author:
      Mr. JUSTICE EBERSPACHER
      Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Vivian Edwards, Plaintiff-Appellee, v. The Board of Trustees of Police Pension Fund of the City of Marion, Defendant-Appellant.
    (No. 73-413;
    Fifth District
    September 19, 1974.
    James W. Sanders, of Marion, for appellant.
    Harris and Lambert and Charles D, Winters, both of Marion, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court;

The plaintiff-appellee, Vivian Edwards, filed an amended petition with the defendant-appellant, Board of Trustees of the Police Pension Fund of the City of Marion, seeking a pension therefrom due to the disability and death of plaintiffs husband, Charles Edwards. The defendant Board of Trustees voted to deny plaintiff’s amended petition. The plaintiff perfected an appeal to the circuit court of Williamson County which reversed the decision of the defendant Board of Trustees, remanded the cause to the defendant Board of Trustees, and ordered, among other things, the defendant Board of Trustees to “conduct a fair and impartial hearing on the amended petition ® ® ® at the next regularly designated meeting of said Board * * Subsequently, the defendant Board of Trustees conducted a hearing on plaintiffs amended petition and issued its decision denying the amended petition. The plaintiff perfected a second appeal to the circuit court of Williamson County which entered a judgment reversing the decision of the defendant Board of Trustees and ordered the defendant Board of Trustees to grant the pension requested by the plaintiff. This appeal followed.

The defendant Board of Trustees bases this appeal on two arguments. First, that Charles Edwards, plaintiff’s husband, failed to meet all the requirements established by the statute creating the pension fund and, therefore, the plaintiff is ineligible for a pension. And secondly, that the defendant Board of Trustees has the power and authority to determine whether a person is eligible for a pension and the courts should not substitute their judgment or discretion for that of the Board.

Before the preceding arguments can be considered it becomes necessary to review the events which have transpired prior to this appeal.

Charles Edwards was appointed chief of police of the City of Marion on June 21, 1954. On July 1, 1954, the City of Marion established a policeman’s pension fund pursuant to the act concerning police pension funds (Ill. Rev. Stat. 1953, ch. 24, par. 892 et seq.) Charles Edwards did not contribute to the policeman’s pension fund until April 15, 1962.

On May 8, 1967, the city council attempted to dismiss Charles Edwards. As a result thereof Charles Edwards made no further contributions to the policemans pension fund after May 8, 1967. On May 9, 1967, Charles Edwards requested in writing a refund of his contributions to the fund. A refund was granted to Charles Edwards by the defendant Board of Trustees on May 10, 1967. At a special meeting of the defendant Board of Trustees held on June 14, 1967, the following notation was included in the minutes, “It is noted that Mr. Charles Edwards, ex-Chief of Police, withdrew the money he had put into the Police Pension Fund in the amount of $2120.41” Ron Odum, a member of the defendant Board of Trustees, testified that he had called a meeting and with other members of the Board, “Diz” Carlton and John Kelley, present it was voted to give Charles Edwards the refund he had requested.

On October 16, 1968, Charles Edwards applied for a disabiHty pension in which he certified that he was totally and permanently physically disabled. Charles Edwards died on October 20, 1968.

On December 30, 1968, the plaintiff filed a petition requesting a pension due to the disability and death of her husband, Charles Edwards. Therein plaintiff offered to tender repayment of the refund withdrawn by Charles Edwards from the policemans pension fund prior to his death with interest at the rate of 2 percent per annum from the date of such refund. The defendant Board of Trustees denied plaintiff’s petition without a hearing.

In December, 1970, this court held that Charles Edwards was never properly discharged as chief of police of the City of Marion and, therefore, Charles Edwards was chief of police until the time of his death, October 20, 1968. (Edwards v. City of Marion, 130 Ill.App.2d 895, 266 N.E.2d 491.) On June 1, 1971, the plaintiff filed an amended petition with the Board requesting a pension and offered, to return the refund paid her husband with 2 percent interest per annum from the date of such refund and to pay contributions which her husband had neglected to make prior to his participation in the fund. On June 19, 1971, the defendant Board of Trustees denied plaintiff’s amended petition without a hearing. The trial court reversed the Board’s ruling and remanded for a “fair and impartial hearing.” The defendant Board of Trustees, after holding a hearing, again denied plaintiff’s amended petition. The trial court on administrative review reversed and ordered the defendant Board of Trustees to accept plaintiff’s tender of payment and to grant a pension. The defendant Board of Trustees perfected this appeal therefrom.

The applicable law under the Policeman’s Pension Fund Act is determined as of the date of retirement or, as in this case, the date of the death of the policeman. (Olds v. DeMarco, 94 Ill.App.2d 443, 237 N.E.2d 354; Blough v. Ekstrom, 14 Ill.App.2d 153, 144 N.E.2d 436.) Since Charles Edwards died on October 20, 1968, this action is governed by the Illinois Pension Code (Ill. Rev. Stat. 1967, ch. 108%, par. 3 — 101 et seq.).

One of the defendant Board of Trustees’ contentions is that Charles Edwards failed to meet the requirements established by the IHinois Pension Code (Ill. Rev. Stat. 1967, ch. 108%, par. 3 — 101 et seq.). One section specifically relied upon by the defendant Board of Trustees is section 3 — 124 of the Act which provides in part that:

“If a policeman is separated from the police service after June 30, 1953, but before he has served 20 years, all contributions made by him to the police pension funds shall, upon his request, be refunded to him.
Acceptance of a refund shall bar the policeman and his dependents from any further participation in the benefits of this Article subject to restoration upon re-entry into service and repayment to the fund of the refund plus interest at 2% per annum from the date of the refund until the date of repayment.” (Ill. Rev. Stat. 1967, ch. 108%, par. 3 — 124.)

The plaintiff concedes that Charles Edwards requested a refund, was granted a refund, and thereby he, Charles Edwards, withdrew all of his contributions from the fund. There is no evidence in the record to indicate that Charles Edwards during Iris lifetime made any attempt or effort to repay the refund to the funds. The defendant Board of Trustees argues that since Charles Edwards “by his own voluntary action” withdrew his contributions to the fund he should “be barred, himself and his dependents from any pension benefits” pursuant to the above statute.

The plaintiff, on the other hand, contends that the defendant Board of Trustees was without “the power” to grant such refund because Charles Edwards was not “separated from the police service” since this court, more than three years later, held that Charles Edwards was never properly discharged, and, therefore, was chief of police until the time of his death. (Edwards v. City of Marion, 130 Ill.App.2d 895, 266 N.E.2d 491.) The plaintiff further contends that since the defendant Board of Trustees “could not legally make that refund” the plaintiff is not barred by Charles Edwards’ acceptance of the refund. The thrust of the plaintiff’s argument is that the above statutes should be interpreted in such a manner as to render inoperative the provision barring recovery of one who accepts a refund unless the refund was granted within the express terms of the statute.

While the statute is to be given a liberal construction to effect its purpose and the object to be accomplished, we are unable to agree with plaintiff’s proposed interpretation. In construing this statute it is the duty of this court to enforce the pension law as enacted, according to its plain and unmistakable provisions. (Stiles v. Board of Trustees, 281 Ill. 636, 118 N.E. 202.) We must, therefore,

“* ° * seek the construction of statutory language in the usual, popular meaning attaching to the words used, unless the spirit and the purpose of the act, as shown by its provisions, enlarges or alters that meaning, and that the plain and obvious meaning of the Language used by the Legislature is the safest guide to follow in construing any act: Svithiod Singing Club v. McKibben (1942), 381 Ill. 194.” Blough v. Ekstrom, 14 Ill.App.2d 153, 162-163.

We believe that the plain meaning of the statute is evident from the language employed therein: “Acceptance of a refund shall bar the policeman and his dependents from any participation in the benefits * * (Ill. Rev. Stat. 1967, ch. 108½, par. 3 — 124.) To hold otherwise would circumvent both the plain language of the statute and the obvious intent of the legislature. We have, of course, no legislative power and may not engraft into statutory provisions conditions in addition to those which the legislature deemed appropriate. The legislature provided that the only condition precedent to the barring of a policeman’s right to participate in the fund is the policeman’s acceptance of a refund. The statute does provide that the bar to participation by acceptance of refund is not absolute and is subject to restoration, however, the plaintiff does not contend that she can come within the restoration provision, contained in the second paragraph of section 3 — 124. There, of course, can be no re-entry into service where there has never been a separation.

Plaintiff contends the refund was unauthorized by statute even though requested by Charles Edwards: that there are four conditions that must be met before the Board had any power to make the refund, namely, (1) the policeman must be separated from the service, (2) after June 30, 1953, (3) before he has served 20 years and (4) the policeman must request the refund. It is conceded by both parties that the last three conditions have been met, but plaintiff contends the first (separation) had not occurred in view of our opinion in Edwards v. City of Marion. While we agree that Edwards was not separated by the language of our opinion, it is obvious that Edwards by acceptance of the refund made at his request has waived the requirement of separation from the force.

A reading of the record discloses that there is evidence to support the order of the Police Board and under such circumstances the trial court should not have reversed on administrative review. Since the trial court must be reversed, and the plaintiff barred by the provisions of section 3 — 124, we do not consider the contentions of the parties with reference to section 3 — 109(c) and plaintiff’s tender of funds in lieu of salary payments or deductions from July 1, 1954, to April 15, 1962.

We therefore reverse the judgment of the circuit court of Williamson County and affirm the order of the Board of Trustees of the Police Pension Fund of the City of Marion.

CARTER, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting:

I do not agree with the majority that under the circumstances of this case, the acceptance of the refund by Edwards constituted a waiver of the statutory requirement of separation from the force.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE GEORGE J. MORAN Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
      In re Estate of Guy William Key, Deceased—Betty Richey, Administrator, Petitioner-Appellant, v. Kenneth Key et al., Respondents-Appellees.
    (No. 73-408;
    Fifth District
    September 20, 1974.

      George E. Morgan, of Winters, Morgan and Austin, and Kenneth B. Powless, both of Marion, for appellant.
    Harris and Lambert, of Marion, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Petitioner appeals from a judgment of the trial court dismissing her suit to quiet tide to the property on which her father resided prior to his death.

This case involves a petition by the administrator of the estate of Guy William Key to sell real estate and to quiet title thereto by voiding a deed executed by die decedent to his son, Kenneth Key, die respondentappellee, on account of non-delivery of the deed by the decedent during his lifetime. After a hearing on the petition, the circuit court of Williamson County in a non-jury trial, found that the decedent in his lifetime had executed and delivered to his son, Kenneth Key, a deed to the real estate in question, and that at the time of die decedent’s death the real estate was owned and now is owned by die respondent. The court then dismissed the case for want of equity.

The evidence discloses that on December 2, 1968, the decedent called Raymond Miller of Marion, Illinois, a lay person who regularly prepared deeds for persons in Marion, for the purpose of malting a deed to the premises where he was living. Miller testified that he was asked to prepare a deed and that after 4 o’clock in the afternoon of the day the decedent called him, he went to the decedent’s house with the prepared deed, that Guy Key signed it in his presence and that he then notarized it. He also testified that in his opinion the grantor was of sound mind and able to conduct business at the time.

There is no more evidence concerning the deed until December 1, 1969, when the decedent went to the Bank of Marion and rented a safe deposit box, making his son a deputy with access to the box. Wanda Melvin testified on behalf of the respondent that she was employed at the Bank of Marion and that she knew both Kenneth Key and Guy Key, the decedent; she recognized the deed and she further testified that Guy Key stated that he did not want to keep the deed at home; that he wanted to put it in a safe place and he decided to rent a safe deposit box. “He said he deeded the property to Kenneth and that he wanted Kenneth to have the property. He said that Kenneth was always a good boy and that he deserved it.” She said she saw him place the deed in the box and lock it.

Henry Beneke, vice president of the Bank of Marion, testified that the bank records disclosed that Guy Key leased a bank box on December 1, 1969, listing Kenneth Key as a deputy. Kenneth Key as deputy would have access to the box during the lifetime of Guy Key, but not after. The witness stated he knew Guy in his lifetime and knows Kenneth. He talked to Guy about his property at numerous times and Guy told him that he wanted Kenneth to have his property but he did not give a description.

The respondent, Kenneth Key, was permitted to testify over objection that his father had handed the deed to him in Wanda Melvin’s presence, saying, “I’m giving you this place,” and then had taken the deed and placed it in the safe deposit box.

Guy Key remained in possession of the land until his death. He did not record the deed. At his death in April of 1970, the deed remained in his safe deposit box. During the few months that he leased the box, Guy Key entered it three times. Kenneth Key never entered it until after his father’s death, when, by means of inheritance tax consents received from the Attorney General, he entered it on June 1, 1970, and removed the deed. He recorded it the next day in the recorder’s office of Williamson County.

On the evidence recited here, the judge found that there had been a delivery of the deed, and that the land in question belonged to the defendant. Betty Richey, the administratrix, attacks the judgment on two grounds: (1) She argues that the respondent’s testimony concerning the words and acts of his father at the Bank of Marion on December 1, 1969, was made inadmissible by section 2 of the Evidence Act (Ill. Rev. Stat., ch. 51, par. 2), and (2) that there was not enough competent evidence introduced to support the finding that there had been a delivery of the deed by Guy Key to Kenneth Key.

After both sides had presented their case, the cause was continued indefinitely so that bank records missing at the time of the hearing could be produced and to allow both sides to submit briefs on the competency of the defendant-appellee to testify on his own behalf. Without notice, the court announced its decision on October 16, 1972.

Appellant first contends that the testimony of Kenneth Key was inadmissible because of section 2 of the Evidence Act (Ill. Rev. Stat, ch. 51, par. 2) which was in effect at the time this case was filed.

In an action instituted by an administratrix on behalf of a decedent’s estate, this statute operates to prevent a defending party or other party in interest from testifying for himself unless certain conditions, listed in the statute, are satisfied. For example, when the representative of the deceased person elicits testimony concerning a conversation or transaction between the deceased and a defending party, the defendant becomes competent to testify upon his own motion and in his own behalf. In this case, however, the administratrix introduced no evidence concerning the conversation betwen the deceased grantor and the grantee in the Bank of Marion. All evidence bearing on that encounter was introduced initially by the defendant through his own testimony. The administratrix’s objection that such testimony was incompetent because of the Dead Man’s Statute was therefore correct and the defendant’s statements about what his father had said and done on that day should have been excluded, Appellee makes several additional arguments to justify the admission of his testimony, none of which have any merit.

Appellant next contends that, excluding the testimony of Kenneth Key, there was not sufficient evidence to prove delivery of the deed during the lifetime of Guy Key. The law pertaining to the issues involved in this case is clearly stated in Riegel v. Riegel, 243 Ill. 626, 630— 631:

“A delivery is essential to render a deed operative and give it force as a conveyance. [Citations.] No particular form or ceremony is necessary to constitute such delivery. It may be by acts without words or words without acts, or both. Anything which clearly manifests the intention of the grantor that the deed shall presently become operative and effectual, that the grantor loses all control over it and that the grantee is to become possessed of the estate, constitutes a sufficient delivery. In the case of a deed which is a voluntary settlement the law presumes much more in favor of a delivery than it does in ordinary cases of deeds of bargain and sale, and this presumption is especially strong when the grantee is an infant. As to such a deed the presumption is in favor of delivery, and the burden of proof is on one claiming adversely to show that there was no delivery. [Citation.] The law has regard to the relationship of the parties and the motives that are presumed to induce the making of such a deed, and casts the burden upon the grantor, or those who claim under him, to show that there was no delivery. [Citation.] A deed made as a voluntary settlement may be effective to vest title in the grantee although it is retained by the grantor in his possession until his death, if other circumstances do not show an intention contrary to that expressed on the face of the deed. The Grantor may deliver the deed either to the grantee or to a stranger for his use, and an acceptance by the grantee will be presumed from the fact that the deed is for his benefit, especially if the grantee is an infant. The test in all cases is the intent with which the act or acts relied upon as equivalent or a substitute for actual delivery were done, and in determining the question whether a deed of voluntary settlement has been delivered, the grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed. [Citations.] If there are other circumstances besides the retention of the deed by the grantor to show that he did not intend it to operate immediately, the presumption in favor of delivery will be overcome.”

A “voluntary settlement” referred to in this language from Riegel occurs when a grantor makes a deed to a member of his family for whom the grantor may be expected to provide because of natural affection. Alexander v. American Bible Society, 407 Ill. 49, 94 N.E.2d 833.

In the present case, although the deed was in Guy Key’s safe deposit box at the time of his death, Kenneth Key had access to it at any time before that time.

“The accessibility or nonaccessibility of the deed to the grantee has in a number of cases apparently been considered a matter of some importance in determining whether there has or has not been a legally sufficient delivery of a deed which has not been manually delivered.
It would seem that if the deed were accessible to the grantee it would be more likely that the grantor intended to effectuate a legal delivery.” Annot., 129 Á.L.R. 44 (1940), and cases cited therein.

How, then, does the law apply to the facts in this case? From the evidence properly admissible at trial, it appears the conclusion would be justified that Guy Key intended to create a present interest in property in his son by means of the deed. This conclusion, though reasonable, is not necessarily compelled because Guy’s statement that he wanted Kenneth to have his property could possibly be construed to mean that Kenneth should have the property from and after Guy’s death. In that event, the deed would represent an invalid attempted testamentary disposition. A decision in favor of finding an intent to create a present interest is aided by the presumption mentioned above that arises in the case of a voluntary settlement. This deed, executed in favor of the grantor’s son was a voluntary settlement. A presumption of delivery “embodying a presumption of an intent to create a present interest, as an element of delivery” therefore arises. It should be remembered also, that the presumption of delivery arises even though the grantor, or the grantor’s estate, had possession of the deed at the death of the grantor. (See Riegel v. Riegel, supra; Payne v. Henderson, 340 Ill. 160, 172 N.E. 173.) (That Guy Key had possession of the deed at the time of his death follows from these facts: The safe deposit box was leased in his name only; Kenneth Key, as deputy, was supposed to have access to the box only during Guy’s life; when Guy died, the deed remained in the safe deposit box, not legally available to Kenneth.) However, we must also consider the fact that the deed was accessible to Kenneth Key from the time it was placed in Guy Key’s safe deposit box up until his death.

To rebut the presumed fact of delivery, the administratrix has two things on which she may rely: First, the deed was not recorded during the lifetime of the grantor. The case of Bovee v. Hinde, 135 Ill. 137, 25 N.E. 694, held that a grantors failure to record a deed kept in his possession could be considered as “at least prima facie evidence that there had been no delivery of it.” This contains a modicum of sense, even though Illinois law does not require that a deed be recorded in order to be effective between the grantor and grantee. (Delfosse v. Delfosse, 287 Ill. 251, 122 N.E. 484.) If a grantor seriously intends to make a conveyance, he is apt to record a deed he executes and for some reason retains; likewise, if a grantor really desires to convey no interest, it is probable that he will not record the deed. Second, the grantor’s retaining possession of the land until his death was inconsistent with the grant contained in the deed. In Klajbor v. Klajbor, 406 Ill. 513, the court held that the fact that the grantor remains in possession of the land after a deed is made is an important fact in determining whether a deed for the land, made to a party out of possession, has been delivered.

“Whether there has been a valid delivery generally presents a mixed question of law and fact. The facts and circumstances of the case must be considered, and from their detail is to be determined the legal question whether such acts and declarations constitute a legal delivery. In some instances, the acts or words of the grantor may so clearly evidence the delivery of a deed that only one conclusion can be reached as to the delivery — namely, that the instrument became an operative conveyance — and in such case delivery may be determined as a matter of law. In most cases, however, delivery is to be inferred from circumstances which by their very nature are equivocal and depend upon the subjective state of mind of the grantor. In such cases delivery becomes a question of fact and cannot be determined as a matter of law. This may be true even where the deed is placed in the actual possession of the grantee. Where the question of delivery is dependent entirely upon intention, it is to be determined from all of the evidence bearing upon the issue, including the conduct of the parties. The questions whether the requisite intent to make delivery existed, and whether the grantor executed his intention to pass title by a sufficient delivery, are both questions of fact and generally for the jury.” 23 Am.Jur.2d Deeds § 88, at 137 (1965).

Whether or not there was delivery in this case was a question of fact for the trial court.

Had there been no error in the admission of evidence in this case, we would have been compelled to sustain the decision of the trier of the facts. However, the court did err in the admission of defendant’s incompetent testimony. Appellee contends that a trial judge is presumed, on appeal, to have considered only competent evidence. (McFail v. Braden, 19 Ill.2d 108; People ex rel. Hartshorn v. Hartshorn, 21 Ill.App.2d 91.) For this reason, he says that the judgment in his favor should not be disturbed. While this is the ordinary rule to be followed, it seems clear in this case that the trial judge probably relied on the defendant’s incompetent testimony. Under these circumstances the presumption does not apply. 5 C.J.S. Appeal and. Error § 1564(5), at 1275 (1958).

For the foregoing reasons the judgment of the trial court is reversed and this case is remanded to the circuit court of Williamson County for a new trial.

Reversed and remanded.

CARTER, J., concurs.

Mr. JUSTICE EBERSPACHER

specially concurring in part and dissenting in part:

I consider that the case should be reversed, but do not agree that from evidence properly admissible at trial a conclusion would be justified that Guy Key intended to present a present interest in his son by means of the deed.

In Riegel v. Riegel, 243 Ill. 626, 631, in addition to the language quoted, the court said:

“The test in all cases is the intent with which the act or acts relied upon as equivalent or a substitute for actual delivery were done, and in determining the question whether a deed of voluntary settlement has been delivered, the grantor’s intention to vest title in the grantee is regarded as of more importance than the mere manual possession of the deed. * * * If there are other circumstances besides retention of the deed by the grantor to show that he did not intend it to operate immediately, the presumption in favor of delivery will be overcome.” (Emphasis supplied.)

Here there is no competent evidence of manual delivery, nor is there any competent evidence that it was intended that title presently vest in the grantee. The most that could be inferred from the evidence is that as his father’s deputy of the box the son had a right to access to the box which contained the deed. That right of access was never exercised by the deputy during the lifetime of the father. There are here other circumstances to show the father did not intend the deed to operate immediately; he failed to make a manual delivery and he retained possession of and occupied the premises as his residence. This conduct destroyed whatever presumption of delivery that might be raised from the sons right of access to the box, or of delivery of voluntary settlement. Since there is no competent evidence that the father intended title to vest in his son, during the father’s lifetime, and the acts of both toward the property and deed were inconsistent with an intention for title to vest during his lifetime, I do not consider that in the absence of error in the admission of evidence, we would have been compelled to sustain the decision of the trier of the fact. In the absence of the erroneously admitted evidence, there is no evidence to support the judgment of the trial court, and we would be compeHed to reverse.

Obviously all the evidence of delivery has been presented, and I am unable to conceive of the equity imposed by remanding for a new trial, since the error in every aspect was that made by the trial court at the instance of the son, who had surreptitiously procured the deed after the father’s death and recorded it, and thus forced the administrator to bring this action to properly protect the assets of the estate for both the creditors and heirs.

I would reverse and remand for further proceedings.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Charles D. Norville et al., Plaintiffs-Appellants, v. Alton Bigtop Restaurant, Inc., et al., Defendants-Appellees.
    (No. 72-226;
    Fifth District
    September 25, 1974.

      Steve A. Maragides, of Granite City, for appellants.
    Harry J. Sterling, of Belleville, and Hamilton C. Jones, of Herrin, for appellees.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiffs appeal from a judgment of tire trial court of Madison County wherein the court, sitting without a jury, held that the plaintiffs (appellants herein) were not entitled to rescind the sale of certain securities and thus could not recover the purchase price of the securities, togther with interest and attorney fees. The trial court granted defendants motion for a directed verdict as to some plaintiffs and entered judgment in favor of all named defendants and against all named plaintiffs, holding that statements made to induce the sales were mere “puffing.”

Appellants have raised two issues on appeal. First, appellants contend that statements made by the individual defendants on behalf of the various corporations were untrue statements of material fact in violation of section 12G of the Illinois Securities Act of 1953 (Ill. Rev. Stat. 1973, ch. 121½, par. 137 — 12G); second, appellants maintain that the sales of securities made by defendants were voidable under section 12A (Ill. Rev. Stat. 1973, ch. 121½, par. 137.12A), for failure to register the securities with the Secretary of State pursuant to section 5 of the Act (Ill. Rev. Stat. 1973, ch. 121½, par. 137.5).

During the course of the trial, appellants Charles Norville and Carl House testified that early in 1967 they talked with defendants Carman and Shearburn about buying stock in the proposed Alton Bigtop Restaurant. Mr. Norville testified that Shearburn stated that “the amount of interest that would be paid would be 15% to be paid quarterly” for a period not to exceed 3 years until the company went into operation. Norville paid $5500 for stock but received only five dividend checks. House testified that Shearburn and Carman told him that he “would get 15% or at the end of a three year period or prior to that (he) would get 5% of the gross,” whichever totaled more. House paid $5500 for Bigtop stock but received only five dividend checks.

Appellant Fred King’s testimony was essentially the same as that of Norville and House.

Appellant Denver McCollum testified that he invested $5500 in the proposed Alton Bigtop as the consequence of Shearburn’s representations that he “would be paid 15% interest for three years until the restaurant was built,” after which time he would receive dividends according to the net profits. After McCollum stopped receiving his quarterly checks, he complained to defendant Jones who stated that he felt that it was a mistake to have made the agreement to pay 15% dividends.

“He said that he felt that they should not have made the agreement to pay the 15% dividends that [they] were under capitalized to handle this sort of return. It was a mistake that they said they would pay the people 15% dividends.”

He also testified that “they” meant the corporation, Carman, Jones and Shearburn and that in his conversations with Jones all the names were mentioned.

Odie Nichols testified that in February or March 1967 he spoke with Carman and Shearburn about buying stock in the Bethalto and Wood River Bigtop Restaurants. Shearburn and Carman told Nichols that he

“# * * would draw 15% to be paid quarterly for three years and at the end of three years (he) would have most of [his] money back in dividends and after that [he] would draw according to what the restaurants made. They said it may be 8% or might even run up to 20% according to how much they sold.”

Nichols invested in both the Wood River and Bethalto Bigtop Restaurants and his dividends were discontinued after a few quarters.

Appellant Alma Hillier testified that she and her husband invested in the Wood River and Bethalto restaurants after meeting with Shearburn and Carman. Either Shearburn or Carman told the Hilliers that “if [they] bought shares * * * that [they] would receive 15% for the first three years,” and that “after three years [they] would receive a certain amount for whatever the profits were.” Mrs. Hillier stated that the words “promised” or “guaranteed” were never used, although she did emphasize that no conditions were attached to the 15% return. Dividends were discontinued after a few payments, although the few dividend checks that Mrs. Hillier did receive amounted to a 15% return on her investment at the time.

Charles Schoeneweis testified that in early 1967 he talked with Car-man and Hamilton Jones about investing in the proposed chain of Big-top Restaurants. He testified that he attended a public meeting at Jones’s office at which both Jones and Carman were present. Jones presented the proposed operation and explained that stockholders would receive 15% dividends for 3 years after which time the restaurant would be in operation and stockholders would share the net profits. Subsequently, Carman and a Victor Green presented drawings and plans of the Bethalto restaurant at Schoeneweis’s home. Because Schoeneweis did not have enough cash at the time, he borrowed $5500 at 6% interest from Jones to invest in the Bethalto Bigtop. Schoeneweis testified that no conditions were attached to the 15% dividends.

Appellant William Camp testified that he purchased shares of stock in the Bethalto Bigtop after Shearburn and Carman stated that he would receive a 15% return on his investment for a 3-year period. He testified that he received two quarterly payments after which time dividends were discontinued.

Appellant Paul Slaughter testified that early in 1967 he was approached by Bruce Carman who asked him to invest $15,000 in Bigtop stock. Slaughter rejected the proposal, but a short time later was again approached by Carman who told him that for a $5500 investment he would receive 15% interest or 5% of the profits, whichever was greater. Jones also guaranteed the greater of 15% interest or 5% of the profits for 3 years and promised to buy back the stock after 3 years if Slaughter were not satisfied.

Appellant Rebecca Lyford testified that in May 1967 she talked to Carman about investing in Bigtop stock. Carman presented the plans of the proposed operation and told her that" she “would get 15% for three years and after that * * * [she] would get a share of the whole stock of the place.” Ms. Lyford testified that Carman described no conditions.

Appellant Marion Bruns testified that she first heard about tire proposed chain of restaurants through Victor Green, a personal friend, who drove her to Jones’s office where they discussed investing in Bigtop stock. Both Jones and Green told Ms. Bruns that she “would receive 15% quarterly on the investment” for 3 years. Ms. Bruns decided to invest in the Wood River Restaurant and wrote a personal check which was payable to Jones, but never received any dividends.

Shearburn testified that as salesman for the Bigtop stock, he told certain plaintiffs that they would receive a 15% return to be paid quarterly for 3 years until the restaurants were in operation. He further stated that Carman instructed him on the 15% dividend rate and that he never ' told appellants about any conditions on the 15%. After receiving checks from some of the appellants, Shearburn turned the funds over to Carman or Jones, whichever was available.

The aforesaid statements were untrue statements of material fact or they involved omissions of material fact, i.e., any conditions attached to the 15% which should have been included to make the statements not misleading under the circumstances. They were not mere “puffing” as the trial court held.

Nearly all State securities statutes have anti-fraud provisions and require registration of securities and most require registration of dealers and brokers. (11 Vand. L. Rev. 659 (1958).) Since the Illinois law provides for all three, it has been characterized as a paternalistic type of Blue Sky Law. Young, History, Source, and Effect of the Illinois Securities Act of 1953, as Amended, S.H.A., ch. 121%, appendix at 576 (1960).

Most State provisions are broader in scope than their Federal counterparts. (Loss, Blue Sky Law, at 3 (1958).) Generally, the theory behind State securities provisions is paternalism; the State administrator may refuse registration when he doubts the soundness of a particular securities issue even though the issuers will disclose all material facts to the investing public. By way of contrast, the Federal anti-fraud provisions embody a disclosure philosophy; issuers must provide- the investor with adequate information so that he can exercise his own judgment. 11 Vand. L. Rev. 659 (1958). See also Young, History, Source, and Effect of the Illinois Securities Act of 1953, as Amended, S.H.A. ch. 121%, appendix at pp. 574-75 (1960).

Most State securities laws were enacted long before Congress adopted the Securities Act of 1933 and, consequently, definitions in the State provisions strongly influenced their Federal counterparts. Nonetheless, Mr. Young remarks in his interpretive comments that since 1933 the Federal securities provisions have strongly influenced definitions in and enforcement of their State counterparts. For example, under both Illinois and Federal law the definition of “security” does not cover those schemes in which money is invested in a common enterprise. (Polikoff v. Levy, 55 Ill.App.2d 229, 204 N.E.2d 807.) Indeed, almost aU definitions in the Illinois Securities Act of 1953 were based on similar provisions in the Federal Securities Act of 1933 and its registration provisions and requirements emulate similar provisions in the 1933 Act. One commentator notes that the Illinois registration rules are modeled so closely after the Securities Exchange Commission (SEC) rules that in practical effect they are the same. 49 Nw.U.L.Rev., at 781 (1955).

Young notes that the anti-fraud provisions of section 12G of the Illinois Securities Act of 1953 (Ill. Rev. Stat. 1973, ch. 121½, par. 137.12G) were patterned after section 17 of the Federal Securities Act of 1933 (15 U.S.C. par. 77q) which provides, generally, that it is unlawful to offer or sell securities in interstate commerce by fraudulent means and misleading statements. Section 12G of the Illinois Securities Act provides:

“It shall be a violation of the provisions of this Act for any person:
A. To sell any security except in accordance with the provisions of this Act:
# # #
G. To obtain money or property through the sale of securities by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.” (Ill. Rev. Stat. 1973, ch. 121½, par. 137.12G and A.)

The Federal counterpart provides in pertinent part:

“(a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
# # #
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, * * 15 U.S.C., par. 77(q) (1970).

It is also important to note that the language of section 12 of the Illinois Securities Act and section 17(a) of the Federal Securities Act of 1933 closely parallels SEC Rule 10b-5 which in pertinent part reads:

“It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, * * *
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they, were made, not misleading, * * (17 C.F.R., par. 240. 10b — 5 (1973).)

Except for the interstate elements in Rule 10b — 5, section 12 of the Illinois Securities Act cover the same violations. As to remedies, Rule 10b — 5, unlike its Illinois counterpart and section 17(a), provides a remedy for the seller as well as the buyer. Parrent v. Midwest Rug Mills, Inc. (7th Cir. 1972), 455 F.2d 123, 126 n. 7, 127; 1970 U. Ill. L.F. 296.

Moreover, Rule 10b — 5 and the Illinois Act share similar purposes. It is a well-established principle that the objective of the Illinois Securities Act is to protect innocent investors who are induced to invest in highly speculative securities. (Reid v. NX Corp. (1973), 11 Ill.App.3d 706, 297 N.E.2d 380; Silverman v. Chicago Ramada Inn, Inc. (1965), 63 Ill.App.2d 96, 211 N.E.2d 596; Meihsner v. Runyon (1980), 23 Ill.App.2d 446, 163 N.E.2d 236.) Similarly, SEC Rule 10b — 5 protects the uninformed, the ignorant, and the gullible. Surowitz v. Hilton Hotels Corp. (7th Cir. 1965), 342 F.2d 596, 602.

From the preceding analysis it is clear that a discussion of the pertinent Federal law will be helpful in determining whether statements made by the defendants in connection with dividend rates of Bigtop stock were untrue statements of material fact under Illinois law. Defendants contend in this appeal that the trial court correctly held that their statements were mere “puffing” or sales talk. A brief history of the origin and application of the concept of “puffing” will shed some light on this question.

The concept of “puffing” is derived from the doctrine of caveat emptor and was associated with the common-law actions of fraud and deceit. It arose primarily in the context of the sale of tangible goods in which examination by the purchaser was expected to counteract the persuasive effect of the salesman’s exaggerated statements. (See In re B. Fennekohl & Co. (1962), 41 S.E.C. 210; VI Loss, Securities Regulations, at 3541 (supp. to 2d ed. 1969).) In the early days of securities regulation the privilege to puff excused a good deal of misleading and exaggerated sales talk. The privilege often excused glowing predictions in the sale of mining stock. See, e.g., S.E.C. v. Gold Hub Mines Co., (D. Colo. 1939), 1 S.E.C. 634, 635; S.E.C. v. McDowell Mines, Inc. (D. Colo. 1937), 1 S.E.C. 376, 377; Burwash v. Ballou (1907), 230 Ill. 34, 82 N.E., 355; Stalnaker v. Janes (1910), 68 W.Va. 176, 69 S.E. 651. See also Los Angeles Trust Deed & Mortgage Exchange v. S.E.C. (9th Cir. 1959), 264 F.2d 199, 209.

At common law statements relating to future dividends, earnings, or expected profits which were made to induce the public to purchase corporate stock were privileged statements on which the public had no right to rely. Rescission was unavailable even if such statements were false when made. (2 Black, A Treatise on the Rescission of Contracts and Cancellation of Written Instruments, at 957 (2d ed. 1929).) For example, in Farmers’ Loan & Mortgage Co. v. Langley (1928), 166 La. 251, 117 So. 137, 140, a statement by an agent that his company “would pay” 15% per annum in dividends was described as a mere expression of opinion or confidence; accord, Zeh v. Alameda Community Hotel Corp. (1932), 122 Cal. App. 366, 10 P.2d 190.

However, recent authorities are unanimous in condemning the concept of “puffing” in the context of securities regulations. Loss, in his treatise, remarks that there is no longer much room for drawing the thin line between “puffing” and misrepresentation. (VI Loss, supra, at 3541.) In S.E.C. v. Capital Gains Research Bureau, Inc. (1963), 375 U.S. 180, 194, 11 L.Ed.2d 237, 248, 84 S.Ct. 275, the Supreme Court noted that:

“There has * * * been a growing recognition by common-law courts that the doctrines of fraud and deceit which developed around transactions involving land and other tangible items of wealth are ill-suited to the sale of such intangibles as advice and securities, and that, accordingly, the doctrines must be adapted to the merchandise in issue.”

A fundamental objective of the Federal Securities Act is to substitute a philosophy of full disclosure for one of caveat emptor and to thereby protect the investing public against the sharp practices of promoters whether or not such practices meet the requirements of common-law fraud. (S.E.C. v. Capital Gains Research Bureau (1963), 375 U.S. 180, 186, 11 L.Ed.2d 237, 243, 84 S.Ct. 275; In re Aircraft Dynamics International Corp. (1963), 41 S.E.C. 566, 570. See also Lerman v. Tenney (S.D.N.Y. 1969), 295 F.Supp. 780.) Similarly, it is apparent that the Illinois legislature by adopting a paternalistic scheme of securities regulation intended to remove caveat emptor from securities sales. Hence, the statutory right to rescind under section 12G is not dependent on the purchaser’s abfiity to prove common-law fraud. (Mark v. McDonnell & Co. (7th Cir. 1971), 447 F.2d 847.) To speak of “puffing” here, then, is an anomaly.

There is a growing recognition in the SEC and among the lower Federal courts that specific predictions of price increases or dividends are, in certain circumstances, actionable under Federal and State securities provisions. It is immaterial, then, whether the statements involved in this appeal are to be characterized as “fact” or as “opinion.” For example, in In re Aircraft Dynamics International Corp. (1973), 41 S.E.C. 566, securities salesmen represented to customers that dividends would be paid after a short time and that the stock would dramatically increase in value. The Commission rejected the salesmen’s assertion that their statements were mere opinion or “puffing” sales talk that one expects from any salesman. In re Associated Investors Securities, Inc. (1962), 41 S.E.C. 160, involved literature containing statements that the company guaranteed dividends of not less than 5% for the first year and not less than 6%, 7%, 8% and 10% in the 4 succeeding years. The SEC ruled that tírese representations carried a materially false implication that the company would earn increasing profits during the years which would be sufficient to justify the dividends. See also Holmes v. United States (8th Cir. 1943), 134 F.2d 125 (representation that prospective purchasers would receive interest as provided by the terms of the securities); Green v. Jonhop (D. Ore. 1973), 358 F.Supp. 413 (200% overstatement of projected earnings in a report which also recommended purchase of corporate stock); S.E.C. v. Hoffenden-Rimar International, Inc. (E.D. Va. 1973), 362 F.Supp. 323 (statement that investment in Scotch whiskey was safe and would provide an annual 20-25% profit when in fact this investment was highly speculative).

As a general rule, statements of opinion which have a firm historical or factual basis are not actionable. (G. & M., Inc. v. Newbern (9th Cir. 1973), 488 F.2d 742.) But unfounded predictions of future performance are impermissible under both Illinois and Federal antifraud provisions. (Rotstein v. Reynolds & Co. (N.D. Ill. 1973), 359 F.Supp. 109; S.E.C. v. Broadwall Securities, Inc. (S.D.N.Y. 1965), 240 F.Supp. 962; In re Associated Investors Securities (1962), 41 S.E.C. 160.) Shear-burn concedes in his brief that the Bigtop Restaurants were “new entities with no established market, no assets, and no basis upon which to reasonably calculate a return.” To either promise or predict an unusually high 15% rate of return on stock in a chain of restaurants which had yet to start business was clearly unjustified. (See In re Thomas Bond, Inc. (1939), 5 S.E.C. 60, 71.) * * Representations as to value, soundness and worth of securities may go so far beyond what may be considered the proper limits of the exaggerated enthusiasm of the normal salesman, or the mistaken judgment of the honest man, as to impress them with the badge or mark of fraud * * S.E.C. v. Franklin Atlas Corp. (S.D.N.Y. 1957), 154 F.Supp. 395, 400; accord, Holmes v. United States (8th Cir. 1943), 134 F.2d 125, 133; S.E.C. v. North American Research & Development Corp. (S.D.N.Y. 1968), 280 F.Supp. 106, 132.

If there were, in fact, any preconditions to payment of the full amount of the dividends, apparently none were stated to the plaintiffs. Half-truths, material omissions, misleading statements, and deliberate falsehoods in connection with the sale of securities are equally unlawful. Kubik v. Goldfield (3d Cir. 1973), 479 F.2d 472, 476; S.E.C. v. Hoffenden-Rimar International, Inc. (E.D.Va. 1973), 362 F.Supp. 323, 327.

The only question remaining, then, is whether misrepresenting the proposed scheme of dividend payments was material. The Federal courts have generally adopted the common-law definition of materiality as it is enunciated in the Restatement of Torts:

“A fact is material if (a) its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction in question, or (b) the maker of the representation knows that its recipient is likely to regard the fact as important although a reasonable man would not so regard it.” (Restatement of Torts, par. 538 (1934).)

(See, e.g., S.E.C. v. Texas Gulf Sulphur Co. (2d Cir. 1968), 401 F.2d 833 (en banc); Branham v. Material Systems Corp. (S.D.Fla. 1973), 354 F.Supp. 1048; S.E.C. v. M. A. Lundy Associates (D.R.I. 1973), 362 F.Supp. 226.) It is to be expected that disclosure of dividend rates or of any preconditions to their full realization may affect the desire of investors to buy, sell, or hold corporate securities. The record shows that the 15% rate of return on Bigtop stock was, in fact, the chief reason for plaintiffs’ decision to invest. While mere opinion or expression of the seller’s views on a future situation is not actionable under the Act, an expression of opinion, which is coupled with other statements, may be a statement of material fact even if it is framed technically to be a mere opinion. (S.E.C. v. Macon (D. Colo. 1939), 28 F.Supp. 127.) In the instant case the record shows that defendants’ statements were framed to convey the impression that the 15% rate of return was guaranteed even though the words “guaranteed” or “promised” were apparently never used.

Defendants also contend that plaintiffs did not plead or prove at trial that they notified defendant of their election to rescind the sales of Bigtop stock as required by section 13B of the Illinois Securities Act of 1953, which in pertinent part reads:

“Notice of any election provided for in Sub-section A of this section shall be given by the purchaser, within 6 months after the purchaser shall have knowledge that the sale of the securities to him is voidable, to each person from whom recovery will be sought, by registered letter addressed to the person to be notified at his last known address with proper postage affixed, or by personal service; * * Ill. Rev. Stat. 1973, ch. 12172, par. 137.13B.

In Burkhart v. Alison Realty Trust (N.D.Ill. 1973), 363 F.Supp. 1286, and in Jordan Building Corp. v. Doyle, O’Connor & Co. (N.D.Ill. 1967), 282 F.Supp. 87, plaintiffs’ actions under the antifraud provisions of the Securities Act of 1953 were dismissed for failure to plead that notification was sent to the defendants within 6 months from the date when plaintiffs had knowledge that the sales were voidable. However, both in Burkhart and in Jordan Building it is unclear whether the court would require a separate notice of election to rescind other than tire complaint itself. In the instant case, plaintiffs specifically stated in then complaint that by filing suit they elected to void the sales of Bigtop securities and that less than 6 months had elapsed between the time they acquired knowledge that the sales were voidable and the time of filing suit. There is nothing in Burkhart or in Jordan Building to indicate that a complaint with sufficiently specific allegations may not also serve as a notice of an election to void , the sale of securities. The Illinois Securities Act is paternalistic in character and therefore its provisions should be liberally construed to protect the investing public from fraud and deceit in the sales of securities. Silverman v. Chicago Ramada Inn (1965), 63 Ill. App.2d 96, 211 N.E.2d 596, 598; Stein v. Timlight Motel, Inc. (1961), 29 Ill.App.2d 131, 172 N.E.2d 642; Meihsner v. Runyon (1960), 23 Ill.App.2d 446, 456, 163 N.E.2d 236.

Young in his interpretive comments notes that the purpose of section 13B is to cut down the liability period, especially with respect to inadvertent violations of the Act and to thus prevent purchasers from waiting tire entire statute of limitations to decide whether to elect rescission. In the instant case the record shows that summons and copies of plaintiffs’ complaint were served personally on defendants Jones and Shearburn on March 24, 1970, within 6 months of the dates on which plaintiffs first acquired knowledge from their attorney that the sales of Bigtop stock were voidable.

The record also shows that Carman filed a motion to dismiss plaintiff’s complaint on April 27, 1970. Thus it is to be presumed that he had previously received notice. Personal service of summons and complaint appears sufficient to satisfy the notice requirements of section 13B under a liberal reading of the statute. This result is not inconsistent with the purpose of the provisions particularly since there is no contention here that defendants’ defense was hampered or prejudiced by plaintiffs’ failure , to send a separate notice of their election to the sales of Bigtop stock.

Defendants also contend that the appellants did not establish a date on which they acquired knowledge that the sale was voidable and thus they did not prove that they met the statutory requirements of notifying the seller of their intention to void the sale within 6 months of gaining knowledge that the sale was voidable. The undisputed testimony of the appellants was that none of them had any knowledge that these sales were voidable under the Illinois Securities Law until they contacted their attorney in early 1970. In Curtis v. Johnson (1968), 92 Ill.App.2d 141, 234 N.E.2d 566, the court stated that knowledge that a sale is voidable is a mixed question of fact and law on which a layman is entitled to acquire his first knowledge from an attorney. Having received knowledge that the sale was voidable, the appellants, through their attorney, filed suit on March 16, 1970. The defendants have introduced no testimony that would lead to a different conclusion and thus it appears that the appellants did notify the defendants of their election within the required 6 months.

Section 13A of the Illinois Securities Act of 1953 provides that each underwriter, dealer, salesman, corporate officer and corporate director who participates or aids in any way in making a sale of securities in violation of the Act is jointly and severally liable for the purchase price, together with interest and reasonable attorney fees. (Ill. Rev. Stat. 1973, eh. 121½, par. 137.13A.) Jones signed the stock certificates as president of the three Bigtop corporations, conducted a public meeting at which the public was encouraged to invest in Bigtop stock, on one occasion made a personal loan to facilitate the purchase of stock, received plaintiffs’ checks from Shearburn and on two occasions personally solicited sales. He also instructed Shearburn regarding the dividend rates, received purchasers’ checks, and served as secretary of tire three Bigtop corporations. As promoters, both Jones and Carman are liable on all counts.

Shearburn, as salesman for the Bigtop securities, personally solicited the purchase of Bigtop stock on numerous occasions. Since he was not named as a defendant in Counts VII, IX, X or XI, he is liable only to plaintiffs Charles Norville, Carl House, Fred King, Denver McCollum, Odie Nichols, Alma Hillier and William Camp.

Alton Bigtop Restaurant, Inc., Bethalto Bigtop Restaurant, Inc., and Wood River Bigtop Restaurant, Inc., are liable as issuers in all counts. Since defendant Restaurant Associates, Inc., owns 60% of the stock in each of the three Bigtop Corporations, it is liable as a controlling person in all counts.

For the foregoing reasons, the judgment of the trial court of Madison County is reversed and this case is remanded with directions to enter judgment as follows:

On Count I, in favor of appellant Charles Norville and against defendants Jones, Shearburn, Carman, Alton Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count II, in favor of appellant Carl House and against defendants Jones, Shearburn, Carman, Alton Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count III, in favor of appellant Fred King and against defendants Jones, Carman, Shear-burn, Alton Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count IV, in favor of appellant Denver McCollum and against defendants Jones, Shearburn, Carman, Alton Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count V in favor of appellant Odie Nichols and against defendants Jones, Shearburn, Carman, Wood River Bigtop Restaurant, Inc., Bethalto Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count VI in favor of appellant Alma Hillier and against defendants Jones, Carman, Shearburn, Wood River Bigtop Restaurant, Inc., Bethalto Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count VII in favor of appellant Charles Schoeneweis and against defendants Jones, Carman, Bethalto Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count VIII, in favor of appellant William Camp and against defendants Jones, Carman, Shearburn, Bethalto Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count IX in favor of appellant Paul Slaughter and against defendants Jones, Carman, Wood River Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; on Count X in favor of appellant Rebecca Lyford and against defendants Jones, Carman, Wood River Bigtop Restaurant, Inc., and Restaurant Associates, Inc.; and on Count XI in favor of plaintiff Marion Bruns and against defendants Jones, Carman, Wood River Big-top Restaurant, Inc., and Restaurant Associates, Inc.

The trial court is further directed to determine the purchase price which each plaintiff is entitled to recover, together with interest and reasonable attorney fees as authorized by section 13A(2) of the Illinois Securities Act of 1953 (Ill. Rev. Stat. 1973, ch. 12F/2, par, 137.13A(2)).

Reversed and remanded with directions.

EBERSPACHER and CREBS, JJ., concur.


author: PER CURIAM:

text:
    Franklin H. Allison et al., Minors, by Franklin H. Allison, Their Father and Next Friend, Plaintiffs-Appellants, v. Charles M Howell, Defendant-Appellee—(Charles M. Howell, Counter-plaintiff, v. Franklin H. Allison, Counterdefendant.)
    (No. 73-9;
    Fifth District
    September 26, 1974.
    Wayne E. Armstrong and Jon D. Robinson, of Hull, Armstrong. & Campbell, of Decatur, for appellants.

      John W. Fribley, of Fribley & Fribley, of Pana, for appellee.
   PER CURIAM:

This was an action to recover damages incurred by the plaintiffs as a result of the alleged negligence of the defendant in operating his automobile. The defendant counterclaimed for damages. The jury rendered a verdict for defendant on plaintiffs’ complaint and for plaintiffs on defendant’s counterclaim. The court entered judgment on these verdicts. Appeal is taken from the jury’s verdict on the plaintiffs’ complaint and the judgment on that complaint. No questions are raised on the pleadings. The errors assigned concern the cross-examination of one of the witnesses and the closing argument of defense counsel.

On May 14, 1970 plaintiffs Franklin and Jane Allison and their children, Edward and Sheila, were traveling north on highway 51 south of Pana, Illinois. Defendant Charles Howell was traveling south on highway 51. At a point approximately one mile south of Pana and adjacent to the north entrance to the Hi-Way Tavern, which is located on the east side of the highway, a collision between these two automobiles occurred. Both vehicles involved in the collision were Buick four-door sedans. Plaintiff, Franklin Allison, was driving the Allison car; his wife, Jane, was in the front seat, the two children were in the rear seat. There were no passengers in the Howell car. Neither the defendant nor any of the plaintiffs remember details of the accident.

Defendant Howell testified that the plaintiffs’ car was in the southbound lane (.the defendant’s lane) when it appeared on the ridge of the hill and that it was going about three times as fast as his own car or at a speed of approximately 55 miles per hour. He testified that he tried to avoid the oncoming car by veering onto the shoulder.

James R. LaGuartie, an eyewitness of the accident from his truck which was proceeding northward IV2 to 2 car- lengths ahead of plaintiff’s car, testified that as he reached a point opposite the north entrance of the Hi-Way Tavern, defendant’s car, after passing a truck in front of the witness, came into the witness’ lane causing him to think that the defendant was going to hit the rear of his truck. He further testified that before the collision the plaintiff’s car was completely in the northbound lane and that when he saw the Howell car last — just before the impact— it was headed southeast and was across the center line to the east. He also testified on cross-examination that he smelled liquor on defendant’s breath after the collision.

James Weakly testified for the plaintiff that he was in the Hi-Way Tavern about 2 weeks after the' collision at which time the defendant came in and, in the course of the conversation about the accident, stated that he was crossing the center line to drive into the tavern when he saw the appellant’s car coming from the opposite direction and that he was unable to pull back into his own lane.

Witnesses for the defendant testified that he had not been drinking and that skid marks on the highway and the location of debris after the collision indicated that the collision occurred across the center line and on the defendant’s side of the highway.

Plaintiff maintains that tire evidence at the trial was in such sharp conflict that any substantial error or errors by defendant in the conduct of the trial had a significantly prejudicial effect on the jury in rendering its verdict for defendant, thus requiring reversal on appeal. Defendant concedes that the trial was not entirely free from error but argues that such errors were either minor and non-prejudicial or, even if prejudicial, not preserved by proper objection for appeal.

Plaintiff contends that the following constitute reversible error:

(1) During cross-examination of plaintiffs’ witness, Weakly, defendant’s counsel improperly asked if Weakly’s business was bankrupt. Objection by plaintiffs’ counsel was overruled. Weakly denied the bankruptcy.
(2) Defendant’s counsel in summation implied that failure to use seat belts went to the question of liability and contributory negligence, which is an incorrect statement of relevant law. Plaintiffs’ objection was overruled, motion for a mistrial denied, and tire jury not instructed to disregard the statement.
(3) In his summation defendant’s counsel, referring to witness LaGuartie, stated that he had a natural apprehension of long-haired hippy-type people and stated further that LaGuartie kept his hand over his mouth when he testified and that most judges or lawyers know when a witness does that he has something to hide. Plaintiffs’ objection was overruled.

In view of the sharp conflict in testimony on the facts, we believe that the errors complained of were substantial and that they were prejudicial to the appellant.

To support his contention that where a case is close on its facts and the jury might have decided either way, any substantial error which tips the scales in favor of the successful party calls for reversal, plaintiff cites a number of cases. Both v. Nelson, 31 Ill.2d 511, 202 N.E.2d 494, supports this view except that in Both the errors complained of concerned admission of evidence and the sufficiency of instructions. In Edwards v. Hill-Thomas Lime & Cement Co., 378 Ill. 180, a case involving a collision between a truck and a van, two points were urged as error — namely that questions by plaintiff’s counsel on voir dire related to insurance coverage; and that in an instruction on contributory negligence the statement that plaintiff could not recover if he had wrongly placed himself in a dangerous situation, was not included in an instruction on contributory negligence. The court reversed and stated: “* * # the case was close on the facts and was one which the jury might have decided either way. In this situation it is important that the record be free from errors of law which may have affected the result.” While the court did reverse for error in Chicago, Burlington & Quincy R.R. Co. v. Warner, 108 Ill. 538, and in Crane Co. v. Hogan, 228 Ill. 338, cases cited by the plaintiff, reversal in both cases was based on improper instructions to the jury. Reversal in Duffy v. Cortesi, 2 Ill.2d 511, was also based on erroneous instructions. However, in Owen v. Willett Truck Leasing Corp., 61 Ill.App.2d 395, and in Jacobson v. National Dairy Products Corp., 32 Ill.App.2d 37, reversible error consisted of counsel’s conduct during the trial. In Owen, error consisted in the offering into evidence of exhibits known to be incompetent, the questioning of witnesses based on facts not in evidence, and in summation, the argument of facts not in evidence. In Jacobson the error consisted of counsel referring to a police court case in which the defendant had been exonerated, and in testifying and making improper comments in his summation. In Morse v. Michaelson, 101 Ill.App.2d 366, plaintiff sued for damage caused by the defendant’s aUegedly negligent architectural designs. Plaintiff’s counsel asked whether at the time this job was done defendant had gone into bankruptcy. The objection by defense counsel was sustained, but the court failed to admonish the jury to disregard the question. A verdict for the plaintiff was reversed on appeal and the court, quoting from Chicago, B & Q Ry. Co. v. Kelley (8th Cir. 1934), 74 F.2d 80, 86, observed that questions which give a jury improper prejudicial information need not constitute reversible error if the trial judge has sustained all timely objections and properly admonished the jury. The court noted no such admonition. In the instant case the prejudice was even greater because the objection by plaintiffs’ counsel was not sustained, and the jury received no admonition though witness Weakly stated that there had been no bankrupty. Nothing was done to dispel the prejudicial effect of this line of questioning.

Appellant cites as error remarks made by defense counsel in his summation:

“One of the things which concerns me is the testimony about the glass in the face, a terrible thing to happen, and you will see that there was glass in the face of Mr. and Mrs. Allison. They hit the windshield, and this happens in the head-on colhsions many, many times, but you will recall the question, I beheve, and the answers were ‘Were you wearing securely fastened seatbelts, or did you have them in the car?’ and I believe the answer was ‘yes, we had them in the car, but we weren’t wearing them.’ I think you have to decide whether they were in the exercise of due care and caution for their own safety.”

While defendant argues that this statement was made with respect only to mitigation of damages, it is obvious that the jury might not so understand it, and the settled rule in Illinois is that evidence of the use or nonuse of seatbelts is only admissible on the nature and extent of the injury sustained and not on the question of liability (Mount v. McClellan, 91 Ill.App.2d 1). Furthermore, this portion of counsel’s summation misstated the evidence since neither of the plaintiffs, Mr. or Mrs. Allison, stated that they were not wearing their seatbelts. Mr. Allison stated that he did not believe that he and the passengers had seatbelts fastened, but he couldn’t remember. Mrs. Allison testified that the car was equipped with seatbelts and that she did not recall whether they were wearing them. Plaintiffs’ objection was not sustained, and their motion for the withdrawal of a juror was denied.

During the course of defense counsel’s argument, he said in regard to the testimony of James Weakly:

“I don’t think there is anyone in this case who has particularly misrepresented the truth, but I just can’t other than, I just can’t go along with James Weakly’s testimony and I just can’t go along with LaGaurtie’s. You say LaGuartie came out here, number 1, let’s take Weakly first. Weakly gets down here and says, ‘I come in ten days or two weeks later and I sit there on the stool at the tavern and Charlie Howell walks up and said, no, I said, “Charlie, old boy, I didn’t think I would ever see you again,” and Charlie says, “Well, I’m lucky because it was my fault.” He said, ‘Well, he may not have used those words,’ “I pulled in front of a car and the car came over the hill going real fast, and I couldn’t get back in time.” Do you think the average person would admit that he violated the law? No, we just don’t do things like that. That is human nature. I don’t know if he is beholden to this law firm that has represented him in two or three cases or if that is why he came in or because he was mad at him because he was against me in two or three cases, but I just can’t accept the word of Jim Weakly on most anything, and on this, I can’t at all. LaGuartie, you say he came all the way out here from California. Of course I’m 66 years old, I don’t have any hair left anyway, I’ve got somewhat natural apprehension to long haired Hippy type people, that doesn’t embarrass him whether he is telling the truth or not — ”

At this point plaintiffs’ counsel objected and moved for the withdrawal of a juror. His motion was denied. Speaking further of witness LaGuartie, defense counsel stated:

“* * * This LaGuartie, the fellow when he did all his testifying he kept his hand over his mouth. I don’t know why that is, but most judges or lawyers know, or feel, that a witness * *

At this point plaintiffs’ counsel objected and his objection was overruled. Defense counsel then proceeded and stated:

“If a person has a hand over his mouth we think he has got something to hide. I know I have — as you know, I don’t hear* too well, and I do a lot of good, I hope, on lip reading but you can’t read a man’s lips * *

Again plaintiffs’ counsel objected and the court stated in response, “Reframe your argument. Your interpretation of the evidence and the comments as presented * *

In Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95, the appellate court found that the trial court had in effect converted counsel’s misstatements into its own instructions by overruling objections and saying “You may proceed.” The instant case is similar in that concededly improper remarks made by defendant’s counsel, though not so numerous as in Bulleri, were objected to unsuccessfully by plaintiffs’ counsel. While we agree with appellee, citing Johnson v. Chicago Transit Authority, 11 Ill.App.3d 16, that improper remarks by counsel are not grounds for reversal if the court took measures at the time to guard against any prejudicial effect, we find that in the instant case, with respect to the errors alleged, such measures were not taken and the court did not sustain objections or admonish the jury. Whether or not errors complained of actually prejudice the losing party or unduly affect the outcome of the case is a question unique in each case and must be decided on the facts and circumstances arising in that case. We do not feel that Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 118, and Gatto v. Curtis, 6 Ill.App.3d 714, supply any useful guidelines for the instant case. We believe that during the trial of this case there were errors substantially prejudicing the rights of plaintiffs to a fair trial.

The judgment is reversed and the cause remanded for a new trial.

Mr. JUSTICE EBERSPACHER took no part in the consideration or decision of this case.


author: Mr. JUSTICE EBERSPACHER

text:
    Postal Film, Inc., Plaintiff-Appellant, v. William McMurtry, Jr., Defendant-Appellee.
    (No. 73-362;
    Fifth District
    September 30, 1974.
    Richard W. Sterling, of Belleville (Ben S. Urban, of counsel), for appellant.
    Walker & Williams, P. C., of Belleville (John B. Gunn, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the ©pinion of the court:

This is an appeal by the plaintiff, Postal Film, Inc., from an order entered by the circuit court of St. Clair County vacating a default judgment order which had previously been entered against the defendant, William McMurtry, Jr.

This action was commenced by the plaintiff to collect an account stated allegedly due from the present defendant, William McMurtry, Jr., individually and doing business as Bill’s Camera Exchange and also from Bill’s Camera Shop and Exchange, Inc. The individual defendant shall be hereinafter referred to as the defendant and the defendant corporation referred to as the corporation.

The action was filed on the 26th day of August, 1969. The defendant was personally served on September 2, 1969. Service was made on the corporation the same date by serving an officer of the corporation.

Default judgment was obtained against the defendant and the corporation on December 23, 1969. The judgment was for the amount of $5534.17 and $61.80 costs for goods and services furnished by the plaintiff consisting of “photographic finishing and processing services and Polaroid equipment.”

The default judgment was vacated on September 10, 1973. From this order vacating the default judgment, this appeal has been taken by the plaintiff.

For an understanding of this case a chronology of the events is not only helpful but necessary.

After the plaintiff obtained the default judgment in December, 1969, the next occurrence was on January 22, 1970, when a citation to discover assets was served upon the defendant for his appearance on January 30, 1970. He failed to appear. Then on February 4, 1970, a citation to show cause why he should not be held in contempt of court was served on the defendant.

The record indicates that the defendant and plaintiff’s attorney were present before the tidal court on February 13, 1970, and both requested that “the matter” be continued until February 27, 1970. On February 27, 1970, the hearing on the citation to discover assets was then continued by agreement until March 13, 1970. On March 2, 1970, the defendant was served with an execution. The defendant was served by mail on March 9 with notice to attend the previously “agreed” hearing set for the 13th of March.

The defendant on March 12, 1970, filed his motion to vacate and set aside order, in which the conclusion that he, McMurtry, was not personally responsible for goods purchased from plaintiff, was alleged. It was not accompanied by any supporting affidavit. The record indicates that on March 25, 1970, the trial court refused to hear the motion to vacate at the citation hearing and directed that counsel reschedule the motion.

The trial court then on August 29, 1973, entered its order stating “cause continued for filing of proper affidavits.” The defendant filed an affidavit on the same date stating among other things, (1) that all services and products purchased from the plaintiff had been so done by the corporation, (2) that the corporation had been placed in involuntary bankruptcy during the fall and winter of 1969, (3) that the defendant believed the summons was directed to the corporate defendant, that for approximately 12 months of the 3%-year delay the defendant was in Federal prison, and (4) that the defendant felt that he had a “good defense” to the plaintiff’s judgment.

On September 10, 1973, the plaintiff filed its motion to strike defendants motion to vacate and set aside, and defendant’s affidavit. As grounds, among others, for this motion the plaintiff asserted that the “[defendant failed to timely file such pleadings” and the “[defendant failed to allege facts showing due diligence.”

The plaintiff has appealed urging that the court below erred in not granting its motion to strike defendant’s motion to vacate and set aside, and defendant’s affidavit and in granting defendant’s motion to vacate and set aside order.

The plaintiff correctly asserts, and defendant in his brief concedes, that the defendant’s pleading, filed more than 30 days after the entry of a default judgment, must be construed as a petition for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, §72), as amended. Mehr v. Dunbar Builders Corp., 7 Ill.App.3d 881, 289 N.E. 2d 25; Forsberg v. Braiterman, 101 Ill.App.2d 475, 243 N.E.2d 433 (abstract opinion).

The appellant has cited several cases in support of its position. The case of Johnson-Olson Floor Coverings, Inc., v. Branthaver, 94 Ill.App.2d 394, 236 N.E.2d 903, involved a complaint for account due with a default judgment entered against the defendant. As in the instant case, 30 days after entry of the default judgment the plaintiff filed a citation to discover assets which was served on the defendant. Six days thereafter the defendant filed a section 72 motion to “reopen” the judgment. The defendant claimed that he had a meritorious defense because he had filed for bankruptcy and that he “was under a misapprehension that his pending bankruptcy relieved him of the responsibility of responding to suit in state court and therefore, he did not consult an attorney, file an answer or otherwise enter his appearance in the matter.” The trial court denied the defendant’s motion and upon appeal the decision was affirmed. The appellate court addressed itself to the requirements of section 72 at page 397, where it stated:

“It is well settled that a determination under Section 72 involves the equitable powers of the court, as justice and fairness require. * * * Although this section is not intended to relieve a party ‘from the consequences of his own mistake or negligence’ * * * relief thereunder will be granted where the defendant shows a reasonable excuse for failure to act within the appropriate time, together with a statement of ultimate facts showing a meritorious defense.”

The court continued at page 398, by stating:

“It is quite clear, however, that the defendant must show that his failure to defend was a result of excusable mistake, and that under the circumstances he acted reasonably, and therefore not negligently, when he failed to initially resist the judgment. * * * While the question of the defendant’s negligenc must be determined on the facts of each particular case, the decisions dealing with the question imply that the defendant’s neglect is not excusable where he ignores the summons, or otherwise treats the proceedings with indifference.”

Then, at page 401, the court added that:

“We are not here called upon to delineate hypothetically the circumstances under which a defendant’s neglect will be excused where he relied on the advice or representation of his attorney or insurer. As noted above, such cases must depend on their particular facts, and to try to establish a general rule would create dangerous precedent. What we are deciding, however, is that the defendant who ignores the summons and takes no action whatsoever, in reliance on nothing more than his own evaluation of his legal rights, is guilty of inexcusable negligence as contemplated by section 72 and the cases decided thereunder.”

The appellant also cites Elliot Construction Corporation v. Zahn, 99 Ill.App.2d 112, 241 N.E.2d 129. This case held that:

* 6 the petition [for Section 72 relief] itself must be sufficient in and of itself to warrant such a holding [vacating tire default judgment]. In the case at bar it was incumbent upon the defendant to not only show a meritorious defense, but also facts which show that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court. Such motion or petition is not intended to reheve a party from the consequences of his own mistake or negligence. (Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 236 N.E.2d 719 (1968).)" (99 Ill.App.2d at 116.)

The court then affirmed the trial court’s refusal to vacate the plaintiff’s default judgment order. See also Gordon v. Excel Wholesale Grocery Co., 1 Ill.App.3d 487, 274 N.E.2d 895.

We are mindful that this court has the discretion to uphold an order vacating a judgment where to do otherwise would cause a great injustice to be done to the defendant. Section 72 is addressed to the equitable powers of the court. The exercise of such powers must be primarily concerned with the prevention of injustice. Riley v. Unknown Owners of 304 North Oak Park Avenue Building, 6 Ill.App.3d 864, 286 N.E.2d 806.

“Courts are not strictly bound by precedent in affording post judgment relief. Whether or not the litigants are entitled to relief under section 72 depends on all the circumstances attendant on the entry of the default judgment. Many different factual situations would justify or necessitate the vacation of a decree or a portion thereof.” 6 Ill.App.3d at 866.

In the present case a substantial effort has been expended by the parties in an attempt to justify, explain, excuse, or condemn the efforts of or lack of effort by the defendant after the default judgment had been entered. The delay of some 79 days after judgment has been confused with corollary issues as to when the defendant became aware of the judgment. The plaintiff asserts that the defendant must have gained knowledge 30 days after judgment upon receiving the citation to discover assets, and the defendant asserts that he received no knowledge of the judgment until the execution was entered and, of course, thereafter he reacted with diligence. No contention is made that fraud was a basis for any claim of relief.

The defendant’s motion to vacate states no facts upon which the court below could have found excusable the failure of the defendant to answer the allegations of the plaintiff. The affidavit filed by the defendant in support of his motion also is deficient in this aspect. The affidavit only contains one allegation that might be construed as a fact excusing the defendant’s neglect. The defendant affirmed “[t]hat during that particular period of time [Fall of 1969], I was constantly being served with summons by various creditors of the corporation and that at the time I received the summons in the instant case, I did not realize that his was an individual suit instead of a suit against the corporation.”

This court cannot and will not hold that because a defendant did not read or did not seek counsel to read a summons constitutes excusable neglect, mistake or absence of fault.

The facts of this case are too closely analogous to the Johnson-Olson Floor Coverings case for precedent to be ignored. Indeed, as stated in that case, at page 399: “Defendant has cited no case, and we know of none, when a defendant was granted relief under section 72 after ignoring the proceedings on his own initiative.” (Emphasis ours.) Likewise, we do not feel that a great injustice is done to the defendant.

“Defendant here asks this court to excuse his conduct prior to the judgment, and hold that he acted reasonably under the circumstances. This we cannot do. The defendant is untrained in the law, and had no right to conclude, as a matter of law that he was immune from plaintiff’s claim by virtue of the pending bankruptcy proceeding. To hold otherwise would be to give license to all future defendants to make a preliminary self-determination as to their legal rights, and then ignore the proceedings if they believe the complaint is without merit. Obviously the proper administration of justice could not condone such a practice.” 94 Ill.App.2d at 400.

The order of the circuit court of St. Clair County vacating the default judgment is reversed with direction that the judgment be reinstated.

Order reversed with directions.

G. MORAN, P. J., and CREBS, J., concur.


author: Mr. PRESIDING JUSTICE CRAVEN Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Packnett, Jr., et al., Defendants-Appellants.
    (No. 11856;
    Fourth District
    June 13, 1973.
    John F. McNichoIs, of Defender Project, of Springfield (J. Daniel Stewart, of counsel), for appellants.
    Everett L. Laury, State’s Attorney, of Danville, for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The defendants were charged with armed robbery, attempted murder and aggravated battery. The offenses occurred on December 23, 1971. The defendant Hurt was then 16 years old and the defendant Packnett was then 17 years of age.

The defendants ultimately entered pleas of guilty to the charge of armed robbery. The other charges were dismissed pursuant to an agreement with the prosecution. Each defendant was sentenced to a term of not less than 10 nor more than 18 years. Both appeal and urge that the sentence imposed is excessive.

In addition, the defendant Packnett urges that he was denied equal protection of the law in that he was initially charged and prosecuted as an adult. There were no proceedings pursuant to the provisions of the Juvenile Court Act. (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7.) Such proceedings were instituted as to Hurt and this court is advised by verified motion that an order was entered in the juvenile court case removing this cause to the adult criminal docket, thus the equal protection issue is not applicable in the case of Hurt.

This court in People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189, held the cited section of the Juvenile Court Act to be unconstitutional under the facts found in Ellis. The equal protection issue in Packnett is controlled by the opinion in Ellis. Accordingly, the conviction of Pack-nett must be reversed and the cause remanded to the circuit court with directions to afford Packnett those rights under the Juvenile Court Act he would have had but for the denial of equal protection in accordance with the opinion of this court in Ellis. Mr. Justice Trapp adheres to the views expressed in his dissenting opinion in Ellis.

As to the defendant Hurt, the only issue is the asserted excessiveness of the sentence imposed of not less than 10 nor more than 18 years. Hurt was 16 on the date of the offense and 17 at the time of the hearing in aggravation and mitigation.

The offense of armed robbery carried a minimum penalty as of the date of this offense of 5 years. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) Under the new Code of Corrections, armed robbery is a Class 1 felony with a minimum sentence of not less than 4 years. While we have held that the Code of Corrections, which was effective on January 1, 1973, will be deemed applicable to cases that are on direct appeal and have not reached “a final adjudication”, such is not determinative of the issue here urged.

Class 2 and Class 3 felonies are now subject to a legislative mandate that the minimum sentence shall not exceed one-third of the maximum. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1(c).) That ratio is not legislatively mandated by the Code of Corrections as to this offense— a Class 1 felony. However, the American Bar Association’s standards as to Sentencing Alternatives and Procedures recommends such ratio and such recommendation was recognized by this court as a suggested guideline, but not necessarily an exact mathematical formula. (See People v. Scott, 117 Ill.App.2d 344, 253 N.E.2d 553.) This case, however, was prior to the Code of Corrections.

The offense here was aggravated in that the defendants were armed, Packnett had a gun and Hurt was armed with a knife. A service station attendant was shot and wounded by Packnett. As the trial court observed, the offense could have resulted in the killing of the victim. The offense is thus aggravated and serious.

The age of the defendant is, however, a circumstance to be considered. While he did have a prior record as a delinquent, such record did involve offenses against the criminal laws. The sentence imposed by constitutional mandate is to be determined “according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, sec. 11.

A majority of the court is of the opinion that the sentence of Hurt should not be modified pursuant to the authority contained in Supreme Court Rule 615. Accordingly, the conviction and sentence as to the defendant Hurt will be affirmed.

Conviction of the defendant Hurt affirmed. Conviction of the defendant Packnett reversed and cause remanded with directions.

SIMKINS and TRAPP, JJ., concur.

SUPPLEMENTAL ORDER AND OPINION UPON REHEARING

Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Lawrence Packnett, Jr., and Michael Hurt originally appealed from a conviction for armed robbery entered upon their plea of guilty. Each defendant was sentenced to a term of not less than 10 nor more than 18 years. In our original opinion, the conviction of the defendant Hurt was affirmed and the majority of the court refused to modify the sentence. The conviction of the defendant Packnett was reversed and the cause was remanded in keeping with the opinion of this court in People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189. Thereafter, the Illinois Supreme Court granted leave to appeal and although that court determined a cited section of the Juvenile Court Act to be unconstitutional, its determination as to remedy essentially reversed the determination of this court. Accordingly, by reason of People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, this court was in error in reversing and remanding for a new trial.

The defendant Packnett’s contention with reference to excessiveness of sentence and his contention that the trial court was lacking in sufficient information for imposition of sentence is adequately disposed of in the original opinion. Accordingly, upon rehearing, the conviction and sentence imposed upon the defendant Lawrence Packnett, Jr., should be, and the same are, affirmed.

Affirmed.

TRAPP, P. J., and SIMKINS, J., concur.