author: Mr. JUSTICE MEJDA

text:
    The Illinois Education Association Local Community High School District 218 et al., Plaintiffs-Appellees, v. The Board of Education of School District 218, Cook County, Defendant-Appellant.
    (No. 57793;
    First District (3rd Division)
    October 3, 1974.

      Robbins, Nicholas & Lipton, of Chicago (Jerome N. Robbins and Everett E. Nicholas, Jr., of counsel), for appellant.
    Drach, Terrell and Deffenbaugh, of Chicago, for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs, The Illinois Education Association Local Community High District 218 (Association), a voluntary organization of classroom teachers, and Henry F. Davis, a member, brought action for declaratory judgment and a writ of mandamus against defendant, The Board of Education of School District 218, Cook County, Illinois (Board). The Association and Board had entered into a collective bargaining agreement. Plaintiff Davis was dismissed by the Board as a probationary teacher. The trial court entered a judgment order which found that defendant breached the agreement and had improperly dismissed Davis, and ordered Davis reinstated and placed on tenure as a teacher, and further allowed a writ of mandamus commanding defendant to assign Davis as a full-time tenure teacher. Defendant appeals.

The issues presented are:

(1) Was the dismissal for causal reasons outside the scope of Appendix XXX of the Collective Bargaining Agreement;

(2) Are the provisions of Appendix XXX ultra vires as a delegation or restriction of the Board’s statutory authority;

(3) Does recourse to the grievance procedure with advisory arbitration under the agreement bar a de novo court hearing on the same issues;

(4) Is mandamus a proper remedy;

(5) Did the trial court usurp the statutory discretion of defendant whether to place a probationary teacher on tenure or on third-year probation.

The facts giving rise to this proceeding follow.

Plaintiff Henry F. Davis was employed under annual contract by the defendant Board as a full-time art teacher at the Eisenhower High School in Blue Island, Illinois, for .the consecutive school terms of 1969-70 and 1970-71.. He was then a non-tenure probationary teacher. On September 28, 1970, the Association and the Board entered into a collective bargaining agreement for the 1970-71 term.

On March 18, 1971,- plaintiff Davis was advised in a letter written by Dr. James B. Miller, Assistant Superintendent for Personnel of School District 218, that he would not be recommended for reemployment for the following school term for certain causes, listing the following charges:

(1) Permitting students to remain in his classroom when their presence was required in other classes;

(2) Leaving his classes unsupervised on three specific occasions;

(3) Failure to exercise reasonable judgment and provide reasonable support to the administration and staff during a period of confrontation between the school district and the students, thus encouraging rebellion against emergency schedules established by the district;

(4) Unacceptable and uncooperative conduct on a specified date wherein Davis made an obscene gesture to security officers during a time of student disturbances and discipline problems;

(5) Failure to maintain an acceptable and cooperative general attitude and accept guidance and suggestions;

(6) Failure to maintain satisfactory working relationships with colleagues, staff members and employees;

(7) Unwillingness to adequately share and fulfill responsibilities in the total school program.

On the following day Davis requested a hearing before the Board which was held on March 29, 1971, and the reasons for non-retention were presented to the Board. Davis attended the hearing, accompanied by counsel, but offered no evidence to rebut the charges made against him. The next day he was advised by letter that the Board decided to and would terminate his services and contract as a teacher, effective June 8, 1971, the last day of the term. Davis then filed a grievance under the terms of the collective bargaining agreement which eventually resulted in advisory arbitration. Davis and the Association then filed the instant proceedings which were then pending concurrently with the grievance procedure. At a hearing on defendant’s amended motion to dismiss this action the trial court ordered the motion held in abeyance pending completion of the arbitration process. On December 10, 1971, the arbitrator held that the provisions of Appendix XXX of the agreement were not violated in the dismissal of Davis. Subsequently, an answer was filed by defendant and a trial held on April 6, 1972.

At trial, plaintiff Davis testified to the following: His contract of employment for the 1970-71 school term was completed on June 8, 1971. During the first semester of the term neither the building principal nor an immediate supervisor acquainted him with the evaluation procedures, standards and instruments. He was not advised as to who would observe him and evaluate his performance. Although a probationary teacher, he was not evaluated at any time during the semester; no classroom observation was made of him; no copy of a formal evaluation was given to him; no conference was held between him and the principal; no consulting teacher was assigned to him; and at no time during the semester were recommendations made to him to improve the quality of his teaching or eliminate the difficulties therein. He was formally evaluated twice during the second semester of the 1970-71 school term. After being notified that termination of his services would be recommended he was not advised of the necessary improvements needed to continue his employment and he was not advised by the superintendent or a designee of his rights under the Illinois Teacher Tenure Act.

Dr. James B. Miller, assistant superintendent, testified. At a conference with Davis on March 18, 1971, he notified him that he would not be recommended for continued employment and handed him a letter setting forth the reasons. They then reviewed Davis’ personnel file. He did not advise Davis of the necessary improvements which would have to be made for him to continue in the employ of the Board because he felt the charges in his letter to Davis were self-explanatory. Miller admitted that the classroom evaluation procedures established in Appendix XXX of the collective bargaining agreement were not followed.

Plaintiffs introduced into evidence Exhibit 2 entitled “Statement Concerning Work of Teacher and Recommendation for Reemployment,” a recommendation for reemployment form, and Exhibit 3 entitled “Evaluation of Teaching,” a teacher evaluation form. Each form is divided into evaluation categories and they encompass matters other than those related exclusively to classroom teaching performance, such as loyalty, willingness to cooperate, professional attitude, relations with others, including other teachers, parents, and the principal, and personal qualifications.

The relevant portions of Appendix XXX of the September 28, 1970 collective bargaining agreement for the 1970-71 school year state:

“A. The parties agree that the primary objective of teacher evaluation is to improve the quality of instruction. The parties recognize the importance and value of a procedure for assisting and evaluating the progress and success of all teachers.
B. Within six (6) weeks after the beginning of each school term, the building principal or immediate supervisor shall acquaint each teacher under his supervision with teacher evaluation procedures, standards, and instruments and advise each teacher as to who shall observe and evaluate his performance. No evaluation, formal or informal, shall take place until such orientation has been completed. A teacher newly employed -.or a teacher reassigned after the beginning of .the school term shall be notified by his building principal or his designee of the evaluation procedures in effect. Such notification shall be within six (6) weeks of the first day in a new assignment. •
C. Formal observation of all teacher duties and responsibilities shall be conducted with the full knowledge of the teacher.
D. Any informal observations which are to be used to evaluate tire teacher shall be compiled in writing and discussed with the teacher. A copy of the written compilation shall be given to the teacher.
E. A probationary teacher shall be evaluated at least three (3) times at reasonable intervals during each probationary year; provided that at least one evaluation must occur each semester.
# $• #
G. Those responsible for evaluation of classroom teachers shall evaluate each teacher formally in writing.
1) Each formal written evaluation shall be preceded by at least one classroom observation of at least thirty (30) consecutive minutes.
2) A copy of each formal written evaluation shall be given to the teacher and a conference shall be held between the teacher and the building principal or designee within five (5) school days following the classroom observation. A copy signed by both parties shall be retained by the
teacher.”
* # #
H. The evaluator shall provide the teacher with recommendations to improve the quality of teaching and to eliminate difficulties noted in the evaluation.
I. The building principal or immediate supervisor shall assign a consulting teacher to every probationary teacher upon entrance of the probationary teacher into the school system. The consulting teacher, insofar as possible, shall be a - tenure teacher with a minimum of three (3) years teaching experience and shall be engaged in teaching within the same grade, building, or subject area as the probationary teacher. The consulting teacher shall assist tire probationary teacher in acclimating to the teaching profession and the school system. The consulting ■ teacher shall not be involved in the evaluation of the proba- • - tionary teacher.
J. Not later than sixty (60) days before the close of -each school ■term, the building principal or his designee shall- complete a written evaluation report and make recommendations to the superintendent for each probationary teacher. A copy shall be furnished to the teacher. The report shall not contain information which has not previously been made known to and discussed with the probationary teacher.
K. When any evaluation indicates the possibility that any teacher may not be recommended for continued employment, the teacher shall be so advised in writing with reasons and necessary improvements, if any, that may be required for this teacher to be recommended for continued employment.
L. A teacher whose services are being considered for termination shall be advised by the superintendent or his designee of his rights under the Teacher Tenure Act (Sections 24 — 12 through 24 — 16 of The School Code of Illinois). Such notification of termination shall be in the form of a registered letter, which shall include a statement of charges from the Board, the times and dates and specifics of any conduct upon which the charges are based, and names of witnesses.
M. Discharge, demotion, or other involuntary change in the employment status of any teacher shall be preceded by:
(1) The faithful execution of the evaluation procedures for the evaluation of classroom teaching performance and, the honoring of all teachers’ rights included in this agreement and applicable statutes. [Emphasis added.]
(2) A conference with the teacher by the appropriate administrator prior to taking any action.
(3) A written explanation for the action to the teacher.
(4) A complete review of the teacher’s personnel file with the teacher, and
(5) There shall be a hearing before the Board if requested by any non-tenure teacher whose contract is not renewed: * # # »

The pertinent provisions of section 24 — 11 of the Illinois School Code (Ill. Rev Stat. 1971, ch. 122, par. 24 — 11) are:

“Any teacher who has been employed in any district as a full-time teacher for a probationary period of 2 consecutive school terms shall enter upon contractual continued service unless given written notice of dismissal stating the specific reason therefor, by registered mail by the employing board at least 60 days before the end' of such period. If, however, a teacher has not had 1 school term of full-time teaching experience prior to the beginning of such probationary period, the employing board may at its option extend such probationary period for 1 additional school term by giving the teacher written notice by registered mail at least 60 days before the end of the second school term of the period of 2 consecutive school terms referred to above.”

On April 12, 1972, a judgment order was entered in which the trial court stated, inter alia:

“I conclude, therefore, that Appendix XXX is not applicable only with respect to evaluation of classroom performance and that the acts complained of and used as a basis of discharge were within the purview of Appendix XXX.
“I hold, that the defendant, since it did not foUow the binding provisions of Appendix XXX, M (1) breached the contract and its act of dismissal of the plaintiff was improper. Since the two year period has elapsed he is now a tenure teacher and may be removed only for cause after a hearing pursuant to the Statute. The petition for writ of mandamus will be allowed.”

We now proceed to a consideration of defendant’s contentions upon appeal:

I. .

Defendant initially contends that the terms of the collective bargaining agreement do not prohibit the discharge of a non-tenure teacher for cause, and argues that the agreement is inapplicable to dismissals arising outside the classroom teaching experience. The trial court correctly observed that the question presented herein is one of contract construction rather than whether the defendant abused its statutory discretion. We must determine whether the provisions of Appendix XXX, M, of the collective bargaining agreement include dismissals based upon reasons such as were involved in the discharge of plaintiff Davis, and if so, whether there was sufficient evidence to show that these procedures were not complied with prior to terminating his service's.

It is well established that the primary objective of contract construction is to give effect to the intent of the contracting parties. (One Hundred South Wacker Drive, Inc. v. Szabo Food Service, Inc. (1973), 14 Ill.App.3d 438, 302 N.E.2d 703; Parker v. Arthur Murray, Inc. (1973), 10 Ill.App.3d 1000, 295 N.E.2d 487.) Two of the rules of constraction which have been developed to effectuate this primary objective are particularly relevant here. The intent of the parties must be gathered from the contract as a whole arid not from the isolation of any one clause alone. (Goldblatt Bros., Inc. v. Addison Green Meadows, Inc. (1972), 8 Ill.App.3d 490, 290 N.E.2d 715.) Further, in construing a contract, meariing and effect must be given to every part, including all terms and provisions, and no part of a contract should be rejected as meaningless or. surplusage unless absolutely necessary. (Gross v. University of Chicago (1973), 14 Ill.App.3d 326, 302 N.E.2d 444.) In reliance upon these principles we conclude that the trial court did not err in holding that Appendix XXX, M(l), of the agreement was applicable to Davis’ dismissal. Moreover, we find that the trial court’s determination in the instant case that the procedures established in the Appendix as a condition precedent to termination were not complied with is not contrary to the manifest weight of the evidence. Wehrmeister v. Carlman (1958), 17 Ill.App.2d 171, 149 N.E.2d 453.

Defendant urges that the dismissal of Davis was outside of the scope of Appendix XXX-Teacher Evaluation and therefore was not subject to its provisions. Reliance is placed on the first section thereof which states:

“A. The parties agree that the primary objective of teacher evaluation is to improve the quality of instruction. The parties recognize the importance and value of a procedure for assisting and evaluating the progress and success of all teachers.”

Defendant maintains that since the stated purpose of teacher evaluation is to improve the quality of instruction, the provision of section M could not exceed that general purpose and relate to changes in employment status for other reasons generally, nor in areas not related to the quality of instruction. Defendant would isolate section A which we note initially refers to the “primary” objective, rather than providing an exclusive objective. It is necessary to consider the entire agreement to determine its overall purpose.

As clearly stated by the trial court, defendant’s interpretation would result in making the phrase in section M(l) — “for the evaluation of classroom teaching performance” — redundant and unnecessary. Again, in section C, provision is made for “[fjormal observation of all teacher duties and responsibilities,” and is not limited to all classroom teacher duties and responsibilities as construed by defendant. Defendant here has also argued that the trial court erred in relying on plaintiffs’ Exhibits 2 and 3 in that no evidence was submitted that such evaluation instruments were intended to be limited to matters covered by the collective bargaining agreement, but we need not reach this argument. At trial, no objection was made to the introduction of Exhibit 2, and although defendant did object to the introduction of Exhibit 3, the objection was that it was immaterial. Objections not raised at trial and objections upon a different basis than made at trial cannot be asserted on appeal. (Questelle v. Hamp (1973), 9 Ill.App.3d 802, 293 N.E.2d 137; Plaza Express Co. v. Middle States Motor Freight, Inc. (1963), 40 Ill.App.2d 117, 189 N.E.2d 382.) Exhibits 2 and 3, which related to teacher evaluation and recommendations for reemployment, indicate that defendant recognized that any evaluation of a teacher’s qualifications involved more than mere classroom performance. Accordingly, we hold that Davis’ discharge had to be preceded by the procedures as set forth in section M of Appendix XXX.

The record in the instant case contains ample evidence to support the trial court’s finding that the procedures required to precede any termination of employment were not foUowed. Davis testified that he was never informed of the evaluation procedures; that he was not evaluated formally during the first semester of the 1970-71 school term; that no consulting teacher was assigned to him; that no recommendations were made to him to improve the quality of his teaching or eliminate difficulties therein; and that he was not informed of his rights under the Teacher Tenure Act. Furthermore, the witness for the defendant Board, Dr. James B. Miller, admitted that the procedures required in Appendix XXX were not followed. Clearly, the trial court’s finding was not contrary to the manifest weight of the evidence.

II.

Defendant further contends that if the failure to comply with the provisions of Appendix XXX, M would bar the discharge, a school board has no power to enter into such agreement which, in effect, contracts away the statutory authority to dismiss teachers for cause. In Illinois it has been held that a school board can enter into a binding collective bargaining agreement with a bargaining agent selected by its teachers, and such agreement is not contrary to public policy. (Chicago Division of the Illinois Education Association v. Board of Education (1966), 76 Ill.App.2d 456, 222 N.E.2d 243.) However, a board may not, through a coUective bargaining agreement or otherwise, delegate to another those matters of discretion that are vested in the board by statute which includes the power and duty to appoint and discharge teachers. (See Board of Education v. Rockford Education Association (1972), 3 Ill.App.3d 1090, 280 N.E.2d 286; Elder v. Board of Education (1965), 60 Ill.App.2d 56, 208 N.E.2d 423.) However, we believe that the issue here is controUed by the recent case of Classroom Teachers Association v. Board of Education (1973), 15 Ill.App.3d 224, 304 N.E.2d 516.

In Classroom Teachers a member of a teachers’ association who had been involuntarily transferred from her status of counselor to that of instructor, filed, together with the teachers’ association, an action for a writ of mandamus and for declaratory judgment. Plaintiffs alleged that the defendant board of education did not fulfill the conditions precedent imposed by a coUective bargaining agreement between the association and the school board. The conditions precedent are similar to those in the' case before us. The defendant admitted that the contract provisions had not been complied with. The trial court there found that the written evaluations were not given to the teacher, but that the powers and duties of the board could not be limited by the agreement which violated the prohibition against delegation or impairment of the powers and duties of the board, in view of Board of Education v. Rockford Education Association, supra. The appellate court reversed and held that the provisions of the collective bargaining agreement did not restrict the statutory powers of the school board to hire, discharge or transfer teachers, nor did it require the board to delegate any authority. The court there stated that the agreement did no more than establish certain procedures consistent with the ordinary concepts of fairness which the board agreed to foUow, and that none of these procedures limited the power of the board to exercise its absolute discretion unfettered by any considerations save fundamental fairness. The court distinguished Rockford as factuaUy different and held that binding arbitration regarding selection or promotion of teachers could not be delegated, whereas the agreement in Classroom expressly provided for a hearing before the board, and that the responsibility of final decision making could not be delegated. The court reversed and remanded the cause with instructions to enter the relief prayed by plaintiffs.

The facts of the instant case are almost identical to those in Classroom except that the teacher there was involuntarily reassigned, and in the instant case the teacher was discharged. The conditions precedent to an involuntary change in employment status are also substantially the same. As in Classroom, the collective bargaining agreement here provides that the defendant Board retains and reserves all rights, powers, authority, duties and responsibilities vested in it by statute providing that such will be exercised in conformity with the provisions of the contract. Therefore, in accord with Classroom, we conclude that the provisions contained in Appendix XXX of the collective bargaining agreement herein are not ultra vires of the contractual powers of the defendant Board, and that the provisions are binding and enforceable against it.

III.

Defendant next contends that where the collective bargaining agreement provides an advisory arbitration as a grievance procedure a party who has utilized such arbitration cannot thereafter seek a de novo hearing in the courts. Again, it is not necessary to reach the merits of this contention as this point has been waived by defendants failure to assert it as a defense at trial. Defendant filed an amended motion to dismiss which alleged in part that plaintiffs were precluded from maintaining the present action because the administrative remedy of arbitration had not then been completed. At a hearing on the motion and at the insistence of the defendant, the trial court ordered that the court proceedings be held in abeyance pending completion of the arbitration process. Defendant cannot now raise the question of the arbitration process being the plaintiffs’ exclusive remedy under the collective bargaining agreement when the question was not presented to the trial court. Shaw v. Lorenz (1969), 42 Ill.2d 246, 246 N.E.2d 285; Banks v. City of Chicago (1973), 11 Ill.App.3d 543, 297 N.E.2d 343.

IV.

Defendant also contends that the trial court erred in granting the plaintiffs’ petition for a writ of mandamus in that the extraordinary remedy of mandamus does not lie to compel performance of an obligation under contract, but lies only as to ministerial acts of statutory origin. We believe that defendant has confused the nature of the relief granted by the trial court with its determination of the rights and obligations of the parties under the collective bargaining agreement. The trial court held that the provisions of Appendix XXX of the agreement were binding and enforceable against defendant and that the provisions were applicable to and constituted conditions precedent to Davis’ discharge. The evidence established that defendant had breached the collective bargaining agreement by not complying with those provisions prior to Davis’ dismissal, thus rendering his termination improper.

Section 24 — 11 of The School Code clearly states that any full-time teacher who completes a probationary period of two consecutive school terms automatically enters tenure status unless given written notice of dismissal at least 60 days prior to the end of such period. (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 11.) Here, as the contractual prerequisites to terminating Davis’ employment had not been met, the automatic pro-' vision of the statute became operative. Consequently, the grant of plaintiffs’ petition for a writ, of mandamus was directed at the enforcement of a mandatory provision of the statute and not the obligations of defendant under the collective bargaining agreement. Mandamus is a proper remedy to compel action in conformity with the statute. The granting of plaintiffs’ petition for a writ of mandamus in the instant case was not error. Classroom Teachers Association v. Board of Education, supra; Betebenner v. Board of Education (1949), 336 Ill.App. 448, 84 N.E.2d 569.

V.

Defendant’s final contention is that the trial court erred in usurping the statutory discretion of defendant Board to decide whether to place a non-tenure teacher on tenure or issue such a teacher a third-year probationary contract. It is argued that if Davis was to be reinstated, defendant had discretion, under section 24 — 11 of the School Code (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 11), to either extend his tenure or offer him a third-year probationary contract. We disagree. This argument overlooks the statutory requirement that the option of extending a probationary teacher to a third-year probationary contract must be exercised within 60 days of the end of the second consecutive school term of probationary teaching. The defendant did not exercise this option within the required time and in the required manner. Instead, it improperly attempted to terminate Davis’ employment. Upon completion of his second term of probationary teaching defendant had no discretion remaining because Davis had automatically acquired tenure by operation of the statute. Donahoo v. Board of Education (1952), 413 Ill. 422, 109 N.E.2d 787.

Judgment affirmed.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Hyman, Defendant-Appellant.
    (No. 59023;
    First District (3rd Division)
    October 3, 1974.
    Paul Bradley and Richard D. Thomas, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Gerald A. Shorkey, Defendant-Appellee.
    (No. 59357;
    First District (3rd Division)
    October 3, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Dorothy Johnson and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for the People.
    Patrick A. Tuite and Steven Walanka, both of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Gerald Shorkey was arrested in the early morning of March 4,1973, for driving a motor vehicle while under the influence of alcoholic beverages. He was taken to a police station and was asked it he would submit to a chemical breath analysis. He refused. The arresting officer made out a ticket charging Shorkey with the drunken driving offense and took him to the lockup. On the way Shorkey changed his mind and said he would take the test. The officer felt that his consent came too late, and locked him up.

At his trial Shorkey pleaded not guilty and waived a jury. He filed a petition for a hearing as to whether his driver’s license should be suspended for his failure to submit to a breath analysis and requested that the court consider the petition along with his trial on the charge of driving while under the influence of intoxicating liquor.

However, the petition was heard first, and at the hearing it was stipulated that the arresting officer had probable cause for the arrest; that he gave the required implied consent warnings to the defendant; that the defendant understood his rights; that he was requested to take a breathalyzer test and that he refused. Shorkey argued that his initial refusal was not binding on him since he was entitled under the statute to 90 minutes from the time he received the oral and written warnings to decide whether or not to submit to an examination. The State contended that after he had once refused he could not revoke his refusal; that giving him one opportunity to consent within 90 minutes was sufficient compliance with the statute. The trial court held with the defendant and the State appealed.

The statute referred to is section 11 — 501.1(a) and its subsection (a)(9) of the Illinois Vehicle Code, which provides:

“Any person who, after September 30, 1972, drives a motor vehicle anywhere within this State thereby consents, under the terms of this Section, to take and complete a test or chemical analysis of his breath to determine the alcoholic content of his blood when made as an incident to and following his lawful arrest * * Ill. Rev. Stat. 1973, ch. 9572, par. 11 — 501.1(a).
“After being so advised the arrested person may study the written notice and may consult with an attorney or other person by phone or in person but refusal to submit to the test within 90 minutes after being given the written notice shall constitute a refusal to take the test.” Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 501.1 (a)(9).

The statute states that refusal to submit to a breath test within 90 minutes after written notice shall constitute a refusal to take the test. The issue to be decided is whether this means that the refusal must exist at the end of the 90 minutes, or does it mean that a refusal at any time during the 90 minutes constitutes a refusal?

This is the first time this issue has reached the appellate level in Illinois, but it has been passed upon in other states. Illinois was the last state in the Union to adopt the implied consent law, and \ye can profit from the decisions in those states which have had longer experience with such laws.

Without exception, the courts have held that once the request to take the test is rejected, there has been a statutory refusal which mandates the suspension of the driver’s license. Zidell v. Bright (1968), 264 Cal.App.2d 867, 71 Cal.Rptr. 111; Swenumson v. Iowa Department of Public Safety (Iowa 1973), 210 N.W.2d 660; State v. Palmer (1971), 291 Minn. 302, 191 N.W.2d 188; Wiseman v. Sullivan (1973), 190 Neb. 724, 211 N.W.2d 906; Harlan v. State (N.H. 1973), 308 A.2d 856; Sawyer v. Tofany (1973), 41 App.Div.2d 583, 340 N.Y.S.2d 208; Atwell v. State (1973), 35 Ohio App.2d 221, 301 N.E.2d 709; Robertson v. State ex rel. Lester (Okla. 1972), 501 P.2d 1099.

Although the Illinois implied consent statute may differ in some respects from those of other states the central purpose is the same, and the reasoning in the decisions of the courts which interpreted those statutes applies with equal force to our statute. The courts uniformly stated, in effect, that the legislative purpose in enacting implied consent laws was to reduce the holocaust on highways, part of which was attributable to drivers who had consumed excessive quantities of intoxicating liquors; the license revocation provisions were intended to protect the public from irresponsible drivers as well as to punish such drivers; it would be unreasonable to hold that an arresting officer was required to consider a refusal as conditional — one that could be withdrawn at any time during the statutory time limitation — and compel him to remain near the arrested person and out of service during that period; it would be inconsistent with the purpose of the statutes to hold that he must drop other responsibilities and arrange for a belated test where the arrested person had previously refused after being warned of the consequences of his refusal, and that this was true even if the facilities to conduct the test were still available.

The aim of statutory construction is to ascertain the intention of the legislature by examining not only the language employed, but the evil to be remedied and the objective sought to be accomplished. (People v. LaPorte (1960), 28 Ill.App.2d 139, 171 N.E.2d 95; Jackson v. Jackson (1965), 55 Ill.App.2d 77, 204 N.E.2d 153.) Section 11 — 501.1(a) (9) states that a refusal to submit to a breathalyzer test within 90 minutes shall constitute a refusal to take the test. This indicates that the legislature intended that a refusal within the 90-minute period would be final. Any different interpretation would have to ignore the words, “shall constitute a refusal.” There is no language in the statute that is susceptible of an interpretation that a refusal once made must exist to the end of the period. There must be a point of no return. A person may take an hour and a half to make his decision, but once it has been made the police cannot be expected to wait around to see if he will change it. We hold that where all the other terms of the statute have been complied with, a refusal to submit to a chemical breath analysis is a binding refusal which cannot be nullified by a subsequent consent.

Section 11 — 501.1 applies to any person who “drives a motor vehicle” in Illinois who fails to take a breathalyzer test following his lawful arrest, “evidenced by the issuance of a Uniform Traffic Ticket.” The defendant urges that the trial court’s decision discharging him should be affirmed because the prosecution failed to prove that he had been driving a motor vehicle or that he had been given a traffic ticket. There was no need for the State to make this proof. The first matter heard was the defendant’s petition questioning the police report concerning his refusal to submit to a breath test. This petition was filed in accordance with section 11 — 501.1(d) which provides that if a hearing is requested on such a report the scope of the proceedings shall cover only these issues.

“* ° * whether the person was placed under arrest for an offense * * *, whether the arresting officer had reasonable grounds to believe such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing * * * that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer.” Ill. Rev. Stat. 1973, ch. 95V2, par. 11 — 501.1(d).

The stipulation entered into by the parties covered these precise issues. Further proof regarding them would have been superfluous. The court had before it the stipulation, supplemental information pertaining to the circumstances of the defendant’s refusal, and the arresting officer’s certificate that he had reasonable grounds to believe Shorkey was driving while under the influence of liquor because he ran off the road, had a strong odor of alcohol on his breath and was unable to perform normal functions. The State did not fail to meet its burden of proof and the court did not err in restricting the hearing to its proper purpose.

The order granting the defendant’s petition is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kermit Parker et al., Defendants-Appellants.
    (Nos. 60046-7 cons.;
    First District (3rd Division)
    October 3, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Rea Markin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    James J. Reagan, Plaintiff-Appellant, v. A. S. Krisor et al., Defendants-Appellees.
    (No. 60080;
    First District (3rd Division)
    October 3, 1974.
    James J. Reagan, pro se.

    Rudnick, Wolfe, Snyderman & Foreman, of Chicago (Lester D. Foreman and Stanley N. Gore, of counsel), for appellees.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Smith, Defendant-Appellant.
    (No. 58758;
    First District (1st Division)
    October 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Marilyn Dershem Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

HALLETT, J., took no part.


author: Mr. PRESIDING JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henrietta Coleman, Defendant-Appellant.
    (No. 58799;
    First District (1st Division)
    October 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Matthew J. Beem-sterboer and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Henrietta Coleman, was indicted for murder and pleaded guilty to voluntary manslaughter pursuant to a plea bargaining agreement. She was sentenced to 5 to 15 years in the IHinois State Penitentiary. She contends that she was not properly admonished as to the necessary elements of voluntary manslaughter nor to the maximum sentence that would be imposed.

When the case was called the following ensued:

“State’s Attorney: Henrietta Coleman is before the court, Judge, in indictment 72-1904. There has been in this case a continuing conference and I have conferred with Mr. Williams [Defense Attorney] and there has been certain offers and recommendations made on a reduced charge of voluntary manslaughter to Mr. Williams for conveyance to Henrietta Coleman.
Namely, in return for a plea of guilty in this cause on this indictment the State would reduce the charge from murder to voluntary manslaughter, in return for a plea, to an agreed sentence of 5 to 15, is that correct, Mr. Williams?
Defense Attorney: That is correct.
State’s Attorney: That has been conveyed to Mrs. Coleman?
Defense Attorney: Yes, that’s right. At this time, your honor, we would withdraw our plea of not guilty to murder and enter a plea of guilty to voluntary manslaughter.
The Court: The lesser included offense, is that correct?
Defense Attorney: That’s correct, your honor.
The Court: Is that correct, ma’am?
The Defendant: Yes, sir.
The Court: You understand you are pleading guilty that you did, on April 21st, 1972, commit the offense of voluntary manslaughter in that you did kill one Jason Schivers, is that correct, ma’am?
The Defendant: That’s right, sir.”

The record reflects that the defendant was then asked whether she understood that she was waiving her right to a trial and to the right to confront tire witnesses against her. To each question she answered: “Yes.” The following colloquy then took place:

“The Court: Do you understand by pleading guilty to the crime of voluntary manslaughter I could sentence you to the Illinois State Penitentiary for a minimum of one to a maximum of twenty years. That is the most I could give you, do you understand that?
The Defendant: Yes.
The Court: No promises were made to you or threats made to get you to plead guilty with the exception of the results of the conference. Basically, in the conference I told your attorney what had been agreed upon between your attorney and the State’s Attorney’s office, I went along with it. If you plead guilty I would sentence you to the Illinois State Penitentiary for a minimum of 5 to a maximum of 15, is that correct?
The Defendant: Yes.
The Court: That is the only promise that has been made to you; if you plead guilty you would go to the penitentiary for 5 to 15 years, do you understand that?
The Defendant: No, I don’t understand that.
The Court: If you plead guilty you could go to the penitentiary, and the earliest you could get out would be 5 years, less time off for good time, that would be up to the parole board, do you understand that? But you would not stay in the penitentiary any longer than 15 years, which would be the maximum they could keep you, do you understand that?
The Defendant: I don’t know.
Defense Attorney: What she does not understand, Judge, is because I had explained to her the minimum. I think her confusion is between the minimum and the maximum.
The Court: You could possibly get out in three years and six months, whatever it is. Do you understand you could get out in that time? If you go out there and you adapt to the programs. Apparently, you are 60 years old, and that’s up to you, how long you stay out there, do you understand that?
The Defendant: Yes.
The Court: Knowing all that, is that what you agreed to? Is that the sentence you agreed to with your attorney?
The Defendant: I don’t understand that.
The Court: I will explain.
The Court: Yes, Counsel.
(Short interruption.)
The Defendant: Yes.
The Court: Do you agree to that? Do you understand that now? The Defendant: Yes.
The Court: And that is what you want to do?
The Defendant: Yes.”

Then followed a stipulation of the facts: Jason Schivers was the defendant’s common-law husband, and he was in a bar with another woman. The defendant came in and saw him kissing the other woman. She told him to come home, but he refused. She left and came back a few minutes later armed with a .38-caliber revolver. She fired two shots at Schivers while he was sitting on a bar stool.

The State then recommended a sentence of 5 to 15 years and the defense attorney said; “In mitigation, Judge, I would add that this defendant has no prior criminal background and, as the State has indicated, she is 60 years of age.”

“The Court: What do you wish to say, ma’am? Do you wish to say anything to me?
The Defendant: Nothing but I can go home.
The Court: You can’t go home. I hope you will make the earliest possible pardon so you will go back out. Basically, you have led a good life up to this time. Apparently, you and the man you were living with, your husband in a common-law situation, apparently Jealousy got the best of you and this is what happened. It is sad that at your age you couldn’t stay out of trouble, but you must pay your debt to society. Do you understand that?
The Defendant: Yes.”

The defendant contends she was not sufficiently admonished under Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402) which provides in part:

“(a) Admonitions to Defendant. The Court shall not accept a of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge.”

We recognize that appellate courts in this State have divided on whether mere reference to the name of the crime charged is sufficient to apprise the defendant of its nature. (See People v. Diaz, 15 Ill.App.3d 280, 304 N.E.2d 103; People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223; and cf. People v. Triplett, 18 Ill.App.3d 619, 310 N.E.2d 428; People v. Green, 17 Ill.App.3d 918, 309 N.E.2d 75; and People v. Krantz, 12 Ill.App.3d 38.) But after oral arguments • were heard in this case, the supreme court resolved the question in People v. Krantz, Docket Nos. 46078, 46252 cons., May Term 1974. The court noted that the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge; that the “recital by the assistant State’s Attorney of the anticipated prosecutive evidence made clear what criminal conduct of [the defendant] the People expected to prove” that neither “the defendant nor his attorney demurred to the prosecutor’s statement”; and that when the trial court asked the defendant if he understood what he was charged with in the indictment, the defendant responded that he did. The court concluded with what we consider to be the applicable rule: “The remarks and advice of the court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.” We judge that the remarks of the trial court in this case and the recitation of the stipulated facts by the assistant State’s Attorney meet the requirements of the rule.

The defendant also contends that it does not affirmatively appear in the record that she understood the sentence to be imposed upon her pursuant to the plea bargaining agreement.

In our view the court went to considerable length to explain the consequences of the plea; and, although the defendant indicated some uncertainty, the record reflects sufficient facts to justify the court’s conclusion that the plea was voluntarily made and that the defendant was aware of its consequences.

The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willard McElroy, Defendant-Appellant.
    (No. 59378;
    First District (1st Division)
    October 7, 1974.

      Paul Bradley and Howard B. Augustus, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Willard McElroy (defendant) was indicted for murder (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1.) After plea bargaining he pleaded guilty to involuntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(a)). On April 25, 1973, he was sentenced to 4 to 7 years in the penitentiary.

In this appeal by defendant, he questions the validity of the minimum sentence fixed under the law as it existed before January 1, 1973. The People respond that defendant, acting through his counsel, effectively waived his right to be sentenced under the Unified Code of Corrections and that the sentence should be affirmed as the result of a voluntary plea agreement.

It is agreed that the trial court fully and properly advised and admonished the defendant concerning all of his rights prior to accepting the plea as required by Supreme Court Rule 402 ( 50 I11.2d R. 402.) The record shows a proper factual basis for the plea of guilty to involuntary manslaughter and agreement between the parties and attorneys concerning the sentence. The court asked defendant’s attorney in open court, “Now, Counsel,- do you elect to be sentenced under the old Code?” The attorney responded, “Yes, most certainly, Judge.” After a hearing in aggravation and mitigation, the court passed sentence.

As shown, this all occurred after January 1, 1973, the effective date of the Illinois Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 6—1.) The offense was committed on October 23, 1972, and the indictment was returned on December 28, 1972. Under the law in effect on those two dates, the penalty for involuntary manslaughter was an indeterminate sentence of from 1 to 10 years. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(c)(1).) As a result of the Unified Code and various conforming amendments, involuntary manslaughter was classified as a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3(c)(1).) This change fixed a maximum term “in excess of one year not exceeding 10 years” and a minimum term of 1 year, with an exception not applicable here, subject to the mandatory condition that the minimum should “not be greater than one-third of the maximum time set in that case by the court.” See Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 8—l(b)(4) and 1005 — 8—1 (c)(4).

It is our considered opinion that the minimum penalty here must necessarily be reduced to comply with the mandate of the Unified Code. Any one of the following reasons is sufficient to support and to require this result:

(1) It has been held that “[t]he Code of Corrections applies to negotiated pleas.” (People v. Cole, 12 Ill.App.3d 1003, 299 N.E.2d 394.) In Cole, the defendant was sentenced before January 1, 1973. In the case before us, the sentence was passed when the Code was in effect. Based upon this premise, it follows logically that the sentence resulting from the negotiated plea should be conformed to the mandatory requirements of the Code.

(2) By its own provisions the Unified Code is definitely applicable here. Since the cause had not reached the sentencing stage on tiie effective date of the Code and the sentence thereunder would be less than under prior law, under which the prosecution was commenced, the Code applies. (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4. Compare People v. Marin, 56 Ill.2d 490, 309 N.E.2d 9, and People v. Lilly, 56 Ill.2d 493, 496, 309 N.E.2d 1.) The illegal portion of the minimum sentence here is legally comparable to that portion of a maximum sentence in excess of the legal limit. The latter has been described as “void.” People v. Simpkins, 48 Ill.2d 106, 111, 268 N.E.2d 386.

(3) We have serious doubts regarding the validity of the so-called waiver of the provisions of the Unified Code by the defendant. Waiver has been defined as “an intentional relinquishment or abandonment of a known right or privilege.” (Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019.) It would be difficult seriously to urge that any defendant would knowingly choose a minimum of 4 years as more desirable than 2Vs years.

(4) The entire above discussion may be strictly academic. The parole eligibility of this defendant must be determined under the Unified Code. Since his eligibility for parole would occur later under the prior law, he is entitled to have his eligibility determined under the Code. (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 3—3(c).) This was established in People ex rel. Weaver v. Longo, 57 Ill.2d 67, 72, 73, 309 N.E.2d 581, where the relator was sentenced under prior law and established his eligibility for earlier parole consideration under the Code by a subsequent mandamus action. See also People v. Marsh, 19 Ill.App.3d 357, 359, 360, 311 N.E.2d 416.

The judgment appealed from is modified by reducing the minimum of the sentence from 4 to 2Vs years. As thus modified, the judgment is affirmed.

Judgment affirmed as modified.

EGAN, P. J., and HALLETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Kizer, Defendant-Appellant.
    (No. 59767;
    First District (1st Division)
    October 7, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    Rudolph Glickauf, Plaintiff-Appellant, v. Jack Moss et al., Defendants-Appellees.
    (No. 60092;
    First District (1st Division)
    October 7, 1974.

      Arvey, Hodes & Mantynband, of Chicago (Ralph A. Mantynband, of counsel), for appellant.
    Russell J. Topper, of Chicago, for appellees.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This appeal brings before us a dispute concerning a family owned business corporation. Rudolph Glickauf (plaintiff) is beneficial owner of approximately 23% of the outstanding shares of Jack’s Men’s Shop, Inc. (Corporation). Equitable ownership of the balance of the stock is vested in Jack Moss, Rose Moss, Everett Moss, Sheila Moss, Earl Hyman and Muriel Hyman (defendants). Legal title to all of the corporate stock is held by a voting trust of which defendants Jack Moss and Rose Moss are trustees.

Plaintiff has filed a fourth amended complaint which prays primarily for liquidation of the Corporation. (Ill. Rev. Stat. 1973, ch. 32, par. 157.86(a).) The trial court sustained a motion of defendants to dismiss the complaint and it was accordingly dismissed for want of equity.

At the commencement of the suit, plaintiff and the Corporation were designated as plaintiffs in the original complaint. The six named individuals were the only defendants. After a number of legal maneuvers and the entry of many orders, succeeding complaints involving the same alignment of parties and praying for varied types of relief were dismissed on motion of defendants. A later amended complaint sought to change the alignment and designation of parties by presenting Rudolph Glickauf as sole plaintiff with the designation that the suit was brought by him, individually, and for the benefit of the Corporation. In addition, this and subsequent amended complaints were filed which carried the designation of Rudolph Glickauf as the sole plaintiff and which added the Corporation as an additional defendant. The fourth amended complaint, which is the subject of this appeal, carries this same alignment and designation of parties. However, a minute search of the entire record discloses that, although plaintiff sought leave of court to realign the parties as indicated, no such order was ever entered by the court. Parties can be dropped and new parties added only “by order of the court.” (Ill. Rev. Stat. 1973, ch. 110, par. 26.) It follows necessarily that the Corporation is not presently a defendant herein and that the trial court never obtained jurisdiction over its person. No appearance was ever filed in its behalf.

On oral argument, plaintiff urged that the trial court had acquired jurisdiction over the Corporation by waiver. At one point in the proceedings, counsel for defendants had filed a brief for the defendants and included the name of the Corporation for the stated purpose of assisting the court in determining whether to grant plaintiff leave to file an amended complaint. We have doubts as to whether waiver of this type would apply to a party defendant under the circumstances which exist here where a corporate party has been transformed from a plaintiff to a defendant by unilateral action of plaintiff’s counsel without order of court. Furthermore, as far as we can ascertain from the authorities, the filing of a brief of this kind signed by counsel should not be permitted to make a former plaintiff a party defendant to these proceedings. See Schumacher v. Klitzing, 353 Ill. 530, 533, 187 N.E. 458.

As regards the merits of the appeal, plaintiff advances various arguments to the point that the fourth amended complaint indeed states a cause of action sufficient to require liquidation of the Corporation. In addition to countering these arguments with the contention that the complaint is substantially defective, defendants raise the issue that the court has no jurisdiction over the Corporation. Our study has convinced us that the jurisdictional question is paramount here and that its proper determination eliminates the need for consideration of the remaining arguments at this particular time.

Actually, the jurisdictional issues raised by defendants leads to a consideration of the need for the trial court and this court to obtain jurisdiction over a necessary party before proceeding to a decision of the cause upon its merits. This inquiry must commence with a determination as to whether the Corporation is a necessary party to proceedings which seek its statutory liquidation and dissolution. In our opinion, this inquiry must necessarily receive an affirmative answer.

The authority and jurisdiction of Illinois courts to order the liquidation and dissolution of a corporation is entirely and exclusively statutory. (Central Standard Insurance Co. v. Davis, 10 Ill.2d 566, 572, 141 N.E.2d 45.) The Business Corporation Act of Illinois, as presently constituted, does not contain a specific requirement that a corporation is a necessary party defendant to a suit which seeks its liquidation and corporate death. However, the dictates of common sense and various language used in the statute require the conclusion that the Corporation is, indeed, a necessary party to these proceedings. The test of whether this Corporation is a necessary party is if it is “legally or beneficially interested in the subject matter of the litigation” so that it would “be affected by the decree * # *.” (Oglesby v. Springfield Marine Bank, 385 Ill. 414, 423, 52 N.E.2d 1000.) It is indeed difficult to imagine a more necessary party in an action for corporate dissolution than the affected corporation itself.

Further, there is a specific statutory requirement that these proceedings “shall be brought in the county in which the registered office or the principal office of the corporation is situated.” (Ill. Rev. Stat. 1973, ch. 32, par. 157.86.) At the same point in the statute, immediately following the above language, there is a provision which indicates that making the' shareholders parties to such action is not necessary unless personal relief is sought against them. The Act provides that in these liquidation proceedings the court may appoint a receiver pendente lite (Ill. Rev. Stat. 1973, ch. 32, par. 157.87.) The statute directs the court, after completion of liquidation of corporate assets, to “enter a decree dissolving the corporation, whereupon the existence of the corporation shall cease.” (Ill. Rev. Stat. 1973, ch. 32, par. 157.91.) The conclusion is thus clear and definite that the Corporation is a necessary party to these proceedings. This conclusion cannot be avoided or altered by the presence before the court of all of the shareholders of the Corporation.

The fourth amended complaint alleges that three of the defendants are directors of the Corporation but it does not allege that they are its only directors. We have searched the authorities and the only type of situation in which the court permitted relaxation of the rule requiring necessary parties is one in which a party already present effectively represents an omitted interest. Cales v. Dressler, 315 Ill. 142, 149, 146 N.E. 162; Fox Lake Hills Property Owners Ass’n v. Fox Lake Hills, Inc., 120 Ill.App.2d 139, 144, 145, 256 N.E.2d 496.

The result of a fafiure to join a necessary party has been the subject of a number of cases decided by the reviewing courts of Illinois. In Hobbs v. Pinnell, 17 Ill.2d 535, 536, 162 N.E.2d 361, the court quoted and depended upon the foHowing statement from Gaumer v. Snedeker, 330 Ill. 511, 515, 162 N.E. 137:

‘Whenever a party has been omitted whose presence is so indispensable to a decision of the case upon its merits that a final decree cannot be made without materially affecting his interests, the court should not proceed to a decision of the case upon the merits. The objection may be made by a party at the hearing or on appeal or error, and the court will upon its own motion take notice of the omission and require the omitted party to be made a party to the Htigation even though no objection is made by any party litigant. Knopf v. Chicago Real Estate Board, 173 Ill. 196; Abernathie v. Rich, 229 id. 412; McMechan v. Yenter, 301 id. 508; Webster v. Jackson, 304 id. 569; Mortimore v. Bashore, 317 id. 535.”

The requirement of “joinder” of necessary parties thus appears absolute and inflexible. It applies to trial courts as weH as to appeHate courts. (Georgeoff v. Spencer, 400 Ill. 300, 302, 79 N.E.2d 596.) As shown, it is the duty of trial and reviewing courts to enforce this principle of law sua sponte as soon as it is brought to their attention. It has been repeatedly held that it is error for a court to proceed to hearing and disposition on the merits of a cause without jurisdiction of necessary parties. This rule has been described as “fundamental doctrine.” (B. J. Lind & Co. v. Diacou, 3 Ill.App.3d 299, 302, 278 N.E.2d 526.) The supreme court has put the matter in the strongest terms with the statement that “[i]t has long been the rule that an order entered without jurisdiction of indispensable parties is null and void.” People ex rel. Meyer v. Kerner, 35 Ill.2d 33, 38, 219 N.E.2d 617.

Nor is application of the doctrine affected by the fact that the order appealed from actually represents an outcome of the cause favorable to the absent Corporation. In Giese v. Terry, 382 Ill. 34, 46 N.E.2d 90, proceedings seeking to establish a constructive trust had been dismissed by the trial court on motion of a defendant. Where there was a lack of necessary parties, the court held that neither the court exercising original jurisdiction nor that exercising appellate jurisdiction should proceed further with the matter and the judgment of dismissal was accordingly reversed.

Application of these accepted principles to the record before us requires that the judgment appealed from be reversed not upon its merits but solely for the purpose of permitting plaintiff to take the steps required to obtain jurisdiction over the Corporation as a necessary party. Plaintiff has filed in this court a motion to amend the proceedings by adding Jack’s Men’s shop, Inc., a corporation, as an additional party hereto. (Supreme Court Rule 386(a), 50 Ill.2d R. 368(a).) Defendants have filed objections to this motion. The motion will not be entertained. The judgment appealed from is accordingly reversed and the cause remanded to the trial court with directions for the entry of a proper order adding the Corporation as an additional party defendant to the fourth amended complaint and providing for the issuance of summons in the usual form against said additional defendant if requested by plaintiff’s counsel. This will give plaintiff an opportunity to take the steps necessary to obtain jurisdiction over the Corporation. When this has been accomplished, the trial court is directed to proceed in a manner not contrary to the views above expressed.

Judgment reversed and cause remanded.

EGAN, P. J., and HALLETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee v. Theophilus Graham, Defendant-Appellant.
    (No. 60139;
    First District (1st Division)
    October 7, 1974.
   PER CURIAM.

GOLDBERG, J., took no part.

James J. Doherty, Public Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago, for the People.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lorraine Reed, Defendant-Appellant.
    (No. 58532;
    First District (2nd Division)
    October 8, 1974.

      Diane L. Crawford, of Northwestern Legal Assistance Clinic, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Lorraine Reed, defendant, was found guilty after a bench trial of the crime of murder in violation of section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, eh. 38, par. 9 — 1). She was sentenced to a term of 14 to 20 years. Defendant appeals, arguing that the evidence was insufficient to establish her guilt beyond a reasonable doubt, and that the trial court erred in admitting evidence procured in violation of her fifth amendment right against self-incrinrnation.

At trial, Catherine Hendrix testified that on 4 October 1971, at approximately 7 P.M., she was at her home at 120 N. Hermitage, Chicago, Illinois. Present with her were: her children (two daughters); defendant; Leo Jones; Edward Jones; and the deceased, Ezeldel Brewer. Defendant, who had come to Chicago on the day before from Wichita, Kansas, and who was staying with the witness, was in the back bedroom (which was the childrens’ bedroom). Mrs. Hendrix was playing cards in the kitchen. Ezekiel Brewer became “pesty” and she told him to go into the chil-drens’ bedroom and lie down. A short time later, she heard what sounded like balloons bursting. Mrs. Hendrix checked with her children and found that they were not making the noise. She then asked Leo Jones to check the back bedroom of the apartment. Leo Jones went into the back bedroom and returned, saying that defendant shot Zeke. She immediately telephoned the police. Mrs. Hendrix also testified that, during the day, irritable words had passed between deceased and defendant owing to a mix-up as to the availability of clothing for a baby who was the one of defendant’s children whose father was the deceased, but there had been no big argument or fight.

Leo Jones, defendant’s brother, testified that on 4 October 1971, at 7 P.M., he was at Catherine Hendrix’s home at 120 N. Hermitage, Chicago, Illinois. Defendant was in the back of the apartment, while he was playing cards in the kitchen with Edward Jones and Catherine Hendrix. Deceased was then in the kitchen. One Pinky Henderson left the apartment. A short time later, deceased left the kitchen area. He then heard what sounded like a firecracker or a popping noise. Catherine Hendrix checked with her children and found that they had not made the noise. The witness then went to the back bedroom where he observed Ezekiel Brewer lying face up on the bed. Defendant was the only other person in the room and was standing at the north end of the bed. Upon his entry into the room, defendant said, “I did it.” He went up to Brewer and observed a bullet wound of the head. The police were called. Jones testified that, prior to the shooting, defendant and deceased had exchanged some words about one of defendant’s children whose father was the decedent. Jones testified that, after the police officers arrived, one of them asked him to be present while they questioned defendant. The police asked defendant about the gun and she stated that she had thrown it out the window.

On cross-examination, Leo Jones admitted that on the evening of the incident, he had signed a statement at the police station stating that, when he had entered the room, defendant had told him that she didn’t do it, it was an accident; that he had asked her what she meant; that she kept saying the same thing over and over that it was an accident. But Jones then testified on further cross-examination that he in fact had told the police officers that defendant had kept saying: “I did it.”

Edward Jones testified that on 4 October 1971, sometime after 7 o’clock, he was in the apartment at 120 N. Hermitage, Chicago, Illinois, playing cards with Pinky Henderson, Leo Jones, and Catherine Hendrix. At approximately 7 P.M., Pinky Henderson left the apartment. Thereafter, he heard a popping sound similar to a firecracker. Catherine Hendrix checked to see if her children had made the sound but they said they hadn’t. Catherine then said: “It’s too quiet back there”, referring to the room in which defendant and deceased were, and she asked Leo Jones to go back and check. Leo Jones then went into the back bedroom and returned stating that defendant had shot Brewer. The witness went into the back bedroom and saw Brewer lying on the bed. Prior to the shooting, defendant and Brewer had exchanged some words.

Pinky Henderson testified that on 4 October 1971, she was at the apartment of Catherine Hendrix at 120 N. Hermitage, Chicago, Illinois, playing cards with Catherine Hendrix, Leo Jones, and Edward Jones. Shortly before 7 P.M., she left the apartment. She returned to the apartment approximately 1 hour later and there were police officers present at that time.

Dr. Jerry Kearns, a pathologist for the Coroner of Cook County, testified that, on 5 October 1971, he conducted a pathological examination on the body of Ezekiel Brewer. The cause of death of Ezekiel Brewer was a bullet wound of the head and brain. There were no powder burns on the deceased, which indicated he had been shot from a distance of beyond 3 feet.

Lorraine Reed, defendant, testified in her own behalf that she had known Ezekiel Brewer for 4 or 5 years. She has a child, the father of whom is Ezekiel Brewer. On 4 October 1971, she had a conversation with Brewer, who asked if he could keep the child until she went back to Kansas and picked up her other children. She agreed to this procedure. Defendant testified that she then went into the back bedroom to lie down. The next thing she remembered was when the police woke her up. At that time Leo Jones was saying that she had said she killed Ezekiel Brewer. She testified that she did not tell Leo Jones that she threw the pistol out the window. Defendant denied ever shooting Ezekiel Brewer.

Leo Jones was called to testify for the defense. He testified that during his lifetime he had seen several instances of unusual or abnormal behavior by defendant. Defendant would go out of the house without shoes or a coat and walk 15 blocks during the winter. She would not pay her bills. Defendant has nine children, one of whom is in a mental institution in the State of Kansas, and a second of whom has recently been in a mental institution.

Defendant made an offer of proof that, if Ruby Bynum were called to testify, she would state that the grandfather of defendant had been placed in a mental institution, where he died. Further, a child of defendant is presently hospitalized in a mental institution in the State of Kansas, and another child of defendant had recently been hospitalized in a mental institution. She had observed defendant throughout her entire life and observed conduct on the part of defendant that was unusual. In her opinion, there were times when defendant did not know the difference between right and wrong.

In rebuttal, Thomas O’Halleran, a Chicago police investigator, testified that on 4 October 1971, he was assigned to investigate the shooting of Ezekiel Brewer. He interviewed defendant that evening for a period of approximately 3 hours, first for a short time at the apartment and then at the police station. During the entire interviw, defendant was coherent and answered all questions in an inteHigent and responsive manner.

Also in rebuttal, Robert Reifman, a psychiatrist, testified that he is the assistant director of the Psychiatric Institute of the Circuit Court of Cook County. On 20 January 1972, he had examined defendant, and in his opinion defendant was legally sane at the time of the alleged offense.

Defendant’s first contention is that the evidence was insufficient to establish her guilt beyond a reasonable doubt. Defendant urges that the evidence did not demonstrate that she killed Ezekiel Brewer wilfully and voluntarily, since the only link to her shooting of the deceased was her own admission that she did it, which admission, however, also involved a statement that it was an accident.

The intent necessary to constitute the act of taking a life as murder may be found in the character of the act itself and in the attendant circumstances. (People v. Spagnola (1970), 123 Ill.App.2d 171, 260 N.E. 2d 20.) In the case at bar, defendant was in the back bedroom when Brewer left the kitchen and entered the room. A short time later, several loud popping sounds were heard by people in the apartment. Leo Jones entered the bedroom and observed Brewer lying on the bed with a bullet wound in his head. Defendant was the only other person in the room and was standing at the foot of the bed. Defendant said to Leo Jones: “I did it.” Brewer died of a gunshot wound to the head, fired from a distance of over 3 feet. This evidence, although circumstantial, was sufficient to establish that defendant voluntarily and wilfully did the acts, the known strongly probable or likely result of which was to destroy another’s life or do great bodily harm to him.

Defendant also argues that the trial court erred in failing to adopt a reasonable hypothesis of innocence consistent with the facts of the case. To warrant a conviction on circumstantial evidence, the facts proved must clearly estabfish the guilt of the accused so as to exclude every reasonable hypothesis of innocence. (People v. Puckett (1972), 6 Ill.App.3d 206, 285 N.E.2d 258.) However, the trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230.

Defendant urges that the evidence presented at trial showed at least two reasonable hypothesis of innocence. First, that defendant accidentally killed the deceased; and second, that the deceased was shot by Pinky Henderson. The State’s evidence presented at trial demonstrated that defendant and deceased had had an irritable discussion over one of defendant’s children whose father was the deceased. Defendant went into the back bedroom. A short time later, the deceased entered the room. Thereafter, popping sounds were heard by several people in the apartment. Leo Jones then went into the bedroom and found the deceased lying on the bed with a bullet wound in the head. Defendant was the only other person in the room and was standing at the foot of the bed. Upon Jones’ entry into the room, defendant said to him: “I did it.” Later she stated to a police officer in the presence of Leo Jones that she had thrown the gun out the window of the apartment. The pathologist testified that the deceased had died of a bullet wound to the head and brain, fired from a distance of over 3 feet. At trial, defendant testified that she was asleep in the back bedroom and was awakened only when the police came in. She denied ever making the statements attributed to her by Leo Jones and denied shooting the deceased. The only testimony as to the accidental nature of the shooting was in a portion of a statement which Leo Jones had given to the police at the police station on the night of the incident in response to a police request that he tell them what had occurred (which statement was used on cross-examination of Leo Jones to impeach the credibility of his trial testimony on his direct examination), and in the testimony of Edward Jones on cross-examination that, when the police had arrived at the apartment, he thought defendant had said it was an accident. But, on further cross-examination of Leo Jones, he insisted that what he had in fact told the police was that defendant kept saying “I did it” when he entered the bedroom. And defendant’s trial testimony that she was asleep and had not shot deceased at all contradicted the testimony of Edward Jones. This conflicting testimony presented a matter of credibility which was for the trial judge to determine. (People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378.) We conclude that defendant’s theory that the killing was an accident was not a reasonable hypothesis based on the credible evidence in this case.

Similarly, defendant’s argument that Pinky Henderson could have shot the deceased before leaving the apartment is not supported by the evidence. Several State’s witnesses testified that Pinky Henderson had left the apartment prior to the popping sounds. Upon hearing the popping sounds, Leo Jones entered the bedroom and found the deceased lying on the bed, and defendant was then the only other person in the room. A review of the entire record leads us to the conclusion that the evidence was sufficient to support defendant’s conviction beyond a reasonable doubt.

Defendant next argues that the trial judge erred in relying upon the testimony of Leo Jones as to the statements of defendant. Defendant urges that oral admissions by an accused are of low evidentiary value and constitute satisfactory evidence only where the testimony of numerous witnesses shows that the oral statements were deliberately made and that there is substantial agreement as to the details of the statements. Defendants cite People v. LaCoco (1950), 406 Ill. 303, 94 N.E.2d 178, in support of their proposition, but we think it questionable whether the case holds “only where” etc.

Be that as it may, the basic contention of defendant in this appeal is that the evidence is wholly circumstantial and that the State has failed to prove beyond a reasonable doubt that defendant shot the deceased “voluntarily and wilfully” or “intentionally”. The trial judge in finding defendant guilty of murder admittedly relied on the testimony of Leo Jones, the brother of defendant, that defendant had said to him “I did it” and had said to a police officer in his presence that she had thrown the gun out the window. Defendant contends that uncorroborated oral confessions or admissions have a low probative value and that an inference of intentional killing from the statement “I did it,” is not a necessary inference and is insufficient to prove the offense of murder beyond a reasonable doubt.

But the oral admissions of defendant in this case are not uncorroborated. There are corroborating circumstances: the prior irritable discussion between the defendant and deceased; the circumstance that Catherine Hendrix was concerned enough about the silence in the back of the apartment to ask Leo Jones to check on it; the circumstance that, when Leo Jones then discovered the shooting, defendant was the only other person in the room and had been the only other person in the back of the apartment from the time when deceased had gone into the back of the apartment; the circumstance that Pinky Henderson had gone out of the kitchen by way of the hallway to the front of the apartment about ten minutes before the “popping noises” had been heard. Hence, the oral admissions, corroborated by the above circumstances, but contradicted by the trial testimony of the defendant, created a credibility issue for the trial judge. People v. Archie (1965), 64 Ill.App.2d 78, 212 N.E.2d 324.

Confessions or admissions made to private citizens are admissible into evidence even where an accused has not been given his rights under Miranda. (People v. Hawkins (1972), 53 Ill.2d 181, 290 N.E.2d 231.) At trial, Leo Jones testified that, immediately upon his entry into the bedroom, defendant said, “I did it.” At this time, no one else was present. This spontaneous statement by defendant was properly admitted into evidence. Later, defendant, while being interviewed by a police officer, stated that she had thrown the gun out the window. This statement, made in Jones’ presence, was the proper subject of testimony by Jones. Defendant did not, at any time prior to or during trial, object to the introduction into evidence of this statement on the ground that it was involuntary. The failure to raise such an objection either at trial or in a requested pre-trial hearing is a waiver of that issue. (People v. McGath (1968), 40 Ill.2d 388, 240 N.E.2d 593.) The State was therefore under no duty to call the police officer present at the time of the questioning.

Defendant also argues that the trial court erred in finding her guilty when the case was entirely circumstantial and no motive was established. The State is not required to prove motive for the commission of the crime charged. (People v. Dore (1930), 339 Ill. 415, 171 N.E. 554.) Where, as in the case at bar, the evidence is sufficient to establish defendant’s guilt beyond a reasonable doubt, the failure of the State to prove a motive for the shooting does not necessitate a reversal of the conviction.

Defendant’s second principal contention is that the trial court erred in admitting into evidence the testimony of Leo Jones as to a statement made by defendant to police under custodial questioning that she had thrown the gun out the window, since that statement was procured in violation of defendant’s fifth amendment right against self-incrimination. Defendant urges that there had been no showing that she had been advised of her right pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, prior to making the statement. A confession or statement to which no such objection is made is properly admitted into evidence without introduction of preliminary proof as to the circumstances under which it was made. (People v. Jackson (1964), 31 Ill.2d 408, 202 N.E.2d 465.) Admissions or confessions may be challenged either by prefiminary hearing on a motion to suppress or by appropriate objection made at trial. (People v. Gaddy (1971), 1 Ill.App.3d 1067, 275 N.E.2d 701.) One who fails to object to the introduction of a statement waives the right to complain on appeal about the admission of the statement into evidence. People v. Sims (1965), 32 Ill.2d 591, 208 N.E.2d 569.

In the case at bar, defendant at trial did not make a pre-trial motion to suppress the statement nor did defendant at any time object to the testimony of Leo Jones regarding the statements made by the defendant on the ground that there had been a failure to give defendant her proper Miranda warnings. Under these circumstances, defendant cannot now for the first time on appeal argue that her statements were improperly admitted into evidence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

STAMOS and DOWNING, JJ., concur.