text:
    Mid-West National Bank of Lake Forest, Plaintiff, v. James L. Metcoff et al., Defendants.—(Elaine R. Biel et al., Counterplaintiffs-Appellants, v. Mid-West National Bank of Lake Forest et al., Counterdefendants-Appellees.)
    (No. 73-140;
    Second District
    November 21, 1974.

      George Brode, of Chicago, and Max Lidschin, of Waukegan, both for appellants.
    Semmelman & Fouts, of Lake Forest, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal from an order which limited the satisfaction of a lien to 50% of the proceeds of the judicial sale of real estate and which denied allowance of attorney’s fees.

On June 20, 1969, a judgment in the sum of $43,731.75 (later reduced by credits to $35,731.75) was rendered in the Circuit Court of Cook County in favor of defendants-counterplaintiffs-appellants Elaine R. Biel and George Erode (hereinafter Biel and Erode) against James Metcoff and Eleanor Metcoff.

The Metcoffs were the purchasers under contract of a Deerfield residence which, on December 24, 1969, was conveyed from the seller (Deerfield Savings and Loan Association, not a party to the instant htigation) to the Union National Bank and Trust Company of Joliet as Trustee (hereinafter Union Bank as Trustee) under Trust No. 893. The beneficial interest in the trust was vested solely in Eleanor Metcoff. The Metcoffs effected the transfer by execution of a $42,000 promissory note and a security assignment to the plaintiff-counterdefendant-appellee, Mid-West National Bank of Lake Forest (hereinafter Mid-West). On January 12, 1970, Mid-West recorded its interest at the Lake County Recorder’s Office. Mid-West delayed for over 2 years in filing a financing statement with the Secretary of State.

On October 18, 1971, the Circuit Court of Cook County rendered a decree in a citation proceeding instituted on June 23, 1970 by Biel and Erode against the Metcoffs, Mid-West and the Union Bank as Trustee. This decree directed the conveyance of all the estate and interest of James and Eleanor Metcoff in Land Trust No. 893 to their judgment creditors, Biel and Erode.

On August 18, 1971, the instant foreclosure proceeding was brought in Lake County by Mid-West as mortgagee naming as defendants James Metcoff and his wife Eleanor Metcoff, their judgment creditors Biel and Erode and the Union Bank as Trustee. The complaint alleged, inter alia, default by the Metcoffs by their failure to make payments on the indebtedness. Biel and Erode filed a counterclaim alleging, inter alia, that they were prior judgment creditors of the Metcoffs and praying that upon sale of the foreclosed property, their judgment be fully satisfied as á prior lien out of the proceeds of sale. Summary judgment was granted on the counterclaim and on December 21, 1971, a foreclosure decree was entered ordering the sale but the court reserved its ruling as to the priority of liens of Mid-West and Biel and Erode.

The Metcoffs appealed and on February 22, 1972, this court approved an appeal bond of $10,000, stayed the cause and suspended the enforcement of the receivership subject to conditions imposed by this court’s own motion. On April 6 this court dismissed the appeal, vacated the stay and the suspended enforcement of the circuit court orders, and ordered the bond to be distributed as follows:

“* # * $6,155.00 toward all taxes, $3,888.50 for past due monthly payments to Mid-West National Bank of Lake Forest, Illinois; $195.00 for waste committed by failure to insure the property; and the balance remaining of the proceeds of the bond, if any, to the Clerk of the Circuit Court to be applied by the Circuit Court to costs, including the expense of attorney’s fees, incurred by the receiver-appellee, Kurt D. Nauta; the defendantscounterplaintiffs-appellees, Elain R. Biel and George Erode, and the plaintiff-appellee, Mid-West National Bank of Lake Forest, Illinois.”

On April 28, upon motion for filing the mandate of the appellate court, the trial court entered an order directing the receiver to apply the proceeds of the bond to pay certain taxes and for insurance, but ordered the remainder deposited with the clerk of court to await further order of the court.

On August 1, the trial court rendered its findings on the reserved matter of priority of liens. It found, inter alia, that the transfer of the interest of James Metcoff in the real estate to a trust making his wife sole beneficiary was a fraud on the creditors in which Mid-West is chargeable with at least notice, if not complicity; that Mid-West delayed over 2 years in filing a financing statement with the Secretary of State; that James Metcoff had only a 50% interest in the proceeds of sale; that taking all factors into consideration the equities are with Biel and Erode; and that Biel and Erode could enforce their hen against James Metcoffs 50% interest.

: On September 5th, Erode and Lidschin and - Pucin, attorneys for Biel and Erode, filed a petition for $4200 in attorney’s fees and $49 in costs, limited to the matters of the Metcoffs prior appeal and the bond forfeiture proceedings.

Biel and Erode filed a motion for reconsideration of the August 1 order which restricted satisfaction of their lien to 50% of the proceeds of sale. On January 18, 1973, the trial court affirmed its prior holding and ordered $24,331.22 paid to Biel and Erode and $17,641.76 paid to Mid-West as to its lien on Eleanor Metcoffs interest in the proceeds.

The court also denied the petition for attorney’s fees and costs, and denied the motion of Mid-West for payment of $3888.50 from the bond forfeiture as arrearages on the mortgage.

Biel and Erode appeal from this order, alleging error in (1) restricting satisfaction of their hen to 50% of the proceeds of sale, and (2) denying the allowance of attorney’s fees and costs incurred in the Metcoff appeal and in the matter of the bond forfeiture.

Mid-West contends that it was error for the trial court in Lake County to (1) deny its motion to declare the October 18, 1971, citation decree void as to Mid-West; (2) find that Biel and Erode were entitled to priority over Mid-West in the satisfaction of their lien; and (3) deny Mid-West an award of $3,888.50 from the bond forfeiture as arrearages pursuant to this court’s order. Mid-West prays that the judgment below be reversed and modified and the cause remanded with instructions consistent with its views of the case. We are not, however, at liberty to reverse or modify the judgment below at the urging of the appellee since, in the instant case, the appellee Mid-West has failed to file a cross-appeal. We agree with appellant’s contention that in the absence of a cross-appeal, the matters urged by appellee are not properly before the reviewing court and thus are not subject to review on this appeal. (See Ill. Rev. Stat. 1989, ch. 110A, par. 303(b).) The requirement that appellee file a cross-appeal in order to assert reversal or modification of the judgment below is mandatory. Having failed to cross-appeal, this court lacks jurisdiction to consider Mid-West’s attack on the judgment of the trial court. People ex rel. Southfield Apartment Co. v. Jarecki (1951), 408 Ill. 266, 96 N.E.2d 569; Bryant v. Lakeside Galleries, Inc. (1949), 402 Ill. 466, 84 N.E.2d 412; Case International Co. v. American National Bank & Trust Co. (1974), 18 Ill.App.3d 297, 309 N.E.2d 750.

We next consider whether it was error to Umit satisfaction of the lien of Biel and Erode to 50% of the proceeds of sale of the foreclosed real estate. As indicated above, the court below divided the interest of James and Eleanor Metcoff in the real estate, and found that Biel and Erode could satisfy their lien out of James Metcoff’s 50% of the proceeds and ordered the payment of $17,641.76 to Mid-West as to its Men on Eleanor Metcoff’s interest in the proceeds. In their counterclaim in the foreclosure proceedings, Biel and Erode alleged the existence of a debt reduced to judgment against both James Metcoff and his wife, Eleanor Metcoff. In the foreclosure order of June 20, 1972, and the later amending order of July 5, 1972, the court found that the existence of this judgment had been proved. The Cook County citation judgment, which directed the conveyance of aU the estate and interest of Eleanor Metcoff in the land trust to their judgment creditors, Biel and Erode, was introduced into evidence in the foreclosure proceedings. In the first hearing on the foreclosure and on subsequent occasions, the court indicated its cognizance of the fact that both James and Eleanor Metcoff were judgment debtors to Biel and Erode. Notwithstanding this, the court in its order determining priorities separated the interest of the Metcoffs and allowed Biel and Erode to satisfy their lien against only James Metcoff’s interest. In so doing, the court erred.

In Levine v. Pascal (1968), 94 Ill.App.2d 43, 236 N.E.2d 425, it was held that a creditor who proceeds by a citation to discover assets is a lien creditor as defined in section 9 — 301(3) of the Uniform Commercial Code (Ill. Rev. Stat. 1969, ch. 26, par. 9 — 301 (3)) and that such creditor has a superior right to the beneficial interest in a land trust over a creditor who was assigned a beneficial interest in the trust as security for a loan but who failed to file a financing statement covering that interest. In Levine, the court stated:

“As well as procuring a writ of execution, plaintiff initiated citation proceedings under section 73 of our Civil Practice Act. Having the status of judgment creditor, this remedy was available to plaintiff and sufficient to establish his claim to the beneficial interest of Land Trust No. 15222. Clearly, plaintiff became a lien creditor as defined in section 9 — 301(3) of the Commercial Code when the writ of execution was placed in the hands of the sheriff. [Citations.] While it may be doubtful whether the plaintiff could effectively enforce his lien by means of the writ of execution, there is no doubt that he could do so through citation proceedings.” 94 Ill.App.2d 43, 54-55, 236 N.E.2d 425, 430.

Mid-West admits that this case would apply to the instant facts but for the fact that the citation court, in the bank’s view, did not have jurisdiction over the bank for failure to comply with Supreme Court Rule 277(d) (Ill. Rev. Stat. 1969, ch. 110A, par. 277(d)). Since the issue of the citation court’s jurisdiction over the bank is not properly before this court, due to the failure of Mid-West to cross-appeal, we accept as unchallenged the findings of the citation court that it had jurisdiction over the bank. By availing themselves of the remedy of citation proceedings, the judgment creditors had established their claim to the beneficial interest in land trust No. 893 to the fullest extent of their judgment.

Mid-West failed to perfect its interest in the trust so as to entitle it to priority over Biel and Erode since it delayed for over 2 years in filing a financing statement with the Secretary of State as required under the then applicable section 9 — 302 of the Comercial Code. (Ill. Rev. Stat. 1969, ch. 26, par. 9 — 302.) While it is true that the presently applicable section 9 — 302(1) (c) (Ill. Rev. Stat. 1973, ch. 26, par. 9 — 302 (1) (c)) omits the perfection by filing requirement on a security interest created by an assignment of the beneficial interest in a trust, including an Illinois land trust, the transition provisions of article 11 make clear that this change in perfection requirements are to no avail to Mid-West as against the earlier lien creditors, Biel and Erode. See Ill. Rev. Stat. 1973, ch. 26, par. 11 — 104.

Furthermore, the principle of res judicata bars reconsideration of the matters litigated and passed upon by the Cook County citation court. Thus, the fact that Biel and Erode were entitled to recover $35,365 plus interest and costs from both James Metcoff and Eleanor Metcoff and that the Metcoffs had been ordered to convey their interest in land trust No. 893 to Biel and Erode must have been conclusively determined when introduced in the Lake County foreclosure court. Katz v. Berkos (1942), 316 Ill.App. 569, 45 N.E.2d 566.

On June 20 and July 5, 1972, the court found that Biel and Erode had proved the existence of a debt, earlier reduced to judgment, from James and Eleanor Metcoff to Biel and Erode in the amount of $42,162 inclusive of interest. Since the court erred in limiting satisfaction of the Biel and Erode lien to $24,331, the judgment below is reversed and modified and the cause remanded with instructions that judgment be entered in favor of Biel and Erode in the amount of $41,792, representing the judgment of $24,331, together with the additional amount due of $17,461 for 100% satisfaction of their prior lien. In addition, in view of the trial court’s findings that the priorities are with Biel and Erode to satisfy their judgment from the sums remaining with the clerk of court after payment of costs, and of the complicity or notice of fraud of Mid-West in the creation of the trust, it also follows that the court erred in awarding Mid-West the $17,641 ostensibly out of the 50% of the proceeds of sale attributed to Eleanor Metcoff. On remand, the court should determine the extent to which Mid-West is entitled to the proceeds of sale remaining in the hands of the clerk of court.

The final issue to be resolved is whether the court erred in denying attorney’s fees and costs to George Erode and Lidschin and Putin, counsel for appellants. The mandate of this court, on which the claim for fees is in part based, has been set out above. The claim for fees, accompanied by a schedule of time which was made without objection as to reasonableness, was limited to the matters of the Metcoffs appeal to this court, the bond forfeiture, and the Metcoffs attempt to gain relief by writs of mandamus and prohibition in the Illinois Supreme Court. In denying fees, the court below relied upon the case of Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E.2d 41.

Appellants cite only that portion of the appellate court order herein distributing the appeal bond which purports to allow fees to counsel for appellants and disregards the context in which the “award” is made. It is clear, however, that the order of this court, when read in full, made no provision for an award of fees to the counsel for appellants. The order allowed fees to be paid to Biel and Erode only if, after the specific distributions had been made, any proceeds of the bond remained available. Had the order of this court been complied with, it is clear that no sums would have been available with which to pay fees to Biel and Erode. The mandate of this court is the law of the case and the trial court was under a duty to comply with it and strictly follow its direction. (People ex rel. McLaren v. DeBoice (1941), 377 Ill. 634, 37 N.E.2d 337; Podbielniak v. Podbielniak (1965), 60 Ill.App.2d 357, 208 N.E.2d 625.) As stated by the Illinois Supreme Court in Thomas v. Durchslag (1951), 410 Ill. 363, 365, 102 N.E.2d 114, and reaffirmed in House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 245 N.E.2d 468, 470:

“ "Where, as here, the directions of a reviewing court are specific, a positive duty devolves upon the court to which the cause is remanded to enter an order or decree in accordance with the directions contained in the mandate. Precise and unambiguous directions in a mandate must be obeyed/ ”

Since full compliance with the order of this court would not entitle the attorneys for Biel and Erode to an award of fees, it is obvious that they cannot successfully base their claim for fees on the failure to comply with this court’s mandate.

Attorneys for Biel and Erode also contend that case law supports their position for fees. In Ritter v. Ritter, supra, the court stated the general rule regarding the award of attorneys fees in Illinois as follows:

“The rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity. [Citations.]” (381 Ill. 549, 553, 46 N.E.2d 41, 43; see also House of Vision, Inc. v. Hiyane, supra.)

Appellants seek to distinguish Ritter by citing Ross v. 311 North Central Avenue Building Corp. (1970), 130 Ill.App.2d 336, 264 N.E.2d 406. In Ross, the court affirmed an award of attorneys fees and costs "according to equitable principles,” to minority shareholders who had maintained a class action against their corporation and directors for fraud. Appellants contend that the common fund concept employed in Ross, i.e., that courts of equity have the authority to allow attorneys’ fees and costs to a party who has, at his own expense, maintained a successful suit for the protection or increase of a common fund, is applicable to the instant case. We disagree.

The premise upon which the decision in Ross is based — that there exist equitable principles which authorize an award of attorneys’ fees in the absence of statute or contract — is of doubtful validity. This is due to the apparent conflict in Illinois as to whether there are any “equitable principles” upon which attorneys fees may be awarded in the absence of statute or contract. (Compare Lee v. Retirement Board (1964), 31 Ill.2d 252, 201 N.E.2d 361, 363, with Trustees of Schools v. Schroeder (1972), 8 Ill.App.3d 122, 289 N.E.2d 247, 252, and House of Vision, Inc. v. Hiyane, supra.) Since Ross is, in our opinion, factually distinguishable from the instant case, we need not decide this apparent conflict. Ross involved a suit in which the plaintiff minority shareholders prosecuted the suit on behalf of the defendant corporation and in which all shareholders of the defendant corporation, including the defendant directors, would benefit. In the instant suit, attorneys for Biel and Erode only incidentally benefited Mid-West by defending the Metcoffs’ appeal and they primarily sought to preserve their own lien interest This is not a case in which attorneys for Biel and Erode sought to preserve or maintain a common fund. In addition, we believe that the record belies appellant’s contention that counsel for Biel and Erode “single-handedly” resisted the appeals and collected the proceeds of the forfeited bond. We, therefore, conclude that it was not error for the court to deny attorney’s fees to the counsel for Biel and Erode.

That portion of the judgment below which restricted satisfaction of the appellant’s hen to 50% of the proceeds of sale of the foreclosed property is reversed and remanded with instructions that judgment be entered in favor of Biel and Erode in the sum of $41,792. That portion of the judgment below which denied attorney’s fees and costs is affirmed. On remand, the court below is also instructed to dispose of the funds remaining available in this cause so as to comply with the April 6, 1972, order of this court, and the balance, if any, in a manner not inconsistent with this opinion.

Affirmed in part; reversed in part, and remanded with instructions.

T. MORAN, P. J., and SEIDENFELD, J., concur.

       The difference between the finding of the court that Biel and Erode had proved that they were judgment creditors of the Metcoffs in the sum of $42,162 (inclusive of interest) and the above total of $41,792 is explained by virtue of the fact that the court further ordered the payment of $370 to Elame Biel in satisfaction of her separate judgment against Eleanor Metcoff. Biel and Erode contend that they are entitled only to tire additional $17,461 amount for 100% satisfaction of their prior lien.


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alan Lambert, Defendant-Appellant.
    (No. 73-240;
    Third District
    November 22, 1974.

      Rehearing denied December 13, 1974.

      James Geis, State Appellate Defender’s Office, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant Alan Lambert appeals from an order of probation revocation and an order dismissing his petition for section 72 relief. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) It appears that in January 1973 defendant Lambert was charged in an information containing one count of burglary and another of felony theft. After a waiver of indictment defendant pleaded guilty of both counts and was sentenced to probation. No appeal was taken from the conviction and sentence. Several months later, a petition to revoke the probation of defendant was filed as against defendant and, following a hearing, his probation was revoked.

During the sentencing hearing which followed, defendant objected to the presentence report in the case for the reason that it had been compiled a few months earlier and did not include, apparently, certain pertinent information as to defendant’s possible rehabilitation. Defendant and his former employer testified at the hearing. Dr. Robert Bower, a director of special education in the Macomb area, also testified. Dr. Bower outlined a coordinated program involving educational facilities, employment, and the probation office. He testified that this program was one which in his opinion would fit the defendant’s particular needs and problems. The doctor conceded that the plan was in the conceptual stage but noted that the agency commitments could be secured within a week. Following Dr. Bower’s testimony, defendant requested a continuance to allow further action on the proposed plan. The trial court noted that there had been several previous continuances at the request of defendant and denied the request for continuance. Following the hearing, the trial court sentenced appellant to a term of 1 to 3 years on each of the counts, with sentences to be served concurrently.

Since the procedures in this case were unique, we should note that the petition under section 72 of the Civil Practice Act, which was filed on July 17, 1973, sought vacation of the original conviction entered pursuant :to a plea of guilty. The petition alleged that defendant had been under frequent institutional care due to a mental condition and that he was of borderline intelligence. The petition asserted that defendant had been unfit for trial at the time of his guilty plea due to his mental condition. The State moved for summary judgment, and recited in such motion that the petition did not allege any new facts which, if known at the trial, would have prevented the judgment of conviction. The trial court granted the motion for summary judgment. As we have indicated, the appellant in this cause appeals both from the order of probation revocation and the order dismissing the petition for section 72 relief.

The first issue raised by defendant is that the waiver of grand jury indictment was defective since it failed to meet the requirements set out in Supreme Court Rule 401(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 401(b)). We note that the imposition of probation following conviction for a criminal offense is a final and appealable order (People v. Nordstrom, 37 Ill.2d 270; Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—2(e)). Any irregularity in the form of conviction originally imposed or as to the imposition of sentence is subject to direct appeal, or, where the issue is appropriate, in a post-conviction proceeding. Irregularities in the original trial, however, are not subject to review in an appeal of an order revoking probation which was granted at the original trial. (People v. Johnson, 126 Ill.App.2d 165.) The Johnson case found that where defendant had pleaded guilty and was placed on probation and took no appeal therefrom, he could not be heard to complain on a later appeal from an order revoking probation, and that a waiver of a trial by jury in the original action was unknowingly done, since such contention amounted to a collateral attack on the earlier judgment. (People v. Floyd, 14 Ill.App.3d 1009; People v. Nickols, 15 Ill.App.3d 213, 303 N.E.2d 565 (Third Dist. 1973).) In the Nichols case, which we befieve is determinative of the present issue, our court held that a person who had previously been placed on probation could not allege violations of Supreme Court Rules 401 and 402 in the underlying conviction on an appeal from the order revoking probation which had been granted as a result of the prior trial. We, therefore, conclude that appellant in this case is not entitled to relief on the issue raised in this appeal as noted"in the Nichols case.

A contention is also made by appeHant that he was improperly convicted of two crimes which arose from the same conduct, not independently motivated. Since this issue would necessarily be resolved by the same rule as expressed in the Nichols case, and since the assertion by defendant would reaUy amount to a challenge to the propriety of the underlying conviction, a review of such conviction is not permissible upon the present appeal.

Two additional issues are properly before this court since they involve sentence imposed after the finding of violation of probation. Defendant contends first that he was improperly sentenced at the conclusion of the revocation hearing, since the presentence report before the court, he states, was inadequate and outdated and that a continuance aimed at correcting the deficiency was improperly denied. While we agree that it is desirable to have a complete presentence report, any inadequacy in the report was clearly cured by the testimony of Dr. Bowers, director of special education, to whom we have referred. The purpose of the presentence report was to provide the judge with sufficient information so that he could consider all factors which would be pertinent in imposing sentence. Certainly, as a result of the report as it was actually submitted, coupled with the testimony of Dr. Bowers, the trial judge was advised as to all pertinent information. We believe that the use of the presentence report in the situation before us, on the record, was not reversible error.

Similarly, the granting of a continuance normally is within the sound discretion of the trial judge. It is the contention of the defendant that the failure to continue the sentence hearing until it could be determined whether the program that Dr. Bowers had outlined was viable was an abuse of discretion. Defendant was already on probation and was unable to adhere to the terms of the probation granted, and defendant had previously been granted continuances relating to the issue of sentencing. In view of the fact that the proposed program had a degree of uncertainty, we do not believe that we, sitting as a court of review, on the basis of the record before us, could determine that there was an abuse of judicial discretion for the trial court, in effect, to determine that further evidence in support of another program which did not involve incarceration would not be helpful to the court. Under the facts in the case, therefore, we do not believe that the denial of the continuance is a basis for reversal of this cause.

A final contention is made by defendant that he is entitled to an evidentiary hearing on whether he was mentally competent to plead guilty to the charges in the original trial. The competency issue was asserted for the first time in the section 72 petition. If the issue presented by the petition had alleged facts which, had they been known by the trial court, would have raised a bona fide doubt as to defendants competency to plead, it would have been an issue which should have been considered by this court (People v. Walton, 15 Ill.App.3d 896, 305 N.E.2d 395), In order to obtain relief, however, the facts must be decisive in nature and not merely cumulative or additional to those which were presented at the trial. (See cases at I.L.P. Judgments § 170 (1956).) If the facts are alleged in the petition which would in fact not be merely cumulative, then petitioner would have been entitled to introduce evidence to prove those allegations, and, if able to sustain the burden of proof, might have been entitled to relief. The prosecutor does not challenge the propriety of section 72 as a vehicle for asserting the issue of incompetefice, but instead contends that relief would be improper in this case for the reason that the petition fails to allege any facts which were not known to the trial judge. The State moved for summary judgment on that basis. Defendant admits that the trial judge was aware of certain institutional care he had undergone. He claims, though, that the facts alleged in the section 72 petition were of a much higher degree than those available to the trial judge. Generally, facts which are more specific than those previously disclosed are more properly classified as cumulative than decisive and are thus not sufficient to entitle petitioner to section 72 relief. On the basis of the record before us, therefore, it appears that the determination of the trial judge that the allegations contained in the section 72 petition were merely cumulative should not call for a reversal on the basis of the record before us.

For the reasons stated, tire orders of the Circuit Court of McDonough County will be affirmed.

Affirmed.

SCOTT, P. J., and DIXON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mack T. Cole, Defendant-Appellant.
    (No. 74-10;
    Third District
    November 22, 1974.

      James Geis, of State Appellate Defenders Office, of Ottawa, for appellant.
    David DeDoncker, States Attorney, of Rock Island (Richard F. Doerr, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Mack T. Cole, pleaded guilty to a charge of voluntary manslaughter on June 14, 1971, and was thereupon sentenced to a term of 12 to 20 years. He seeks review of the sentencing order in this court.

On a previous appeal in this court, his prior sentence was vacated and the case was remanded to the Circuit Court of Rock Island County for a new sentencing hearing (People v. Cole, 12 Ill.App.3d 1003, 299 N.E.2d 394 ( 3rd Dist. 1973)). On November 16, 1973, after the mandated sentencing hearing, the trial court imposed a sentence of not less than 6 years and 8 months nor more than 20 years. Cole had originally pleaded guilty to voluntary manslaughter and the sentence was one which followed a negotiated plea. The State’s Attorney had recommended a sentence of 12 to 20 years.

On this appeal, defendant directs the court’s attention to the fact that voluntary manslaughter is a Class 2 felony for which “the minimum term shall be one year unless the court, having regard to the nature and circumstance of the offense and the history and character of defendant, sets a higher minimum term * * (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).) It is contended by defendant that the “nature and circumstance of the offense and the history and character of defendant’’ (as shown by the evidence) did not justify the imposition of the 6 year 8 month minimum term. Our attention was directed to the fact that since 20 years is the highest possible maximum term for a Class 2 felony and the minimum may not exceed one-third of the maximum, the min'inium term actually imposed by the trial court in this case was the highest authorized by the legislature. The sentence was, however, within the authorized range provided by statute, and the issue is whether the court abused its discretion in imposing sentence.

Defendant had pleaded guilty to the killing of his wife. He was in-dieted for murder and pleaded guilty on the plea agreement to the lesser included offense of voluntary manslaughter. Defendant claimed that he had been spending some $200 a week to support his wife’s drug habit while trying to rid her of this problem. The wife had finally moved out of the family home. A few days after she moved out, Cole went to his house to get $800 he had set aside for house payments. He found the home ransacked and the money missing. He went to see some friends (narcotics contacts) of his wife and she came to the place some minutes later. After an argument he got the money back from her, but as he went back to his car, he said someone shouted a warning and he turned to see what he thought was a gun in his wife’s hand. He drew a gun of his own and shot her twice. Police reports had indicated that Cole had gone after his wife as soon as she arrived, shooting her twice at first and then reloading his gun and shooting her twice more while she was lying on the ground. No weapon was found in the victim’s possession. Either of the versions told by defendant or the police could be compatible with the crime of voluntary manslaughter by reason of passion or provocation. It is clear, also, that Cole went to the police station within an hour after the incident. Both parties agree that the victim was shot four times.

Defendant cites the case of People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731, as the type of case to justify the. minimum sentence. In that case defendant was convicted of voluntary manslaughter following the killing of the victim dming a fight. Defendant then ran over the corpse twice with his car, stripped the body, and threw it in a field. It is true that no such aggravating conduct exists in the present case, although the victim was shot four times.

It has been directed to our attention that as far as the “history and character” of defendant is concerned, the record shows that he was married for over 10 years, had two children by adoption and had been steadily and gainfully employed in his years living in Rock Island. He owned a restaurant and often worked two jobs at the same time by reason of which he earned $300 to $400 a week. His prior record consisted only of one conviction for breach of the peace in 1958, for which he paid a $50 fine. Witnesses at the hearing testified to his good reputation and charitable works in the community.

The trial court also considered a presentence report filed by a probation officer. While such reports are often extremely helpful and their use is specifically authorized by the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—1(a)(2)), the record here shows nothing in the report on which the court could heavily rely for the purpose of supporting the increased sentence other than the nature of the crime itself. There is an assertion in the report that defendant had a violent temper but no factual basis for this conclusion was shown. There was a report also of an arrest for assault with a deadly weapon but the charge was dropped. In essence, defendant had no criminal record other than the breach of peace violation. The probation officer, who referred to some “hostility” in the community toward defendant, admitted he had no idea such hostility actually existed and the extent to which it might run.

While information contained in presentence reports must necessarily consist in part of hearsay, and other normally inadmissible evidence, we believe that the statutory authorization of the reports does not mean that the trial court must give great weight to the contents of the report.

In taking into consideration the nature and circumstances of the offense and the history and character of defendant as shown by the record, we believe that the trial court exercised its discretion properly. At a eourt of review, we cannot substitute our judgment for that of the trial court in imposing sentence unless there has been an abuse of discretion or unless the sentence is clearly unjustified on the record in the cause.

Defendant had also contended in this court that the trial court relied in part on the murder indictment, although the plea was to voluntary manslaughter. While it could be improper to sentence a defendant based on the indictment instead of the final charge (People v. Cooke, 117 Ill.App.2d 296, 254 N.E.2d 293), it appears from the record that the court merely restated the facts of the case and was not using the murder indictment to justify a higher sentence.

For the reasons stated, the judgment of the Circuit Court of Rock Island County and the sentence of imprisonment imposed therein is herewith affirmed.

Judgment and sentence affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Lee Pettis, Defendant-Appellant.
    (No. 12160;
    Fourth District
    November 27, 1974.

      John F. McNichols and Theodore A. Gottfried, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield'(James W. Jerz and Charles D. Sheehy, Jr., both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of involuntary manslaughter following a jury trial upon charges of murder, voluntary manslaughter and involuntary manslaughter. He appeals the conviction and the sentence of 3 to 7 years.

It is urged as reversible error that the court improperly instructed the jury as to the definition of involuntary manslaughter, that the court refused to instruct upon defendant’s theory that the killing was accidental, that defendant was not proven guilty beyond a reasonable doubt and that there was an abuse of discretion in denying probation.

The decedent, Jesse Pettis, was an older brother of defendant. The former was 28 years of age, 5 feet 6 inches tall and weighed 150 pounds. Defendant was 20 years of age, 6 feet 2 inches tall and weighed 150 pounds. A brother, David Pettis, aged 18, was a witness to most of the events preceding the homicide which-occurred at the home of a sister, Mrs. Moore. Decedent died within minutes following the penetration of his heart by a homemade “spear.”

The record discloses that Jesse Pettis met defendant and the brother, David, at about 5:30 P.M. on August 11, 1972. Jesse demanded that defendant pay him a debt of $30. It appears that defendant had the money but wished to use it to purchase an automobile. The dispute continued at various times and places throughout the evening. On one occasion decedent struck defendant in the mouth with his fist with enough force to loosen or break a tooth. The parties met again at the home of Mrs. Moore, sometime after 10 o’clock, and the argument continued.

David testified that as defendant was seated on a couch, decedent again threatened to knock his teeth out, whereupon defendant kicked over a coffee table between them and took the homemade spear from the wall, telling decedent to stay away. As the argument proceeded, Mrs. Moore left the house to call the police. David testified that decedent grabbed the spear from defendant with both hands. On cross-examination he stated that decedent “snatched” the spear. At this time David was standing in the adjacent kitchen. He testified that he did not see defendant make any threatening move and that he did not see the decedent stabbed by the spear. Defendant did not testify. Defendant and David ran from the house. Subsequently, David was asked by the police where defendant was and he rode with them to look for defendant, but did not tell where he was. Ultimately, defendant surrendered himself at the police station. No other witness could testify concerning the events with the spear. The record shows that there were blood stains from the front door of the house to the back door in the kitchen where the body of decedent was found. The evidence shows that the furniture in both the living room and in the kitchen was overturned and tumbled about.

The evidence is that after fleeing from the Moore house, defendant that evening told his mother: “I just cut Jesse but I don’t know how bad.” When defendant learned of the death of his brother, he stated to David: “He [defendant] didn’t mean to do it.”

Defendant presented to the jury both theories of self-defense in the use of the spear and accident during a struggle for such weapon. The jurors saw and heard the witnesses and had occasion to weigh such testimony in the light of the testimony of events preceding the death, the physical evidence suggesting a struggle in the two rooms of the house, together with the statements made by defendant in the nature of admissions. An inculpatory admission may be sufficient to sustain a conviction. (People v. Puckett, 6 Ill.App.3d 206, 285 N.E.2d 258.) The record discloses issues of fact for the jury, and we are not persuaded that there was a failure of proof beyond a reasonable doubt.

The court gave an instruction defining involuntary manslaughter in the language of IPI — Criminal 7.07. He contends that such instruction was error in that it did not contain the statutory language “without legal justification” found in section 9 — 3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3). The contention, however, is without merit, for the record shows that rather than objecting to such instruction trial counsel expressly agreed that it should be given. Again, the issues instruction concerning involuntary manslaughter was in the form and substance of IPI — Criminal 25.05, which includes as an element that defendant was not justified in using the force which was used. Thus, the series of instructions actually included the element of justifiable use of force for which defendant contends. We find no prejudice to defendant.

There should be no implication from this conclusion that the words “without legal justification” are to be considered a necessary element of the offense of involuntary manslaughter. (See People v. Harvey, 3 Ill.App.3d 774, 278 N.E.2d 417 (affd, 53 Ill.2d 585, 294 N.E.2d 269.) We note that the offense of involuntary manslaughter is stated in terms of reckless conduct. Section 4 — 6 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 4 — 6) defines “recklessness”. IPI — Criminal 5.01 instructs the jury upon the definition of “recklessness” in substantially the language of the statute and is to be given, as it was hete, when the definition of involuntary manslaughter (IPI — Criminal 7.07) is given. Upon such definition of the offense, a claim of self-defense is inconsistent and contradictory in terms. People v. Mitchell, 12 Ill.App.3d 960, 299 N.E.2d 472.

Defendant urges that the court erred in refusing to instruct the jury concerning accident or misadventure in the foUowing language:

“When a person dies from an accident or misadventure, no other person is guilty of a crime.”

People v. Witherspoon, 55 Ill.2d 18, 302 N.E.2d 3, holds that such instruction need not be given and is dispositive of the issue.

Defendant argues that the trial court abused its discretion in refusing to grant probation to defendant. It is said that the court’s colloquy at sentence shows a predisposition in the trial court to deny probation. A more correct reading of the colloquy is that the court denied probation because of his view of the seriousness of the offense. Such is a proper factor to be considered by the court. People v. Hamby, 6 Ill.2d 559, 129 N.E.2d 746.

The trial court heard the testimony both at trial, upon the probation hearing and at a hearing in aggravation and mitigation. He thus was well informed both as to the offense and the background of the defendant. It is the function of the trial court to exercise discretion in granting or denying probation, and such discretion will be affirmed when it is predicated upon adequate information concerning the offense. (People v. Pelikan, 6 Ill.2d 275, 128 N.E.2d 741.) It does not appear that the court acted arbitrarily or in abuse of discretion. People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300.

The case is on direct appeal and under the rule of People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, we find that this sentence is not in accord with the provision of (Ill. Rev. Stat. 1971, ch. 38, par. 1005 — 8—1(c) (4)), which provides that for a Class 3 felony, the minimum term of imprisonment shall not be greater than one-third of the maximum.

Upon the authority of Supreme Court Rule 615 to modify sentence the minimum sentence is modified to conform to the statutory provision, and as modified, the minimum sentence shall be not less than 2 years and 4 months and the maximum shall not be more than 7 years.

With the sentence so modified the conviction is affirmed and the cause is remanded to the circuit court of Sangamon County with directions to issue an amended mittimus reflecting such modification.

Affirmed with directions, cause remanded with directions.

SMITH, P. J., and SIMKINS, J., concur.

       “(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

       “A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard, constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. ° e *”


author: Mr. JUSTICE GOLDBERG

text:
    Frank Gatto, Adm’r of the Estate of Sophie Gatto et al., Plaintiffs and as Assignees of Third-Party Judgment-Appellees-Respondents, v. Walgreen Drug Co. et al., Defendants-Third-Party Plaintiffs and Assignors of Third-Party Judgment-Appellees-Respondents—(Calumet Flexicore Corporation, Third-Party Defendant-Appellant-Petitioner.)
    (No. 59794;
    First District (1st Division)
    August 19, 1974.

      Rehearing denied November 4, 1974.

      Peterson, Ross, Rall, Barber & Seidel, of Chicago (Thomas K. Peterson, Robert S. Milnikel, and William W. Jones, of counsel), for Calumet Flexicore Corp.
    Moriarty, Rose & Hultquist, Ltd., of Chicago (Maurice James Moriarty and Robert C. Hultquist, of counsel), for Walgreen Drug Co.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

This opinion presumes that the reader is familiar with the previous opinion of tin's court in this same litigation. (Gatto v. Curtis, 6 Ill.App.3d 714, 286 N.E.2d 541, leave to appeal denied, 52 Ill.2d 597.) In December of 1972, after conclusion of all appellate procedure, Calumet Flexicore Corporation (Calumet) petitioned the trial court for relief from the judgment for indemnity theretofore recovered against it by the owners of the beneficial interest in the land trust which held legal title to the property in question (collectively referred to in our previous opinion as “Lessors”) which was assigned to plaintiffs. Thereafter a series of petitions, motions and amendments, which will be described later in this opinion as required, were filed. All of these legal maneuvers, and many hearings before several judges of the circuit court, resulted in a stay of execution upon the judgment and in the entry of two orders; one on June 1, 1973, which denied petitions and motions theretofore filed by Calumet for vacation of the judgment against it, and another on August 21, 1973, which denied Calumets motion to limit execution. Calumet has appealed from both of these orders.

No evidence was heard by the trial court although numerous affidavits and other documents were filed. In our opinion, the taking of evidence is not required for decision of the issues properly before us. Before stating the contentions of the parties in their briefs in this court, we will review and summarize the massive and repetitious record. We will attempt to confine this statement to material matters so that the reader of this opinion will not be confronted with the manifold difficulties encountered by the writer. Perhaps the subheadings will assist in presentation of the pertinent issues.

I.

Previous Motions In The Appellate Court.

Our former opinion, filed June 26, 1972, noted the suggestion of the death of plaintiff, Sophie Gatto, on January 17, 1970. The same motion by the surviving plaintiff which made this suggestion set forth that Lessors had assigned the judgment which they had recovered against Calumet, in the amount of $120,000, to plaintiff. The parties to the assignment had agreed that if the judgment against Calumet was affirmed on appeal, $60,000 thereof would be paid to the Lessors plus one-half of the expenses of the appeal. In addition, there was a substitution of attorneys so that Lessors were represented in the initial appeal by the same counsel who represented the plaintiffs. (Moriarty, Rose & Hultquist, Ltd.) See 6 Ill.App.3d 714, 720, 721.

On July 17, 1972, Calumet filed in this court a motion to reduce the third-party judgment against it to $60,000, which sum was described as being the amount which the Lessors paid to plaintiffs in release and discharge of their obligation under the judgment. This motion was supported by an affidavit by one of the trial attorneys for Calumet. It stated that on July 6, 1972, he had been told in a telephone conversation with one of the trial attorneys for plaintiffs, that prior to the death of plaintiff, Sophie Gatto, the judgment of plaintiffs against the Lessors was satisfied for the sum of $60,000. The affidavit further stated that one of the trial attorneys for the Lessors had refused to provide any information. Attorneys for plaintiff filed a response to this motion including an affidavit which set forth a totally different version of the telephone conversation. This affidavit stated that the assignment of judgment contained the full and complete agreement between plaintiffs and the Lessors. On August 3, 1972, this court ordered that the motion to reduce the judgment “be denied without prejudice and with the suggestion that this motion be presented to and acted upon by the Trial Court.”

II.

Calumet’s Petitions For Stay Of Execution, Etc.

On December 8, 1972, Calumet filed its petition for stay of execution in the trial court. This alleged that, despite repeated requests, opposing counsel representing plaintiff and the Lessors had refused to disclose to Calumet the details of the settlement agreement and arrangement between them other than the assignment of judgment. Calumet prayed a stay of execution pending determination of the questions of fact surrounding this situation. Plaintiff filed a motion to dismiss this petition, raising the point that the petition was barred by limitations. Ill. Rev. Stat. 1971, ch. 110, par. 72.

On December 13, 1972, Calumet filed a petition for reduction of the judgment against it to the amount actually paid to plaintiffs on behalf of the Lessors, for stay of execution and for leave to engage in discovery proceedings. This petition was expressly predicated upon section 72 of the Civil Practice Act and claimed fraudulent concealment from Calumet as the basis for delay in seeking relief. Ill. Rev. Stat. 1971, ch. 110, par. 72(3).

On January 19, 1973, Calumet filed an amended motion and a lengthy amended petition. This petition also prayed for discovery, for relief under section 72 of the Civil Practice Act and for partial satisfaction of the judgment against it to conform to the amount actually paid by Lessors to plaintiff.

III.

Subsequent Proceedings And The Agreement Not To Execute, Dated August 1, 1969.

After the filing of the above pleadings, which included a large number of exhibits such as other motions, affidavits and even briefs, which need not be described in detail, a lengthy hearing was conducted by the trial court on February 15, 1973. After studying the pleadings and all other matters and hearing argument of counsel, the court announced that he would enter an order granting counsel for Calumet the right to take depositions of certain parties on written interrogatories.

On February 22, 1973, before the court had entered any order, counsel for plaintiff communicated with the attorney for Calumet, and with the trial judge. The lawyers met for a conference with the judge. Counsel for plaintiff there tendered to the attorney for Calumet a copy of a five-page agreement handprinted on legal size ruled paper of the type frequently used by attorneys, signed by plaintiffs Frank Gatto and Sophie Gatto, now deceased, and having their signatures on the margin of each page. The agreement was witnessed by two trial attorneys for plaintiffs. The agreement is dated August 1, 1969, which was a Friday. The trial of the original action in the circuit court had commenced on Monday, July 28, 1969, and the cause remained on trial until judgment was entered on the jury’s verdicts on Wednesday, August 13, 1969.

This agreement provided that in consideration of the sum of $80.000, receipt of which was acknowledged by Frank and Sophie Gatto, from the Lessors, said plaintiffs agreed not to execute on any judgment against the Lessors rendered in the cause then on trial, or in subsequent litigation involving the same occurrence, in any amount in excess of $80,000. Plaintiffs also acknowledged receipt of $15,000 paid by other defendants Louis F. Sladky and others, lessees of the involved premises, in consideration of which plaintiffs agreed not to execute in any amount in excess of $15,000 against these defendants.

The agreement further recited the pendency of third-party actions and counterclaims brought by both of said groups of defendants' and provided that in the event of recovery by the Lessors in such proceedings, whether in excess of or less than $80,000, any amount up to and including $80,000 should become the property of the Lessors, or the entity which had advanced $80,000 to plaintiffs, and any amount in excess should be paid to plaintiffs. A similar covenant was stated regarding payment by the lessees to plaintiffs. The agreement also provided that if judgments were rendered in such third-party action, or counterclaims, the respective defendants had the option of collecting the judgment themselves, or permitting plaintiffs to do so at their own expense.

The agreement also contained a paragraph which was deleted therefrom. This deletion was acknowledged by the signatures of the trial attorneys for plaintiffs, for the Lessors and for tire lessees, Louis F. Sladky and other defendants. (The jury had returned a verdict in favor of the lessees, Sladky, et al., and against plaintiffs.)

The record shows that the sum of $80,000 mentioned in the agreement was actually paid to plaintiffs or their attorneys. A copy of the insurance draft by which this was accomplished was produced before the trial judge.

IV.

Plaintiffs Motion for Summary Judgment On Calumet’s Second Amended Petition.

The above itemization of pleadings filed is not yet complete. On March 16, 1973, plaintiff filed a motion for summary judgment. This motion set forth that the attorney for Calumet had knowledge of the payment made during trial and knew the exact amount of that payment more than 2 years prior to the filing of his petition in this proceeding. The motion prayed for summary judgment on the ground that there was no issue of fact between the parties but that the limitation period contained in section 72 of the Civil Practice Act had expired. On April 13, 1973, Calumet filed a reply to this motion in which knowledge of the payment was denied and the allegation was made that counsel for plaintiff had repeatedly refused to furnish the necessary information. The reply further set out that the proceeding was not brought under section 72 of the Civil Practice Act, the facts surrounding the transaction were fraudulently concealed and discovery proceedings were required.

In addition, on April 13, 1973, with leave of court, Calumet filed a second amended petition. This document alleged that the agreement between plaintiffs and the Lessors had been fraudulently concealed so that the entire initial jury trial “was a sham and a charade” and the resulting verdict and judgments were void, thus making the third-party judgment against Calumet also void. Calumet prayed for vacation of the judgments against the Lessors and of the third-party judgment in favor of the Lessors and against Calumet, for dismissal of the original and third-party complaints and for full discovery. Calumet further requested relief by way of an order for the attorneys for plaintiff and the Lessors to respond to the petition in their individual capacities; for taxation of all attorneys’ fees, costs and other expenses incurred by Calumet against the attorneys; for exemplary damages; and for full discovery,

V.

The Final Order Of June 1, 1973.

After hearing argument of counsel and having examined briefs and other documents, the court entered the final order on June 1, 1973, disposing of Calumet’s second amended petition to vacate the judgments and for other relief. The court found that there was nothing to indicate that the petition came within section 72(3) of the Civil Practice Act, providing that time be tolled because of fraudulent concealment, but that the court had jurisdiction “to determine the exact amount of the judgment” and it was necessary in making that determination to examine the legal effect of the agreement not to execute and the assignment of judgment. The court accordingly ordered that plaintiff’s motion for summary judgment was taken as a response to Calumet’s second amended petition but was not ruled upon because considered moot; the petition for vacating the judgments and dismissing plaintiff’s complaint and the third-party complaint against Calumet was denied; the petition for discovery and for imposition of sanctions against those persons alleged to have participated in the purported scheme to defraud Calumet was denied; the petition requiring various parties and corporations to respond thereto was denied; the petition for an order taxing, as damages, various claimed costs and expenses sustained by Calumet was denied; the petition for further relief was also denied. The order directed that the stay of execution remain in effect until further order of the court. Calumet was granted leave to file its motion to limit the amount for which plaintiff may execute and plaintiff was directed to file responsive pleadings thereto with the cause being set for later hearing.

VI.

Calumet’s Motion To Limit Execution And Motion Of Plaintiff To Dismiss.

On June 15, 1973, Calumet filed a motion to limit execution. This lengthy motion reargued the entire matter including a citation of legal authorities. In effect, it moved the court to fix the amount to be paid in full satisfaction of the third-party judgment against Calumet and to limit execution or other process to the amount thus found due.

On July 2, 1973, plaintiff filed a motion to dismiss this motion. This document discussed the legal authorities cited by Calumet and prayed that the motion be denied primarily for lack of jurisdiction. On July 9, 1973, Calumet filed a reply to this motion to dismiss the previous motion of Calumet. This document is primarily a repetition of the arguments already made by Calumet.

VII.

The Memorandum Opinion By The Trial Court.

On July 31, 1973, after another lengthy hearing, the trial court filed a memorandum opinion which entered into a careful analysis of the matter before the court. It concluded that Calumet’s motion to limit execution did not come within section 72 of the Civil Practice Act since it was a proceeding concerning satisfaction of the judgment as distinguished from "motions to modify tire judgment which were theretofore denied. The learned trial judge then analyzed the agreement not to execute in the light of the opinion of the Supreme Court in Reese v. Chicago, B. & Q. R.R. Co., 55 Ill.2d 356, 303 N.E.2d 382, which had been filed a short time previously, on June 25, 1973. The memorandum opinion found that there was no prejudice or fraud against Calumet in the original trial and that no specific charges of fraud had ever been made concerning defects in the trial. The memorandum accordingly adopted the rationale of Reese, held the agreement not to execute valid and denied Calumet’s motion.

VIII.

The Final Order Of August 21, 197S.

Calumet’s Notice Of Appeal Filed September 13, 1973.

On August 21, 1973, Calumet filed a lengthy motion for rehearing or for clarification of the memorandum opinion. On August 21, 1973, the court entered a formal order denying Calumet’s motion to limit execution in accordance with the memorandum opinion. On September 13, 1973, Calumet filed its notice of appeal praying reversal of the orders of June 1,1973, and August 21,1973.

IX.

Contentions By The Parties In This Court.

Calumet contends that the trial court had a duty to inquire and to' allow inquiry by Calumet into the merits of the allegations of fraud before exercising its jurisdiction to deny relief. This is supported by the corollary proposition that in the absence of a justiciable controversy a trial is a fraud upon the court. Calumet also urges that if execution on the judgment against it is to be allowed, the trial court erred when it denied the motion to limit execution. In response, plaintiff contends that the agreement dated August 1, 1969, as amended by the assignment of judgment dated January 27, 1970, is a loan agreement of the kind held proper by the Supreme Court of Illinois. This contention is supported by two corollary principles that the parties intended a loan agreement as distinguished from a settlement and the execution of this type of agreement does not require dismissal of the lender. Plaintiff also urges that the record is devoid of evidence that the agreement of August 1, 1969, or the assignment of judgment affected the judgments entered against Calumet; there is no evidence of fraudulent concealment which would constitute the type of extrinsic fraud which would prevent the court from acquiring jurisdiction and would constitute grounds for vacating the judgment. Plaintiff finally urges that Calumet has waived its right to argue matters relating to alleged fraudulent concealment since the trial court’s order of June 1, 1973 was final and appealable and the only remedy available to Calumet is found in section 72 of the Civil Practice Act.

X.

Opinion

We are required at the outset to solve a jurisdictional problem. As above noted, the trial court’s order of June 1, 1973, disposed of all prior pleadings by Calumet (to and including the second amended petition filed April 13, 1973) insofar as they sought relief initially predicated upon vacation of the judgment against Calumet. The order entered August 21, 1973, denied the written motion of Calumet to limit execution. Calumet filed its notice of appeal on September 13, 1973. This notice prayed for reversal of both orders. The notice was filed within 30 days after the second order but far in excess of 30 days after the earlier order. See Supreme Court Rule 303(a), 50 Ill.2d R. 303(a).

Plaintiff filed in this court a motion to dismiss the appeal based upon the tardiness of the notice of appeal with reference to the order of June 1, 1973. Calumet responded. Upon, due deliberation, we denied-this motion. The point is now urged again in plaintiff’s brief and there is a full response in the reply brief of Calumet. In our opinion, as this court has quite recently held, the matter of our “jurisdiction is always open, and the court may of its own motion dismiss an action where want of jurisdiction appears.” Weber v. Northern Illinois Gas Co., 10 Ill.App.3d 625, 629, 295 N.E.2d 41, citing Village of Glencoe v. Industrial Commission, 354 Ill. 190, 188 N.E. 329.

After examination of the record and briefs, we have concluded that we have no jurisdiction regarding the attempted appeal from the order of June 1, 1973, but we do have jurisdiction as regards the appeal from the order of August 21,1973.

As shown, the two orders dealt with diametricaUy different categories of relief. The order of June 1, 1973, decided only matters raised in petitions and motions which would be cognizable under section 72 of the Civil Practice Act. The order of August 21, 1973 dealt with a type of relief involving the inherent power of the court to control and deal with its own process. Since the attempt to vacate the judgment was not made until far more than 30 days after the rendition thereof, the petition necessarily constituted a new action under the authority of section 72. This conclusion foUowed regardless of the label affixed to any or all of these petitions, although in certain instances relief was specificaffy claimed under section 72.

In this regard, it is apparent that section 72 of the Civil Practice Act is intended to eliminate all previously existing remedies for obtaining relief from final judgments more than 30 days after their entry. Thus, it has been held that motions seeking relief from final judgments, which are made after expiration of the 30-day period stated in the Civil Practice Act, are necessarily limited to section 72 and must be construed as an attempt to use this section. Schuman v. Department of Revenue, 38 Ill.2d 571, 573, 232 N.E.2d 732; Trisko v. Vignola Furniture Co., 12 Ill.App.3d 1030, 1033, 299 N.E.2d 421, and Mehr v. Dunbar Builders Corp., 7 Ill.App.3d 881, 883, 289 N.E.2d 25.

Since all of the proceedings taken prior to June 1, 1973, and disposed of by the order entered on that day, were under the legal authority of section 72 of the Civil Practice Act, the order of June 1, 1973, was necessarily final and appealable. Rule 304(b)(3) of the Supreme Court (50 Ill.2d R. 304(b)(3)) specifically makes appealable, without special finding of any kind, “A judgment or order granting or denying any of the relief prayed in a petition trader section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, § 72).” The notice of appeal filed September 13, 1973, was impotent to vest jurisdiction in this court for review of the order of June 1, 1973. In this regard, the situation presented here by the filing of one notice of appeal directed to two separate orders is analogous to the situation in Weber v. Northern Illinois Gas Co., 10 Ill.App.3d 625, 295 N.E.2d 41, in which this court dismissed an. attempted, appeal involving one count of a complaint and proceeded with the appeal involving the other count. We arrive at a similar decision here and hold that we have no jurisdiction to consider any of the issues raised by Calumet in the attempted appeal from the order of June 1, 1973.

We have jurisdiction over the issues raised by the notice of appeal from the order entered August 21,1973,- which denied the motion of Calumet to limit execution. This inquiry involves, first, the legal issues surrounding the question of the validity and effect of the agreement not to execute. We have above summarized the provisions of this agreement entered into on August 1, 1969, between plaintiffs and the Lessors and witnessed by their respective attorneys. Ascertainment of the legal effect of this agreement requires analysis of Reese v. Chicago, B. & Q. R.R. Co., 55 Ill.2d 356, 303 N.E.2d 382.

In Reese, plaintiff brought suit against the Railroad and Koehring Company. The case against the .Railroad was based upon the Federal Employers’ Liability Act. Plaintiff sought to impose strict liability upon Koehring, the manufacturer of an allegedly defective crane. The Railroad filed a counterclaim against Koehring for indemnity. Immediately before trial, plaintiff and the Railroad executed an agreement. The Railroad loaned plaintiff $57,500 which she promised to pay, without interest, from any judgment that she would be legally entitled to collect against Koehring. The obligation to repay the loan attached only to the first $57,500 thus to be collected and not to any amount in excess thereof. On plaintiffs motion, the Railroad was then dismissed as party defendant without prejudice. After trial by the court, judgment was entered against Koehring for $149,000 and in favor of Koehring on the counterclaim by the Railroad. The trial court ruled that the loan agreement was actually a covenant not to sue and deducted the amount of the loan from plaintiffs judgment. This court (Second District) held to the contrary and differentiated the loan agreement from a covenant not to sue. The coiut held that effect should be given to the “plain terms” of the loan agreement. (5 Ill.App.3d 450, 456, 457.) The supreme court affirmed this result.

In the case before us, plaintiffs agreed that they would not execute on any judgment against the Lessors in excess of $80,000. The first $80,000 which might be recovered from any judgment was to be paid directly to. the Lessors but any amount in excess thereof would become the property of plaintiffs. There are, however, significant and governing distinctions between the case before us and Reese. In Reese, as in the instant case, the agreement was between plaintiff and an alleged tort-feasor who was a party defendant to plaintiff's suit. In Reese, the contracting defendant was dismissed and plaintiff was left to pursue her remedy against the remaining defendant. In the case at bar, plaintiffs had no direct cause of action against Calumet, which had not been joined as a party defendant to their complaint. The sole and only liability sought to be enforced against Calumet is that of a third-party defendant indemnitor under a theory of active-passive negligence and the attempted imposition of this liability was invoked by a third-party plaintiff. Thus, in Reese, the two parties involved with plaintiff were codefendants. In the instant case, the two parties are not codefendants but occupy the legally separate relationship of indemnitor and indemnitee.

Furthermore, in Reese, after trial there was a judgment holding Koehring not liable as indemnitor. In the case before us, the jury found against Calumet as indemnitor and in favor of the Lessors as indemnitees and that judgment has been affirmed by this court with approval of that ruling by the highest court in Illinois. In Reese, there was no limitation, beyond adequacy of damages, upon the amount which plaintiff could recover from Koehring as a party defendant. In the case before us, the relation between Calumet and the Lessors, being solely one of indemnity, necessarily limited the liability of Calumet to the amount of the liability actually imposed upon the Lessors as third-party plaintlffs-indemnitees.

The above discussion regarding Reese is equally valid and applicable to other cases dealing with so-called loan agreements such as American Transport Co. v. Central Indiana Ry. Co., 255 Ind. 319, 264 N.E.2d 64, and Northern Indiana Public Service Co. v. Otis, 145 Ind.App. 159, 250 N.E.2d 378. Regardless of the degree of congruity between the agreement before us and those in Reese and the other cited cases, the particular legal relationship existing between the parties here prevents imposition upon Calumet of any liability greater than that assumed and discharged by its indemnitee. The liability of the indemnitor is necessarily equal to and coextensive with that of the indemnitee.

In situations in which a judgment in favor of plaintiff against a defendant tort-feasor is reversed, it follows necessarily that an accompanying judgment for indemnity in favor of this defendant, as third-party plaintiff, against a third-party defendant must also be reversed, “* * ” as it is dependent upon the outcome of the case in chief.” (Jones v. S. S. & E. Corp., 112 Ill.App.2d 79, 97, 98, 250 N.E.2d 829, citing Bohannon v. Ryerson & Sons, Inc., 15 Ill.2d 470, 475, 155 N.E.2d 585.) In situations in which the judgment against a third-party defendant, who is the indemnitor, is less than the judgment against the defendant (third-party plaintiff) who is the indemnitee, the amount of recovery against the third-party defendant is properly increased so as to accomplish complete indemnity. (Deel v. United States Steel Corp., 105 Ill.App.2d 170, 185, 245 N.E.2d 109.) The very essence of indemnity is to hold the indemnitee harmless. As a result of the application of the theory of indemnity, he should be relieved completely from his liability but he should not be permitted to make a profit at the expense of the indemnitor.

The agreement to limit execution which is before us thus necessarily presents, in the results which flow from its execution and performance, at least some aspects, of a settlement and release between plaintiffs and Lessors,. Execution of the agreement and payment of the consideration of $80,000 by the Lessors thereunder operated to place a maximum limit upon the liability of the Lessors to plaintiffs. Under no circumstances, and regardless of any verdict that the jury might return, could Lessors be made liable to plaintiffs for a greater amount. Nor does the assignment to plaintiffs of the judgment in favor of the Lessors and against Calumet operate to modify this situation. This assignment represents merely an ill-conceived and abortive attempt to fasten a direct tort liability upon Calumet where no such claim was asserted against it and where the sole and exclusive source of its liability was a duty to indemnify. The door should not. be opened in this manner so as to saddle an indemnitor with an unfair liability in excess of legal limitations.

We wish to make it clear that, in our opinion, the result above reached that Calumet is equitably entitled to relief concerning the extent of its liability as an indemnitor does not in any manner rest upon prejudice to Calumet during the trial of the action. On the contrary, there was no prejudice to the rights of Calumet during the trial. No situation developed at trial concerning the effect of the agreement upon any person along the lines suggested by the supreme court in Reese (55 Ill.2d 356, 364.) Our previous minute examination of the trial record, without knowledge of the existence of the agreement, impelled us to conclude that the judgment of liability for active negligence was properly entered against Calumet as an indemnitor. (See 6 Ill.App.3d 714, 731.) We cannot conceive that the agreement itself had any bearing upon this result or any effect upon the trial of the issues between plaintiffs and the Lessors. However, substantial prejudice resulted to Calumet in connection with the amount of recovery which is now sought to be enforced against it by execution presently stayed by order of the circuit, court. It is manifest that, had the agreement been disclosed to the trial judge upon entry of judgment or at the hearing of the post-trial motion, Calumet would have had a proper hearing and could then have made a timely attempt to reduce the amount of the judgment for indemnity. In our opinion, such a hearing should have resulted in the allowance of proper credit to Calumet as above pointed out.

A study of all of the affidavits filed by both sides in support of various motions and petitions leads to the conclusion that there is a possibility that counsel for Calumet was generally aware of the existence of some arrangement between attorneys for plaintiffs and for the Lessors. However, he did not receive a copy of the agreement until the meeting held in the chambers of the trial court on February 22, 1973. An element which may have been partly responsible for this was the absence of proper Contact between the attorneys representing tire parties at the trial. Thére was obviously a mutual breakdown of communication between the opposing attorneys.

However, we need not decide the extent of the knowledge of Calumet’s counsel. The important and decisive element is that it is clear and certain that this agreement was not disclosed to any of the cotuts involved in this proceeding until February 22, 1973, virtually 3 years and six months after its execution. The agreement was not disclosed to the trial judge who presided over the original jury trial, to this court on the first appeal, to the Supreme Court in connection with the petition for leave to appeal and in other matters brought before it, or to any of three trial judges who heard some portions of the subsequent proceedings. The only portion of the transaction between these parties ever disclosed to any court until February 22, 1973, was the assignment of judgment which was entered into on January 27,1970. The courts having the responsibility of insuring justice and fairness between these parties should have been given access to this agreement. See People v. Burr, 316 Ill. 166, 182, 147 N.E. 47. See also People v. Sleezer, 8 Ill.App.2d 12, 22, 23, 130 N.E.2d 302, quoting extensively from Burr.

The only remaining issue goes to the manner in which the equitable relief of conforming its liabHity to true legal indemnity should be granted to. Calumet. The question here, does not involve vacation of a judgment or any additional relief commencing from this. The requested relief involves simply control by the court over its own process. In considering the legality of a rule of practice of the municipal court of Chicago concerning the issuance of a capias, this court stated the principle in one sentence: “A court always has control of its own process.” (Wilson v. Gill, 279 Ill.App. 487, 491.) In People ex rel. Mikel v. Illinois Racing Commission, 310 Ill.App. 68, 72, 33 N.E.2d 893, this court cited with appirovál the statement of the principle made in Sandburg v. Papineau, 81 Ill. 446. In Sandburg, the supreme court made a clear statement of the applicable theory (81 Ill. 446, 448-449):

“There is no principle of law better recognized than that which gives •to-¡courts of record power over the process of their courts. It is essential to the administration of justice, and it by no means depends upon statutory enactment, but the power is coeval with the common law courts; and such courts will recall their process and quash the same, when it is shown that it would be illegal or inequitable to permit its further use, and to allow it to be enforced. If a judgment were satisfied, and, through mistake or by design, an execution were to issue upon it, does any one suppose the court from which it issued is powerless to recall and quash it? Or if it was only partially satisfied, and an execution were to issue for the full amount of the judgment, would any one have the hardihood to say that the court could not order the credit to be indorsed on the execution? So the court has power, in all cases, to compel credits on judgments or executions, where it would be illegal or inequitable to proceed to collect the amount claimed. A court of justice will never permit a plaintiff, simply because he has acquired an unjust advantage by obtaining an execution, to retain and enforce it.”

Perhaps the strongest additional and more recent authority bearing upon this situation is Weaver v. Bolton, 61 Ill.App.2d 98, 209 N.E.2d 5. There, plaintiff Weaver filed suit for personal injuries against Bolton and Andrew. She also sued the Giuseppe Verdi Society for Dram Shop Act violation in connection with intoxication of Bolton. Before trial plaintiff settled with the Society for $8000 and. gave a covenant not to sue. All of the parties knew this. After trial, plaintiff recovered a judgment against Bolton for $20,000 and against Andrew for $10,000. After denial of post-trial motions, and more than 30 days after the judgments, Andrew filed a petition for credit of $8000 on the judgment against him. The trial court granted the credit but the order was reversed by this court (Second District). The court held that the petition for credit was not properly filed by Andrew under section 72 of the Civil Practice Act because he had full knowledge of the settlement before the entry of judgment and failed to advise the court of this. Consequently he had failed to exercise due diligence and his petition under section 72 could not be used to grant relief. The court then made the following statement which is most applicable to the case at bar (61 Ill.App.2d 98, 105):

"This does not mean, however, that the trial court was without jurisdiction to hear such petition. It had authority to make such orders and issue writs as were necessary to carry its judgments into effect and to render them operative. This power continued in the court until its judgments were satisfied, and the present proceeding pertained to the satisfaction of these judgments rather than their modification as that term is generally understood. Many such questions arise subsequent to judgment in which jurisdiction is to be exercised.”

The decision in Virginia v. West Virginia, 246 U.S. 565, 591, 62 L.Ed. 883, 38 S.Ct. 400, cited by the appellate court immediately following the above excerpt teaches us, “That judicial power essentially involves the right to enforce the results of its exertion is elementary.” Proceeding to exercise its jurisdiction over process and the execution thereof, completely aside from section 72, the court held that the assumption was proper, that the injuries caused by both defendants were several and, accordingly, that defendant Andrew should not have the benefit of the credit. The order granting credit was reversed and the cause remanded with directions that execution issue against Andrew in the full sum of $10,000.

To paraphrase the matter, in the situation here involved, the amount of the execution to be issued upon this judgment is subject to the legal and equitable control of the court. This inherent power of the court may be exercised in response to Calumet’s petition for limitation of execution filed June 15, 1973. The relief granted here has no relation to the amount of the undisturbed judgment against Calumet but will operate upon the process of the court to be issued in connection with enforcement of the judgment.

Our heritage of wisdom teaches us that to every thing there is a season and “a time to every purpose.” This record convinces us that the time and the season for ending this litigation have truly come to pass. We abstain from review of the order of June 1, 1973, for lack of jurisdiction. The order of August 21, 1973, which denied relief to Calumet, is reversed and the cause is remanded with directions for the entry of a proper order directing the clerk of the circuit court of Cook County to limit execution on the judgment entered August 13, 1969, in favor of the Lessors (subsequently assigned to Frank Gatto and the late Sophie Gatto) and against Calumet Flexicore Corporation to $80,000 which said execution when issued by the clerk may also provide for properly taxable costs and interest in accordance with law.

. Order of August 21,1973, reversed and cause remanded with directions.

EGAN, P. J., and BURKE, J., concur.

SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING

Mr. JUSTICE GOLDBERG delivered the opinion of the court: .

After the above opinion had been filed, Calumet filed a petition for rehearing. This petition was directed solely to that portion of the opinion which provided for accrual of interest upon the judgment “in accordance with law.” Calumet urged that this language be clarified and that the opinion be modified to provide that interest upon the judgment should be accrued upon the sum of $80,000, not from the date of entry of the judgment (August 13, 1969) but from the date that the terms of the agreement not to execute were first disclosed (February 22, 1973). This court entered an order requesting an answer to this petition. (Supreme Court Rule 367(d), 50 Ill.2d R. 367(d).) An answer to the petition has been filed in behalf of plaintiff and a reply to this answer was filed by Calumet.

The answer takes the position that the issue here is whether a judgment debtor is liable for interest on the judgment from the date of entry or from the date of finalization of the judgment. Plaintiff cites cases such as Gnat v. Richardson, 378 Ill. 626, 39 N.E.2d 337, and Proctor Community Hospital v. Industrial Com., 50 Ill.2d 7, 276 N.E.2d 342. In Proctor, the circuit court had originaHy set aside an award made by the Industrial Commission. The supreme court had then, in a previous opinion, reversed the circuit court and reinstated the award. On further appeal, concerned with payment of interest, the court held that interest should accrue “from the date of the award, notwithstanding that at an interme-diate level of review the award was overturned and on further review reinstated.” (50 Ill.2d 7, 9, 10.) Gnat readied a rather similar result without comment or discussion.

The principles expressed in Proctor do not appear to have specific bearing upon the problem before us. The issue here is broader than a simple matter of interest computation in the event of an intervening reversal before ultimate affirmance of a judgment. In our opinion our problem here is more analogous to that decided in Presbyterian Distribution Service v. Chicago National Bank, 36 Ill.App.2d 1, 183 N.E.2d 525. There, the court held that statutory interest should run from the date of an amended decree because the exact amount owed upon the judgment had not been determined until disposition of the case- following previous appellate procedure. The factor of inability of the judgment debtor to tender the amount due because of a lack of knowledge of this amount is operative in the case before us. The pertinent statute provides that the accrual of interest may be stopped during the pendency of an appeal or other proceedings if the judgment debtor makes a “tender of payment of judgment, costs and interest accrued to date of tender * * Ill. Rev. Stat. 1973, ch. 74, par. 3.

We are impressed with the point raised by Calumet that it had no knowledge of the exact amount that had been paid to plaintiffs pursuant to the so-caUed agreement not to execute. This lack of knowledge ef-factively prevented Calumet from making any tender of payment. If we were to hold that interest commenced to run on the sum of $80,000 from the date of entry of the judgment, we would be rewarding concealment of the agreement from the court and encouraging such tactics for the future and we would simultaneously be penalizing Calumet unjustly for its failure to tender payment when the amount due was actually unknown. In our opinion the only equitable solution is to require payment of interestfrom and after February 22, 1973, the date of disclosure of the agreement.

Therefore, we will modify the above opinion solely by striking out from the last line thereof, the words “and interest in accordance with law” and by substituting:

“and interest on the sum of $80,000 from and after February 22, 1973 at the rate of 6% per annum as required by law.”

Opinion modified accordingly.

EGAN, P. J., and BURKE, J., concur.

      The original plaintiffs involved in this litigation were Sophie Gatto and Frank Gatto, her husband. The former died on January 17, 1970. The latter became administrator of her estate. He is now the sole plaintiff, individually and as such administrator. This opinion will use singular and plural forms of plaintiff as required.

       The record indicates that this order may have been entered on June 4, 1973. However, to avoid confusion we will follow the example of both counsel and use the date of June 1, 1973.

       This “motion to dismiss” actually consists of objections by plaintiff to the motion of defendant. We are aware of no statute or other legal authority which authorizes a “motion to dismiss” a previous motion.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The Village of River Forest, Plaintiff-Appellee, v. Ash Realty Company et al., Defendants-Appellants.
    (No. 59613;
    First District (2nd Division)
    September 27, 1974.

      Rehearing denied November 8, 1974.

      Price, Cushman, Keck, Mahin & Cate, of Chicago (James T. Otis arid George Weaver, of counsel), for appellants.
    Charles L. Michod, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court;

This appeal arises from a condemnation action begun in the Circuit Court of Cook County, Illinois. On 11 July 1972, the Village of River Forest (hereafter River Forest) filed a petition to condemn a certain parcel of real property located in River Forest, Illinois (hereinafter River Forest parcel), which was owned by Ash Realty Company, an Illinois corporation, and leased to United Parcel Service, Inc., an Ohio corporation. On 15 December 1972, Ash Realty and United Parcel Service (hereafter defendants) filed an amended verified traverse, admitting that they were interested in the River Forest parcel, but denying certain allegations and stating that they were without knowledge or information sufficient to form a belief as to the truth of the remaining allegations. In addition, they raised several “separate defenses.” Among these were two constitutional defenses and one more which asserted that River Forests general power of eminent domain was not broad enough to cover the River Forest parcel since it was already devoted to a “public use.”

That same day River Forest attempted to make out a prima facie case in support of its condemnation petition. Defendants then moved to strike the petition on the grounds that River Forest had failed to sustain its burden of showing its purported authority to exercise its power of eminent domain over the River Forest parcel. The trial court ruled that River Forest had made out a prima facie case and denied defendants’ motion; the court then continued the case and gave leave to defendants to file their amended verified traverse referred to above, and leave to River Forest to file a reply to the “separate defenses” alleged in the amended verified traverse. The reply was filed on 26 December 1972. On 16 January 1973, a hearing was had on the amended verified traverse. During this hearing defendants introduced evidence which, they alleged, .tended to show that the River Forest parcel was, in fact, already devoted to a “public use.” At the end of the hearing, defendants renewed their petition to dismiss and the trial court ordered the parties to file post-hearing memoranda and continued the case to a future date. On 30 May 1973, the trial court ordered that the amended verified traverse, be overruled and that the matter be set for compensation trial. On 9 July 1973, a compensation trial was had and defendants were awarded $177,000.

Defendants are appealing from the trial court’s denial of their first motion to dismiss on 15 December 1972 and from its 30 May 1973 order overruling the amended verified traverse.

We do not reach the merits of this appeal because a threshold issue which must first be considered and which we find dispositive of this appeal is appellee’s contention that this court lacks jurisdiction to consider this appeal. This contention is based on appellant’s allegedly defective notice of appeal. On 15 December 1972, after a hearing, the trial court denied defendants’ motion to dismiss River Forest’s petition to condemn, and and gave defendants leave to file an amended verified traverse and River Forest time to answer it. Thereafter, on 16 January 1973, a hearing was had on the amended verified traverse and the trial court took the matter under advisement and ordered post-hearing memoranda to be filed. On 30 May 1973, the traverse was overruled and the matter was set for trial on the issue of compensation on 9 July 1973. On 9 July 1973, after a compensation trial, a judgment order was entered awarding $177,000 as just compensation to defendants for the condemnation of the River Forest parcel. Thereafter, on 7 August 1973, defendants filed a notice of appeal which reads in pertinent part as follows:

“YOU ARE HEREBY NOTIFIED that Defendants ASH REALTY COMPANY and UNITED PARCEL SERVICE, INC. appeal to the Appellate Court of Illinois, First Judicial District, Chicago, Illinois from the order overruling the Traverse in this case entered by the Honorable Edward F. Healy on May 5, 1973 in favor of Plaintiff against Defendants, and Defendants-Appellants pray that the reviewing Court reverse said judgment. [Emphasis ours.]
Dated this 7th Day of August, 1973.”

River Forest contends that this court lacks jurisdiction to consider an appeal since there was no order entered on 5 May 1973; or that if, in fact, defendants are referring to the order entered 30 May 1973 overruling the traverse, this court lacks jurisdiction to consider an appeal since the 30 May order was not final and since, even if it were, the notice of appeal was filed more than 30 days after its entry.

Defendants contend that this jurisdictional challenge is “belated” since it was not asserted by River Forest, prior to the filing of the briefs, by a motion to dismiss the appeal filed in this court. We do not agree. A challenge to the jurisdiction of this court can be raised at any time and cannot be waived by any prior failure to object to our appellate jurisdiction. Chicago Portrait Co. v. Chicago Crayon Co. (1905), 217 Ill. 200, 75 N.E. 200; and see dictum in Mid City Wholesale Grocers, Inc. v. Bischoff (1945), 327 Ill.App. 268, 64 N.E.2d 234.

Every final judgment of the circuit court in á civil case is appeal-able as of right. (Ill. Rev. Stat. 1971, ch. 110A, §301.) But an order overruling a traverse in a condemnation proceeding is not a final order. (Chicago Land Clearance Com. v. White (1951), 409 Ill. 290, 100 N.E. 2d 760; Chicago Park District v. Harris (1949), 402 Ill. 214, 83 N.E.2d 702; Chicago Housing Authority v. Abrams (1951), 409 Ill. 226, 99 N.E. 2d 129.) Defendants cite a number of cases for the proposition that a notice of appeal of a specific order is sufficient, even though that order is not final, if that order will be in issue when final judgment is entered. In Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20, there was an appeal from an order sustaining a motion to strike, but the court noted that the notice of appeal also indicated that the appeal was from the final judgment and therefore took jurisdiction. In the instant case there is no reference to the final judgment in the notice of appeal.

In Bradley v. Metropolitan Sanitary District (1965), 56 Ill.App.2d 482, 206 N.E.2d 276, the court took jurisdiction where the appellant, in his notice of appeal, referred to the date his post-trial motion was denied instead of the date of the final judgment. However, the appellant in that case indicated that he was appealing from the final judgment and he only confused the date of that judgment. In the instant case, not only is there an error as to the date of the judgment order from which the appeal is taken, but there is no mention of an appeal from the final judgment.

Finally, defendant cites Luner v. Gelles (1942), 314 Ill.App. 659, 42 N.E.2d 313, where the notice of appeal stated that the appeal was from the denial of a timely motion for a new trial. The appellate court stated that the appeal was, in effect, from the final judgment and took jurisdiction. A motion for a new trial is necessarily one made after final judgment, and, by its nature, it must refer to the final judgment. In the case of a traverse; it is made before final judgment and, as in the present case, there is no reference, expressed or implied, to a final judgment.

Defendants • cite a number of other cases for the proposition that mere “error of form” in the notice of appeal does not foreclose appeal when the appellee is advised of the nature of the proceedings. We have considered these cases and agree with their holdings, but cannot agree that the errors in the instant notice of appeal were merely errors of “form.” The notice of appeal clearly stated that the appeal was from the overruling of the traverse, a non-appealable order. There was ho ré-ference, expressed or implied, to any final order. In fact, even the date given in the notice for the order overruling the traverse was incorrect. The notice of appeal is clearly inadequate to confer jurisdiction on this court. See Chicago Park District v. Harris, supra.

For the foregoing reasons, this appeal is dismissed.

Appeal dismissed.

STAMOS and LEIGHTON, JJ., concur.

       We think we should add that, had we had jurisdiction to entertain this appeal and to dispose of it on the merits, we would have affirmed. There is no merit to the principal substantive contention of defendant-appellants that the condemned premises were already being used for a public purpose.