author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Janice C. Gaddis, Plaintiff-Appellant, v. Ellis M. Gaddis, Defendant-Appellee.
    (No. 73-146;
    Fifth District
    June 26, 1974.

      Rehearing denied August 7, 1974.

    Nick D. Vasileff, of Madison, for appellant.
    Hoagland, Maucker, Bernard & Almeter, of Alton (Donald L. Smith, of counsel), for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Plaintiff filed a petition to enforce certain provisions of a divorce decree which provided that the defendant was under an obligation to finance their daughter’s college education. The defendant filed a counter-petition seeking to have the decree modified, and the Circuit Court of Madison County, in interpreting the provisions of the decree, ordered that the defendant should continue payments for school support in the amount of $75 per month for 4 years or until the child attains 22 years of age, whichever occurs first, provided the college is accredited and the child attends on a full-time basis with passing grades. Plaintiff appeals.

The evidence shows that prior to obtaining a divorce, the parties had entered into a property settlement agreement. In April of 1969 a divorce decree incorporating the property settlement agreement was granted, which gave the permanent care, custody, and education of the parties’ three minor children to the plaintiff. The decree and property settlement agreement also provided in part as follows:

“(7) That the Defendant, so long as he is alive, shall pay, commencing with the month of May, 1969, as child support for said minor children as follows:
Theodore E. Gaddis.................$100 per month;
Beverly M. Gaddis.................. 75 per month;
Elizabeth E. Gaddis................. 75 per month;
said child support as to each such minor child, as set forth above, shall be paid by Defendant until such time as said minor child attains majority or until said minor child’s earlier death; that in respect of such of the three children of the parties as may elect to attend, and do attend, college or a university, Defendant shall pay without contribution by Plaintiff, in addition to any child support, the cost of tuition, books, incidental fees and board and room for the scholastic year. Should attendance at any college or university extend beyond the majority of any child, Defendant shall notwithstanding such majority, continue payment of support money as herein provided until the termination of such college or university education.”

This case concerns the financing of the college education of Beverly M. Gaddis. After graduation from high school, she selected and did attend Drury College in Springfield, Missouri, in the year 1970 with the expenses being paid in part by the defendant and in part through a work grant. The following year Beverly registered at Lewis & Clark Community College in Godfrey, Illinois, and attended for one semester while living at home with her mother. Her father paid tuition, books, and incidental fees. While she was attending Lewis & Clark College, the defendant informed Beverly and his son, Ted, that he would no longer pay for their college expenses. Beverly then informed her father that she would drop out of school for the next quarter and go to Oklahoma to work, but that she would return to school in the fall of 1972. She thereafter enrolled in the University of Missouri at Columbia as a transfer student without discussing it with her father. The evidence shows that Beverly was an “average” student, that she decided to major in psychology at the University of Missouri and was fully aware of the degree requirements. The cost of tuition, room and board, books, and incidental fees for the 1972-73 school year at the University of Missouri was approximately $2920 and the defendant refused to pay these costs.

In finding the provision of the divorce decree and property settlement agreement relating to child support and college financing “vague and uncertain,” the trial judge stated that the testimony indicated a diminution of the defendant’s assets and earnings, and that Beverly Gaddis had attended Drury College and Lewis and Clark Community College at the defendant’s expense and did not take a full load of courses, but did take subjects the defendant thought were not geared to a superior education. He concluded that “the intention of the parties and the court in its decree was not to permit the children to attend any school, at any cost, at any time ” * The trial court interpreted the decree to be that the defendant was to pay college support for Beverly in the amount of $75 per month, 12 months a year for 4 years until she attains 22 years of age or finishes college on a full-time basis and has passing grades.

This interpretation of the parties’ intent in entering into the property settlement agreement which was thereafter incorporated into the divorce decree effectively relieved the defendant of any obligation to pay in addition to the $75 per month child support “the cost of tuition, books, incidental fees and board and room for the scholastic year.” Thus, while the form of the trial court’s order manifested a judicial interpretation, the substance of the order constituted a radical modification of the decree that was contrary to the express language of the decree clearly indicating what the parties had intended. This we believe was error.

The intent of the parties as expressed in the property settlement agreement and incorporated into the divorce decree is clear. Paragraph 7 of the agreement is composed of essentially three parts. First, the defendant promised to pay as child support for Beverly M. Gaddis $75 per month until such time as she attained majority or until her death. Secondly, he promised that if any of the parties’ three children elected to attend college, he would pay without contribution by the plaintiff and in addition to any child support, the cost of tuition, books, incidental fees and board and room for the scholastic year. And lastly, the defendant promised that such attendance of any child at any college extend beyond the majority of any child, he would notwithstanding such majority, continue payment of support money until the termination of such college education. The agreement did not restrict the children in choosing a college to attend, nor did it require that they complete their education in any specified length of time.

The defendant argues that a divorced parent who pays for the educational expenses of a child has a right to select reasonable educational facilities. However, there is no requirement that he be consulted -in this property settlement agreement, and under the circumstances of this case, prior consultation would have been of little value in view of the defendant’s refusal to offer further assistance for his daughter’s college education, until this was brought. (Hight v. Hight, 5 Ill.App.3d 991, 284 N.E.2d 679.) Therefore, defendant’s refusal to finance Beverly’s college education at the University of Missouri at Columbia is patently a refusal to comply with a reasonable interpretation of paragraph 7 of the divorce decree. Under the terms of the decree, if the defendant felt Beverly’s choice of courses or decision to attend the University of Missouri was unreasonable, the burden of so showing is on him. (Mirsky v. Mirsky, 69 Ill.App.2d 382, 217 N.E.2d 467.) Under the facts of the case and the terms of the decree, he has failed to meet this burden.

This brings us to an analysis of the crucial issue in this case, that being the extent of the defendant’s obligation under the property settlement agreement to provide for his daughter’s college education. At the outset, we wish to address ourselves to property settlement agreements in general. The Illinois courts look with favor upon such agreements. (Guyton v. Guyton, 17 Ill.2d 439, 161 N.E.2d 832.) Since divorces are unhappy at best, some of the trauma of divorce proceedings can be eliminated if the parties can come to a reasonable meeting of the minds with respect to tire essential matters of property division, alimony, and custody, support, and education of the children. They usually take the form of written contracts with the consideration being the mutual promises of each. It is generally held that if and when such properly settlement agreements are embodied in the divorce decree itself, its terms will not thereafter be modified under any circumstances, and a trial court is without authority to modify it or enter a decree contrary to it. (Guyton v. Guyton, supra; James v. James, 14 Ill.2d 295, 152 N.E.2d 582; Herhold v. Herhold, 123 Ill.App.2d 293, 260 N.E.2d 86; Jamal v. Jamal, 98 Ill.App.2d 180, 240 N.E.2d 246.) However, if the property settlement contract is procured by fraud or coercion, or is contrary to any rule of law, public policy or morals, it may be set aside. James v. James, supra; Swannell v. Wilson, 400 Ill. 138, 79 N.E.2d 26.

Ordinarily, the obligation of a father to support his children begins when a child is born and continues until the child attains majority. (Elble v. Elble, 100 Ill.App.2d 221, 241 N.E.2d 328.) However, in this case of a divorce, support may be obtained for the education and maintenance of the children out of the property of either or both of their parents as equity may require. (Ill. Rev. Stat. 1971, ch. 40, par. 13.) After the children reach their majority the court still has jurisdiction to order payments of support for educational purposes. (Ill. Rev. Stat. 1971, ch. 40, par. 19.) In general, the amount of child support to be allowed in a particular case and the amount to be paid for educational purposes depends upon the need of the children and the ability of the father to pay. (Duvall v. Duvall, 8 Ill.App.3d 53, 289 N.E.2d 59.) Therefore, where it is shown that a need exists and the father has the ability to pay, the court may order payments for child support and for educational purposes. This order is subject to modification where a change in the needs of the child or a material change in circumstances of the father is shown. Metcoff v. Metcoff, 4 Ill.App.3d 160, 280 N.E.2d 572.

However, in this case defendant’s agreement to pay child support must be distinguished from his agreement to pay the cost of college “tuition, books, incidental fees and board and room for the scholastic year.” The divorce decree here was a consent decree based upon the property settlement agreement of the parties. In that property settlement agreement the parties agreed to finally adjust and settle all matters relating to the partition and division of their property, and the financial obligations arising out of their marital relationship. The plaintiff relinquished her right to assert any claim or demand on the properties of her husband in consideration of the defendant’s promise to finance the college education of any of their three children who decided to attend. The only other consideration received by the plaintiff except for the personal property and effects held by her, was the family residence and its furnishings, one of the family cars and approximately $12,800 as well as the child support payments. Both parties were represented by their attorneys and acknowledged that the provisions of the agreement were fair, adequate and satisfactory; and each party accepted these provisions in full and final settlement of any and all claims against the other. Plaintiff was required to, and did, execute all instruments necessary to effect the agreement. The promise of the plaintiff to release all of her interest and claim in and to the property of the defendant affords sufficient consideration for the defendant’s promise to provide for their children’s education and support while attending college. These were absolute and complete surrenders which she could not reclaim. She made them in lieu of the provisions contained in the property settlement agreement for the benefit of her children. These surrenders of right on her part were approved and merged into the divorce decree, and are now being enjoyed and will be permanently enjoyed by the defendant who makes no offer to restore them when he asks the court to modify and lessen his contractual obligations of support and provision for his childrens education. The defendant proposes to repudiate the obligation and at the same time retain the consideration through which the obligation arose. This we cannot allow. The plaintiff has fully performed her part of the bargain. She has, in fact, advanced Beverly college expenses at the University of Missouri out of her own pocket because the defendant has not lived up to his contract. The only thing remaining to be done is for the defendant to carry out his part of the bargain.

The Illinois courts have frequently held and the statutes provide that despite the fact that the divorce decree incorporates a property settlement agreement, the court still retains jurisdiction to modify that decree as to child support and educational payments. (Duvall v. Duvall, 8 Ill.App.3d 53, 289 N.E.2d 59; Jacobs v. Jacobs, 328 Ill.App. 133, 65 N.E.2d 588; Ill. Rev. Stat. 1971, ch. 40, par. 19.) Those cases have held that when dealing with such matters a court is exercising powers granted by the legislature and cannot, by incorporating a contractual provision in its decree, divest itself of the power to modify, contrary to the legislative will. (Duvall, supra; Jacobs, supra.) We believe that the intent of those decisions and the Illinois Legislature was to prevent a husband from entering into a property settlement agreement and thereby relieve himself from the obligation imposed upon him by law to support his wife and children after divorce. Furthermore, the Illinois courts have frequently exercised their power to modify the divorce decree by subsequently increasing the educational and support allowance for the children if changed circumstances require it. Hight v. Hight, supra; Moses v. Moses, 132 Ill.App.2d 443, 270 N.E.2d 513; Smith v. Smith, 132 Ill.App. 2d 722, 270 N.E.2d 206.

We believe that modification ought not to be permitted in this case for a number of reasons. First, the defendant was not attempting to relieve himself of his obligation of support when he entered into the property settlement agreement. On the contrary, the defendant was contracting to do more than the law required. It is well settled that while a parent may not by contract defeat his legal duties owed to his children, he may contract to do more than the law requires of him. (67 C.J.S. Parent & Child § 15(e)(1), p. 696.) Defendant’s promise to pay the costs of college “tuition, books, incidental fees and board and room for the scholastic year,” without contribution by the plaintiff and without a determination of his ability to pay having been made, constituted a contract to provide for his children more than the law required of him. Secondly, the property settlement agreement here is founded upon sufficient consideration. The promise of the plaintiff to release all of her interest in and claim to the property of the defendant affords sufficient consideration for the defendant’s promise to provide for the children’s college education. And lastly, the defendant here seeks a reduction of his obligation with no reciprocal offer on his part to restore the property rights which the plaintiff released to him. We believe the court should not release one of the contracting parties from terms actually agreed upon but later found disadvantageous when that party has already enjoyed the benefits of the agreement.

It is one of the sad but true facts of the times in which we five that children very often become the innocent victims of the divorce proceedings. In order to obtain a divorce, the parties will promise almost anything. After the divorce, and generally after re-marriage, efforts commence to scale down these promises. If the law were to tolerate such modifications, nothing could prevent a party from promising twice or three times his annual income as child support or for the children’s education to soften resistance to obtaining a divorce with the sure and certain knowledge that the troublesome financial details could be worked out by hindsight. It is our opinion that policy considerations require enforcement of such a decree according to its terms. As we noted above, property settlement agreements are looked upon with favor by the Illinois courts. (Garmisa v. Garmisa, 4 Ill.App.3d 411, 280 N.E.2d 444.) Tire amicable settlement of property rights by the parties with the advice of counsel is to be encouraged, and when the parties voluntarily enter into a property settlement agreement whereby each gives consideration for the promises of the other, the resulting contract will be enforced. Such a finding is necessary to insure stability in the negotiations between parties contemplating divorce and to prevent a party who has complied with or performed his part of the bargain from being penalized because of the other party’s failure to comply.

We conclude, therefore, that the defendant’s agreement to provide for Beverly’s college education was based upon adequate consideration and a promise to do more than the law required which is specifically enforceable. Plaintiffs petition to enforce the decree is hereby granted.

Judgment reversed.

CARTER and CREBS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alton Banking & Trust Co., Plaintiff-Appellee, v. Frank V. Romano, Defendant-Appellant and Third-Party Plaintiff—(Shirley Romano, Defendant and Third-Party Defendant.)
    (No. 73-293;
    Fifth District
    June 26, 1974.

      Rehearing denied August 6, 1974.

    R. Michael Fischer, of Alton, for appellant.
    Steven N. Mottaz, of Alton, for appellee.
   PER CURIAM.

CREBS, J., took no part.


author: Mr. JUSTICE CREBS

text:
    Betty Dobkowski, Adm’rx of the Estate of Alphonse Dobkowski, Deceased, Plaintiff-Appellee, v. Lowe’s, Inc., et al., Defendants-Appellants — (Karon L. Miller, Adm’r of the Estate of Byford L. Miller, Deceased, Counterplaintiff-Appellant; Betty Dobkowski, Adm’rx of the Estate of Alphonse Dobkowski, Deceased, et al., Counterdefendants-Appellees.)
    (No. 73-310;
    Fifth District
    June 27, 1974.

      Rehearing denied August 5, 1974.

      Feirich, Feirich & Green, Ltd., of Carbondale (Bill F. Green, of counsel), for appellants.
    Harold A. Donovan and Dennis E. Rose, both of Donovan & Hatch, and Kenneth J. Juen, all of Belleville, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

On February 3, 1971 a two-truck accident occurred in Monroe County between a van-type truck driven by Alphonse Dobkowski and a tractor-trailer unit driven by Byford Miller. Both drivers were killed in the accident. Dobkowski’s truck had been traveling in a northerly direction, and the Miller vehicle was being driven in a southerly direction before the collision. There were no eye-witnesses to the accident.

The plaintiff-appellee, the administratrix of the estate of Alphonse Dobkowski, brought suit to recover damages for the wrongful death of Alphonse Dobkowski against Lowe’s Inc., Miller’s employer, and against the administrator of Miller’s estate. The administrator of Miller’s estate then filed a counterclaim requesting damages for the wrongful death of Miller against Dobkowski’s estate and against the Clean Coverall Supply Company, Inc., Dobkowski’s employer. The complaint alleged that the accident was caused by the negligence of Miller, and the counterclaim maintained that the accident resulted from Dobkowski’s negligence. The jury returned a verdict in favor of the plaintiff on the complaint in the sum of $120,000 and against the counterplaintiff on the counterclaim. The circuit court entered judgment on that verdict, and the defendants-appellants request that a new trial be ordered on both the complaint and counterclaim.

The appellants maintain that: 1) the admission of an opinion of an Illinois State Trooper as to the point of impact on the highway between the two vehicles was error, 2) the admission of testimony concerning the point of impact on each vehicle was error, and 3) the court erred in allowing the plaintiff to present an evidence deposition to the jury.

An Illinois State Trooper, David Ahrens, was called as a witness by the plaintiff. He testified that he arrived at the scene of the accident soon after the collision and conducted an accident investigation. Trooper Ahrens further testified that he had attended a 16-week course offered by the Department of Law Enforcement which included instruction in accident investigation. Ahrens also stated that, in 8 years as a State Trooper, he had investigated approximately 280 accidents and that, on some occasions, his investigation included a determination of the point of impact on the highway of two vehicles. His investigation of the accident in the instant case included examination of the debris resulting from the collision, the position of the vehicles after the accident, the contour of the highway and a fresh gouge mark in the northbound lane which he stated was caused by the accident. Trooper Ahrens was asked the hypothetical question on direct examination whether, based upon certain facts in evidence and upon his experience in investigating highway accidents, he had an opinion in which traffic lane the accident occurred. The defendants objected to the hypothetical question on several grounds but the objection was overruled. Ahrens answered that, in his opinion, the accident occurred in the northbound lane of the highway.

The defendants contend that the court erred in permitting Ahrens to state his opinion concerning the point of impact.

In Dauksch v. Chamness, 11 Ill.App.3d 346, 296 N.E.2d 592, we stated a four-pronged test to determine the admissibility of expert accident reconstruction testimony. We held that for such testimony to be admissible, 1) the testimony or opinion must be necessary, 2) the jury must be assisted by testimony regarding knowledge of physics or the sciences beyond their ordinary ken, 3) the proffered witness must be sufficiently possessed of the requisite qualifications as an expert and 4) there must be sufficient physical data upon which the expert may base his conclusions and opinions. See Abramson v. Levinson, 112 Ill.App.2d 42, 250 N.E.2d 796.

The requirement that the expert testimony must be necessary was not met in the instant case. Ahrens admitted that his opinion concerning the point of impact was not based upon his knowledge or application of principles of physics, engineering or other sciences. His opinion was based merely upon his personal observation of the physical evidence at the scene of the accident. If the physical evidence leaves a trail easily read by the average juror, no expert is needed. (Abramson v. Levinson, supra.) In the instant case the physical evidence did leave such a trail. Ahrens testified that debris was scattered in the northbound lane and to the East of the highway and that there was no debris in the southbound lane or to the West of the highway. He also stated that a fresh gouge mark was found in the northbound lane after the accident as was a quantity of fresh mud. Ahrens also testified that both trucks came to rest on the East shoulder of the highway next to the northbound lane. We believe that the jury, using the physical evidence presented at trial, was no less competent to reach an opinion concerning the point of impact than was Ahrens. Ahrens’ opinion testimony, therefore, was not necessary, and it was error for the court to overrule the defendant’s objection to that testimony.

We hold, however, that the error committed by the trial court was harmless. The physical evidence presented at trial left no doubt that the two trucks collided in the northbound lane. Since the jury could not logically have reached any other conclusion, the defendants were not prejudiced by the admission of Ahrens’ opinion testimony.

The defendants also contend that the testimony of Ahrens and of Leroy Siegfried concerning the point of impact on each vehicle was erroneously admitted. Both witnesses stated that the point of impact was on the left-front portion of each vehicle. The defendants assert that the testimony was opinion testimony for which a proper foundation was not laid. The plaintiff maintains that the statements of Ahrens and Siegfried were not opinions but were merely statements explaining what they observed at the scene of the accident.

We need not determine whether the admission of tire testimony in question was error because, even if error was committed, it was harmless. Photographs were taken of each vehicle soon after the accident and were admitted into evidence. These photographs clearly reveal that the two trucks did collide in their left-front areas. A reconstruction expert testifying for the defendants stated that his study of the photographs indicated that the point of impact was the left-front portion of each vehicle. Because there was no conceivable dispute as to the point of impact on the vehicles, the testimony of Ahrens and Siegfried could not have prejudiced the defendants.

The defendant’s final contention is that the court erred in allowing the plaintiff to introduce an evidence deposition to the jury. The deponent was James Patterson, an after-occurence witness to the accident. Patterson’s deposition was taken in Nashville, Tennessee after he was subpoenaed by the defendants. For the purposes of the evidence deposition, therefore, Patterson was the defendants’ witness, and the plaintiff exercised the right to cross-examine. The plaintiff was permitted, over objection of the defendants, to read the evidence deposition to the jury during her case-in-chief. The defendants maintain that, when one party takes an evidence deposition, the other party may not introduce it and read the deposition to the jury until the party taking the deposition has had an opportunity to offer it.

Supreme Court Rule 206(c) provides that in an evidence deposition the examination and cross-examination shall be the same as though the deponent were testifying at trial. (Ill. Rev. Stat., ch. 110A, par. 206(c).) The defendants, therefore, were restricted to direct examination of the deponent while the plaintiff had the right to cross-examine him. We believe that a party receives an unfair advantage if he introduces an evidence deposition in which he had the right to cross-examine the deponent while the other party was restricted to direct examination. A party who takes an evidence deposition, therefore, should have the opportunity to use the deposition in his case.

On the other hand, a party who takes an evidence deposition should not have the power to suppress the evidence contained therein merely be refusing to offer it into evidence. Supreme Court Rule 212(b) provides that, if the court finds that the deponent is unavailable to testify at trial for one of several enumerated reasons, an evidence deposition may be used by any party for any purpose. We hold, therefore, that if a party who takes an evidence deposition declines to introduce it into evidence, the other party may do so.

Where a plaintiff desires to introduce into evidence an evidence deposition taken by the defendant, the proper procedure is for the plaintiff to ask the defendant in open court whether he intends to use the deposition in his case. If the defendant answers affirmatively, the plaintiff may not use the deposition in his case. If, after such an exchangé, the defendant fails to introduce the evidence deposition, the plaintiff should be permitted to reopen his case for the purpose of introducing the deposition into evidence. If the defendant responds when questioned in open court that he does not intend to use the deposition, the plaintiff may introduce the deposition into evidence as a part of his case.

We hold that the court did err in the instant case when it permitted the plaintiff, over the defendants’ objections, to use the evidence deposition of James Patterson in her case-in-chief. The error, however, was harmless. In the deposition Patterson stated that he was in a car on the highway at the time of the accident in question. He saw one of the trucks as it was leaving the road after the collision, but he did not see the point of impact. The deponent also described the physical evidence at the accident, but this testimony merely corroborated that of other after-occurrence witnesses. We believe, therefore, that Patterson’s testimony was of little significance and that the defendants were not prejudiced by the plaintiffs’ use of the evidence deposition.

For the foregoing reasons we affirm the judgment of the Circuit Court of Monroe County.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


text:
    Robert Morris, Plaintiff-Appellee, v. No. 5 Credithrift of America, Inc., Defendant-Appellant — (No. 5 Credithrift of America, Inc., Third-Party Plaintiff-Appellee, v. Eugene E. Gelling, Third-Party Defendant-Appellant.)
    (No. 73-375;
    Fifth District
    July 17, 1974.
    Hendricks & Watt, of Murphysboro (Earl S. Hendricks, Jr., of counsel), for third-party defendant-appellant.
    E. Dan Kimmel, of Carbondale, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Jackson County entered in favor of plaintiff against defendant and a judgment in the same amount in favor of the third-party plaintiff against the third-party defendant. Both the original defendant and the third-party defendant have appealed.

In 1965, plaintiff Morris and third-party defendant Gelling signed a retail installment contract to purchase a mobile home from Williams Trailer Sales, As part of the same transaction, the contract was purchased by the defendant and third-party plaintiff, No. 5 Credithrift of America.

The contract provided that the buyers would make a down payment of $700 and 60 monthly instaHment payments of $79.95 each. Morris made the down payment when the contract was signed. Morris also made the first 14 monthly payments to Credithrift, but Gelling contributed to those payments.

In 1966, Morris, who was a fellow student of Gelling when the mobile home was purchased, quit school and moved to Chicago. Thereafter Gelling made payments totaling $2634.66 to Credithrift in the period from September 1966 to June 1969. Gelling paid an unascertained amount of maintenance and rental space expenses and earned an unascertained amount of rental income during this period. No accounting was made between Morris and Gelling.

In 1969, a three-party transaction occurred. At the request of Gelling’s attorney, Credithrift repossessed the mobile home and obtained a repossession title. Gelling then purchased the repossession title for $698.75, the balance of the original installment sales contract. As part of the same transaction, Gelling sold the title to a Mr. Du Husak, and Du Husak borrowed the money from Credithrift to make the purchase.

During the three-party transaction the only money that actually passed hands consisted of two checks written by Credithrift. The first check was for $561.72 and was given to Gelling. The other check was issued to Du Husak for $940.64, and Du Husak immediately endorsed the check to Gelling. Thus the sale price was $2,201.11 and Du Husak became indebted to Credithrift for that amount. Gelling received checks totaling $1,502.36 and the indebtedness of $698.75 on the original installment sales contract was cancelled. Credithrift broke even in the transaction; it cancelled the indebtedness of $698.75 and wrote checks which totaled $1,502.36, but became a creditor of Du Husak in the amount of $2,201.11.

In 1970, Morris filed his complaint against Credithrift. The complaint alleged that Credithrift had redeemed the mobile home without giving notice to Morris, that Credithrift reafized a surplus from the redemption sale and the surplus was not paid to Morris as provided in the retail installment contract.

The statute provides that the secured party must account to the debtor for any surplus and requires notice in transactions of this kind. Ill. Rev. Stat., ch. 26, pars. 9 -504(2) and (3).

A number of defenses were raised which we find were without merit. Admittedly notice was .not given to Morris. The trial court properly found that the three-way transaction amounted to a sale of the repossessed mobile home to Du Husak for $2,201.11.

The trial court entered judgment in favor of Morris in the amount of $701.18 on the complaint and a like amount in favor of Credithrift on the third-party complaint. It would appear that the court intended to render judgment in the amount of $751.18 but erred in drafting the judgment order. At any rate, Morris did not appeal so that is not in issue.

We find no reasonable basis why the statute which gives the debtor a right to any surplus after sale should operate in favor of Gelling but not Morris. Also the court was justified, in the absence of any pleadings requesting an accounting between Gelling and Morris, in finding that each debtor was entitled to one-half of the surplus.

Finding no error the judgment of the Circuit Court of Jackson County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE GOLDBERG

text:
      In re Roberts Park Fire Protection District, Petitioner — (Roberts Park Fire Protection District, Petitioner-Appellant, v. The Village of Bridgeview, Respondent-Appellee.)
    (No. 58859;
    First District (1st Division)
    May 6, 1974.

      Rehearing denied June 26, 1974.

      Irving Goodman and Smietanka & Garrigan, both of Chicago, for appellant.
    Ancel, Glink, Diamond & Murphy, P. C., of Chicago (Marvin J. Glink and Barry S. Shanoff, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

The Roberts Park Fire Protection District is a municipal corporation operating in the area southwest of the city of Chicago. A number of villages are included within the District. The litigation before us commenced with the filing of a petition by the District in which it sought to prevent a disconnection from its territory of a certain area located within the Village of Bridgeview. (See Ill. Rev. Stat. 1973, ch. 127%, par. 38.3.) The amended petition filed by the District and answered by the Village alleged in substance that the boundaries of the District included parts of the Villages of Bridgeview and Justice; Bridgeview maintained a total volunteer fire department prior to 1970 and Justice continued to maintain a total volunteer fire department; the disconnection of the lands involved would impair the ability of the District to render fully adequate fire protection service to the balance of the District and that such disconnection made no adequate provision for the protection of contractual obligations and debts of the District. These allegations of the petition were denied by the Village.

After a hearing, without a jury, the trial court found that the disconnection of that portion of the District located within the Village would not impair the ability of the District to render fully adequate fire protection to territory remaining in the District and that the statute providing for the disconnection was not contrary to any of the provisions of the constitutions of the United States and of the state of Illinois. The court, therefore, ordered that the petition of the District, seeking to avoid the disconnection, be dismissed. The District appeals. The Village of Justice has withdrawn its objection to the petition and remains within the District.

The evidence shows that the District is bounded by Harlem Avenue on the east, 79th Street on the north and 95th Street on the south. The western boundary of the District is irregular. That portion of the District which lies within the Village comprises 30% or 35% of the total area of the District. Approximately 24.5% of the total revenue of the District results from taxes on real estate within the Village limits. There is evidence that outside of the Village area the District consists mostly of residential uses with a few small and scattered commercial uses. A professional fire fighter testified that the most significant fire hazard in this area of the District was a complex of apartment buildings up to four stories in height. That part of the Village which is located within the District has some residential uses and also some industrial and mercantile establishments. The Village fire department has 19 full-time members who service the area in shifts during each 24-hour period. The department also has 35 volunteer firemen who are paid on call, together with three full-time personnel occupied in fire prevention activities. There is testimony that the Village has equipment of the type necessary to handle industrial fires.

The District has a fire chief who is an experienced professional. It has a permanent full-time crew of four professional firemen and 35 volunteer firemen. The parties filed a written stipulation which showed the vehicles and apparatus owned and operated by the District and which also stated that “heretofore both the Village of Bridgeview and the Roberts Park Fire Protection District have rendered fully adequate fire protection service to the territory within their respective corporate Emits.”

It is undisputed that disconnection of the ViUage territory within the District would reduce actual tax revenue of the District by about 24.5%. The stipulation between the parties also reflected the total assessed value of all real property within the District and within that portion of the District inside of the Village; the total tax rate; and totals of taxes extended and taxes actually received by the District for the tax years 1968-1971 inclusive. This information is reflected as follows:

1968 1969 1970 1971

Assessed value of all District property $41,937,846 $51,836,860 $61,418,325 $70,507,052

Tax Rate 0.10 0.098 0.278 0.256 .

Assessed value of District property within Village 8,361,051 10,872,236 14,606,328 17,093,585

Taxes extended 41,938 50,800 170,743 180,498

Taxes received by District 38,454 45,133 168,841 —

The record also shows that, for the year 1972, the fire department of the District responded to a total of 816 alarms. A total of 180 of these incidents occurred within the limits of the Village, meaning that 636 alarms were handled relating to property outside of the Village but within the District. Calculation shows that for the year 1972 approximately 22% of all of the emergency calls answered by the District fire department originated from property within the limits of the Village. A summary of the additional testimony is also required.

Robert Rasch, fire chief of the District since 1965, was questioned directly relative to the central issue in the case: namely, would the elimination of the Village area from the District and resulting loss of revenue “impair the ability of the District to render fully adequate fire protection service to the territory remaining with' the District”? (Ill. Rev. Stat. 1973, ch. 127%, par. 38.3.) An objection to this question by counsel for the District was properly overruled by the court. The witness expressed the opinion that this revenue loss would impair the ability of the District to maintain “fully adequate” fire protection.

Karl Biallas, treasurer and trustee for the District, testified that a disconnection of the Village would affect the ability of the District to pay various expenses which the witness characterized, perhaps erroneously, as “fixed charges.” The witness further expressed the opinion that loss of tax revenue resulting from withdrawal of the Village would prevent the District from giving fully adequate fire protection. A good part of the cross-examination of this witness was directed to details in the financial statements of the District. This questioning disclosed that the witness was not a prime expert on municipal accounting. However, he had a good grasp of the financial problems involved in the day-to-day operation of the District. He testified further that the District had not considered the issuance of general obligation bonds. He also testified that, during the 1971-1972 fiscal year, the District had made all payments required in connection with certain equipment. The total amount of these items exceeded $50,000.

The final witness for petitioner was Emil Valovic. He is a fire protection consultant with experience in fire prevention although he is not a professional engineer. He studied and analyzed the operation of the District and was familiar with its need of equipment and manpower for continuation of adequate fire prevention. He studied the financial operation of the District and examined the area physically on two occasions. He did not testify directly as to the ultimate issues before the court. As a result of his survey he determined the equipment requirements and needs of the District to adequately service its entire territory. In his opinion, the District should expand its department to 20 full-time men and should purchase at least four additional pieces of equipment referred to as “pumpers.” These items would each represent a cost of some $42,000 to $50,000. These conclusions were based upon his analysis of the entire District including the portions thereof within the boundaries of the Village.

The first witness for respondent was Robert F. Murray, an experienced and qualified professional fire fighter who is full-time fire chief for the Village. He testified relative to the personnel and the equipment of the Village fire department as above shown. He also gave a general characterization of the nature of the land uses within that part of the Village located in the District and the balance of the District. This witness did not testify as to the ultimate question before the court. However, he did testify that, in his opinion, four full-time firemen, together with a number of volunteers would provide adequate protection to an area which was primarily residential. This opinion, however, was predicated upon the use of a well-trained and responsive force of volunteers.

The respondent also called Edward Benjamin who has had long experience in municipal financing including the sale of municipal bonds of all types. He examined and evaluated the pertinent financial figures and data pertaining to the operation of the District. In his opinion, the area of the District which would remain in event of disconnection of the Village would not be financially impaired in its activities, but it could “sustain its operation on a financially continuing basis.” In other words, in his opinion, the loss of taxable real estate which the District would sustain by disconnection of the Village would not, from a financial point of view, render the District incapable of continuing to provide adequate fire protection.

Cross-examination of this witness' showed that he did not make a personal survey of the District. He predicated his opinion upon the supposition that the balance of the District remaining after disconnection would have an assessed valuation of real estate of approximately $58,000,000 to $60,000,000 subject to taxes. This, in' turn, was predicated upon the assumption that the growth in assessed valuation for the past several years would continue. He also stated that he was not qualified to answer a direct question as to whetiier disconnection of the Village area from the District would do anything to impair fully adequate fire protection service to the balance of the District remaining. Upon questioning by the court, the witness expressed the opinion that the portions of the District remaining after disconnection would have sufficient tax receipts to enable them to “operate and maintain their district and to retire debts.”

The final witness for respondent was Boyd Hartley, an associate professor in the Department of Fire Protection and Safety Engineering of Illinois Institute of Technology. This qualified person testified that he had visited the District and toured and studied it on two occasions. He did not express any direct opinion as to the ultimate question. He did testify that the equipment which the District presently has “is more than would be necessary to give adequate protection to the area remaining” after disconnection. However, on cross-examination, this witness conceded that he had never examined the equipment or the fire station beyond passing by the station itself. Also, he did not consult with the fire chief of the District because he did not believe that this was necessary for his information. In his opinion, “six paid men on each piece of apparatus” would be fully adequate to provide fire protection. The witness expressed the opinion that the words “fully adequate” were entirely a subjective term and that it would be the responsibility of the officials of the District “to determine what in their opinion is fully adequate for their community.” He testified that, in his opinion, no American community has “fully adequate fire protection.” However, he stood by his opinion that the equipment which the District presently operates is “fully adequate.”

Discussion of the issues must commence with examination of the applicable statute. The legislature has provided that territory within a fire protection district, which becomes a part of a city or village, is to be disconnected from the district by operation of law. However, this will not occur if the district files a petition “with the appropriate court” alleging “* * # that the loss of assessed valuation by reason of such disconnection will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district.” The district has the burden of proof of this allegation. If there are “general obligation bonds” of the district outstanding and unpaid at the time of disconnection, the disconnected portion will remain liable for its proportionate share thereof. See Ill. Rev. Stat. 1973, ch. 127½, par. 38.3.

Consequently, the prime issue is whether the “loss of assessed valuation” to the District by reason of disconnection of the Village territory “will impair the ability of the district to render fully adequate fire protection service to the territory remaining with the district.” The task here is interpretation and application of this language. It is our primary duty “to ascertain and give effect to the true intent and meaning of the legislature.” (People ex rel. Hanrahan v. White, 52 Ill.2d 70, 73, 285 N.E.2d 129.) In this connection, we cannot eliminate from our thinking any portion of the statute. We must give due consideration and reasonable meaning to “each word, clause or sentence” used by the legislature. (Hirschfield v. Barrett, 40 Ill.2d 224, 230, 239 N.E.2d 831.) In application of the statute, we are duty bound “to promote its essential purpose.” Stubblefield v. City of Chicago, 48 Ill.2d 267, 271, 269 N.E.2d 504.

We must note at the outset that, in other portions of the statute bearing upon the creation of fire protection districts, the legislature has used different language. It has stated its policy to create, such districts for the purpose of providing “as nearly adequate protection from fire for lives and property within the districts as possible.” (Ill. Rev. Stat. 1973, ch. 127½, par. 21.) The legislature has used the same language in placing upon the trustees of any incorporated fire district the “legal duty and obligation to provide as nearly adequate protection from fire for all persons and property within the said district as possible.” (Ill. Rev. Stat. 1973, ch. 127½, par. 31.) It is most remarkable that, in the particular portion of the statute here involved, the legislature has declared that there may not be a disconnection from a fire district which will impair its ability “to render fully adequate fire protection service to the territory remaining with the district.” We cannot disregard or make light of the word “fully.” One of its close synonyms is “completely.” The use of this particular language by the legislature, contrasting with the language in other portions of the statute, must be given full weight and meaning. Protection of human life and property from destruction and devastation by fire is a prime governmental function of foremost importance. The disconnection of territory from a district may not be permitted if it will result in any impairment of the ability of the district to maintain the expressed high standard of “fully adequate” fire protection. Even the slightest impairment of this standard should not be permitted. No criterion other than completeness can be accepted.

The evidence must be analyzed within the framework of the high and exacting demands thus imposed by the legislature. In a situation of this type, it was necessary for the court to hear the opinion of experts. Matters of fire prevention are generally beyond the knowledge or understanding of the average person and they are exceedingly difficult of comprehension and explanation. It was proper for counsel for both parties to elicit the opinion of expert witnesses regarding the ultimate question before the court. (Miller v. Pillsbury Co., 33 Ill.2d 514, 516, 211 N.E.2d 733, cited in Moren v. Samuel M. Langston Co., 96 Ill.App.2d 133, 142, 237 N.E.2d 759.) Despite early precedents to the contrary, the reviewing courts of Illinois have approved the practice of permitting the expert to express directly his opinion upon ultimate issues on the theory that “since the trier of fact is not required to accept the opinion of the expert, such evidence does not usurp the province of the jury." (Merchants National Bank v. E.J. & E. Ry. Co., 49 Ill.2d 118, 122, 273 N.E.2d 809.) See also Coleman v. Illinois Central R.R. Co., 13 Ill.App.3d 442, 444, 300 N.E.2d 297, involving an expert opinion on adequacy of protection at a railroad crossing as does Merchants National Bank; also Kobrand, Corp. v. Foremost Sales Promotions, Inc., 8 Ill.App.3d 418, 421, 291 N.E.2d 61, concerning the opinion of an expert regarding competition in the sale of intoxicating liquor.

In the case before us, the District presented the testimony of its fire chief, Robert Rasch, and of Karl Biallas, one of its trustees. Both of them expressed the opinion that loss of tax revenue resulting from disconnection of the Village area would impair the ability of the District to render fully adequate fire protection service to the remaining territory. Emil Valovic, a qualified fire protection consultant, did not testify directly regarding this ultimate issue but did express the opinion that expansion of the District equipment was necessary for continuation of fully adequate service. On the contrary, the Village called its own fire chief, Robert F. Murray, but did not elicit his opinion regarding the basic issue before the court. Similarly, no such opinion was expressed by Boyd Hartley who also testified for the Village. He confined his evidence to a consideration of the fire fighting equipment presently operated by the District. Cross-examination showed, however, that he had never examined this equipment or the District fire station and he did not consult with the District fire chief.

The remaining witness called by the respondent, Edward Benjamin, limited his testimony entirely to the matter of financial ability of the District in event of disconnection. He expressed the opinion that in event of disconnection of the Village, the remaining area in the District would not be financially impaired but could “sustain its operation on a financially continuing basis.” However, as above shown, this witness predicated his opinion upon two assumptions, either or both of which might well prove invalid. He assumed an assessed valuation for the real estate remaining in the District without ever having made a survey of the area. He also assumed that the assessed valuation of the remaining property in the District would continue to rise. Protection of property and life within the fire protection district, when measured by the exacting criterion of full adequacy, should not depend upon the propriety and soundness of assumptions of this type. The opinion of this witness, thus based upon hypotheses which may later prove erroneous, does not overcome the evidence adduced by the District.

As regards financial matters, we should also point out that it has been the law of Illinois for many years that “[i]n the absence of statutory authority, the rule is that the part of a school district or other municipal corporation which remains after parts have been detached retains all its property, powers, rights and privileges and remains subject to all its obligations and duties.” (People ex rel. Hagler v. Chicago, Burlington & Quincy R.R. Co., 380 Ill. 120, 127, 43 N.E.2d 989, and other cases there cited. See also People ex rel. Community High School District No. 231 v. Hupe, 2 Ill.2d 434, 439, 118 N.E.2d 328.) The statute before us provides that general obligation bonds of the District outstanding and unpaid in event of disconnection are to remain a proportionate liability of the disconnected territory. (Ill. Rev. Stat. 1973, ch. 127½, par. 38.3.) The District here has no outstanding general obligation bonds. However, it does have large liabilities such as a real estate mortgage for $329,000 and other amounts representing the cost of expensive equipment.

Since the legislature has provided that the disconnected territory shall retain its proportionate liability on general obligation bonds only, and has-not imposed the same rule with reference to other items of indebtedness, it would follow that there would be no liability upon the disconnected territory with reference to ordinary debts. This would leave the remaining area of the District subject to all outstanding indebtedness with a loss of approximately 24.5% of its revenue. Although the record contains a statement by Edward Benjamin that after disconnection the remaining portions of the District would have sufficient tax receipts to retire debts, this opinion is subject to the same infirmities as the balance of the testimony of this witness.

Certainly the able trial judge had an opportunity which we lack to observe the conduct of the witnesses and to determine their credibility. We should not disturb the findings of the trial judge and substitute our own opinion unless we feel that the result reached by him was manifestly against the weight of the evidence. (Reese v. Melahn, 53 Ill.2d 508, 512, 513, 292 N.E.2d 375.) However, this is not the usual case involving a determination of the credibility of witnesses. As above pointed out, aside from questionable evidence on financial matters, there is no expert opinion in this record to contradict the opinion evidence adduced by the District that disconnection would impair fully adequate fire protection. It has been repeatedly held that it is the duty of this court to reverse a judgment when the result reached is contrary to the manifest weight of the evidence. Thomas v. Le Burkian, 10 Ill.App.3d 742, 744, 295 N.E.2d 313.

Furthermore, the parties here stipulated that the District in its present form does render fully adequate fire protection. As above stated, the pertinent statute places the burden of proof upon the District of demonstrating that the disconnection will prevent it from maintaining this high standard. In our opinion, that burden has been met and sustained in the case before us. We find from this record that attempts by the Village to refute this evidence have failed. This court does not wish to be placed in the position of approving a disconnection with resulting substantial loss of tax revenue to the District where the evidence shows so clearly that such action would impair the present fully adequate fire protection.

Upon a careful review of the entire record and after extended consideration, we feel that the evidence requires a decision contrary to that reached by the trial court so that the order of disconnection should be reversed. Although a constitutional issue was raised by the District and decided by the trial court, we need not consider or determine this issue as we find it unnecessary to a decision of the case. People v. Fleming, 50 Ill.2d 141, 144, 277 N.E.2d 872.

Judgment reversed.

BURKE and HALLETT, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
      In re Application of County Treasurer and Ex-Officio County Collector of Cook County — (DRG, Inc., Respondent-Appellee, v. Donald H. Follot et al., Petitioners-Appellants.)
    (No. 59168;
    First District (5th Division)
    May 17, 1974.

      Rehearing denied July 8, 1974.

      Posanski, Krohn & Jacobs, of Chicago, for appellants.
    Allan L. Blair, of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Petitioners filed a petition under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) seeking to vacate its order of March 2, 1972, which directed issuance of a tax deed, and for other relief. After a hearing, the court denied the petition and specifically found (a) there was no fraud in the procurement of the tax deed, and (b) petitioners did not use diligence in defending against the original tax deed petition or in filing a direct attack thereon.

Petitioners appeal contending: (1) the lack of personal service upon an owner in possession deprived the court of jurisdiction; (2) there was fraud upon the court sufficient to avoid issuance of the tax deed; (3) the failure to give statutory notice was a sufficient ground for relief in a section 72 proceeding; (4) there was an excusable mistake sufficient to avoid the issuance of the tax deed; and (5) the finding that petitioners were not diligent is against the manifest weight of the evidence.

The property at issue is a two-story brick house located at 6439 North New England Avenue in Chicago. Petitioners owned and resided on this property since 1958. In May 1969 the county collector filed an application for judgment and order of sale for special assessments returned delinquent in the year 1969. Respondent purchased the property on May 26, 1969, for non-payment of special assessment warrant 57488 of the City of Chicago, fourth installment, for the sum of $61.94. The end of the period of redemption was extended by respondent from May 26, 1971, to December 27, 1971, pursuant to section 263 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 744). Respondent on May 11, 1970, purchased the fifth installment of the same special assessment for $65.71. Petitioners did redeem this fifth installment but never redeemed the fourth installment.

On September 9, 1971, respondent filed its petition for tax deed. During the subsequent ex parte hearing on January 14, 1972, David R. Gray, respondent’s attorney, testified that there had been no redemption of the fourth installment. He had made an inspection of the pertinent records and found that the parties in interest were the owners, Mr. and Mrs. Donald Follot, and Avondale Savings and Loan Association, as the mortgagee and holder of an assignment of rents for the property. Avon-dale Savings and Loan Association was personally served on September 21, 1971. He mailed a notice to Mrs. Follot on September 27, 1971. Sidney Olsen, registrar of titles for Cook County, was personally served on September 12, 1971, and Edward Barrett, county clerk of Cook County, was personally served with notice on September 24, 1971.

Robert Brozik testified at the ex parte hearing as a witness for respondent that he was a process server in respondent’s employ. He was directed to serve Mr. and Mrs. Follot with notices. On September 21, 1971, he personally served Mr. Follot at 6439 North New England Avenue in Chicago. Mr. Follot accepted the notice and told him he had already received one through registered mail. At this time he asked if Mrs. Follot was at home. Mr. Follot told him she was not at home but that he would accept a copy of it for her. Brozik also explained to the court that he had tried on three occasions, other than September 21, 1971, to serve Mrs. Follot but was unable to do so.

The court was informed that because Mrs. Follot had not been personally served, after the four unsuccessful attempts, notification was given to her by publication and certified mail. The court was told of the publication dates, and the certified mail receipt card was part of the record. In addition, there was evidence that on September 24, 1971, respondent delivered the requisite notices to the clerk of the circuit court for mailing by him. Gray further testified as follows:

“Q. Do you believe you have complied with due diligence in the service of process on all the known parties of interest?
A. I do.”

On March 2, 1972, the court found that the period of redemption had expired; all notices required by law had been given; respondent had complied with all provisions of the statute; and the court had jurisdiction. It then ordered the. issuance of a tax deed.

On July 19, 1972, petitioners filed their section 72 petition alleging, inter alia, insufficiency of notice; fraud upon the court; lack of due diligence; excusable mistake; and lack of jurisdiction. At the hearing on the petition the following pertinent evidence was adduced: David R. Gray, called as a witness pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 60), testified that he arranged for service of notice under the relevant statutes; that Mr. Follot was served personally and that in spite of a diligent effort, Mrs. Follot could not be personally served and she was notified by publication and mailing. The publication dates were September 17, 1971, September 24, 1971, and September 27; 1971. He described Mr. Brozik’s attempts at personally serving Mrs. Follot. He searched the telephone directories to see if there was another address by which he could personally serve Mrs. Follot. Since he could not personally serve Mrs. Follot, he mailed the notice to Mrs. Follot on September 27, 1971. Respondent had also purchased the fifth installment which he thought was redeemed before December 27, 1971. In November 1971 he had sent the requisite statutory notices with regard to this fifth installment. At the time of the hearing on January 14, 1972, he did not have personal knowledge of the redemption of the fifth installment, but he represented to the court that proof of payment or redemption of any subsequent taxes would be submitted to the court. At the time the transcript was presented to the court for entry of the order directing the issuance of tax deed, the court was informed that the fifth installment had been redeemed. During March 1972 he had several conversations with Donald Follot’s mother concerning the property.

Mrs. Follot, a petitioner, testified that she has two school age children living at home and that she works at a nearby cleaning establishment. She first learned some taxes were due on the property in September 1971 when her husband showed her a paper he received through the mail. She subsequently sent for a bill of redemption and received the estimate of redemption through the mail. On November 18, 1971, she sent a money order covering the amount specified by the county clerk. This was the first time she sent in any money. After further notification by the county clerk, she sent in an additional sum of money. She then received a certificate of deposit for redemption and did nothing thereafter. The only notice she received was the one her husband handed to her. On cross-examination she was impeached when she identified her signature on a receipt card which showed a second notice delivered to her on October 18, 1971.

Donald Follot, a petitioner, testified that he was a joint owner of the property. He denied ever receiving personal service of any notice. He received only one notice from the County Clerk and showed it to his wife. He did nothing with respect to payment of either the fourth or fifth installment. On cross-examination he identified his signature on the section 72 petition which states: “* * “ that on December 7, 1971, twenty days prior to the expiration of said extension period, DONALD H. FOLLOT took said notice to the County Clerk’s office and was given an estimate of redemption.” He further identified his signature on two receipt cards.

Robert Brozik testified as a witness for respondent substantially repeating his testimony at the ex parte hearing held on January 14, 1972. He added that on the four occasions that he went to 6439 North New England Avenue the hours of the day varied from noon to 8 P.M. David Gray, called as a witness for respondent, reiterated that he had mailed a notice to Mrs. Follot on September 27, 1971, and which was delivered on October 18, 1971, as shown on the return receipt card. In his attempts to serve Mrs. Follot personally, he had also examined polling lists. He mailed several other notices to the Follots during July and August 1971 concerning this property.

Documentary evidence was also presented to the court. Petitioners introduced the transcript of the January 14, 1972, hearing and evidence that the county clerk mailed them notices on September 29, 1971. Petitioners also introduced a letter from the county clerk, dated November 15, 1971, showing that $70.39 was owing, and at the bottom stating that the fourth installment had been paid, which was dated November 15, 1971, and which showed receipt of $1 was also received in evidence. To impeach the validity of these documents, Mrs. Follot was called by respondent as a witness under section 60 of the Civil Practice Act and asked to explain why these two particular documents were not produced with the other documents when requested prior to the hearing. She stated that she only recently found the documents in a lingerie drawer although she normally kept important documents in a metal container. Edward Schmitt, deputy county clerk, was called as a witness by respondent: He keeps a written record of all items for which a mail request is made. He could find no such request from the Follots. He also examined the search order and stated that it would be contrary to normal office policy to send it out in the condition it was in. Peter Daniel Meegan, administrative assistant to Edward Barrett, county clerk, testified as a witness for respondent that he was supervisor of the tax department. He keeps on file a copy of all letters leaving the office but was unable to find a copy of the letter petitioners introduced stating that the fourth installment was paid. A letter dated November 22, 1971, showing that petitioners had paid the fifth installment, was also introduced in evidence. Respondent introduced the return receipt cards showing that Mr. Follot had received two notices from the county clerk and that Mrs. Follot, on October 18, 1971, had received a notice from respondent.

At the conclusion of the hearing the court denied the petition.

OPINION

Petitioners’ basic contention is that since Mrs. Follot was not personally served and since alternative service was not effected on her 3 months prior to December 27, 1971, the statutory scheme for notice pursuant to section 263 and 266 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, pars. 744 and 747), was not complied with. From this premise they contend that: (a) the court lacked jurisdiction; (b) a fraud was perpetrated upon the court when counsel for respondent told the court that all statutory notices had been given; and (c) this insufficiency in notice is sufficient to vacate the issuance of a tax deed even if raised in a section 72 proceeding.

Jurisdiction for the entire tax sale proceeding is one in rem rather than in personam. Jurisdiction is over the land itself and is acquired by publication in the county collector’s application for judgment and sale of delinquent lands. Once acquired the court retains jurisdiction to make all necessary findings and enter all necessary orders supplemental to the original tax sale, including ordering the issuance of a tax deed and writs of assistance. (Urban v. Lois, Inc., 29 Ill.2d 542, 194 N.E.2d 294; Shapiro v. Hruby, 21 Ill.2d 353, 172 N.E.2d 775; Cherin v. The R. & C. Co., 11 Ill.2d 447, 143 N.E.2d 235.) The application for judgment and order of sale was filed by the county collector of Cook County in May 1969, and the court had jurisdiction from this point on.

Petitioners filed the instant petition more than 30 days after the March 2, 1972, court order and thus the petition constitutes a collateral attack on the order under section 72 of the Civil Practice Act. (Cherin.) In a recent Illinois Supreme Court case dealing with a section 72 petition attacking a tax deed it was stated in Exline v. Weldon, 57 Ill.2d 105, 311 N.E.2d 102.

“The history of litigation dealing with the sale of tax-delinquent property prior to the 1951 amendments to the Revenue Act is set forth in Cherin v. The R. & C. Co., 11 Ill.2d 447, 451-53, and has often been reiterated in subsequent decisions of this court (e.g., Urban v. Lois, Inc., 29 Ill.2d 542; Shuck v. Guarantee Bank and Trust Co., 26 Ill.2d 123). In speaking of the post-1951 tax-deed provisions we said in Zeve v. Levy, 37 Ill.2d 404, at page 409, ‘that findings of the court before which the tax-deed proceedings are held pursuant to section 266 of the Act may not be collaterally attacked except as provided by section 72 of the Civil Practice Act [citation] which affords relief from final judgments, orders and decrees [citations], and that relief thereunder is available upon proof of fraud.' This construction was adopted in order to advance the legislative intent expressed in section 266 that merchantable title would be conveyed by a tax deed. See Cherin v. The R. & C. Co., 11 Ill.2d 447, 455.
The concept of fraud ‘implies a wrongful intent — an act calculated to deceive.’ (Dahlke v. Hawthorne, Lane & Co., 36 Ill.2d 241, 245.) The failure to attain knowledge concerning certain facts is not necessarily indicative of a lack of diligent inquiry (Village of Dolton v. First National Bank of Blue Island, 12 Ill.2d 435, 440); and, even if a more persistent effort could have been made in the conduct of the search and inquiry, this is not proof of fraud unless there exists evidence of wrongful intent or a deceptive design. (Zeve v. Levy, 37 Ill.2d 404, 409.)”

In the absence of fraud the findings of the trial court, as to notice, are conclusive. (In re Application of County Collector, 1 Ill.App.3d 707, 274 N.E.2d 164; Dahlke v. Hawthorne, Lane & Co., 36 Ill.2d 241, 222 N.E.2d 465.) The precise question, therefore, is whether the record discloses a fraud on the court, for if it does not, then the finding of adequate notice is conclusive. Zeve v. Levy, 37 Ill.2d 404, 226 N.E.2d 620,

Petitioners have alleged that because Gray told the court at the ex parte hearing that the statute had been complied with, and that since the notice received by Mrs. Follot was not within the time period required by the statute, a fraud on the court was committed. However, petitioners overlook the fact that everything that was done or not done was made known to the court before it ordered the issuance of the tax deed. The court was informed of the personal service of notice that was made on all but one of the parties; of the attempted personal service made on Mrs. Follot; and of the service made on Mrs. Follot by publication and mailing. The court was also informed of the redemption of the fifth installment. The finding that all statutory notices had been complied with was a legal conclusion and, although stated by counsel for respondent, was actually a determination which the court had to make. “Where it is alleged that a tax deed was procured by fraud, the burden of proving such fraud is upon the party who alleges it.” (Southern Illinois Cooperative v. Lowery, 79 Ill.App.2d 180, 189, 224 N.E.2d 32.) Since all relevant information was openly presented to the court, we cannot find that a wrongful intent or an act calculated to deceive has been proved.

Nor do we believe that the court erred in finding notice had been properly given. Section 263 of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 744), permits service by mail and publication if the person to be served cannot upon diligent inquiry be found in the county. (In Re Application of County Collector, 2 Ill.App.3d 737, 277 N.E.2d 532.) The statute in pertinent part recites:

“No purchaser or assignee of such purchaser of real estate sold for nonpayment of general taxes or special assessments, shall be entitled to a deed until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, notice of such purchase, not less than 3 months prior to the date when the time of redemption, or extended time of redemption as hereinafter provided shall expire, upon the following persons: * * *. If the person in whose name the real estate was last assessed for general taxes cannot upon diligent inquiry be found in the county, notice shall be sent by registered mail or certified mail, return receipt requested, to the address shown for such persons on the assessor’s books. Such notice by registered or certified mail, return receipt requested, shall also be sent to the owners of or parties interested in such real estate, including trustees and mortgagees of record, provided such persons cannot upon diligent inquiry be found in the county. * * *” (Emphasis supplied.)

The statute also provides that “[s]uch notice by publication shall be given 3 times, the first publication not more than 5 months, and the last publication not less than 3 months before the time of redemption expires.” Therefore, since the extended time of redemption ended December 27, 1971, notice had to be sent, at the latest, on September 27, 1971.

Whether statutory notice was sufficient was a question of fact for the trial court. In the trial before the court without a jury it is elementary that the credibility of witnesses and the weight to be accorded their testimony are to be determined by the trier of fact, and unless manifestly against the weight of the evidence, his finding will not be disturbed. (In re Application of County Collector, 7 Ill.App.3d 124, 287 N.E.2d 81.) There was evidence of repeated attempts, on various days and at various hours, to personally serve Mrs. Follot. Gray specifically testified that after the unsuccessful attempts to personally serve Mrs. Follot, notice was sent to her on September 27, 1971. The return receipt card signed by her was also introduced into evidence. There was sufficient evidence to support the court’s finding that the statute had been complied with. Since the finding that all statutory notices had been complied with is not against the manifest weight of the evidence and is consistent with Gray’s representations to the court, petitioners have failed to demonstrate any fraud.

Finally, petitioners argue that their redemption of the fifth installment, instead of the fourth installment, was an excusable mistake. We find that this contention is not borne out by the record. There was evidence showing that petitioners received separate notices for the fourth and fifth installments of the special assessment. The evidence further shows that petitioners received a letter from the county clerk acknowledging receipt of payment for the fifth installment and that this payment occurred a short time after petitioners received notice from Gray concerning this fifth installment. Although petitioners introduced two exhibits which showed the fourth installment was paid, the validity of these documents was vigorously brought into question. The testimony of Edward Schmitt and Peter Meegan taken together with Mrs. Follot’s testimony on cross-examination and an examination of the documents themselves supports a conclusion that the documents are not authentic. The trial judge did not believe that these documents demonstrated that an excusable mistake was made, and we will not reverse this determination. Petitioners had notice that two installments were owing and their payment of one of them, albeit the later installment, cannot excuse their non-payment of the other installment. Before issuance of a tax deed, all subsequent taxes must be paid. (Ill. Rev. Stat. 1969, ch, 120, par. 747.) It matters not by whom these taxes are paid, and it is no defense that subsequent taxes were paid by the original property owners. Stanley v. Bank of Marion, 23 Ill.2d 414, 178 N.E.2d 367.

The judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       A search, upon request, is made by the county clerk. The search order is divided by perforations into a top part and a bottom part. The top part acts as a temporary receipt until the search is made. Upon completion of the search, the top part is given to the clerk and the bottom part showing the results of the search is returned to the person requesting the search. Normally only the bottom part is returned, not both top and bottom. The search order, as admitted into evidence, had both parts intact, with the bottom part showing the fourth installment was paid,

       It is now provided in section 253 of the Revenue Act (Ill. Rev. Stat. 1973, ch. 120, par. 734) that on property sold after July 1, 1971, where “* * * such real property is improved with a structure consisting of at least one and not more than 4 dwelling units and one or more of said dwelling units is occupied by the owner of owners thereof as his principal place of residence * * *” that upon written or oral application to the court at the hearing for issuance of a tax deed, the owner may obtain an additional 30 days from the date of the hearing in which to make redemption. It should be noted that the sale in the instant cause occurred prior to July 1, 1971, and petitioners failed to appear at the hearing on January 14, 1972.


text:
    Kathleen Learner et al., Plaintiffs-Appellants, v. Jun Inouye, Defendant-Appellee.
    (No. 56612;
    First District (2nd Division)
    May 28, 1974.
   PER CURIAM.

DOWNING, J., took no part.

Louis M. March, of Chicago, for appellants.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Perry L. Fuller, D. Kendall Griffith, and Thomas M. Crisham, of counsel), for appellee.