text:
    Leonard Hughes et al., Plaintiffs-Appellees, v. The Board of Fire and Police Commissioners of the City of East St. Louis et al., Defendants-Appellants.
    (No. 73-251;
    Fifth District
    May 28, 1974.
    Richard G. Younge, of East St. Louis, for appellants.
    Bruce N. Cook, of Hillebrand and Cook, of East St. Louis, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The plaintiffs in this case were police patrolmen in East St. Louis. Each was charged with receiving stolen property or being an accessory to a felony. After a hearing before the Board of Fire and Police Commissioners, they were discharged with a loss of all rights and benefits. They filed suit under the Administrative Review Act (Ill. Rev. Stat., ch. 110, secs. 264-279), in the Circuit Court of St. Clair County. The decision was reversed and judgment entered for the plaintiffs on March 19, 1973. The Board of Fire and Police Commissioners has taken this appeal.

Plaintiffs had previously been charged in a criminal case and found not guilty. In the order of the Board of Fire and Police Commissioners, they found that Tolden, who was the riding partner with Adams in one. patrol car, had plead guilty to theft on the date and time in question. There was no testimony in the record upon which to base this finding.

A brief review of the evidence is necessary. Tolden and Adams were called by radio to investigate at Maggies Fashion Shoppe. They were the first to arrive at the scene. They found a broken front window but no one at the scene. Hughes and Manso apparently were in the second car to arrive at the scene. Hughes testified that they approached with their lights out and ran over a fallen fight standard. Hughes testified that he got out of the car, put his coat on the ground and got down to examine the car for damage. Finding none he told Manso to back the car off the fight standard. When this was done he threw his coat in the back seat and got back in the car on the drivers side. He then drove to the front of Maggies where Adams waved his hand indicating everything was under control. They then left without making an investigation at the scene. Manso testified to substantially the same facts. Both admitted that their official report was incorrect since it did not mention running over the broken fight standard. They testified that other patrolmen had been required to personally pay for car damage and for this reason they had not mentioned the fight standard in their report.

Officers Moore and Stone were in another car that arrived at the scene. They testified that the trunk of the Hughes-Manso car was open and that they saw Hughes throw something into the trunk. They also testified that Manso was inside the shop.

Mrs. Mamie Jennings of Maggies Fashion Shoppe testified that she checked the inventory and found numerous articles missing. She identified the four garments at the hearing as being some of the articles missing.

The Chief of Police testified that the four garments at the hearing were all of the articles recovered pertaining to the burglary. He further testified that the ladies from whom the garments had been recovered stated that they had obtained them from Patrolman Tolden.

A police sergeant testified that on April 16 in the afternoon he made a search of the trunk of the police car that Hughes and Manso had driven on the morning of April 14. He testified that he found a chrome-colored hook with a washer on it in the trunk. This matched the type used in Maggies Fashion Shoppe.

A review of the evidence shows that it falls far short of showing that Adams, Hughes and Manso received stolen property or were accessories to a burglary. The finding of the hook in the trunk was a suspicious circumstance but since there was no showing that this hook was unusual nor any showing as to who had access to the car in the interval before the hook was found, this falls short of being proof of wrongdoing.

The record shows a failure to file a complete and accurate report, but this was not the charge.

We hold that the phrase “and with conduct unbecoming police officers” as used in this charge must have some relation to the prior charges of receiving stolen property or being accessory to a burglary.

Since there was no evidentiary basis in the record for the Board’s findings, the judgment of the trial court revising those findings is correct.

Judgment of the Circuit Court of St. Clair County is affirmed.

EBERSPACHER and CARTER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Melvin Withrow, Defendant-Appellant, v. Bowen Walker, Plaintiff-Appellee.
    (No. 73-203;
    Fifth District
    June 4, 1974.
   PER CURIAM.

CREBS, J., took no part.

Charles W. Phillips, of Ridgway, for appellant.

Alton A. Greer, of Junction, for appellee.


author: Mr. JUSTICE CREBS

text:
    Florence Elizabeth Plant, Plaintiff-Appellant, v. Joseph Henry Plant, Defendant-Appellee.
    (No. 73-154;
    Fifth District
    June 5, 1974.
    Burnside, Dees and Johnston, of Vandalia, for appellant.

      James E. Buchmiller, of Greenville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Bond County in a separate maintenance proceeding denying- the wife a retroactive allowance for child support furnished by her from the time of the original decree up to the filing of her petition for reimbursement 4Pk years later.

The separate maintenance decree, entered December 5, 1967, awarded custody of the couple’s minor child to the wife. It did not make any allowance to her for child support or attorney’s fees, but instead specifically reserved such question “for future ruling by the court.” Admittedly, at the time of entry of the decree the husband was an alcoholic. He was without funds, unemployed and confined to a hospital. On April 21, 1972, the husband was declared an incompetent and the Bradford National Bank of Greenville was appointed conservator of his estate, consisting of $40,000 in cash realized from a sale of real estate inherited by him on the recent deaths of his father and brother.

At the first hearing on the petition on September 1, 1972, the wife testified that their daughter was then 17 and would be 18 years of age the following December; that she was in her last year in high school, had musical talent, and intended to pursue her musical education further. She also stated that from the entry of the decree until the filing of her petition she was the sole support of her child. She estimated that she had expended approximately $3100 each year on her daughter’s behalf, and that she did so out of her salary of approximately $10,000 per year as a teacher in the Greenville Elementary School. She requested that her husband’s estate be ordered to pay $40 per week toward the support of their child during the remaining months of her minority and thereafter until she finished her education. In addition, she asked for reimbursement in the amount of $5200 which sum, accorded to her estimate, represented one-half of the total which she had expended for the child since the entry of the decree.

The defendant husband was present at the hearing but he did not testify. However, the court was informed by counsel that the conservator was presently paying for defendant’s residence and care in a nursing home, and in addition was furnishing him with $20 per week for clothing and other personal needs.

On the basis of this evidence, and with the approval of the attorney for the conservator and the guardian ad litem for defendant the court ordered the conservator to pay prospective support for his child at the rate of $35 per week for so long as she remained a minor and thereafter continuously for so long as she was regularly pursuing her education. The court held in abeyance its ruling on an award for retroactive support pending a further hearing and submission of authorities on the question. On January 8, 1973, a supplemental order was issued denying retroactive support by allowing the wife her attorney’s fees for both the original separate maintenance proceeding and for the presentation of her present petition. It is from that portion of this latter order denying retroactive support that this appeal is taken.

Appellant argues that as between a father and mother the primary duty of supporting a child rests upon the father, that financial disparity between the mother and father does not relieve the father of this duty, and that a mother is entitled to reimbursement on a retroactive basis for at last one-half of the sum provided by her even though the original decree made no provision relative to support.

From the record it appears that the trial court had some doubt as to whether a mother could be reimbursed for retroactive support where the decree was one for separate maintenance and also failed to provide for support; and his order denying reimbursement seems to have been based on this view. As we shall later point out we believe the court was correct in its conclusion but for the wrong reasons.

In Furth v. Furth, 5 Ill.App.3d 73, it was held that a retroactive allowance of support is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just; and that this holds true not only in a divorce proceeding but also in a separate maintenance case as decided in Bramson v. Bramson, 17 Ill.App.2d 87. It has also been held that whether or not the original decree is süent on the question of support is irrelevant. (Plaster v. Plaster, 47 Ill. 290; Sturdy v. Sturdy, 67 Ill.App.2d 469; Gill v. Gill, 8 Ill.App.3d 625.) In fact, this latter rule has been incorporated directly into the statute on divorce (Ill. Rev. Stat., ch. 40, par. 19) providing that, “Irrespective of whether the court has or has not in its decree made an order for the payment of ” # ” support it may at any time after the entry of a decree * * * make such order for * * * the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just * *

While agreeing with appeHant’s contention that a court has the right to make a retroactive allowance for child support, nonetheless we do not entirely agree with appeHant’s argument that in every case the father is primarily responsible for such support and the mother is arbitrarily entitled to reimbursement for at least half of what she has personally spent for support. In our opinion the support of a child is a joint and several obligation of both husband and wife, the amount and source thereof to be determined on the basis of the needs of the child and the means and capacity to produce income of the respective parents. In other words, contributions to support as between the parents should be determined in proportion to their financial ability based on the facts of the individual case. We recognize that this is contrary to the traditional view that support of a child is exclusively a husband’s obligation and that a wife’s income, assets and ability to provide for a child are irrelevant. But with the emancipation of women and the change in times we believe this view to be outmoded as indicated by more modern case law and statutory enactments.

In Illinois the divorce law itself (Ill. Rev. Stat., ch. 40, par. 19) provides that, “* * * the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just * * .” In addition, though not involving divorce or separate maintenance, a number of other statutes have modified the old common law rule. Section 2 — 11 of the Illinois Public Aid Code (Ill. Rev. Stat., ch. 23, par. 2 — 11) defines legally responsible parents as the parent or parents of a child. The law (Ill. Rev. Stat., ch. 23, par. 2361) makes it a misdemeanor where either parent contributes to the dependency of a child. Expenses of the family and of the education of the children are chargeable upon the property of both husband and wife, or either of them. (Ill. Rev. Stat., ch. 68, par. 15.) It is a misdemeanor for either parent to refuse to provide for support and maintenance of his of her child. (Ill. Rev. Stat., ch. 68, par. 24.) Section 3(a) of the Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat., ch. 68, par. 52(a)) provided that both husband and wife are severally liable for the support of a child under 18 years of age; and section 3(b) of the same Act (Ill. Rev. Stat., ch. 68, par. 52(b)) stated specifically that a mother is liable for the support of her child under 18 years of age. And section 132 of the Probate Act (Ill. Rev. Stat., ch. 3, par. 132) states that the parents have equal powers, rights and duties concerning their children.

In a case involving an attempt by a mother to obtain reimbursement from her children’s estates for money expended by her in their support, reimbursement was denied on the grounds that she had ample assets to support and maintain her children, and even though her children had estates of their own this did not relieve her of her responsibility to supr port them. (In re Estate of Weisskopf, 39 Ill.App.2d 380.) The court further stated that the duty may be primarily the father’s, yet if he is dead, incapacitated or without sufficient income or means, the responsibility devolves upon the mother. In Purity Baking Co. v. Industrial Commission, 334 Ill. 586, the question was whether a mother was under a legal obligation to support her minor child so as to entitle her children to compensation under the Workmens Compensation Act providing compensation on the death of the mother. In holding that the child was entitled to such compensation the court stated that it was true that under common law the legal status of a mother was such that she was not under legal obligation to support her minor children where the father was alive and able to do so, but that rule has been modified. Since the wife has become emancipated and now possesses the full enjoyment of her property and earnings, the court stated, there is no longer any reason why she should not be held legally responsible for the support of her minor children equally with her husband.

In Edwards v. Edwards, 125 Ill.App.2d 91, it was held that in determining the amount of support to be contributed by the father of a minor child it was not only proper but necessary to an equitable conclusion to consider the employment and earnings of the child’s mother. In Harnois v. Harnois, 10 Ill.App.3d 1062, the court recognized the responsibilities of both parents as contained in section 18 of the act concerning divorce (Ill. Rev. Stat., ch. 40, par. 19) and approved an order obligating each parent to pay one-half of their child’s education costs where the evidence showed the husband was a police officer earning $14,700 per year and the wife was a teacher earning $15,900 per year. In Everett v. Everett, 25 Ill.2d 342, it was held that the amount of alimony and child support to be allowed must be determined by accommodating insofar as possible the needs of the parties and children with the available means of the parties, due regard being given to their stations in life.

In the case before us it is undisputed that at the time of the decree for separate maintenance the husband’s interest in the family home and personal property was turned over to the wife, and that at that time he had no other funds, was unemployed and confined to a hospital. When the wife filed her petition for support the husband had already been declared an incompetent. His earning capacity was nil, and his sole assets were the monies left from his $40,000 inheritance which were controlled and expended on his behalf as determined by his conservator subject to court approval. He was being cared for in a nursing home at the expense of the conservatorship and he was receiving $20 per week for clothing and incidentals. There was no testimony as to the specific monthly cost of his care and maintenance, but it appears to have been accepted by the court and counsel that the principal of his inheritance had already been and would continue to be depleted. It was also recognized that the conservator was investing the assets of its ward’s estate and that there would be some return on such investments, though in an insufficient amount to support him. Questioning of the wife as to her financial means was not vigorous but it was brought out that during the time she had supported her daughter she was employed as a teacher at a salary of approximately $10,000 per year and that she was still so employed.

Based on these facts we cannot see how it could be held fit, reasonable and just to compel this incompetent father to reimburse his wife for previous support which she had rendered to their child. To do so would be to ignore the principle that in determining the respective contributions of parents towards the support of their children there first must be an accommodation of the needs of the parties with their available means and with due regard to their stations in life. There can be no question here that other than the small income to be realized from the constantly depleting conservatorship funds the husband has no earning capacity whatsoever, nor any in prospect. To invade the principal of such funds, where there can be no replenishment by future earning power would only hasten the eventual placement' of the husband on public welfare. This would not be fair or equitable either to him or to the public generally, for in such event if would be the public who would then, more quickly, have to assume the burden of his support as a public charge in a tax-supported institution.

Accordingly, we affirm the order of the Circuit Court of Bond County on the basis that its decision denying reimbursement for retroactive support was correct even though for the wrong reasons.

Judgment affirmed.

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


text:
    G. P. Construction Co., Inc., Plaintiff-Appellee, v. Walter Diestelhorst, Defendant-Appellant.
    (No. 72-209;
    Fifth District
    June 7, 1974.
    Denis McGrady, Jr., of McGrady and Madden, of Gillespie, for appellant.
    Sprague, Sprague & Ysursa, of Belleville (Robert J. Sprague, of counsel), for appellee.
   PER CURIAM.

CREBS, J., took no part.


author: Mr. JUSTICE JONES Mr. JUSTICE EBERSPACHER

text:
    James Castle, Plaintiff-Appellant, v. Norman E. Hulcher, Individually, and d/b/a Norman Hulcher Quarry, and Hulcher Quarry, Inc., Defendants-Appellees.
    (No. 72-349;
    Fifth District
    June 10, 1974.

      EBERSPACHER, J., dissenting.
    Bullington & White, of Hillsboro, and Sweeney & Sweeney, of Taylorville, for appellant.
    Stuart Dobbs, of Denby & Dobbs, of Carlinville, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This is an action for a declaratory judgment and other relief brought by the plaintiff-appellant against the defendant-appellee. Relief was denied and plaintiff appeals.

In June 1965 Mr. C. H. Johnson signed an agreement with the plaintiff-appellant, James Castle, which authorized the latter “* * * as my agent to negotiate for the sale or lease of my quarry operations «* * # ” Acting on this authorization, Castle contacted defendant-appellee Hulcher, and on October 16, 1965, plaintiff-appellant, James Castle, and defendant-appellee Norman E. Hulcher signed as lessees a contract with Charles H. Johnson for the operation of the quarry owned by tire latter. The lease was for 15 years with a renewal privilege. Limestone, roadrock, gravel and sand were to be mined and sold, the lessees to pay a 10-cents-per-ton royalty to the owner.

Paragraph 12 of the lease provided that “It is mutually agreed by all parties to this lease and contract that in the event the said Norman E. Hulcher desires to form and establish or does form and establish a corporation, the purposes of which said corporation includes the production and mining of limestone, roadrock, sand or gravel and the purposes of this lease and contract as are herein specified that this lease and contract will be sold, assigned, or transferred to the corporation at any time requested in writing by said Norman E. Hulcher.”

Following the signing of the lease, Hulcher put in pumps to reduce the water level in the quarry. He asked Castle to find a contractor who would come in and operate the quarry. Castle found a contractor, Lyle Moushon, who operated the quarry at a loss for a year, producing about 60,000 tons. This was approximately one-half enough to meet royalty payments since the lessees were obligated to the owner to pay 10 cents per ton or a minimum of $6,000 each 6 months. Hulcher made these payments. The contract with Moushon, which had been only between Hulcher and Moushon, was terminated and Castle was asked to find another crusher. He found Kessen and a contract was signed with him, this time by both lessees. ICessen’s production was not much better than that of Moushon and his relationship was terminated in February 1968. Hulcher made the minimum royalty payments. Hulcher then moved in his own machinery and equipment and commenced crushing in May or June of 1968. Following this, production expanded and the quarry became a paying operation.

On March 24, 1970, acting in accordance with paragraph 12 of the lease, Hulcher assigned “any and all rights granted under a contract dated October 16, 1965 between Charles H. Johnson and the aforesaid Norman E. Hulcher and James Castle to Hulcher Quarry, Inc., an Illinois corporation.” Hulcher subscribed his name to this assignment.

For approximately 4 years following the signing of the lease, Castle devoted some time to the quarry — operating the scales and keeping trucking records. Also, he purchased trucks of his own with some financial assistance from Hulcher and during this same period of time operated an independent trucking business, hauling materials from the quarry. On March 14, 1969, Hulcher became angry at Castle because the latter was using Hulcher s mechanics to repair his own trucks, and Castle was told to take his trucks and get out and not come back. Two years later, in February 1971, Castle filed his complaint for a declaratory judgment claiming that he was a co-lessee entitled to 50% of the profits from the operation and asking for an accounting.

Castle contends that he is a co-lessee and in the absence of a specification of the interests of the lessees is entitled to one-half of the profits; that Hulcher s admission that the lease contract was executed by the owner, Castle, and himself is a judicial admission, and that he therefore cannot deny the effect of the lease as stated above. Also, Castle claims that he received no notice or consideration at the time Hulcher transferred the interests under the lease to the corporation and that therefore Castle’s interest in the lease was not divested. Castle further states that over a period of 4 years he contributed a substantial amount of work to the quarry enterprise for which he has not been compensated.

Hulcher maintains, on the other hand, that there was never any intent that Castle be in fact regarded as a co-lessee, that this arrangement was made as a method of paying him for finding a lessee of the quarry for the owner. The evidence corroborates Hulcher’s declarations that Castle invested nothing in the enterprise, that all of the operating capital and expenses of operation were paid by Hulcher, that Hulcher alone dealt with Johnson in paying royalties and in discussing matters that arose under the lease. Hulcher maintains that Castle was to receive 2 cents per ton in lieu of a commission from Johnson for finding a lessee and that this was credited to Castle in the quarry accounts. He further maintains that Castle has been paid everything due him under agreements accepted by both of them during the 4-year period of operation and that Castle, in effect, approved. Hulcher’s transfer of leasehold interests to the corporation by raising no objections for a period of more than 1 year.

The primary issue in this case is whether or not Castle is entitled to share in the quarrying enterprise as a co-lessee.

What was the purpose in mind when Castle was named a co-lessee, and what do the statements and actions of the parties indicate his interest was intended to be? Castle maintains that these questions cannot be explored since Hulcher has made a judicial admission of the existence of the lease and its contents. We do not agree. There is no magic in a judicial admission. It is simply a way of saying that one should not be permitted to refute something which it can be proved he has admitted. In this case Hulcher admitted the existence and the language of the lease. Beyond that he admitted nothing and it is obvious that substantial disagreement exists over the meaning of the lease. After all, the trial court did hear parol evidence from both parties regarding its meaning. None of the cases cited by Castle in support of his contention regarding a judicial admission involve the construction of an instrument. All are personal injury cases. In Rosbottom v. Hensley, 61 Ill.App.2d 198, 209 N.E.2d 655, the question was whether or not the plaintiff’s statement to the defendant during a hospital visit that it was an “accident which could have happened to anyone” was a judicial admission barring the plaintiff’s suit. The court did not regard this as a judicial admission. It said that the word “accident” must be defined in the context in which it is used. In Nowak v. Schrimpf, 44 Ill.App.2d 309, 194 N.E.2d 547, the plaintiff admitted that a third car caused a truck to swerve into his path. This was regarded as a judicial admission and rightly so. But we have here a simple statement, not a document to be interpreted. In Huber v. Black & White Cab Co., 18 Ill.App.2d 186, 151 N.E.2d 641, the plaintiff stated that the defendant with whom he was riding was driving at a proper rate of speed and slowed down at the intersection. He was later barred from controverting this and rightly so. Here again we have a simple statement, not a document to be interpreted.

Can extrinsic evidence be admitted to show the interests of the parties in the lease? In Sturdyvin v. Ward, 336 Ill. 594, 168 N.E. 666, the court said that a conveyance to two or more parties without a designation of interest creates the presumption that they take equal shares as tenants in common, but that evidence is admissible to show otherwise. Such evidence was admitted in the Sturdyvin case to show that one of two signatories on a mortgage was only a surety. Cases cited by Castle to show that the law presumes that they take equal shares as co-lessees also recognize that this is a rebuttable presumption. In Keuper v. Unknown Heirs of Mette, 239 Ill. 586, 88 N.E. 218, a husband attempted to show that his wife was a partner in a business conducted by him and a deceased co-owner thus entitling them to two-thirds of the property instead of one-half upon the decease of the co-owner. The court refused to allow their claim because the evidence did not show that the wife was in fact a partner. In Miller v. Mathias, 145 Ill.App. 465, the question was whether or not a conversation between one lessee and the deceased lessor was admissible to show that rent had been paid. The court rightly held that such was not admissible. In Shinn v. Shinn, 91 Ill. 477, the court held that so far as third parties are concerned joint purchasers of a certificate of purchase at a foreclosure sale are regarded as having equal shares, thus inferring that as between the parties evidence may be admitted to show a different division. In Porter v. Porter, 381 Ill. 322, 45 N.E.2d 635, the court did interpret language in a deed and in a habendum clause to the deed to determine whether a conveyance created a tenancy in common, a joint tenancy, or a fife estate.

While we agree with Castle’s statement that the court cannot establish a contract different from that expressed in the written agreement of the parties, this does not mean that extrinsic evidence cannot be introduced to show what the parties intended the contract to mean. In Freeland v. Edwards, 11 Ill.2d 395, 142 N.E.2d 701, cited by Castle, though the court states that “* * * we cannot establish a contract different from that expressed in the written agreement,” it also says, “The primary object of construction is to give effect to the intention of the parties, greater regard being given to such intent, when clearly revealed, than to particular words or clauses of the contract.” And in Armstrong Paint & Varnish Works v. Continental Can Co., 301 Ill. 102, 133 N.E. 711, the court states, “* * * the real difficulty arises in determining in each case whether the language of the instrument is ambiguous, as shown either by the context or by the circumstances attending the same.” (Emphasis added.)

We have no hesitancy in stating that it is proper to consider the actions of the parties and other extrinsic evidence in determining the share or interest of Castle in the quarry operation. In 12 I.L.P. Contracts § 232 it is stated that “Regard will be had to the practical construction, if any, which the parties by their acts or conduct have given the contract.” In Vermont St. M.E. Church v. Brose, 104 Ill. 206, the court admitted extrinsic evidence to determine the meaning of the following phrases: “stone for the front and footing,” “fuU and complete satisfaction,” and “finished and completed.” In Storey v. Storey, 125 Ill. 608, 18 N.E. 329, the court stated (quoting from the Brose case), “‘It is always allowable to look to the interpretation the contracting parties place on their agreement, either contemporaneously or in its performance, for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable.’” (Emphasis added.)

A review of the record in this case indicates that Castle was made a co-lessee, thus entitling him to some income from the quarry operation in lieu of receiving a fee from the owner for finding a quarry lessee. The lease itself is silent with respect to the interests of the parties. The evidence in the case clearly rebuts the presumption that they were to have equal interests. There is evidence of an agreement, first admitted and then refuted by Castle, that he would receive 2 cents per ton as his payment. Castle states that he was not in fact paid under any such agreement; Hulcher states that records were kept and Castle credited with 2 cents per ton. Castle states that he worked at the quarry over a period of 4 years for which he has received nothing; Hulcher states that Castle has been paid in full for what he has done and that his presence at the quarry was due, in part at least, to Castle’s own trucking operation. Castle states that he supplied certain office equipment and other items for the enterprise for which he has not been paid; Hulcher states that part of these items were not used and that others were not requested by him.

Viewing the record in this case we are not disposed to disagree with the trial court that Castle “had no interest as a partner or otherwise in the leasehold involved in this action.” We believe the record shows that it was the intent of the parties that Castle’s interest would be a limited one consisting of a right to a part of the royalty on the tonnage produced; that Hulcher would operate the quarry, take the risks involved, pay the owner the royalties due him and otherwise be in complete charge of the quarrying enterprise. The facts bear out this interpretation of the parties’ intent. Furthermore, though the evidence is controversial, we think it is reasonable to believe that Castle has been compensated in accordance with the understanding he and Hulcher had during the period of operation in question.

Affirmed.

G. MORAN, J., concurs.

Mr. JUSTICE EBERSPACHER

dissenting:

By the terms of the “contract” and by virtue of section 6 of the Mines Act (Ill. Rev. Stat., ch. 94, par. 6), Castle became a cotenant with Hulcher. The preamble to the “contract” provided that Johnson, the owner, “leased and let” and “grant[ed] exclusively unto the said lessees, their heirs and assigns.” Section 6 provides that:

“Any mining right, or the right to dig for or obtain * * * or other mineral from land, may be conveyed by deed or lease, which may be acknowledged and recorded in the same manner and with like effect as deeds and leases of real estate.”

The “contract” in question specifically refers to the extraction of limestone in sections: 1, 3, 5, 6, 8, and 13. And limestone is technically a mineral according to Kinder v. La Salle County Coal Co. (1923), 310 Ill. 126, 141 N.E. 537. In that case the Court declined to include limestone within the clause “all minerals of every description” because such an interpretation would have destroyed the grantor’s reservation of rights to the surface for agriculture purposes. However, the court did concede that limestone was technically classified a mineral and without the extenuating circumstances present in Kinder, supra, there is little reason not to hold that the “contract” involved in this case conveyed a mineral lease within the terms of section 6.

Furthermore, it should be noted that the appellant in his complaint stated that this “contract,” conveyance, was recorded on the land records of Montgomery County. The appellee in his answer admitted this recordation. All the evidence is to the effect that the parties treated the instrument as one conveying an interest in realty, until Hulcher sought to treat it otherwise when it benefited him to do so.

Where two or more persons take as tenants in common (which would be presumed under Ill. Rev. Stat., ch. 76, par. 1) under an instrument which is silent in regard to their respective shares, there is a presumption that their shares are equal. The presumption that tenants in common hold equal shares where the instrument under which they claim is silent in that regard is not conclusive, as between the parties, and. so it is subject to rebuttal on sufficient proof. However, as stated in Keuper v. Unknown Heirs of Mette, 239 Ill. 586, 88 N.E. 218, the burden of establishing that the tenants in common were not intended to share equally is upon the person attempting to overcome the presumption of equality, in this case Hulcher.

Hulcher would have us believe that not only were he and Castle to share disproportionately, but that Castle was not to take any fixed share in the lease. All that Castle, according to Hulcher s unsubstantiated, self-serving testimony, was to take, was 2 cents per ton; this is not a respective share in the lease; rather, it is a royalty. Hulcher offers no explanation of why Castle was made either a lessee or a grantee and 18 months after the instrument was executed, Hulcher acknowledged Castle as an “owner.” When or by what act or by operation of what law he was divested is not disclosed by this record. Hulcher was represented by his attorney at the signing of the contract and while he may not have drafted the document it was modified at his suggestion to accommodate him. There is no evidence that Castle participated in any way in the preparation of the instrument. It is my opinion that this document should be construed against Hulcher in any case of ambiguity, and it is he who contends it is ambiguous.

Even ignoring these presumptions against Hulcher, I find insufficient proof that Hulcher and Castle were to share unequally. While Hulcher made all the payments to Johnson this does not infer that Castle would not have been liable had Hulcher not paid — the agreement between the parties made Hulcher the party to whom Johnson would look for his royalty. Section 3 of the agreement expressly provides that Hulcher and Castle were jointly and severally liable for the royalties. It is Hulcher s testimony, not Castle’s, which is inconsistent. Castle never admitted any 2-cent deals and specifically denies any such deals; his testimony was consistent with the interest he claimed.

Hulcher’s testimony is further weakened by a number of factors. First, the Kessen agreement is signed by Castle and Hulcher as “owners.” Secondly, Hulcher testified to two separate 2-cent deals. The first deal allegedly gave Castle 2 cents a ton as a brokerage fee and the second allegedly gave Castle 2 cents “for selling and collecting rock.” Thirdly, Hulcher terminated Castle’s “two cent per ton levy when Castle left the quarry.” This indicates that the 2-cent levy was in return for services rendered and not incident to ownership. And lastly, Hulcher sent no written notice of assignment as required by section 12 of the “contract.” This was admitted by Hulcher who did not act “in accordance with paragraph 12 of the lease” which recognized that Castle had an interest, which he would assign upon a proper written request. That section does not set out under what terms Castle would assign upon Hulcher s written request. It gave Hulcher no authority to assign Castle’s interest. Appellee Hulcher states, “Under the terms of the lease Hulcher owned what he owned, and if Castle owned anything Hulcher’s acts could not alienate or prejudice Castle’s interest,” citing Fyffe v. Fyffe, 292 Ill.App. 539, 11 N.E.2d 857. Accepting Hulcher’s own statement, Hulcher could not divest Castle by means of assignment under section 12. Therefore, if a 2-cent deal existed it continued even after Hulcher formed his “corporation” and assigned his interest in the quarry to it. If it is felt that there is sufficient evidence to establish the 2-cent deal then Castle is entitled to an accounting for 2 cents a ton from the date of the “contract” until the present, and he is entitled to an additional 2 cents for “selling and collecting rock” pursuant to Hulcher’s self-serving, unsubstantiated testimony.

In summary: Hulcher has to overcome the presumption that he and Castle were to take equally; he has to establish that the contract meant other than what it said; and he must establish the 2-cent deal was Castle’s only interest. Even under ordinary standards of proof, Hulcher failed to meet his burden. And because the standard of proof is “clear and convincing evidence” the quantum of proof required is that which leaves no reasonable doubt in the mind of the trier of fact of the truth of the fact in issue. In re Estate of Weaver (1966), 75 Ill.App.2d 227, 220 N.E.2d 231.

Hulcher has, as a matter of law, failed to meet this burden and the finding of the trial court should be reversed as not being supported by the evidence. Even if the majority consider otherwise, the least that should be done is to remand for an accounting on Hulcher’s theories that plaintiff agreed to 2 cents a ton in the nature of a royalty and the additional 2 cents a ton for “selling and collecting,” and including both parties’ share of the 10-cent-per-ton royalty.


author: Mr. PRESIDING JUSTICE SMITH

text:
    Bohn Aluminum & Brass Company, Plaintiff-Appellee, v. Lewis Barker, Defendant-Appellant.
    (No. 11317;
    Fourth District
    June 12, 1974.
    Katz & Friedman, of Chicago (Harold A. Katz, Irving M. Friedman, and Zenia S. Goodman, of counsel), for appellant.
    Massey, Anderson, Gibson & Pearman, of Paris, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

On its first visit to this court, we dismissed the appeal, with one judge dissenting, and held that a temporary restraining order was not appeal-able under Supreme Court Rule 307 (Ill. Rev. Stat. 1969, ch. 110A, par. 307), relating to interlocutory appeals as a matter of right. This order of dismissal was reversed by the supreme court in Bohn Aluminum & Brass Co. v. Barker, 55 Ill.2d 177, 303 N.E.2d 1, and remanded to this court. We therefore turn our attention to the issues raised on the original appeal.

Without notice to the defendant and without bond, the trial court issued a temporary restraining order against the defendants prohibiting them from “Interfering with ingress to and egress from the * * * plant * * * by blocking, stopping or otherwise impeding said ingress and egress or in any manner preventing vehicles or pedes trial traffic from entering or leaving said plant and (2) threatening or otherwise intimidating employees of Plaintiff or other persons seeking to enter or leave the premises of Plaintiff by throwing rocks, marbles, nuts and bolts at said persons or their property or the property of the Plaintiff, or by telephone calls to employees or other persons doing business with the Plaintiff.” This order was entered on May 5, 1970, at 1:25 P.M. and by its terms expired on May 15, at 1 P.M. unless extended by the order of the court for good cause shown. A copy of this order was served on the defendant, Lewis Barker, the following day by delivering same to him personally. The matter was set for 1 P.M. on May 14. On May 13, the defendant filed a motion to dissolve this temporary restraining order and for the allowance of costs and damages. On motion of defendant’s counsel, a hearing on the motion for temporary restraining order was continued to May 19 at 8:30 A.M. as well as the defendant’s motion to dissolve the restraining order. In his order setting said motion, the trial judge likewise extended the force and effect of the temporary restraining order until 8:30 A.M. on Tuesday, May 19, 1970, “at which time said temporary restraining order shall expire unless further extended”. On May 19, the court denied the defendant’s motion to dissolve the restraining order. Thereafter on May 28, the defendant appealed from the restraining order entered on May 5 and from the order denying the defendant’s motion to dissolve the restraining order.

It is at once apparent that the trial court meticulously followed the procedural requirements prescribed by the law on injunctions (Ill. Rev. Stat. 1969, ch. 69, par. 3 — 1), except that no notice of the issuance of the temporary restraining order was given to the defendant prior to its issuance and no bond was required. The issue for us to consider, therefore, is the propriety of the trial court’s action in issuing the order without notice and without bond. The record in this case does not disclose whether the plaintiff pursued his relief for a preliminary injunction on May 19 as the statute requires or merely permitted the temporary restraining order to expire by its own terms. In either event, the temporary restraining order became functus officio. At the time of the oral arguments in this court, it was stated that the underlying strike had been settled.

On the question of notice, we have already observed that the temporary restraining order was issued in the afternoon of May 5 and served on the defendant the next day. This fact alone suggests that even a short notice prior to the issuance of the temporary restraining order was clearly available. The last day upon which any disturbing occurrence took place was April 27. There was thus an intervening period of 7 to 8 days without any showing of violence or conduct suggesting irreparable harm or damage within the short time that would have been required to serve a pre-order notice. While we may assume from the affidavits and from the complaint that there was a reasonable apprehension that the conduct described would be continued, these activities had continued over a period of time from about March 4 to April 27. It may well be said that if the acts which the order enjoined were continuing on May 4 and 5 and the record so showed, the need and the propriety for a temporary restraining order without notice would be crystal clear. Such were the time limitations indicated in General Electric Co. v. Local 997 UAW, 8 Ill.App.2d 154, 130 N.E.2d 758, where photographs showing mass picketing, etc., the day the complaint was filed were attached to the complaint. There is nothing in this record to suggest that the delay of a day or two to give notice prior to the issuance of the temporary restraining order would have triggered any more inconvenience than the plaintiff had been undergoing for some 2 months or that the defendant in that short time could do anything which would seriously obstruct the court’s power to deal justly and effectively with the issue in dispute after notice. (Skarpinski v. Veterans of Foreign Wars of the United States, 343 Ill.App. 271, 98 N.E.2d 858.) Notice and the opportunity to be heard are the lodestars of our jurisprudence. Under the circumstances shown by this record, it is our conclusion that the irreparable damage and harm required by our statute as a condition precedent to the issuance of a temporary restraining order without notice and without bond is not shown in this record. It follows, therefore, that the trial court should have allowed the defendant’s motion to dissolve the temporary restraining injunction.

Accordingly, the order of the trial court issuing the temporary restraining order without notice and refusing to dissolve it must be and it is hereby reversed.

The defendant’s motion to dissolve likewise requested that the court award costs and damages for the improper issuance of the restraining order. Since the trial court did not have occasion to consider that issue, this cause is remanded to the trial court to now consider that issue under the provisions of the law on injunctions (Ill. Rev. Stat. 1969, ch. 69, par. 12). It is so ordered.

Reversed and remanded.

CRAVEN and TRAPP, JJ., concur.


author: Mr. JUSTICE CRAVEN.

text:
    Coles County National Bank, Plaintiff-Appellee, v. The First National Bank and Trust Company of Tuscola, Defendant-Appellant.
    (No. 12189;
    Fourth District
    June 12, 1974.
    Nichols, Jones, McCown and Lincoln, of Tuscola (Harrison J. Mc-Cown, of counsel), for appellant.
    Harlan Heller, of Harlan Heller, Ltd., and Dale A. Cini, of Ryan and Cini, Ltd., both of Mattoon, for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE CARTER

text:
    Carl Chambliss, Plaintiff-Appellee, v. The Board of Fire and Police Commissioners of the City of East St. Louis, Defendant-Appellant.
    (No. 73-311;
    Fifth District
    June 6, 1974.

      Richard G. Younge, of East St. Louis, for appellant.

      Hillebrand, Cook & Shevlin, Ltd., of East St. Louis (Bruce N. Cook, of counsel), for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On September 12, 1972, the Board of Fire and Police Commissioners of East St. Louis, Illinois, discharged probationary Patrolman Carl Chambliss from the Police Department with the loss of all rights and benefits. This action came as a result of an administrative hearing held on August 29, 1972, with the plaintiff-appellee present and represented by counsel.

Written charges to the Board were made on July 31, 1972, by one Mrs. Annie Williams. The charges consisted of the conduct of the appellee and a fellow police officer on the night of July 21, 1972, concerning Vonne Marie Williams, the daughter of Mrs. Annie Williams. Specifically, it was alleged that one patrolman raped Miss Williams while appellee assisted in the act, in that he was in the vicinity of the occurrence and did not object or make a subsequent report.

After the Board announced its decision to discharge the two police officers, the appellee filed suit under the provisions of the Administrative Review Act. On July 19, 1973, the Circuit Court of St. Clair County reversed the decision of the Board and ordered that the appellee be restored to duty with the Police Department. The Board prosecutes this appeal.

The complaint filed by the appellee in the Circuit Court of St. Clair County asked for a judicial review of the record and that the decision of the Board be reversed. The trial court did not mention in its order the reason why it reversed the Board. However, appellee proposes three reasons why the trial court’s order should be affirmed: (1) The appellee did not receive a fair hearing before the Board; (2) the results of the lie detector tests were not admissible at the Board hearing; and (3) the findings of the Board were against the manifest weight of the evidence.

The first point to be determined in this appeal is whether the findings of the Board of Fire and Police Commissioners are supported by the evidence. Its decision can be set aside only if it was against the manifest weight of the evidence. In DeGrazio v. Civil Service Com., 31 Ill.2d 482, our supreme court stated:

“On administrative review the court does not weigh the evidence and its function is limited to ascertaining if the findings and decision of the administrative agency are against the manifest weight of the evidence. * * * The court cannot substitute its judgment for that of the Commission. (Etscheid v. Police Board of Chicago, 47 Ill.App.2d 124, 132.)”

On July 21, 1972, about 10:50 P.M., the appellee and a fellow police officer, Patrolman Bonner, drove their squad car into a ballpark in the City of East St. Louis to investigate a car parked on the field. The complaining witness, Vonne Marie Williams, 16, and her boyfriend, Charles Rives, were in the back seat of Rives’ automobile. They were talking and kissing when the police officers arrived and ordered them out of the car. Vonne Williams testified that Officer Bonner asked her some questions and then talked to Charles Rives while she talked with the appellee a short distance away. Then Officer Bonner called Vonne Williams back to him and, after asking some personal questions, he talked once more with Charles Rives, telling him that he was going to take his girlfriend home. Then Officer Bonner told Vomie Williams to get in the front seat of the police car and he drove her to a vacant lot several blocks away from where the appellee and Charles Rives were waiting at the ballpark. Vonne Williams further testified that Officer Bonner made her get into the back seat of the police car and disrobe. He then sexually assaulted her, after which they returned to the ballpark. Vonne Williams on cross-examination testified that she could not run away as the doors of the car were locked and that she was frightened as the officer had threatened her.

Charles Rives’ testimony coincided with the testimony of Vonne Williams up to the time she and Officer Bonner drove away. He stated that they were gone about 35 minutes, and he and appellee conversed at the ballpark during that time. He understood that Vonne was to be taken home and that Officer Bonner was going to let him go. Upon their return, Officer Bonner told Charles Rives to take Vonne home, and she got into the front seat of Rives’ car. Charles further testified that Vonne was crying and she told him what had happened. Then Charles Rives attempted to catch the police car with his car but it eluded him. Charles Rives and Vonne Williams then drove directly to the police station where they reported what had happened. Lt. Curtis Smith, who was in charge, had all men going off duty at that time, which was midnight, to report to the main police station. While the police were reporting in at the station, Vonne Williams and Charles Rives were watching from an open door in the dispatcher’s office and identified Officer Bonner and appellee upon their entrance to the station as the two officers who had accosted them earlier in the evening. Upon initial questioning by Lt. Smith, Officer Bonner and appellee denied being out at the ballpark and stopping anyone, and they persisted in their denials. However, when confronted with the complaining witness and Charles Rives, the two officers changed their story and admitted talking with the couple at the park, even though it was out of their assigned district. Although Vonne Williams was unable to identify Officer Bonner at the hearing, as he was out of uniform, she did identify him at the police station. Charles Rives identified both officers at the police station and also gave a positive identification at the hearing.

All four persons involved, Vonne Williams, Charles Rives, Officer Bonner and appellee agreed to submit to a polygraph examination, which was administered a week after the incident in question. The polygraphist testified at the hearing as to the results of the tests, and he was cross-examined by counsel for appellee. The results of the tests showed that the police officers produced sensitivity to pertinent questions. This testimony together with other testimony and evidence was duly considered by the Board in its findings.

The appellee upon advice of his attorney refused to testify, as did Officer Bonner, claiming the protection of the Fifth Amendment of the United States Constitution. Our supreme court in Kammerer v. Board of Fire & Police Comm'rs, 44 Ill.2d 500, stated:

“No case has been cited, and we have found none, which holds that a public employer, in the course of a disciplinary hearing into an employee’s conduct, may not require the employee to disclose information reasonably related to his fitness for continued employment.”

In the Kammerer case, the plaintiff, a patrolman, claimed he was compelled to answer questions which constituted a violation of his privilege against self-incrimination. The court stated, “* * * if a public employee refuses to testify as to a matter concerning which his employer is entitled to inquire, he may be discharged for insubordination, but if he does testify his answers may not be used against him in a subsequent criminal prosecution.” Consequently, the appellee had every opportunity to refute the testimony that had been presented against him, but instead he remained silent and offered no evidence in his behalf. The Board was not properly advised and could have compelled him to take the stand.

The four cases cited by appellee in his brief concerning the questions whether the findings of an administrative agency are supported by the evidence differ from the case at hand. In all four of the cases, there was considerable testimony on behalf of the public employee involved. In our present case, the only defense of appellee was in the form of cross-examination of the witnesses by his counsel and appellee’s written report. It is well established that on administrative review the court does not re-weigh the evidence. The findings of the Board are prima facie true and correct and must be upheld where the evidence fairly tends to sustain the charges. Etschied v. Police Board, 47 Ill.App.2d 124.

Neglect of duty has been defined as careless or intentional failure to exercise due diligence in performance of official duty. In determining whether conduct of officer amounts to neglect of duty warranting removal, it is immaterial whether neglect be willful, through malice, ignorance or oversight, if such neglect is grave. (State ex rel. Hardie v. Coleman, 115 Fla. 119.) Surely the conduct and behavior of the appellee on the night of July 21, 1972, falls clearly within the above definition. He stood by and did nothing while Officer Bonner drove Vonne Williams away from the ballpark. Upon their return, he did not inquire as to their absence and initially denied that he and Officer Bonner had even stopped at the ballpark. The appellee only changed his story when confronted by Vonne Williams and Charles Rives at the police station. As stated in DeGrazio at page 489:

“In this type of proceeding involving the removal of a police officer, it is the function of the court to decide if the charges preferred against the officer are not so trivial as to be unreasonable or arbitrary, if the Commission acted on evidence that fairly tended to sustain the charges, and if its decision is related to the requirements of the service. The court cannot substitute its Judgement for that of the Commission. (Etschied v. Police Board of Chicago, 47 Ill.App.2d 124, 132.)”

The statute under which the Board acted provides in relevant part that * * no officer * * * of the police department * * * shall be removed or discharged except for cause * * (Ill. Rev. Stat. 1969, ch. 24, sec. 10 — 2.1—17.) Cause has been construed by the courts to be some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding that position. (Murphy v. Houston, 250 Ill.App. 385.) Appellee’s actions on the night in question in assisting Officer Bonner in the sexual assault and then not reporting it amply supports the Board’s finding of “cause” and are connected with the requirements of the police department and are not trivial. The findings of the Board of Fire and Police Commissioners of the City of East St. Louis were not against the manifest weight of the evidence, and the evidence was sufficient to sustain the factual findings by the Board.

At the hearing concerning the conduct of the appellee, the three Board members were present along with the attorney for the Board and its secretary. The two police officers involved and their attorney were present throughout the proceedings. Eight witnesses testified at length and every opportunity was presented to allow the Board to have a complete and thorough presentation of the facts. The appellee contends that his hearing held on August 29, 1972, was similar to the hearing in Gigger v. Board of Fire & Police Comm'rs, 23 Ill.App.2d 433. In the Gigger case, the Board was reversed because the police officer did not receive a fair hearing, and the opinion stated, “ ‘The purpose of judicial review of any administrative agency is to keep that agency within the judicial bounds described by law, and to guard the rights guaranteed by the Constitution and the Statutes * * *,’ Curtis v. State Police Merit Board, 349 Ill.App. 448, 457 * * ."

An examination of the transcript of the hearing in the present case reveals that the conduct of the Board in conducting the hearing in no way parallels the hearing held in the Gigger case. The president and the two members of the Board in the present case were very much involved at all stages of the proceeding. The president of the Board, Joe Preston, asked 19 questions and made three rulings for the Board. Dr. Eisele, a Board member, asked 62 questions of various witnesses, and was particularly interested in examining the police officer who conducted the polygraph tests and Vonne Marie Williams, the victim of the assault. Mrs. Nash, the other member of the Board, inquired a total of 73 times of the witnesses and made a ruling on whether or not the appellee should be allowed to testify.

The attorney for the appellee was given the opportunity to cross-examine all the witnesses and did, in fact, cross-examine all but three. He waived any questions of those three witnesses. After the last witness testified, appellees’ counsel informed the Board that no evidence would be presented. At no stage of the hearing did counsel for appellee notify the Board that he or his client were displeased with the manner in which tile hearing was conducted. Counsel did not indicate that he was not ready to proceed when the hearing started and at the conclusion he did not ask for additional time to present his defense or any evidence. This unquestionably is in marked contrast to what happened in the Gigger case, wherein counsel for the plaintiff was limited in his cross-examination of the Board’s witnesses and was hindered in many respects in trying to develop his defense at the hearing.

The Board’s hearing on August 29, 1972, adhered to the fundamental concepts of a fair hearing in that appellee was given an opportunity to be heard, the right to cross-examine adverse witnesses was presented, and the rulings on the evidence were rendered impartially. “® * ° an order must be based upon evidence produced in the hearing at which an opportunity is given to all interested parties to offer evidence and cross-examine witnesses.” Curtis v. State Police Merit Board, 349 Ill.App. 448, 457.

The climate at the hearing in this case was one of fair play. The total record clearly reflects that anyone involved in the charges was allowed to come forward and tell his story. The Board obviously took an active part in the questioning and on several occasions the members asked nearly as many questions as their attorney. There was no effort to confine or limit the cross-examination of the witnesses and the two police officers were asked to take tire witness stand. They declined; however, the Board accepted their written statements made to the chief of police concerning the incident in question. “It is imperative that the record of an administrative hearing show that an impartial inquiry into the facts was conducted.” (Gigger v. Board of Fire and Police Comm’rs, 23 Ill. App.2d 433, 439.) The hearing before the Board in this case leaves no doubt that it was conducted in an atmosphere of impartiality and fairness.

The appellee, his fellow police officer, tire victim of the attack, and her boyfriend agreed to a polygraph examination conducted by the polygraph technician assigned to the laboratory division of the Police Department of St. Louis, Missouri. In Austin v. Board of Fire ir Police Comm’rs, 7 Ill.App.3d 537, the court stated, “The Statutes prohibiting a court from requiring or suggesting that the defendant in a criminal trial or the plaintiff or defendant in a civil suit submit to a polygraphic detection deception test’ apply neither in terms nor in principle to a proceedings before a Board of Fire and Police Commissioners. (Courtesy v. Board of Fire and Police Comm’rs of the Village of Skokie, 90 Ill.App.2d 31.)” In Coursey the court recognized that the effective and efficient operation of the police department requires that allegations of police conduct be thoroughly investigated and that the polygraph machine can be useful as an investigative tool when the test is skillfully prepared and is administered and interpreted by a qualified person.

In the case cited by appellee, Seneca v. Board of Fire & Police Comm’rs, 71 Ill.App.2d 219, the results of the test given to the complaining witness were admitted. However, it was held on appeal that it would be necessary to prove the qualifications of the person who administered the test. (People ex rel. Perz v. Schneenilch, 65 Ill.App.2d 337). In the above two cases, the person operating the polygraph machine was not produced at the hearing and could not be examined. The polygraph operator called as a witness in the hearing before the Board in this case stated that he was an operator with the Police Department of St. Louis, Missouri, and was in his second year as a polygraphist. In response to a question from a Board member the polygraphist stated that he administered the examination and reached the decision as to the results as a certified polygraphist. The attorney for the appellee in his cross-examination did not question the qualifications of the witness, but concentrated only on the results of the test as it pertained to the complaining witness. Consequently, the polygraphist was a competent witness and the results of the tests conducted by him could be considered by the Board in making its decision.

The order of the Circuit Court of St. Clair County setting aside the order of the Board of Fire and Police Commissioners is reversed and the cause is remanded with directions to enter a judgment restoring the decision of the Board of Fire and Police Commissioners discharging Carl Chambliss from the position of probationary patrolman of the East St. Louis Police Department.

Judgment reversed and cause remanded with directions.

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


text:
    The Department of Transportation of the State of Illinois, Petitioner-Appellant, v. Alfred A. Gallay et al., Defendants-Appellees.
    (No. 73-364;
    Fifth District
    June 13, 1974.

      William J. Scott, Attorney General, of Springfield (Roy E. Frazier, Jr., and Ronald C. Mottaz, Assistant Attorneys General, of counsel), for appellant.
    Earl L. Vuagniaux, of Edwardsville, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is a condemnation case in which the Department of Transportation of the State of Illinois is appealing from a judgment of the Circuit Court of Madison County based on a jury verdict awarding damages for land taken, damages to the remainder, and compensation for the use of a temporary construction easement. It is contended that the trial court committed error in admitting certain testimony and in refusing an instruction. In addition, it is claimed that compensation for the easement was excessive.

The property involved is a tract of land located on the North side of Route 140 in Cottage Hills in a business area, with a depth of approximately 500 feet and a frontage of 220 feet on the highway. Located on the property are a retail store in front and a motel and a parking area for eight mobile homes in the rear. Petitioner proposed to widen Route 140 from two lanes to four lanes separated by a median strip. This necessitated the taking of a 6-foot strip of land across the width of defendants’ property which, admittedly, would cut the parking spaces in front of their store from 10 spaces to no more than 4 or 5 spaces. To estimate the fair cash market value of land taken and damages to land not taken each party presented only one appraiser. Their estimates and the jury’s verdict were as follows:

Item Petitioners

Appraiser

Entire Property $125,000

Land Taken 1,325

Land Not Taken 910

Easement 157 (3 rs.)

Defendants’ Jury’s

Appraiser Verdict

$150,000

4,588 $ 3,150

24,000 16,750

276 (ea. yr.) 1,656

Defendants’ appraiser testified that short-term parking is essential to the operation of a retail store, that the location and number of parking spaces available have a direct bearing on the market value of business property, and that in the present instance the reduction of defendants’ available parking spaces was the chief element he considered in his estimate of damage to land not taken. He further stated that it was his understanding that fair cash market value is the price a willing buyer will pay a willing seller when there is no duress and both are informed. In reaching his opinion as to fair cash market value of defendants’ property he stated that he considered three approaches, viz., the summation, the capitalization of income, and the market data approach. On cross-examination he was asked to explain these approaches and in answer to a specific inquiry he stated that the summation approach consists of taking the cost of reproduction, depreciating it and then adding land values. On further inquiry he gave his numerical estimates of such factors relative to the property in question. Finally, he stated that he ended up using the market data approach, that the summation approach was not necessarily the most indicative of value, but rather it was an approach generally used by appraisers to back-check their opinion as to market value, and that he had so used it here.

From these facts petitioner argues that the court erred in not striking such testimony as it was obvious that the appraiser had relied solely on the summation approach in determining valuation, and that in doing so he had separated the elements and wrongfully testified as to their separate values, citing Department of Public Works & Buildings v. Divit, 25 Ill.2d 93; Chicago v. Callender, 396 Ill. 371.

We agree with the principles stated in these and other cases cited, but petitioner does not quote them fully. In each of them the court held specifically that replacement or reproduction cost is a proper element for a witness to consider along with' other factors for the puipose of arriving at an estimate of market value. What is prohibited is the giving of one’s opinion based upon reproduction costs without regard to what a buyer or seller would agree upon. Here, based on the witness’ testimony as a whole, it is readily apparent that he did not base his opinion of value solely upon the summation approach or reproduction cost, but that he took many elements into account and used the summation approach principally as a back-check. In fact, petitioner’s appraiser admitted doing the same thing, stating that he used the market approach to valúate the property but then, as a check, used the comparison and the cost approach. We conclude that the refusal of the trial court to strike the testimony of defendants’ appraiser as to the value of land taken was proper.

Next the petitioner attributes error to the trial court in refusing to give the following instruction:

“The law does not permit an award of damages for the loss of business during construction, noise, dirt, nearness of traffic, or loss of income, whether temporary or permanent, and you should not consider these factors in determining damages to the remainder.”

From a review of the record it is readily apparent that this instruction is confusing. It specifically refers to loss of business during construction and loss of income, yet neither of these elements was involved or even mentioned in the case. Also, it is directed towards damages to the remainder, but there is no claim in petitioner’s post-trial motion or in its brief on appeal that such damages were excessive. Essentially the only evidence on noise, dirt and nearness of traffic was offered, not for the purpose of proving damages, but rather for the purpose of proving that petitioner had used the easement for 3 years prior to the present hearing and prior to the start of actual construction. In any event, the elements of noise, dirt and nearness of traffic were adequately covered by another given instruction stating that the jury should not consider inconvenience, annoyance or discomfort. We find, therefore, that the trial court’s refusal to give said instruction was proper.

Finally, petitioner contends that the verdict of $1656 awarded for use of the land covered by the temporary construction easement was excessive and contrary to the law and the pleadings in the case. Both parties agree that in computing this figure the jury must have used the testimony of defendants’ appraiser valuing the easement at $267 per year. It is assumed that the jury then multiplied that figure by the 6 years which would elapse beween the vesting of the easement in the quick-take proceeding, which event occurred 3 years prior to the present hearing, and a date 3 years hence when it was estimated construction would be completed. Petitioner argues that under the pleadings it requested and obtained only a 3-year easement, and that even using the values of defendants’ appraiser the maximum verdict could not have been more than three times the annual value, or $828.15. Defendants contend that the jury had a right to consider the fact that at the time of the hearing petitioner had already used the easement for 3 years in directing the removal and relocation of various utility lines, and to consider further the fact that the petitioner estimated that construction would in itself take 3 more years.

We tend to agree with the logic of defendants’ argument, for it is certainly true that under section 2.3(a) of the Eminent Domain Act (Ill. Rev. Stat., ch. 47, par. 2.3(a)) the easement vested in petitioner as of the date set in the quick-take order. Also, subsection (b) of said section specifically covers the converse of the present factual situation wherein it provides that if, after the vesting, a party wishes to retain possession or use of his property he can do so upon a showing of good cause and payment to petitioner of a reasonable rental as determined by the court. Contrariwise, it should follow that petitioner should be obligated to pay a reasonable sum for an easement, not only for the time requested and granted, but also for such additional time as such use may be necessary to complete the construction project.

However, from the record before us it does not appear that this issue was clearly presented to the jury either by the evidence or by the instructions. In fact, it is only by conjecture that the motivation of the jury can be determined, and as a court of review we do not believe we can or should engage in such conjecture either as to the time needed to complete construction, nor as to the method used by the jury in determining the value of the easement.

Accordingly, we reverse that portion of the judgment of the Circuit Court of Madison County relating to compensation for the temporary construction easement (which is referred to in said judgment as Tract 431B) and remand the same for the sole purpose of determining the compensation to which defendants are entitled for said easement. In all other respects relating to damages for land taken and land not taken the judgment of said court is affirmed.

Affirmed in part, reversed in part and remanded with directions.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    DeWitt Weary et al., Plaintiffs-Appellants, v. School District # 189, East St. Louis, Defendant-Appellee.
    (No. 73-107;
    Fifth District
    June 17, 1974.
    Cohn, Carr, Korein, Kunin & Brennan, of East St. Louis (Rex Carr, of counsel), for appellants.
    Edward Neville, of East St. Louis, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This was an action for declaratory judgment seeking to establish the validity of a collective bargaining agreement entered into by the plaintiffs-appellants, DeWitt Weary and Local 1220 of the American Federation of Teachers, AFL-CIO, and the defendant-appellee, School District # 189. The circuit court of St. Clair County held that the plaintiffs-appellants had “not presented a cause cognizable in equity” and entered an order dismissing their complaint for want of equity. It is from that order this appeal is taken.

The plaintiff-appellant union, as the sole and exclusive bargaining representative of the school teachers and others employed by the defendant-appellee, had entered into an agreement with School District # 189 on May 25, 1972, setting out terms of employment and working conditions to exist between the parties for the school years 1971-72 and 1972-73. This agreement provided, among other things, that aU employees employed in the bargaining unit, or who were to become employees in the bargaining unit, who were not already members of Local 1220, should within 60 days after their date of hire become members of the union or, in the alternative, should, as a continuing condition of employment, pay to the union each month a service fee in an amount equal to that person’s proportionate share of the costs of negotiating and administering the provisions of the contract. The agreement established that the Board of Education would recognize that a refusal of a teacher to contribute fairly to the costs of negotiation and administration of the present and subsequent agreement would be a just and reasonable cause for termination of employment under the Illinois Tenure Act. The agreement also required the Board to dismiss such employee and to follow the dismissal procedures set out in the Illinois Teacher Tenure Act. It finally provided that if any provision of Article III of the agreement was invalid under Federal or State law, the provision should be modified to comply with the requirements of Federal or State law, and that no provision of Article III of the agreement should be placed in effect until a court had determined the legality of these provisions.

Alleging that the parties to the agreement were in doubt as to the meaning of said provisions, the plaintiffs-appellants brought suit praying that the court declare the rights and liabilities of the parties to those provisions in accordance with section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). The defendant-appellee filed an answer admitting all of the allegations of the complaint, but asserting an affirmative defense that the described provisions of the agreement violated Ill. Rev. Stat. 1971, ch. 48, par. 2b, in that they required newly employed, certified personnel and others to join a labor union in order to retain employment. The trial court, however, found that the plaintiffs-appellants had not presented a question within the province of the equity court to determine and therefore dismissed the suit for want of equity.

The issue for our consideration is whether or not the trial court erred in dismissing the appellants’ complaint for declaratory judgment in light of the requirements of the declaratory judgments provision of the Illinois statutes (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). The declaratory judgment statutes provides, in part, as follows:

“No action or proceeding is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested.” (Emphasis ours.)

Pursuant to this provision, construction of a contract is a proper subject of inquiry in a declaratory judgment action. (Greene v. Gust, 26 Ill.App.2d 2, 167 N.E.2d 438; Crerar Clinch Coal Co. v. Board of Education, 13 Ill.App.2d 208, 141 N.E.2d 393.) However, there must be an actual controversy between the parties before a declaration of rights may be made. (Gouker v. Winnebago County Board of Supervisors, 37 Ill.2d 473, 228 N.E.2d 881; Exchange National Bank v. County of Cook, 6 Ill.2d 419, 129 N.E.2d 1; Saline Branch Drainage District v. Urbana-Champaign Sanitary District, 399 Ill. 189, 77 N.E.2d 158.) The Illinois Supreme Court has repeatedly held that the declaratory judgment provision “does not authorize the court to grant declarations of rights involving mere abstract propositions of law without regard to the interests of the parties * * *.” (Exchange National Bank v. County of Cook, 6 Ill.2d 419, 129 N.E.2d 1, 3.) The declaratory judgment procedure is not intended to permit moot or hypothetical cases, or to enable parties to secure advisory opinions or legal advice from the court witih respect to anticipated future difficulties. Meyer v. Madison County, 7 Ill.App.3d 289, 287 N.E.2d 159; Berg v. City of Chicago, 97 Ill.App.2d 410, 240 N.E.2d 344.

The question here is whether or not a dispute arising under a contract which provides that the provisions in dispute are not to be given effect until a court determines their legality is a proper subj'ect for declaratory relief. As was indicated earlier in this opinion, it is weU settled that the declaratory judgment provision cannot be construed as authorizing a court to determine the rights of parties in hypothetical cases, to render advisory opinions and legal advice, or to settle anticipated future difficulties. (See Exchange National Bank v. County of Cook, 6 Ill.2d 419, N.E.2d 1; and Berg v. City of Chicago, 97 Ill.App. 410, 240 N.E.2d 344.) Although it has been held that the declaratory judgments provision is to be liberally construed so that its intended purposes will be accomplished, its provisions are to be strictly complied with and its application is restricted to questions within the province of a court to decide. Saline Branch Drainage District v. Urbana-Champaign Sanitary District, 399 Ill. 189, 77 N.E.2d 158; Jones v. Hodges, 2 Ill.App.2d 509, 119 N.E.2d 806.

It was not within the province of the court to determine the issues and declare the rights of the parties to a dispute arising under a contract which was not binding. Since the contract provision in question was not binding upon the parties until declared legal by a court of competent jurisdiction, no legal issues could arise under it. The court would be rendering an advisory opinion in a hypothetical case if it were to determine the issues and the rights of the parties by construction of the contract, in this case.

Having reached this result we do not concern ourselves with the contention that the question is moot, since the contract expired June 30, 1973, nor whether the exception to the general rule that mootness requires dismissal of a declaratory judgment action, since a like provision has been incorporated in the current contract, is applicable. See Illinois News Broadcasters Association v. City of Springfield (# 73-140, Fifth District, filed May 16, 1974) - Ill.App.3d-, - N.E.2d -.

Judgment affirmed.

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


text:
    Hurley Edmond, a/k/a E. D. Hurley, a/k/a Hurley Ed, Plaintiff-Appellant, v. Willie Edmond, Defendant-Appellee.
    (No. 73-194;
    Fifth District
    June 17, 1974.

      Meyer and Meyer, of Belleville (Stanford S. Meyer, of counsel), for appellant.
    McRoberts, Sheppard, McRoberts & Wimmer, P.C., of East St. Louis (Phillip A. Montalvo, of counsel), for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This case involves a suit for divorce filed by the plaintiff, Hurley Edmond, against Willie Edmond, his wife, based upon a charge of desertion. The circuit court of St. Clair County dismissed plaintiff’s suit for divorce with prejudice for want of equity. It is from that judgment this appeal is taken.

The plaintiff-appellant, Hurley Edmond, and the defendant-appellee, Willie Edmond, were married on April 15, 1945, in the city of East St. Louis, Illinois. There were no children bom of this marriage. On March 26, 1969, the defendant-appellee filed a complaint charging the plaintiff-appellant with physical cruelty and praying for divorce. Thereafter, the complaint was amended to pray for separate maintenance. In a hearing before the circuit court of St. Clair County, defendantappellee’s suit for separate maintenance was denied and dismissed with prejudice for want of equity on September 16, 1969. On August 8, 1972, the plaintiff-appellant, Hurley Edmond, filed this suit for divorce charging that the defendant-appellee, Willie Edmond, had willfully deserted him on or about March 1, 1969. The cause was heard before a trial judge in the circuit court of St. Clair County, after an earlier demand for a jury trial was waived by the defendant-appellee. Upon an objection made by plaintiff’s attorney, the trial judge limited testimony to those events surrounding the marriage relationship after September 16, 1969.

At trial the evidence showed that the parties had not lived together since September 16, 1969. According to the plaintiff, the defendant apparently gave no reason for leaving and told the plaintiff she didn’t know if she would return. When questioned about his wife’s illness, the plaintiff stated that she was a sick woman before she left him and was still sick on September 16, 1969, and thereafter. He testified that he didn’t know she had a cancer operation, but that he did provide her with medical attention “if she favored him.” He stated that he did not know that his wife’s portion of his railroad pension would be stopped if the divorce were granted, but he seemed somewhat disturbed that she received any part of his pension.

When the defendant-appellee was called upon to testify, she told the court that she was 68 years old and that she had left her husband because the house they lived in wasn’t sanitary and he wouldn’t give her another place. She stated that it had no heat and no bathroom. Her reason for being so concerned about the cleanliness of the house was that she had cancer and had a cancer operation and, after September, 1969, needed special attention as a result of the operation. For a while a nurse came to the house to wait on her, but subsequently she moved into a clean place. She concluded her testimony by stating that the major portion of her income came from her husband’s railroad pension and that she was still under a doctor’s care.

Charles Ivory, son of the defendant and stepson of the plaintiff, testified concerning the condition of the house. He stated that it was run down, the roof was falling in, and the windows were .all down. There was hot water, but no heat, other than a coal stove in one room. Concerning his mother’s illness, Charles Ivory stated that he was aware of her condition and the treatment required, but that it was not the type of assistance a man could provide. He also testified that after September 16, 1969, his stepfather and mother attended church together very often, and several times his stepfather went to his mother’s apartment for dinner.

The trial judge found the issues against the plaintiff and in favor of the defendant. The court found specifically that the defendant had undergone a radical surgical procedure for carcinoma of the cervix in December of 1971 and has been partially disabled since the operation and ordered the suit for divorce dismissed.

Appellant raised two issues upon appeal. First, he contends that the appellee was guilty of desertion under the divorce statutes of the State of Illinois (Ill. Rev. Stat. 1971, ch. 40, par. 1). The statute reads, in part, as follows:

“In every case in which a marriage has been or hereafter may be contracted and solemnized between any two persons, and it shall be adjudged * * * that either party * ** has willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause, for the space of one year; * * * it shall be lawful for the injured party to obtain a divorce and dissolution of such marriage contract.”

Therefore, desertion justifying a divorce must be willful and without any reasonable cause. (Holmstedt v. Holmstedt, 383 Ill. 290, 298, 49 N.E.2d 25.) In order to establish a charge of desertion, the plaintiff is required to prove that the defendant absented herself and remained away from him without any reasonable cause and against his will. Larimore v. Larimore, 299 Ill.App. 547, 549, 20 N.E.2d 902.

However, merely leaving one’s spouse and remaining away is not enough to support a charge of desertion, even if it is done without reasonable cause and against the other spouse’s will. “ ‘Desertion imports a cessation of cohabitation, a refusal to five together, which involves an abnegation of all duties and obligations resulting from the marriage contract.” (Lemon v. Lemon, 14 Ill.2d 15, 150 N.E.2d 608, 612; Fritz v. Fritz, 138 Ill. 436, 440, 28 N.E. 1058; Foster v. Foster, 110 Ill.App.2d 128, 249 N.E.2d 114, 116.) The marital obligation is made up of many responsibilities and duties. It is the obligation to live conjugally with one another, and to love, support, protect and defend the other. Only the failure, willfully and over the objection of the other, to perform all of these duties will condone a decree for divorce. A partial failure will not suffice. (Williams v. Williams, 34 Ill.App.2d 210, 214-215, 181 N.E.2d 182.) The facts of the Williams case are a good illustration of this point and are somewhat similar to the facts in the case at bar.

In Williams the parties had lived together for more than 30 years and they were both in their sixties when the action was commenced. They lived in an old dilapidated structure with rotting floors and sills, and without a furnace or running water. For 15 to 20 years before commencement of the lawsuit, though living in the same house, the parties had no marital relations, they slept in separate rooms, ate separately-cooked separate meals and scarcely communicated. For 6 years before suit was brought the husband provided nothing for his wife, except that he paid for the fuel and electric bills. In 1958 the husband went to Florida for health reasons, and when he returned he moved into a trailer. Thereafter his wife filed suit for divorce charging desertion. She testified that she didn’t do anything about her husband going to Florida, but she was concerned because she felt he was spending some of her money and she didn’t want a broken home. Her husband testified that he moved into the trailer because his bedroom in the house had no heat and he had arthritis, and therefore couldn’t stand the cold. He said that he just felt safer in the trailer. The trial court thereupon granted his wife the divorce on grounds of desertion and he appealed. The appellate court, in reversing the divorce decree entered in favor of his wife, pointed out that the only question presented for review was whether or not the facts of the case constituted a desertion. In view of the facts presented, the appellate court held that the plaintiff wife had failed to meet the burden of proof that the defendant husband willfully deserted her without reasonable cause and against her will.

It therefore becomes immediately apparent that the spouse alleging desertion must affirmatively prove, by a preponderance of the evidence, that the offending spouse has abnegated all his or her marital obligations, willfully and without consent. (Williams v. Williams, 34 Ill. App.2d at 215.) This court has likewise held that the burden is upon the husband suing for divorce on the grounds of desertion to establish that his wife willfully deserted or absented herself from him for 1 year, against his will and without reasonable cause. (Krueger v. Krueger, 47 Ill.App.2d 134, 197 N.E.2d 858 (abstract opinion).) Whether or not there has been sufficient evidence presented to establish the moving party’s contentions is a determination within the province of the trial court. In the case at bar the trial court judge heard the evidence, viewed the witnesses and was in a better position to decide the issues. Thus, we adhere to the general rule and will not substitute our findings for those of the trial court unless such findings are manifestly against the weight of the evidence. (Hoffmann v. Hoffmann, 40 Ill.2d 344, 239 N.E.2d 792; Foster v. Foster, 110 Ill.App.2d 128, 249 N.E.2d 114.) From a careful consideration of the record we cannot find that the decision of the trial court is against the manifest weight of the evidence.

Appellant also argues that the reason advanced by the trial court in denying his divorce, that being a “radical surgical procedure” undergone by the appellee, would not have any bearing upon the issue of desertion. Divorce affects not only the home life and domestic relations of the parties, but also the public morals, the prevailing system of social order and the welfare of all citizens. These interests are not represented by either of the parties to the action. “This protection is left to the court, as the representative of the State, and in a proper case it may refuse to grant the divorce decree, though the grounds of such refusal be outside the issues made by the pleadings of the parties.” (Nusser v. Nusser, 4 Ill.App.2d 538, 540, 124 N.E.2d 549; see also Decker v. Decker, 193 Ill. 285, 288, 61 N.E. 1108.) In the case at bar, the trial judge apparently determined that this was a “proper case.” Testimony revealed that the major portion of the appellee’s income was composed of her part of her husband’s pension and that she would lose this monthly allotment if a divorce were granted. Furthermore, her express reason for leaving her husband was her concern over the uncleanliness and unsanitary nature of the house in light of her need for special care, because she was suffering from cancer. All of this, and the fact that she was 68 years of age, might have led the trial court judge to conclude that if he granted a divorce, the appellee would probably become a ward of the state and this would not be in her best interests or in the best interests of the state. With that in mind, we feel that appellant’s argument is without merit.

Appellant’s second contention deals with the dismissal of the appellee’s suit for separate maintenance on September 16, 1969, by the same trial court judge who heard the case now before us. Appellant asks whether the trial court ruled correctly in denying him a divorce under the laws of the State of Illinois, if the appellee is bound by an order of the court dismissing her complaint for separate maintenance to the extent that the date of the order would be considered the date of desertion. He contends that appellee’s failure to prevail in her prior suit for separate maintenance is dispositive of the issues in his suit for divorce on the grounds of desertion. This argument of the appellant is an erroneous application of the principles of res judicata. Res judicata is a legal doctrine relied upon to bar subsequent suits upon the same cause of action and between the same parties or their privies as the former action. The doctrine of res judicata “is that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.” (People v. Kidd, 398 Ill. 405, 75 N.E.2d 851.) Thus, in order for a prior judgment to bar a subsequent suit because of res judicata the parties, subject matter and causes of action must be identical.

On fire question of whether or not a decree in a separate maintenance suit is res judicata as to the issues in a suit for divorce, the Illinois Supreme Court has already spoken. (Hoffman v. Hoffman, 330 Ill. 413, 161 N.E. 723; Umlauf v. Umlauf, 117 Ill. 580, 6 N.E. 455.) In Hoffman, supra, the court found that the issues in a suit for separate maintenance and a suit for divorce are not the same. (330 Ill. at 418.) To entitle a wife to a decree for separate maintenance she must prove that she is Hving separate and apart from her husband without fault on her part. (Ill. Rev. Stat. 1971, ch. 68, par. 22.) Whereas, to justify a decree for divorce on the ground of desertion the complainant must prove that his or her spouse has “willfully deserted or absented himself or herself from the husband or wife, without any reasonable cause for the space of one year; * * (Ill. Rev. Stat. 1971, ch. 40, par. 1.)

Dismissal of a wife’s suit for separate maintenance only establishes that she is not living separate and apart without fault, but it does not establish that she willfully deserted her husband for 1 year without reasonable cause. She may be living separate and apart from her husband, not without fault on her part, but without having deserted him. It does not follow, therefore, that merely because the appellee lost her suit for separate maintenance, the appellant is entitled to a divorce decree here on grounds of desertion.

Thus, we hold that the decision of the trial court was not against the manifest weight of the evidence and that the dismissal of appellee’s suit for separate maintenance was not res judicata as to the issues in the case at bar.

Judgment affirmed.

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


author: Mr. JUSTICE SEIDENFELD.

text:
    Pearl W. Ciampa, Plaintiff-Appellant, v. Charles R. Salvaggione, Defendant-Appellee.
    (No. 72-372;
    Second District
    June 17, 1974.

      Selwyn Coleman, of Roselle, for appellant.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Opinion by

Mr. JUSTICE SEIDENFELD.