author: Mr. JUSTICE CLARK Mr. PRESIDING JUSTICE SMITH

text:
      In re Estate of Zulena M. Barker, Deceased—(The People of the State of Illinois, Plaintiff-Appellant, v. Ernestine G. Barker, Ex’r, Defendant-Appellee.)
    (No. 12140;
    Fourth District
    December 30, 1974.

      Rehearing denied January 30, 1975.

      SMITH, P. J., specially concurring.
    William J. Scott, Attorney General, of Springfield, and Joseph O. Rubinelli, of Rubinelli & Rubinelli, of Chicago (Warren K. Smoot and Thomas J. Downs, Assistant Attorneys General, of counsel), for appellant.
    Gardner, Carton, Douglas, Chilgren & Waud, of Chicago, and Markowitz, Lawrence, Lenz, Jennings & Naylor, of Bloomington (Joseph P. Carr, James J. McClure, Jr., and Elliot M. Schnitzer, of counsel), for appellee.
   Mr. JUSTICE CLARK

delivered the opinion of the court:

This case has been transferred here from the supreme court under Supreme Court Rule 365. (Ill. Rev. Stat. 1973, ch. 110A, par. 365). The Attorney General attempted to consolidate this appeal with an appeal taken by a taxpayer from a Third District decision of In re Estate of Voss, 5 Ill.App.3d 320, 282 N.E.2d 178. The issue in both cases dealt with the propriety of the circuit court’s ruling assessing the date-of-death value of United States Treasury bonds for Illinois inheritance tax purposes. The circuit court of McLean County found that the “clear market value” of the United States Treasury bonds at the time of decedent’s death under the Illinois Inheritance Tax Act (Ill. Rev. Stat. 1969, ch. 120, par. 375) was the fair market value of said bonds and not the par value. The court’s decision was made notwithstanding the fact that the bonds were redeemable at par when used for the payment of decedent’s Federal estate taxes. The Attorney General contests the court’s ruling.

Aside from the aforesaid valuation issue, the Attorney General, in his reply brief on appeal, raised a second issue. The Attorney General contended that if the treasury bonds can be valued at their fair market values as of the date of decedent’s death, then the amount of Federal estate taxes paid and thus allowed as a deduction against- the decedent’s gross estate for Illinois inheritance tax purposes should be reduced by the difference between the par value of the bonds and the fair market value. The executrix was permitted to file a supplemental brief wherein she urged that the Attorney General had waived the deduction issue.

During the course of oral argument of this case, we propounded to the parties certain constitutional and jurisdictional questions fconceming the procedures as specified in section 11 of the Illinois Inheritance Tax Act (Ill. Rev. Stat. 1973, ch. 120, par. 385).

The underlying facts of this cause of action are as follows. On January 23, 1970, Zulena M. Barker died testate. Her will was probated in the circuit court of McLean County. Among the assets of decedent’s estate were several United States Treasury bonds. These bonds had a par value of $30,000. Each bond returned 3% percent interest per annum, and' the bonds began maturing annually from 1978 to 1983. The fair market value of the bonds at the date of decedent’s death was set at $65.44 per $100. This value was the market-quoted value.

The executrix of the estate determined that such a valuation complied with the requirements of the Illinois Inheritance Tax Act that all property of a decedent be valued at the property’s fair market value. The total fair market value of the bonds included in decedent’s gross estate amounted to $19,632. The Attorney General filed objections to decedent’s Illinois inheritance tax return. The Attorney General contended that all United States Treasury bonds used as part payment of Federal estate taxes, and thus redeemed at par for that purpose, should be valued at par in the Illinois inheritance tax return.

A hearing was held on the Attorney General’s objections. On July 9, 1971, the judge ruled in favor of the executrix. In a memorandum of opinion the reasoning of the executrix was essentially adopted. The Attorney General filed a petition for appeal to the circuit court on August 2, 1971. In the appeal, the Attorney General sought to have the aforementioned order overruled. On August 6, 1971, the appeal to the circuit court was allowed. On March 13, 1972, the July 9, 1971, order assessing taxes was affirmed.

The Attorney General then filed a notice of appeal to the Supreme Court of Illinois, which transferred the case to this court.

As to the Attorney General’s first contention, dealing with the correct valuation of the bonds in question, we find that the decision of the supreme court in In re Estate of Voss, 55 Ill.2d 313, 303 N.E.2d 9, is dispositive. In Voss, the supreme court addressed the same issue that is presented to us and rejected the Attorney General’s position on that issue. Therein the court stated that, under section 11 of the Illinois Inheritance Tax Act, Illinois inheritance tax is imposed upon the clear market value of decedent’s property as set on the date of death. The court discussed the concept of market value as found in the statute and held that the United States Treasury bonds must be valued at their market-quoted value rather than at par or face value. The court observed the fact that bonds are redeemable at par value for payment of Federal estate taxes is a factor considered in establishing the clear market value of bonds.

The Attorney General next urges that if the bonds are valued at market value for Illinois inheritance tax purposes then the deduction allowed under Schedule D for the Federal estate taxes paid should be reduced by the difference between the market and par values of the United States Treasury bonds. The executrix contends that this court may not consider the Attorney General’s second issue. It is urged that this issue was not raised below along with the deduction issue and therefore has been waived. We agree.

Theories not raised in the trial court are deemed waived on appeal. (Cockerill v. Wilson, 51 Ill.2d 179, 281 N.E.2d 648.) Likewise, a party cannot change or alter the theory of its case on appeal. (O’Hare International Bank v. Feddeler, 16 Ill.App.3d 35, 305 N.E.2d 325.) This is precisely what the Attorney General has done. We have searched the record and examined the Attorney General’s objections to the tax return in question and find that the questions in the circuit court were limited to the valuation issue.

As indicated, this court raised certain questions during the course of oral arguments. These inquiries dealt with various constitutional and jurisdictional matters relating to the procedures found in section 11 of the Illinois Inheritance Tax Act, which provides procedure for the operation of the circuit court and the method of appeal therefrom.

On July 9, 1971, the circuit court dismissed the Attorney General’s tax objection. Within 30 days the Attorney General petitioned for appeal to the circuit court. This petition was granted, a hearing was held thereon, and the circuit court took the matter under advisement. The circuit court announced its decision on March 13, 1972, and stated:

“This matter came on to be heard upon the Appeal of the People of this State of Illinois from an Order Assessing Inheritance Tax entered July 9, 1971. The Court heard the arguments of counsel and on due and careful consideration therefore FINDS said appeal should be denied and dismissed.
It is ORDERED that Appeal of the People of the State of Illinois from the Order Assessing Inheritance Tax be denied and dismissed.”

The Attorney General filed a notice of appeal which stated:

“ PLEASE TAKE NOTICE that PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, by WILLIAM J. SCOTT, Attorney General of the State of Illinois, their attorney, hereby appeal to the Supreme Court of Illinois from the order assessing tax herein, entered on March 13, 1972, by Honorable Wendell E. Oliver, Judge of the Circuit Court of the Eleventh Judicial Circuit, McLean County, Illinois.”

Except for the Attorney General’s notice of appeal, all of the above proceedings were governed by section 11 of the Illinois Inheritance Tax Act. Section 11 states:

“Any person or persons including the Attorney General, dissatisfied with the appraisement or assessment, or the allowance of fees and expenses to the appraiser, or other costs taxed; may appeal therefrom to the circuit court of the proper county within 60 days after the making and filing of such assessment order on paying or giving to the circuit judge who made the order of assessment security satisfactory to pay all costs, together with whatever taxes shall be fixed by the court; provided no bond or security shall be required of the Attorney General.” (Ill. Rev. Stat. 1973, ch. 120, par. 385.)

We find the procedures enunciated in section 11 to be constitutionally infirm.

In People v. Jennings, 353 Ill. 432, 187 N.E. 429, the supreme court held that when under section 11 an inheritance tax is assessed by a county judge, the judge was acting as an administrative officer. The Jennings case also holds that if no appeal is taken within 60 days after the entry of an order fixing taxes, the order becomes res judicata. The import of this is that when an assessment is made, it is a final appealable order. The holding in the Jennings case in effect amplifies the issues herein. When the court in Jennings issued its mandate, it was governed by the old judicial article of the 1870 Constitution; thus, judicial officers could constitutionally function in an administrative manner under certain circumstances, and an appeal from the county court to the circuit court was a permissible and constitutional procedure. The questions herein are: (1) under the judicial article and the separation of powers of the 1970 Constitution, can a judicial officer legitimately function as an administrative official, and thus make tax assessments; and (2) if an order of a judge making an assessment is final and appealable, then can section 11 establish an appellate procedure different from that found in the Supreme Court Rules. Our answer must be “no” as to both questions.

In article II, section 1, of the 1970 Constitution, it is stated:

“The legislative, executive and judicial branches are separate. No branch shall exercise powers properly belonging to another.” (Ill. Const, art. II, §1 (1970).)

In article VI, section 1, of the 1970 Constitution, it is stated:

“The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts.” (Ill. Const, art. VI, § 1 (1970).)

These constitutional provisions mandate that the judiciary shall function separate and apart from other branches of government and exercise only judicial power. This in and of itself precludes a constitutional court, such as the circuit court, from functioning in an administrative capacity. The only exception to this rule is that the various courts may see to the administering of needs of the judicial system as set forth in article VI of the constitution.

Section 11 runs counter to the basic concepts set out in the constitution. In Jennings, it is clear that a judicial officer who makes assessments under said section acts in an administrative capacity.

The judicial article of the 1970 Constitution and the 1962 amendment to the 1870 Constitution prohibit the appeal of an order from a judge of the circuit court to the circuit court. Professor Rubin Cohn in his article The Illinois Judicial Department — Changes Affected by Constitution of 1970, 1971 U. Ill. L.F, 355 (1971), noted that the judicial article established an integrated three-tier court system composed of the circuit courts, appellate court and supreme court. At the base of the new judicial system was the unified circuit court having general jurisdiction. It is there further pointed out that the amendment abolished all prior constitutional statutory courts of limited jurisdiction, i.e., county, probate, municipal, city, village and town courts, superior court of Cook County, justices-of-the peace and magistrate courts. Also, Professor Cohn’s article observes that the jurisdictional problems that plagued the pre-existing system of fragmented trial courts were eliminated by the integrated circuit court concept as were the costly and unnecessary retrials de novo occasioned by the system. U. Ill. L.F. at 355-356.

Article VI, section 6, of the 1970 Constitution states that appeals from final judgments of the circuit court are appealable to the appellate court as a matter of right. Section 11 would have an interested party appeal from the order assessing taxes, a final order under Jennings, to a court other than the appellate court. The section also permits an appeal to be taken in 60 days rather than the 30 days as prescribed in the Supreme. Court Rules. (Ill. Rev. Stat. 1973, ch. 110A, par. 303.) The conflict between section 11 and the Supreme Court Rules is apparent. It is a general rule that only the supreme court has authority to make rules governing time schedules or appeals. (People v. Kennedy, 43 Ill.2d 200, 251 N.E.2d 209.) It is also the rule that the supreme court and not the legislature has the rule-making responsibility for appeals under the constitution. (See People ex rel. Stamos v. Jones, 40 Ill.2d 62, 237 N.E.2d 495; Ill. Const. (1970), art. VI, § 16.) The appeal procedures of section 11 in all respects are in direct conflict with the Supreme Court Rules, and therefore are unconstitutional.

All relevant proceedings with which we are here concerned occurred subsequent to the effective date of the new 1970 Constitution. The purported appeal to the circuit court was a nullity, and this purported appeal from the ruling on that appeal is dismissed for want of jurisdiction. Thus, the original order of July 9,1971, is now final. That order is in agreement with the decision in Voss.

Appeal dismissed.

CRAVEN, J., concurs.

Mr. PRESIDING JUSTICE SMITH

specially concurring:

I concur in the ultimate result in this case which leaves the original order of July 9, 1971, assessing inheritance tax in this estate as a final order. My disenchantment is the method by which that result was reached. It seems to me that In re Estate of Voss, 55 Ill.2d 313, 303 N.E.2d 9, disposes of the only issue before this court, but that the rest of the opinion is wholly unnecessary and discusses issues not properly raised. In particular, I see no occasion either to discuss or to decide the constitutionality of any part of the Inheritance Tax Act. We raised some questions about it in oral argument. It was never decided by the trial court, and, as a consequence, in discussing that question here, the majority opinion goes far afield from any issue that we properly review. It is not necessary to find any part of the Inheritance Tax Act unconstitutional to dispose of this appeal.

We appropriately dismiss the attempted appeal not because of any provision of the State inheritance tax law but because of previous opinions of the Illinois Supreme Court that it is the obligation of that court to provide for expeditious and timely appeals and that it has the power rather than the legislature for making rules for appeals. (People v. Kennedy, 43 Ill.2d 200, 251 N.E.2d 209; People ex rel. Stamos v. Jones, 40 Ill.2d 62, 237 N.E.2d 495; Ill. Const, art. VI, § 16 (1970.) Following these principles, we may correctly hold that the order assessing inheritance tax was appealable to a reviewing court and not to the circuit court, and was not filed within the time limited by Supreme Court Rules. Under such circumstances, the proper order of the trial court would be affirmed without the necessity of discussing questions not decided by the trial court and without becoming advocates in an adversary proceeding — a position which we have so frequently declared to be abhorrent.

Reliance by the majority on Jennings for holding section 11 of the Inheritance Tax Act unconstitutional under the 1970 Constitution is reliance misplaced and prostitutes the holding in that case. The Jennings court neither held nor did it state that the county judge in determining the inheritance tax due, if any, acts as an administrative officer. Jennings merely held that once it was determined whether or not a tax was due and the amount, if any, was fixed by the county judge, and there was no appeal to the county court, “his decision is final and conclusive and not subject to review by the county court, except” under circumstances with which we are not concerned in Barker. By the same token, the order of the circuit court determining tax was not appealable in the manner here attempted, and the trial court correctly denied the appeal and dismissed it. The appeal should have been taken either to this court or to the supreme court under Supreme Court Rules. It wasn’t done in apt time or in the proper manner, and was from an order the trial court had no jurisdiction to review and was properly dismissed. This is so not because section 11 of the Inheritance Tax Act is unconstitutional but because the power of the supreme court to determine rules of appeal supersedes the power of the legislature to prescribe such rules. The majority manufactures a theory to use Jennings as a springboard to hold section 11 unconstitutional. From such a theory the conclusion necessarily follows that tihere was no one authorized to legally assess or impose State inheritance tax since the effective date of the 1970 Constitution. This conclusion is necessarily reached because of the majority’s determination that in inheritance tax proceedings a court acts in an administrative capacity rather than in a judicial capacity. The conclusion of the majority cannot find a solid foundation in Jennings because nowhere did that court either say that the judge was an administrative officer nor did its decision so hold. It was only the pleadings of the Attorney General which charged the county judge with acting as an administrative officer rather than in a judicial capacity. Jennings held only that no appeal was prosecuted within the proper time. Jennings therefore in my view is no authority to support the views expressed by the majority as to the unconstitutionality of section 11 of the Act.

Indeed when the functions imposed on the probate division under our present judicial system for determining the existence or nonexistence of inheritance tax and its amount are viewed in their practical, commonsense practice, I submit that that division of the circuit court functions as a court and not as an administrative agency. To hold otherwise under the 1970 Constitution is to cast a shadow upon legal titles and create many other legal complications too numerous to here specify. I see no reason to create any anxiety, shadows or doubts for the judiciary or the legal profession to obfuscate them when this case may be readily decided on the principles stated in Voss and by affirming the trial court. To denominate a circuit judge as an administrative officer under the Inheritance Tax Act is to me inexplicable, except for an unfortunate pleading in Jennings, unsupported by any judicial decision, and is regrettable. To make such a holding prospective only is in my judgment beyond the power of this court, in addition to being wholly unnecessary for a proper disposition of this case.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    Hattie Schilson et al., Plaintiffs-Appellants, v. Max Weinberg, Ex'r of the Estate of Gertrude K. Allen, Deceased, et al., Defendants-Appellees.
    (No. 74-173;
    Third District
    January 20, 1975.

      Stanley L. Tucker, of Hartzell, Glidden & Tucker, of Carthage, for appellants.
    Jeny Brennan, of Keefe, Pierson, Snowden, Gorman & Brennan, of Quincy, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This appeal is from an order of the circuit court of Hancock County dismissing the amended complaint of plaintiffs Hattie Schilson and others. Plaintiffs are the owners of 77 acres known as the Schilson property, and defendants are the owners of 160 acres known as the Allen property. Defendant Weinberg is the executor of the estate of Gertrude Allen, and the other defendants are the heirs of Gertrude Allen. There exists under the Allen property a title drain which extends under and through the Schilson property. In the original complaint the plaintiffs alleged this tile drain served to drain and benefit both the Allen property and the Schilson property. In the first of two counts it stated that the benefit to the Allen property was much greater than the benefit to the Schilson property in that the tile drain benefited 160 acres of Allen property and only slightly benefited 20 acres of the Schilson property. The original complaint was dismissed on motion of defendant.

The first amended complaint contains four counts. It alleges the tile drain serves to drain and benefit the Allen property and in the alternative that the tile drain either benefits the Schilson property slightly or does not benefit it at all. It further alleges that the tile drain is broken in several locations, is in a poor state of repair and is causing erosion on the Schilson property in the form of several large holes. It also alleges the drain has been in existence for over 30 years, and plaintiffs are not aware of any agreement, easement or arrangement regarding the drain. Plaintiffs claim they have made demands for repair of the drain and that the defects in the drain are causing damages and resulting in the inability of plaintiffs to farm certain portions of the Schilson property. The first count prays for the repair of the tile drain and the payment of such costs by defendants. The second count is for declaratory judgment pursuant to section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). The third count prays for specific performance of contractual duties and for the defendants to repair the tile drain and to pay the costs of repairing the tile drain. Each of these first three counts prays for such other and further relief as the court may deem equitable and proper. Count four is a separate action at law and prays for damages in the amount of $2,000 and costs of suit.

The court dismissed all four counts of plaintiffs’ first amended complaint stating that none of the counts stated a cause of action. Defendants’ motion to dismiss asks that the amended complaint be dismissed on the grounds that counts one and four had been previously dismissed and therefore were subject to the doctrine of res judicata and that counts two and three failed to state a cause of action. There are two principal issues on appeal. The first is whether defendants’ motion to dismiss is inadequate in its specification of alleged insufficiencies in plaintiffs’ first amended complaint, and the second issue is, assuming that defendants’ motion is adequate, whether plaintiffs’ amended complaint states a cause of action. Plaintiff contends that defendants’ motion to dismiss lacks the specificity required by section 45(2) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45(2)) which states in part: “[T]he motion must specify wherein the pleading or division thereof is insufficient.” Plaintiffs further contend, assuming that defendants’ motion is found sufficient, that the amended complaint does in fact state a cause of action because defendants have a duty to repair the tile drain under plaintiffs’ land. Defendants argue that since plaintiffs did not raise the issue of the sufficiency of defendants’ motion to dismiss in the trial court, plaintiffs therefore waived this issue. Defendants argue further that there is no legal duty to repair the tile drain alleged in any of the counts of the amended complaint.

The first issue to be dealt with concerns the sufficiency of defendants’ motion to dismiss. Plaintiffs argue that motions with respect to pleadings must point out specifically why a pleading is thought to be insufficient so that the party against whom the motion is directed has an opportunity to cure the specified objection by amendment, citing Danville Producers Dairy v. Preferred Risk Mutual Insurance Co. 33 Ill.App.2d 359, 179 N.E.2d 439, and Lee v. Conroy, 13 Ill.App.3d 694, 300 N.E.2d 505. In the Danville Producers Dairy case the court stated: “If a pleading is objected to by a motion to dismiss because it is substantially insufficient in law, the motion must specify wherein the pleading is insufficient.” (33 Ill.App.2d 359, 362.) This statement was in relation to the defendants raising on appeal the question of contributory negligence. Such issue was not presented in the trial court and defendant did not raise the question of contributory negligence in his motion to dismiss and supporting affidavit. The Lee case also uses similar language: “Furthermore, section 45 of the Civil Practice Act * * * requires that a motion to dismiss point out specifically why a pleading is thought to be insufficient. [Citations to Danville et al.]” (13 Ill.App.3d 694, 696.) The Lee case however also states: “On the other hand, a case should not be dismissed on the pleadings, if the pleader desires to amend, unless it is apparent that no cause of action can be stated.” (13 Ill.App.3d 694, 696.) In that case the court held that the plaintiff’s pleadings could be amended so as to obviate objections and defendant’s motions to dismiss were inadequate.

Defendants counter with the argument that since the issue of the adequacy of defendants’ motion to dismiss was not raised in the trial court, it cannot be raised in the appellate court, citing Zanbetiz v. Trans World Airlines, Inc., 72 Ill.App.2d 192, 219 N.E.2d 98, and Yellen v. Bloom, 326 Ill.App. 134, 61 N.E.2d 269. In Zanbetiz the court held: “Since the sufficiency of the motions was not attacked in the trial court, objections to them cannot be raised here for the first time on appeal.” (72 Ill.App.2d 192, 198.) The motion was made in that case by defendant attacking plaintiff’s amended complaint for not stating a cause of action. The court noted that defendant’s motion did not comply with the provisions of section 45 of the Civil Practice Act and that it did not point out wherein the amended complaint was insufficient as a matter of law. What the court considered materiaUy relevant in that case was the record failed to disclose any objection to the insufficiency of the motions in the trial court. To the same effect is Bethard v. Mink, 131 Ill.App.2d 1007, 1009, 267 N.E.2d 707, wherein the court held: “The petitioner filed no motion to strike the pleading or otherwise preserve any objections to its form or its sufficiency and we therefore cannot pass on the issue on appeal.”

Since the record here fails to show plaintiffs raised the issue of the sufficiency of defendants’ motion to dismiss in the trial court, and in light of the above cited cases, we hold the issue of the sufficiency of the motion to dismiss cannot be raised for the first time on this appeal.

The second principal issue in this case is whether plaintiffs’ amended complaint states a cause of action. After examination of the record it is obvious that it is necessary to treat counts one and four separately from counts two and three. Arguments are made by both parties as to the existence of a duty chargeable to defendant. The resolution of the sufficiency of the complaint as to counts one and four need not deal with the existence of such a duty, since it is obvious on the face of both counts that no duty of any kind is alleged by plaintiffs. Accordingly, we hold here that the trial court’s granting of the motion to dismiss as to counts one and four is affirmed.

Counts two and three differ from counts one and four in that the former contain allegations of the existence of a duty owed by defendants to plaintiffs. The issue is whether the alleged duties claimed in these two counts do in fact exist at law. The factual questions arising from the allegations contained in these counts are not to be decided by this court. Our function here is to determine whether, accepting all facts well-pleaded as true, counts two and three set forth a theory of legal liability.

Count two alleges that if defendants own an easement for drainage across plaintiffs’ property, then defendants have a duty to repair and maintain the tile drain, and, in the alternative, that if defendants do not own an easement for drainage across the plaintiffs’ property, then plaintiffs have a right to remove the tile drain. The prayer for relief in count two is consistent with the allegations in that count.

In count three plaintiffs alleged that if the tile drain is a mutual benefit drain, then it constitutes an easement, and defendants have a contractual duty to repair the tile drain. Again, plaintiffs’ prayer for relief is consistent with the allegations in the count.

The issue now becomes whether there is in law a duty of the owner of an easement to repair a tile drain as exists in this case. There is also a question as to whether, if there is no easement, plaintiffs have a right to remove the tile drain. We need not decide here whether there is in fact an easement, although the trial court in its lengthy opinion seems to have resolved many factual issues against plaintiffs. Since plaintiffs asked for the total costs of repair, defendants argue such a prayer would prevent plaintiffs from using any theory of liability predicated upon the sharing of costs. It should be noted that in the prayer for relief in both counts two and three plaintiffs asked for such other and further relief as the court may deem equitable and proper. Plaintiffs and this court are not bound by requests for total repair costs. We do not intend to imply that such costs should be granted to the plaintiffs, for there are questions of fact in this case which must be decided by the lower court.

The existence of a duty at law is recognized in case law as cited by plaintiffs. We refer to Murtha v. O’Heron, 178 Ill.App. 347 (1913), which recognizes the duty of an owner of an easement to keep it in repair.

For the foregoing reasons the judgment of the circuit court of Hancock County is affirmed in part and reversed in part and remanded for proceedings in accordance with this opinion.

Affirmed in part, reversed in part and remanded for further proceedings.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE SCOTT

text:
    Mary Margaret Brady, Plaintiff-Counterdefendant-Appellant, v. Highway Commissioner of Penn Township, Stark County, Defendant-Third-Party Plaintiff-Counterplaintiff-Appellee.—(Donald K. Brady, Third-Party Defendant-Counterdefendant-Appellee, v. Great American Insurance Company, Counterdefendant-Appellee.)
    (No. 73-247;
    Third District
    January 20, 1975.

      Rehearing denied February 14,1975.

      Boyle & Goldsmith, of Hennepin (Linn C. Goldsmith and George S. Skinner, of counsel), for appellant.
    Andrews & Andrews, of Kewanee, and Rennick, Rennick & Rennick, of Toulon (Harper Andrews, of counsel), for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the Circuit Court of Stark County. The original action in this cause was commenced when Mary Margaret Brady as plaintiff brought a suit in negligence for personal injuries against the highway commissioner of Penn Township, Stark County, Illinois (hereinafter referred to as the “Commissioner”). The third-party action for indemnification subsequently filed against a Donald K. Brady by the' Commissioner does not present any questions on this appeal.

To obviate the fact that she had failed to comply with the limitation and notice provisions of sections 8 — 101 and 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, pars. 8 — 101 and 8 — 102) the plaintiff alleged that the Commissioner was covered with respect to the injury complained of to the extent of her damages, by a comprehensive general liability insurance policy issued by the Great American Insurance Company (hereinafter referred to as the “Great American”). This allegation of the plaintiff was predicated on the Houseioright and Fanio cases, which hold that where a local public entity has contracted for insurance against loss or liability sought to be imposed against it, the notice and limitation provisions of the Tort Immunity Act are deemed waived. See Housewright v. City of LaHarpe, 51 Ill.2d 357, 282 N.E.2d 437; Fanio v. John W. Breslin Co., 51 Ill.2d 366, 282 N.E.2d 443.

The Commissioner filed a complaint for declaratory judgment against the plaintiff and also against Donald K. Brady and Great American in order to determine whether the policy of insurance did in fact afford coverage. Thereafter, the plaintiff filed a motion for summary judgment on the complaint for declaratory judgment, wherein she asked the trial court to find that the policy in question did in fact afford the coverage as she had alleged. Great American, after answering the complaint for declaratory judgment, then in turn filed a motion for summary judgment in which it was requested that the trial court declare that the policy did not afford the requisite coverage.

After hearing the trial comt entered an order entitled "Declaratory Judgment,” in which it was declared that the policy of insurance in question did not afford coverage with respect to the injury complained of, and the order further dismissed the plaintiff’s personal injury action with prejudice on the ground that in absence of such coverage the action was barred by failure to comply with sections 8 — 101 and 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, pars. 8 — 101 and 8 — 102). It is from this order of the trial court that the plaintiff appeals.

The pertinent facts which resulted in the filing of the pleadings which we have documented are as follows: The plaintiff on August 19, 1970, while a passenger in an automobile driven by Donald K. Brady (whom she subsequently married), was injured in an automobile accident on a township road located in Penn Township, Stark County. The plaintiff alleged various acts of negligence on the part of the Commissioner, inter alia, failure to maintain and repair the road, failure to post any guide, direction or warning signs and violations of both a statutory and common-law duty to provide traffic warning signs as to a dangerous condition.

The Commissioner admitted that the roads in question were under his supervision and control and in his complaint for declaratory judgment alleged the issuance of a policy of insurance by Great American and attached the same to his complaint as an exhibit. He further alleged that when the insurance was originally contracted for in 1959 and on subsequent renewal dates he requested “full coverage insurance.”

Without entering into an undue recital of facts, it suffices to say that there was in existence a valid general comprehensive liability policy of insurance issued to the Commissioner by Great American. We must further note that Great American, in defending against the claim of the plaintiff, did so under a “reservation of rights” on tire basis that no premium charges had ever been made for insurance coverage in regard to streets, roads or highway hazards. On October 19, 1972 (a date clearly subsequent to the accident and the filing of a complaint by the plaintiff), Great American mailed to the Commissioner the following exclusionary endorsement:

“This endorsement modifies such insurance as is afforded by the provisions of the policy relating to the following:
COMPREHENSIVE GENERAL LIABILITY INSURANCE MANUFACTURERS’ AND CONTRACTORS’ LIABILITY
INSURANCE
G301
EXCLUSION
(All Hazards in Connection with Designated Premises)
Streets and Sidewalks
It is agreed that the insurance does not apply to bodily injury or property damage arising out of
(a) the ownership, maintenance or use of the premises designated in this endorsement or of any property located thereon;
(b) operations on such premises or elsewhere which are necessary or incidental to the ownership, maintenance or use of such premises; or
(c) goods or products manufactured at or distributed from such premises.
Description and Location of premises
It is agreed that this insurance does not apply to bodily injury or property damage arising out of any condition in or the existence of any such Highways, Roads, Streets, Sidewalks, Culverts or Bridges, except such bodily injury or property damage occurring while actual maintenance or repair operations are in progress by the insured.”

It should be noted that this preferred endorsement was at no time a part of or attached to the policy of insurance in question.

We will set forth a recital of additional facts as they become pertinent to the issue to be determined in this appeal. Reduced to its simplest form, the precise issue presented is whether the policy of insurance issued by Great American to the Commissioner afforded coverage with respect to the injury complained of by the plaintiff.

We are cognizant of the general rule that whether or not an insurance policy covers certain liability, such determination is normally made by referring to the language of the policy; however, if the language of the insurance contract is ambiguous and the intention of the parties does not clearly appear therefrom, in ascertaining such intention the court may take other matters into consideration, such as the subject matter of the contract, the facts and circumstances attending its execution, the situation of the parties and the predominant purpose of the contract which ordinarily is to provide indemnity. See 22 Ill. L. & Pr. Insurance § 143, at 182-84 (1956).

In the instant case it can only be concluded that not only the insurance policy itself but also its execution and issuance present a situation that is indeed fraught with ambiguity. The policy is a document consisting of 10 pages which has imprinted thereon finely printed material setting forth an array of other types of insurance, definitions, exclusions, hazards, and conditions. A mere reading of the policy makes it abundantly clear that a layman such as the Commissioner would find it extremely difficult if not impossible to interpret and decipher its meaning and intent. We find from the record that it was incontrovertible that the Commissioner when he originally contracted for liability insurance as well as on subsequent renewals requested that a policy be issued which afforded “full coverage” for Penn Township, its elected officials and agents. We further note from the record that even the insurer, Great American, was of the opinion that the policy as originally issued in the year 1959 and subsequently renewed each year through the year 1972, did in fact provide “full coverage insurance.” Had such not been the case then there would have been no necessity for Great American to insist upon the attachment of an exclusionary endorsement to a successor policy issued to the Commissioner on March 23, 1973.

Exclusions in an insurance policy have relevance only when there is coverage; an exclusion, in insurance parlance, serves purpose of taking out persons or events otherwise included within defined scope of coverage. (Hartford Accident & Indemnity Co. v. Case Foundation Co., 10 Ill.App.3d 115, 294 N.E.2d 7.) The only logical explanation for the insistence by Great American that the exclusionary endorsement be attached to the policy is that without it the injury suffered by the plaintiff fell within the ambit of the policy as originally written. It may well be that a higher premium should have been paid to Great American; however, the Commissioner paid what was requested and was under no duty or obligation to authenticate the correctness of the charges for the insurance.

Our opinion in this appeal is predicated upon the .theory that from the record the Commissioner intended to have full coverage (winch would have covered the injury suffered by the plaintiff) and that it was his. understanding that the policy afforded such coverage;, and that Great American by its actions indicated that it also interpreted the policy as providing such coverage.

So far as an insurer is concerned, a policy is to be strictly construed against it, the reason for the rule being that it is the insurer who drafted the.policy, with experts doing so for it, and the insured.must take the policy as written. (Manchester Insurance & Indemnity Co. v. Universal Underwriters Insurance Co., 5 Ill.App.3d 847, 285 N.E.2d 185.) Also, the construction placed on a policy by a party as shown by his conduct and statements is the best evidence of the meaning thereof. (United States Casualty Co. v. Crown Novelty Co., 195 Ill.App. 267.) FoHowing these basic rules, we can only conclude that our theory is sound in that both parties intended that the policy should afford fuff coverage as they so interpreted it.

It is therefore directed that the order of the trial court declaring that said policy did not afford coverage be reversed and an order be entered declaring that the policy of insurance did effect coverage with respect to the injury suffered by the plaintiff and that further, the personal injury action filed by the plaintiff be reinstated for further proceedings thereon.

Reversed and remanded.

STOUDER and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Fonza, Defendant-Appellant.
    (No. 73-54;
    Second District
    January 31, 1975.

      Rehearing denied February 13, 1975.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, Edward Morris, and Martin Moltz, all of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

As a result of their breaking and entering a store on May 10, 1972, defendant and three codefendants (Sam Harris, Cecil Poe and Charles Harris ) were indicted for burglary. On August 3, defendant, represented by private counsel, entered a plea of guilty and then filed a petition to elect being treated as a drug addict under the Dangerous Drug Abuse Act. (Ill. Rev. Stat. 1971, ch. OlVa, par. 120.10.) Defendant had been on probation at the time of the offense and the Cook County Department of Probation refused consent to such election. (Ill. Rev. Stat. 1971, ch. 9U/2, par. 120.8(e).) Thus, the trial court found defendant ineligible and, after denying his motion for probation, sentenced him to imprisonment for a period of 4 to 12 years.

On appeal, defendant claims that his sentence is excessive and disparate from those entered against his codefendants.

On the night in question, defendant and Charles Harris, both heroin addicts, were in search of funds to support then habits. At defendant’s instigation, they went to a closed liquor store, defendant broke a window and, instead of entering the store, the two returned to defendant’s residence where defendant informed Poe and Sam Hams that he had “set the place up.” All four returned to the store and, while in the process of stealing merchandise, were confronted by police and subsequently arrested.

During defendant’s combined hearing for probation/aggravation and mitigation, it was disclosed that his criminal record began in 1965 when, as a juvenile, he was convicted of burglary and sentenced to St. Charles for 9 months. In 1966, he was convicted of concealing stolen property and sentenced to 90 days in jail. In 1968, convicted of burglary, he was sentenced to 6 months in jail, and in 1971 he was convicted of aggravated battery (shooting two persons) and sentenced to 2 years’ probation, the first 60 days to be served in jail. At the time of the instant hearing, there were pending against defendant, in Cook County, a revocation-of-probation charge and a violation-of-bond offense.

The record reveals that defendant’s addiction commenced sometime in 1965 and that, except during periods of incarceration and for 1 month in January, 1972, when defendant used methadone (although not enrolled in a methadone program), he has been a daily user of heroin. Defendant made the general statement that his habit was the cause of his criminal conduct and claimed that on the day of the instant crime, he was suffering from the pain of heroin withdrawal. Evidence established that defendant has not been employed since 1966.

The main thrust of argument in defendant’s original brief is that he is an addict, that but for his addiction he would not have committed any of the offenses enumerated and that any attempt to rehabilitate him must be directed toward the root of his problem — heroin addiction. Arguing that incarceration will not accomplish his rehabilitation (the futility of such approach, he claims, being illustrated by his history of reverting to the use of heroin when released from confinement), he contends that restoration to useful citizenship is dependent upon his voluntary abstention from drug use, that this can only be accomplished by this court’s reducing the sentence imposed, thereby affording him an immediate opportunity to be paroled to a supervised therapeutic environment. See 111. Rev. Stat. 1971, ch. 91%, par. 120.11, which provides that acceptance of treatment for controlled substance addiction under the supervision of the Department of Mental Health may be made a condition of parole.

Defendant’s argument is fraught with inaccuracies and insincerity. By contending that his voluntary abstention from drugs can only be accomplished by an action of this court, he ignores the personal motivation essential to “voluntary abstention.” As a drug user since 1965, he has at no time voluntarily sought treatment until it seemed an attractive alternative to incarceration. (Even during his 1 month on methadone, he avoided personal commitment, choosing to buy “from a friend” who was in the program.) Contrary to defendant’s assertion, two of his four prior convictions (burglary, 1965, and aggravated battery, 1971) were not committed to support his drug habit. Now, not having worked in 6 years, he claims it was necessary for him to steal to support a habit which he made no real attempt to break.

Citing People v. Cyphers, 4 Ill.App.3d 856 (1972), defendant contends that the use of narcotics has been judicially recognized as a factor warranting a reduction in sentence. The Cyphers case is, however, readily distinguishable on the facts. There, the defendant had no prior felony convictions. The charge of criminal damage against him arose from the destruction of property within his cell, occurring during a period of violent withdrawal pain. Here, we have only defendant’s self-serving statements to substantiate that at the time of the offense he was suffering from heroin withdrawal and, unable to bear the pain, was driven to' commit burglary. Indeed, the method of “setting up” the burglary seems to belie any such spontaneous, urgent desperation.

By stressing his addiction, defendant seemingly attempts to minimize the fact that he has been sentenced for criminal conduct — burglary. The- most genuine concern for rehabilitation does not permit such conduct to be ignored or excused because of the drug addiction of the offender. “The need for money to support addiction neither excuses or justifies criminal offenses nor punishment therefor.” (People v. Cyphers, 4 Ill.App.3d 856, 858 (1972).) The defendant has, to the time of this appeal, shown neither the' motivation nor the will to avoid that which he claims is the cause for his criminal activity. If he is now sincere in his desire to overcome addiction, drug treatment facilities are available to him at the penitentiary.

As to the question of disparate sentences, we review the backgrounds of the codefendants as revealed in the supplemental record and briefs which defendant was permitted to file.

Codefendant Poe, who had no previous criminal record, entered a plea of guilty on August 7, 1972, and was granted 3 years’ probation after having served 105 days in jail.

Sam Harris entered a negotiated plea of guilty on that same day and was granted 3 years probation with the first 6 months to be served in jail. He, a resident of Detroit, had a prior criminal record: 1970, entered guilty plea to felonious assault, sentenced to 2 years’ probation and 90 days in jail; 1971, convicted of receiving stolen property while on probation, 30-day sentence on the stolen property charge and 1 year on the' revocation of probation; 1972, fined $50 and given 1 year probation for possession of a knife with a blade over 4 inches.

Charles Harris was found guilty by a jury of "the instant offense and received 5 years’ probation after electing to be committed to the Department of Mental Health under section 10 of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1971, ch. 91%, par. 120.10). He had commenced using narcotics in January of 1968 and been addicted to heroin for the past 15 months. His previous criminal record was a 1969 conviction (in Wisconsin ) on two counts of burglary for which he was sentenced to 2 years on the first count and 18 months on the second.

Burglary, a Class 2 felony, carries a sentence of 1 to 20 years. A defendant cannot comiplain that he received a discriminatory sentence compared with his codefendants where the sentence is within statutory limits and the trial court could have considered other relevant factors in regard to this defendant’s conduct. (People v. Spears, 50 Ill.2d 14, 18 (1971); People v. Martin, 19 Ill.App.3d 631, 635 (1974).) Different sentences given codefendants are not discriminatory where there is a basis in the record for the distinction. (People v. Prater, 12 Ill.App.3d 452 (1973).) Under the facts already presented as to defendant's record, and in consideration of the fact that the burglary was undertaken at his instigation and while he was on probation, the sentence imposed is neither excessive nor unreasonably disparate.

Judgment affirmed.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE RECHENMACHER

text:
      In re Rose J. Gibson, a minor.—(Virginia Gibson, Respondent-Appellant, v. The People of the State of Illinois, Petitioner-Appellee.)
    (No. 73-294;
    Second District
    January 16, 1975.

      Jerrold R. Beger, of Schirmer, Schirger, Beger & Graff, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (Harris H. Agnew, Assistant State’s Attorney, James W. Jerz, of Illinois State’s Attorneys Association, and Donald L. Schriver, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from the decree of the circuit court of Winnebago County terminating the parental rights of Virginia Gibson, mother of Rose Gibson, a minor. The decree is based on a finding by the court that Virginia Gibson is an unfit person in that she failed to maintain a reasonable degree of interest, concern or responsibility for the welfare of Rose Gibson, her daughter. (A default decree was also entered against the father, Roger Gibson, whose whereabouts are unknown. There is no appeal as to the decree against him.) There was conflicting testimony at the hearing to terminate parental rights, but we believe that the record establishes the following facts. Rose Gibson was born on May 6, 1963. In November 1965, when she was approximately ZVz years old, a dependency decree was entered against her parents, Virginia and Roger Gibson, finding that Rose was a neglected child and the parents were unfit and improper guardians of the child and appointing the county probation officer, Goldie Floberg, as her guardian. However, the decree entered at that time did not terminate parental rights and did not give the guardian power to consent to the child’s adoption. It should be noted that at that time the failure to maintain a reasonable degree of interest, concern or responsibility for the child’s welfare was not a ground for finding of “unfit person.”

Rose was accordingly placed in Children’s Convalescent Home in Rockford (later referred to as Floberg Center after its removal to Rockton) as a dependent child. She was placed in a foster home shortly thereafter and later, in 1966, was placed with her aunt and uncle, Mr. and Mrs. Peavey, in Rockford, and subsequently with a maternal aunt, Mrs. Jackson, but in August of 1966 she was returned to the home. On January 28, 1967, a petition for an amended decree was filed seeking to declare Virginia Gibson and Roger Gibson unfit parents, alleging they are deserted and abandoned their child and asking that Goldie Floberg, as guardian, be empowered to consent to the adoption. This petition was never pursued. In 1972 she was also placed in a foster home in Milwaukee, Wisconsin, but that was only for 4 days. Other than the times mentioned Rose has been in the Children’s Convalescent Home or its successor, the Floberg Center, since the dependency decree of November 1965.

Rose is a physically attractive child. She has a “learning disability,” is of low average mentality, and at the time of the hearing in 1972 she was repeating third grade, but was doing well.

Virginia Gibson, the respondent, had only a sixth-grade education. She has no skills and no regular employment and no home of her own but lives with her mother. She earns some money at baby sitting. Her testimony indicates her to be a person of limited capabilities.

In April 1972, apparently on the basis of inadequate visitation by the respondent, a supplemental petition was filed to terminate the rights of the parents and give the guardian power to consent to Rose’s adoption. The supplemental petition alleges that the respondent is an unfit person in that she failed to maintain a reasonable degree of interest, concern or responsibility for the child’s welfare.

At the hearing the principal witness for the State was Patricia Gould, a psychologist who was during 1968 to 1972 the director of the Floberg Center. She testified that during this period she had only noted seven visits by Virginia to the child, being about six visits from 1968 to 1970, and in the period between the time the Convalescent Home was moved to Rockton, in October 1970 and the filing of the petition in April 1972, Virginia visited her child, Rose, only once. However, after 1972, the time of the filing of the petition to terminate the parental rights, the visits increased “dramatically,” being almost every week, and Virginia did show a reasonable degree of concern and interest for Rose’s welfare after April of 1972.

Virginia Gibson testified that she visited Rose “all the time” when she was at the Home in Rockford; that she did not remember when the Home moved to Rockton, but that she visited Rose at Rockton whenever she could get a ride. She also testified she had written her several letters during 1971 and 1972. She testified she did not give presents to Rose at Christmas while the Home was located on Tenth Street in Rockford because “they didn’t want me to” but that she did give Rose presents at Christmas after the move to Rockton.

Artis Peavey, Virginia’s mother, testified that Virginia visited Rose “as much as she possibly could”; that after the move to Rockton there were times when transportation difficulties prevented Virginia from visiting her because it was 10 miles from her home and she had no car, and she therefore did not visit her every Sunday.

The trial judge on the basis of the testimony found that Virginia had not maintained a reasonable degree of interest, concern or responsibility toward the welfare of the child and was therefore an unfit person. Her parental rights were therefore ordered terminated, and the county probation officer, Goldie Floberg, given authority to consent to her adoption.

A finding that a parent is an “unfit person” requires more than a preponderance of the evidence. In In re Overton (1974), 21 Ill.App.3d 1014, Justice Guild, speaking for this court, held that the judgment of the trial court should be reversed because the finding by the trial court that the mother had failed to maiiftain a reasonable degree of interest, concern arid responsibility for her childrens welfare was not based on clear and convincing evidence. In previous cases the same degree of proof has been required for a finding of unfitness (In re Adoption of Walpole (1955), 5 Ill.App.2d 362; Carlson v. Oberling (1966), 73 Ill.App.2d 412), and while the earlier cases were decided prior to the amendment to the Adoption Act (Ill. Rev. Stat. 1967, ch. 4, par. 9.1 — ID(b)) creating the Category of unfitness based on failure to. maintain a reasonable degree of interest or concern for the welfare of the child and dealt with desertion or abandonment, the basis of the finding was that of unfitness and the degree of proof should not be less under the newer wording. We are of the opinion, therefore, that clear and convincing evidence must be shown in the present case before finding the respondent mother an unfit person.

■The respondent urges that clear and convincing evidence sufficient to justify the drastic action of terminating the natural rights between mother and child was not offered in this case. It is true that only one witness was clear and definite in her testimony as to Virginia’s dereliction. That was Mrs. Gould, who testified that actual records were kept of visits, and her testimony as to the number of visits by Virginia were based on those records. The respondent and her mother both offered contrary testimony. If the testimony of the State’s witnesses is to be believed, the visitation was sparse indeed from 1965 to 1970, and there was a complete drought in 1971, with no recorded visits — the first visit after the removal of the Center to Rockton in October of 1970 having been the suggested visit which occurred in January of 1972. Unless this neglect was excusable due to transportation problems, it provided a rational basis for the court’s finding of unfitness due to failure to maintain a reasonable degree of interest, concern or responsibility for the chfid’s welfare. However, Mrs. Gould admitted that part of the reason for the infrequent visits was a transportation problem of the mother. It is also to be noted that after Judge Layng’s order of August 9,1972, was entered to assist Virginia Gibson with transportation, her visits dramatically increased.

The State cites seven cases in support of the petition to terminate respondent’s parental rights on the ground of unfitness. However, only two of these held that the rights of the natural parents should be extinguished — the others aH held in favor of the natural parent. One of the two, Campbell v. Fisher (2nd Dist. 1961), 28 Ill.App.2d 454, is clearly inapplicable, because while this was a decision of this court it was, as stated by the court, based on what the court considered to be the best interests of the child, without regard to any finding of unfitness, whereas under the present wording of the Adoption Act (Ill. Rev. Stat. 1971; ch. 4, par. 9.1 — 8) the finding that a natural parent is an “unfit person” is mandatory for an adoption without the parents’ consent. The other case, a First District case, In re Perez (1973), 14 Ill.App.3d 1019, is clearly distinguishable in its facts. There the mother left the child in the hospital after its birth and did not inquire about it, send a gift or letter or visit the child after the first month, for some 5 years. During these years the child was in the home of its proposed adoptive parents. While the mother testified she left the child in the hospital because she feared her husband would harm it, there was no explanation for her failure to keep in touch with the child during the 5 years when it was being taken care of by its foster parents. This extreme situation of neglect, plus the immediate prospect of adoption of the child, makes this case clearly distinguishable from the one presently before us, as weU as from In re Moriarity (1973), 14 Ill.App.3d 553, and In re Overton, both decisions of this court, and the First District case of In re Smith (1972), 4 Ill.App.3d 261; the Third District case of In re Cech (1972), 8 Ill.App.3d 642, and In re Walpole, and the Fourth District case of In re Deerwester (1971), 131 Ill.App.2d 952, all (except In re Overton) cited by the State in its brief, but all of which held in favor of the natural parent. It is evident that under the recent decisions interpreting that section of the Adoption Act dealing with adoption without the natural parents’ consent (Ill. Rev. Stat. 1971, ch. 4, par. 9.1 — 8) a finding of “unfit person” is mandatory, and it must be found by clear and convincing evidence. (See In re Moriarity and cases cited.) This, as the results of the cases suggest, is a standard of proof not to be taken lightly.

The respondent urges on the basis of this court’s previous recent decisions in simUar cases, that is In re Moriarity and In re Overton, that the proof in this case is insufficient to establish the mother’s unfitness.

In Moriarity the mother’s conduct was far from exemplary and her background was stated by the State’s Attorney as showing a “history of criminal problems and arrests.” But on the narrow ground that she never exhibited any intention to abandon her chüdreri, as set forth in the State’s petition, this court held she was not an “unfit person” within the meaning of the Adoption Act, and the trial court’s decree terminating her parental rights was reversed. It is true that the legal issue was different from that in the case before us in that abandonment of the children was alleged rather than mere failure to maintain a reasonable degree of interest and concern for them, but the larger issue of parental rights versus social needs was the same. Nevertheless, the court refused to terminate the mother’s rights as natural parent, saying that although the State’s efforts to look after the best interests of its wards was laudable its efficiency had had an unjust result in that ease.

Overton is similar to the present case. There, too, the mother was neglectful of her children after they were made wards of the State. While the period of neglect was not as long before the filing of the supplemental petition, this may have been merely because it was not as long between the initial commitment of the children to the Department and the filing of the supplemental petition to terminate the mother’s parental rights. In some respects the mother’s behavior was more dubious in the Overton case, as can be seen from the opinion. Yet, this court held that due to the exigent circumstances which occurred and the pressures which operated upon her during the period between the time of the initial dependency petition and the filing of the petition alleging her unfitness— a period of some 20 months — she should not be found to be an unfit person and subject to termination of her parental rights. It should be noted that in this case, as in Mortality, the issue of what was best for the children was not given consideration, since the finding of unfitness — a condition precedent to other considerations — was not upheld.

This case and the Overton case are not morally distinguishable. Virginia Gibson, too, is under handicap which would mitigate her neglectful conduct. She has only a sixth-grade education, and although this does not in itself excuse her it might suggest, as did her testimony, that she was not fully aware of her responsibilities after the child was made a ward of the State or the consequences of her alleged neglect. The testimony at the hearing indicates that her counselors at the Center were not very helpful in this regard. Her lack of any kind of gainful employment except baby sitting, at the age of 32, suggests a very limited person without initiative and lacking in perspective. The trial comí made an actual finding that Virginia had never petitioned the court for the return of custody of the child; yet, the testimony indicated that Virginia had neither a home of her own nor any resources to enable her to support the child herself, and it is not to be taken for granted — rather the contrary — that the child could be established in the grandmother’s home. Older people love their grandchildren but they normally do not want to take responsibility for them. We cannot say that Virginia should have taken the child back to her mother’s home. She may have been all too aware, consciously or unconsciously, that a decent respect for the child’s welfare dictated her remaining at the Center rather than in Virginia’s own inadequate care.

While the effect of the removal of the Center to Rockton and the consequent transportation difficulties is a matter of some dispute, it seems logical to suppose that it was a formidable obstacle to a person without transportation of her own and dependent on friends or relatives to drive her to Rockton on a Sunday afternoon and remain during her visit with the child. Upon the filing of the supplemental petition and transportation being arranged for by the court, the visitations under the court’s order increased, as Mrs. Gould said, “dramatically.” We can speculate that the increased interest by Virginia was only the result of the State’s action to terminate her parental rights and will disappear if the decree is reversed, but on the other hand, it is possible that having been jolted into an awareness of her callous and irresponsible behavior by the threatened loss of her child, she may have reformed her attitude toward the child permanently. At the hearing Mrs. Gould testified that at that time — late 1972 — Virginia was showing a reasonable interest, concern and responsibility for the welfare of her child.

In Overton, in spite of the derelictions of the mother, which were considerable, we found, upon giving consideration to all the surrounding facts and circumstances, that there was no clear and convincing evidence of her unfitness. The circumstances alluded to in the present case are passive rather than active in affecting the mother’s failure to show reasonable parental concern and responsibility, but in the light of such circumstances plus the change in attitude which, for whatever reason, occurred subsequently, we are inclined to follow the Overton case in the present decision.

One more point should be given some brief comment. There was a suggestion both in the testimony at the hearing and the oral argument that it was in the “best interests of the child” that her mother’s parental rights be terminated so as to facilitate Rose’s adoption. But, the best interests of the child are not always as readily discernible as we blithely assume. We, too, are interested in what is best for Rose Gibson, but does the breaking of her natural and legal ties to her mother necessarily accomplish something to her benefit? Rose is going on 12 years old. She has at least a learning disability as a result of which she would not be placed for adoption with people who wanted to send their child to college. Her age, plus her disability — a serious one since nearly everyone wants at least the possibility of educating their child for college— considerably reduces the chances for adoption. If as a result of her mother’s renewed interest following the filing of the petition for termination, she has grown closer to her mother, this will further erode her chances for successful and happy adoption. Due to these negative factors, can we be sure enough of her prospect of adoption to assume the responsibility of completely and utterly wiping out the relationship with her mother. For this is what it would mean. She cannot be sure of adoption under the circumstances — she can only be sure of losing her mother.

This is a fact we do not care to balance against the uncertain prospects of the child’s adoption in order to satisfy a feeling that we are acting in the best interests of the child.

The decree of the circuit court of Winnebago County is therefore reversed.

Judgment reversed.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE JONES

text:
    Consol Builders & Supply Co., Inc., Plaintiff-Appellant, v. Allen Ebens et al., Defendants-Appellees.
    (No. 74-20;
    Second District
    January 20, 1975.

      Garard & Moehle, of Oregon, for appellant.
    Fearer & Nye and C. M. Glosser, both of Rochelle, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff appeals an order of the trial court granting defendants’ motion to dismiss his complaint for foreclosure of a mechanic’s lien because of res judicata. Defendants Allen Ebens and Dorothy L. Ebens were originally made parties as contract vendors of the real estate involved. Their interest terminated, and they were dismissed out of the action. The case proceeds against defendants Vincenzo L. Traína and Carol K. Traína.

On January 21, 1971, plaintiff, a building contractor, and defendant Vincenzo L. Traína entered into a written contract whereby plaintiff was to construct a residence for a stated consideration. One of the provisions was: “Changes in plans and specifications are to be made only on written order signed by the Buyers and approved by the Builder. A written memorandum covering changes and charges therefore shall be signed by all parties.” The plaintiff entered upon performance of the agreement during which there were some “change orders” and some “extras,” some of which defendant signed for and some of which he did not. Disputes arose over the manner of the construction, and by agreement of the parties the contract was terminated on or about June 1, 1971.

On June 18, 1971, the plaintiff, acting without an attorney, filed a small-claim complaint against defendant Vincenzo I. Traína for $932.41. Although it was apparent that the suit was for the “extras” involved in the construction the small claim complaint recited that the sum was due for “building materials and labor.” Service of summons was obtained and defendant retained counsel to represent him in the case. Interrogatories were served on plaintiff and in answer to the question “Was the contract between plaintiff and defendant written, oral, or partly written and oral?” it was replied, “Original contract for construction of certain phases of house were written.” Defendant suffered a judgment by default to be entered against him on September 14, 1971, and he paid the judgment and costs in full on September 16, 1971. At the time of the hearing on the small-claim case the plaintiff was represented by an attorney, and the attorney executed a satisfaction of judgment upon payment by defendant.

On October 1, 1971, plaintiff filed a claim for lien against defendants’ property and on October 7, 1971, filed a complaint to foreclose the lien. The complaint was founded on the written contract, and the lien asserted a balance due plaintiff in the amount of $6,035.86.

Defendants filed a motion to dismiss asserting that the small-claim judgment and satisfaction was res judicata as to the foreclosure suit. After hearing argument on the motion the court reserved ruling until trial. Defendants filed an answer, a counter-claim (for damages for faulty construction) and an affirmative defense. The affirmative defense was that the judgment and satisfaction in the small-claim case was res judicata as to the foreclosure action. When the cause was called for trial the court limited the testimony to the question whether the subject matter of the small-claim complaint and the foreclosure action were the same. After hearing testimony and taking the cause under advisement, the court wrote a letter of decision to the attorneys in which he found that the plaintiffs judgment in the small-claim court is res judicata as to the matters in controversy in this cause and accordingly held against the plaintiff on the complaint and for the defendants on the affirmative defense. The court further held for the plaintiff on defendants’ counterclaim. The judgment order entered by the court granted defendants’ motion to dismiss. Plaintiff appeals. We affirm.

The decision in this case turns on the question whether plaintiff has split his cause of action and is seeking recovery on a single claim by a multiplicity of lawsuits. Such a course of action is prohibited since it is a well-established principle that public convenience and fairness require a defendant to deal with all claims in one proceeding. The applicable rule is set forth in Dorland v. Steinbrecher, 50 Ill.App.2d 344, 347, and Hulke v. International Manufacturing Co., 14 Ill.App.2d 5, 22, as follows:

“ ‘If suit is brought for a part of a claim, a judgment obtained in that action precludes the plaintiff from bringing a second action for the residue of the claim, notwithstanding the second form of action is not identical with the first, or different grounds for relief are set forth in the second suit. This principle not only embraces what was actually determined, but also extends to every other matter which the parties might have litigated in the case. The rule is founded upon the plainest and most substantial justice,— namely, that litigation should have an end and that no reason should be unnecessarily harassed with a multiplicity of suits.’” 50 Ill.App.2d 344, 347.

It is plaintiffs position that there were, in fact, two causes of action existent, that the remedies therefore are cumulative and that they may be pursued either separately and independently or concurrently so long as only one recovery is obtained. The argument is founded on the fact that the small claim action was brought to recover only for the extras and the foreclosure action was for sums due under the written contract.

We must conclude that plaintiff’s argument is without merit. The claim for sums due for extras and the claim for sums due under the contract are at best but separate elements of one cause of action. All claims have their origin in the contract for construction of the residence. That contract contains express recognition that changes might arise during construction and provided for the mode of payment. All claims spring from a common source, a common time and from one transaction. Plaintiff elected its remedy and brought its suit. After having been successful in obtaining a judgment and getting it satisfied, it cannot then begin another action for another sum allegedly due from the same transaction. There must be an end to litigation, and the policy alluded to above proclaims it. Plaintiff could have included the sums allegedly due under the contract in his action for a money judgment or could have included the amounts due for “extras” in the lien claim and foreclosure. The lien claim and foreclosure action is a cumulative remedy and may be pursued along with other remedies. It is cumulative, not exclusive; it is cumulative, not consecutive. It may not be employed to obtain multiple recoveries. Stankiewicz v. Irvine, 310 Ill.App. 673, 35 N.E.2d 433 (abstract opinion).

Plaintiff contends that the parties as well as the subject matter of the actions are different. Only defendant Vincenzo L. Traína was a party to the small-claim action but both Vincenzo L. Traína and his wife Carol are defendants in the foreclosure action. But because of the privity of interest of the husband and wife defendants the argument is unavailing.

At the trial the attorney who represented defendant Vincenzo L. Traína at the time of the small-claim case testified he had a discussion with plaintiff’s attorney on the morning of the taking of the small-claim judgment during which he told plaintiff’s attorney that if he proceeded with the small-claim suit he, defendant’s attorney, was going to treat it as a satisfaction in full. Although the conversation was denied by plaintiff’s attorney we need not consider it since the result of this case is not dependent on whether defendants notified plaintiff of their intention.

Plaintiff further asserts that even if it be found that it has split its cause of action this action is not barred, because defendants consented to the splitting of plaintiffs cause of action. The sole basis of this assertion is that the defendants failed to appear in the small-claim case and object to the plaintiff’s suit for extras only. Clearly defendants’ consent to plaintiffs multiple lawsuits cannot be implied from such a circumstance. (See Restatement of Judgments § 62 (1942).) Nor is there any evidence whatsoever of fraud or misrepresentation by defendants that would justify equitable relief for plaintiff. That plaintiff made a mistake or miscalculation alone is insufficient to justify relief. See Restatement of Judgments § 126(2) (1942).

Plaintiff finally contends that defendants failed to offer sufficient evidence to prove the allegations of their affirmative defense. We have examined the record in light of this assertion and find it to be without merit. The judgment of the trial court is supported by sufficient evidence of record and we will not set it aside on that ground.

Judgment affirmed.

ALLOY and STOUDER, JJ., concur.


author: Mr. PRESIDING JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James M. Stanley, Defendant-Appellant.
    .(No. 73-325;
    Second District (2nd Division)
    January 21, 1975.
    Erwin Cohn, of Cohn & Flynn, of Chicago, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Charles D. Sheehy, of Illinois State’s Attorneys Association, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE RECHENMACHER.


author: Mr. JUSTICE T. MORAN.

text:
    Exchange Security Bank, Plaintiff-Appellant, v. Roy O’Gwin, Defendant-Appellee.
    (No. 73-203;
    Second District (2nd Division)
    January 21, 1975.
    Donovan, DichtI, Atten, Mountcastle & Roberts, of Wheaton, for appellant.
    No brief for appellee.
   Opinion by

Mr. JUSTICE T. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Patrick Fane, Defendant-Appellant.
    (No. 73-310;
    Second District (2nd Division)
    January 21, 1975.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Patrick E. Ward, State’s Attorney, of Dixon (James W. Jerz and Martin P. Moltz, both of Illinois State’s Attorneys Association, of Elgin, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE RECHENMACHER.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James A. Lindner, Defendant-Appellee.
    (No. 73-307;
    Second District
    January 22, 1975.

      John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
    Joel Murray, of Chicago, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal by the State from an order of the circuit court of Du Page county quashing a search warrant and suppressing evidence seized pursuant to the warrant.

The State’s appeal raises essentially the same question as was raised and answered in United States v. Harris (1971), 403 U.S. 573, 586, 29 L.Ed.2d 723, 735, 91 S.Ct. 2075, i.e.:

“[H]ow [the] decisions in Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, apply where magistrates in issuing search warrants are faced with the task of assessing the probable credibility of * * * informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers.”

On October 1, 1972, Sergeant Kenneth Felbinger of tire Hinsdale Police Department subscribed and swore to a complaint for a search warrant which stated:

“On October 1, 1972 at or about 12:35 P.M., I, Sgt. Kenneth Felbinger, had a conversation with Pierre Bertolin, a resident of LaHabar, California, which took place in the Kenosha County Jail in Kenosha, Wisconsin, and which was. tape recorded with Mr. Bertolino’s consent, wherein Mr. Bertolino related that on the 29th of September, 1972 at or about 5:00 or 6:00 P.M. he, Mr. Bertolino, was present when a Mr. James Lindner, 6048 S. Clarendon Hills Rd., Clarendon Hills, Illinois, received approximately 28,000 capsules of a barbituate commonly referred to as ‘seconal’, (without being authorized to do so under the Controlled Substances Act of the 111. Revised Statutes), from a third person, whose identity is unknown to us at this time, the place of the transaction being Mr. James Lindners parents home, 410 W. Maple, Hinsdale, Illinois. Mr. Bertolino further related to me at this time that approximately one hour after the aforementioned transaction occurred, Mr. Bertolino went to Mr. Lindners home at 6048 S. Clarendon Hills, Clarendon Hills, Illinois, wherein Mr. Bertolino observed the same capsules in an attache case in Mr. Lindner’s bedroom, and to the best of his personal knowledge remains in Mr. Lindner’s house at the Clarendon Hills address.”

Subsequently, on October 1, 1972, a search warrant was issued and was served by Sergeant Felbinger and other police officers, resulting in the seizure of various items of contraband and the arrest of the defendant.

The defendant was subsequent indicted on five counts of unlawful possession of a controlled substance, two counts of unlawful possession with intent to deliver a controlled substance, one count of unlawful possession of cannabis, one count of unlawful possession with intent to deliver cannabis and three counts of unlawful use of weapons. On May 31, 1973, defendant filed a motion to quash the search warrant and suppress evidence. After a full hearing, the trial court granted defendant’s motion.

The State contends that Sergeant Felbinger’s affidavit provided sufficient basis for a finding of probable cause; thus, the search warrant was properly issued, and the evidence obtained as the result of the issuance of the warrant should not have been suppressed. We disagree.

It is well settled that an affidavit which is based on hearsay and which does not reflect the personal observations of the affiant, as is the situation with the affidavit in this case, provides a sufficient basis for a. finding of probable cause as long as it meets the United States Supreme Court’s two-pronged test of Aguilar v. Texas (1964), 378 U.S. 108, 114, 12 L.Ed.2d 723, 729, 84 S.Ct. 1509:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the [things to be seized] were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant ° * was ‘credible’ or his information ‘reliable.’ ”

In the case before us there is no question that the affidavit satisfies the first prong of the Aguilar test. However, there is a substantial question as to whether this affidavit satisfies the second prong which, in essence, goes to whether the magistrate can determine that the informant is telling the truth.

Therefore, the question before us becomes one of whether there is “a substantial basis” for the magistrate to credit the hearsay. (Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725; United States v. Harris (1971), 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075.) In Harris the Supreme Court reiterated its statements in Jones that averments of previous reliability of an informant are not always necessary in determining whether there was a substantial basis for crediting the hearsay. The Court found that the Harris affidavit provided such substantial basis for crediting the hearsay, in that the informant’s statements were made against his penal interest. The Court also enumerated other factors which, by themselves, do not always conclusively show credibility, but which can be taken into account by the magistrate in making his determination. The Court listed such factors as the affiant’s own knowledge of the defendant’s reputation and previous criminal activities (a factor which the Court stressed) and corroboration of the informant’s story even by unknown sources.

In the case before us, the affidavit is devoid of any of the factors described in Harris which could lead the magistrate to conclude that there was a substantial basis for crediting the hearsay. There was no basis for the magistrate’s determining that the informant was truthful. In addition to the affidavit making no reference to the informant’s previous reliability, the informant’s statements of his presence during the transaction were not of such character as to be statements against penal interest. Although the affidavit did recite that the informant was present, it did not sufficiently demonstrate the informant’s complicity in the criminal activities. Additionally, the informant’s statement was not corroborated either by the police or by other sources, and the affiant gave no information as to his own knowledge of the defendant’s reputation and past criminal activities.

Certainly, Harris does not limit a magistrate to those factors enumerated in the opinion, when a magistrate is attempting to determine whether there is a substantial basis for crediting the hearsay. For example, more than ordinarily detailed description of the suspect’s criminal activities may be another factor a magistrate can take into account. (See United States v. Harris (Harlan J., dissenting), supra; United States v. Unger (7th Cir. 1972), 469 F.2d 1283.) However, the instant affidavit does not disclose the alleged criminal activities in such detail as to permit a magistrate to rely on the specificity of the affidavit in assessing the informant’s truthfulness. We agree with the States that the affidavit’s recital of 28,000 seconal tablets is specific information. However, there is no indication or information concerning the “underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information reliable.’” Thus, there was no way for the magistrate to know how the number of 28,000 was arrived at by the informant and no substantial basis for believing the informant did not make up this number. Compare United States v. Unger, supra.

Furthermore, specificity without more would not be enough to permit a magistrate to determine that the informant is credible and the information reliable. In both cases cited by the State, United States v. Unger, supra, and People v. Cohn (1973), 30 Cal.App.3d 738, 106 Cal. Rptr. 579, in which the courts considered specificity of the affidavit as a factor which indicated the truthfulness of the informant, the warrant also contained other indices of the informant’s truthfulness.

In Unger, the affidavit, in addition to detailing the suspect’s criminal activities in highly specific terms, recited that the police had independently corroborated the informant’s story by direct, personal observation and recited that the informant did not come from the criminal milieu.

In Cohn, the specificity of the affidavit was supplemented by a description of the informant’s activities which subjected her to possible criminal penalties and civil liability.

In the instant case the only information in the affidavit which would tend to show that the informant, who was not an ordinary citizen, was credible was that he was named and his place of residence was given. We find this factor, standing alone, is not enough to form the substantial basis needed for the magistrate to determine that the informant was credible or his information reliable.

The State has also cited People v. McNeil (1972), 52 Ill.2d 409, 288 N.E.2d 464, in support of its contention. However, we find that McNeil is factually distinguishable. In McNeil the Illinois Supreme Court, in upholding the validity of the search warrant based on a hearsay affidavit which did not sufficiently recite the past reliability of the informant, based part of its decision on “the imperative necessity for quick action.” In McNeil the information was obtained, the affidavit was drawn up, and the warrant was issued within hours of an alleged robbery. In ornease, this process took several days. Clearly, the officers involved believed there was no imperative necessity for quick action.

Therefore, the order of the trial court quashing the search warrant and suppressing the evidence seized is affirmed.

Affirmed.

T, MORAN, P. J., and SEIDENFELD, J., concur-.