorneys’ statement during the telephone conversation that the plaintiffs would not be ready to close until December 10, and although it appeared that the defendants had no objection, the letter asked that their attorney verify that date with them. On December 6 the defendants’ attorney, in reply to the November 30 letter, wrote to plaintiffs’ attorney that her clients had refused to grant an extension.

William Giova, the president of the Elmhurst Bank, testified that on approximately November 26 Cantrell and Krai had submitted an application for a mortgage and he had written on the top of the application a notation, “try to arrange closing for Fri.-12/3/71.” Mr. Giova testified that although he did not remember a request from either Krai or Cantrell, he assumed he wrote the note because that was the date the parties wanted to close the transaction. Both Krai and Cantrell, however, testified that they did not request or indicate to Giova that December 3 would be the closing date.

A letter dated December 1 was sent from Cantrell to the Krucks with the reminder that he had told them at the extension meeting that he was going to be delayed in closing his otiher deal and asking if they would please plan the closing on December 11th. This was delivered December 6. On December 4 the Krucks had notified their attorney by letter that they considered the contract void since the closing date of December 3 was not met.

It appears from the testimony that Cantrell’s other transaction, on the sale of his apartment, had closed approximately December 7.

On these facts the trial judge, sitting without a jury, found that at the extension meeting December 3 was set as the expected time when the closing could take place, but that the intention of the parties was to accommodate Cantrell’s closing of the other transaction. He found that the agreement was to wait a reasonable time for the other transaction to close and that December 10 or 11 was not an unreasonable time.

The defendants argue that the oral extension of the closing date under the contract to December 10 or 11 was not proved, and, assuming the extension to December 10 or 11 was agreed upon orally, the agreement is unenforceable for lack of consideration for the additional promise. They further argue that there is no basis for the court to impose a reasonable time for performance in place of the parties’ agreement. The plaintiffs argue that the weight of the evidence supports die court’s ruling on the controverted facts, and that the “time of essence” clause was waived without requiring consideration. Each side claims the equities lie in their favor.

No citation of authority is required for the general proposition that forfeitures of contracts are not looked upon with favor in the courts. The extent to which a “time of the essence” provision in a contract will be strictly enforced depends on the intentions of the parties as determined primarily by the language used viewed under the circumstances surrounding the agreement as they reflect on the meaning of the words. (Martindell v. Lake Shore National Bank (1958), 15 Ill.2d 272, 283.) A strict construction which renders a different result from that intended by the parties will not be adopted. Schek v. Chicago Transit Authority (1969), 42 Ill.2d 362, 364.

A seller may, by his conduct, waive his right to declare a forfeiture of a contract of which time is of the essence; and though this may not necessarily be an absolute waiver of the right, it amounts to a suspension recognized by equity, and the right of forfeiture may be resumed only by giving definite and specific notice of an intention to require performance within a reasonable time. (Forest Preserve Real Estate Improvement Corp. v. Miller (1942), 379 Ill. 375, 382; Fox v. Grange (1913), 261 Ill. 116, 119-120; Craft v. Colmeyer (1934), 274 Ill. App. 296, 307.) Or, an agreement to extend time may be viewed as a modification of the contract in which the mutual promises import consideration and may be relied upon to prevent a forfeiture. Kissack v. Bourke (1906), 224 Ill. 352, 357-8; McQueeny v. Daily (1957), 14 Ill. App.2d 477, 480.

The trial court found that tire parties had agreed to an extension of the closing date beyond the date of December 1 provided in the original agreement, and because no definite meeting of the minds was reached as to the exact time of the new closing, the plaintiffs were justified in relying upon die understanding that they would have a reasonable time to close. The court found that the plaintiffs were willing and able to close within that time. The court also found from the evidence that the plaintiffs had the financial ability to close on the date of December 3. The findings of the trial court will not be upset on review unless they are against the manifest weight of the evidence, a rule which is particularly applicable when the findings are to a large extent dependent on the credibility of the witnesses. (Geist v. Lehmann (1974), 19 Ill. App.3d 557, 561.) We conclude that these findings are supported by the evidence. The granting of the remedy of specific performance was within the court’s sound discretion, which was exercised in this case properly and equitably. (Sweeting v. Campbell (1956), 8 Ill.2d 54, 56; Hunter v. DeMay (1970), 124 Ill.App.2d 429, 434-35.) We therefore affirm the judgment below.

Affirmed.

GUILD and HALLETT, JJ., concur.

      A rider attached to the printed form provided that the sale was contingent on rezoning of the property for condominium use and the satisfactory completion of soil tests. The parties, however, stipulated in the course of the court proceedings that the sole issue related to the December 1 closing date specified in the contract and any extensions which had been granted.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Jay Twitty, Defendant-Appellant.
    (No. 74-26;
    Second District (1st Division)
    February 25, 1975.

      Berry & Simmons, of Rockford (Robert L. Thorsen, of counsel), for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (Gary R. Kardell, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Jack Jay Twitty, the defendant herein, was found guilty in a jury trial of driving while his license had been revoked, in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 6 — 303) and was sentenced to 90 days’ periodic imprisonment and 1 year of probation. On appeal, defendant contends: (1) that the trial court erred in refusing to allow certain testimony into evidence, and (2) that his sentence was unduly severe.

On March 10, 1973, Trooper Patrick L. Carrigan of the Illinois State Police observed a 1963 automobile pushing a 1957 pickup truck into a service station. The trooper drove his vehicle into the service station, advised the driver of the automobile that it was illegal to push a vehicle in Illinois and asked the driver for his license. The driver, the defendant herein, produced a temporary driver’s permit which had been issued oh June 7, 1972, and which was then expired. Trooper Camgan radioed headquarters and was advised that the defendant’s license had been revoked. The defendant indicated his cognizance of the fact that his permit had long since expired and that his license had been suspended. The defendant advised the trooper of his belief that his attorney had taken care of the matter. The trooper then issued a citation and complaint charging defendant with driving while his license had been revoked-

At trial the State offered, inter alia, the testimony of Trooper Carrigan; the temporaiy permit which the defendant was carrying when charged; a certificate of the Secretary of State which stated that the defendant did not have a valid license or permit on March 10, 1973, the date in question; and an order of revocation dated June 15, 1972, issued by the Secretary of State. The order of revocation indicated that the defendant’s license had been revoked due to a March 21, 1972, conviction for unlawful use of license and that notice of the revocation had been mailed to the defendant on June 13, 1972.

The defendant offered the testimony of one Frank Vella, an attorney, who indicated that the defendant had paid Vella $600 and still owed $400 for services in connection with obtaining a driver’s license for the defendant. Vella testified that he, in fact, obtained a license for the defendant in early June, 1972, and that that license would be valid for 1 year. This license was not introduced into evidence. The defendant, his wife and his mother also testified. This testimony, in substance, indicated that the defendant had not received notice of the June 15, 1972, revocation. The defendant and his wife further testified that defendant had spoken to a State inspector at the Secretary of State’s office in Rockford in May, 1972. The inspector apparently indicated that the 30-day permit which the defendant was then using would be valid until his permanent driver’s license, which defendant testified he had applied for, was received in the mail. Defendant returned to the Secretary of State’s office in early June, 1972, and his permit was then renewed. Defendant testified that the inspector telephoned an office in Springfield and then advised defendant that it was alright to continue to drive on the temporary permit until the permanent license could be issued.

The defendant’s first contention on appeal is that the trial court erred in excluding certain testimony which defense counsel attempted to elicit from Trooper Carrigan. In his offer of proof in chambers, counsel revealed that his objective was to inform the jury that Trooper Carrigan was advised over his radio via headquarters that the computer records in Springfield showed that defendant had a discretionary revocation dated May 5, 1972, and a financial responsibility revocation dated May 21, 1972. The purpose of this evidence was to bring into question the accuracy of that portion of the certificate of the Secretary of State which stated that notice of the June 15,1972, revocation had been mailed to defendant on June 13, 1972. Simply stated, defendant was attempting to show that he did not receive a notice of revocation.

In our view, the proffered testimony was properly excluded because it was immaterial. Immaterial evidence is evidence which does not relate to an issue in the case. In this case only two issues were involved; first, whether defendant committed the act of driving a motor vehicle on a public highway; and second, whether at that time defendant’s driver’s license was suspended or revoked. (People v. Strode (1973), 13 Ill.App.3d 697, 300 N.E.2d 323; People v. Espenscheid (1969), 109 Ill.App.2d 107, 249 N.E.2d 866.) Whether defendant had notice of the revocation is not an issue presented. In People v. Strode, supra, defendant contended, on appeal from a conviction for driving while his license was revoked, that it was error to exclude from evidence copies of two letters mailed by the Secretary of State. The letters, one of which contained an order extending the period of revocation of defendant’s driver’s license, had been mailed within 1 week of each other and had been sent to different addresses. From Ms, defendant argued that the notices required by sections 6 — 209 and 6 — 211 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95½, pars. 6 — 209, 6 — 211) had not been given and that, therefore, the State had failed to prove a necessary element of the offense, that is, defendant’s knowledge of the revocation. The court rejected tMs contention and in so doing stated:

“Only two factors are required to establish guilt in a violation of the subject statute, that is, the act of driving a motor vehicle on a public highway and the fact of the suspension of the driving license. (People v. Dillingham, 111 Ill.App.2d 161, 249 N.E.2d 294.) The defendant’s intent, knowledge, moral turpitude, or motive is immaterial on the question of guilt. The only intention necessary to render a person liable to a penalty for violation of the. automobile law is the doing of the act prohibited. (People v. Espenscheid, 109 Ill.App.2d 107, 249 N.E.2d 866.) The exhibits rejected have no bearing on this case * * *. His argument that these exhibits have any bearing upon his violation of the statute under the circumstances stated in this record is purely an abstractpMlosophy with no bearing on the issue.” (13 Ill.App.3d 697, 698-99, 300 N.E.2d 323, 325.)

We agree with the above analysis and accordingly find that the court did not err in excluding the trooper’s testimony involved herein.

In this regard, we also note that defendant does not contend that his license was not revoked but only that there was some confusion in the Secretary of State’s office as to when his license was revoked. The trooper testified that the defendant stated that he was aware that his permit had expired and that Ms license had been suspended. Defendant did not attempt to refute tMs testimony.

Defendant’s second contention is that his sentence of 90 days’ periodic imprisonment and 1 year of probation was unduly severe. The statute (Ill. Rev. Stat. 1973, ch. 95½, par. 6 — 303) provides that an offender shall be guilty of a Class A misdemeanor and shall be imprisoned for not less than 7 days. A Class A misdemeanant under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) is subject to imprisonment for any term less than 1 year and a fine not to exceed $1,000.

At the sentencing hearing, the trial judge was advised that in 1966 and again in 1970 the defendant was convicted of driving while his license had been revoked. The first conviction resulted in a 10-day jail sentence and the second resulted in 2 years’ probation conditioned upon 60 days’ imprisonment. The defendant’s record also indicated a 1967 conviction for grand theft for which defendant received 3 years’ probation and a 1969 conviction resulting in a fine for driving in violation of restrictions. On defendant’s behalf, counsel argued that since 1970 defendant has altered his lifestyle. The trial judge was advised that defendant has been divorced from his first wife and obtained custody of his two children. He has remarried and now has three children, one being born of his second marriage. Defendant has attended school and become a barber. In addition, counsel argued that defendant was under the impression that his license had been taken care of by his attorney, which was somewhat supported by the testimony concerning the substantial sum paid to the attorney, and that he did not have notice of the instant revocation. The trial then to sentence.

The general rule in Illinois regarding a claim that a sentence imposed is excessive was stated by the Illinois Supreme Court in People v. Fox 48 Ill.2d 239, 251, 269 N.E.2d 720, 728, as follows:

“This court has consistently held that where it is claimed that the punishment imposed is excessive, although within the limitations prescribed by the legislature, that sentence should not be disturbed unless it is greatly at variance with the puipose and spirit of the law or manifestly in excess of the proscriptions of section 11 of article II of the Illinois constitution [section 11 of article I of the 1970 Illinois constitution] which requires that all penalties should be proportioned to the nature of the offense.”

The sentence imposed herein was within the limits prescribed by law. The trial judge considered the same arguments of defense counsel regarding sentencing as are presented herein and in addition had an opportunity superior to that of this court to hear the testimony of the witnesses, observe their demeanor and make a sound determination as to the punishment to be imposed. Furthermore, the offense herein involves a violation of law pertaining to motor vehicles and the protection of public safety. The punishment imposed was proportioned to the nature of the offense and consistent with the purpose and spirit of the law. Based upon the record presented herein, the applicable judicial standards o£ review and the public policy involved, we cannot stay that the trial court abused its discretion in sentencing the defendant.

Accordingly, the judgment below is hereby affirmed.

Affirmed.

SEIDENFELD, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Virgil Baylor, Defendant-Appellant.
    (No. 73-69;
    Second District (2nd Division)
    February 25, 1975.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant, Ronald Virgil Baylor, was indicted on one count of forgery by a grand jury in Lake County. He was found guilty by a jury on March 27, 1972, and subsequently sentenced to 5 years’ probation. Defendant appeals on the grounds that he was not proven guilty beyond a reasonable doubt, that the trial court committed reversible error in not instructing the jury on the offense of deceptive practices (which offense is argued by defendant to be a lesser included offense of forgery), and that the trial court committed reversible error in not instructing the jury upon the nature of circumstantial evidence.

On December 6, 1971, defendant went into Mama Mia’s Restaurant in Park City, Illinois, to cash a payroll check. A waitress told the defendant that the restaurant did not have enough money to cash the check, so defendant asked two friends waiting outside to join him in eating there so that the restaurant would have sufficient money to cash the check. Defendant and his two friends each ordered steak and eggs. The defendant endorsed the check and gave it to the waitress in payment of the bill. The defendant furnished identification, and the waitress wrote his selective service number on the back of the check. After cashing tire check, defendant and his friends left, leaving the food untouched.'

Just after defendant left, a police officer came in, and the waitress gave him the check. At trial, an examiner of questioned documents could not identify the defendant’s handwriting as being the same as the handwriting on the front of the check, but could identify it as the same as the handwriting of the endorsement.

Thomas M. Gannon, a Catholic priest and Provincer for the Chicago Province of the Society of Jesus, identified the check as one of the official checks of the Province. He stated that the signature on the front of the check purporting to be his was not his and not a signature authorized by him. He testified that the defendant had been an employee of the Province from October 15 to November 10 of 1971. Gannon paid the defendant three times, never by check. Gannon was only one of several people who directed defendant in his duties while working for the Province.

William J. Schmidt, another priest and secretary-treasurer of the Province since 1968, identified the check as an official Province check. He testified that he and four other priests, none of whom was Gannon, had authority to write checks on the account from which this check was drawn. The Province accounts, upon which this check was drawn, was only a convenience account, and the Province had a payroll account with another bank. Schmidt paid defendant three times, the last being November 10, 1971, each time in cash.

The issues on appeal are:

I. Was defendant proven guilty of forgery beyond a reasonable doubt?
II. Did the trial court err in finding that deceptive practice was not a lesser included offense to forgery and by not instructing the jury on the offense of deceptive practice?
III. Did the trial court err in not instructing the jury upon the nature of circumstantial evidence?

I.

Insofar as is relevant here, forgery is defined in section 17 — 3(a)(2) of the Criminal Code; (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3(a)(2)). Defendant’s assignment of error is based on the contention that one element of the offense of forgery, knowledge that the check was not authentic, was not proven beyond a reasonable doubt. Such knowledge must clearly be proven in order for defendant to be convicted of forgery. People v. Cohen, 343 Ill. 437.

There is no dispute here that this check was forged. The question is whether or not the defendant knew that this was a forged check when he cashed it at the restaurant. “[I]t is the duty of this court to resolve all facts and circumstances in evidence on the theoiy of innocence rather than guilt if that reasonably can be done.” (People v. Connie, 52 Ill.App. 2d 221, 227-28. See also People v. Dougard, 16 Ill.2d 603.) However, the evidence here does not point to a reasonable theory of defendant’s innocence. The defendant had worked for the purported drawer of this check prior to its date. He had always been paid in cash, never having gotten a check from his employer. Defendant had not worked for the purported drawer of this check for 4 weeks prior to its date. He called two friends into the restaurant to purchase meals along with himself so that the restaurant would have enough money to cash the check and as soon as the check was cashed all three of them left, leaving their meals untouched. The theory of defendant’s innocence under the circumstances here has to be that he somehow came into possession of this check not knowing it to be a false instrument, though he had never received a check from the purported drawer and had ceased working for the purported drawer 4 weeks earlier, and then endorsed it over in good faith. This is not a reasonable theory of innocence.

People v. Cohen, 343 Ill. 437, where the court remanded for a new trial, is cited by the defendant as being factually analogous to the' case at hand. In each case the person who cashed the check made payable to him presented authentic identification while cashing the check in person and, while at liberty, made no attempt to flee. However, there the similarity ends insofar as is relevant here. In Cohen, the defendant gave a logical reason for having the check. He said it was in payment for goods delivered and produced a witness who testified that the defendant told him that he dealt in such goods. Also, the drawer in that case was a “Homer Bros,” and though Louis Homer testified that he alone was authorized to make such a signature, defendant testified that he got such a signature on the check from George Homer. In Cohen, the court said at page 442: “There is no evidence in this case that the George Homer mentioned by plaintiff in error in his testimony was' not one of the Homer brothers whose name was used in the title of the corporation and that he was not connected with the corporation.” Unlike the case at hand, a reasonable theory of innocence was present in Cohen. In the instant case there is simply no logical set of circumstances to cast the defendant’s conduct in an innocent light.

Defendant also cites People v. Ciralsky, 360 Ill. 554, where the court said, at page 561: “Circumstances of suspicion, merely, without more conclusive evidence, even though the party offers no explanation of them, are not sufficient proof of guilt.” In Ciralsky, the evidence simply showed that a forgery was committed with an instrument in which the name of the store in which the defendant worked appeared. There was no evidence as to whether the defendant was the only worker in the store, or whether there were others. It was not shown that the defendant there did any of the writing on the false instrument or that she received any of the money due thereon. In the instant case the defendant both endorsed the instrument and received the proceeds therefrom.

In forgery cases, proof must often be by circumstantial evidence. (People v. Church, 366 Ill. 149; People v. Dunham, 344 Ill. 268; People v. Dauphin, 53 Ill.App.2d 433.) Here the evidence was circumstantial and logically probative, as discussed above. The defendant was proven guilty of forgery beyond a reasonable doubt.

II.

.An included offense is one which “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged * * V (Ill. Rev. Stat. 1973, ch. 38, par. 2 — 9(a).) Forgery, for our purposes, is the delivery of a check knowing it to be fraudulent in that it purports to be made by one who did not make it, with the intent to defraud. (Ill. Rev. Stat. 1973, ch. 38, par. 17 — 3.) A deceptive practice, for our purposes is the delivery of a check drawn on a real depository, knowing that it will not be paid by the depository, with the intent to defraud and the intent to obtain control over the property of another. Ill. Rev. Stat. 1973, ch. 38, par. 17 — 1.

To be a lesser included offense, all of the elements of the lesser offense must be included within the greater offense. Knowledge that the check will not be paid by the depository is an element of deceptive practice, but not of forgery. In forgery, one either assumes that the check will be paid by the depository and only be discovered upon the purported drawers noticing that his account has been debited, or does not know whether the check will be paid by the depository or not. Deceptive practice contemplates a situation where one is fully aware that the check will not be honored by the depository, either because the purported drawer has no account there or because the account is insufficient. This knowledge or awareness is' not part of the offense of forgery. Forgery encompasses the check which is not what it purports to be because at least some part of it is not genuine. In deceptive practice, the check can be, completely genuine, exactly what it purports to be, but not backed up by sufficient funds.

There' is another difference between forgery and deceptive practice. Forgery requires only the intent to defraud, while deceptive practice requires the intent to defraud and the intent to pay for or gain control over the property or money of another.

“If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser, but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater.” (41 Am. Jur. 2d Indictments and Informations § 313 (1968).) Deceptive practice is not a lesser offense included in forgery; hence, the court below did not err in refusing to instruct the jury on deceptive practices as a lesser included offense.

III.

The record clearly indicates that defendant offered the Illinois Pattern Jury Instruction on circumstantial evidence. (IPI Criminal No. 3.02) This offered instruction included the second paragraph, which paragraph is (only to be included when the proof of guilt is entirely circumstantial. (IPI Criminal No. 3.02, Committee Note.) The evidence in this case was not entirely circumstantial. Defendant admits that, but argues that failure by the court to give the jury the first paragraph of the instruction, which paragraph is to be given if there is some circumstantial evidence, •as here, was error. However, the trial judge stated that if the correct instruction (the first paragraph only) were tendered to him, he would give it.

“The Court: There is direct evidence, and there is some circumstantial, and if it were tendered in a proper form, I would give it. But in this form, this is an appropriate instruction in a case that is entirely circumstantial and if that were true, I would give it. But I’m refusing it. If one is tendered, I would take it that my experience shows, at any rate, when defense lawyers tender that one, they don’t want to tender it in proper form. They only want to tender it in the improper form, and I presume you are not going to tender it in the proper form. Is that correct? Mr. Hannigan: Judge, I believe it is in the proper form.”

A defendant cannot complain of the failure of the court to instruct on a certain feature of the case where he has not requested a proper instruction on that feature. (People v. Orr, 24 Ill.2d 100; People v. Porter, 13 Ill.App.3d 893.) Also, an instruction which includes both a correct and an incorrect proposition of law, as here, is properly refused and the trial judge is under no obligation to rewrite the instruction tendered by defendant so that it would be proper. People v. Moorelander, 25 Ill.2d 309.

Defendant argues that he has a right to have the jury instructed on any theory of defense for which there is a foundation in the evidence. He cites People v. King, 76 Ill.App.2d 354, in support of this proposition. In that case, the instruction sought was refused because it had no foundation in the evidence. Here the instruction offered referred to a case with solely circumstantial evidence. As there was direct evidence in the case at hand, this instruction also was properly refused as not. supported by the evidence. ,

Finally, even assuming arguendo that the proper part of the instruction in question should have been given, the failure to give it was harmless error. “Even though error may have been committed in giving pr refusing instructions it will not always justify reversal when tire evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.” (People v. Ward, 32 Ill.2d 253, 256.) The circumstantial evidence here was more damning than fire direct evidence, and any omission in referring to circumstantial evidence can only have been to defendant’s advantage.

The judgment of the Circuit Court of Lake County is affirmed.

Judgment affirmed.

RECHENMACHER, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE RECHENMACHER.

text:
    The Rockford Housing Authority, Plaintiff-Appellee, v. Claude J. Brown, d/b/a B & H Auto Sales, Defendant-Appellant.
    (No. 73-302;
    Second District (2nd Division)
    March 3, 1975.
    Pedderson, Menzimer, Conde, Stoner, Ferolie, Spelman & Killoren, of Rockford (Dale F. Conde, of counsel), for appellant.
    Thomas, Thomas & Maggio, of Rockford, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE RECHENMACHER.


author: Mr. PRESIDING JUSTICE RECHENMACHER

text:
      In re Petition to Annex Certain Territory to the Village of Green Oaks, Lake County.—(Anna B. Graham et al., Petitioners-Appellants, v. Chicago Title and Trust Company, Trustee, et al., Appellees.)
    (No. 73-112;
    Second District (2nd Division)
    February 20, 1975.

      Rehearing denied March 25, 1975.

    Eva Schwartzman, of Libertyville, and Kirkland & Ellis, of Chicago (Don H. Rueben, of counsel), for appellants.

      John F. Grady, of Waukegan, for appellees.
   Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from a judgment dismissing petition to annex certain territory to the Village of Green Oaks without allowing petitioners to put in their proof. The trial court based dismissal on the ground that our holding in In re Petition to Annex to Village of Green Oaks, 1 Ill.App.3d 773 (affirming dismissal of an earlier petition — “70 MC 2”) was res judicata of the issues in this case, and that the pendency of that appeal was a prior action pending within the provisions of section 48(1),(c) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 48(l)(c)).

In that case the trial court dismissed the annexation petition after objections were filed and after full hearing, on the ground of lack of contiguity under the applicable statute, pointing to the failure to include in the territory sought to be annexed all of O’Plaine Road, an adjacent highway which crossed the Illinois Toll Highway via an overpass bridge, and the fact that the territory was divided by the Illinois Toll Road which was not included in the petition. We affirmed.

A few days after the dismissal of 70 MC 2 another annexation petition was filed (70 MC 8) which, but for the addition of two more petitioners and one new parcel, the deletion of another parcel, and the inclusion of all of O’Plaine Road where adjacent to the area sought to be annexed, was similar to the 70 MC 2 petition. Appellees filed their motion to dismiss (instead of “objections”). This motion was supplemented after our affirmance of the dismissal of 70 MC 2, based on the doctrine of res judicata in view of the substantial identity of parties and territory. The petitioners then moved to strike the motion to dismiss and the supplemental motion on the ground of the failure of the “movants” to file timely “objections,” as required by section 7 — 1—3 of the Municipal Code (Ill. Rev. Stat. 1967, ch. 24, par. 7 — 1—3). The trial court denied the petitioners’ motion to strike and dismissed the petition in 70 MC 8, and petitioners filed their notice of appeal.

Dming the pendency of this appeal section 7 — 1—1 of the Cities and Villages Act (Ill. Rev. Stat. 1973, ch. 24, par. 7 — 1—1) was amended by the legislature by the addition of another paragraph reading as follows:

“For the purpose of this section, a toll highway or connection between parcels via an overpass bridge over toll highway, shall not be considered a deterent to the definition of contiguous territory.”

We first consider whether the pendency of the appeal in 70 MC 2 required dismissal of the annexation petition in 70 MC 8 merely because overlapping property was included. It should be noted that 2 days after the dismissal of 70 MC 2, other petitioners filed an annexation petition numbered 70 MC 7 covering overlapping territory for annexation to the City of Waukegan. That petition was filed one day earlier than the petition involved in the instant case (70 MC 8). Instead of proceeding to test the validity of that petition in (70 MC 7) after our affirmance of the dismissal of the petition in 70 MC 2, those petitioners moved to dismiss their 70 MC 7 petition. But for that fact, 70 MC 7 would have had precedence over the petition in the instant case, 70 MC 8.

The filing of successive annexation petitions with overlapping territory was involved in an early (1965) Green Oaks annexation case, People ex rel. Saam v. Village of Green Oaks, 55 Ill.App.2d 51. There the Village of Libertyville contended that the theory of preemption prevented the filing of other petitions once a petition was filed, and that any subsequent petition was void if filed before the tennination of the annexation proceedings which was commenced earlier. We there said (at page 57):

“We do not so understand the rule and determine that to preempt the field in an annexation proceedings the petition must be valid and comply with the requirements of the statute in order to give the County Court jurisdiction.”

We adhere to that view.

The petition in the original case (70 MC 2) was held'invalid by the trial court and by this court, and the petition in 70 MC 7 was withdrawn voluntarily. Under the circumstances 70 MC 8 was properly filed, and the pendency of 70 MC 2 did not require dismissal.

We next consider whether the ruling dismissing the petition in 70 MC 2 was res judicata of the issues presented in the instant case. In 70 MC 2 we based our opinion in part on the fact that only one-half of O’Plaine Road “for a distance of over one mile” had been included in the territory sought to be annexed, and, there being no proof that the territory on both sides of the Illinois Toll Road was already a community, and no proof as to any services by the Village of Green Oaks, the overpass bridge did nót provide the required contiguity.

In the instant case the petitioners have included all of O’Plaine Road where adjacent to the territory sought to be annexed, instead of only a portion of it as in 70 MC 2; also, there are two additional parties and one new parcel not included in 70 MC 2.

In People ex rel. Cherry Valley Fire Protection District v. City of Rockford, 122 Ill.App.2d 272, 274-275, the State’s attorney of Winnebago County filed a complaint in quo warranto challenging Rockford’s annexation ordinance based on its earlier annexation petition. A judgment of ouster was entered on grounds of failure of proper notice to the Fire Protection District and lack of contiguity to the city. A few weeks later the city annexed the identical territory covered by the judgment of ouster plus one additional lot, using the original annexation petition together with a petition signed by the owner of the added lot. In the period between the hearings on the two complaints one of the record owners on the original petition had conveyed his interest to a new owner. Neither that new owner nor the Board of Education which owned a large parcel had joined in either petition. In commenting on the contention of the plaintiff that the judgment of outster was res judicata, we said:'

“If we were to determine that the doctrine of res adjudicata had application as here urged, it would mean that this territory could never be annexed to the City of Rockford. However, as is well established, that doctrine has application only where there is an identity of parties, subject matter and cause of action. The earlier cause concerned itself with the issues of contiguity and the required notice to the fire protection district. It appears that notice was properly served prior to the second annexation ordinance and the inclusion of the additional lot significantly affected the question of contiguity. The issues presented to the court for determination in the second quo warranto, thus, were not identical with those resolved in the earlier cause and the doctrine of res adjudicata was not applicable.” 122 Ill.App.2d 272, 274-275.

We therefore hold that petitioners were not barred from relief by the doctrine of res judicata.

We now consider the effect of the 1973 amendment to section 7 — 1—1 of the Municipal Code which became law on September 7, 1973. That amendment clearly states that in annexation proceedings “a toll highway or connection between parcels via an overpass bridge over toll highway, shall not be considered a deterrent to the definition of contiguous territory”. The amendment was enacted by the legislature after we held in the appeal from the 70 MC 2 petition that the connection between two parcels on each side of the toll road via the overpass bridge did not make it “contiguous to the annexing municipality” within the meaning of section 7 — 1—3.

In Modern Dairy Co. v. Department of Revenue, 413 Ill. 55, 66, which involved an amendment of an act by the legislature defining the terms as used in the act, the Illinois Supreme Court said:

“The legislature has the power to make any reasonable definition of the terms of any statute, and such definitions, for the purpose of the act, will be sustained. * * * Once the legislative intent is ascertained it should be given effect by the courts unless it is clearly in violation of some provision of the constitution, and captious and hypothetical reasoning should no longer be indulged. # * * [I]f the legislature, after the courts construe the terms used in an act, attempts by amendment to define those terms as used in that act, the reasonable presumption is that the court’s construction was not in accord with the original intent of the legislature. * * * It would then seem incumbent upon the court to reconsider its construction of the act and, if it appeared to be clearly at variance with the interpretation of the legislature, to harmonize the court’s construction with the legislative intent.”

In People ex rel. Spitzer v. County of La Salle, 20 Ill.2d 18, 28, the court said:

“Where a court has construed the terms used in an act, and the legislature thereafter attempts by amendment to define those terms, the reasonable presumption is that the court’s construction was not in accord with the original intent of the legislature. * * 9 We have a right to look to subsequent amendatory legislation to arrive at the correct meaning of the terms of the statute, where the legislature has attempted to define those terms.”

In Creel v. Industrial Com., 54 Ill.2d 580, cited by appellees, the legislature adopted an amendment adding a new provision which, if applied by the court, would have defeated petitioner’s right to an application for adjustment of his claim for workmen’s compensation. Under such circumstances the supreme court in Creel found more apposite to the facts of that case the holding in Western National Bank v. Village of Kildeer, 19 Ill.2d 342, 353-354, that the addition of a new provision in the statute by amendment indicates absence of its implied or prior existence and concluded therefore, that the petitioner was entitled to file his application. In the instant case we hold that the 1973 amendment is an expression of legislative intent in the definition of contiguity and that it is reasonable and is therefore applicable to this case.

The trial court, of course, did not have before it the 1973 amendment expressing the legislative intent. We agree with the petitioners that the trial court should have an opportunity to consider that amendment upon remand by fixing a date for a hearing on the annexation petition, allowing the filing of objections by appellees within 5 days prior to such date and holding a hearing thereafter on the merits.

Therefore this cause is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

T. MORAN and DIXON, JJ., concur.

       At oral argument counsel for petitioners while asserting the validity of their argument relating to appellees failure to file objections, withdrew those contentions and urged a full hearing on the annexation petition (in the light of the amendatory statute) and any objections thereto.