text:
    Harrie L. Hall, Plaintiff-Counterdefendant-Appellee, v. Elizabeth Joy Hall, Defendant-Counterplaintiff-Appellant.
    (No. 58977;
    First District (3rd Division)
    January 9, 1975.

      S. Paul Zelznick and Gerald J. Mannix, of Mannix and Zelznick, of Chicago, for appellant.
    Edward D. Rosenberg, of Rosenberg & Kosin (Marshall B. Segal and Ellis B. Rosenzweig, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Elizabeth Joy Hall, appeals from an order of the circuit court of Cook County terminating her award of alimony from the plaintiff, Harrie L. Hall. The award of aliinony was established under a 1969 decree of divorce and property-settlement agreement. Defendant contends that the trial court abused its discretion in ordering termination of alimony based upon its finding that defendant had engaged in immoral conduct subsequent to the divorce; committed reversible error in its rulings on certain evidence; and improperly denied defendant’s counter-petition for an increase in alimony and her request for attorney’s fees to prosecute this appeal.

The parties were married on March 5, 1945 and divorced on August 8, 1969. They had one child who was emancipated at the time of tihe divorce. Under the terms of the property settlement agreement, plaintiff transferred certain property valued in excess of $100,000 to defendant. The property included the couple’s home, an automobile, and insurance policies. Plaintiff was to pay defendant $15,000 per year as alimony. In 1970 an agreed order was entered whereby the alimony was reduced to $9,600 per year. In 1972 plaintiff initiated this action to terminate alimony. After extensive hearings, the trial court found that a material change in the circumstances of the parties had occurred, and terminated alimony.

, At the time of the divorce plaintiff was 47 years old. He had been a dentist for 25 years and enjoyed a successful practice. Defendant was a 44-year-old nonworking wife who gave up her education upon marrying plaintiff. At the time of the hearing, plaintiff was making $60,000 per year in his practice, an increase of nearly 30% since the entry of the divorce decree. Plaintiff also had considerable sums of money invested in real estate. Defendant had a $10,000 savings account, received a weekly salary of $26 for part-time employment, and had received $40,000 in alimony from the time of the entry of the decree.

Shortly after the divorce, plaintiff remarried. His second wife had a daughter by a previous marriage who became a member of plaintiff’s new household. (Plaintiff’s stepdaughter is now emancipated.) During the same period of time, defendant became acquainted with one Robert Jones. In the early part of 1970 Jones took up residence in defendant’s home.

The relationship between defendant and Jones is not in dispute. They attended social functions, took vacations, and ate meals, all together. They had the same telephone number, shared household chores and took care of each other when sick. Defendant and Jones have engaged in sexual relations on a regular basis. Jones earned $11,000 per year. He paid no rent and has made no financial contribution toward the home expenses. Defendant paid the mortgage, real estate taxes, insurance and utility bills. Jones occasionally made purchases of groceries and gasoline. Defendant testified that Jones did home repair and maintenance and that without him, she would be compelled to spend large sums of money for outside help.

Plaintiff introduced evidence that his health had deteriorated in recent years. His psychiatrist testified that plaintiff suffered from extreme anxiety and depression and that this condition was aggravated by his. continuing financial obligations to defendant. Defendant offered evidence that she had developed serious health problems which made full-time employment impossible. There was conflicting medical testimony concerning the nature and extent of her illness.

After hearing the evidence, the trial court made findings of fact. The court concluded that the assets divided at the time of the divorce were acquired through the efforts of both parties, that defendant had received $40,600 in alimony since the divorce and that defendants condition of health did not render her unemployable. Further, the court found that defendant and Jones were living together in the manner alleged by plaintiff, that Jones did not contribute financially to the living situation, and that since the divorce plaintiff was receiving continuous psychological treatment for anxiety and depression. Having made these findings the court ruled that defendant, by living with Jones since 1970, had materially changed the parties’ circumstances, and that the husband should not be compelled to support “his divorced wife and her paramour in idleness and fornication.”

Defendant initially contends that the instant facts do not justify the ordered termination of alimony. Indeed, she urges that the trial court erred in denying her counter-petition for an increase in alimony.

Section 18 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 19) permits a court to terminate or alter the allowance of alimony when it is reasonable and proper. Before termination or modification of the provisions of a decree of divorce will be allowed, the petitioner must establish that changes in the circumstances of the parties have occurred which are so substantial as to justify the relief sought. Louthan v. Louthan (1970), 130 Ill.App.2d 281, 264 N.E.2d 797; Loucks v. Loucks (1971), 130 Ill.App.2d 961, 266 N.E.2d 924.

It has been held in Illinois that a wife’s right to alimony is not affected by the moral quality of her post-divorce conduct. (Cole v. Cole (1892), 142, Ill. 19, 31 N.E. 109; Cooley v. Cooley (1927), 244 Ill.App. 488.) Although, as plaintiff correctly points out, these cases were decided before the courts had the statutory authority to terminate alimony, we find the principle enunciated to be applicable to the facts before us.

Sincé receiving the statutory authority to terminate alimony, the courts, in determining whether the change in circumstances is so serious as to justify such termination, have focused on factors such as the length of the marriage, whether children were bom, the existence of a property settlement agreemént, and the age, health, employability, and financial condition of the parties. (Tan v. Tan (1972), 3 Ill.App.3d 671, 279 N.E.2d 486; Johnston v. Johnston (1972), 9 Ill.App.3d 247, 292 N.E.2d 39; Bowman v. Bowman (1973), 11 Ill.App.3d 719, 298 N.E.2d 339.) The issue of alimony termination and modification was most recently considered by this court in Borowitz v. Borowitz (1974), 19 Ill.App.3d 176, 311 N.E.2d 292. In that case the parties were middle-aged at the time of their marriage, and both had been married before. The husband was a wealthy businessman. After 2% years the marriage ended in divorce. Pursuant to a property settlement agreement, the wife kept property valued at $150,-000, and the husband paid $16,000 per year in alimony. After 10 years the husband petitioned the court to terminate alimony. The petition was granted by the trial court on the basis that the substantial sums already paid, the net worth of the parties, and the passage of 11 years since the entry of the decree, all amounted to a material change in circumstances. In reviewing the order, this court held that the changed circumstances did not warrant termination of alimony. However, we noted that alimony was meant to contribute to the support of the wife and not to visit punitive damages upon the husband for any supposed misconduct. We held, therefore, that the change in circumstances justified a modification of alimony, and remanded the cause to the trial court to conduct hearings for such purpose.

Applying the reasoning of Borowitz, we believe that a termination of modification of alimony must reflect a substantial change in the needs of the parties and cannot be used to punish the moral transgressions of the wife. Defendant in the present case is nearly 50 years old, with no career training or significant work experience. The parties were married for 24 years, during which time plaintiff built a successful dentistry practice. Defendant’s efforts contributed to that success. The trial court specifically found that the assets transferred to defendant at the time of the divorce were acquired through the joint efforts of both parties. Subsequent to the divorce, defendant agreed to a 30% reduction in alimony, despite the fact that plaintiff’s income had increased substantially. In light of all these facts, we conclude that the trial court erred in totally terminating alimony.

Yet, while the changed circumstances do not justify termination, they clearly support a modification of alimony. Plaintiff should not be required to support Jones. The evidence revealed that, despite the fact that Jones earned $11,000 per year, practically all of his living expenses were provided by defendant. Defendant in turn received almost all of her income from the alimony award. Jones paid no rent and made no financial contribution toward the home expenses, except for an occasional grocery purchase. Defendant paid all of the taxes, utility bills, insurance, and provided almost all of the food for Jones. We direct therefore, that the trial court enter an order modifying the present alimony, and that it conduct such hearings as necessary to determine a proper alimony award. In our view, discussion is unnecessary for our further finding that the trial court correctly denied defendant’s counter-petition for an increase in alimony.

Defendant also urges that the trial court erred in denying her motion for prospective attorney’s fees to prosecute this appeal. The argument is without merit. The only authority for attorney’s fees on appeal in divorce matters is found in section 15 of the Divorce Act (Ill. Rev. Stat. 1969, ch. 40, par. 16). That section allows attorney fees for the defense of an appeal; it does not authorize the court to grant fees to prosecute an appeal. (Buehler v. Buehler (1940), 373 Ill. 626, 27 N.E.2d 466.) Furthermore, in Honoitz v. Honoitz (1970), 130 Ill.App.2d 424, 264 N.E.2d 723, this court held that section 15, by its express terms, applies only to matters culminating in the original divorce decree and does not authorize the allowance of attorney’s fees to either side in an appeal from a post-decretal order. The court properly denied defendant’s motion for attorney’s fees.

Since the assigned error is unlikely to recur in the new hearing, we deem it unnecessary to consider defendant’s claim that the trial court committed reversible error in several of its evidentiary rulings.

For the reasons stated, the order of the circuit court of Cook County denying defendant’s petition for an increase in alimony is affirmed. The order denying defendant attorney’s fees to bring this appeal is also affirmed. The order terminating the award of alimony to defendant is reversed, and the cause is remanded to the trial court with directions to conduct the necessary hearings to determine a proper award of alimony in accordance with the holdings of this opinion.

Affirmed in part; reversed in part and remanded.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE McGLOON.

license: Public Domain

text:
    612 North Michigan Avenue Building Corp., Plaintiff-Appellee, v. Factsystem, Inc., Defendant.—(Jefferson State Bank et al., Defendants-Appellants.)
    (No. 60210;
    First District (3rd Division)
    January 9, 1975.

      Rehearing denied February 6, 1975.

      Harry G. Fins, of Teitelbaum, Wolfberg, Guild & Toback, of Chicago, for appellants.
    Ralph G. Scheu, of Chicago, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE McGLOON.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbur Jackson, Defendant-Appellant.
    (No. 60013;
    First District (3rd Division)
    January 9, 1975.
    James J. Doherty, Public Defender, of Chicago (Gail Moreland and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and G. Severe Cole, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Julius James, Defendant-Appellant.
    (No. 60116;
    First District (3rd Division)
    January 9, 1975.
    James J. Doherty, Public Defender, of Chicago (William A. Swano, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Richard H. Robinson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Larry Macon, Defendant-Appellee.
    (Nos. 60506-7 cons.;
    First District (3rd Division)
    January 9, 1975.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Thomas D. Rafter, and Bruce H. Weitzman, Assistant State’s Attorneys, of counsel), for the People.
    No brief for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Orangie L. Richie, Petitioner-Appellant.
    (No. 60571;
    First District (3rd Division)
    January 9, 1975.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    No appearance for the People.
   PER CURIAM.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Normant et al., Defendants-Appellants.
    (No. 57901;
    First District (5th Division)
    January 10, 1975.

      James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of tire court:

Defendants were jointly charged with two counts of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) and were tried together. Defendants Hart and Reed chose a jury trial; defendants Normant, Ford and Williams chose a bench trial. Following their convictions they were sentenced as follows: Normant, 7 to 14 years; Reed, 5 to 10 years; Ford, 8 to 16 years; Hart, 7 to 14 years; and Williams, 5 years to 5 years and 1 day. All defendants join in this appeal.

Defendants raise three contentions for our consideration: (1) they were denied effective assistance of counsel due to their joint representation by a single attorney; (2) defendants Reed and Hart were denied a fair trial due to the trial court’s refusal to excuse the jury while two of the bench-trial defendants testified, and this error was compounded when the prosecution relied on the testimony of the bench-trial defendants during closing argument; and (3) the trial court applied an erroneous standard of law in denying their motion to suppress evidence. Defendants do not challenge the sufficiency of the trial evidence.

Defendants were arrested and charged with the armed robbery of the V.I.P. Discount Store located at 1051 West 63rd Street in Chicago, and a single public defender was appointed to represent them. At arraignment Ford requested an attorney other than the public defender. The court refused but suggested that Ford make his objection to the trial judge. Subsequently, in a written pro se motion, Normant requested the appointment of a bar- association attorney for his defense. This motion was denied. Defendants made no further requests for separate counsel.

Prior to trial the court held a hearing on the motion of defendants Normant, Ford, Hart and Williams to suppress evidence seized at the time of their arrest. Defendants all testified that they were arrested between 5 and 6 P.M. on January 21, 1972, at the V.I.P. Discount Store, and that they were not shown warrants for their arrest and search. Normant testified that, at the time of his arrest, he had entered the store in order to purchase a shirt; Ford testified that he was shopping for a pair of pants; and Hart and Williams testified that they were standing innocently in the vicinity of the store.

The State then called Chicago Police Officer Joseph Caddigan who testified that at approximately 5:45 P.M. on the date in question he was on patrol with his partner, Officer Ronald Mainellis, when they received notification of a “silent holdup alarm” on the “Citywide Police Radio.” They were less than a block from the store when they received the call, and it took them not more than a minute to arrive at the scene. He found Reed standing outside the doorway and said to him, “Police officers. Were going back into the store.” Standing just inside the doorway were Williams and Hart; behind them, “just within the store proper,” were Normant and Ford. Within a short period of time a Mrs. Banks approached him from the rear of the store and told him that defendants had just held her up. She also said that Normant and Ford had thrown their weapons behind the front counter. She identified all five defendants as being participants in the robbery. He then searched defendants. On cross-examination Caddigan testified that when he first arrived on the scene he drought that defendants could easily have been tíre victims of the robbery. Mrs. Banks did not tell him that Ford and Normant had been carrying guns until after he had searched them; however, he “didn’t search anybody until she [Mrs. Banks] said she was robbed.”

Officer Mainellis and Mary Aaron, a saleslady at the store, were called by die State and substantiated much of Caddigan’s testimony.

The court denied defendants’ motion, finding that Officer Caddigan “had probable cause to make tire detention and the subsequent arrest and search of the defendants.”

At trial Ella Mae Banks testified for the State tiiat she is the owner of the V.I.P. Discount Store. On January 21, 1972, she was present at approximately 5:45 P.M. with two employees, Mary Aaron and Felix Foster, when “four fellows walked into the store.” Another individual stayed at the door. She identified defendants as these five men. Normant asked her if he could try on a coat. He turned his back to her as he put it on. When he turned around, he had a gun drawn and said, “This is a stickup.” Ford, who was also armed with a gun, moved to the back of the store. Normant ordered Felix Foster to empty his pockets and lie on the floor. Foster took out his black billfold, and Normant picked it up and put it in his pocket. Normant then ordered her to open her two cash registers. Ford and Hart took the money out of them. Normant, Ford and Hart also broke into the jewelry display case, and Reed and Hart began removing clothes from the shelves. Suddenly Williams, who was posted just outside the store, knocked on the door and said, “The police.” The other four rushed to the front of the store. Just before the police entered, Ford and Normant threw their guns over the counter. Upon entering, one of the police officers asked, “What’s going on here?” She answered, “It’s a stickup.”

Mary Aaron and Felix Foster corroborated the testimony of Mrs. Banks.

The testimony of Officers Caddigan and Mainellis for the State was substantially similar to that which they gave at the hearing on defendants’ motion to suppress. They added that when they searched defendants they found two watches in Williams’ pockets, United States currency in Ford’s pocket and currency and a billfold, identified by Felix Foster as the one taken from him, in Normant’s pocket.

Chicago Police Officer Rudy Rodriquez testified for the State that he found the two holdup weapons behind the counter where Mrs. Banks indicated Ford and Normant had thrown them.

At the conclusion of the State’s case defense counsel requested that the jury be excused while he presented evidence on behalf of the bench-trial defendants. The trial court denied this request but did give a cautionary instruction to the jury before the testimony of each bench-trial defendant.

Reed, a jury-trial defendant, testified that he and Hart were walking past the store when they were told by police officers to come back. They entered the store where they were placed under arrest.

Williams testified that he was walking past the store when he was arrested. While in the custody of the police he saw the other defendants being led out of the store by the police.

Normant testified that he was in the store when police officers entered, pushing Hart, Reed and Ford, who were then lined up against a wall. He was ordered to join the three men against the wall.

Ford and Hart chose not to testify on their own behalf. Defense counsel represented to the court that Hart decided against testifying because he was not successful in a motion to bar use of evidence of his prior convictions.

Opinion

Defendants, relying on Glosser v. United States, 315 U.S. 60, first contend that they were denied effective assistance of counsel by reason of their joint representation by one attorney.

The Supreme Court in Glasser found that where the trial court was put on notice that joint representation might lead to a conflict of interests, and the record indicates that the defendant was consequently prejudiced, the defendant’s Sixth Amendment guarantee of effective assistance of counsel had been violated. However, the mere fact that defendants are to be tried jointly does not necessitate the appointment of separate counsel for each of them. The Illinois Supreme Court has held that some prejudice or conflict of interest resulting from joint representation must exist before one can be said to have been denied the effective assistance of counsel. (People v. Somerville, 42 Ill.2d 1, 10, 245 N.E.2d 461.) It becomes necessary to appoint an individual attorney to represent each defendant only if there is a showing that a conflict of interest can be anticipated. (People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898.) Thus, if there is no inconsistency in their defenses, it is not improper for the same public defender to contemporaneously represent more than one defendant. (People v. McCasle, 35 Ill.2d 552, 221 N.E.2d 227.) This principle was illustrated in People v. Williams, 36 Ill.2d 194, 222 N.E.2d 321, where the court affirmed the convictions of six codefendants, prosecuted for rape, who were represented by a single public defender. The court noted that the defenses of the co-defendants were not antagonistic and then found that “[tjhere is nothing in this record to suggest that there would have been a different result if there had been six attorneys appointed to represent the defendants in this trial or in six different trials.” People v. Williams, 36 Ill.2d 194, 207.

In the instant case it is equally clear that there would not have been a different result if five attorneys had been appointed to represent defendants at a single trial or in five separate trials. The record reveals that all five defendants were identified at the scene of the crime by the victims of the armed robbery. Defendants at no time indicated to the trial court that their defenses would be antagonistic. Their accounts of the events that preceded their arrests were consistent; those defendants who chose to testify uniformly claimed that they were innocently going about their business when seized by the police. Thus the testimony of no defendant incriminated his fellows. We find that under the facts and circumstances of this case the representation of defendants by a single attorney did not constitute a denial of effective assistance of counsel.

Defendants Reed and Hart, who chose to be tried by a jury, assert that the court erred when it refused to excuse the jury while two of the bench-trial defendants testified, and that this error was compounded when the prosecution relied on their testimony during final argument.

As indicated above, the testimony complained of, given by defendants Williams and Normant, in no way inculpated Reed and Hart. Moreover, the trial court, prior to the testimony of Williams and Normant, advised the jury that they were not to take into account any testimony given by the bench-trial defendants when considering the guilt or innocence of Reed and Hart. Although mention of this testimony by the prosecution during closing argument may have been improper, we believe that in view of the overwhelming strength of the State’s case, the procedures which defendants claim as error were harmless beyond a reaonable doubt. Chapman v. California, 386 U.S. 18.

Finally, defendants challenge the constitutionality of section 114— 12(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(b) ). They claim that it placed upon them the burden of proving that their arrest and subsequent search were illegal whereas the Fourth Amendment requires that the prosecution justify a warrantless search. We find no merit in defendants’ contention.

Defendants have cited several Federal cases to the effect that the State must establish the legal justification for a warrantless search. (See, e.g., Vale v. Louisiana, 399 U.S. 30; United States v. Burhannon (7th Cir.), 388 F.2d 961.) Illinois procedures under section 114 — 12(b) are in accord with this rule. Our courts have consistently held that once the defendant has made a prima facie case that the police lacked probable cause (i.e., by evidence that the police had no warrant, and that defendant was doing nothing unusual when arrested), the burden of going forward with evidence to demonstrate the legal justification for the search shifts to the State. People v. Cassell, 101 Ill.App.2d 279, 243 N.E.2d 363; People v. Moncrief, 131 Ill.App.2d 770, 268 N.E.2d 717; People v. King, 12 Ill.App.3d 355, 298 N.E.2d 715.

In the instant case, at the hearing on their motion to suppress, defendants testified that they were shopping or merely walking past the V.I.P. Discount Store when police officers, who had no warrant, searched and arrested them. The burden then shifted to the State, which introduced evidence that officers on patrol within one block of the store responded to a radio call and proceeded to the scene of the crime where they found the five defendants. Although defendants now claim that Patrolman Caddigan arrested and searched them before they were identified by Mrs. Banks and, therefore, had no probable cause, the record reveals that the officer testified, “I didn’t search anyone until she [Mrs. Banks] said she was robbed.” The trial court clearly found this account of defendants’ arrest to be more credible than the one which they now put forward. On the basis of this record we cannot say that the court below committed error in finding that the police had probable cause to arrest and search defendants, nor do we believe that in following well-established procedures in ruling on their suppression motion it violated the Fourth Amendment.

For the foregoing reasons we affirm the judgment entered below.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

       Section 114 — 12(b) (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(b)) provides in pertinent part that “® * * the burden of proving that the search and seizure were unlawful shall be on the defendant.”


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Luther Coburn, Defendant-Appellant.
    (No. 58680;
    First District (5th Division)
    January 10, 1975.

      James J. Doherty, Public Defender, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendant was found guilty of unlawful use of weapons, section 24 — 1(a) (7) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(7)) and sentenced to a term of 1 to 5 years. On appeal he contends that: (1) the State failed to prove beyond a reasonable doubt he possessed a sawed-off shotgun as charged; (2) the trial court erred in failing to suppress evidence secured as a result of an illegal search, and (3) he was denied his right to confrontation by the trial court’s refusal to allow questioning of the prosecution witness concerning the identity of an informer.

Evidence

At trial the parties stipulated that evidence presented at a hearing on defendant’s motion to suppress physical evidence would be part of the trial.

Sergeant Robert Gaides for the prosecution, on the motion to suppress, testified in pertinent part as follows:

On March 17, 1972, he had a conversation with an informer whom he had known for about 4 to 5 years. The informer told him that a man whom he knew as Luthie Coburn had bragged to him during several conversations that he was wanted for a murder that had occurred several months prior. Cobum had shown the informer a Chicago policy daily .bulletin with his picture and which stated Coburn was wanted in connection with a homicide investigation.

The informer indicated that the man was a 20- or 21-year-old male Negro whose hair had been dyed to a reddish tint and told the witness the address of the building where the man resided in the basement. Defendant had told the informer he would not be taken alive, and the informer had observed at least two sawed-off shotguns and one revolver in the basement apartment.

After taking the informer to the address to verify that it was in fact the house in which the informer said defendant lived, the witness found the daily bulletin in which there was a photo of a Luther Cobum wanted for homicide. He checked and verified that a warrant for defendant was still active and had not been served, but he never obtained the warrant itself. The next evening, he took two detectives with him and conducted a surveillance of the premises. After leaving the area for 2 hours on another matter, the three returned to the premises and observed several Negro youths, 17 to 22 years old, entering and leaving the building using the rear side entrance. A male Negro having the same facial features and physical description as the Luther Cobum pictured in the daily bulletin opened the door, walked into the rear yard and urinated. The man returned to the building before the witness could arrest him.

Sergeant Gaides went back to headquarters to obtain help and heavy equipment. Upon his return to the area he observed a man, John Floyd, who informed him that he had come from the address in question. Floyd tried to gain admittance again, but the person who came to the rear door would not or could not open it.

Sergeant Gaides went to the rear door, knocked on the door and then kicked it in to enter the basement apartment. In the center section of the basement he observed a male and a female both Negro, on a bed. He observed what he believed to be the stock of a shotgun sticking out from under the mattress, pulled it out, and found it to be a sawed-off shotgun. The male was arrested and, in response to questions, said that he did not know of a Luther Cobum and that Coburn was not in the building.

Approximately 10 feet from the back wall of the basement was a lattice partition with an opening similar to a doorway. He looked behind the partition and observed defendant lying on a couch on his right side. This was the same person who earlier had opened the door and who had left the building to urinate.

The witness shined his light on defendant and observed what appeared to be a shotgun lying between his body and his right aim, no more than 2 inches from his person, with the butt of the gun up underneath his right arm and the barrel end pointing toward his feet. Upon examination the witness determined this was merely the stock of a shotgun with no barrel attached. The witness took the shotgun stock and also took a revolver from the floor alongside the couch. He rolled defendant on his back, handcuffed him, and awakened him. In response to the witness’ question, defendant said his name was not Luther Coburn. He was advised of his rights, informed that he was under arrest for violation of the “Uniform Act Regulating the Shotgun in the State of Illinois,” and told that the police had a murder warrant for him. The witness found a shotgun barrel in another part of the basement that fit the stock in defendant’s possession.

At trial the witness identified a sawed-off shotgun, subsequently received in evidence, as the one he recovered from defendant, with the exception that the barrel was not attached at the time the recovery was made. The parties stipulated that the gun barrel was less than 18 inches long.

Opinion

Defendant first contends that the State failed to prove the defendant possessed a shotgun with a barrel less than 18 inches. He argues that while the stock was found in his possession it was not a shotgun because there was no barrel attached to it.

Defendant was charged with violating a statute that forbids the knowing possession of “any shotgun with a barrel less than 18 inches in length,” section 24 — 1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(7)). The testimony of Sergeant Gaides indicates that only the stock of the shotgun was found lying adjacent to the sleeping defendant; the barrel was discovered “in another location in the basement.” Although the two parts were pieced together at trial, the State offered no evidence to show that the barrel they found belonged to the stock; nor was there any testimony the barrel was not designed for the sawed-off shotgun found in another part of the basement at the time of the arrest.

Although it appears that defendant did possess the stock of a shotgun, this is not prohibited under section 24 — 1(a)(7) of the Criminal Code. Assuming arguendo that the search that led to the discovery of the barrel was legal and that the stock was in defendant’s possession, we conclude, absent proof that the barrel and stock were part of the same gun, that the State has failed to prove beyond a reasonable doubt that defendant possessed a shotgun at all, much less a shotgun with a barrel less than 18 inches in length.

The State contends that a weapon that is the subject of an unlawful use of weapons charge need not be shown to be operative; it is sufficient to show that the weapon possessed the outward appearance and characteristics of a shotgun. (People v. Halley, 131 Ill.App.2d 1070, 268 N.E.2d 449.) We believe, however, that the barrel of a shotgun does more than render the weapon operative. The barrel is an integral part of the weapon; without it, the object found lying next to the defendant lacks the essential characteristics of a shotgun and is merely the stock of a shotgun, which is not prohibited.

In view of our finding that the State failed to prove defendant guilty beyond a reasonable doubt, we need not consider defendant’s other contentions. Defendant’s conviction is reversed.

Reversed.

DRUCKER and SULLIVAN, JJ., concur.


author: Mr. JUSTICE LEIGHTON Mr. JUSTICE HAYES,

text:
    Urban Investment and Development Co. et al., Plaintiffs-Appellants, v. Maurice L. Rothschild & Co., Defendant-Appellee.
    (No. 59061;
    First District (2nd Division)
    January 10, 1975.

      HAYES, J., specially concurring.
    Overton, Schwartz & Yacker, Ltd., of Chicago, for appellants.
    Sydney B. Wexler, Warren L. Swanson, and David A. Lowe, all of Chicago, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal is from a judgment entered in two consolidated suits for possession of land filed by the landlords of a tenant to whom they were renting stores in two shopping centers. Notices terminating the tenancies were served on the ground that the tenant’s parent corporation had filed bankruptcy proceedings, an occurrence which the landlords claimed was a default that entitled them to demand surrender of the rented premises. The issue presented is whether the landlords had the right to terminate the leases and thus were entitled to possession of the stores. The facts giving rise to this issue are undisputed.

For many years prior to November 4, 1971, Maurice L. Rothschild & Co. was a wholly owned corporate subsidiary of Botany Industries, Inc. Botany was incorporated in Delaware; Rothschild in Illinois. On October 31, 1971, Rothschild executed an “Assignment and Assumption” agreement with Botany which recited that, subject to its right to continue occupying the leased premises, Rothschild “does hereby assign to [Botany] all of its right, title and interest as lessee * * *” in eight leases. In one of these, Rothschild was renting a store in the River Oaks Shopping Center, Calumet City, Illinois, from Draper and Kramer, Incorporated. In another, Rothschild was renting a store in the Old Orchard Shopping Center, Skokie, Illinois, from Urban Investment and Development Co.’s predecessor corporation. The River Oáks lease was to July 31, 1981; the Old Orchard lease, to July 31, 1977. Each lease was nearly identical in form with the other; at Rothschild’s election, they could be assigned to its parent corporation; and each contained an article which provided in part that “* * * if any proceedings shall be commenced to declare Tenant bankrupt or insolvent * * * then Landlord may treat the occurrence * * * as a breach of this lease * 0 V’

On the day the “Assignment and Assumption” was executed, Rothschild and Botany entered into another agreement by which the two stores were “subleased” to Rothschild for a period to end on the same dates that the two leases expired. In this agreement, Botany was denominated the “assignee of and tenant” of the premises with power to terminate in the event it received “a bona fide offer to purchase its position as an assignee-tenant * * *” under the leases. Rothschild had the right of first refusal and was guaranteed a release from all liability if terminations should become effective. By the terms of the latter agreement, Rothschild remained bound to the terms of the two leases; it could look only to the landlords for service; and instead of the amounts called for in each lease, it was to pay Botany as rent a sum equal to 5% of its gross sales in each store, payable monthly. Then, on November 4, 1971, Botany sold all the capital stock of Rothschild to Clarence Permut, subject to the agreements of October 31.

On April 25, 1972, in the United States District Court for the Eastern District of Pennsylvania, Botany filed proceedings for reorganization under chapter XI of the bankruptcy act. Approximately 2 weeks later, the landlords, Draper and Kramer, Incorporated, and Urban Investment and Development Co.’s predecessor, served notices that, as provided in the bankruptcy provisions in each lease, they were electing to terminate and take possession of the two stores, claiming that the filing of bankruptcy proceedings by Botany was a default under the leases. Accordingly, they demanded that Rothschild surrender the leased premises. Rothschild refused to do so. Thereupon the landlords filed separate suits for possession. Each complaint alleged execution of the leases, the later execution of the “Assignment and Assumption” and “Sublease” agreements between Rothschild and Botany, payment of rent by Botany after the agreements, the provision concerning bankruptcy and the filing of bankruptcy reorganization proceedings by Botany. Each complaint alleged that the filing was a violation of the leases and prayed for issuance of a writ of restitution.

Rothschild appeared, answered the complaints and admitted having executed the “Assignment and Assumption” and “Sublease” agreements with Botany; it affirmatively alleged that under the leases and after the agreements, it continued to be the tenant; that all the rents had been paid; that Botany did not, at any time, become a tenant of the leased premises; that Botany had filed for reorganization under the Federal bankruptcy act but this fact did not change Rothschild’s status as tenant of the stores because Rothschild was not involved in any bankruptcy proceeding; and that Rothschild was prepared to continue performing all tlie obligations it had undertaken under the terms of the two leases. Then, the parties proceeded with discovery and with motions for summary relief. In the interim, on November 30, 1972, without Rothschild being a party, Botany, in the bankruptcy case, entered into a surrender agreement whereby it agreed to termination of tire leases.

A short time later, the Rial court entered an order consolidating the two suits filed in the circuit court of Cook County. Following this entry, the Rial court, having heard the parties, found that Rothschild had executed an “Assignment and Assumption” agreement with Botany, as assignee; that by the terms of the leases, Rothschild, not Botany, was the tenant; that Botany had filed for reorganization under chapter XI of the bankruptcy act but Rothschild was not involved in any bankruptcy proceeding; that the provisions in the leases concerning the occurrence of bankruptcy had not become operative; and that with regard to the payment of rent, its noncollection by the landlords was the result of the strategy by which they refused an open-court tender of payment by Rothschild. The trial court concluded that the notices of termination were invalid and that the landlords were not entitled to possession. It is this ruling that gives rise to the issue presented for our review. To resolve the issue, we must first determine the effect of the “Assignment and Assumption” and “Sublease” agreements between Rothschild and Botany and then decide who was the tenant of the two stores on April 25, 1972, when Botany filed the bankruptcy reorganization proceedings,

I.

Throughout this litigation, Rothschild has contended that the “Assignment and Assumption” and “Sublease” agreements it entered into with Botany did not affect its status as the tenant under the leases in question. The landlords, on the other hand, contend that the agreements, together with the sale of Rothschild to Permut, were intended by the parties to make Botany the tenant of the stores as the assignee of the two leases. No findings of fact or conclusions of law concerning these agreements were made or reached by the trial court. It is our opinion, however, that the court construed them sub silentio when it ruled in favor of Rothschild. The essential question in that construction was whether the leases were assigned to Botany.

A lease is a contract for exclusive possession of lands, tenements or hereditaments for life, for a term of years, or at will, or for any interest less than that of the lessor, usually for a specified rent or compensation. (Illinois Central R.R. Co. v. Michigan Central R.R. Co., 18 Ill.App.2d 462, 477, 152 N.E.2d 627.) A lease possesses the property of passing an estate in land; it partakes of the nature of an estate, and exclusive possession of the leased premises is essential to its character. (Holladay v. Chicago Arc Light & Power Co., 55 Ill.App. 463, 467; compare Alwood v. Ruckman, 21 Ill. 200; R.J. Gunning Co. v. Cusack, 50 Ill.App. 290.) In this case, it is not disputed that on the day of the transaction between the two corporations, Rothschild was in possession of two stores as the tenant for a term of years under written leases.

Whether a transaction is the assignment of a lease depends on its nature, the language employed, and all the circumstances of the case. (Lemons v. Knox (1951), 72 Ariz. 177, 232 P.2d 383; Dodson v. Mc-Elreath (1950), 210 Miss. 160, 48 S.2d 861; Branmar Theater Co. v. Branmar, Inc. (Del. Ch. 1970), 264 A.2d 526; 51C C.J.S. Landlord & Tenant § 37(1)a (1968).) And generally, whether the assignment of a lease has actually occurred is a question of law. (Compare Berry v. Blackard Construction Co., 13 Ill.App.3d 768, 300 N.E.2d 627; see Gow v. Buckminster Hotel, Inc. (1958), 336 Mass. 606, 146 N.E.2d 928.) The “Assignment and Assumption” agreement contained words that expressed the concept of assignment and labeled Rothschild the “assigner” and Botany the “assignee.” However, it is well-established that the legal effect to be given an instrument is not determined by the label it bears or the technical terms it contains. Bonde v. Weber, 6 Ill.2d 365, 377, 128 N.E.2d 883; compare Chicago Housing Authority v. United States Fidelity & Guaranty Co., 49 Ill.App.2d 407, 199 N.E.2d 217.

Therefore, in construing the “Assignment and Assumption” agreement, we are bound by the rule that an assignment of a lease occurs where the lessee transfers the entire unexpired remainder of the term created by his lease. For example, where he assigns his whole estate without reserving to himself a reversionary property interest, a privity of estate is at once created between his transferee and the original lessor, and in such a case, the transfer is an assignment. (Sexton v. Chicago Storage Co., 129 Ill. 318, 326, 21 N.E. 920.) But if he reserves or retains any reversion in the leased premises, however small, the privity of estate between his transferee and the original landlord is not established; and in such a case there is no assignment. (Kratovil, Real Estate Law 337 (5th ed. 1969); 1 Rasch, Landlord & Tenant § 35 (1950); 1 Tiffany, The Law of Real Property § 123 (3d ed. 1939); 1 Tiffany, The Law of Landlord & Tenant § 151 (1910).) It clearly appears in this case that Rothschild, by the terms of the “Assignment and Assumption” agreement, retained interests in the two leases sufficient to preclude any notion that it had assigned its tenancy. It expressly reserved the right to use and occupy the leased premises for the balance of the terms. For these reasons, we conclude that the agreement was not an assignment of the leases. The “Sublease” from Botany did nothing more than confirm the reversions, although a different rent was to be paid. (See Taylor v. Marshall, 255 Ill. 545, 99 N.E. 638.) As a result, at the conclusion of the agreements of October 31, 1971, Rothschild continued in possession of the lands described in the leases.

II.

In the broadest sense, one who holds or possesses lands or tenements by any kind of right or title, whether in fee, for life, for years, at will or otherwise, is a tenant. (Hosford v. Ballard (1868), 39 N.Y. 147, 151; Caldwell v. Thiessen (1939), 60 Idaho 515, 92 P.2d 1047.) Therefore, a tenant is anyone who lawfully occupies or has temporary possession of land whose title is in another. (Insurance Co. v. O’Connell, 34 Ill.App. 357, 361; I.L.P. Landlord and Tenant § 2 (1956).) He is one who has the temporary use and occupancy of real property owned by another person, called the landlord, with the relation, duration and terms of the tenancy usually fixed by an instrument called a lease. See 51C C.J.S. Landlord br Tenant § 1 (1968); Black’s Law Dictionary 1635 (rev. 4th ed. 1951).

Possession and occupancy are essential for the relation. If a lessee under a written lease does not go into possession of the leased premises, the relation of landlord and tenant does not arise; the relation is that of lessor and lessee. (Simon v. Kirkpatrick (1927), 141 S.C. 251, 256, 139 S.E. 614, 616; Bunch v. Elizabeth City Lumber Co. (1903), 134 N. C. 116, 118, 46 S. E. 24, 25.) Where two parties agree to a lease of an estate for years to begin at a future date but entry is not made, the lessee has what the old authorities spoke of as an interesse termini; that is, the lessee is in a position where only entry is necessary to turn him into a full fledged tenant for years. 2 Powell, The Law of Real Property § 223 (1973).

From these sources of the law, we see that in common parlance a tenancy arises or one becomes a tenant when he enters into the use, possession, or occupation of land belonging to another. (See Illinois Central R.R. Co. v. Michigan Central R.R. Co., 18 Ill.App.2d 462, 477, 152 N.E.2d 627; Friend v. Gem International, Inc. (Mo. App. 1971), 476 S.W.2d 134, 137-38.) In the record before us, it is not claimed that at any time Botany had possession of the leased premises or had a right to possession that was superior to Rothschild’s. For this reason we conclude, as did the trial judge, that on April 25, 1972, when Botany filed for reorganization under the bankruptcy act, Rothschild was the tenant under the two leases. It was not involved in any bankruptcy; the provisions of the leases concerning bankruptcy proceedings could not be made applicable to Rothschild. Therefore, the trial court correctly ruled that the notices of termination served by the landlords were invalid. We agree with the trial court that, under the circumstances shown in the record, the landlords could not terminate the leases for non-payment of rent. (See Madison v. Rosser, 3 Ill.App.3d 851, 279 N.E.2d 375.) The judgment is affirmed.

Affirmed.

STAMOS, J., concurs.

Mr. JUSTICE HAYES,

specially concurring:

I concur in the result, but I wish to express the line of reasoning by which I reach that result.

An essential element of tenancy is that, as between landlord and tenant, the tenant is either in lawful actual possession of the leased premises (whether personally or through a sub-tenant) with the landlord’s assent and in subordination to tire landlord’s title, or he has the legal right to the immediate possession of the said premises by the landlord’s assent and in subordination to the landlord’s title. Wood, A Treatise on the Law of Landlord & Tenant § 1 (1881); Taylor, The American Law of Landlord & Tenant § 14 (9th ed. 1904); Merki v. Merki (1904), 113 Ill.App. 518, 520, aff'd (1904), 212 Ill. 121, 72 N.E. 9; Lasher v. Redevelopment Authority (1967), 211 Pa. Super. 408, 236 A.2d 831, 833; Gates v. Herberger (1938), 202 Minn. 610, 279 N.W. 711, 712.

In the instant case, the “assignment” of the assignor’s leasehold estate under each of the two prime leases contained the following relevant sentences:

“Assignor does hereby assign to Assignee all of the Assignor’s right, title and interest as lessee in the following leases subject to Assignor’s right to occupy the premises demised thereunder. Assignee does hereby accept and assume and agree to observe and perform all of the terms, covenants and condition of the [said] Leases 8 8 8 on the lessee’s or tenant’s part to be performed thereunder subject to the rights of Assignor to occupancy under the Leases 8 8 8.”

It is conceded that the estate purported to be transferred was to endure for the entire remaining balance of the term of each prime lease.

Our supreme court has had occasion to define the phrase “subject to” as meaning “subordinate to,” “subservient to,” or “limited by.” (Engle stein v. Mintz (1931), 345 Ill. 48, 61, 177 N.E. 746.) Hence, in a transfer of property rights in which the transferor expressly makes the transfer “subject to” the continuation in himself of one of his then existing rights in and to the premises, the phrase “subject to” operates as a reservation of the said right by the transferor. (Dagrosa v. Calabro (Sup. Ct. 1951), 105 N.Y.S. 2d 178, 181.) In the words of our supreme court, the instant transfer was expressly made “subordinate to,” and is expressly “limited by,” the continuation of the said right in the transferor for the entire remaining balance of the term of the prime lease. We note further that, in the instant cage, not only did the assignor expressly make the transfer “subject to” the continuation in itself of the right of occupancy which it tiren held under the respective prime leases, but the “Assignee” also expressly accepted the transfer “subject to” the continuation in the “Assignor” of the said right under the prime leases. Under the language of the “assignment,” therefore, it is clear that the assignors right to occupy the leased premises derived, not from the assignee, but from the landlord by and through the prime leases.

Under the terms of a companion instrument by and between Rothschild and Botany (which the parties designated a “sublease”), Botany promised Rothschild that Botany would pay the rent reserved under the prime lease to the landlord therein, and Rothschild promised to pay a different rent to Botany. Rothschild also agreed that Botany was to have the power to terminate Rothschild’s occupancy in either of two specified events, neither of which ever occurred. It is significant that this “sublease” did not purport to transfer any right of or to occupancy from Botany to Rothschild. When the companion instruments are read together, they confirm each other in establishing that the parties intended Rothschild’s right to occupy the leased premises to be, and to continue to be, the right to occupancy which Rothschild then had under the prime lease involved. Even assuming, without deciding, that the “sublease” created a power in Botany to terminate- Rothschild’s occupancy, that power is irrelevant to the continuation of the landlord-tenant relationship between Rothschild and its landlord under the prime leases, since the power never became exercisable.

For the purposes of this case, I do not think it necessaiy to decide what property rights, if any, were transferred to or created in Botany and were subsequently “released” by Botany to the landlords under the prime leases. It suffices that the reserved right derived from the prime lease is the very right which is the essence of tenancy: the actual possession of the leased premises with the assent of the landlord and subject to his ownership right. Assignor Rothschild expressly reseived its right to occupancy of the premises, which was one of the rights it then had as against the landlord under the respective prime leases; and assignee Botany accepted the transfer subject to the right of assignor Rothschild to occupancy under the respective prime leases. Hence, under the terms of the assignment, assignee Botany never was in actual possession of the leased premises. Nor did it ever have, as against either the landlord or Rothschild, the right to the immediate possession of the leased premises. For that reason, assignee Botany never became the tenant under the prime leases.

Conversely, assignor Rothschild was, and was to continue to be, in actual possession of the leased premises under the right to occupy them which it then held under the prime lease, and, as against both the landlord and Botany, had and was to continue to have the right to immediate possession of the said premises for tire entire remaining balance of the term of the respective prime leases. Hence, Rothschild remained the tenant under the prime leases. Since it is conceded that Rothschild never went into bankruptcy, the respective landlord’s power to terminate the prime lease in that event never became exercisable.

       During the pendency of the suits, the landlords refused to accept rent from Rothschild on two occasions, June 6, 1972, and June 26, 1972. On November 30, 1972, however, they indicated a willingness to accept rent for the months of May thru December 1972. On December 8, 1972, the landlords again refused to accept rent from Rothschild as tenant. On that day, the trial judge ordered the rent paid into an escrow account; and after judgment was entered for Rothschild, the accumulated rents were paid to the landlords.

       Prior to the trial of the case, the Almalgamated Clothing Workers of America, Chicago Joint Board, a union that represented Rothschild’s employees, was permitted, on its motion, to appear amicus curiae and submit an affidavit in support of Rothschild’s opposition to the landlord’s efforts to evict it from the two stores. The union is not a party to this appeal.

       It is for this reason that the “Surrender Agreement” executed by Botany was ineffectual as it related to the premises here in issue. A surrender is the yielding up of an estate so that the leasehold interest becomes extinct by mutual agreement. (Johnson v. Northern Trust Co., 265 Ill. 263, 270, 106 N.E. 814; Peirce v. Conant, 47 Ill.App.2d 294, 301, 198 N.E.2d 555.) Absent possession or a superior right thereto, Botany was without the interest in property necessary to effect the purported surrender.

       An examination of the cases cited by the parties, as well as those produced by our research, reveals that the question implicit in this case is a novel one. (See Stamm v. Buchanan (1951), 55 N.M. 127, 132, 227 P.2d 633, 636; Waukegan Times Theatre Corp. v. Conrad, 324 Ill.App. 622, 59 N.E.2d 308.) The factor common in all of the cases we have examined is that the party whose bankruptcy is asserted to support the claim of forfeiture actually occupied the premises at some time. In the cases upholding forfeiture, the party occupied the premises at the time of the bankrupty. See Model Dairy Co. v. Foltis-Fisher, Inc. (2d Cir. 1933), 67 F.2d 704; In re Famous Fain Co. (2d Cir. 1926), 13 F.2d 529; Empress Theatre Co. v. Horton (8th Cir. 1920), 266 F. 657; In re Lindy-Friedman Clothing Co. (N. D. Ala. 1921), 275 F.453.


author: Mr. JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Hall, Jr., Defendant-Appellant.
    (No. 58917;
    First District (5th Division)
    January 10, 1975.

      Rehearing denied February 6, 1975.

      Howard T. Savage, of Chicago (Sheila Bator and Howard O. Edmonds, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael A. Tyrrell, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DRUCKER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James E. Bennett, Defendant-Appellant.
    (No. 59270;
    First District (5th Division)
    January 10, 1975.

      James J. Doherty, Public Defender, of Chicago (Edmund B. Moran, Jr., Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lamont Davis, a/k/a Lamont Lee, Defendant-Appellant.
    (No. 59331;
    First District (5th Division)
    January 10, 1975.

      James J. Doherty, Public Defender, of Chicago (James B. Murray, Judith A. Stewart, and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE SULLIVAN

text:
    Thomas T. Kelly, Plaintiff-Appellant, v. The Police Board of the City of Chicago et al., Defendants-Appellees.
    (No. 59946;
    First District (5th Division)
    January 10, 1975.

      Opinion modified upon denial of rehearing February 14, 1975.

      Howard T. Savage, of Chicago (Patricia Unsinn, of counsel), for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale, Michael J. Kelly, and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order of the circuit court sustaining a finding of cause for dismissal by the Police Board of the City of Chicago (Board) against the plaintiff, for violating Rules 2 and 6 of the department. On appeal, plaintiff contends (1) the written charges fail to state sufficient cause for discharge; and (2) the decision of the Board is not supported by substantial evidence appearing in the record.

Administrative hearings were held before a hearing officer appointed by the Board. The Board then reviewed the transcript of those hearings and found at point 7 of its “Findings and Decisions”:

“The Respondent as charged herein, contrary to the Rules and Regulations of the Department of Police, is guilty of violating Rule 2, ‘Any action or conduct which impedes the Department’s efforts to achieve its goals, or brings discredit upon the Department’, in that on July 11, 1972 he was apprehended by the River Grove Police Department at the scene of a burglary and was subsequently charged with Burglary and Theft.”

While points 8 and 9 of the “Findings and Decisions” relate to violations of Rule 6, the Board concedes that the evidence is insufficient to sustain those charges. The Board justifies its action discharging plaintiff solely on the violation of Rule 2. Relative thereto, the following evidence was adduced at the administrative hearing.

Patrick Ryndak, a River Grove police officer, testified that in the early morning of July 11, 1972, he was on routine patrol in the area of a shopping center at Cumberland and Belmont in River Grove. The center comprises six or seven connected stores, including Cosmo’s, a men’s clothing store. There is an apartment complex and parking lot immediately behind the shopping center. In that parldng lot, Officer Ryndak noticed a motorcycle which had no license plates or vehicle sticker. As he was examining the vehicle he heard a sound coming from the front of the shopping center. He went to the front and observed plaintiff in a crouched position near the window of Cosmo’s. As he approached, plaintiff stood up, and at the same time the officer observed an Army-duffel bag and a grey pair of pants on the sidewalk within 4 or 5 feet from the window and 2 or 3 feet from plaintiff. The duffel bag contained a white pair of pants and a suit coat, the latter having a label reading, “Cosmo’s, For Men Who Are, River Grove, Illinois.” The window of the store was broken, and there were broken glass, a hammer and a cane on the ground. However, Ryndak had not seen the plaintiff use the cane or the hammer.

As Ryndak placed plaintiff under arrest and searched him, plaintiff stated that he also was a police officer and was carrying a weapon.

Plaintiff was called as an adverse witness and stated his name, occupation and star number. When asked his whereabouts at approximately 4:30 A.M. on the morning of July 11, 1972, he refused to answer this and all subsequent questions relative to the incident on the grounds that his answers may tend to incriminate him.

Cosmo Laudadio, president of Cosmo’s Menswear Inc., was called as a witnéss and testified that he was summoned by the police to his store on July 11, 1972. He assumed some articles were missing from the store because the window was broken and a mannequin was turned over. Later, at the police station, he identified the clothing found at the scene and stated that they had been displayed on mannequins in the store window. He does not, however, arrange displays at the store, and there could have been 12 to 15 suits and 100 pair of white pants in his store similar to those he identified at the station. Furthermore, he stated that labels are not taken off the clothing when they are sold.

Plaintiff was subsequently charged with burglary and theft, and the Police Board commenced its action to remove plaintiff from the department.

I.

Counsel for plaintiff argues that the written charges fail to state sufficient cause for discharge, i.e., that merely being found at the scene of a burglary and theft and being charged therewith are insufficient causes for dismissal.

Procedures for removal of police in cities of more than 500,000 population are controlled by statute (Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1—18.1), which provides in relevant part that:

“In any municipality of more than 500,000 population, no officer * * * of the police department * * * may be removed or discharged * * ° except for came upon written charges and after an opportunity to be heard in his own defense by the Police Board.” (Emphasis added.)

The meaning of the term “cause” is not defined in the statute. Thus, the Board itself must interpret that term and determine what constitutes cause for dismissal. Its interpretation is then, in turn, subject to judicial review under the Administrative Review Act pursuant to section 10 — 1— 45 of the Illinois Municipal Code. (Ill. Rev. Stat. 1971, ch. 24, par. 10 — 1 —45.) This procedure was enunciated in Etscheid v. Police Board, 47 Ill.App.2d 124, 132, 197 N.E.2d 484, 488:

“The police board is charged with the duty of determining what constitutes cause for removal. In reviewing the decision of such a board under the Administrative Review Act it is the function of a court to decide if the charges preferred by the board are not so trivial as to be unreasonable or arbitrary, if it acted on evidence that fairly tended to sustain the charges, and if its decision is related to the requirements of the service; a court is not at liberty to substitute its judgment for that of the board.”

Likewise, in construing a related statute dealing with removal for cause of police ' officers serving in smaller communities, the cotut in Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339, stated at page 37:

“Although ‘cause’ is not defined by the statute, the courts have construed it to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.”

See also Davenport v. Board of Fire & Police Commissioners, 2 Ill.App. 3d 864, 278 N.E.2d 212.

We believe the charge and finding that plaintiff was present at the scene of the burglary and theft, and was later formally charged therewith, could properly be deemed by the Board to state such a substantial shortcoming in a police officer as to render his continuance in office detrimental to the discipline and efficiency of the service. The charges are not so trivial as to be unreasonable or arbitrary. (See Etscheid.) The Board’s decision is related to the requirement that officers maintain an unblemished standard of conduct, and it appears that its finding is based on an examination of the surrounding circumstances indicating that a valid basis existed for the charge of theft and burglary.

Nonetheless, plaintiff contends that the charges brought by the Board, i.e., the allegation that he was apprehended at the scene of a burglary and charged with burglary and theft, are insufficient in that they do not allege that he was guilty thereof, or was found guilty, or that he had even participated in the burglary.

The charges in administrative proceedings need not be drawn with the same precision required of pleadings in judicial actions. (Joyce v. City of Chicago, 216 Ill. 466, 75 N.E. 184; Sudduth v. Board of Fire and Police Commissioners, 48 Ill.App.2d 194, 198 N.E.2d 705.) They need only be sufficiently clear and specific to allow the preparation of á defense. See Sudduth; Schyman v. Department of Registration & Education, 9 Ill.App.2d 504, 133 N.E.2d 551.

.We believe that the allegation that plaintiff was charged with burglary and theft adequately advised him that the inquiry would investigate the facts surrounding those charges. The purpose of the administrative hearing and investigation here was not to ascertain whether plaintiff had been charged but to determine whether the charge had some basis in fact. Nor, as plaintiff contends, does such an interpretation of the charges render them so vague as to fail to apprise plaintiff of the specific conduct to which objection was made. In any event, if plaintiff desired more information of the charge, then, as pointed out to him by the hearing officer, a bill of particulars could have been filed.

Thus, we believe the Police Board properly exercised its discretion in finding that the charges against plaintiff constituted a sufficient allegation of cause for dismissal.

Plaintiff next contends that the decision of the Board is not supported by substantial evidence appearing in the record.

The findings of an administrative agency will be set aside only where they are against the manifest weight of the evidence. (Sudduth v. Board of Fire and Police Commissioners, 48 Ill.App.2d 194; Taylor v. Civil Service Com., 33 Ill.App.2d 48, 178 N.E.2d 200; Adamek v. Civil Service Com., 17 Ill.App.2d 11, 149 N.E.2d 466.) In order to reach the conclusion that a particular finding is against the manifest weight of the evidence, this court must be satisfied that “an opposite conclusion is clearly evident.” Kelley v. Civil Service Com., 31 Ill.App.2d 115, 117, 175 N.E.2d 630, 632; Arboit v. Gateway Transportation Co., 15 Ill.App.2d 500, 507, 146 N.E.2d 582, 586; Ritter v. Hatteberg, 14 Ill.App.2d 548, 555, 145 N.E.2d 119, 123.

Plaintiff’s counsel argues here that the evidence is equally capable of an interpretation that plaintiff merely happened upon the scene of a burglary and was then discovered by the River Grove police. However, this argument was not raised before the Board and, although plaintiff could and did properly exercise his Fifth Amendment right to refuse to answer the questions asked of him (cf. Gardner v. Broderick, 392 U.S. 273, 20 L.Ed.2d 1082, 88 S.Ct. 1913 (1968); Confederation of Police v. Conlisk (7th Cir. 1973) 489 F.2d 891, cert. denied, 416 U.S. 956, 40 L.Ed.2d 307, 94 S.Ct. 1971 (1974)), by doing so he limited the evidence available to the Board, and he may not now complaint that a decision based on these unexplained incriminating circumstances is unjust or unwarranted. From our review of the record we are of the opinion that the finding by the Police Board of cause for removal is not against the manifest weight of the evidence, and, because we believe that no opposite conclusion is clearly evident, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Julian Bell, Defendant-Appellant.
    (No. 60158;
    First District (5th Division)
    January 10, 1975.

      Paul Bradley and Steven Clark, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Patrick T. Driscoll, Jr., and Thomas D. Rafter, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    Psyche L. Pedersen, Plaintiff-Appellee, v. Sharon Kinsley, Defendant-Appellant.
    (No. 60369;
    First District (5th Division)
    January 10, 1975.

      Rehearing denied February 6, 1975.

    Edmund J. Burke, of Chicago, for appellant.
    Fred Lambruschi, of Chicago (Herbert P. Veldenz and John P. Goggin, of counsel), for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff, a guest in defendant’s automobile, was injured when the car swerved off the road and struck a lamppost. She sued defendant for damages arising from her injuries and alleged that defendant was guilty of willful and wanton misconduct. After the trial judge denied defendant’s motions for a directed verdict, both at the close of plaintiffs case and after all the evidence was presented, the jury rendered a verdict for plaintiff in the amount of $15,000. The jury also answered “yes” to the following special interrogatory: “Was the defendant, Sharon Kinsley, guilty of willful and wanton conduct which was a proximate cause of the occurrence in question?” After the trial judge overruled defendant’s post-trial motion for judgment notwithstanding the verdict, he entered judgment on the jury verdict.

On appeal defendant contends the court erred in denying her motions for a directed verdict both at the close of plaintiffs case and at the close of all the evidence.

The pertinent evidence adduced at trial was as follows: James Leahy, a Chicago police officer, testified as a witness for plaintiff. On July 16, 1970, he investigated .an automobile accident at 5114 North Kenneth Avenue. He interviewed defendant at Northwest Hospital shortly after the accident and was told by her that “she turned around to look back at her child to see if it was all right, and the next thing, she turned around into a post. She ran off the roadway.” When asked if she said anything to him about any animal on the road, Leahy responded “No.” It was a clear day and the accident occurred at 1:10 P.M. while there was daylight. The car involved was a two-door Chevrolet sedan.

Plaintiff, testifying in her own behalf, stated that she was 21 years old at the time of the accident. Defendant lived across the street, and they were friends. Defendant was taking her child, Laurie Kinsley, age 5, to the pediatrician and asked her to accompany them for the ride. Returning from the pediatrician’s office, they were proceeding west on Foster Avenue. Defendant made a left turn onto Kenneth Avenue and proceeded south. Kenneth is a one-way street going south, and the accident occurred about two-thirds of the way down the block. At the time plaintiff was sitting in the right-hand passenger seat next to defendant who was driving. Laurie was standing up in the back seat of the car.

As they were driving along the street, a little black animal, a dog or cat, ran out into the middle of the street. The animal was about 50 feet in front of the car when she first observed it. It was running from east to west. At the same time she saw the animal, Laurie also saw it and started screaming, “You’re going to hit it,” or something to that effect. When Laurie started screaming, the car swerved to the right. Plaintiff looked at defendant who was both looking at her daughter and turning the car. Plaintiff looked ahead and could see they were going toward a lamppost. Plaintiff then "shouted, “Stop, look out!” approximately three times. Defendant did not apply the-brakes, and the car never slowed down. The car wás going about 27 miles per hour when she first, saw the animal. While plaintiff was shouting these warnings, defendant kept turning the steering wheel, and the car kept going to the right. Defendant was looking to the right side of her shoulder at her daughter. Finally defendant looked up, screamed and threw her hands up off the wheel. Then the right side of the car s headlight hit the lamppost. Plaintiff was thrown forward, her jaw hit the dashboard, her head broke the windshield, and she was thrown back on her shoulder. The car traveled about 10 feet from the time she first screamed until she hit the lamppost.

Defendant was one or two feet from the curb when she took her hands off the steering wheel. While the car had been swerving to the right, defendant was looking at her child in the back seat of the car.

On cross-examination it was brought out that plaintiff only estimated the cars speed at 27 miles per hour. Defendant looked back at her daughter because of the child’s scream. Plaintiff never looked at Laurie. On a prior deposition plaintiff stated that when she heard the child scream, she also looked back at Laurie. It took plaintiff a matter of seconds to yell the warnings. Also in a prior statement plaintiff had said “that this was an accident, Sharon turned to avoid the dog, and the child screamed.”

On redirect examination plaintiff related a conversation she had with defendant a few days after the accident. Defendant admitted it was all her fault because everything happened so fast; she didn’t use her brakes nor watch where she was going. She also admitted turning around in her seat while keeping her hand going around the steering wheel.

At this point the court denied defendant’s motion for a directed verdict. Defendant then testified in her own behalf. Her daughter was 5 years old at the time of the accident. The auto was a two-door 1967 Chevrolet Impala. The weather was fine. As she was driving down Kenneth Avenue, about half-way down the block, her child started screaming, “a doggie, a doggie!” She glanced to the right and told her to calm down. This took a fraction of a second. When she looked, a dog had come right in front of the car. She swerved to the right to avoid hitting the dog, lost control of the car, and the car’s right side hit the post. All three of them saw the animal at the same time. Everything occurred in a flash, a matter of seconds. From where she saw the dog and heard the child scream to the pole was approximately 15 feet. Defendant denied looking over her right shoulder for 2 or 3 seconds while telling her daughter to calm down. Plaintiff never warned her. Defendant denied telling plaintiff that she shouldn’t have looked back at her child for as long as she did when she turned to the right.

On cross-examination defendant could not remember what she related to Officer Leahy. She was traveling 20 to 25 miles per hour. At first the animal was slowly walking out into the street. Defendant did admit that she did not slow down. She denied that her daughter first screamed and then she lost control of the car but was impeached by a prior statement wherein she stated, “My little girl started to scream, and I lost control of the car.” Defendant does not know what happened to the dog, nor does she remember if she threw up her hands. Defendant did remember turning the wheel. Defendant was also impeached by a prior statement she denied making wherein she admitted, “I do know that Psyche [plaintiff] hollered, ‘Look out, be careful.’ ”

Opinion

Defendant contends that the court erred in denying her motions for a directed verdict both at the close of plaintiff’s case and at the close of all the evidence. She argues that since the occurrence took place in such a short time span, she could not have acted with a conscious indifference to consequences. Rather, there was merely a momentary lapse of attention involved which at most could only be considered negligence.

Willful and wanton misconduct was defined in Hocking v. Rehnquist, 44 Ill.2d 196, 201, 254 N.E.2d 515, as:

“ ‘A wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by the exercise of ordinary care.’ [Citations.]”

“Ill will is not a necessary element, that is, there need not be an intention to cause harm.” (Martin v. Cline, 15 Ill.App.2d 269, 273, 145 N.E.2d 505.) Still, willful and wanton misconduct is more serious than negligence. Bartolucci v. Falleti, 382 Ill. 168, 46 N.E.2d 980.

The standard governing when to direct a verdict was enunciated in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504. There the court stated:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhehningly favors movant that no contrary verdict based on that evidence could ever stand.”

In most cases the issue of willful or wanton misconduct is a question for the jury, and only in an exceptional case will the issue be taken from the jury’s consideration. Lessen v. Allison, 25 Ill.App.2d 395, 166 N.E.2d 806.

Viewing the evidence in a light most favorable to plaintiff, it appears that after the accident, when interviewed by Officer Leahy, defendant did not mention turning to avoid an animal. She explained to him that the accident occurred when she turned to look at her child and then tamed back as the car ran off the roadway and hit the pole. Plaintiff, who saw the animal, stated that it was running from east to west, or left to right from the drivers point of view. This would indicate that instead of turning to avoid the animal, the car moved in the same direction as the animal.

Plaintiff further testified that she saw defendant looking at her child while defendant was turning the wheel. Plaintiff had time to yell three warnings before the collision, but in this period defendant did not apply the brakes nor did the car slow down. Aside from the animal or the child’s scream, there was nothing that could have contributed to cause this mishap. Plaintiff said that from the child’s scream, a period of seconds passed before the car hit the pole. Plaintiff also related a conversation in which defendant told her that she turned around in her seat and did not watch where she was going.

Although each case must depend on its own facts and circumstances (Ficht v. Niedert Motor Service, Inc., 34 Ill.App.2d 360, 181 N.E.2d 386), we believe the facts of Rosbottom v. Hensley, 61 Ill.App.2d 198, 209 N.E.2d 655, are so similar as to allow this court to take guidance from that decision. In Rosbottom the jury found defendant guilty of willful and wanton misconduct in chiving her auto. Defendant was driving down a one-way residential street with several passengers in the car. The car was traveling about 20 to 25 miles per hour at the time of the accident. When one of the passengers asked to be taken to a certain location, defendant admittedly “turned her head for a split second” to glance back at another passenger and made a grimace to express her disgust for the request. After toning her head to the right, defendant remembered nothing until the car hit a tree. There was no evidence that defendant attempted to use her brakes. One passenger testified that defendant had turned for a second or two, and another passenger had yelled a warning.

In Rosbottom, as in the instant case, defendant argued that as a matter of law she could not be guilty of willful and wanton misconduct because she turned her head for only a second. To this argument the court responded with a discussion strikingly appropriate to the instant case:

“Whatever the period of time that the defendant turned her head, an immeasurable split second or a period as long as two seconds, as the trial judge said in his memoranda filed in this case, the defendant did take her eyes off the highway for a long enough period of time to travel from the inner lane to the boulevard and collided with a tree * 9 *’ The evidence supports the conclusion that the defendant never saw the tree, never attempted to control the car after it began to swerve and that she did not even know that the car did, in fact, swerve from its course.” (61 Ill.App.2d 198, 212.)

Furthermore, the Rosbottom court noted that there were no outside forces which could have contributed to cause this accident or which would make a split-second lapse immediately dangerous, and defendant voluntarily turned her head. The court, after reviewing a number of similar cases from other jurisdictions, concluded that not only was the case properly presented to the jury, but their verdict was not against the manifest weight of the evidence.

In the instant case no evidence was presented to show that defendant’s turning her head was anything but voluntary. It should be remembered that the child screamed a warning only. The jury could have inferred that defendant, ignoring the obvious risks involved when a driver takes her eyes off the road, turned to look at her daughter. It could also be inferred that she did so for an unnecessarily long period of time and in spite of repeated warnings totally failed to control the car. We therefore feel, viewing the evidence in a light most favorable to plaintiff, that the evidence does not overwhelmingly favor defendant that no contrary verdict could ever stand. (Pedrick.) Furthermore, while defendant did present evidence supporting a different theory as to how the accident occurred, the conflicting evidence was not sufficient to preclude the jury from considering the issue. The judgment is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    Jerby H. Hecko et al., Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees. The City of Chicago, Plaintiff-Appellee, v. Jerry H. Hecko et al., Defendants-Appellants.
    (Nos. 56498, 57912 cons.;
    First District (2nd Division)
    January 14, 1975.

      P. C. Noonan, of Park Forest, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan, Jerome A. Siegan, and Roseann Oliver, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This appeal concerns two actions, one at law and one in equity, in connection with the City of Chicago’s demolition, on September 14,1967, of a building belonging to Jerry H. and Clarice Hecko (hereafter the Heckos). On August 1, 1968, the Heckos brought an action at law against the City of Chicago for damages allegedy incurred when the City, without their knowledge and without notice to them, demolished a building on property they owned jointly. This suit was dismissed because the allegedly required statutory “notice of injury” failed to state the residence address of the person injured, and the Heckos have appealed (No. 56498). (Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102.) The Heckos have also appealed (No. 57912) from the trial court’s denial of their motion to vacate the decree of foreclosure of the City’s demolition hen because the City did not provide them with any notice either of the proceedings leading to the decree of demolition (which also created the hen sought to be foreclosed) or of the subsequent proceedings to foreclose the demolition hen. On this consolidated appeal, the Heckos contend: (1) their complaint at law for wrongful demolition should not have been dismissed for failure to comply with the 6-month notice requirement of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (hereafter “Tort Immunity Act”), because section 2 — 101 of the Tort Immunity Act specifically exempts from its provisions an action, such as this one for a wrongful demolition, brought under the provisions of section 1 — 4—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 85, pars. 2 — 101 & 8 — 102, and ch. 24, par. 1 — 4—7); (2) both the decree of demolition and the decree of foreclosure were void because entered without notice, and the filing of a special appearance on behalf of the Heckos in the original demolition proceedings did not waive the jurisdictional issue.

These demolition proceedings were initiated July 24, 1967, when the City of Chicago filed a complaint in chancery (case no. 67 CH 3788) against the Heckos alleging that on April 3, 1967, and at other times, certain violations of the Municipal Code of Chicago existed in property owned jointly by the Heckos and commonly known as 1618 North Burling, in Chicago. The complaint, which set out in detail the alleged violations, sought a fine in the amount of $800; the appointment of a receiver, if necessaiy, to correct the conditions; an order to demolish the premises; judgment against the defendants and a lien on the property for the costs of demolition, reasonable attorneys’ fees, and court costs; and a temporary and permanent injunction requiring the defendants to correct the violations.

It appears from the pleadings that the City demolished the building on the property on September 14, 1967, pursuant to a decree of demolition entered on July 13, 1967, or July 21, 1967, although this decree is not in the record. The common-law record contains no proof of service of process in 67 CH 3788.

On November 9, 1967, the Heckos filed a special appearance in the demolition suit (67 CH 3788) questioning the jurisdiction of the court over their persons in that they had “not been served with summons.” At a hearing on December 24, 1967, the trial court stated that there was nothing in the court file “to indicate” that the Heckos were “served by the Sheriffs Office,” and nothing in the file to show that the City of Chicago “published.” The court concluded: “If that is the case, the default order was entered erroneously.” The court advised the Heckos’ attorney that his clients might have an action at law against the City for wrongful demolition.

On June 18, 1968, the City filed a complaint to foreclose its demolition lien and the case was assigned no. 68 CH 2506. Following service by a publication, a decree of foreclosure in favor of the City in the amount of $1,759.69 was entered on March 19, 1970. On May 20, 1970, an order was entered confirming a sheriff’s sale of the property to the City of Chicago for the amount of $1,869.50 in satisfaction of the demolition hen.

On May 26, 1971, the Heckos filed a petition to vacate, which, as subsequently amended, alleged that the original decree of demolition entered in case 67 CH 3788 on July 13, 1967, was “void” because the Heckos were not served with summons and no publication was made; that they had had no notice of the complaint to foreclose the demolition lien, or of the subsequent sheriffs sale; that, in May of 1971, their attorney had examined the tract book in the office of the recorder of deeds and had discovered that the lien had been filed and that the City had purchased the property at the sheriff’s sale; that the petition to vacate was filed a few days later. Although the petition stated that it was brought under section 72 of the Civil Practice Act, the Heckos questioned “the jurisdiction of the court” stating: (1) the original demolition suit (67 CH 3788) was void because they were not served with summons and no publication was made; (2) the affidavit for publication filed in the demolition lien foreclosure suit (68 CH 2506) which stated that upon diligent inquiry the Heckos could not be found was “defective,” “erroneous” and “faulty,” and did not set out the last known address of the defendants; (3) there was no “diligent inquiry” made to discover their address in case 68 CH 2506, because the City could have inquired as to the whereabouts of the Heckos from the attorney they had employed who had filed a special appearance in the demolition proceeding (67 CH 3788) and who had, on March 14, 1968, served the City with a notice of claim for wrongful demolition.

The City moved to strike and dismiss the amended petition on several grounds: that the Heckos were precluded from collaterally attacking the 1967 demolition decree because of the 2-year statute of limitations contained in section 72 of the Civil Practice Act; that the filing of the special appearance in the original demolition suit charged the Heckos with knowledge of the demolition hen; and that the Heckos’ failure to participate further in the demolition proceedings barred their section 72 petition because it showed a lack of due diligence. The motion of the City was granted on May 11, 1972, and the trial court subsequently refused to vacate that order in a written order dated June 29,1972 in which the court stated, in part, as follows:

“[T]he court finds:
1. That the decree of demolition entered in the previous case of City of Chicago v. Jerry Hecko, et al, 67CH3788, not having been appealed within the prescribed time and the remedy under Section 72 of the Civil Practice Act having not been pursued, and the defendant, [sic] Jerry and Clarice Hecko, having knowledge of such proceeding by their counsel, that said decree was valid.
2. That the said defendants have shown no affirmative, valid defense in this instant action.”

Meanwhile, on August 1, 1968, the Heckos had brought an action at law against the City for wrongful demolition. This suit was dismissed for failure to comply with the statutory 6-month notice requirement because the notice did not state “the residence of the person injured.” Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102.

Plaintiffs’ first contention is that section 2 — 101 of the Tort Immunity Act exempts from its 6-month notice provisions actions, such as that in the case at bar, brought under section 1 — 4—7 of the Illinois Municipal Code. Section 2 — 101(e) of the Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 2 — 101(e)) provides:

“§ 2 — 101. Construction-Other relief
Nothing in this Act affects tire right to obtain relief other than damages against a local public entity or public employee. Nothing in this act affects the liability, if any, of a local public entity or public employee, based on:
* * #
e) Section 1 — 4—7 of the 'Illinois Municipal Code’, approved May 29, 1961, as heretofore or hereafter amended.” Laws of Illinois 1965, § 2 — 101, at 2985 (approved August 13, 1965).

Section 1 — 4—7 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 1 — 4—7 provides:

“§ 1 — 4—7. Damages to property by removal, etc., of unsafe or unsanitary buildings — Liability
The municipality shall be liable for any injury occasioned by actionable wrong to property by the removal, destruction or vacation, in whole or in part, of any unsafe or unsanitary building, by any municipal officer, board or employee charged with authority to order or execute such removal, destruction or vacation, if such removal, destruction or vacation is pursuant to valid statutes, ordinances or regulations, and if such officer, board or employee has acted in good faith, with reasonable care and probable cause.” Laws of Illinois 1961, § 1 — 4—7, at 589 (approved May 29, 1961).

The precise point at issue here was raised, but not decided in the case of City of Chicago v. Vickers, 8 Ill.App.3d 902, 291 N.E.2d 315. As the court there stated, section 2 — 101 of the Tort Immunity Act “clearly” is intended to eliminate governmental immunity in any action brought under section 1 — 4—7 of the Municipal Code. We therefore decide that the statutory notice requirements of the Tort Immunity Act do not apply to an action, such as that at bar, in which liability arises under the provisions of section 1 — 4—7 of die Illinois Municipal Code. The City misapprehends the meaning of the following passing reference to section 1 — 4—7 in Arnolt v. City of Highland Park, 52 Ill.2d 27, 32, 282 N.E.2d 144: “Section 1 — 4—7 of the Illinois Municipal Code deals specifically with liability’ for injuries to third persons occasioned by the removal or destruction of buildings by public employees.” The City suggests that “third persons” refers solely to persons other than the owners of such buildings. Read in context, however, it is clear that “third persons” refers to all persons other than the local governmental entity and the public employee(s) involved.

We now consider whether the petition to vacate the decree of foreclosure was properly denied. The order appealed from denied the Heckos’ petition on the ground that the original 1967 decree of demolition had not been appealed, because more than 2 years had passed since the entry of the 1967 demolition decree, and because the Heckos had shown no meritorious defense. In so ruling, the trial court construed the petition to vacate as aimed at the 1967 demolition decree and as one seeking the usual equitable relief specified in section 72(1) of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 72(1).) However, we think it is clear that the petition to vacate was one to vacate the decree of foreclosure of March 19, 1970. A motion to vacate the demolition decree, in view of the fact that the building had already been demolished, would have been an empty gesture.

It has been held that a motion challenging jurisdiction and a motion to vacate under section 72 of the Civil Practice Act are entirely different motions based on different grounds which do not litigate the same matters. (Keel v. Kostka, 106 Ill.App.2d 172, 245 N.E.2d 607.) A motion under section 72 is, nevertheless, an appropriate method for vacating a void judgment. (Lake Shore Savings & Loan Association v. American National Bank & Trust Co., 91 Ill.App.2d 143, 148, 234 N.E.2d 418.) The record before the court in the original demolition action which also purported to create the lien sought to be foreclosed does not contain any proof of service or an affidavit supporting service by publication. In fact, the report of proceedings for December 24, 1967, indicates the trial judge examined the court file and found no “evidence of publication” or of service by the sheriff’s office. If the 1967 decree was void, then it could be attacked at any time, either directly, or collaterally. Moreover, if the 1967 decree was void, then the subsequent proceedings based upon it were likewise void and the invalidity of the 1967 decree could be raised at any time subsequently. The Heckos did, in fact, challenge the 1967 decree in their petition to vacate the March 19, 1970, foreclosure decree. Thus the Heckos properly attacked both the 1967 demolition decree and the March 19, 1970, lien foreclosure decree on the grounds that they were void, that is, that the court did not acquire jurisdiction. This they could do in the form of a petition under section 72(7). Ill. Rev. Stat. 1969, ch. 110, par. 72(7).

Moreover, if the Heckos’ May 24, 1971, “petition” is treated as brought under section 72 for equitable relief, it is to be considered as addressed to the validity of the decree of foreclosure entered on March 19, 1970. As amended, it does meet the traditional test for relief under section 72. First, it was filed within 2 years. Secondly, it alleged due diligence since it alleged that the petition was brought “within a few days” of the time tire Heckos’ attorney discovered the existence of the judgment in May of 1971. Finally, the petition alleged a meritorious defense when it alleged the underlying 1967 demolition decree was void and when it alleged that the affidavit in support of the notice by publication in the lien foreclosure proceeding was both defective and false.

Therefore, whether tire petition to vacate is considered to be one asking the traditional relief of a court of equity from a default judgment, or whether tire petition is considered as one attacking the foreclosure decree for lack of jurisdiction (tire option left open by section 72(7)), the 1967 decree could have been attacked. Tire petition was timely filed and set forth an affirmative defense. Consequently, the petition under section 72 should not have been dismissed. Rather, a hearing should have been held to determine if the 1967 decree was void or not, a matter that cannot be determined on the record before us and on which we express no opinion. Additionally, the Heckos were entitled to a hearing on their contention that the City had filed a false affidavit in the proceedings to foreclose the demolition lien. As to the requirements for testing such an affidavit see Graham v. O’Connor, 350 Ill. 36, 40, 182 N.E. 764, and Schwartz v. City of Chicago, 21 Ill.App.3d 84, 315 N.E.2d 215.

For the reasons set forth, the judgment of the circuit court of Cook County dismissing the Heckos’ suit against the City of Chicago for wrongful demolition is reversed and the cause remanded with directions to reinstate the case on the trial call. The judgment denying relief under section 72 of the Civil Practice Act is also reversed, and that cause is remanded with directions to determine if the court had jurisdiction to enter the 1967 and 1970 decrees and, if it did not as to either proceeding, then to set aside the decree of foreclosure, and for further proceedings not inconsistent with the views expressed in this opinion.

Judgments reversed and remanded for further proceedings.

DOWNING, P. J., and HAYES, J., concur.

      We do not purport to understand how the decree could have been entered before the complaint had been filed but no point has been made of this anomaly.