author: JUSTICE McCUSKEY

text:
    KEYSTONE STEEL AND WIRE, Plaintiff and Cross-Defendant and Appellee and Cross-Appellant, v. SAMUEL D. COOKSEY, Defendant and Cross-Plaintiff and Appellant and Cross-Appellee.
    Third District
    No. 3—91—0568
    Opinion filed April 30, 1992.
    Rehearing denied June 10, 1992.
    Warren E. Danz, P.C., of Peoria (Diane E. Greanias, of counsel), for appellant.
    Stevenson, Rusin & Friedman, of Chicago (John A. Maciorowski, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

Employee and employer appeal the trial court’s entry of judgment on a workers’ compensation award. We conclude the complaint and application for entry of judgment should have been dismissed for lack of subject matter jurisdiction. We reverse the denial of employer’s motion to dismiss and remand to the Industrial Commission for further proceedings.

,In 1980, Samuel Cooksey, suffered a heart attack while employed by Keystone Steel & Wire (Employer). An application for adjustment of claim was filed pursuant to the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq). The arbitration proceeding occurred on May 3,1982.

The stipulation sheet submitted at arbitration showed that Employer had paid Cooksey $7,321.31 in nonoccupational group disability benefits. Of that sum, $5,737.31 was paid in sickness and accident benefits under Employer’s group welfare benefit plan. The remaining $1,584 had been paid pursuant to Employer’s disability pension plan. Cooksey disputed Employer’s claimed entitlement to credit under section 8(j) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(j)) for the amounts paid under the plans.

The arbitrator issued a memorandum decision on August 13, 1982. The arbitrator awarded Cooksey $286.67 in weekly section 8(f) benefits (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(f)). The parties dispute whether and to what extent the arbitrator allowed Employer credit under section 8(j) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.8(j)) for benefits paid under Employer’s disability plans.

On August 31, 1982, Employer filed a petition for review with the Industrial Commission (Commission) pursuant to section 19(e) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(e)). Pending the Commission’s decision, Employer continued to pay Cooksey $394 per month under its disability plan. Employer did not pay the benefits accrued by reason of the arbitrator’s award. Three days later, Cooksey also filed a petition for review.

The decision and opinion on review indicate that the only issue for which review was sought was the nature and extent of Cooksey’s injury. (The Commission held that Employer had waived the issue of accident by not including it on the stipulation sheet for review.) The Commission affirmed the arbitrator’s decision of permanent and total disability. The Commission made its own findings as to the accident and nature and extent of the injury. The Commission also ordered Employer to pay interest under section 19(n) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(n)). Bond for removal of the cause to the circuit court was set at $75,000.

On July 5, 1985, Employer filed a petition for judicial review under sections 19(f)(1) and (f)(2) of the Act (Ill. Rev. Stat. 1989, ch. 48, pars. 138.19(f)(1), (f)(2)). On December 3, 1986, the circuit court of Peoria County affirmed the decision of the Commission. On December 17, 1986, Employer tendered a check to Cooksey and his attorney in the amount of $79,777.94. Employer discontinued its monthly payments to Cooksey of $394 in disability plan benefits. Cooksey refused to accept the check and subsequent checks issued by Employer. Cooksey did not cash any of the checks issued by Employer until May 1, 1988, because he feared an offset in his social security benefits. (Cooksey reached age 65 on May 1, 1988.) Cooksey has cashed subsequent weekly benefit checks.

On December 1, 1989, Cooksey filed a petition with the Commission for attorney fees and penalties. Cooksey acknowledged tender of the weekly benefit checks, but questioned Employer’s calculation of the award due. After a number of continuances, argument before the Commission occurred on May 30, 1991. No decision has been rendered by the Commission.

On July 26, 1990, the Commission granted Employer’s motion for attorney fees and expenses based on Cooksey’s failure to cash the tendered award draft. Cooksey later filed a motion to vacate the order, which has not been acted upon by the Commission.

On April 15, 1991, Cooksey filed a complaint and application in the circuit court of Peoria County for entry of judgment pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)). Cooksey’s section 19(g) petition was based on the final decision of the arbitrator of the Commission. Prior to a decision by the circuit court, the parties appeared on May 30, 1991, before the Commission on Cooksey’s motion for section 19(k) penalties (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(k)). No decision has been received from the Commission on that motion. Also pending before the Commission is Employer’s motion under section 19(f) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(f)) for correction and specification of amount to be made.

Cooksey’s section 19(g) petition in the circuit court requested judgment on the arbitrator’s award, simple interest at 6%, judgment on amounts accruing after the arbitrator’s decision, interest on those amounts pursuant to section 2 — 1303 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303), and attorney fees. Employer filed a motion to dismiss for lack of subject matter jurisdiction. The trial court denied Employer’s motion to dismiss and entered judgment in favor of Cooksey and against Employer. In addition, the court found Employer’s original tender proper and refused to award either party interest or attorney fees. Both parties appeal the trial court’s order.

Employer maintains that the trial court lacked subject matter jurisdiction because Cooksey failed to comply with the provisions of section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)). Specifically, Employer argues that the trial court lacked subject matter jurisdiction because proceedings on review were pending before the Commission. We agree.

Section 19(g) of the Act provides:

“[Ejither party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act ***.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g).

The Commission entered its decision and opinion on review on June 12, 1985. Three additional matters were filed subsequent to the Commission’s decision, two of which are pending before the Commission:

(1) Cooksey filed an amended petition for penalties and attorney fees in April 1991 (originally filed December 1, 1989). The petition was argued May 30, 1991. The Commission has not rendered a decision. Cooksey alleged vexatious delay in payment, intentional underpayment of compensation, and frivolous appeals as alternative bases for the imposition of section 19(k) penalties and section 16 attorney fees.
(2) Employer filed a motion for attorney fees and expenses for its appearance at Cooksey’s penalties petition and for expense of annual bond renewal. The motion was granted on May 7,1991.
(3) Employer filed a motion under section 19(f) 29 days after Cooksey filed his application for entry of judgment. No ruling has been received.

This court has previously determined that section 19(g) of the Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.19(g)) specifically provides that entry of judgment is not possible when review proceedings are pending. (Myers v. International Harvester Co. (1991), 212 Ill. App. 3d 325, 327, 570 N.E.2d 1189, 1191.) The trial court’s entry of judgment was therefore premature. Cooksey requested the Commission to calculate the amount due and owing, including interest, and assess attorney fees and penalties. Cooksey’s election to pursue relief from the Commission precludes him at this time from seeking a judgment in the circuit court under section 19(g).

Cooksey’s application should have been dismissed for lack of subject matter jurisdiction since proceedings for review were pending before the Commission on Cooksey’s own motion of December 1, 1989. Accordingly, we reverse the circuit court’s denial of Employer’s motion to dismiss, and we remand to the Commission for further proceedings on all pending matters.

Reversed and remanded.

GORMAN and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    GIANNA A. HOLMGREN, Indiv. and as Adm’r of the Estate of Stephen William Holmgren, Deceased, Plaintiff-Appellee, v. NATIONAL BIG-4 ASBESTOS REMOVAL SPECIALTY, INC., et al., Defendants-Appellees (Leonard W. Holmgren et al., Petitioners-Appellants).
    Third District
    No. 3—91—0570
    Opinion filed May 12, 1992.

      Samuel S. McHard, of Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island, for appellants.
    John A. Slevin, of Vonachen, Lawless, Trager & Slevin, of Peoria, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Petitioners, Leonard and Anne Holmgren, appeal from an order of the circuit court denying their petition to intervene in a wrongful death action stemming from the death of their son, Stephen Holmgren. The issue raised on appeal is whether the parents of a decedent are beneficiaries under the Wrongful Death Act (hereinafter the Act) (Ill. Rev. Stat. 1989, ch. 70, par. 2) when the decedent leaves a surviving spouse. We affirm the order of the circuit court.

Stephen Holmgren was killed in July 1990 when his car collided with a truck. He was married two months before the accident. His wife, Gianna Holmgren, filed a wrongful death action against the truck driver and his employer. Petitioners filed a petition to intervene in the action, claiming to be beneficiaries entitled to recover along with the decedent’s wife. The trial judge denied the petition by order of July 1, 1991, finding that “parents may not recover in a wrongful death action where the decedent had a surviving spouse.”

Petitioners contend as parents of the decedent, who is also survived by a spouse but no children, that they are beneficiaries under the Act. The Act provides in relevant part:

“Every such action shall be brought by and in the names of the personal representatives of such deceased person, and, except as otherwise hereinafter provided, the amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.” (Ill. Rev. Stat. 1989, ch. 70, par. 2.)

Recovery under the Act is limited to those beneficiaries clearly described in the statute. (In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E .2d 1379.) The beneficiaries as defined by the Act are “the surviving spouse and next of kin.” Petitioners contend that they are decedent’s next of kin.

Our supreme court has defined “next of kin” as those blood relatives in existence at the time of decedent’s death who would take his or her personal property in the event decedent died intestate. (Wilcox v. Bierd (1928), 330 Ill. 571, 582, 162 N.E. 170, overruled on other grounds, McDaniel v. Bullard (1966), 34 Ill. 2d 487, 216 N.E .2d 140.) Subsequent cases have relied upon this definition in a variety of situations. (See Schmall v. Village of Addison (1988), 171 Ill. App. 3d 344, 525 N.E.2d 258; Forthenberry v. Franciscan Sisters Health Care Corp. (1987), 156 Ill. App. 3d 634, 509 N.E.2d 166; Maga v. Motorola, Inc. (1987), 163 Ill. App. 3d 524, 516 N.E.2d 774; Rodgers v. Consolidated R.R. Corp. (1985), 136 Ill. App. 3d 191, 482 N.E.2d 1080; Gustafson v. Consumers Sales Agency, Inc. (1953), 414 Ill. 235, 110 N.E .2d 865.) Therefore, determining which of decedent’s relatives are allowed to recover under the Wrongful Death Act requires reference to the Probate Act of 1975 (Ill. Rev. Stat. 1989, ch. 1101/2, par. 1 — 1 et seq.). (Rallo v. The Crossroads Clinic, Inc. (1990), 206 Ill. App. 3d 676, 565 N.E .2d 15; Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 510 N.E.2d 1208.) Under the Probate Act, parents are entitled to the property of the decedent only if the decedent does not leave a surviving spouse or children. (Ill. Rev. Stat. 1989, ch. 1101/2, pars. 2 — 1(a) through (d).) The petitioners in this case, as parents of a decedent who left a surviving spouse, are not next of kin within the meaning of section 2 of the Act.

Petitioners contend that the definition of “next of kin” set forth by our supreme court in Wilcox is outdated because Wilcox was decided prior to the 1955 amendment of the Act. Before 1955, a damage award was distributed to the spouse and next of kin in accordance with the Probate Act. Since 1955, the amount recovered is distributed to the spouse and next of kin based on the actual dependency of each person on the decedent. Petitioners contend that since recoveries are no longer divided according to the Probate Act, the class of beneficiaries is no longer limited to those who would take under the Probate Act. The correct interpretation of “next of kin,” the petitioners argue, is now “the person or persons in the nearest degree of relationship by blood to another person.” Two cases, with little or no discussion of the purpose of the amendment or the intent of the legislature, support petitioners’ position. (Johnson v. Village of Libertyville (1986), 150 Ill. App. 3d 971, 502 N.E .2d 474; Rusher v. Smith (1979), 70 Ill. App. 3d 889, 388 N.E.2d 906.) Other courts have specifically rejected petitioners’ argument. See Maga, 163 Ill. App. 3d 524, 516 N.E .2d 774; Dotson, 157 Ill. App. 3d 1036, 510 N.E .2d 1208; Rallo,

206 Ill. App. 3d 676, 565 N.E.2d 15; Porter v. Klein Construction Co. (1987), 162 Ill. App. 3d 1, 515 N.E.2d 821.

In Porter, the court made the following analysis concerning the 1955 amendment:

“In 1928, when Wilcox was decided, an award under the Act was to be disbursed in a proportion which was related to the distribution of personal property left by persons dying intestate. An adult child who was not dependent in any way would share equally with minor children who were fully dependent. In 1955 the legislature amended the Act so that distribution would be based on the actual dependency of the spouse and next of kin. [Citation.] Although the legislature changed the method of distribution, it did not expand the class of beneficiaries. The phrase ‘next of kin’ was unaltered. A reenacted statute will be given the same construction as that given the prior act because by reenactment the legislature is presumed to have intended that the new statute have the same effect. [Citation.] Thus, an amendatory act is not only to be construed as continuing in effect the unchanged portions thereof, but, more significantly, if previously construed terms in the unamended sections are used in the amendment, it is generally concluded that the legislature intended to adopt the prior construction given these terms.” Porter, 162 Ill. App. 3d at 3-4, 515 N.E.2d at 823.

The analysis and reasoning of the court in Porter were followed in Maga v. Motorola, Inc. (1987), 163 Ill. App. 3d 524, 516 N.E.2d 774, where the facts were virtually identical to the instant case. The decedent left a surviving spouse but no children, and his parents and siblings claimed to be beneficiaries under the Act. The plaintiff argued that the 1955 amendment eliminated the statutory intestate distribution scheme as a means of determining beneficiaries under the Act. The court in Maga rejected the plaintiff’s argument, finding that only the method of distribution, not the expansion of the beneficiary class, was effected by the 1955 amendment. The court held that where the decedent is survived by a spouse, the decedent’s parents and siblings are not next of kin within the meaning of section 2 of the Act. Maga, 163 Ill. App. 3d at 530, 516 N.E.2d at 777.

In the recent case of Rallo v. The Crossroads Clinic, Inc. (1990), 206 Ill. App. 3d 676, 565 N.E.2d 15, the mother and siblings of the decedent appealed from an order dismissing them as beneficiaries in a wrongful death action where the decedent left two minor children. The court affirmed the dismissal, finding that the parents and siblings of the decedent were not “next of kin” within the meaning of section 2 of the Act.

“Section 2 of the Wrongful Death Act refers to persons who take the personal property of the deceased in case of an intestacy. *** Pursuant to the Probate Act, parents and siblings are entitled to the property of the decedent only if the decedent does not leave a surviving spouse or children.” Rallo, 206 Ill. App. 3d at 680, 565 N.E.2d at 17.

We agree with the analysis set forth in Porter and followed in Maga and Rallo. Because petitioners would not share in the decedent’s estate had he died intestate, they are not “next of kin” within the meaning of section 2 of the Act. Therefore, they are not proper beneficiaries. The order of the circuit court of Tazewell County denying the petition to intervene is affirmed.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


author: JUSTICE RARICK JUSTICE HARRISON, JUSTICE WELCH,

text:
    ESTATE OF WALTER DeBOW, Lola Murray, as Special Adm’r, Plaintiff-Appellee v. THE CITY OF EAST ST. LOUIS, Defendant-Appellant.
    Fifth District
    No. 5—90—0727
    Opinion filed May 4, 1992.
    Rehearing denied June 16, 1992.

      HARRISON, J., concurring in part and dissenting in part.
    WELCH, J., dissenting in part and concurring in part.
    Edward L. Welch, of Edwardsville, for appellant.
    Clyde L. Kuehn, of Kuehn & Trentman, of Belleville, for appellee.
   JUSTICE RARICK

delivered the decision of the court:

On May 17, 1985, the estate of Walter DeBow (Estate) was awarded a $3.4 million jury verdict against the City of East St. Louis (City) for injuries sustained by Walter DeBow while he was being held in the municipal jail. DeBow is physically and mentally disabled and resides in a nursing home at a cost of $325 per day. The City appealed the judgment and this court affirmed. DeBow v. City of East St. Louis (1987), 158 Ill. App. 3d 27, 510 N.E.2d 895.

Despite repeated requests by the Estate for satisfaction of the judgment, the City refused to make payment. In March 1988, the Estate filed nonwage garnishments against the City’s bank accounts. In return for the Estate’s release of the garnishments, the City agreed to pay interest on the judgment and also issued a series of bonds, payable to the Estate, for the principal of the judgment and interest. These bonds will not be paid in full until the year 2004.

On September 21, 1990, the Estate filed a citation to discover assets and to effect execution of the judgment against the City. The citation was heard in the circuit court of St. Clair County on September 27, 1990. The Estate asked the court to execute on certain real property owned by the City, to wit, the City Hall and 220 acres of vacant ground, a former industrial site. The Estate asked the court to either order the City to execute deeds to the property or execute the deeds for the City pursuant to sections 2 — 1402 and 2 — 1304 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1402, 2 — 1304). The City objected, arguing that it would like the opportunity to respond to the Estate’s motion in writing. The City was given a 10-min-ute recess in which to review the Estate’s motion and prepare an oral response. After the recess, the City again argued that it was unfair to require it to respond to the Estate’s motion without more time to prepare. Over the City’s objection, the court executed, on behalf of the City, two quitclaim deeds conveying to the Estate of Walter DeBow the East St. Louis City Hall and 220 acres of vacant ground. The Estate was authorized to sell the property but was required to make an accounting of any sale within 90 days, with any excess sale proceeds to be paid over to the City. A written order was entered September 27, 1990. The Estate executed a full and complete satisfaction of judgment to the City and a full and complete release in favor of the City.

On October 5, 1990, the City filed a motion to reconsider, asking the court to vacate and stay execution of the order of September 27, 1990. On October 31, 1990, the Estate filed a motion to dismiss the City’s motion to reconsider. This motion argued that the City’s motion to reconsider did not toll the 30-day time period during which the court retained jurisdiction over the case, and therefore, the court no longer had jurisdiction to hear the motion to reconsider. The Estate’s motion also alleged that the motion to reconsider was moot pursuant to Supreme Court Rule 305(i) (134 Ill. 2d R. 305(i)), in that the City had failed to obtain a stay of the court’s order of September 27, 1990, and the Estate had transferred the real estate to a third-party purchaser. Attached to the Estate’s motion to dismiss was an affidavit of Eric Rhein, trustee for a certain land trust, 6SA33. The affidavit recites that GSA33 obtained title to the real estate in question from the Estate of Walter DeBow, that the Estate has no interest in GSA33, that neither the trustee nor GSA33 has acted as a nominee of the Estate, and that GSA33 was not a party to the litigation between the Estate and the City in which the Estate acquired title to the real estate. A guardian’s deed attached to the motion to dismiss shows that the real estate was transferred by the Estate to GSA33 on September 28,1990.

On November 1, 1990, the court entered an order granting the Estate’s motion to dismiss the City’s motion to reconsider. The order found that the court was without jurisdiction to hear the motion to reconsider because more than 30 days had elapsed from entry of the judgment sought to be reconsidered and the motion to reconsider did not toll the 30-day time period during which the court retains jurisdiction of the cause. The order further found that, if the court did have jurisdiction, it would nevertheless be bound to dismiss the motion to reconsider on the ground of mootness under Supreme Court Rule 305(i) (134 Ill. 2d R. 305(i)). The City had failed to perfect a stay of the order of September 27, 1990, and the Estate had transferred the subject real estate to a nonrelated third-party purchaser.

The City appeals, arguing that the property of a municipal corporation is not subject to execution to satisfy a debt owed to a judgment creditor. The City also argues that the trial court abused its discretion in not allowing the City adequate time in which to respond to the Estate’s request for execution on City property.

On November 21, 1990, the Estate filed a motion to dismiss the appeal, arguing that this court lacks jurisdiction for the same reason the trial court lacked jurisdiction to hear the City’s motion to reconsider and also that the issues raised in the appeal are moot in that, in the absence of a stay under Supreme Court Rule 305, the Estate transferred the subject real estate to a third-party purchaser, which transfer, pursuant to Supreme Court Rule 305(i), cannot be affected by a reversal or modification of the trial court’s order. 134 Ill. 2d R. 305.

On January 2, 1991, this court entered an order denying the Estate’s motion to dismiss the appeal on the basis of lack of jurisdiction and ordering that the motion to dismiss on the basis of mootness be taken with the case. We will address that motion first.

Supreme Court Rule 305(b) (134 Ill. 2d R. 305(b)) provides that an appellant may seek a stay pending review in the trial court or, if unsuccessful there, in the appellate court. While an appeal bond is ordinarily required, where the appeal is prosecuted by a municipal corporation, as here, the court may stay the judgment pending appeal without requiring that any bond be given. (134 Ill. 2d R. 305(g).) However, Rule 305(i) provides that, if a stay is not perfected within 30 days of the entry of the judgment appealed from, or within any extension of time granted, the reversal or modification of the judgment does not affect the right, title, or interest of any person who is not a party to the action in or to any real or personal property that is acquired after the judgment becomes final and before the judgment is stayed. (134 Ill. 2d R. 305(i).) It is this paragraph with which we are particularly concerned.

It is now well established that, in the absence of a stay, an appeal is moot if specific property, possession or ownership of which is the relief being sought on appeal, has been conveyed to third parties. (Town of Libertyville v. Moran (1989), 179 Ill. App. 3d 880, 886, 535 N.E.2d 82, 86.) This is because Rule 305(i) provides that reversal or modification of a judgment on appeal does not affect the right, title or interest of a third party in property where that property is transferred to the third party after the judgment appealed from becomes final and before the judgment is stayed. (134 Ill. 2d R 305(i).) The record must unequivocally disclose, however, that the third party was not a party, or a nominee of a party, to the litigation from which the appeal was taken. 134 Ill. 2d R. 305(i); Moran, 179 Ill. App. 3d at 886, 535 N.E.2d at 86.

In the instant case, there is no question that the relief being sought by appellant/City is reversal of the order of September 27, 1990, conveying certain real estate to the Estate. The City sought but failed to perfect a stay of this order. It is equally clear that the Estate transferred the real estate to a third party, trust GSA33, on September 28, 1990, one day after entry of the order conveying the property to the Estate. Finally, the affidavit of Eric Rhein unequivocally discloses that this third party was not a party, or a nominee of a party, to the litigation between the City and the Estate. Thus, it would appear that, pursuant to Rule 305(i), reversal or modification of the judgment of September 27, 1990, which appellant/City seeks, would not affect the right, title or interest of the third party in the subject real estate.

Citing City of Chicago v. Hasley (1861), 25 Ill. 595, and cases following, the City argues that property of a municipal corporation cannot be taken by a judgment creditor to satisfy the judgment. To so allow, stated the Hasley court, would be to allow a party obtaining a judgment against the municipality to destroy it by taking away the property which sustains it. (25 Ill. at 597.) The court stated:

“The property of such corporations, and the taxes collected by them for public purposes, are a constituent part, and a necessary ingredient of their public power, and are no more liable to seizure and sale than the whole power itself would be. If not so, a party obtaining a judgment against the city would be able to do indirectly what no power short of the legislature can do— destroy the corporate powers and franchises by taking away the aliment which sustains them. Under our constitution it cannot be admitted that any power or any individual possesses, directly or indirectly, such an overwhelming influence over other powers as would enable either of them to put an end to their functions, and thus disorganize the government. It cannot be so. The power, if conceded, to seize the property of the corporation would involve the right to seize its revenues, and this involves the right to destroy the corporation.” (Hasley, 25 Ill. at 597.)

The Hasley court pointed out, however, that a judgment creditor is not without remedy, for he may bring a mandamus action to compel payment or to compel a levy of taxes sufficient to discharge the judgment. Hasley, 25 Ill. at 597.

The Hasley rationale has been repeatedly relied on by our courts to hold that, indeed, property of a municipal corporation is not subject to execution to satisfy a judgment debt. (Moore v. Town of Browning (1940), 373 Ill. 583, 589, 27 N.E.2d 533, 536; In re Application of County Collector (1979), 79 Ill. App. 3d 151, 153, 398 N.E .2d 392, 394.) In 1982, the United States Court of Appeals, Seventh Circuit, citing Hasley and Moore, stated, “Illinois law does not allow holders of judgments against municipal corporations to collect by execution against the property of the municipal corporation.” (Evans v. City of Chicago (7th Cir. 1982), 689 F.2d 1286, 1296, overruled on other grounds (7th Cir. 1989), 873 F.2d 1007.) Evans also pointed out that, “[nevertheless, Illinois recognizes that a city has no higher duty than to pay the judgments against it and that it has no discretion to depart from statutory methods of payment.” 689 F.2d at 1296.

Hasley was decided on the basis of public policy and not on any principles of sovereign immunity. (Hasley, 25 Ill. at 598.) Neither the Illinois Constitution of 1848 nor any statute or case law in effect at the time provided for sovereign immunity for municipalities. At the time of the Hasley decision, the charter of the City of Chicago allowed that the city could sue and be sued. The Hasley court stated, however, that this did not lead to the inference that once a judgment was obtained against the city the corporate property could be seized and sold. To the contrary, the court held, the only appropriate manner in which to enforce the judgment was through a writ of mandamus to compel payment of the judgment or to compel a levy of taxes sufficient to discharge the judgment. Hasley, 25 Ill. at 598.

In Addyston Pipe & Steel Co. v. City of Chicago (1897), 170 Ill. 580, 582, 48 N.E. 967, 968, our supreme court pointed out that Hasley had been predicated upon the grounds of public policy. The court reiterated the opinion in Hasley that, if the property of the city could be levied on and sold, it would be impossible for the city to perform the functions to the people for which it was created. 170 Ill. at 582, 48 N.E. at 968.

Again, in Brazil v. City of Chicago (1942), 315 Ill. App. 436, 440, 43 N.E .2d 212, 213, the court held that the decision in Hasley, that the property of a municipal corporation could not be levied on and sold under execution, was based upon the grounds of public policy. The court there stated that, “[hjowever strong the obligation of a town or city to pay its debts, it was considered that to allow payment to be enforced by execution would so far impair the usefulness and power of the corporation, in the discharge of its government functions, that the public good required the denial of such a right.” 315 Ill. App. at 440, 43 N.E.2d at 214.

Despite the absence of sovereign immunity at the time Hasley was decided, the court held that, on the basis of public policy, execution will not lie against the property of a municipality to satisfy a judgment debt. Because this decision was not based upon the doctrine of sovereign immunity, it was not altered or affected by the abolition, by our 1970 constitution, of sovereign immunity. The public policy upon which Hasley was based remains the policy of the State. That this is so is evident in several respects.

Numerous statutes exist which provide for the manner and method of payment by municipalities of judgment debts. (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 102 et seq.; Ill. Rev. Stat. 1989, ch. 24, par. 8 — 1—16.) These include payment by installment, the issuance of bonds, the fixing of rates or charges on governmental services, the levy of taxes or self-insurance contracts. (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 102.) Indeed, section 9 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act, which provides limited immunity for local governmental units and their employees, provides that, “[a] local public entity is empowered and directed to pay any tort judgment or settlement for compensatory damages for which it or an employee while acting within the scope of his employment is liable in the manner provided in this Article.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 102.) No statute provides that a judgment creditor may execute upon property of the municipality. That the legislature has established methods of payment of municipal judgments which do not include execution on municipal property reflects the continuing public policy that city property may not be executed upon in order to satisfy a judgment debt. See Henderson v. Foster (1974), 59 Ill. 2d 343, 347-48, 319 N.E.2d 789, 792 (“[wjhen the legislature speaks upon a subject, upon which it has the constitutional power to legislate, public policy is what the statute, passed by it, indicates”).

Furthermore, cases decided subsequent to 1970 continue to hold that a judgment creditor may not execute upon city property to satisfy the judgment. (Evans, 689 F.2d at 1296; In re Application of County Collector, 79 Ill. App. 3d at 153, 398 N.E.2d at 394.) Thus, the public policy that a judgment creditor may not execute on city-property to satisfy his debt has survived the abolition of sovereign immunity by the constitution of 1970.

We acknowledge that the constitution of 1970 did change the public policy of this State with respect to sovereign immunity. We also acknowledge that sovereign immunity includes not only the right to sue but also the right to satisfy a judgment rendered upon suit. Certainly, the public policy with respect to the right to sue a municipality and the right to satisfy any judgment rendered against the municipality has changed to the extent governmental immunity has been abolished. However, that public policy change does not include the manner in which a judgment may be satisfied. While the constitution of 1970 changed the public policy of the State with respect to sovereign immunity so that one now can sue and can satisfy a judgment against a city, it did not change the public policy with respect to how a judgment may be satisfied. It remains the public policy of this State that, although one can sue a city and satisfy a judgment in one of the ways enumerated by statute, one cannot satisfy that judgment by execution against city property.

Finally, we acknowledge this court’s decision in McLorn v. City of East St. Louis (1982), 105 Ill. App. 3d 148, 434 N.E.2d 44, which allowed a judgment creditor to garnish city funds held on deposit in bank accounts. In that case, the City of East St. Louis appealed the decision of the circuit court of St. Clair County finding invalid an ordinance passed by the City which provided that “[a]Il property or assets of local governmental units *** shall be immune and shall not be subject to garnishment actions by judgment creditors.” (105 Ill. App. 3d at 150.) An individual holding a judgment against the City on a worker’s compensation award had served a nonwage garnishment summons on a bank holding on deposit funds of the City. The City filed a motion to quash the summons on the ground that the aforementioned ordinance prohibited any such garnishment. The circuit court denied the motion to quash and ordered the bank to pay any City funds to the judgment creditor pursuant to the garnishment. This order was stayed pending appeal.

The only issue before the court on appeal was the validity of the ordinance. The court affirmed the finding of the circuit court that the ordinance was invalid on the basis that, pursuant to article 13, section 4, of the Illinois Constitution of 1970, only the General Assembly may establish sovereign immunity and the ordinance in question did, in fact, seek to establish sovereign immunity even though it restricted only the manner in which a judgment against the City may be collected. As an alternative basis for affirmance, the court found that enactment of the ordinance granting sovereign immunity is not within the powers of a home rule unit but is a power which belongs to the legislature alone.

Because the issue was not directly presented to the court on appeal, it did not address the issue now before us, i.e., whether the public policy, as expressed in the law of the State of Hlinois, allows a judgment creditor to execute on, or garnish, city property to satisfy the judgment debt. The court did, however, state the following in McLorn:

“The City argues that it is vitally interested in preventing the disruption of funds needed to continue basic city services. This argument pertains to the desirability of sovereign immunity for municipal corporations rather than to what the constitution actually provides. As such, the argument is better addressed to the General Assembly than to this court. *** Merely because the General Assembly has refrained from accomplishing that which the City deems desirable is not reason enough to justify the ordinance in question. Because power over sovereign immunity is vested solely in the General Assembly, sovereign immunity does not pertain to a home rule unit’s government and affairs. We conclude that the City’s ordinance is therefore invalid. Because the ordinance is invalid, the trial court correctly refused to quash the garnishment summons and should therefore be affirmed.” (McLorn, 105 Ill. App. 3d at 154, 434 N.E.2d at 48.)

To the extent this language appears to express an opinion on the public policy, expressed in Hasley and its progeny, prohibiting execution against city property, we are of the opinion that it constitutes mere obiter dicta and, although it may be persuasive, it is not binding authority. (Board of Trustees v. Illinois Human Rights Comm’n (1986), 141 Ill. App. 3d 447, 456, 490 N.E.2d 232, 237.) General expressions in a court’s opinion which go beyond what is necessary to decide a case are not binding in subsequent cases. (Board of Trustees, 141 Ill. App. 3d at 456, 490 N.E.2d at 237.) The language above quoted was not necessary to decide the case, which involved only the issue of the validity of the ordinance and not whether garnishment of city funds is otherwise legal. Therefore, to the extent McLorn may indicate that the view of this court is that a judgment creditor may, consistent with the public policy and law of this State, execute on, or garnish, city property to satisfy the judgment debt, we wish to clarify it.

The view expressed herein on the issue of whether a judgment creditor may execute on, or garnish, city property to satisfy the judgment debt is consistent with the dissent of Justice Karns in McLorn. In that dissent, Justice Kams points out that it has long been the law in Illinois that execution cannot be levied against a municipal corporation on a judgment recovered against it and that this judicially created exemption is justified not on consideration of sovereign immunity but on considerations of public policy, as expressed in Hasley. Justice Kams further states that the exemption of municipal corporations from execution or garnishment to satisfy judgment debts is the general rule prevailing in the United States. Justice Karns expresses that municipal corporations may not, however, refuse to satisfy judgments entered against them. Judgment creditors may compel by mandamus the satisfaction of judgments by payment or the levy of a tax sufficient to raise a fund to satisfy outstanding judgments against the municipality. (McLorn, 105 Ill. App. 3d at 156, 434 N.E.2d at 50.) Justice Kams would have reversed the judgment of the circuit court not because the ordinance was valid and established sovereign immunity for the city but because, regardless of sovereign immunity, a judgment creditor may not execute on, or garnish, city property to satisfy the judgment debt.

We have found no case in which it has been held that a judgment creditor may execute on city property to satisfy the judgment debt. In Henderson v. Foster (1974), 59 Ill. 2d 343, 319 N.E.2d 789, our supreme court held that a judgment obtained against a city employee may be satisfied by a garnishment of wages owed to that employee by the city. This decision changed preexisting law, which had held, on the basis of public policy, that a city could not be subject to a wage garnishment because it should not be turned into an instrument or agency for the collection of private debts because the efficiency of government would thus be impaired and inconvenienced (59 Ill. 2d at 348, 319 N.E.2d at 792). In allowing wage garnishments, the Henderson court pointed out that public funds are not put in jeopardy, as the funds actually belong to the employee. “We note that the employer under the Wage Deduction Act will not lose any of its money but will be required to deliver over only that which it owes its employee.” 59 Ill. 2d at 350, 319 N.E.2d at 793.

Although the Henderson court overruled prior decisions which prohibited wage garnishments against cities, we do not think the Henderson court meant to overrule those decisions which prohibit nonwage garnishments or executions against city property. As Justice Karns pointed out in his dissent in McLorn, the considerations are completely different. The funds allowed to be garnished by Henderson were not operating revenues of the city but merely funds owed to city employees. In Henderson, the city was not the debtor, and it was not city property which was sought to be seized. Instead, a city employee was the debtor, and it was that employee’s property which was sought to be seized. Thus, the decision in Henderson did not affect the long-standing public policy, as expressed in Hasley, that city funds or property may not be garnished or executed upon in order to satisfy a judgment debt owed by the city. That this is so is also evidenced by decisions, rendered subsequent to the decision in Henderson, which reaffirm the holding of Hasley. Evans, 689 F.2d at 1296; In re Application of County Collector, 79 Ill. App. 3d at 153, 398 N.E.2d at 394.

Finally, we think that the public policy announced in Hasley remains sound today. One can envision the disruption to city services and resultant inconvenience, if not danger, to city residents if a judgment creditor is allowed to seize property that the city needs to carry out its duties. The dangers of allowing judgment creditors to seize city property is aptly expressed in Hasley:

“[l]evying on and selling such property, and removing it, would work the most serious injury in any city. Many of our cities, Chicago especially, have costly water works, indispensable to the lives and health of the citizens. These works are as much the property of the city as any other it may control, and, in appellee’s view, liable to be seized and sold on execution, to the great discomfort and probable ruin of the inhabitants. Fire engines are also indispensable; they too can be seized and sold, and a great city exposed to the ravages of fire, and all this to enable one or more creditors of the city to obtain the fruits of judgment against the city, which, by another process, not producing any of these destructive inconveniences, they could fully obtain. The money raised by taxation could also be levied upon, and the whole business of the city be broken up and deranged. Its offices and office furniture, its jails, hospitals and other public buildings, taken from the corporate authorities, and sold to strangers, who would have a right to the exclusive possession of them, if not redeemed. In the absence of an express statute authorizing a proceeding, fraught with such consequences, we must hold, that a [fieri facias] cannot issue against the city of Chicago.” (Hasley, 25 Ill. at 596.)

The same remains true today, for, were we to hold otherwise, fire engines, police cars, water works, sewer systems and other property essential to the operation of the city and the safety and health of its residents could be seized, placing city residents in danger.

A rule is valid, however, only insofar as its underlying rationale is applicable. In circumstances where the rationale supporting the rule is inapplicable, so too is the rule. The rationale set forth in Hasley and the cases which followed it which support the prohibition of execution upon municipal property is that a municipal corporation, unlike private corporations, is both a public and political body, clothed with exclusive civil authority and political power and possessing the responsibility to provide security for the lives and property of a great number of persons. To carry out these responsibilities, a municipal corporation must possess physical assets such as buildings, waterworks, fire engines, police cars, etc. Such property is held for public, and only public, purposes, and to allow such assets to be executed upon would impair the municipality’s ability to carry out its duties. The purpose of the rule is to protect municipal property which the municipal corporation needs to perform the functions for which it was created; the rationale for the rule being that certain physical assets are necessary to enable the municipality to perform these functions. Where a particular item of municipal property is not needed to perform any particular municipal function, execution thereon would not impair the municipality’s ability to carry out its duties and there is no reason that execution should be precluded. See City of Hazard v. Duff (1941), 287 Ky. 427, 154 S.W.2d 28; Maryland Casualty Co. v. Leland (1938), 214 N.C. 235, 199 S.E. 7; Board of Councilmen v. White (1928), 224 Ky. 570, 6 S.W.2d 699; see also 30 Am. Jur. 2d Executions §§195 through 198 (1967); 17 E. McQuillin Municipal Corporations, §§49.41, 49.43 (3d ed. 1982.)

In the present case, the City Hall clearly serves a cognizable municipal function, and public policy precluded execution against such property. Because execution thereon was precluded, the City’s failure to perfect a stay pursuant to Supreme Court Rule 305(i) is of no consequence with respect to that portion of the trial court’s order relating to City Hall. The record is devoid, however, of any evidence that the 220-acre tract of vacant ground, a former industrial site, serves any cognizable municipal function, nor is there any evidence that execution upon this property would result in any disruption of municipal services. Consequently, there is no sound reason why public policy considerations should preclude execution thereon. Because public policy did not preclude execution thereupon, Rule 305(i) is applicable, and the City’s failure to perfect a stay of the trial court’s order leaves this court unable to provide any relief. Therefore, that portion of this appeal relating to the 220-acre tract must be dismissed.

We do not in any way mean to imply that the City of East St. Louis, or any city, has any lesser obligation to satisfy judgments rendered against it than any other judgment debtor. Instead, the law of the State of Illinois recognizes that a city has no higher duty than to pay the judgments against it and that a city has no discretion to depart from statutory methods of payment. (Evans, 689 F.2d at 1296.) Numerous methods of payment of judgment debts are provided by statute, and cities are obligated to pay their judgment debts in accordance therewith.

Appellant raises two additional issues (that the transfer of city property violates the “public trust doctrine,” discussed in People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65, 360 N.E.2d 773, and that the trial court abused its discretion in not providing the City with adequate time to respond to appellee’s motion for execution of the judgment), which, in light of our holding herein, we find we need not address.

Accordingly, we find the appeal from that portion of the order of September 27, 1990, relating to the 220 acres of vacant ground to be moot, and the Estate’s motion to dismiss this appeal is hereby granted with respect to said property. The appeal from that portion of the order relating to City Hall is not moot, and the Estate’s motion to dismiss is denied with respect thereto. Furthermore, we vacate the order of the circuit court of St. Clair County, dated September 27, 1990, allowing execution against City Hall. Because the quitclaim deed purporting to convey City Hall to the Estate was executed pursuant to the court’s order of September 27, 1990, which is hereby vacated, that deed is rendered null and void. The effect of a vacation of a judgment is to abrogate that judgment and leave the case as it stood prior to entry of the judgment. (Cf. People ex rel. Krych v. Birnbaum (1981), 101 Ill. App. 3d 785, 791, 428 N.E.2d 974, 978.) The quitclaim deed to City Hall was predicated upon, and executed by authority of, the court’s order of September 27, 1990. Where that order is vacated, it is as if it was never executed. Therefore, the quitclaim deed, executed without authority of a court order, is null and void.

For the foregoing reasons, the order of September 27, 1990, of the circuit court of St. Clair County is vacated in part, and the present appeal is dismissed in part.

Vacated in part; appeal dismissed in part.

JUSTICE HARRISON,

concurring in part and dissenting in part:

I agree with Justice Rarick that Supreme Court Rule 305(i) (134 Ill. 2d R. 305(i)) renders this appeal moot as to the 220 acres of vacant ground. Justice Welch argues that the requirements of the rule have not, in fact, been satisfied “because the transfer to trust GSA33 did not take place after the order became final within the meaning of Rule 305(i),” (228 Ill. App. 3d at 453) but this is not so. A final judgment is one which fixes, determines, and disposes of the parties’ rights regarding the litigation or some definite, separate part of the litigation. (Pottorf v. Clark (1985), 134 Ill. App. 3d 349, 351, 480 N.E.2d 533, 535.) The circuit court’s judgment of September 27, 1990, clearly met this standard.

Contrary to Justice Welch’s assertion, the judgment did not have to await the passage of 30 days following its entry until it became final. Under the rules of our supreme court, written judgments, of which this is one, become final not later than the date on which they are signed and filed with the clerk. (134 Ill. 2d R. 272.) In no instance of which I am aware do the rules condition a judgment’s finality on the expiration of an additional 30-day period.

To accept Justice Welch’s view would thus require us to hold that the term “final judgment” has a different meaning under Rule 305(i) (134 Ill. 2d R. 305(i)) than it does elsewhere in the court’s rules. As Justice Welch himself acknowledges, however, rules of court are to be construed as are statutes. It is a well-established principle of statutory construction that where the same words appear more than once in a statute, they should be given a consistent meaning unless legislative intent to the contrary is clearly expressed. (Mirabella v. Retirement Board (1990), 198 Ill. App. 3d 971, 974, 556 N.E.2d 686, 688.) Our supreme court has manifested no intent that a “final judgment” should be assigned any different meaning under Supreme Court Rule 305(i) (134 Ill. 2d R. 305(i)) than it has under the other rules of court. If the supreme court wanted to make Rule 305(i) (134 Ill. 2d R. 305(i)) a special case, it could easily have so provided. But it did not, and this court has no authority to revise or refine that court’s duly adopted rules. (See 134 Ill. 2d R. 3.) Yet, that is precisely what Justice Welch would have us do.

Justice Welch, of course, professes that he is simply construing Rule 305(i) (134 Ill. 2d R. 305(i)) “in a manner that avoids unjust results.” (228 Ill. App. 3d at 454.) Even that rationale is untenable, however, for the injustice he perceives is illusory. Justice Welch contends that unless his interpretation is adopted, the party prevailing at trial will always be able to “defeat the right of the opposing party to seek a stay and consequently a meaningful appeal from the judgment, by doing what the Estate did here” (228 Ill. App. 3d at 453), namely, transferring the real property immediately upon entry of the judgment. This is incorrect.

Under the express terms of Rule 305(1) (134 Ill. 2d R. 305(1)), a transfer of real property to a third party after a final judgment will prevent the rights of the third party to that property from being affected by a subsequent reversal or modification of the judgment only “[i]f a stay is not perfected within 30 days of the entry of the judgment appealed from, or within any extension of the time granted under subparagraph (aX2) of [the] rule.” The converse of this principle is that where a stay is perfected within the specified time, the rights of the third party to property acquired following the judgment may be affected by the judgment’s reversal or modification. Accordingly, even where the real property is transferred to a third party immediately after entry of the final judgment, the case will still not be rendered moot so long as the party who lost at trial ultimately perfects its stay within the time specified by the rule.

The only party who might be prejudiced by this procedure is the third party who acquires the property immediately following the judgment, for his rights to that property may be lost or encumbered if the appellant is ultimately successful. In my view, however, this is not an unduly harsh result, for the third party should certainly know, or be able to discover through reasonable inquiry, that the property he has acquired or seeks to acquire was the subject of a recent judgment. That, in turn, should place him on notice of the possibility that a stay might be obtained and that his rights to the property might one day be encumbered or lost. If he nevertheless decides to proceed with the acquisition, the risk will be his to bear. Presumably, this risk will be reflected in the price he is willing to pay or the terms he is willing to accept for acquisition of the property.

In sum, the City’s right to appeal has not been and could not be defeated merely because the Estate opted to transfer the property to the trust immediately after entry of the judgment. To preserve its rights, the City had only to perfect a stay within the period prescribed by Rule 305(i) (134 Ill. 2d R. 305(i)). That simply was not done. It was not done within 30 days of judgment. It was not done ever. While I remain profoundly sympathetic to the continued plight of the residents of East St. Louis, we cannot now rewrite the rules of court to grant them some special exemption. Under Rule 305(i) (134 Ill. 2d R. 305(i)), this appeal is moot and should be dismissed.

I dissent from Justice Rarick’s opinion because I would not limit the dismissal to the 220 acres. The appeal as to City Hall should be dismissed as well. Justice Rarick attempts to differentiate these properties based on considerations of public policy, but his public policy arguments are no more persuasive to me now than they were when first advanced by Justice Kams in his dissenting opinion in McLorn v. City of East St. Louis (1982), 105 Ill. App. 3d 148, 434 N.E.2d 44.

To the extent that he would grant East St. Louis protection from having certain of its property subject to execution, Justice Rarick has cloaked the City with at least a limited form of sovereign immunity. (See 105 Ill. App. 3d at 152, 434 N.E.2d at 47.) This is so because, as Justice Rarick himself concedes, “sovereign immunity includes not only the right to sue, but also the right to satisfy a judgment rendered upon suit.” (228 Ill. App. 3d at 444.) Under section 4 of article XIII of the 1970 Illinois Constitution (Ill. Const. 1970, art. XIII, §4), however, sovereign immunity has now been abolished “[e]xcept as the General Assembly may provide.” This abolition applies not only to the immunity of the State but to the immunity of municipalities as well. (Henderson v. Foster (1974), 59 Ill. 2d 343, 349, 319 N.E.2d 789, 793.) Accordingly, the only way the City here could possibly be immunized from execution against any of its property is through legislation enacted by the General Assembly. No such legislative immunity has been granted.

What the legislature has done is enact article IX of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 9 — 101 through 9 — 107). Far from conferring immunity, that statute indicates that it is the public policy of this State for local public entities to pay tort judgments against them. To meet this obligation, the statute gives such entities authorization to pay off judgments in installments over more than one fiscal year (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 104) and permits them to issue bonds (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 105) and to levee taxes (Ill. Rev. Stat. 1989, ch. 85, par. 9 — 107). Unlike Justice Rarick, however, I do not regard this as an exclusive list of the means by which judgments against municipalities can be satisfied. Under article XIII of our constitution (Ill. Const. 1970, art. XIII), all presumptions must now be exercised against allowing governmental immunity. Given this, I believe that the only proper way to construe article IX of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, pars. 9 — 101 through 9 — 107) is as a means of empowering public entities to meet their judgment obligations in ways that might not otherwise be available to them absent the legislation.

In other words, I view the statute as a grant of additional authority to judgment debtors who are public entities. It is not and does not purport to be a limitation on the rights of judgment creditors to enforce their judgments in the ways otherwise available to them. At no point does it expressly or impliedly prohibit judgment creditors from attaching municipal property, and it certainly offers no basis for making the distinction drawn by Justice Rarick between property that serves “a cognizable municipal function” and that which does not.

Justice Rarick is rightly concerned about the possible disruption in city services which might result if judgment creditors are permitted to attach municipal property. As we noted in McLorn, however, that is a problem which is better addressed to the General Assembly than to this court. (McLorn, 105 Ill. App. 3d at 154, 434 N.E.2d at 48.) Where, as here, the constitution and statutes have addressed a matter, we have no authority to act as a “superlegislature” under the guise of public policy, for “[w]hen the [General Assembly] speaks upon a subject, upon which it has the constitutional power to legislate, public policy is what the statute, passed by it, indicates.” (Henderson v. Foster (1974), 59 Ill. 2d 343, 347-48, 319 N.E.2d 789, 792.) For the foregoing reasons, the entire appeal should be dismissed.

JUSTICE WELCH,

dissenting in part and concurring in part:

I disagree with Judge Rarick’s conclusion that, with respect to the 220 acres, this appeal is rendered moot by Supreme Court Rule 305(i). (134 Ill. 2d R. 305(i).) It is my opinion that all of the requirements of Rule 305(i) have not been satisfied in this case because the transfer to trust GSA33 did not take place after the order became final within the meaning of Rule 305(i).

I think that a fair and reasonable interpretation of Rule 305(i) requires that the transfer of real estate must be made after the order appealed from becomes final, not in the sense that it is a final and appealable order, but in the sense that the 30-day time period for seeking review of the order, either in the trial court through a post-trial motion or in the appellate court through the filing of a notice of appeal, has run. This view is supported by our decision in Meeker v. Payne (1981), 101 Ill. App. 3d 723, 726, 428 N.E.2d 614, 616, in which we held that, where a transfer to a third party was made less than 30 days after entry of the order appealed from, it could not be said that the third party acquired title to the real estate after the judgment became final, and as a consequence, Supreme Court Rule 305(i) did not apply.

Indeed, to hold otherwise would allow the party who prevailed at trial to defeat the right of the opposing party to seek a stay and consequently a meaningful appeal from the judgment, by doing what the Estate did here, that is, transferring the real property immediately upon entry of the order and before the losing party has the opportunity to obtain an appeal bond and seek a stay of the order. If Rule 305(i) applies to such a case, then the losing party is effectively deprived of its right to meaningful review of the trial court’s order, as the appeal is rendered moot. This cannot be the intent of the rule.

Rule 305 allows a party 30 days in which to file an appeal bond and seek a stay pending appeal. (134 Ill. 2d R. 305.) Supreme Court Rule 303 allows a party 30 days in which to file a notice of appeal. (134 Ill. 2d R. 303.) Furthermore, parties who lose at trial are granted 30 days in which to file post-trial motions seeking review in the trial court. (Ill. Rev. Stat. 1989, ch. 110, pars. 2 — 1202, 2 — 1203.) If Rule 305(i) applies to transfers made within this 30-day period, a party can effectively defeat each of these rights, for any further review is rendered moot by the transfer. Supreme court rules, which are to be construed as are statutes (134 Ill. 2d R. 2), should be construed in a manner that avoids unjust results. (Croissant v. Joliet Park District (1990), 141 Ill. 2d 449, 455, 566 N.E.2d 248, 251.) To allow Rule 305(i) to apply to a case such as the one at bar would result in injustice.

Accordingly, I would find that the transfer by the Estate to trust GSA33 was not made after the order of September 27, 1990, became final. Therefore, Rule 305(i) would not apply in the instant case.

However, I wholeheartedly and completely agree with the reasoning and conclusion of Judge Rarick that the public policy of the State of Illinois, as expressed in City of Chicago v. Hasley (1861), 25 Ill. 595, and its progeny, prohibits a judgment creditor from executing upon essential city property in order to satisfy the judgment debt. I would go further than Judge Rarick, however, and find that the rule against execution upon city-owned property extends to all such property and not merely to property deemed necessary or essential to the functioning of the city.

It is my opinion that courts are not qualified to make decisions in cases such as this as to what property is necessary or essential to the functioning of a city. A city must make long-term planning decisions with respect to the property it owns, decisions which require foresight, an understanding of the workings of the city, the interrelationship of its many functions, and some level of expertise. City-owned property which does not appear to be essential or necessary today to the functioning of the city may be included as an integral or essential element in a future plan. To allow execution on such city-owned property may disrupt and interfere with a city’s long-term planning decisions, thus disrupting the functioning of the city in an indirect but long-term way.

Courts should not be placed in the position of analyzing and determining what city-owned property is necessary or essential to the functinning of the city, either because it is used today or because it is included in an essential long-term plan for the city. I would therefore extend the prohibition against execution on city-owned property to include all such property, rather than placing on the courts the onerous task of determining whether such property is necessary or essential to the immediate or long-term functioning of the city.

Finally, I note that Hasley makes no distinction between necessary and unnecessary city-owned property but holds that all city-owned property is exempt from execution by a judgment creditor. As Hasley expresses:

“[t]his power of taxation is plenary, and furnishes, ordinarily, the only means such corporations possess, by which to pay their debts. They cannot be said to possess property liable to execution, in the sense an individual owns property to subject, for they have the control of the corporate property only for corporate purposes, and to be used and disposed of to promote such purposes, and such only.” (25 Ill. at 596.)

Nor do any of the cases following Hasley recognize any distinction between necessary and unnecessary city-owned property.

In In re Application of County Collector (1979), 79 Ill. App. 3d 151, 398 N.E.2d 392, the property at issue was held by the Metropolitan Sanitary District of Greater Chicago, a municipal corporation, as a potential site for a surface retention reservoir. The court found that property belonging to a municipality cannot be executed upon, making no distinction between property which is presently necessary to the functioning of the city and property which may become necessary in the future because it is included in the city’s long-term plans.

Thus, I would not require the courts to determine in every case what city-owned property is considered necessary to the functioning of the city and may not be executed upon and what city-owned property is not considered necessary and may be executed upon. I would hold that no city-owned property may be executed upon to satisfy a judgment debt.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBY L. ANDERS, Defendant-Appellant.
    Fourth District
    No. 4—91—0753
    Opinion filed May 7, 1992.

      Theodore A. Gottfried, of State Appellate Defender’s Office, and Brown, Hay & Stephens, both of Springfield (Emmet A. Fairfield, of counsel), for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Bobby L. Anders was convicted by an Adams County jury of unlawful delivery of less than one gram of a controlled substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56%, par. 1401(d)), and unlawful delivery of one or more grams, but less than 15 grams of a controlled substance containing cocaine (Ill. Rev. Stat. 1989, ch. 56%, par. 1401(c)(2)). He was sentenced to concurrent three- and six-year terms of imprisonment and fined $1,500 and a street-value fine of $150. He argues the evidence was insufficient to convict him of either offense and the trial judge abused his discretion in sentencing him. We disagree and affirm.

Defendant was indicted by the Adams County grand jury on January 28, 1991. Count I alleged defendant committed the offense of unlawful delivery of a controlled substance by knowingly and unlawfully delivering less than one gram of a substance containing cocaine. Count II alleged defendant and Joseph E. Peters committed the offense of unlawful delivery of one or more grams, but less than 15 grams of a substance containing cocaine. Count III alleged defendant committed narcotics racketeering by receiving income while knowing that income was derived from a pattern of narcotics activity. (Ill. Rev. Stat. 1989, ch. 56%, par. 1654(a).) Count III was dismissed before defendant’s jury trial began.

The trial occurred on May 13 and 14, 1991. Defendant’s activities at issue in the trial occurred on September 20, 1990. On that day Mark Brinks, a State witness, was involved in an Illinois State Police undercover drug operation directed at defendant. Brinks knew defendant through playing pool. Several months earlier a friend of defendant’s, Joey Peters, had begun working for Brinks doing remodeling work. When Brinks occasionally needed extra laborers, defendant also worked for him. Brinks testified he had purchased cocaine from defendant several times during the last two months. These transactions occurred at Brinks’ residence and at defendant’s home. Brinks paid $100 a gram for the cocaine.

On September 19, Brinks arranged to buy an “eight ball” of cocaine from defendant. An “eight ball” is 3V2 grams. Brinks testified defendant said he would bring the drugs to Brinks’ house at 3 p.m., September 20. On the morning of September 20, Brinks phoned the Illinois State Police. Officers Ray Nebe and Debra Hedden arrived at Brinks’ home at approximately 2:15 p.m. When they arrived, Nebe searched him and Hedden gave him a $100 bill. Nebe departed after the pat-down search.

Defendant and Joey Peters arrived at Brinks’ home at approximately 2:30 p.m. Brinks and Hedden were sitting at the kitchen table. When defendant and Peters entered, they sat at the table and talked. Then defendant said to Brinks, “[C]ome here I want to talk to you.” Defendant and Brinks entered the bathroom. According to Brinks, defendant had a folded package and told him he “got that stuff,” but asked who the girl was. Although Brinks told him she was his friend, defendant said he did not want to do anything in her presence. He gave Brinks the package and Brinks gave it back to him, stating, “ ‘[s]he’s the one buying it. I would just as soon you sell it to her.’ ” Defendant refused and returned the package to Brinks. Brinks took the package and gave defendant a $100 bill. They returned to the kitchen.

Brinks identified People’s exhibit No. 1 as the Marlboro package which defendant handed to him in the bathroom. Officer Hedden could not observe Brinks and defendant in the bathroom from where she sat in the kitchen. Brinks and defendant returned to the kitchen table and sat down. Brinks opened the Marlboro package containing a white powdery substance, which he tasted. He handed the package to Hedden and asked defendant if he could get more. Defendant indicated he would need $150 to obtain the additional cocaine. Brinks asked defendant if it would be “just as good as this.” Defendant said it would be “just as good as that or better.” Brinks told Hedden to give defendant the money. She gave Brinks $160 and he gave it to defendant. Defendant said he would be gone no longer than one hour and Brinks should stop by his house. Defendant told Brinks he should stop by when he saw defendant’s truck parked outside. Defendant left with Peters.

An hour later, Hedden and Brinks went to defendant’s house. They did not see defendant’s truck. A short time later they returned to defendant’s house and found Peters outside. Peters told them to go to a tavern for a while and come back shortly. They drove past again and did not see defendant’s truck. At 5 p.m. Hedden dropped Brinks off at a clinic where his wife worked.

Brinks testified that he had a cocaine habit. According to him, in September 1990 he was not using cocaine heavily, but was using it on a weekly basis. Before this date, he used cocaine daily. He also admitted that in consideration of his participation in this undercover operation, a traffic offense of driving while his license was suspended was dismissed.

On cross-examination, Brinks stated he thought he directed defendant into the bathroom during the first alleged drug delivery, rather than defendant directing Brinks. He agreed the search performed on him was a pat-down search and his house was not searched before the alleged initial drug delivery which occurred there. Brinks also admitted having a cocaine problem for four or five years. He had sought treatment about two years earlier but was not receiving any aftercare. Brinks had told the grand jury defendant tempted him so much he finally starting doing cocaine again. He admitted on cross-examination that he had asked defendant to get him cocaine. Brinks stated he had been a confidential source on approximately 10 occasions and was familiar with procedures used by DCI and the Illinois State Police in drug transactions.

Brinks testified the police told him to have someone with him when he purchased the drugs from defendant. He did not tell defendant someone would be with him at his home when defendant was to deliver the drugs because he feared defendant would think the person was a police officer. Brinks stated he already had a reputation in Quincy for being a snitch. He denied the Marlboro pack with the cocaine was in the bathroom when defendant arrived.

Hedden testified about her participation in the undercover drug operation. She was employed with the West Central Illinois Task Force through an arrangement with the Brown County sheriff’s department. Her role in the investigation was to deliver the money and receive the drugs. Her testimony about what occurred when defendant arrived at Brinks’ home on September 20 comported with Brinks’ testimony. She testified defendant initiated his exit with Brinks from the kitchen area. From where she was seated, she could not observe Brinks and defendant in the bathroom. When they returned a few minutes later, Brinks had a small red package in his hand and defendant had a large roll of bills with him. She did not see defendant with the $100 bill she had given Brinks.

Hedden identified the package Brinks had returned with as the People’s exhibit No. 1, the Marlboro package. Her testimony was also the same as Brinks’ regarding defendant’s assurance that the additional amount of cocaine which Brinks had asked to purchase would be as good or better as the cocaine in Brinks’ possession after he and defendant returned from the bathroom. Defendant said something about being short. Brinks asked her for an additional $100, which she gave him. Defendant stated he needed $150. Hedden gave Brinks three $20 bills, which he also gave to defendant.

Hedden testified defendant then said he would be back within 45 minutes to an hour and that she and Brinks should meet him at his house. Defendant showed them a green truck in the driveway and said when it was there he would be home. Hedden never saw defendant again. After defendant left, she and Brinks went to her Quincy office where she performed a field test on the powder in the Marlboro package.

She testified she and Brinks drove by defendant’s home several times to no avail. When they drove by about 4:30 p.m., Peters was in the yard and they stopped. Brinks asked where defendant was, to which Peters stated, “[w]ell it takes awhile to get it, [h]e’ll be back any minute.” They returned about 15 minutes later and defendant had not returned. They spoke with Peters again. Brinks needed to go home so Hedden dropped him off at the clinic where his wife worked.

Hedden returned to defendant’s house, where she again met Peters. He told her defendant would not like her hanging around and suggested she go to a corner bar and wait. He told her he would go with her to wait. She went to the bar and waited for about 20 minutes; however, Peters never arrived. She received a radio message that defendant’s green truck was in front of his house. She returned to defendant’s house and Peters was again in the front yard. He approached her car and told her he would return in a minute.

Peters went into defendant’s house and returned to the driver’s side of Hedden’s vehicle. He slipped his hand through the window and dropped a “white snow seal” into her hand. A snow seal is a small white square of paper used to package cocaine. She asked Peters, “ ‘Is this some of the same stuff?’ ” She also asked where defendant was, and did he not trust her, to which Peters replied, “ ‘Oh, you know how it is.’ ” Peters asked her to do some cocaine with him. She replied she did not have time, and she left the premises. She identified People’s exhibit No. 2 as the snow seal she received from Peters.

On cross-examination, Hedden stated Brinks arranged everything before the transaction which occurred at his house. His house had not been searched before the transaction to ascertain that he did not possess drugs. She could not hear the transaction between Brinks and defendant and no recording or video devices were used. Regarding the transaction with Peters, Hedden conceded she never saw defendant return in the truck. She never saw defendant in his house and did not know who may have been in the house.

Mike Cravens, a forensic scientist for the Illinois State Police, testified about the procedures he used to conclude the substances at issue were cocaine. On cross-examination, Cravens stated no requests were made to test the packaging in which these substances were found for fingerprints. It is possible to test paper and foil packages for fingerprints; however, a fingerprint does not always result when someone touches a surface. He also testified fingerprint tests are routinely requested, but not usually granted because of the volume of exhibits which are analyzed.

Defendant took the stand in his own defense and testified he knew Brinks from having played pool together. He knew Brinks was looking for workers, so he told Brinks that he and Peters would work for him. According to defendant, he worked for Brinks approximately 10 times and was paid $5 per hour in cash. Defendant stated he and Brinks occasionally did cocaine when they worked together. He testified he went to Brinks’ house on September 20 to get $80 to $90 in pay due him. Peters accompanied defendant to Brinks’ home because Brinks also owed him back pay.

According to defendant, when he and Peters arrived, Brinks and Hedden were sitting at the kitchen table. Brinks began to talk about cocaine and asked him if he could get some cocaine. Defendant said to Brinks, “ ‘I need to talk to you.’ ” Brinks led him into the bathroom and asked defendant to go along with what he was doing. Defendant agreed. When they exited the bathroom, defendant testified Brinks had a seal. Defendant did not know where the seal came from. According to defendant, while they were in the bathroom, Brinks intimated he was sexually involved with Hedden.

When they returned to the kitchen, Brinks asked defendant if he could get more cocaine. Defendant responded affirmatively. Defendant testified he responded in this way because of Brinks’ request that he go along with whatever Brinks requested. Brinks handed him three more $20 bills. Defendant and Peters departed. Defendant went to play pool for 11/2 or 2 hours. He did not know when he arrived home. He testified he did not bring cocaine to Brinks’ home and he did not tell Peters what to do in the second transaction. He also testified he did not drive anywhere for more cocaine and knew nothing about the second transaction.

On cross-examination, defendant stated he asked Brinks to speak with him outside of Hedden’s presence. He drove to see Brinks in a green truck. He told Brinks that if he needed to contact him, he would be home when the green truck was at his house. Peters lived with him at that time. Defendant denied dealing cocaine. The defense rested.

The State recalled Brinks in rebuttal. Brinks stated he did not owe defendant back pay. Although the bathroom had not been searched before defendant arrived, defendant handed him the cocaine in the bathroom. Following closing arguments and deliberations, the jury found defendant guilty of both counts.

Defendant’s sentencing hearing occurred July 15, 1991. The presentence investigation established defendant was 27 years old and married with two children. Defendant had not used alcohol or cocaine since his arrest. His family was receiving public aid and food stamps and he was employed four to six hours a day as a dishwasher. He was attending counseling sessions regularly.

Defendant had been placed on juvenile probation for misdemeanor theft in 1980 and successfully completed his probationary period. He had several speeding tickets and minor traffic violations between 1981 and 1990.

Jay Carlton, of the West Central Illinois Task Force, testified for the State. He stated he overheard a conversation between defendant and a confidential source at a bar in April 1991. Defendant reportedly stated the police did not know what was going on and that defendant could sell here if he wanted.

Defendant offered evidence in mitigation. He testified he saw Carlton at a bar in April, but did not talk to him. He had spoken with Denise Bennett, the reported confidential source. According to him, Bennett wanted to buy an eight ball. Defendant indicated he was in trouble and wanted no part of a drug transaction. He denied bragging about selling drugs. He had learned not to use drugs, was receiving counselling regularly, and was trying to spend more time with his wife and family. Defendant felt he could be successful on probation and was willing to comply with any conditions of probation including abstinence from alcohol or drugs.

Defendant’s wife testified defendant had changed since his arrest. He works and spends more time with the family. His relationship with her and with his family has improved. She felt defendant had learned from this experience.

Bruce Rice, a pastor at Trinity Assembly Church, testified he had known defendant’s family for approximately seven years and had known defendant for about six months. He became acquainted with defendant during the last illness of defendant’s father, at which time defendant controlled the situation and assumed a lot of responsibility. Since that time, God had taken root in defendant’s life. Rice stated defendant had a very strong and close-knit family which is supportive of him and defendant was remorseful and wants to take control of his life.

The trial judge sentenced defendant to three years’ imprisonment on count I, and six years’ imprisonment on count II. He also levied a street-value fine of $150 and a cash fine of $1,500 against defendant. Defendant’s motion to reduce sentence was denied.

Defendant first argues the evidence was insufficient to convict him of count I, unlawful delivery of less than one gram of a controlled substance containing cocaine. (Ill. Rev. Stat. 1989, ch. 56V2, par. 1401(d).) He specifically contends the evidence did not establish beyond a reasonable doubt that he delivered cocaine to Brinks. He points to Hedden’s testimony that the investigation did not follow usual procedures because she did not directly pay the money to defendant or receive the drugs from him. Moreover, the transaction did not take place in her presence.

Defendant also attacks the reliability of Brinks’ actions because Brinks was a cocaine user and had initiated the undercover operation to clear a charge of driving while his license was suspended. Defendant also criticizes the investigation leading to the initial drug purchase and preceding it. Testimony established only a pat-down search was performed on Brinks before he allegedly purchased the drugs from defendant. Defendant also correctly notes the Marlboro package which contained the cocaine was never tested for fingerprints. These investigatory holes, according to defendant, defeat any possibility of a finding of his guilt beyond a reasonable doubt.

To determine the sufficiency of the evidence, a court of review views the evidence most favorably to the prosecution and queries whether any rational trier of fact could have found defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277; People v. Govin (1991), 213 Ill. App. 3d 928, 930, 572 N.E.2d 450, 452.) The evidence in this case supports an affirmative conclusion. Defendant incorrectly contends the sole evidence that he delivered an unlawful substance to Brinks was Brinks’ testimony.

Hedden’s testimony comported with Brinks’ testimony about the events which occurred September 20. Although Hedden could not observe Brinks and defendant while they were in the bathroom, she saw defendant return to the kitchen with money in his hand and Brinks returned with a red package containing cocaine. She also testified Brinks tasted the contents of the package and asked defendant if the next order would be as good, to which defendant responded that it would be as good or better.

Defendant correctly notes testimony by an informant who himself abuses unlawful substances and who participates in an undercover operation to minimize punishment for his own illegal activity should be closely scrutinized. (People v. Perkins (1962), 26 Ill. 2d 230, 234, 186 N.E.2d 330, 332; People v. Huffman (1988), 177 Ill. App. 3d 713, 723, 532 N.E.2d 556, 562.) Brinks admitted using cocaine on a weekly basis and previously sought treatment for a daily addiction. He also testified he contacted law enforcement authorities to assist in an undercover operation so that he could obtain a dismissal of a pending traffic charge. His drug use, combined with his reason for testifying, made his testimony suspect.

Defendant fails to recognize that when this testimony is partially corroborated, the reasonable doubt threshold can be overcome. (Perkins, 26 Ill. 2d at 234, 186 N.E.2d at 332; Huffman, 177 Ill. App. 3d at 723, 532 N.E.2d at 562.) Hedden’s testimony corroborated Brinks’ testimony about what transpired when defendant and Peters arrived at Brinks’ house. Defendant summoned Brinks into another room. When they returned, defendant told Brinks — in Hedden’s presence — that the next order of cocaine would be as good or better.

In addition, defendant argues Brinks’ testimony could not be relied on because law enforcement officials failed to search Brinks’ home, or in particular, the bathroom, before the drug transaction occurred. The State’s case against a defendant is not defeated merely because a government agent is not searched for narcotics before the agent purchases unlawful substances from defendant. This inaction goes only to the weight to be afforded the agent’s testimony. People v. Clay (1963), 27 Ill. 2d 27, 32, 187 N.E.2d 719, 722; People v. Guido (1962), 25 Ill. 2d 204, 209, 184 N.E.2d 858, 861.

Moreover, the evidence here established a pat-down search was performed on Brinks before the transaction. Defendant testified he led Brinks to the bathroom. The jury could reasonably have believed Brinks could not have anticipated defendant would lead him to the bathroom and, therefore, it was highly unlikely Brinks had unlawful substances stashed there with which to frame defendant. The record established the jury could reasonably have concluded defendant unlawfully delivered less than one gram of an unlawful substance to Brinks on September 20, 1990.

Defendant next argues the evidence was insufficient to convict him of count II, unlawful delivery of one or more grams, but less than 15 grams of a controlled substance containing cocaine. (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c)(2).) He was convicted of this offense based on an accountability theory. The prosecution argued defendant was legally responsible for the delivery of cocaine by Peters to Hedden.

Section 5 — 2 of the Criminal Code of 1961 outlines when an individual is legally accountable for another’s conduct:

“Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” Ill. Rev. Stat. 1989, ch. 38, par. 5 — 2(c).

The standard of review is again whether any rational trier of fact could have found defendant guilty based on the accountability theory. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277; Govin, 213 Ill. App. 3d at 930, 572 N.E.2d at 452.) The evidence was sufficient for the jury to hold defendant accountable for the delivery of the second packet of cocaine by Peters to Hedden.

The Illinois Supreme Court has concluded it is not necessary to conclusively prove the particular capacity in which a defendant acted in an unlawful sale and delivery of narcotics case. (People v. Aldridge (1960), 19 Ill. 2d 176, 179, 166 N.E.2d 563, 565.) Furthermore, a defendant need not be present when the sale takes place nor need he be in possession of marked money. (People v. Parks (1978), 57 Ill. App. 3d 405, 408, 373 N.E.2d 783, 785.) A person who arranges or promotes the sale of narcotics is as guilty of the sale as the actual seller of the drug involved. People v. Banks (1968), 103 Ill. App. 2d 180, 190, 243 N.E.2d 669, 673-74.

Defendant relies on People v. Deatherage (1984), 122 Ill. App. 3d 620, 461 N.E.2d 631, in arguing the State did not prove beyond a reasonable doubt that he solicited, ordered, abetted, aided or attempted to aid Peters in the commission of the count II offense of unlawful delivery. He contends the evidence is insufficient because (1) the cocaine was delivered by Peters, not him; (2) the evidence did not establish defendant was the source of the cocaine delivered by Peters to Hedden; and (3) there was no evidence showing defendant solicited or ordered Peters to commit the offense of delivery.

In Deatherage, the defendant was not present during two meetings which occurred between the undercover agents and the other person charged with unlawful delivery. Moreover, the only contact defendant had with the unlawful transaction was that he was present at the home where the delivery occurred and he answered a question asked him about the price of the drugs. The court concluded the evidence established only that defendant was present and may have known about the transaction. Deatherage, 122 Ill. App. 3d at 623-24, 461 N.E.2d at 633-34.

Defendant’s actions in this case suggested far more participation on his part than did the defendant’s actions in Deatherage. There was testimony that, immediately after the initial sale, Brinks asked defendant if defendant could obtain more cocaine. Defendant answered that he could, and it would cost $150 and would take him no more than an hour to obtain it. Defendant told Brinks, in the presence of Hedden, that the additional cocaine would be as good or better than that initially delivered. Hedden gave Brinks $160. Brinks gave this money to defendant.

Defendant, in the presence of Hedden, told Brinks that when his green truck was in his driveway, it meant he was home and Brinks should stop. In addition, when Peters delivered the cocaine to Hedden in front of defendant’s home, Hedden asked where defendant was and whether he did not trust her. Peters responded, “ ‘Oh, you know how it is.’ ” Defendant, unlike the defendant in Deatherage, was not merely present during the conversation leading to the drug delivery. Defendant participated by accepting the money from Brinks for the additional cocaine. He arranged the time and place for Brinks to obtain the narcotics. He also gave quality assurances. The jury could reasonably have concluded defendant obtained the second order of cocaine. The evidence was sufficient to establish defendant solicited, aided, or abetted the planning and commission of the unlawful delivery of cocaine.

Defendant finally argues the trial judge abused his discretion by sentencing him to prison rather than placing him on probation. He contends the judge failed to properly consider the mitigating factors presented at his sentencing hearing, resulting in an excessive sentence. He points to the following mitigating factors: (1) his criminal conduct did not cause or threaten to cause physical harm to another (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3.1(a)(1)); (2) he had no significant criminal history (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 5 — 3.1(a)(7)); and (3) his character suggests he is unlikely to commit another crime and particularly likely to comply with the terms of probation (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.1(a)(9)).

He argues the record reflects a supportive family and his imprisonment results in excessive hardship to his two young children. He also directs us to his statement that he has learned his lesson and he was willing to comply with any terms of a probationary sentence. Defendant correctly notes a trial judge shall impose a sentence of probation unless the nature and circumstances of the offense and the history and character of the offender convince him that imprisonment is necessary to protect the public. A prison term can also be imposed where the trial judge concludes probation would minimize the seriousness of the offense or be inconsistent with the ends of justice. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6— 1(a)(2).

The trial judge found in aggravation that prior to the convictions, defendant had not been supporting his family, but had instead been living on his wife’s money and using and probably selling cocaine. The trial judge concluded probation would diminish the seriousness of defendant’s conduct and undermine the public’s protection. He noted his concern that defendant was deeply involved with drugs.

The sentence imposed by a trial judge should not be overturned absent abuse of discretion. The trial judge’s ruling is entitled to great deference and weight because the trial judge is better able to make a firsthand, reasoned judgment based on such factors as the defendant’s general moral character, credibility, demeanor, social habits, and age. People v. Streit (1991), 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353; People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884; People v. Bernotas (1991), 215 Ill. App. 3d 371, 376, 574 N.E.2d 1236, 1239.

In this case, we find the trial judge did not abuse his discretion in imposing a prison term on defendant for each count of which he was convicted. The terms were also not excessive as they are well within the statutory limits. Unlawful delivery of less than one gram of a substance containing cocaine is a Class 2 felony, punishable by three to seven years’ imprisonment and a maximum cash fine of $200,000. (Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(d); ch. 38, par. 1005 — 8—1(a)(5).) Unlawful delivery of more than 1 gram but less than 15 grams is a Class 1 felony, punishable by 4 to 15 years’ imprisonment and a maximum cash fine of $250,000. Ill. Rev. Stat. 1989, ch. 561/2, par. 1401(c); ch. 38, par. 1005 — 8—1(a)(4).

Defendant received the minimum prison term for his first conviction in count I and only two years more than the minimum term in count II. Significantly higher fines could also have been imposed against defendant. The court did not abuse its discretion in sentencing defendant.

Affirmed.

GREEN, P.J., and LUND, J., concur.