author: Mr. PRESIDING JUSTICE HAYES

text:
    Willie Mae Sims, Plaintiff-Appellant, v. Allen Sims, Defendant-Appellee.
    (No. 58512;
    First District (2nd Division)
    June 25, 1974.
    Arthur K. Young and David Wandell, both of Legal Aid Bureau, of Chicago, for appellant.
    No appearance for appellee.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On 8 June 1972, plaintiff-appellant (hereinafter plaintiff) filed a verified application to sue as a poor person, pursuant to Supreme Court Rule 298 (Ill. Rev. Stat. 1971, ch. 110A, par. 298). On 14 June 1972, the application was granted pursuant to the discretion vested in the court under the provisions of the Act relating to costs (Ill. Rev. Stat. 1971, ch. 33, par. 5). Plaintiff was represented by private counsel who was an attorney-member of a law school legal aid bureau.

Pursuant to the granted application, on 28 June 1972 plaintiff filed a complaint for a divorce from her husband (defendant-appellee, hereinafter defendant) on the ground of desertion, which complaint was stamped “Pauper Suit.” Summons was issued on 30 June 1972, and service was ultimately had by publication. On 2 October 1972, an order of default was entered for failure of defendant to appear, and the complaint Stood as confessed.

On 9 November 1972, plaintiff filed a petition reciting the above facts and adding: (a) that the case had been heard on the regular call of default cases; (b) that plaintiff had proved the desertion, and that the testimony had been recorded by an official court reporter; (c) that plaintiff was still a poor person and could not pay for the certified transcript of the evidence, which transcript was required, by Circuit Court Rules 12.4 and 15.6, to be presented together with the decree for divorce when the said decree was presented for the signature of the trial judge; (d) that, at the conclusion of the default hearing, plaintiff had asked the trial court to waive the requirement of the certified transcript; (e) that, together with the instant petition, plaintiff had offered a decree of divorce for the signature of the trial judge, unaccompanied by the certified transcript; (£) and that, by the instant petition, plaintiff asked that the trial court either waive the requirement of the certified transcript or order the circuit court clerk or the Administrative Office of the Illinois Courts to pay the costs of the certified transcript.

On the same day, the trial court entered its order finding that the official court reporter had taken and did preserve the record of the testimony at the default hearing; that at the time of the filing of the complaint for divorce, plaintiff was a poor person who had been granted leave to proceed as such pursuant to Supreme Court Rule 298; that plaintiff was still a poor person who had no funds with which to pay for the certified transcript required by Circuit Court Rules 12.4 and 15.6; that plaintiff had presented a petition to waive the required transcript, which petition had been denied; and that plaintiff had presented for the signature of the court a decree for divorce without the accompanying transcript. On the above findings, the court ordered that the testimony taken at the default hearing be stricken and that the case be dismissed for want of prosecution for the failure of plaintiff to present the required certified transcript.

On 11 January 1973, plaintiff mailed a copy of the notice of appeal to defendant at his last known address. No appearance has been filed by or on behalf of defendant in this court, nor has a brief been filed. We shall, however, dispose of this appeal on its merits.

Plaintiff makes three contentions on this appeal: 1) the Circuit Court Rules, as applied to require the presentation of the certified transcript by a poor person (proceeding with leave to sue for divorce as a poor person, and still being a poor person) at her own expense, are unconstitutional as so applied in that they constitute a denial of due process and equal protection of the law, both under the Constitution of the United States and under the Constitution of the State of Illinois; 2) the Circuit Court Rules, as so applied, are void in that they operate to impose a requirement greater than that imposed by the relevant State statute; 3) the said transcript is legally unnecessary to support the decree, and is not even a necessary part of the common law record.

In the view which we take of this appeal, we find it unnecessary to reach any of the plaintiff’s three contentions. Circuit Court Rules 12.4 and 15.6 are designed reasonably to implement the requirement of section 8 of the Act relating to divorce (Ill. Rev. Stat. 1971, ch. 40, par. 9), that “in no case of default shall the court grant a divorce, unless the judge is satisfied * * * that the cause of divorce has been fully proven by reliable witnesses.” Literally read, the said Rules are permissive in nature, and merely empower the trial court to dismiss the default divorce action, should the certified transcript not be presented. Hence, dismissal is left to the discretion of the trial court.

It is alleged in plaintiffs brief (pages 7 and 8) that the presiding judge of the divorce division had directed the judges in that division that the discretion was to be exercised by dismissing the default divorce action.

In our view, that directive, in the case of persons given leave to sue as a poor person, merely activates the following provision (ch. 33, par. 5) :

“If any court shall, befor [sic] or after the commencement of any suit, be satisfied that the plaintiff or defendant is a poor person, and unable to prosecute or defend suit and pay the costs and expenses thereof, the court may, in its discretion, permit him to commence and prosecute his action, or defend suit, as a poor person; and thereupon such person shall have all the necessary writs, process, appearances and proceedings, as in other cases, without fees or charges. * * (Emphasis ours.)

The trial judge must therefore order the Circuit Court Clerk to supply the required certified transcript to the plaintiff poor person without costs to that person.

Therefore, we deny the relief sought by plaintiff in her notice of appeal (i.e., the waiver of the requirement of the certified transcript). Rut the petition filed by plaintiff on 9 November 1972 and denied was not simply a petition asking waiver but was a petition seeking in the alternative either a waiver or the furnishing of the certified transcript without cost to plaintiff. We think that the alternative relief sought and denied must be granted under the above-quoted provision (ch. 33, par. 5).

For the foregoing reasons, we reverse the order dismissing the instant action for divorce and we remand the cause to the Circuit Court of Cook County, County Department, Divorce Division, with the direction that the trial judge order the circuit court clerk to furnish the certified transcript to plaintiff without cost to the plaintiff. As noted at the outset of this opinion, our disposition of this appeal makes it unnecessary for us to consider any of the contentions raised by plaintiff on this appeal.

Reversed and remanded with directions.

STAMOS and DOWNING, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HALLETT

license: Public Domain

text:
    Phillip E. Freed, Plaintiff-Appellant, v. Maurice L. Young, Defendant-Appellee.
    (No. 58557;

    First District (1st Division)
    December 28, 1973.

      Revised opinion upon denial of rehearing — July 15, 1974.

      Samuel E. Hirsch, of Chicago, for appellant.
    Arvey, Hodes & Mantynband, of Chicago (George L. Siegel and Lawrence C. Rubin, of counsel), for appellee.
   Mr. JUSTICE HALLETT

delivered the revised opinion of the court upon denial of the petition for rehearing:

The plaintiff Freed appeals from an order striking and dismissing with prejudice his fourth amended complaint, leaving a counterclaim against him still pending. Words of finality render the order appealable.

In November of 1969, a written lease, for occupancy when the premises were complete and running until April 30, 1975, for a building loft to be used for the sale of objects of art at a rental of $675 per month, plus certain specified tax increases, was signed by the plaintiff as lessee. It was also signed “Maurice Young, Lessor,” at the end but in the introductory heading the lessor is described as “Maurice Young, authorized agent in this behalf.” By its terms, it incorporated a three-page typed rider signed by Freed as lessee and by “Maurice Young, Lessor.”

Freed moved in after the premises were available in April of 1970, and paid rent under the lease for a little over a year.

On April 6, 1971, he filed a complaint against “Maurice Young, Agent” in which he set up said lease, his occupancy and payment of rent thereunder, alleged that because of inadequate elevator service, heating and air conditioning, he had been constructively evicted, alleged that Maurice Young had no title to the demised premises and no authority “in writing” to lease them for more than 1 year, and sought a declaratory judgment that the lease was not enforceable, plus $10,000 damages and the enforcement of a lien for that sum on the premises. On May 3, 1971, he filed an amended complaint along the same lines.

On June 30, 1971, Freed vacated the premises, returned the keys to Young, paid the rent through that date and has paid nothing since. The premises remained vacant until June 1, 1972, when they were rented to another tenant for $560 per month, $1,000 being allowed for clearing and $1,000 being paid as a commission.

On July 5, 1972, a second amended complaint was filed; and then a third and, on July 19, 1972, a fourth. In Count I of the latter it again alleged the execution of said lease, his occupancy and the payment of rent thereunder, that he was constructively evicted by virtue of the inadequate elevator service and “out of balance” heating and air conditioning which adversely affected his sales and that he finally vacated the premises on June 30, 1971; that he had had a $1,000 security deposit and had expended large sums in promotion, rental, wages and operating expenses; and prayed judgment for $35,000.

In Count II, it is alleged that Young has never been and is not now the owner of the title to the demised premises “nor the written authorized agent of the title holder”; that the owner was and is the American National Bank & Trust Company, as trustee under a land trust; that the purported lease is not signed on behalf of the party to be charged, as required by the Illinois Statute of Frauds relating to leases for more than 1 year; and that the lease is therefore unenforceable. It prays that a declaratory judgment be entered holding that the plaintiff is not obliged to pay rent after June 30, 1971, when he vacated the premises. He also seeks the return of his $1,000 security deposit.

Count III challenges Young’s counterclaim and motion for summary judgment, based on Young’s losses arising from the abandonment and reletting of the premises at a loss.

The circuit court on November 16, 1972, entered an order, final in form, striking said fourth amended complaint with prejudice, the cause to continue, as to Young’s counterclaim for damages for failure to continue as a paying tenant, etc. The plaintiff’s appeal is from this order.

Although the briefs do not clearly define the issues, by distillation they appear to be as follows:

First — Is the lessee here estopped from challenging the lessor’s title to the described premises?

Second — Assuming that the lessor himself has no title and that the lessee is no longer estopped from challenging his lessor’s title, is the lease here nevertheless enforceable by the lessor against the lessee as a contract to pay rent because it is signed by both parties?

Third — Assuming that the lessor himself has no title, that the lessee is no longer estopped from challenging the lessor’s title and that the fact that both parties signed does not ipso facto render the lease enforceable by the lessor against the lessee — has the Statute of Frauds here been satisfied by the signature of the lessee Freed as “the party to be charged”?

Fourth — Assuming that the lease is otherwise enforceable, does the fourth amended complaint sufficiently allege facts constituting a constructive eviction?

I.

Passing now to the first of these issues, it has long been established in Illinois, as elsewhere, that when a lessee goes into possession of the premises described he is thereby estopped to challenge his landlord’s title and will not be permitted to prove title in another, or even in himself. This applies to actions for the possession of the premises, for past due rent, etc. See 49 Am. Jur. Landlord and Tenant, §§ 109, 110, 120, 121, 125, 126; 51C C.J.S. Landlord and Tenant, §§ 266, 268, 269, 270; 24 I.L.P. Landlord and Tenant, §§ 156, 157.

It is, however, equally well established in Illinois, as elsewhere, that any and all such estoppel vanishes once the tenant goes out of possession, by eviction by the landlord or a paramount title or by surrender of the premises to his landlord, or otherwise. See 49 Am. Jur. 2d Landlord and Tenant, §§ 129, 130; 51C C.J.S. Landlord and Tenant, §§ 274, 275; 24 I.L.P. Landlord and Tenant, § 160, and cases there cited.

The defendant cites Doty v. Burdick (1876), 83 Ill. 473, 477; Pearce v. Pearce (1899), 83 Ill.App. 77, 81; Alwood v. Mansfield (1864), 33 Ill. 452, 458; People ex rel. Harding v. City of Chicago (1929), 335 Ill. 450, 454, 167 N.E. 79; Lake Shore Management Co. v. Blum (1968), 92 Ill.App.2d 47, 52, 235 N.E.2d 366; and Rowe v. Kuhn (1915), 201 Ill.App. 100 (abstract opinion), for the proposition that, by going into possession, Freed, as lessee, is estopped from disputing his lessors title in an action to enforce the lease. Doty was a forcible entry action to evict the tenant. Pearce and Alwood were suits by the true owner — lessors for past due rent accruing during their lessee’s possession. People ex rel. Harding v. City of Chicago held only that real estate is not exempt from taxation merely because the City of Chicago is the lessee. Lake Shore involved the confession for rent accruing after the defendant had been evicted but neither the Statute of Frauds nor lack of title were pleaded or considered in the trial or appellate court. In Rowe, which was a suit by the lessor against the lessee (who had not signed although the lessor had) for rent past due under an oil lease, the court on the third page of its opinion, said:

“Appellant also contends that there is no evidence that appellees are the owners of the property leased. Appellant having accepted the lease, and paid rent upon it, the suit is on a contract accepted by him. If appellees were not the owners that was a matter of defense." (Emphasis ours.)

None of these cases supports the defendant’s contention that the plaintiff lessee, after the surrender of the premises, is estopped with respect to actions for rent thereafter allegedly accruing under tire lease, and, as we point out above, the rule is well established that the estoppel as to the lessor’s title vanishes once possession ceases; and we so hold.

II.

This, brings us to the second issue — assuming that the lessor himself has no title and that the lessee is no longer estopped from challenging his lessor’s title, is the lease here nevertheless enforceable as a contract to pay rent because it is signed by both parties?

In support of an affirmative answer to this inquiry, the defendant cites Klein v. Ickovitz (1970), 121 Ill.App.2d 191, 257 N.E.2d 187; Coyne v. South Shore DeLuxe Laundry (1939), 299 Ill.App. 275, 20 N.E.2d 117; and Lake Shore Management Co. v. Blum (1968), 92 Ill.App.2d 47, 235 N.E.2d 366.

In Klein, the property was held in a land trust which recited that Malvina Klein was the sole beneficiary and “shall in * * * her * * * own right have the full management of said real estate and control of the selling, renting and handling thereof * * A lease was entered into which was signed by the lessee “For Apex Associates: Mal-vina Klein.” In affirming a judgment for Malvina Klein, d/b/a Apex Associates, the court, after holding that the above language gave her power to sign, “as she did,” went on, at page 195, to say:

“Finally, defendant challenges plaintiff’s authority to bring this action, arguing that the holder of the title is the proper plaintiff. This court, however, has upheld the right of a land trust beneficiary-lessor to maintain an action for rent. Bellows v. Ziv, 38 IllApp2d 342, 187 NE2d 265. See also Jakovljevich v. Alvarez, 113 IllApp2d 302, 252 NE2d 60. We see no reason why this principle should not be applicable to rent accruing subsequent to eviction, since the lease agreement expressly states that the lessee’s duty to pay rent survives a forcible detainer proceeding, and the validity of such a provision is well established. See Grommes v. St. Paul Trust Co., 147 Ill 634, 35 NE 820; Vintaloro v. Pappas, 310 Ill 115, 141 NE 377; Klein v. Ickovitz, 72 IllApp2d 59, 219 NE2d 73. The obligation to pay rent is not dependent upon title in the lessor, but is governed by the lease agreement.”

It should be noted that in Klein, the court expressly held that the plaintiff Malvina Klein, did have the authority in writing to bind the title, thus rendering its last comment pure dicta.

In Coyne, the lease for 5 years was signed “Milton Moses, Agent.” The owner at that time was a Mr. H. C. Dana, who later sold the property on contract to the plaintiff M. V. Coyne and Moses assigned the lease to him.

Plaintiff thereafter notified the defendant that he was terminating said lease for certain alleged defaults and, when it failed to vacate, filed a forcible entry and detainer action. In affirming a judgment for the defendant, this court at page 282-284, said:

“The chief criticism leveled at the judgment is that the lease cannot bind plaintiff because it is contrary to sec. 2, ch. 59, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 55.02], known as the statute on ‘Frauds and Perjuries.’ While the lease is in writing, it is signed by ‘Milton Moses, Agent,’ and plaintiff insists, it is not signed ‘by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing signed by such party.’ It is manifest that the lease is not signed by Dana, or by plaintiff. It is not entirely clear as to whether the Scott estate or Dana was the owner in the spring of 1936. There is no doubt, however, that in April, 1938, plaintiff became the contract purchaser of the premises, that she fully recognized the defendant as her tenant, and that she served notice on the tenant in an attempt to terminate the lease because of alleged breaches therein. At that time she clearly recognized that the defendant was in possession under the lease. At the trial the lease was produced by her. At the time she acquired her interest, on or about April 1, 1938, the lease was delivered to her. At that time the assignment on the reverse side of the lease was executed by Moses. Therefore, at the time the notice of April 11, 1938, was served on defendant, plaintiff was fully acquainted with the provisions of the lease. After the payment to her of $208 on April 14,1938, plaintiff withdrew the notice to terminate, which had been served on April 11, 1938. Subsequently, she sought to change her position and proceeded on the basis that the lease was not binding on her, and that defendant was in possession under a month to month tenancy. Under sec. 2, ch. 57, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 109.264], defendant was permitted to establish any defense, legal or equitable, showing that its occupancy was rightful. The pmpose of the statute of frauds is to prevent fraud. The application of the statute, under the factual situation shown by the record in the instant case, for the purpose of evicting defendant, would in effect perpetrate a fraud on defendant. There was a full and complete recognition and ratification of the lease by plaintiff. There is abundant evidence to warrant the trial court in finding that defendant was rightfully in possession of the premises. The action of the municipal court of Chicago in finding the issues for defendant and in entering a judgment for costs against plaintiff, was just and right. Therefore, the judgment of the municipal court of Chicago is affirmed.” (Emphasis ours.)

It should be noted that in Coyne the plaintiff was the owner of the tide and had recognized the validity of the lease and it is therefore not surprising that his eviction suit failed.

In the third case cited by the defendant, Lake Shcrre Management, the lease, dated January 1, 1965, was signed by the Blums as lessees and by the “Lake Shore Management Co., as Agents” without anywhere indicating who were the owners. On December 23, 1965, the plaintiff confessed judgment against the defendants on said lease for rental due thereunder for the months of February to November, 1965. After an answer and a trial, the judgment was confirmed and defendants appealed. In affirming, the court, at pages 51 and 52, said:

“But defendants argue that plaintiff could not bring suit because his principal was undisclosed and not a party to the lease. When a third party has notice that the agent is acting on behalf of a principal but no notice of the principal’s identity, the principal is a partially disclosed principal. The agent of a partially disclosed principal is a party to the agreement and capable of bringing suit in his own right. Restatement of Agency 2nd, §§ 4 and 331. See also Hewitt v. Torson, 124 Ill.App. 375. Lake Shore Management Co. purported at all times to act on behalf of another party, never identified. It is therefore the agent of a partially disclosed principal and capable of bringing suit on its own right. # # #
Furthermore, having taken possession and paid rents, the lessees cannot question the validity of the execution of the lease. See McCormick v. Loomis, 165 Ill App 214.”

It should be noted that the months for which judgment for rent was confessed were less than 1 year after the date of the lease and that neither the Statute of Frauds nor lack of mutuality in the enforceability of the lease was pleaded in the trial court or raised or considered in the Appellate Court.

We therefore conclude that the mere fact that both a lessor and a lessee have signed a lease does not ipso facto render it enforceable where the lessor has no title or authority to act for the title holder and the lessee is not estopped to challenge this deficiency.

III.

This brings us to the third issue — assuming that the lessor himself has no tide, that the lessee is no longer estopped from challenging the lessor’s title and that the fact that both parties signed does not ipso facto render the lease enforceable by the lessor against the lessee — has the Statute of Frauds here been satisfied by the signature of the lessee Freed as “the party to be charged”?

Defendant contends that the answer to this inquiry is yes, and cites Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482; Hallberg v. Brosseau (1896), 64 Ill.App. 520; McCormick v. Loomis (1911), 165 Ill.App. 214; Evans v. Schwartz (1918), 211 Ill.App. 573; and Wessel v. Eilenherger (1954), 2 Ill.2d 522,119 N.E.2d 207.

The precise wording of our statute (Ill. Rev. Stat. 1971, ch. 59, § 2) is pertinent and, in pertinent part, is as follows:

“2. Land Writing — Iiow Signed. § 2. No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments or any interests in or concerning them, for a longer term than one year, unless such contract some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing, signed by such party.

It is our considered conclusion that the Statute of Frauds (like “the flowers that bloom in the spring, tra, la” in Gilbert and Sullivan’s Mikado) has “nothing to do with the case” because the lessor, who himself had absolutely no title, signed only for himself and did not even purport to act as agent for a named lessor who, in turn, did have title. The only lessor is Maurice Young, the defendant.

We Shall, however, discuss the cases cited by the defendant.

Ulisperger did not even involve a lease but a sale by the owner. He signed and gave to the purchaser a document reciting “Received of Anton Ulisperger $100 on said purchase of the property No. 1031 Milwaukee Avenue, at the price of $14,000.” The purchaser did not sign but a few days later tendered the $13,900 balance, which was refused. In reversing the dismissal of his biH in equity for specific performance, the court quoting from the American and English Encyclopedia of Law, volume 29, page 858, said, at page 269:

«» tt a «pjjg weight of authority is, that the statute is satisfied if the memorandum be signed by the parties sought to be charged, alone, — or, in other words, by the party defendant in an action brought to enforce the contract, whether he be vendor or vendee. In the case of a contract for the sale of lands the vendor is usuaHy the person to be charged, and a memorandum signed by him alone is valid. The party not signing the memorandum is not bound unless, as held by some authorities, he has accepted the same as a valid, subsisting contract. Want of mutuality arising from the failure of both parties to sign cannot be successfully pleaded as a defense by the party who did sign, as the act of filing a bill foi' specific performance binds the plaintiff and renders the contract mutual.’” (Emphasis ours.)

The Hallberg case is peculiar in that not the lessee (who had not signed although the landlord had) but his guarantor was the defendant and the court’s conclusion was that the Statute of Frauds was not available to him because it was a purely personal privilege, citing Chicago Dock Co. v. Kinzie (1868), 49 Ill. 289, where the court had said, at page 293:

“Again, this statutory defense is personal, and can not be interposed by strangers to the agreement. Like usury, infancy, and a variety of other defences, it can only be relied upon by parties or privies. Mere strangers have no right to plead or insist upon it for the benefit of others. It in nowise concerns them, and hence it must be left to the parties making it, or those holding in privity with him, to make it or not, as they may choose. It then follows, in this case, that appellee can not be heard to insist that the contract between Ogden and Higgins was not binding.”

In McCormick, the 2-year lease was signed by the lessee and “Nettie F. McCormick, by John A. Chapman, her agent” for the lessor. The lessee defendant, after being in possession for over a year, moved out and paid his rent to that date but not for the last 10 months left on the term. The agent had no written authority to sign the lease. It should be noted that the trae owner was the named lessor and that the suit was brought by Nettie McCormick, the true owner. No such situation exists in the case at bar where the owner is nowhere named or even hinted at in the lease and is not a party to this action.

Evans is another case holding that where a tenant moves in and pays rent, he is estopped to challenge his lessor’s title or authority. But we hold that such estoppel vanishes when possession ceases.

The fifth and last case cited, Wessel, did not involve either a lease or a sale and was a bill specifically to enforce an oral agreement by an elderly man to devise and bequeath his farm to a single lady upon his death in consideration of her leaving her own home, moving in with him and nursing him until his death. And the court held that her performance took the contract out of the Statute of Frauds.

It should be noted tihat the reason why our courts have on occasion upheld actions where only one of the parties signed is that mutuality is established when the non-signing owner of the real estate is either the plaintiff or has otherwise irrevocably recognized the validity of the contract to sell or lease. Such is not the case here because the true owner has seen fit not to become or join as plaintiff or to file an affidavit showing that Young was its authorized agent. Here the true owner wants the best of two possible worlds — to be able to maintain an action against the tenant and yet to have a perfect defense at the same time.

After digesting the many citations and involved arguments here presented, one is somehow inclined to recall the small child, in Hans Christian Andersen’s story — The Emperor’s New Clothes — who, after the Emperor appeared in the procession naked, blurted out the obvious fact that “but he has nothing on.” The most obvious fact in the case at bar is that the lessor had and has absolutely no title to the premises described in the lease and that the lessee, having surrendered his possession and paid rent up to that point, is no longer estopped from saying so.

We therefore conclude that Count II of the fourth amended complaint alleges facts which, if conceded or proved, would entitle Freed to the relief he seeks. The defendant should therefore be required to respond to it.

IV.

So much of the fourth amended complaint as seeks to establish a constructive eviction as a defense is without merit and so much (Count III) as seeks damages allegedly flowing therefrom is not only inconsistent but premature until the validity of the lease has been determined.

We therefore affirm so much of the judgment order as struck and dismissed Counts I and III of the fourth amended complaint, reverse so much of said order as struck and dismissed Count II and remand the case for further proceedings not inconsistent with the views above expressed.

Judgment order affirmed in part, reversed in part and remanded with directions.

EGAN, P. J., and BURKE, J., concur.


author: Mr. JUSTICE McGLOON

text:
    Sue Pisciotto, Plaintiff-Appellant, v. National Heater Company, Defendant-Appellee.—(Leonard Pochter, d/b/a Acme Temperature Control Co., Defendant.)
    (No. 56763;
    First District (3rd Division)
    July 3, 1974.

      Dom J. Rizzi, of Chicago, for appellant.
    Howard & French, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from the order of the circuit court of Cook County dismissing plaintiff’s wrongful death action as to defendant National Heater Company. The trial court dismissed the action as to National Heater Company with prejudice for plaintiff’s failure to use reasonable dihgence to obtain service of process on National Heater Company after the applicable statute of Hmitations had run. (Ill. Rev. Stat. 1971, ch. 110A, par. 103(b).) The only issue raised is whether the trial court abused its discretion in dismissing plaintiff’s complaint for lack of reasonable dihgence in obtaining service of process.

We affirm.

On January 30, 1970, plaintiff, Sue Pisciotto, individuaUy, and as ad-ministratrix of the estate of Philip Pisciotto, deceased, filed a complaint against National Heater Company and Leonard Pochter, d/b/a Acme Temperature Control Co. Plaintiffs six-count complaint alleged that the deceased, while exercising due care, was injured when a heater at the Devoe Paint Company plant, 2421 South 25th Avenue, Boadview, Illinois, exploded. Deceased was an employee at the plant. Plaintiff charged National Heater Company with negligence and breach of warranty. She charged Leonard Pochter with negligence for failure to properly adjust and repair the gas heater.

The record shows that on January 30, 1970, a summons was issued for Pochter, and was returned not found on February 18, 1970. On February 24,1970, an alias summons was issued for Pochter and was again returned not found on February 28, 1970. On June 22, 1971, an alias summons was issued for Pochter and he was finally served on June 24, 1971.

On April 28, 1971 an alias summons was issued for National Heater Company, but was returned not found on April 30, 1971. This summons contained the following directions:

“PLEASE SERVE:
NATIONAL HEATER COMPANY a/k/a NATIONAL AIR SYSTEM DIVISION OF RHEEM MANUFACTURING COMPANY % C.T. CORPORATION SYSTEM 208 South LaSalle St.
Chicago, Illinois”

On June 22,1971, an alias summons was issued for National Heater Company and served on Rheem Manufacturing Company on June 23, 1971. This summons contained the following directions:

“PLEASE SERVE DEFENDANT AT:
2. RHEEM MANUFACTURING COMPANY % C T CORPORATION SYSTEM NATIONAL HEATER COMPANY aA/a NATIONAL AIR SYSTEM DIVISION 208 South LaSalle St.
Chicago, Illinois AN 3-1414”

Supreme Court Rule 103(b) provides in pertinent part:

“(b) Dismissal for Lack of Diligence.
If the plaintiff fails to exercise reasonable diligence to obtain service prior to the expiration of the applicable statute of limitations, the action as a whole or as to any unserved defendant may be dismissed without prejudice. If the failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations, the dismissal shall be with prejudice. In either case the dismissal may be made on the application of any defendant or on the court’s own motion.” Ill. Rev. Stat. 1971, ch. 110A, sec. 103(b).

A motion to dismiss under Rule 103(b) is addressed to the sound discretion of the trial court. We will reverse an order of dismissal when this discretion has been abused. (Mosley v. Spears, 126 Ill.App.2d 35, 261 N.E.2d 510.) Each case must be decided on its own particular facts and circumstances, but courts will look at certain factors in deciding whether plaintiff has exercised reasonable diligence. In Schultz v. McElroy, 9 Ill. App.3d 940, 293 N.E.2d 353, the court listed the following factors which courts have recognized:

"(1) the length of time used to obtain service;
(2) the activities of the plaintiff;
(3) any knowledge on the part of the plaintiff of defendant’s location;
(4) the ease with which defendant’s whereabouts could have been ascertained; and
(5) the actual knowledge by defendant of the pendency of the action.” Schultz v. McElroy, supra, at 943.

In the instant case defendant’s motion to dismiss was based on the relatively lengthy period of time it took to attempt service of process. The record discloses that plaintiff filed her complaint nearly 2 years after deceased’s death and just before expiration of the applicable statute of limitations. The first alias summons was issued approximately 15 months after the complaint was filed and 14 months after the statute of limitations had run. Service was accomplished approximately 17 months after the complaint was filed and 16 months after the statute of limitations had run.

In support of her motion to vacate the order of dismissal, plaintiff filed the affidavit of the attorney who was in charge of her case. In it he attempted to explain why it took so long to obtain service of process on National Heater Company. In his affidavit the attorney set out that on January 30, 1970, when summons was issued on Leonard Pochter, no summons was issued on National Heater Company because “its status as an individual proprietorship, partnership, or corporation was unknown as was its address or the address of a registered agent.” The only other statement relating to plaintiff’s efforts to locate defendant is that “[plaintiff’s attorneys made diligent efforts to locate the whereabouts of NATIONAL HEATER COMPANY and in April, 1971 it was determined that the difficulty and inability experienced by plaintiff in locating defendant * * * was caused by the fact that [defendant] had been bought or otherwise acquired by Rheem Manufacturing Company.”

These sworn statements suggest some reason why plaintiff may have had difficulty in ascertaining defendant’s whereabouts. However, in the most conclusory manner, the affidavit alleged that diligent efforts were made to locate defendant. The affidavit did not mention any specific things that plaintiff did in this regard. Plaintiff has failed to demonstrate how she was diligent under the circumstances. Furthermore, the record does not indicate any actual knowledge by defendant of the pendency of the action.

Under all the circumstances, we cannot say that the trial court abused its discretion in dismissing plaintiffs complaint as to National Heater Company. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The Beverly Bank, Guardian of the Estate of Larry Holliday, a Minor, Plaintiff-Appellant, v. The Penn Central Company et al., Defendants-Appellees.
    (No. 58362;
    First District (3rd Division)
    July 3, 1974.

      David P. Schippers and Michael J. McArdle, both of Schippers, Betar, Lamendella & O’Brien, of Chicago, for appellant.
    Bernard Harrold and John Lowrey, both of Wildman, Harrold, Allen & Dixon, of Chicago (Calvin K. Hubbell, of counsel), for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

dehvered the opinion of the court:

Plaintiff, Beverly Bank, as guardian of the estate of Larry Holliday, a minor, filed a two-count complaint in the circuit court of Cook County charging the Penn Central and Norman Young, one of its former employees, with negligence and wilful and wanton conduct for injuries caused Holliday when a shotgun held by Young discharged during Young’s pursuit of several trespassers on the railroad’s premises. The trial judge dismissed the negligence count prior to trial, and the jury found for the defendants on the second count. The jury also found by special interrogatory that Holliday was guilty of contributory wilful and wanton conduct which proximately contributed to cause his injuries. The trial court entered judgment on the verdict, and, after it denied plaintiff’s post-trial motion, plaintiff filed this appeal.

The facts are as follows. On June 30, 1970, Norman Young, a probationary security policeman for Penn Central, was working the midnight to 8 A.M. shift. His duties included patrolling the railroad’s premises at various locations, keeping unauthorized persons from trespassing upon the property, and recovering lost or stolen property stored on the premises. His patrol area on the night in question included the 47th Street Complex, which stretched from approximately 4200 to about 5800 South, and from Princeton Avenue to a block past Shields Avenue in the City of Chicago. Young, and other corroborating witnesses, considered the area highly dangerous. It had been the scene of armed trespassing juveniles and rock-throwing crowds. Patrol cars had been shotup, and armed assaults had occurred, resulting in injuries to various personnel. Prime targets in the area for trespassers were piggy-back trailers standing on flatcars, which frequently stored various kinds of merchandise. On the night previous, Young helped recover some television sets which recently had been stolen from the piggy-back trailers.

When Young arrived at work at 11:45 P.M. on June 29, Sergeant Esposito, his supervisor, informed him of some trouble at the 51st Street Yard, and the two men proceeded there in a squad car. Young removed a shotgun from the trunk and loaded it with 00 buckshot. Although the 51st Street Yard was found to be secure, Young kept the gun in tire car for the duration of his patrol.

At about 4:45 A.M., the two men replaced the aforementioned televi-si on sets in the trailers. Young subsequently walked toward the flatcars with the shotgun slung over his shoulder. Between 5 and 5:30 A.M., Young heard noises sounding to him like a seal breaking and trailer doors opening. He walked toward the noise with his shotgun now held at waist level. It was daylight, and when Young had progressed to within 60 yards of the piggy-back trailers he clearly observed five males standing on a flatcar taking merchandise out of tire trailer. Young yelled, “Halt, police officer,” and, as he began to run toward the trailer “as fast as he could,” he released the safety on the shotgun and placed his finger on the trigger. Young testified that when he closed to within 40 yards of the flatcar, he tripped over debris and tire gun discharged. Holliday was shot in the back, and received severe injuries resulting in paralysis.

Esposito, who was in the area, corroborated Young’s testimony that the latter issued a warning. He also testified that only one shot was fired.

Larry Holliday testified that he was with a group of people who observed railroad patrolmen placing television sets in a piggy-back trailer earlier that evening. He stated drat some members of a local gang wanted him and others to steal the sets. Holliday stated that he never intended to steal anything, but that he voluntarily accompanied a friend onto the railroad’s premises. Holliday knew that his friend intended to steal. He also believed the railroad’s security personnel were armed. Holliday’s friend jumped up on the car to break into the trailer containing the television sets. Holliday testified that he heard a gunshot and, upon seeing his friend start to run, also began to flee. During his flight, he testified that a second shot rang out, hitting him in the back. He denied hearing any warning to halt.

Plaintiff contends that the trial court erred in dismissing the negligence count of the complaint; in instructing the jury on the applicable law on trespass; and in permitting into evidence certain prejudicial and inflammatory testimony. It also urges that the finding of the jury that Holliday was guilty of contributory wilful and wanton conduct that was one of the proximate causes of his injury was against the manifest weight of the evidence.

Plaintiff first contends that the trial court committed reversible error in dismissing its negligence count. It claims that, as a discovered trespasser, Holliday was owed a duty of reasonable care by the defendants. The defendants insist that the only duty owed to Holliday was to guard against wilfully and wantonly injuring him, and thus contend that the trial court correctly dismissed the negligence count. The evidence amply supports the position that Holliday must be considered a discovered trespasser.

Historically, although an express or implied invitee was owed the duty of ordinary care by the owner or occupier of premises (Pauckner v. Wakem, (1907), 231 Ill. 276, 83 N.E. 202), no obligation arose to keep the premises safe for trespassers and licensees, including children (McDermott v. Burke (1912), 256 Ill. 401, 100 N.E. 168), and the only duty owed to a trespasser or licensee was to refrain from wilfully or wantonly injuring him. Marcovitz v. Hergenrether (1922), 302 Ill. 162, 134 N.E. 85.

Slowly, certain exceptions have been created concerning the standard of care owed to trespassers. Where a trespasser is a child, the basic test of responsibility now is whether the owner or occupier of land could have foreseen harm to the child. (Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836.) Another situation that will cause a relaxation of the wilful and wanton conduct standard is in the case of frequent trespass over a limited area. (McDaniels v. Terminal Railroad Association (1939), 302 Ill.App. 332, 23 N.E.2d 785.) A third exception is the discovered trespasser rule. This doctrine, adopted by the great majority of jurisdictions, provides that an owner or occupier of premises owes to a trespasser the exercise of reasonable care for the trespassers safety once his presence is known.

Illinois has joined the other jurisdictions in accepting this last exception to the trespasser rule. Our supreme court indicated its adherence to it in Briney v. Illinois Central R.R. Co. (1948), 401 Ill. 181, 81 N.E.2d 866, when it stated at page 186:

“[T]o a trespasser the owner owes only the duty not to wilfully and wantonly injure him and to use ordinary care to avoid injury to him after his presence on the premises in a place of danger has been discovered.”

Also see Cullmann v. Mumper (1967), 83 Ill.App .2d 395, 228 N.E.2d 276; Patterson v. Byrne (1960), 24 Ill.App.2d 565, 165 N.E.2d 374 (abstract opinion).

We reject defendants’ attempt to confine the discovered trespasser exception to very limited instances. Defendants attach great significance to the term “place of danger.” They seek to confine application of the doctrine to those situations in which the discovered trespasser will “almost certainly be injured, if ordinary care is not taken for his safety because the trespasser cannot alleviate the danger through unilateral action.” In our view, the rigidity of such a test would totally negate the remedial impact of the exception, since the failure of a defendant to take any helpful action in the type of fact pattern hypothesized by defendants would seemingly meet the wilful and wanton standard itself. We prefer to place a far more flexible meaning upon “place of danger.” In our view, it means nothing more than to be in a position whereby the trespasser may be injured if the defendant does not exercise the proper degree of care. (See Briney v. Illinois Central R.R. Co., supra, at 187.) The duty in such a case is for the owner or occupier to exercise reasonable care in his actions for the discovered trespasser’s safety. We conclude that the trial court erred in dismissing the negligence count of the complaint. It necessarily follows, as plaintiff also contends, that the court erred in instructing the jury on the applicable law of trespass, since the instruction restricted the duty owed to Holliday by defendants to avoid only wilful or wanton conduct to him.

The issue of whether these errors rise to the level of reversible errors depends upon our resolution of plaintiffs next contention. Plaintiff argues that the jury’s finding by special interrogatory that Holliday was guilty of contributory wilful and wanton conduct which proximately caused his injury was against the manifest weight of the evidence. The validity of such a special finding would render the errors harmless since plaintiff would be barred from any recovery based upon the special finding. See Greenlee v. John G. Shedd Aquarium (1961), 31 Ill.App.2d 402, 176 N.E.2d 684.

The function of a special interrogatory is to require a jury’s determination as to one or more specific issues of ultimate fact, and is considered a check upon the jury’s deliberations. (Gordon v. J. L. Manta, Inc. (1972), 3 Ill.App.3d 657, 279 N.E.2d 475.) The answer of a jury to a proper special interrogatory as to a material question of ultimate fact is binding upon the trial court unless not supported by any competent evidence or unless it is against the manifest weight of the evidence. Todd v. Borowski (1960), 25 Ill.App.2d 367, 166 N.E.2d 296.

Contributory wilful and wanton conduct is a complete defense to an action charging the same. (Zank v. Chicago, R.I. & P.R.R. Co. (1959), 17 Ill.2d 473, 161 N.E.2d 848.) Wilful and wanton conduct is difficult to define. Whether an act constitutes such conduct is greatly dependent upon the particular facts in each case, and it is within the peculiar province of the jury to consider. (Kelly v. Burtner (1941), 310 Ill.App. 251, 33 N.E.2d 754.) A party need not have intended that any harm should ensue for an act to be deemed wilful and wanton. It is sufficient if he had notice which would alert a reasonable man that substantial danger was involved and that he failed to take reasonable precautions under the circumstances. (Hatfield v. Noble (1963), 41 Ill.App. 2d 112, 190 N.E.2d 391.) Moreover, one can be guilty of such conduct not only through an error in judgment but also from a failure to exercise judgment. (Dursch v. Fair (1965), 61 Ill.App.2d 273, 209 N.E.2d 509.) To show that plaintiff was in violation of the law is not in and of itself sufficient to constitute contributory wilful and wanton conduct. Bezemek v. Panico (1939), 301 Ill.App. 408, 23 N.E.2d 216.

We do not believe that the jury’s finding that Holliday was guilty of contributory wilful and wanton conduct was contrary to the manifest weight of the evidence. He was an admitted trespasser in an area subject to frequent trespass. He voluntarily accompanied a friend on the premises who he knew intended to steal. The incursion took place very early in the morning, and Holliday believed the railroad security officers would be armed. We believe that Holliday, as a reasonable person, based upon the present facts, should have been alerted to the real possibility that an accident involving injury might occur which would necessitate reasonable precautions on his part.

Where unlawful conduct is involved, one must bear in mind the distinction between conduct directly or proximately producing or helping to produce the result, as the efficient cause of the fact, and between conduct serving merely as a necessary occasion for the result to occur, as a mere attendant circumstance of the injury. (Lerette v. Director General of Railroads (1922), 306 Ill. 348, 137 N.E. 811.) As the court stated in Lerette, the unlawful act must in some -way proximately contribute to the injury. Proximate cause will be found to exist when the injury suffered is the natural and probable result of an act or omission which an ordinary prudent person should have foreseen as likely to occur, although the precise injury need not have been foreseen. Neering v. Illinois C. R.R. Co. (1943), 383 Ill. 366, 50 N.E.2d 497.

We are compelled to hold that the jury could have determined that Holliday’s actions proximately contributed to cause his injury. The circumstances surrounding his trespass, as outlined above, are the key. An ordinary and prudent person should have foreseen that an accident in such a situation would occur. The triers of fact were entitled to believe that Young fired only one shot, and that the trespassers fled after hearing Young’s warning to halt. It should be observed also that Holliday was found some 40 yards away from the location where the trespassers were originally sighted. This court cannot disturb the controverted question of fact relating to proximate cause.

We conclude that the jury’s special finding that Holliday was guilty of contributory wilful and wanton misconduct which proximately caused his injmy was not contrary to the manifest weight of the evidence. Accordingly, we must hold the trial court’s errors regarding the dismissal of the negligence count and the instruction to the jury to be harmless.

Plaintiff also contends that the trial court erred in allowing certain prejudicial evidence to be admitted into evidence. It initially points out two occasions whereby defense counsel asked questions implying that Holliday may have been charged with a crime for his trespass onto the railroad’s premises. In the one instance, plaintiff made a timely objection, and no answer to the question was made. In the other instance, plaintiffs objection was immediately sustained. In denying plaintiffs motion for a mistrial as a result of the two questions, the trial court stated that in view of Holliday’s admissions that he was a trespasser and plaintiffs admission that there was evidence of stealing, the court did not believe the two questions asked by defense counsel were prejudicial. We agree. The questions were improper, but in view of the record, were insubstantial and hence harmless.

Plaintiff also argues that the trial court incorrectly permitted defendants to introduce testimony of other complaints of trespass and theft, assaults on various security officers, and the security problems existing in the area. Plaintiff has not furnished this court with an abstract or excerpts of the trial record. Nevertheless, we have carefuUy reviewed the entire record and believe that the testimony complained of was admissible. Defendants were charged with wilful and wanton conduct. It therefore became extremely relevant to introduce evidence relating to Young’s state of mind. The very relevant evidence was not so inflammatory as to outweigh its probative value. Our review of the record also indicates that some of the testimony now complained of was elicited through cross-examination by plaintiff.

For the reasons expressed above, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE DEMPSEY

text:
    Kivie Schwartz et al., d/b/a Thornton, Ltd., Plaintiffs-Appellants, v. City of Chicago et al., Defendants-Appellees.
    (No. 57166;
    First District (3rd Division)
    July 3, 1974.

      Block, Erdos & Lupel, of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quin-lan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiffs, co-partners doing business as Thornton, Ltd., brought suit against the City of Chicago charging negligent failure to notify them of a demolition suit affecting certain real estate for which Thornton held a tax-sale certificate. They appeal from the order entered in favor of the City at the close of their case.

Thornton contends that: (1) the City owed a statutorily-imposed duty to name it a party to the demolition suit; (2) as certificate holder, it possessed vested rights either to reimbursement of the tax sale price plus penalty interest or to a tax deed on expiration of the redemption period and that the City’s breach of duty entitled it to damages for loss of its anticipated gain; and (3) the petition it filed to vacate the tax sale in exchange for a refund of its purchase price represented only an effort to mitigate damages. The City responds that its failure after diligent search to make Thornton a party to the suit did not render it liable to the certificate holder, and that Thornton’s refund for and cancellation of the tax certificate of purchase released all its claims.

Thornton purchased the certificate for $6,184.94 on October 31, 1966, at a sale for the delinquent general taxes on a 12-apartment building situated on two lots. At the time of the purchase a partner in Thornton estimated the value of the property to be $30,000, based on capitalization of the income stream, with allowance made for $4,800 to $5,800 for the repairs which he estimated were necessary to bring the building into compliance with the municipal housing code.

Four months after the sale, on March 3, 1967, the City instituted a demolition suit against the same property. In August 1967, on motion of the City, a receiver was appointed for the limited purpose of seeing whether the building could be brought into compliance with the housing code. Orders were subsequently entered to vacate the premises and to repair them. When the owners of record did not comply with the latter order, a decree was entered in June 17, 1968, directing the elimination of the alleged public menace. The building was demolished some time between October 17 and November 23, 1968.

Thornton claims not to have learned of these events until after the demoMtion had taken place. The evidence, however, contradicts this assertion. Through its partner Stanford Marks, Thornton admitted at the trial that it failed to inspect the premises from the time of the tax sale in October 1966 until shortly after the receipt in August 1968 of a report of title listing the City’s demolition suit. Thornton had requested the report preliminary to preparing a petition for a tax deed on the property. When Marks viewed the building in late August or early September 1968 he found it abandoned and extensively vandalized. Judging the building incapable of economic restoration, Thornton decided not to petition for a tax deed. Instead, it filed this action, charging the City with negligent faüure to serve notice of the demolition suit, as required by section 253a of the Revenue Act of 1939 (Ill. Rev. Stat., 1965, ch. 120, par. 734a), and seeking damages measured by either the difference between the market value of the property at the time the tax certificate was purchased and after the improvement was razed or, alternatively, the amount which a redeeming titleholder would have been charged in October 1968. It also petitioned for and was granted a vacation of the original tax sale, receiving a refund of the sale price in exchange for the surrender and canceUation of the certificate.

In order to evaluate the parties’ claims on the matter of Uability, it is first necessary to determine whether and to what extent the City had a duty to notify Thornton. That some such duty existed is beyond argument. Section 253a requires that tax certificate holders be named parties to demolition actions affecting property represented by their certificates. In view of this prescription, and keeping in mind general jurisdictional tenets, it would seem that unless a certificate holder was in privity with one of the parties actually notified in a demolition action, failure to notify that holder of the action would make any decree against him void. Section 253a, however, must be read in conjunction with that portion of the revised Cities and Villages Act which governs demolition proceedings, particularly with that part of section 11 — 31 — 1 (Ill. Rev. Stat. 1967, ch. 24, par. 11 — 31 — 1) which provides:

‘Where, upon diligent search, the identity or whereabouts of the owner or owners of any such building shall not be ascertainable, notice mailed to the person or persons in whose name such real estate was last assessed shall constitute sufficient notice under this section.” (Ill. Rev. Stat. 1967, ch. 24, par. 11 — 31 — 1.)

Service by publication is considered adequate substitute for the written notice specified in section 11 — 31 — 1. City of Chicago v. Leakas (1972), 6 Ill.App.3d 20, 284 N.E.2d 449; City of Chicago v. Logan (1965), 56 Ill.App.2d 291, 205 N.E.2d 795.

We do not perceive an irreconcilable conflict between the notice provisions of the Revenue Act and the Cities and ViHages Act. The one specifies a party necessary to demolition actions, the other describes a proper mode of notifying necessary parties. Laws must be interpreted consistently with one another where possible, and statutes should be construed with other statutes touching the same subject as part of a coherent system of legislation. (Klemme v. Drainage District No. 5 (1942), 380 Ill. 221, 43 N.E.2d 966.) Reconciliation of the two provisions is supported by comparison of the poficies behind the respective legislative schemes. The tax sale provisions of the Revenue Act were drawn with the object of procuring revenue. The various protective provisions of the Revenue Act toward tax purchasers have the object of inducing prudent persons to bid at tax sales. The State has both a general interest in keeping titles free from clouds and a special interest in encouraging persons to provide governmental units with the revenue they would not have received because of tax delinquencies. Ancillary to this is a purpose to keep rental units viable where possible, if legal owners have, as is often the case, abandoned the properties. City of Chicago v. Logan (1965), 56 Ill.App. 2d 291, 205 N.E.2d 795.

Against these desiderata must be weighed the interest in the public health, safety and welfare which is served by the relevant portions of the Cities and ViHages Act. Section 11 — 31 — 1 reflects the pressing need to free the community from menaces to its well-being. In a metropolis the size of Chicago, the authorities are annually confronted with hundreds of hazardous and abandoned properties. The interests of public safety necessitate a more summary kind of procedure and a lesser standard of notice to interested parties, particularly those who make themselves difficult to find. But while the poficy behind summary approaches to the demofition of dangerous and unsafe buildings is perhaps more imperative than the interest in protecting tax titles as an inducement to tax purchasing and the production of revenue, it in no way dictates abandonment of the latter aim.

Tax purchasers are far from helpless if they wish to supervise their investments during the interim between a tax sale and expiration of the redemption period. In addition to that portion upon which Thornton relies, section 253a further provides:

“After any sale of real property for fafiure to pay taxes upon such property and until a tax deed has been issued or until redemption has been made, no waste shall be committed on any of the premises involved. The court in which the order was entered directing such property to be sold to satisfy the taxes, interest, penalties and costs may, upon verified petition of the holder of the certificate of purchase, take such action as the court deems necessary and desirable to prevent the commission of waste. ft ft ft
6 * * Nothing herein contained is intended to prevent a court from appointing the holder of the certificate of purchase as receiver.” (Ill. Rev. Stat. 1965, ch. 120, par. 734a.)

Section 253a does not contemplate a scheme of insurance for tax title investors, but instead guarantees them appropriate legal process by which to help themselves. It is to be noted that Thornton, experienced and knowledgeable in the field of delinquent tax purchases, did not make use of this protective statute. Moreover, according to its own testimony, it did not look at the twelve-apartment building to which it held a tax sale certificate from October 1966 until August or September 1968; and, although it knew in August 1968 that demolition was imminent — the demolition did not take place until some time between October 17 and November 23 — it took no action to prevent it.

We must also recognize as a matter of common sense that acceptance of Thornton’s contention that the notice provision of section 253a is unqualified and that the City may not interpose the due diligence defense available through section 11 — 31 — 1 of the Cities and Villages Act, would force a conclusion that the legislature, by designating tax certificate holders as necessary parties in demolition actions, meant to confer on such persons a higher status vis-a-vis the City than that enjoyed by owners in fee, who remain entitled only to such notice as can be provided after diligent inquiry. To infer such an inverted treatment of the two interests would be untenable, absent a more clearly expressed directive. A clearer expression was indeed forthcoming in the 1969 statutes. However, far from supporting Thornton’s theory, the legislature by its revision of section 11 — 31 — 1 made explicit the qualification that the City’s defense of diligent inquiry is assertable equally against both owners and lienholders of record. Ill. Rev. Stat. 1969, ch. 24, par. 11 — 31 — 1.

However, to agree with the City that it owed Thornton only a duty to make diligent inquiry is not to conclude that such inquiry was made. The City asserts that it was; that in its demolition action the persons in whose names taxes had last been assessed, owners of record and unknown owners were named defendants and served by publication after the City filed an affidavit of diligent inquiry for interested persons pursuant to section 14 of the Civil Practice Act (Ill. Rev. Stat. 1965, ch. 110, par. 14). An affidavit of diligent inquiry would be part of the record of a demolition proceeding and it would enumerate the steps taken by the City in its unsuccessful attempt to identify and personally serve the owners of record. While there may have been such an affidavit there is nothing in the record before us to support the City’s assertion. The record of the demolition suit was not made part of the record in this case. Since this action terminated at the close of the plaintiffs’ case, the City had no need to present evidence and it made no affirmative showing to counterbalance Thornton’s proof that it in fact received no notice of the demolition suit. A diligent inquiry would have included a search of public records and a thorough search might have disclosed Thornton’s interest, for the law provides that the county collector shall prepare a judgment, sale, redemption and forfeiture record and that the record shall be kept in the office of the county clerk. Ill. Rev. Stat. 1967, ch. 120, par. 713.

The City points out that Thornton did not allege lack of diligent inquiry in its complaint, but the City does not suggest what conclusion should be drawn from this omission. It certainly would not vitiate the allegation of negligence; moreover, since diligent inquiry is in the nature of an affirmative defense, it does not fall to the plaintiff to allege its absence.

The City claims, next, that its failure to discover Thornton’s interest does not in itself indicate a lack of diligent inquiry. By this it seems to propose that in proceedings leading to a decree of demolition there exists a presumption of regularity and that as a matter of law this presumption is not rebutted by evidence showing that a party in interest was not served. Again, the proposition arises from a misperception of the affirmative nature of the defense of diligent inquiry, and the cases cited fall short of establishing the point. People v. O’Keefe (1960), 18 Ill.2d 386, 164 N.E.2d 5, and Village of Dolton v. First National Bank (1957), 12 Ill.2d 435, 147 N.E.2d 62, both concerned the notice which tax certificate holders must provide to owners of record at the expiration of their redemption period in order to qualify the certificate holders to receive their tax deeds. (Ill. Rev. Stat. 1967, ch. 120, par. 744.) On the other hand, City of Chicago v. General Realty Corp. (1971), 133 Ill. App.2d 662, 273 N.E.2d 712, and City of Chicago v. Logan (1965), 56 Ill.App.2d 291, 205 N.E.2d 795, did concern demolition suits. Decrees were entered although interested parties had not been notified of the proceedings. In both cases the courts found that the City had made diligent inquiry within the meaning of the statute and was therefore free of blame for its failure to locate the proper parties in accordance with section 11 — 31—1 of the Cities and Villages Act. In General Realty there was proof that the City’s title search had been conducted prior to the defendants’ recordation of their interest in the property, and the reviewing court further determined from the record that the defendants were not prejudiced by lack of personal service, since they had appeared in court before the appointment of a receiver and the entry of the demolition decree. In Logan, an action to vacate a demolition decree, service by publication was held adequate notice, but the reviewing court, aided by the decree and the record of proceedings from the court which ordered demolition, based its decision on the circumstances of that case. As we have mentioned, in this case the record of the demolition suit is not before us, and an appellate court will not take judicial notice of a record in another court unless it is incorporated in the proceeding before it. Neumann v. Ellars (1966), 75 Ill.App.2d 394, 221 N.E.2d 85.

If the City did indeed make diligent inquiry, that would be a matter easily proved by evidence within the City’s control which, since this case will be remanded, we would expect to be adduced at the next trial. Inasmuch as our order will be one of remandment, a further word is due on the treatment to be accorded an affidavit of diligence, should it be produced. Such an affidavit does not foreclose further inquiry. Courts will, if necessary, look behind the document’s allegations and if they do not speak the whole truth, jurisdiction will not obtain. (City of Chicago v. Moran (1974), 17 Ill.App.3d 515, 308 N.E.2d 324; City of Chicago v. Leakas (1972), 6 Ill.App.3d 20, 284 N.E.2d 449.) In Leakas the evidence showed that the City’s process server had not made a serious, well-directed effort to locate a building owner; as a result the demolition decree was voided, notwithstanding the presence of an affidavit of due inquiry. Similarly, mere proof that the City filed such an affidavit in the March 1967 demolition proceeding would not conclude the issue of negligence.

The City next asserts that Thornton is not entitled to relief because of its own failure to intervene in the demolition action upon receipt of the report of title which disclosed that the property had been condemned and upon its own inspection which revealed the building was still standing. The City cites Shippert v. Shippert (1939), 371 Ill. 267, 20 N.E.2d 597, but that case affords a poor analogy to the present one. Shippert pertained to a petition to set aside a decree partitioning certain lands. The decree was denied, because while the complaining party had not been served the required notice of the filing of a counterclaim, he had already appeared in court prior to its lodging and then apparently abandoned the proceeding. Thornton, on the contrary, did not receive actual notice until after the entry of the demolition order.

Furthermore, Thornton’s evidence was that when it finally received notice, the property had fallen into such a state of disrepair that its rehabilitation had become uneconomical. True, a Thornton partner ac-in his testimony that at the time of purchase, the building was in substantial disrepair; and Thornton then ignored it for nearly 2 years, reappearing at the building only when the period of redemption had virtually expired. Although Thornton’s failure to make periodic inspections of the property and its failure to avail itself of the remedy provided by statute to have a receiver appointed may have contributed to its alleged loss and may be evidence of its own negligence, whether this neglect can be said to absolve the City is another matter. When a person who has an interest in property knowingly stands by and suffers it to be disposed of under a decree without making known his claim, he may not later raise the claim. (Moore v. Gilmer (1933), 353 Ill. 420, 187 N.E. 466.) But Thornton did not actually or constructively learn of the demolition proceeding until two months after the decree was entered and long after the property had been evacuated by court order. The lack of notice 19 months earlier may have contributed to Thornton’s failure to preserve the property when it would, possibly, have been economically more feasible to do so.

The City also argues that even if it were to concede its negligence, Thornton would be bound by the remedy it elected when it petitioned for and received a refund of the tax sale purchase price in return for the cancellation of the sale certificate; that it surrendered all claims arising from its status as a certificate holder when it surrendered the certificate itself. Thornton replies that it only sought to fulfill its duty to mitigate damages which were far in excess of the refunded purchase price.

In assessing these contentions, it is first necessary to understand the nature of the rights conferred on tax purchasers by the Revenue Act. The City relies on section 262 of the Act, which states:

“* * * the return of the certificate of purchase * * * for cancellation, shall operate as a release of all the claim to such tract or lot under, or by virtue of the purchase * # (Ill. Rev. Stat. 1969, ch. 120, par. 743.)

It is Thornton’s position that it was entitled to additional damages because it already possessed a vested right to reimbursement of the purchase price plus penalty payment from the delinquent titleholder or, in the alternative, a vested right to a tax deed upon the expiration of the redemption period. To support its assertion of vested rights Thornton relies on City of Chicago v. City Realty Exchange, Inc. (1970), 127 Ill.App.2d 185, 190, 262 N.E.2d 230, where it is stated:

“One of the interests a tax purchaser acquires through his certificate of purchase is the right to be paid the price of the sale, interest, costs and any other taxes paid, if there is redemption.”

If no redemption is made, then the certificate holder has the right to petition for a tax deed. Ill. Rev. Stat. 1965, ch. 120, par. 747.

Under the statutory scheme as it existed prior to 1969, sales in error were declared only for the four reasons specified in section 260 of the Revenue Act, none of which were remotely connected to demolition of the premises. (Ill. Rev. Stat. 1967, ch. 120, par. 741.) In 1969, however, the legislature enacted section 271.1 which provided that a sale would be set aside as error if a tax purchaser did not reimburse a city for advancements it may have made from the public treasury because of its interest in the land under its police and welfare powers. (Ill. Rev. Stat. 1969, ch. 120, par. 752.1.) And in 1970, section 260 of the Act was amended and its scope expanded by the addition of another reason for declaring a sale in error:

“[U]pon application of the tax purchaser that the improvements upon property sold have been substantially destroyed subsequent to the tax sale and prior to the issuance of the tax deed, the county clerk or the court which ordered the property sold shall declare such sale to be a sale in error * # Ill. Rev. Stat. 1971, ch. 120, par. 741.

This amendment, which became effective after Thornton received its refund and cancellation, provides only a statutory form of relief. But this is not to say that by the 1970 amendment the legislature intended to provide an exclusive remedy. The prevailing principle is that the common law remains the law of Illinois unless it is expressly revoked by statute. (Waesch v. Elgin, J. & Ry. Co. (1962), 38 Ill.App.2d 56, 186 N.E.2d 369.) A party injured by a municipality’s negligence still retains any right to compensation for the value of its loss which it can prove in tort, unless it has abandoned both sets of rights — statutory and common law— by surrendering its tax certificate. This, Thornton did not do; rather, only its status as certificate holder terminated. Thus, Thornton has no further capacity to take a deed to the land, and no claim on the owners for penalty payments and redemption. (Ill. Rev. Stat. 1967, ch. 120, par. 743.) But it has not abandoned its common-law right to compensation for the alleged negligent act which it claims undercut the investment value of its purchase. The narrow question has not been adjudicated in this jurisdiction but the result in another state is instructive. In Hepner v. Township Committee of Lawrence Twp. (1971), 115 N.J.Super. 155, 278 A.2d 513, the court ruled that common-law right to recovery were retained notwithstanding an express provision within the act governing demolitions that the injunctive remedy there set forth would be the exclusive means to obtain relief under the statute. That result seems consistent with the principle of Waesch. Also, the provision here relied upon by the City does not go as far as the New Jersey statute. It contains no express declaration of exclusivity, nor can one fairly be implied. Where a new remedy is granted by statute and there are no negative words or other provisions rendering it exclusive, it will be deemed to be cumulative only and not to take away prior remedies. (Kosicki v. S. A. Healy Co. (1942), 380 Ill. 298, 44 N.E.2d 27.) The doctrine of election among cumulative remedies does not apply when multiple avenues of remedy are pursued, as long as double compensation of the plaintiff is not threatened, the defendant has not actually been misled by the plaintiffs conduct, and res adjudicata principles cannot be applied to bar an inconsistent theory. (Faber, Coe & Gregg, Inc. v. First National Bank (1969), 107 Ill.App.2d 204, 246 N.E.2d 96.) None of those feared consequences are manifested here.

. If it is conceded that Thornton did not surrender the common-law right to recover, it becomes necessary for it to prove that its injury was inflicted by the City’s negligence. Thornton claims that the City’s liability was established at the trial and that the request remand should only be for the purpose of entering judgment for the damages it sustained. We think, however, that in the interest of justice the cause should be remanded for a new trial on all issues, and under the authority that is ours, that will be our order. Ill. Const., art. VI, sec. 6; Ill. Rev. Stat. 1973, ch. 110A, par. 366(a).

Thornton’s complaint sounded in tort. In a negligence action the plaintiff must establish a duty owed by the defendant, a negligent act or omission by the defendant which breaches that duty and a compensable injury to the plaintiff resulting from such breach. Liability includes both negligence and injury. To warrant an assessment of liability, affirmative and positive proof is required that the actionable negligence was the proximate cause of the injury. (Apato v. Be Mac Transport Co. (1972), 7 Ill. App.3d 1099, 288 N.E.2d 683.) At the next Rial the trier of fact must determine questions of liability such as the City’s negligence, Thornton’s negligence and the proximate cause of Thornton’s loss. Its loss was caused by the deterioration of the investment value of the building. Whether the failure of the City to notify Thornton was the proximate cause of the loss is an arguable question. At best, notifying Thornton could only have resulted in its appearing in the case and asking to have itself appointed receiver to preserve or rehabilitate the property. This, it could have done at any time, notice or no notice. It may be found that it was not the City’s negligence but Thornton’s voluntary decision not to exercise its rights under section 253a of the Revenue Act of 1939 that undercut the value of its investment in the building.

If the liability issues are found in Thornton’s favor, then it will become necessary to ascertain the compensable extent of its damage. Thornton thinks it should be $23,818.06. It arrives at this figure by subtracting $6,181.94 (the sum it was refunded when it surrendered the tax certificate) from $30,000.00 (its own estimated value of the property at the time it purchased the certificate). The City thinks that Thornton by its acceptance of the refund has been fully compensated.

As a general rule, the measure of damages in actions for injuries to real property is the difference in market value before and after injury to the premises. (Donk Bros. Coal & Coke Co. v. Novero (1907), 135 Ill. App. 633.) It would seem reasonable for a fee simple owner of property to claim compensation for the full value of the improvements demolished. But Thornton owned something less than a fee interest. Under the terms of the statute, Thornton purchased real property, but the tax certificate representing its purchase gave it no right to possession of the land or title thereto until after the expiration of the period of redemption. (Wells v. Glos (1917), 277 Ill. 516,115 N.E. 658.) While Thornton claims a total loss of the value it placed on the property, whatever loss it suffered occurred during the redemption period, when it had neither title to the land nor the right to its use. In reality, it seeks compensation for the hypothetical profits it would have made if the building had not deteriorated and if no redemption were made and if it had complied with the other conditions of law entitling it to a tax deed.

Lost profits as an element of damage must be the necessary and natural consequence of the injurious act. They are compensable only so far as they are plainly traceable to it, and may not be recovered when they are merely probable and speculative. (Bimba Mfg. Co. v. Starz Cylinder Co. (1969), 119 Ill.App.2d 251, 256 N.E.2d 357; Illinois & St. L. R.R. & Coal Co. v. Decker (1878), 3 Ill.App. 135.) The record shows only Thorntons assertion that the property had a $30,000 value in 1966, based on the capitalization of the rent. In reaching this figure Thornton allowed for approximately $5,000 in repairs it believed necessary to bring the building into conformity with the housing code. But it stretches credulity to consider that the building could reasonably have been expected to remain in a static condition for the ensuing 2-year period of redemption. There was testimony by Thornton’s representatives that when they purchased the tax certificate they could not locate the owners of record, and knew that the building already was in substantial violation of the municipal housing code. Hence for Thornton to rely on continuation of the same income as then received, and to anticipate no further deterioration in the premises, seems wholly unwarranted. This inference becomes inescapable when it is recalled that condemnation proceedings were launched only four months after the tax sale.

There is a strict policy in Illinois not to order demolition of buildings unless the structure is substantially beyond repair, and courts granting demolition decrees are required to specify the defects which render the building dangerous and unsafe. (City of Aurora v. Meyer (1967), 38 Ill.2d 131, 230 N.E.2d 200.) Moreover, making every reasonable concession to the reliability of Thornton’s estimate of value, it nevertheless appears inevitable that the property was destined to further deteriorate during the 2-year redemption period, even if the City had never disturbed the status quo with its demolition suit. Indeed, had the City not brought that suit it seems likely that abandonment and vandalization would still have been the early fate of the building. Therefore, we must conclude that Thornton’s estimation of the building’s value in 1966 was an improper and wholly speculative source by which to measure any damage which proximately and naturally flowed from the City’s failure to notify Thornton of the demolition suit. Tire estimate did not include the impairment which reasonably could be expected to occur during the redemption period; and since deterioration was a virtual certainty Thornton has not shown that its not receiving notice of the City’s suit was the only, or even a major cause of that deterioration which did eventuate subsequent to the filing of the suit.

When a defendant moves pursuant to section 64(5) for a finding in its favor at the close of plaintiffs case, the motion is a procedural means of submitting the whole case to the court for a determination of the merits. In ruling on the motion the court is required to weigh tire evidence offered by the plaintiff. (Ill. Rev. Stat. 1969, ch. 110, par. 64(5).) The standard to be employed when reviewing the propriety of a trial court’s ruling on the motion is whether it was manifestly erroneous. (Bilyeu v. Plant (1966), 75 Ill.App.2d 109, 220 N.E.2d 513.) By granting the City’s motion the court effectively decided that, conceding negligence on the part of the City, Thornton had nevertheless failed to affirmatively establish any damages not already compensated for by refund of the price paid at the tax sale. This court may not reverse unless Thornton’s evidence was clearly contrary to the court’s decision.

In order to resolve that issue it is first necessary to ascertain the appropriate measure of damages due a tax sale certificate holder for negligent injury of property covered by tire certificate. We have determined that the maximum entitlement of certificate holders to money damages for injury to their investment value occurring during the redemption period must be limited to an amount equal to the price of redemption. “The statute contemplates redemption where the value of the property exceeds the sale price * * * [A]nd when [the purchaser] is repaid all that the statute allows upon redemption, that is all he is either legally or equitably entitled to receive.” (Shack v. Sykora (1955), 6 Ill.2d 215, 127 N.E.2d 453.) Although a tax buyer is not entitled to redemption from any person except private parties who are eligible to redeem (and certainly not from the City), the redemption and penalty payments nevertheless equal the maximum value to him of his certificate, from the time he purchases it until the redemption period expires. As the court reasoned in Skach, the real property itself may well have a value greater than the tax sale price plus penalties, but if it does, then it logically can be expected to be redeemed. Until the period of redemption expires, the certificate holder has no claim to any value beyond the redemption price. Until that event occurs, the holder has a mere expectancy of acquiring title and possession of the land. This is the essence of what we mean when we speak of speculative profits.

On remand it will be for the trier of fact to decide, if the City is unable to establish its affirmative defense of diligent inquiry, the negligence issues mentioned in this opinion. If they are decided against the City, then it must be determined whether the City’s negligent failure to notify Thornton of the demolition action caused measurable damage to Thornton, beyond the refund of its purchase price, in the amount of all or any part of the redemption penalty payments which would have been due it at the time Thornton received actual notice of the City’s suit in August 1968.

Reversed and remanded with directions.

McNAMARA, P. J., and McGLOON, J., concur.