text:
    Floyd F. Farley, Third-Party Plaintiff-Appellant, v. The Kissell Company, Third-Party Defendant-Appellee.
    (No. 58372;
    First District (5th Division)
    February 22, 1974.

      Stephen B. Cohen and George C. Pontikes, both of Chicago (Foss, Schuman & Drake, of counsel), for appellant.
    John Wood and Chester J. Maciorowski, both of Chicago (Sidley & Austin and Bamberger & Feibleman, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by third party plaintiff from a judgment entered in favor of the third party defendant on an action brought for interference with contractual relations.

The original cause of action was brught by J. Raymond Kunz & Associates, Inc. (Kunz), against James Farley and Floyd Farley (Buyers) for commissions earned as the result of obtaining an interim construction loan from the Walter E. Heller Company (Heller). Buyers thereafter filed a third party action against The Kissell Company (Kissell), a mortgage banking corporation, for interference with contractual relations. With the exception of the third party suit the actions were settled. James Farley withdrew his third party claim against Kissell and Kunz adopted the third party pleadings of the Farleys against Kissell. The trial court found in favor of Kissell and only Floyd Farley has taken an appeal.

On November 12, 1964, the Merchants National Bank and Trust Company of Indianapolis (Merchants), acting as “Trustee” for James Farley and his father, Floyd Farley, entered into a 30-day option contract with Emmanuel and Alta Nell Farley (Sellers), to purchase property located in Marion County, Indiana, for development of an apartment complex (Pine Grove). Because of inter-family disputes Merchants was used as “Trustee" in order to hide Floyd’s identity from that of his brother Emmanuel. Prior to this time, Sellers, who had obtained a permanent loan commitment from Massachusetts Mutual Life Insurance Company (Mass. Mutual) for $2,600,000, were going to develop the property themselves. However, they apparently had difficulty in obtaining the necessary interim financing and, as a result, the November 12 agreement was entered into with Merchants. The closing of the option contract was conditioned, among other things, upon merchantable title in the Sellers and an assignment from the Sellers to the Buyers of the end-loan commitment from Mass. Mutual. In addition, the Sellers were to obtain proper zoning and approval for water and sewer connections.

On December 8, 1964, a new agreement was executed between Merchants and Sellers modifying the original agreement and extending the option indefinitely. It stated, in part, that although up to the date of the modification the end-loan commitment had not been assigned, the parties were to continue to expend their efforts to effect the assignment and, if the parties were unsuccessful, the Sellers would tiren enter into an “association” with the Buyers for a one-quarter interest in the project in order to assure the Buyers of adequate long term financing.

On February 1, 1965, while attempts to obtain an assignment of the end loan apparently continued, James Farley, as agent for Floyd Farley, obtained an interim construction loan commitment through Kunz from Heller in the amount of $1,950,000. Ultimate funding of this commitment was subject, in pertinent part, to the following conditions:

a. The end loan commitment from Mass. Mutual was to be in full force and effect and assigned to Heller;
b. The borrowers were to present documents and certification that counsel for Heller would require; and
c. Heller was to reserve the right to approve the contractors working on the project and that performance or payment bonds with approved surities would be furnished.

The Heller commitment was accepted by the borrowers on February 22, 1965, after payment by them of a $10,000 standby fee.

On March 1, 1965, a further modification of the previous agreements of November 12, 1964, and December 8, 1964, was agreed upon between the Sellers, James Farley as agent, and Merchants. The agreement acknowledged that the Buyers had obtained the aforementioned interim loan commitment and that James Farley was to continue to take the necessary steps for the funding of this commitment and assign the same to Sellers. However, if funding was not begun by March 12, 1965, Sellers would be free to proceed with the Pine Grove project alone.

While negotiations continued between the Sellers and Buyers, the Sellers undertook to obtain their own interim construction financing to develop the property themselves. The record indicates that Sellers, armed with the Mass. Mutual end loan commitment, approached Kissell sometime in the first quarter of 1965 and sought to secure interim financing. In the trial court, James Farley testified that he spoke with Kissell’s employee, David Huncilman, in April, 1965, regarding the proposed loan commitment to Sellers and informed Huncilman that he and third party plaintiff, Floyd Farley, had an interest in the Pine Grove property which Kissell was interfering with. However, James Farley indicated that he never specifically discussed the nature of the arrangements regarding his contract with Sellers, but did show Huncilman the original option contract, the December 8 modification, and the Heller commitment letter.

Huncilman, although not a witness in the trial court, gave deposition testimony in suits filed in the Indiana State and Federal courts (discussed below) in which he stated that Emmanuel Farley approached him early in 1965 in regard to a construction loan and that he in turn informed his superiors. He further stated that James Farley contacted him after the Sellers had executed a loan agreement with Kissell and told him that he had an interest in the Pine Grove property. Huncilman also stated that he never saw the option contract or its modification. In the Indiana State court suit, Huncilman testified that as late as July 1965 he had no knowledge of the existence of any contracts between the Sellers and the Buyers, nor did he have any knowledge of pending negotiations between them. Huncilman did express his knowledge of the existence of a 60-day option contract on a parcel in the Pine Grove Development owned by “Mitchell”, and in his testimony made reference to the Buyers’ option with Sellers which he believed to have expired.

James Dossman, at the time of the transaction, was a branch manager for Kissell and, while not a witness in the trial court, gave deposition testimony in the Indiana Federal court suit stating that he became aware of a dispute between Sellers and Buyers sometime in June 1965 and that James Farley came to KisselTs office on numerous occasions between June and December of 1965 claiming to have an interest in Pine Grove. Dossman felt, however, that the crux of James Farleys complaint revolved around the Mitchell property option. Dossman, moreover, did not see any documents concerning agreements between the Sellers, Buyers and Merchants. A memo in the Kissell files dated May 13, 1965, indicates that Kissell was aware of an option contract between Sellers and Buyers, but that Huncilman, the author of the memo, believed the option was to have lasted only 30 days and had expired by its own terms. Further, it was Dossman s belief that Floyd Farley had not been successful in obtaining interim construction financing or in obtaining the assignment of the end loan from Mass. Mutual.

The aforementioned 60-day option held on the Mitchell property was obtained by Floyd Farley and his wife on April 12, 1965, in an attempt by Floyd Farley to prevent the Sellers from having the clear title necessary to obtain the loan commitment from Kissell. The latter was aware of the option held by Floyd Farley and the closing of the loan with Sellers was delayed as a result. In June, Floyd Farley was informed by Mitchell that the option on the latter’s property had expired and that an extension of time would not be given.

On July 23, 1965, an amended construction loan agreement for $1,950,000 between Sellers and Kissell was closed at the office of the Union Title Company, the original agreement having been executed on April 17, and the Sellers executed a note and mortgage to Kissell. Richard Turley of the Union Title Company stated in deposition testimony that the closing took place on July 23, after the expiration of the Mitchell option and that nothing was paid to Floyd and James Farley despite their claims for some consideration for the release of the Mitchell option. Turley further stated that he was unaware of the existence of any contract between the Sellers and Buyers prior to the closing and only learned of its existence after the closing.

On August 15, 1965, after learning of the Kissell loan, James Farley, as agent, filed a suit in the Superior Court of Marion County, Indiana, for specific performance against Sellers, Kissell and Merchants. This case was subsequently dismissed; however, after its initiation Kissell stopped further disbursements under the July 23 loan agreement.

On January 5, 1966, Kissell filed suit in the United States District Court for the Southern District of Indiana against Sellers, James Farley and two suppliers holding liens against Pine Grove. The complaint sought, in pertinent part, judgment against Sellers on the mortgage note and a foreclosure of the mortgage. James Farley filed a counterclaim alleging substantially identical grounds for relief as those filed by Floyd Farley in the suit here. He also filed a cross-claim against Sellers seeking damages for breach of contract. James Farley’s counterclaim was dismissed with prejudice because of a failure to proceed to trial. This dismissal was affirmed by the Court of Appeals for the Seventh Circuit. 417 F.2d 1180 (7th Cir.).

In the trial court here, Floyd Farley alleged that his- breach of the Kunz contract, if in fact true, was attributable to Kissell’s interference with his contractual rights with Sellers. Moreover, it was alleged that KisseU was aware of the contract between the Sellers and Buyers because Floyd Farley informed employees of Kissell of its existence and, as a result of their loan and the taking of a note and mortgage from Sellers, it became impossible for Floyd Farley to exercise his rights secured under the option and its modifying agreement.

The trial court in its memorandum of decision found that the Sellers had approached Kissell; that Emmanuel Farley wanted to continue the project on his own; that Emmanuel Farley did not intend to assign the Mass. Mutual commitment; and that Mass. Mutual was specifically instructed by Emmanuel Farley not to negotiate with the Buyers. The court, therefore, concluded that Kissell was not in the picture until after the Sellers became aware of Floyd Farley’s involvement with the Buyers which, in part, occasioned Sellers refusal to turn the project over to the Buyers.

The court determined that Kissell did not have knowledge of the contracts prior to signing the April 17 loan agreement, but did have this knowledge prior to July 23.

In its conclusions of law the trial court found, inter alia, that Kissell’s actions were not a proximate cause of the breach of contract between Sellers and Buyers; that the Seller’s refusal to turn the project over was the proximate cause of the breach; that Kissell had no knowledge of the contracts prior to April 17, and that on July 23, Kissell had an equal right with plaintiff to deal with Sellers.

OPINION

Floyd Farley alleges on appeal that the conduct of Kissell was a proximate cause of the breach of contract between Sellers and Buyers. Specifically, he argues that Sellers refused to close the aforementioned contract with Buyers because of the loan commitment obtained from Kissell. In order to establish a prima facie case of interference with contractual relations, the following elements must be established: (1) the existence of a valid contract; (2) knowledge by Kissell of the existence of the contract; (3) inducement by Kissell to the other party to breach his contract; and (4) damages as a result of the inducement. Marcus v. Wilson, 16 Ill.App.3d 724, 306 N.E.2d 554.

Initially, we note the uniqueness of the instant situation inasmuch as the factual setting does not present the “traditional” interference with contract situation. That is to say, this is not a case of one competitor seeking to gain economic advantage at the expense of another competitor, nor does it appear that Kissell’s actions were undertaken with the intention of harming the Buyers.

Second, in light of the findings of the trial court and those of the United States Court of Appeals in Kissell Co. v. Farley, 417 F.2d 1180 (7th Cir. 1969), as well as our own examination of the record, we conclude that the agreement between the Sellers and Buyers of November 12 and its modification of December 8 were valid contracts. Moreover, we note that the March 1, 1965, modification agreement provided among other things that should the Heller commitment not be funded and assigned to them before March 12, 1965, the Sellers would proceed with the project as they saw fit. The Buyers seemingly suggest that the March 1 modification agreement had no effect on the existing contracts between the parties, allegedly because there was a mutual forbearance to abide by that agreement. As to whether this “forbearance" gave renewed vitality to the previous contracts will not be decided here, but suffice it to say that for purposes of this appeal, we will proceed as if the original contracts were valid and in effect at the time of the purported interference.

The question raised by virtue of the above, and essential to the establishment of a prima facie case of interference with contract, is whether the trial court was correct in determining that at the time of the April 17 commitment, Kissell was unaware of the agreement between Sellers and Buyers. The trial court in his memorandum of decision found that there was no such knowledge and, in oral argument before this court, Floyd Farley conceded that Kissell lacked knowledge of any contract prior to April 17. Therefore, it would unduly lengthen this opinion to recite the reasons for the trial court's decision as to this pivotal point and, in the absence of any evidence to contradict this finding, we are constrained to follow the determination rendered below. The controlling principle is stated in Harper, Interference with Contractual Relations, 47 Nw.U.L.Rev. 873, 880, 881 (1953) as follows:

“Since the test of inducing breach of contract requires an intention on the part of the actor to interfere with another’s contractual relations, it is clear that he must know of the existence of the contract with which he interferes or in any event, of facts from which such contract is reasonably to be inferred. A person cannot be held liable for inducing a breach of contract which he neither knew nor had reason to know existed.”

Accordingly, without having knowledge of the existing contracts, we believe Kissell could not be liable for the tort of interference with contract.

On the question of inducement or proximate cause, assuming some knowledge on Kissell’s part, a review of the record indicates that prior to obtaining Kissell’s loan commitment, Sellers displayed a predisposition to avoid the effects of their contract with the Buyers. In the trial below, James Farley’s testimony indicated that the Sellers were not anxious to close with the Buyers. Moreover, at trial, James Farley acknowledged that after learning of Floyd’s participation, Emmanuel changed his mind about selling the property.

In addition, statements made in the complaint in the Indiana State court suit for specific performance brought by James Farley and in James Farleys counterclaim in Kissell’s Federal court suit, indicate that SeHers refused to perform prior to obtaining Kiss ell’s loan commitment. We note also that the testimony of James Farley adduced in the trial court and the exhibits offered therein, indicate that the Buyers could not meet the conditions of the Heller loan commitment for funding insofar as they had not provided construction bids nor had they obtained an assignment of the Mass. Mutual end loan for themselves and ultimately for Heller. Consequently, without the necessary funding, the Buyers were apparently unable to provide the purchase price for the Seller’s land and, therefore, in no position to close the contract. These facts when coupled with the Sellers’ desire to complete the project alone, belies any “inducement” by Kissell for Sellers to breach their contract with the Buyers. As stated in Prosser, Handbook on the Law of Torts (4th ed. 1971), sec. 129:

“In order to be held liable for interference with a contract, the defendant must be shown to have caused the interference. It is not enough that he merely has reaped the advantages of tire broken contract after the contracting party has withdrawn from it of his own motion.”

The Restatement (4 Restatement of Torts, sec. 766 (1939)) takes the position in Comment d that:

“The essential thing is tire purpose to cause the result. If the actor does not have this purpose, his conduct does not subject him to liability under this rule even if it has the unintended effect of deterring the third person from dealing with the other.”

We conclude that the facts as presented herein do not support the proposition that Kissell sought to “induce” a breach between the Sellers and Buyers. See also, Augustine v. Trucco, 124 Ca.2d 229, 268 P.2d 780, 791 (1954), cited by the court below in his memorandum of decision, where it was stated:

“A plaintiff, seeking to hold one liable for unjustifiably inducing another to breach a contract, must allege that the contract would otherwise have been performed, and that it was breached and abandoned by reason of the defendant’s wrongful act and that such act was the moving cause thereof. Unless the act complained of was the proximate cause of the injury, there is no liability.”

Plaintiff’s contentions suggest that while there may have been no overt inducement on Kissell’s part, thé loan commitment from Kissell was damaging to Buyers and this, in itself, they claim was sufficient to impose liability on Kissell. In the absence of any such knowledge of an existing contract on Kissell’s part, we find the position untenable. Harper, Interference with Contractual Relations, 47 Nw.U.L.Rev. 873, 880-882 (1953); Wade v. Culp, 107 Ind. App. 503, 23 N.E.2d 615 (Ind. 1939).

Finally, here, where Kissell is a lender, not a competing purchaser, the reasoning found in Sayre, Inducing Breach of Contract, 36 Harv. L. Rev. 663, 679, 680 (1923), is appropriate:

“And by way of further analysis, one may be said to have a mind bent on appropriating for himself the promised advantages belonging to another when his object in inducing the breach of contract is the same as was that of the plaintiff in the making of the contract. If his mind is bent upon some entirely different object, even though his action incidentally causes the breach, it can hardly be called a ‘wrongful taking’ of another’s property. In other words, where the defendant’s object in causing the breach is foreign to the object entertained by the plaintiff in the making of the contract, it is a case of incidentally causing rather than procuring or inducing a breach of contract, and falls outside of the proper limits of the tort.”

Therefore, in light of the plaintiff’s failure to establish the requisite elements necessary to impose liability upon Kissell, and because we feel the trial court’s decision as to the absence of Kissell’s knowledge and lack of proof necessary to establish causation was correct, we will not review the remaining issues presented for review.

For the reasons stated, the judgment of the trial court is affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.

       417 F.2d at 1184:
      “[T]he agreement between Merchant^ National Bank and Emmanuel and Alta Nell dated November 12, 1964 is a contract to sell the Pine Grove Real Estate and not merely an option to purchase."

       Report of Proceedings
      “A. One was the reluctance of Emmauel to let us talk to Mass. Mutual to negotiate the changing of the commitment, reluctance of various other things.
      Making the land readily available, since there were other parties involved, they all had to be brought together in agreement to sign.
      Also he (Seller) was out shopping the deal around to other companies trying to find somebody to make another interim loan.”

       Report of Proceedings
      “After Emmanuel Farley found out in early February * * * who the principals were, he immediately wanted to stay in the picture and take over our financing that we had set up and caused us not to be able to negotiate personally with Massachusetts Mutual, which was a key part of the contract, to switch the commitment from Emmanual Farley to our group.

       4. That from time to time since the execution of said agreement defendants Farleys have repeatedly advised plaintiff (James Farley) and plaintiff predecessor in interest, defendant Merchants, that they would not perform said agreement, and specifically that they would not convey the above described real estate to defendant Merchants.

       4. Upon securing the financing as described hereinabove (Heller), the Counter-plaintiff made repeated requests to E & A Farley to transfer the mortgage commitment heretofore described from themselves to the Counterplaintiff, so that Counter-plaintiff might exercise the option and avail himself of the financing arrangement described hereinabove. Despite such requests, E & A Farley refused to abide by the Modification Agreement and refused to transfer the mortgage commitment to the Counterplaintiff so that Counterplaintiff was unable to exercise the option described hereinabove and was unable to avail himself of the financing obtained in reliance upon said Modification Agreement.”


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
    Wood Acceptance Co., Plaintiff-Appellee, v. Thedero King, Defendant-Appellant.
    (No. 59115;
    First District (5th Division)
    February 22, 1974.
    Ron Fritsch, of Chicago, for appellant.
    Michael Brown, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, Wood. Acceptance Co., filed this action to recover a judgment for a deficiency allegedly due after the repossession and resale of defendant’s automobile purchased under a retail installment sales contract. Defendant filed an answer and a counterclaim. The answer denies plaintiff’s claim that any money is due and asserts three affirmative defenses based on plaintiff’s alleged violations of the Uniform Commercial Code, the Motor Vehicle Retail Installment Sales Act and the Sale Finance Agency Act. The counterclaim prays for a judgment in the amount double the finance charge set forth in the retail installment contract which is the penalty provided in section 130(a) of the Federal Truth in Lending Act (15 U.S.C.A. Par. 1640(a) (1973).) for failing to make certain disclosures in this type of credit transaction. On plaintiff’s motion, the counterclaim was dismissed for failure to file the claim within one year from the date of the occurrence of the alleged violations as required by the Act. (15 U.S.C.A. par. 1640(e) (1973).) This interlocutory appeal was taken from that order. (Ill. Rev. Stat. 1973, ch. 110A, R.304(a).) Since defendant challenges only the propriety of that order, it is not necessary to further review the facts.

The sole issue for our determination is whether the one year limitation in the Federal Truth in Lending Act bars the filing of the instant counterclaim.

Defendant admits that he did not file within the Act’s one year period, but contends that section 17 of the Limitations Act (Ill. Rev. Stat. 1971, ch. 83, par. 18) permits such filing. It provides:

“A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, and not otherwise: * *

The above section like other analogous statutes of limitation does not supplant fixed limitations expressed in statutes that create the actions. Thus, the non-existent rights at common law to contest the validity of a will within three years of probate, to sue a person or corporation for the wrongful death of another within one year of the death, and to have a judgment create a hen upon the debtor’s real estate without the creditor’s execution for a period of one year, have all been construed as creating the condition precedent that the action be filed within the time prescribed in the statute creating the right. Spaulding v. White, 173 Ill. 127, 50 N.E. 224; Smith v. Toman, 368 Ill. 414, 14 N.E.2d 478; Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N.E. 66.

The rationale generally stated for holding that compliance with fixed limitations within the statute is indispensable to the maintenance of a right thereunder is that the statutes create rights unknown to common law, fixing a time within which the action may be commenced, which element is such an integral part of the enactments that it necessarily is a condition of tire liability itself and not on the remedy alone. A statute of limitations, on the other hand, applies only to the remedy, is procedural in nature and may therefore be waived. The Steamer Harrisburg v. Rickards, 119 U.S. 199, 30 L.Ed. 358, 7 S.Ct. 140; Wilson v. Tromly, 336 Ill.App. 403, 84 N.E.2d 177, aff'd 404 Ill. 307, 89 N.E.2d 22; Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N.E. 66; 34 Am.Jur., Limitations, par. 7 (1941).

In Helle v. Brush, 53 Ill.2d 405, 292 N.E.2d 372, the court cautions against a boilerplate application of the rationale that demands strict comphance with aE prerequisites of the statutory created actions before permitting a person to assert any rights thereunder. The issue there was whether defendant’s timely counterclaim, arising out of the same occurrence as the underlying suit, could be filed against a public entity under the provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1967, ch. 85, par. 8—102) where there had been a failure to comply with the notice requirements of the Act. The court found that the purpose of section 17 of the Limitations Act to be one of fundamental fairness as well as a desire to grant defendant his complete day in court and that such purposes when balanced against the rationale for the notice section of the Tort Immunity Act far outweighed the latter thereby furnishing compeEing logic for permitting defendant to assert his counterclaim. The decision expecitly rejects as broad and imprecise the classification of section 8—102 as a condition precedent to the assertion of the right.

This same practical test may be utilized in the instant case. Although our research into the congressional hearings on the enactment of the Federal Truth in Lending BEl fails to disclose the purpose behind the one year filing period, we note that the Act is intended to safeguard the consumer in connection with the utilization of credit and the enforcement of the Act is accompEshed largely through the institution of civfi actions. For this reason, no provision was made for investigative or enforcement machinery at tire federal level on the assumption that the civE penalty section would secure substantial comphance with the Act. The placement of such responsibEity on the often unknowledgeable consumer lends support for the conclusion that the penalty sought to be imposed on violators of this Act should not be circumvented where the debtor’s obligation is not stale and is raised by way of a section 17 counterclaim arising out of the same occurrence. We conclude that the one year limitation in which to bring the federal right is not such an integral part of. the Federal Truth in Lending Act as to outweigh the combined purposes of that Act and section 17 of the Limitations Act. Support for our holding is found in a recent New York decision where, under the interpretation of a New York statute substantially similar to our section 17 of the Limitations Act, the court allowed defendant’s untimely counterclaim alleging violations of the Federal Truth in Lending Act although the one year period had expired. (First National City Bank v. Drake, CCH (1969-1973 Transfer Binder) Consumer Credit f 98,939 at 88,652.) We are therefore granting defendant his day in court.

Accordingly, the judgment of the circuit court dismissing defendant’s counterclaim is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

SULLIVAN, P. J., and DRUCKER, J., concur.

       Laws of 1939, p. 4., as amended Ill. Rev. Stat. 1973, ch. 3, par. 90:
      The time to contest the validity of the will has been reduced to six months from the admission of the will to probate.

       Laws of 1935, p. 916., as amended Ill. Rev. Stat. 1973, ch. 70, par. 2:
      The period in which to file suit has been extended to two years.

       Laws of 1825, p. 151., as amended Ill. Rev. Stat. 1973, ch. 77, par. 1:
      The grace period of one year for execution was omitted in the amendatory Act of 1925.

       W. Proxmire, Report on Truth in Lending Act, H. R. Rep. No. 392, 90th Cong., 1st Sess., (1967).


author: Opinion by Mr. JUSTICE DRUCKER.

text:
    Samuel Bailey, Plaintiff-Appellee, v. Addie Lee Bailey, Defendant-Appellant.
    (No. 58814;
    First District (5th Division)
    February 22, 1974.
   Opinion by Mr. JUSTICE DRUCKER.

Charlotte Adelman, of Chicago, for appellant.

No appearance for appellee.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Morgan, Defendant-Appellant.
    (No. 59030;
    First District (1st Division)
    February 25, 1974.
    HALLETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Lebert D. Bastianoni and Bernard L. Schwartz, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond L. Bannister, Defendant-Appellant.
    (No. 57091;
    First District (2nd Division)
    February 26, 1974.
    John J. Cassidy, Jr., of Chicago (Richard H. Sanders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On 22 July 1966, in two-count Indictment No. 66-2271, petitioner-appellant Bannister (hereafter petitioner) was indicted for the crimes of rape and burglary; both offenses arose out of the same occurrence. On 7 September 1966, the Public Defender was appointed as trial counsel for petitioner. Petitioner pleaded not guilty to each count and the cause was assigned for trial to be had on 11 October 1966. When the case was called for trial on that date, petitioner’s counsel requested and was granted a short recess in order to confer with petitioner. Their discussion resulted in petitioner’s authorizing his counsel to seek a plea conference with the prosecutor and the trial judge. Counsel did so in the manner and with the result discussed more fully hereafter. When the court reconvened, petitioner wished to withdraw his pleas of not guilty and enter pleas of guilty. After admonishing petitioner as to the consequences of a guilty plea to each count in respect of the waiver of a jury trial and of the potential sentence involved and after determining that the guilty pleas were voluntary, the corut accepted the pleas, entered findings and judgments of guilty, and sentenced petitioner to not less than 1 year nor more than 10 years on each count, the sentences to run concurrently. No appeal was taken.

On 7 April 1970, petitioner filed a post-conviction petition pro se containing 16 paragraphs, each alleging a violation of constitutional rights. The post-conviction judge (who had also been the trial judge) appointed counsel other than the Public Defender to represent petitioner in the post-conviction proceedings, and, on 14 January 1971, an amended petition supported by petitioner’s affidavit was filed pursuant to leave. The amended petition abandoned all of the violations previously alleged, and alleged instead simply that petitioner’s pleas of guilty were involuntary in that they had been made in reliance on the representation of his trial counsel that said trial counsel had negotiated an agreement with the trial judge for concurrent sentences of 1 to 5 years in return for the pleas of guilty, whereas he had then received concurrent sentences of 1 to 10 years. On 4 February 1971, the State moved to dismiss petitioner’s amended petition without an evidentiary hearing. On 2 March 1971, the State’s motion was denied, and the trial judge then granted petitioner’s request for an evidentiary hearing. On 22 April 1971, on petitioner’s motion, the cause was transferred for the evidentiary hearing to another judge because of the possibility that the original trial judge might be called as a witness at the evidentiary hearing. On the same day, petitioner’s post-conviction counsel, who had by then talked to petitioners trial counsel at least once, filed a memorandum of law which argued for the first time that, if the trial judge had “participated” in the plea negotiation, petitioner was entitled to post-conviction relief (presumably in the form of setting aside the finding and judgment of guilty and the sentence, and affording petitioner the opportunity to re-plead).

On 6 May 1971, the evidentiary hearing was had. Petitioner testified in essence that, during the recess on the morning of his trial, his trial counsel had told him that he (counsel) did not think he could win the case; that the State was asking for concurrent sentences of 20 to 40 years; that, if petitioner persisted in his pleas of not guilty, there was not too much counsel could do for him; that the best thing petitioner could do for himself would be to authorize counsel to ask the trial judge for short concurrent sentences, such as 1 to 5 years if possible, but that that would involve pleading guilty and seeking the mercy of the court; that petitioner so authorized counsel; that counsel returned and said that he had talked to the judge in chambers and had reminded him of petitioner’s youth and of the absence of any violence in petitioner’s past record, and that the judge had agreed to concurrent sentences of 1 to 5 years if petitioner entered pleas of guilty and sought the mercy of the court; that petitioner thereupon agreed, not because he was guilty but because he had no other way out; that counsel then instructed petitioner to say “yes, sir” to whatever questions he might be asked in open court; that petitioner knew something was wrong when he received concurrent sentences of 1 to 10 years, but that petitioner had been afraid to say anything; that petitioner never talked to trial counsel again.

The principal witness for the State was petitioner’s trial counsel. He testified that he had been an assistant public defender for 4 years, beginning in 1964; that he had been assigned to this particular trial judge’s court for about 6 months, and was familiar with the judge’s consistent practice in plea negotiations initiated at the last moment on the day of trial; that he may have conferred with petitioner 2 or 3 times before the trial date; that he had conferred with petitioner again during a recess on the day of trial, and had volunteered to go to see the trial judge about a reduced sentence for petitioner, should petitioner plead guilty; that the State was proposing to recommend a sentence of 20 to 40 years on the rape charge, should petitioner be found guilty after a trial; that, when petitioner authorized him to do so, he had followed his usual practice of informing the Assistant State’s Attorney that he was about to seek a conference with the trial judge; that the trial judge followed his usual practice when plea negotiations were sought at the last minute on the day of trial; that the said trial judge’s usual practice was to meet in chambers with the prosecutor and the defense counsel where the judge examined the prosecutor’s “prep sheet” or the police report summarizing the evidence against a defendant and listened to the State’s recommended sentence; that after having listened to matters in aggravation and mitigation and defense counsel’s sentence recommendation, the judge would then make his own independent proposal as to sentence, should defendant plead guilty; that the judge’s proposal was the result of his own independent determination based on the evidence disclosed to him, and might exceed the State’s recommendation or be less than defense counsel’s recommendation or some sentence in between the competing recommendations of the prosecutor and defense counsel; that, in the instant case, the State’s recommendation had been 7 to 25 years, and his recommendation had been 1 to 5 years and the independent determination of the trial judge had been 1 to 10 years; that he then presented the judge’s proposed sentence to petitioner for his decision whether to accept or refuse it; that petitioner had accepted it; that, if a different sentence were then given in the courtroom from what he had told petitioner the sentence would be, he would give up his license rather fhan let a travesty of justice like that occur.

At the conclusion of the foregoing testimony by petitioner’s trial counsel, the State rested. Briefs were submitted and, on 1 June 1971, after oral argument, petitioner’s post-conviction petition was dismissed. Petitioner’s counsel then sought and obtained leave to amend the post-conviction petition to include the facts as to the trial judge’s participation in the plea conference, as contained in the testimony of petitioner’s trial counsel at the evidentiary hearing just concluded, so that the petition would support (or, as petitioner claimed, would more adequately support) the legal contention as to improper participation made in the memorandum of law which had been filed 2 weeks before the hearing, and then had been reintroduced and argued at the hearing.

The Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122—5) in conjunction with the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 46(3)) permits such amendments. The assistant State’s Attorney specifically stated that he had no objection to the requested amendment. On this appeal, however, the State contends that the amendment came too late and that the issue of improper participation by the trial judge in the plea conference had therefore been waived by petitioner. We hold that it was not.

Petitioner first contends that the dismissal of his post-conviction petition was erroneous in that the evidence adduced at the evidentiary hearing established that petitioner’s pleas of guilty had been induced by the representation of his trial counsel that the Mai judge had agreed to impose a lesser sentence than petitioner received. Petitioner does not contend that the evidence established that the Mai judge had in fact so agreed. At a post-conviction hearing, whether to believe testimony, wholly or partially or not at all, is for the trial judge who hears and sees the witnesses. Unless it appears that his determination was manifestly erroneous, it will not be disturbed upon review. (People v. Logue (1970), 45 Ill.2d 170, 258 N.E.2d 323; People v. Alden (1959), 15 Ill.2d 498, 155 N.E.2d 617.) We cannot say from our examination of the record that the decision of the post-conviction judge as to what Mai counsel’s report as to what the trial judge’s recommendation had in fact been was manifestly erroneous.

The sole remaining issue on appeal is whether the participation by the trial judge in the plea conference, in the manner and to the extent disclosed in the testimony of petitioners trial counsel at the evidentiary hearing, was improper in that such participation, made known to petitioner through his trial counsel, could not fail to exert such pressure on petitioner to accept the trial judge’s proposed sentence as to coerce petitioner into pleading guilty. The fact that the plea bargain was faithfully executed is irrelevant to the factor of its inherently coercive nature. Bluntly put, petitioner’s contention is that, in respect of the trial judge’s involvement in plea negotiations, the method of plea negotiation approved in the American Bar Association’s minimum standards relating to pleas of guilty (3.3(b)) is the sole acceptable method, and that the method of plea negotiation followed in the instant case involves the participation of the trial judge to an inherently coercive degree.

The crucial difference in the two negotiating procedures is the time sequence of the decisions of petitioner and of the trial judge. In the acceptable procedure, petitioner makes his decision before the trial judge makes his; hence, no influence is being exerted on petitioner by the trial judge at the time petitioner is making his decision. On the other hand, in the procedure in the instant case, the trial judge made his decision before petitioner made his, and that sequence created an inherent coercion on petitioner in making his decision. The inherent coercion consists of this: since the participating judge is the trial judge, petitioner fears what will happen to him sentence:wise, should he refuse the judge’s own recommendation and persist in being tried on his plea of not guilty, whether by jury or in a bench trial.

Petitioner, however, confuses two apprehensions: (1) Should petitioner persist in being tried on his plea of not guilty, he must necessarily expect the potential of a more severe sentence than the sentence independently recommended by the trial judge, because the recommended sentence was in consideration of his plea of guilty and, should petitioner persist in his plea of not guilty, the consideration for the recommended sentence has failed; were a more severe sentence not potentially involved, the so-called plea bargain would be illusory, because petitioner would have received no consideration for the entry of his plea of guilty. Moreover, were there to be no potential of a more severe sentence, every criminal defendant could always request a plea conference on the day of trial for the sole purpose of learning the worst that could happen to him on trial and conviction, since the trial judge would then be estopped from imposing a more severe sentence. (2) The potentially more severe sentence would be magnified by a punitive attitude on the part of the trial judge caused by exasperation or injured vanity. Only the second apprehension can conceivably be regarded as unduly coercing the plea of guilty so as to destroy its voluntariness.

We think it clear that, in order to sustain petitioners contention, there need be no showing that a more severe sentence was in fact the result, at least in part, of a punitive attitude on the part of the trial judge. It is not the fact which is alleged to be coercing petitioner at the time he makes his decision; it is his fear of the potential fact. On the other hand, we cannot accept petitioner’s contention that such fear to a coercive degree is inherent in the mere sequence of the decisions, so that such coercive fear would inevitably exist in every case. We think there is a middle ground, namely, that petitioner show that he had some reasonable basis for such coercive fear in any given case. (For an analogous holding in relation to the fact of an allegedly punitive sentence, see People v. Busch (1973), 15 Ill.App.3d 905, 305 N.E.2d 372, in which defendant contended that a sentence of 10 to 20 years which he received after a full revocation-of-probation hearing was in punishment for his rejection of the trial judge’s offer (made after a conference between defense counsel, prosecutor, and the judge, held at defendant’s request) of a sentence of 5 to 10 years if defendant would stipulate to the facts, so that no full hearing would be necessary. This court held that defendant’s contention that the sentence was punitive must be established by evidence; that there was no such evidence in the record; and that the mere disparity between the sentences did not support an inference of punishment. )

We have not been cited to any Illinois case directly on point and we are not persuaded by petitioner’s cases from other jurisdictions, because those cases are sufficiently distinguishable on their facts to render them inapplicable to the case at bar. Moreover, we note that the method of plea negotiation used in the instant case was used in 1966. The American Bar Association’s minimum standards relating to pleas of guilty were approved in 1968. Our Supreme Court Rule 402 became effective in 1970. Neither the minimum standards nor Supreme Court Rule 402(d) adverts to the type of negotiation procedure used in the instant case, nor does either provide that the type of negotiation procedure to which it does advert (namely, the procedure in which the parties reach a prior agreement between themselves and only then approach the trial judge) is the only acceptable procedure.

We are of the opinion that under the facts of this case, petitioner has shown no reasonable basis for any coercive fear that he would receive a more severe sentence as a result of a punitive attitude on the part of the trial judge, such as to destroy the voluntariness of his guilty plea. Here, the plea negotiations were initiated, not by the trial judge, but by petitioners counsel with petitioner’s consent. Further, the plea agreement herein involved was not a bi-partite agreement between the trial judge and defense counsel, thereafter accepted by petitioner. Rather the agreement was a tri-partite agreement between defense counsel and the prosecutor and. the trial judge thereafter accepted by petitioner and by the State. Neither are there any indications that the agreement was not fairly arrived at. The record demonstrates that the State’s Attorney and defense counsel did the actual bargaining in presenting the competing sentence proposals and the bases for them, and that the trial judge, after having heard both sides, merely independently determined tire sentence he would offer petitioner in exchange for a guilty plea. We think that the very fact that the trial judge meticulously guarded his independence of both the State and the defense in balancing their competing recommendations, makes it unreasonable to suspect that he would yield to vanity or exasperation.

Moreover, we note that the practicalities of the situation (namely, on the very day of trial, defense counsel and the prosecutor first indicate a desire to bargain) weigh heavily in favor of the utility and reasonableness of the negotiation procedure used in this case. One can hardly expect the opposing counsels immediately to arrive at a joint recommendation to present to the trial judge without an undue delay in the trial. To postpone the trial until a time when (if at all) a joint agreement is reached by opposing counsels would be unduly disruptive of the judicial process.

Where petitioner has no reasonable basis to fear that his rejection of the trial judge’s independent recommendation will result in a punitive sentence arrived at by a vindictive judge, we see nothing improper in the negotiation procedure used in this case in 1966. There is a fundamental difference between a trial judge’s initiation of the negotiations and his initiation of the sentence recommendation after having been informed of the competing recommendations of the parties and of the bases therefor (namely, the prosecutor’s evidence and the matters in aggravation and mitigation).

For the foregoing reasons, we affirm the dismissal of petitioner’s post-conviction petition after the evidentiary hearing thereon.

Affirmed.

STAMOS and LEIGHTON, JJ, concur.

       Under Ill. Rev. Stat. (1965), the penalties for rape and for burglary were the same: any indeterminate sentence with a minimum of not less than 1 year.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Benjamin Marshall, Petitioner-Appellant.
    (No. 58618;
    First District (2nd Division)
    February 26, 1974.
    DOWNING, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Reaford Johnson, Defendant-Appellant.
    (No. 58662;
    First District (2nd Division)
    February 26, 1974.
    HAYES, P. J., took no part.
    James J. Doherty, Public Defender, of Chicago (Alan David Eckstein, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Roper Corporation, Plaintiff-Appellee, v. Spizzirri Graphics, Inc. et al., Defendants-Appellants.
    (No. 57391;
    First District (4th Division)
    February 27, 1974.
    Merrill B. Meyer and Charles L. Wolberg, both of Chicago (Rappaport, Clorfene and Rappaport, of counsel), for appellants.
    Amstein, Gluck, Weitzenfield & Minow, of Chicago (Louis A. Lehr, Jr., and Eugene J. Kelley, Jr., of counsel), for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Plaintiff, Roper Corporation, manufactured ranges. Defendant, Peter Spizzirri, individually and ultimately Spizzirri Graphics, Inc. (hereinafter defendant), sold to plaintiff various owners’ manuals, inserts and other printed materials supplied with these ranges, as well as “tooling” (e.g. printing plates and the like) used in the production of the printed items. The other defendants in the original replevin suit are not involved in this appeal.

Following purchases defendant supplied plaintiff with reports in which defendant itemized what printed materials it was holding in an “inventory” paid for by the plaintiff. Defendant represented that it was holding for plaintiff almost 600,000 units of printing materials and tooling at a total cost of almost $90,000. A misunderstanding developed between the plaintiff and defendant and in June 1970 plaintiff advised defendant that it (plaintiff) considered another source for some of its work. Defendant indicated to plaintiff that it would not ship to plaintiff the items which plaintiff claimed were paid for by the plaintiff.

On July 2, 1970, plaintiff instituted replevin action. The sheriff’s return shows service on Peter Spizzirri. There is no return of the sheriff in the record that the described property was ever replevined, or delivered, or receipted for by the plaintiff. The replevin action was tried before the trial court on the issue of ownership of the property involved. The court entered an order finding in favor of plaintiff and entered judgment for possession of all items named and taken in this action including without limitation all printed materials and printing plates and for preliminary work.

The defendant describes the issue presented for review to be whether the procedure by which the property was seized conformed to law and whether as a question of fact, plaintiff had a right to the property. At no time prior to trial did defendant raise any question regarding the sheriff’s return or the validity of this action. Defendant filed an answer pertaining to the question of the items involved in this appeal.

At the trial defendant’s attorney asked the court to determine who owned the property taken. At no time did the defendant question the sufficiency of plaintiff’s evidence or the validity of the action here involved. At the conclusion of the trial, defendant’s attorney asked the court to make a finding for defendant, as to the items identified during trial. In his post-trial motion, defendant merely requested a new trial, thus conceding the validity of the plaintiff’s action. Thus, defendant waived any possible objection regarding the validity of plaintiffs action.

In Isham v. Cudlip, 33 Ill.App.2d 254, 265, 179 N.E.2d 25, the court said, “The defendants filed no motion to dismiss the amended complaint and took no other steps in the trial court to question the propriety of replevin as an appropriate remedy for the plaintiff * * *.” Later, in its opinion, the court said further, “Haying raised no objection to the amended complaint by motion, the defendants have waived any alleged defect herein, not objected to in the trial court. The defendants cannot try the case. on. one theory in the trial court and then, for the first,time, try it on a different theory and with a different approach on appeal: Humphrey v. Terry (1955), 6 Ill.App.2d 42, 126 N.E.2d 507 * *

Since the determination of this case in the trial court, defendant in his brief calls our attention to a decision of the Supreme Court of the United States, Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983, holding a replevin statute similar to the Illinois Replevin Statute unconstitutional. Counsel for defendant also argued before this court that the Illinois Replevin Statute was unconstitutional. The decision in Fuentes nor the constitutionality of the Illinois Replevin Act is an issue in this appeal. Prior to the filing of its brief in this court, defendant has not raised a constitutional question. It has been held that under such circumstances a constitutional question is not preserved for reviéw.

In Flannery v. Allyn, 75 Ill.App.2d 365, 221 N.E.2d 89, after a judgment had been entered against defendant in a libel action, he sought to raise certain constitutional grounds of defense announced in New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710. In affirming the judgment below, and after reviewing numerous authorities, the court stated, at page 378:

“The general rule that questions not presented in the trial court will not be considered on appeal applies to constitutional questions. Accordingly, the question of the constitutionality or validity of a statute, or the question of the constitutionality or validity of a municipal ordinance, or rule of the court, will not be considered by the reviewing court where the question was not raised in the trial court.”

In Mofonnier, Inc. v. Industrial Commission, 41 Ill.2d 128, 242 N.E.2d 184, the Illinois Supreme Court said, at page 135:

“* * * there is such a wealth of authority as to require no citation that a constitutional question cannot be presented in this court unless it was raised with sufficient specificity in the circuit court for that court to make a constitutional determination.”

In City of Chicago v. Birnbaum, 49 Ill.2d 250, 274 N.E.2d 22, when defendant endeavored to contend for the first time on appeal that the city’s demolition ordinance was unconstitutional the court said, at page 252:

“This court will not pass upon a statute unless its validity is necessarily involved in the case and a decision of the question is material to the determination of the issue raised. [Citations.] The validity of the statute itself was not challenged in the complaint, raised in the answer, passed upon by the court, nor raised in the post-trial motion, and can not be questioned for the first time on appeal. [Citations.]
Under the circumstances of this case, we hold that no constitutional question is presented to this court * *

Even assuming, arguendo, that a constitutional question had been raised and preserved for review, the fact remains that this action was tried by agreement, decided prior to the Fuentes decision and, hence, may not be retrospectively affected by that decision or its possible ultimate application to part of the Illinois Replevin Act.

For the reasons stated above, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    William G. Ford et al., Plaintiffs-Appellants, v. Continental Illinois National Bank and Trust Company, as Trustee, et al., DefendantsAppellees.
    (No. 57448;
    First District (4th Division)
    February 27, 1974.

      Burke and Burke, of Chicago (John M. Newell, of counsel), for appellants.
    William J. Harte, of Chicago, for appellee Howard Carroll.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

This action was brought to recover damages for injuries sustained by plaintiffs on November 23, 1963, as the result of the alleged negligence of a number of defendants. The Carroll Chemical Company was one of the defendants named in the original complaint, filed November 17, 1964. On June 27, 1967, Howard Carroll, an officer of the Carroll Chemical Company, was added as a defendant in his individual capacity. Service was purportedly effected upon Howard Carroll on July 8,1967. A default judgment was entered against Howard Carroll in the amount of $88,000 for plaintiff Ford and $7500 for plaintiff Cortez on February 4, 1970. There was no execution on the judgment.

On March 23, 1971, Howard Carroll filed a motion before Honorable Wilbert F. Crowley for leave to file a special and limited appearance to contest jurisdiction over his person and to vacate the default judgment entered against him. The motion alleged that Howard Carroll had never been personally served with summons. After hearing evidence on the motion, the trial court entered an order on February 15, 1972, granting Howard Carroll’s motion to quash service of summons and vacating the judgment entered against him. The court further ordered that there was no just reason for delaying the enforcement and appeal of its order.

Plaintiffs have taken this appeal from the trial court’s orders which quashed the service of summons and vacated the prior judgment against Howard Carroll. They present the following issues for our review:

1. Whether a sheriff’s return of summons can be set aside on the uncorroborated testimony of the defendant challenging said service;
2. Whether the defendant, Howard Carroll, participated in this suit, thereby waiving any defect in the service of summons;
3. Whether the defendant, Howard Carroll, failed to object to the jurisdiction of the court in a timely manner, thereby waiving any defect in the service of summons.

An additional issue, raised by the defendant, is. whether the order of the trial court from which plaintiffs appeal is an interlocutory order and, therefore, not appealable.

The facts pertaining on review are as follows: The complaint in this case was initially filed on November 17, 1964, against the Continental Illinois Bank and Trust Company, as Trustee, and the Carroll Chemical Company. It charged that the plaintiffs, both employees of the Carroll Chemical Company, were injured on November 23, 1983, while “lawfully plying their trade” as a proximate result of the negligence of the .defendants. On March 30, 1966, plaintiffs noticed Ira Carroll and Howard Carroll, as “president and secretary of defendant company, Carroll Chemical Co.,” for deposition. Howard Can-oil gave his deposition pursuant to subpoena on March 9, 1967. He was represented by attorney David Goodman.

Plaintiffs obtained leave of court on June 27, 1967, to file their second amended complaint. This complaint repeated in substance the allegations made in the original complaint and, in addition, named Ira Carroll and Howard Carroll, “individually and d/b/a Carroll Chemical Co.,” as defendants with summons to issue. The summons was returned on July 8, 1967, as having been personally served upon Howard Carroll; the address listed for Howard Carroll on the summons was 6241 North Rockwell, Chicago, Illinois. The return of summons further indicated that Ira Carroll could not be located.

On January 3, 1968, a notice for the deposition of Howard Carroll was directed to attorney David Goodman. Pursuant to this notice, Howard Carroll appeared and gave his deposition on March 6, 1968.

Plaintiffs’ cause of action was dismissed for want of prosecution on January 21, 1970. On January 22, 1970, plaintiffs filed a notice of motion to vacate the order of dismissal; and the court entered an order reinstating the case on the same day. No notice of the motion to vacate the order of dismissal was given to the defendant, Howard Carroll, or his attorney.

The case reached trial on February 4, 1970. Ira Carroll was dismissed by the court because he had not been served with summons. Howard Carroll did not appear. A jury verdict was entered against Howard Carroll on the prove-up in the amount of $88,000 for plaintiff Ford and $7500 for plaintiff Cortez. The trial court entered judgment on the verdict in the amount of $95,500 plus costs. There was no execution on the judgment.

On March 23, 1971, Howard Carroll was granted leave to file a special and limited appearance to contest jurisdiction over his person. The special and limited appearance was accompanied by a motion to vacate the judgment entered against him on the ground that Howard Carroll had never been served with summons. At a hearing on the motion held before Judge Crowley on February 15, 1972, testimony was taken from Howard Carroll and David Goodman. Howard Carroll testified that, at the time he was purportedly served with summons, he resided at 6241 North Rockwell in Chicago, Illinois, with his mother and that his mother was on vacation in California from June 29, 1967, until July 15, 1967. Carroll testified further that he graduated from law school in the spring of 1967 and attended the Hardy Bar Review course during the summer of 1967. On July 8, 1967, Carroll stated that he studied at the Northwestern University library for the bar examination and that he was away from his residence from 8 A.M. until 10 P.M. At no time, according to Carroll, was he served with summons on July 8, 1967, or on any other date.

David Goodman testified that he was retained by Carroll Chemical Company in 1963 to represent it concerning the occurrence of November 23, 1963. He stated that he represented Howard Carroll in his capacity as an officer of the corporation at two depositions taken in connection with this lawsuit: according to Goodman, it was his understanding that the first deposition of Carroll was pursuant to subpoena and the second deposition was a continuation of the first. Goodman further testified that he received no notice of an amendment to the complaint naming Howard Carroll individually as a defendant; that he had no knowledge at the time the depositions were taken that there had been a pui-ported Service upon Howard Carroll in his individual capacity; that he never filed a petition for Howard Carroll individually in that case; and, that he never voluntarily submitted Howard Carroll to the jurisdiction of the court.

At the conclusion of the hearing, the trial court granted Howard Carroll’s motion to quash service of summons and to vacate the judgment entered against him. The court further found that there was no just reason for delaying the enforcement and appeal of its order. A notice of appeal was timely filed by plaintiffs-appellants.

Défendant, in his brief, argues that the order of the trial court vacating the judgment against him on the ground that he was not served with summons is an interlocutory order and, therefore, is not appealable. He contends that the order entered in this case is not a final judgment because it does not terminate the litigation between the parties on the merits. Carroll further contends that the trial court’s order is not an interlocutory order from which an appeal may be taken as of right pursuant to Supreme Court Rule 307. Ill. Rev. Stat. 1971, ch. 110A, par. 307.

Supreme Court Rule 304(a) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” Ill. Rev. Stat. 1971, ch. 110A, par. 304(a).

We find that the order entered by the trial court complies with the requirements of Supreme Court Rule 304. The court made an express written finding that there was no just reason for delaying appeal. The order did not reinstate the cause on the trial calendar nor did it require Carroll to answer the allegations made in plaintiffs’ complaint. In view of the above, we hold that this matter is properly before us on appeal.

We turn now to the issues presented for review by the plaintiffs. Their first argument is that service of summons should not have been quashed because a sheriff’s return of summons is presumed valid. The defendant counters that he has overcome the presumption in favor of the validity of service and verity of the return by clear and convincing evidence.

In Illinois the sheriff’s return is prima facie proof of service and can be overcome only by clear and convincing proof. (Marnik v. Cusack (1925), 317 Ill. 362, 364, 148 N.E. 42, 43; Isaacs v. The Shoreland Hotel (1963), 40 Ill.App.2d 108, 110, 188 N.E.2d 776, 778.) Thus, the question to be resolved here is whether the trial court’s decision that no service was had upon the defendant is supported by clear and convincing evidence in the record.

The sheriff’s return indicates that Carroll was served personally with summons on July 8, 1967. However, Carroll denied that he was served at any time. According to Carroll, his mother was in California and he was away from his residence from 8 A.M. until 10 P.M. on July 8, 1967. On cross-examination he was asked how he could be certain of his whereabouts on that day, and Carroll responded that he was at the Northwestern University library studying for the Bar examination on the day in question. Attorney David Goodman also testified in support of Carroll’s contention that he had never been served with summons in his individual capacity. Goodman stated that he represented Carroll at two depositions in this case: the first deposition was pursuant to subpoena, and Goodman testified that he understood that the second deposition was a continuation of the first. According to Goodman, he had no knowledge of a purported service upon Carroll individually and he never voluntarily submitted Carroll to the jurisdiction of the court.

After a careful review of the record presented to us, we hold that there was sufficient evidence in it to rebut the presumption of validity. Carroll testified that he was not served. The plaintiffs were given an opportunity to cross-examine him at the hearing, but they were unable to impeach or discredit his testimony. The testimony of attorney David Goodman lends further credence to Carroll’s statement that he was not served. Moreover, the experienced and distinguished trial judge heard the evidence and determined that the defendant had overcome the presumption in favor of the validity of the sheriff’s return. Since it is his proper function to judge the credibility of the witnesses, we will not substitute ourselves for the trial judge in determining this issue. Abron v. Public Pontiac, Inc. (1965), 64 Ill.App.2d 73, 77, 212 N.E.2d 326, 328.

The next contention argued by plaintiffs is that, even if Howard Carroll was not properly served, he waived any defect in the service of summons by his participation in the lawsuit. In support of this position, plaintiffs rely upon Greer v. Ludwick (1968), 100 Ill.App.2d 27, 241 N.E.2d 4, and Widicus v. South-Western Electric Cooperative, Inc. (1960), 26 Ill.App.2d 102, 167 N.E.2d 799. In these two cases the following standard was applied to determine that a party had entered an appearance:

“Any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was solely to object to the jurisdiction.”

In Greer, the defendants took action by sending letters to the court denying certain allegations in the complaint. In Widicus, the defendant took action by participating in a trial on the question of damages after a default judgment against him had been vacated. Here, no comparable action was taken by Howard Carroll.

We are unable to find that Howard Carroll participated sufficiently in the lawsuit to waive service of summons and give the trial court personal jurisdiction over him without service of summons. Plaintiffs urge that we find that Carroll participated in view of the fact that Goodman received notice of numerous motions; however, these notices of motions were sent to Goodman as an attorney representing Carroll Chemical Company and cannot be made applicable to one of the officers of the corporation to bind him individually. Neither did the depositions given by Carroll constitute an appearance in his individual capacity. It is undisputed that the first deposition was prior to the filing of the amended complaint and was pursuant to subpoena. With regard to the second deposition, Goodman testified that he considered it a continuation of the first deposition. Moreover, the Supreme Court Rules expressly provide for noticing an officer of a defendant corporation for deposition. (Ill. Rev. Stat. 1971, ch. 110A, sec. 204(a)(3).) Consequently, an appearance at a deposition by an officer of a corporation pursuant to notice is not inconsistent with a claim that the officer did not appear in his individual capacity. We hold that appearing at a deposition in response to a subpoena is not sufficient participation in a lawsuit to give the court jurisdiction of a party.

Finally, plaintiffs contend that the defendant failed to object to the jurisdiction of the court in a timely manner and, therefore, waived any defect in the service of summons. They quote the following rule of law from Athens v. Ernst (1950), 342 Ill.App. 357, 363, 96 N.E.2d 643, 645:

“Formal defects and irregularities in process or the service thereof must be taken advantage of at the first opportunity, and before any step in the cause is taken; otherwise they will be held to be waived.”

In Athens, defendant’s attorney filed a general appearance and filed a stipulation to extend time to answer or otherwise plead after the' purported service of summons. Seven months thereafter, she asked leave to withdraw her general appearance so as to attack the service, and this inactivity gave rise to the court’s above statement.

Here, defendant contends that neither he nor his attorney knew about the purported service of summons until after the judgment was entered. They received no notice that the dismissal for want of prosecution had been vacated or that a default judgment had been entered against him. No execution was made relative to the judgment. In view of these facts, we hold that the defendant did not waive the defect in service of summons by virtue of a failure to timely object to the jurisdiction of the court.

In view of the foregoing, we conclude that the trial court did not abuse its discretion in quashing the service of summons and vacating the judgment herein and we, therefore, affirm the order of the circuit court of Cook County.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Elbert Davis, Defendant-Appellant.
    (No. 58161;
    First District (4th Division)
    February 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Linda West Conley, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Elbert Davis, was charged by indictment with the murders of Willie Foster and Mary Patterson. A jury found defendant guilty of voluntary manslaughter of Willie Foster and guilty of the murder of Mary Patterson. He was sentenced to a term of twenty to forty years for the murder conviction and a concurrent term of eight to twenty years for voluntary manslaughter. Defendant appeals the conviction for murder and the sentence only on the conviction for voluntary manslaughter. He contends that:

(1) The trial judge erred in refusing to submit the jury instruction tendered by defendant on involuntary manslaughter;
(2) If defendant’s right to have an involuntary manslaughter instruction given to the jury was fore-closed due to the erroneous tender of a voluntary manslaughter instruction by defendant’s counsel, then defendant’s counsel was incompetent and defendant was denied a fair trial; and
(3) Defendant’s sentence of not less than eight nor more than twenty years for the voluntary manslaughter conviction should be reduced to conform to the Unified Code of Corrections.

The facts are as follows:

On the night of November 4, 1971, defendant was drinking with several friends. One of his friends, Felix Young, asked him to go and pick up a package from “this fellow”. Defendant, Felix Young, and two other friends, Eddie Lewis and Ronald Harris, then got into a car and drove to pick up this package. Young directed them to the location where defendant and Eddie Lewis got out.

Defendant knocked at the door of one of the apartments. Betty Walker answered the door. Defendant was told “Boo” lived in the next apartment. Defendant went to the next door, knocked, and Willie Foster came to the door. When defendant asked for the package, Willie Foster asked, “What package?” Defendant replied, “Felix’s package.” Foster then said, “Well, the package is not here and I told Felix whenever he give me my ten dollars, he can get his gun. As a matter of fact the package is not here. A friend of mine has got the package.” When Foster answered the door, Mary Patterson was standing near him. The altercation continued for a short time and defendant then fired a sawed-off shotgun two times, killing both Willie Foster and Mary Patterson.

Defendant testified in his own behalf at trial and said that he had fired the gun since he believed that Foster was armed and that he had fired only when Foster stepped back and turned slightly. He remembered seeing Mary Patterson when Willie Foster opened the door, but said that Foster had told her to go sit down. He said that he did not see her when he fired the gun and he assumed she was still sitting down somewhere inside the apartment.

Defendant’s initial contention regarding his murder conviction is that the trial court erred in failing to give defendant’s instruction on involuntary manslaughter to the jury:

“A person commits the crime of involuntary manslaughter who causes the death of another by acts which are performed recklessly and are likely to cause death or great bodily harm to another.”

It was defendant’s theory of the case that he fired both shots at Willie Foster, intending to hit Willie Foster and not Mary Patterson. He testified that he did not see Mary Patterson at the time he fired and believed that she was sitting down. This would then have been, he argues, a reckless act and he then would have been guilty of involuntary manslaughter. Defendant acknowledges that the State presented evidence on its competing theory, that defendant fired the second shot intending to kill Mary Patterson, but ruges that the jury should have been instructed on defendant’s theory as well, so they could decide between the two competing theories presented.

The defendant was entitled to have an instruction based on his theory of the case presented to the jury. “Both the People and the defendant are entitled to instructions presenting their theories of the case, if supported by evidence.” (City of Chicago v. Mayer (No. 43044), 56 Ill.2d 366; citing People v. Provo, 409 Ill. 63, 72, 97 N.E.2d 802; People v. Scott, 401 Ill. 80, 86, 81 N.E.2d 426; and People v. Matter, 371 Ill. 333, 338, 20 N.E.2d 600.) The question of whether this instruction should have been given turns on whether there was sufficient evidence in the record that defendant’s actions, in regard to Mary Patterson, could have been considered a reckless act. The State argues that since defendant admitted firing the shotgun with the intent to kill Willie Foster, that the element of recklessness to kill Mary Patterson is not presented by the evidence, and therefore, the refusal to give the involuntary manslaughter instruction was proper.

The State has failed to distinguish between defendant’s intent to kill Willie Foster and his intent regarding Mary Patterson. Defendant stated that he did not see Mary Patterson when he fired. He believed she was sitting down “someplace”. His firing at Foster was intentional, but, in his version of the incident, the death of Mary Patterson could have been the result of a reckless act, the firing of a shotgun through the doorway of the apartment. The cases cited by the State, People v. Voss, 6 Ill.App. 3d 362, 285 N.E.2d 816, and People v. Brown, 131 Ill.App.2d 244, 266 N.E.2d 131, are distinguishable from the case at bar since in both cases there was an intent to kill the person involved, and not a second party who the defendant thought was not in the line of fire. The acts in the cases cited by the State were intentional and were inconsistent with recklessness. In the instant case, the intentional act of shooting Willie Foster was not necessarily inconsistent with the reckless act of killing Mary Patterson. This does not, of course, mean that defendant’s theory of the case was correct and binding upon the jury, but rather that since there was evidence to support defendant’s theory, that the instruction dealing with involuntary manslaughter should have been given. As was noted in People v. Guthrie, 123 Ill.App.2d 407, 258 N.E.2d 802:

“* * * it is our judgment that there is sufficient evidence in this record to support a jury verdict either of murder or of involuntary manslaughter. It is not our province to determine which verdict is proper. It is for the jury to make the choice between two different concepts or theories as to what crime this evidence actually discloses. It was error not to give them that choice and to give them that choice by the submission of an involuntary manslaughter verdict together with an explanation of the legal principles involved in involuntary manslaughter. There is evidence in this case which, if believed by the jury, would warrant a conviction of involuntary manslaughter. The failure to submit the issue to tire jury requires a new trial. People v. Canada, 26 Ill.2d 491, 187 N.E.2d 243; People v. McCrory, 25 Ill.2d 213, 184 N.E. 2d 846; People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315.” 123 Ill. App.2d 413-414.

The judgment of the trial court must then be reversed as to the murder, conviction and the cause remanded for a new trial in accordance with the views expressed herein. There is no need, in light of this finding, to consider other contentions regarding the murder conviction.

Defendant did not raise any possible errors relating to his conviction for voluntary manslaughter, but has asked this court to modify the minimum sentence imposed to conform with the provisions of the Unified Code of Corrections. Sin'ce the instant case had not reached a “final adjudication” as of the effective date of the Unified Code of Corrections, defendant is therefore entitled to the benefit of its provisions. (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1008—2—4; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Voluntary manslaughter is classified as a Class 2 felony by the Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 9—2(c)) and as such the maximum term may be any term in excess of one year not exceeding twenty years, with a minimum term not greater than one-third the maximum term set by the court. (Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 1005—8—1(b)(3) and 1005—8—1(c) (3).) The minimum sentence is accordingly modified to not less than six years and eight months.

The judgment of the circuit court of Cook County is affirmed as modified as to the voluntary manslaughter. The judgment of the circuit court of Cook County as to the murder of Mary Patterson is reversed and the cause remanded for new trial.

Affirmed in part, reversed in part and remanded.

BURMAN and DIERINGER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Benjamin Jimerson, Defendant-Appellant.
    (No. 58597;
    First District (4th Division)
    February 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Donald S. Honchell and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was charged with the misdemeanor offenses of battery and theft. In a bench trial the defendant was found guilty on the battery charge and sentenced to a term of 6 months at Vandalia. The defendant was discharged on the theft complaint, The issue raised in this appeal is whether the defendant was denied his constitutional rights and deprived of a fair trial when oral statements taken after his arrest were admitted into evidence without proof by the State of their voluntariness or demonstration of the sufficiency of the necessary Miranda warnings.

The complainant, Linda McAlpin, testified for the State that on October 19, 1972, at approximately 12:30 or 1:00 P.M., she left a beauty parlor at North and Orchard Avenues and noticed several of her friends across the street in an auto. She stopped to talk to them and saw the defendant in the back seat of the car. They offered the complainant a ride home and she accepted. Upon arriving at the complainant’s residence, the group entered her apartment and she served them some kool-ade. The defendant was in the group but was not introduced to the complainant. After finishing the kool-ade the complainant’s friends and the defendant left the apartment.

Miss McAlpin testified that about a quarter after three on the same afternoon she heard a knock on her door. She asked who it was and a voice replied, “Bear”, the man who had been there with her friends, and that he had left his keys inside. The complainant testified she opened the door and a man entered, pulled a knife and demanded money. The complainant told the man she had no money but he began emptying drawers in the apartment and hitting her. She testified she told her assailant that someone was coming home about 3:30 and he replied he would leave as soon as she gave him the money. At tins time complainant’s little girl came in and the man put the knife in his pants. Miss McAlpin stated she was struck ten or twenty times and that the man took a small pendant watch on a chain.

The police were called and Miss McAlpin was taken to the hospital for treatment. Later the same evening, Miss McAlpin was called to the police station to view a police line-up. She identified the defendant as her assailant.

The State also called Officer Joseph Myrus and he testified that he had been assigned to investigate the robbery complained of by Miss McAlpin. Officer Myrus stated that he and his partner had been sent to Augustana Hospital and' they interviewed the complainant there. The complainant gave the police a description of her assailant.

The defendant was arrested in his cousin’s apartment. Officer Myrus stated the defendant was arrested and advised of his rights. According to Officer Myrus the defendant at this time denied knowing the complainant, being in the car and going into the apartment. The defendant was subsequently taken to the police station where he was identified in a line-up by the complainant. After the line-up another conversation was had with the defendant. Officer Myrus stated the defendant was advised of his rights and at this time the defendant stated he had been in the car earlier in the afternoon and had gone up to Miss McAlpin’s apartment with the group.

The defendant testified on his own behalf and stated he had met the complaining witness on October 19, 1972. According to the defendant, after the complainant got into the car they did not go directly to her residence but went to a friend’s house because the complainant wanted to buy some “dope”. However, a purchase could not be made and the defendant stated Miss McAlpin requested some money. The defendant testified he gave the complainant some money and then the group went to her apartment and remained there for about 2 hours. The group then left and the defendant stated he returned to his cousin’s house. The defendant denied returning to the complainant’s apartment. He also denied striking the complainant or taking a watch from her. The defendant did testify that he had been advised of his rights but that he told the police at the time of his arrest and later during the conversation at the police station, that he knew the complainant but that he had not robbed her.

In rebuttal, Miss McAlpin testified that she did not go to anyone’s house to attempt a purchase of narcotics. The trial court found the defendant guilty on both charges, but after the hearing in aggravation and mitigation, discharged the defendant on the theft charge. As stated previously, the defendant was sentenced to 6 months at Vandalia on the battery charge.

The defendant maintains he was denied his constitutional rights and deprived of a fair trial when Officer Myrus testified as to statements made by the defendant without specifying what warnings were given to the defendant. It is contended that the defendant’s Fifth and Sixth Amendment rights were violated and that the mandate of Miranda v. Arizona, 384 U.S. 436,16 L.Ed.2d 694, 86 S.Ct. 1602 (1966), was not followed. The defendant maintains that the State failed to demonstrate that the statements were voluntarily given with full understanding of tire possible consequences. It is the defendant’s contention that this testimony of Officer Myrus was most damaging because it showed that the defendant had changed his story from first denying he knew the complainant to later admitting he had been at the place of the alleged offense.

The case of People v. Bryant, 101 Ill.App.2d 314, 243 N.E.2d 354 (1968), is dispositive of the case at bar. The defendant did not question the voluntariness of his statements in either a pre-trial motion to suppress or at the trial. As stated in Bryant at 319:

* * if defendant was adequately represented at trial and did not there question the voluntariness of his confession, he cannot raise the issue on appeal. People v. Hiller, 7 Ill.2d 465, 131 N.E.2d 25 (1955); People v. French, 33 Ill.2d 146, 210 N.E.2d 540 (1965). We so hold in the instant case. The due process requirements set forth in Jackson v. Denno, supra, do not require that a hearing on voluntariness must be had; it is enough if defendant had a sufficient opportunity to question the confession. It is up to him and his counsel to take advantage of the opportunity.”

The Miranda decision makes no distinction between inculpatory and exculpatory statements and likewise, while the Bryant decision was concerned with a confession the rule enunciated there is equally applicable to exculpatory statements such as the defendant made in the case at bar. Neither defendant nor his counsel took advantage of the opportunity to raise the issue of the voluntariness of his statements in the trial court. He cannot raise the issue for the first time on appeal.

We are of the opinion that the evidence clearly established the defendant’s guilt beyond a reasonable doubt. Therefore, the circumstances of this case do not warrant consideration of the question presented under the plain error doctrine. (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).) The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.