author: Mr. JUSTICE STAMOS

text:
    Melvin H. Leon, Plaintiff-Appellee, v. Max E. Miller & Son, Inc., Defendant-Appellant.
    (No. 58712;
    First District (2nd Division)
    October 8, 1974.

      Rehearing denied November 7, 1974.

      Arvey, Hodes & Mantynband, of Chicago (Ralph A. Mantynband and Ami Rosen, of counsel), for appellant.
    Jerome Berkson, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Max E. Miller & Son, Inc. (hereinafter Miller & Son), appeals from a summary judgment entered in favor of plaintiff, Melvin H. Leon, for the sum of $45,471 and against defendant on its counterclaim.

Plaintiff brought this action to recover monies due under an employment contract. In his complaint and affidavits filed in support of the motion for summary judgment, plaintiff alleged that defendant is in the business of mortgage banking and that in May 1965, he entered into an oral contract of employment with defendant whereby plaintiff was employed as an administrative executive in the capacity of vice-president at an annual salary of $20,00 plus 25% of all commissions received from either borrowers or investors on all matters solicited, negotiated, or otherwise administered by plaintiff in the ordinary course of business. After plaintiff commenced his employment, he repeatedly requested a written agreement setting forth the terms of his compensation, as had been promised by Joseph Miller, the president of, and principal shareholder in, Miller & Son. After repeatedly being “put off,” plaintiff had an agreement prepared, and on November 19, 1965, presented it to Joseph Miller who signed it in plaintiff’s presence and retained a copy. The agreement read:

“AGREEMENT
It is agreed and understood that in addition to the annual salary of Twenty Thousand (20,000) Dollars and reimbursed expenses to be paid by Max E. Miller & Son, Inc., 33 North LaSalle Street, Chicago, Illinois, Melvin H. Leon is to receive as additional compensation twenty five (25%) percent of all commissions and finders fees received from either the borrower or investor on all matters solicited by, or negotiated by, or otherwise administered by Melvin H. Leon in the ordinary course of handling such transactions.
This additional compensation is to be pa'd to Melvin H. Leon upon receipt of such funds by Max E. Miller & Son, Inc.
Max E. Miller & Son, Inc.
By: (s) Joseph R. Miller
Joseph R. Miller, President
»
Melvin H. Leon

During the course of plaintiff’s employment he repeatedly made requests of defendant for the payment of commissions pursuant to the terms of the agreement. Some commissions were paid, while others were not. Finally, after numerous refusals of payment by defendant, plaintiff resigned from defendant’s employ in October 1968 and brought this action.

In its answer, defendant admitted that plaintiff was employed at an annual salary of $20,000 under an oral agreement, but denied all other material allegations. Further, as an affirmative defense, defendant alleged that the written document upon which plaintiff based his recovery was prepared by plaintiff’s counsel and was presented to Joseph Miller in November of 1965; that Joseph Miller directed plaintiff to deliver the document to a certain law firm for review and a legal opinion; that, subsequently, plaintiff falsely represented and warranted to Joseph Miller that tire document had been submitted to and approved by said law firm and that it was their recommendation that Joseph Miller should execute the document on behalf of the corporate defendant; that, in fact, plaintiff had never exhibited the document to said law firm; and that no member of said law firm either approved the document or recommended its execution. Plaintiff filed a reply denying that he was directed to deliver the agreement to defendant’s attorney or that he ever represented to Joseph Miller that defendant’s attorney had approved it.

In his deposition, Joseph Miller testified that “he directed Leon to show to his lawyer a piece of paper which he had not read and did not know what its contents were”; that after returning with the document, Leon stated that “[e]verything looks fine.” Miller further stated in his deposition that he could not recall exactly what was said by Leon. He testified that although he had no recollection of signing the document that was presented at that time, he “may” have signed it, and the signature appeared to be his own. In his affidavit, Miller stated that he most probably signed the document, but explained that he often signed documents without reading thém when presented to him by an employee whom he trusted. He further stated that he did not have a conversation with his attorney relative to that document prior to the commencement of the present lawsuit; and that the first time he was aware of the contents of the document was in October 1968 when plaintiff presented it to him and demanded payments under the contract. At this time, Miller stated that he fired Leon “because of his general attitude that everything was due him and he had to perform nothing for it.”

As an alternative defense, defendant alleged that if the document memorialized an agreement of the parties, it was terminated shortly thereafter by the establishment of a new employment relationship. As a second alternative affirmative defense, defendant alleged that the contractual phrase — “a 11 matters solicited by, negotiated by, or otherwise administered by Melvin H. Leon in the ordinary course of handling such transactions” — is ambiguous and subject to construction under the principle of ejusdem generis and by looking to the conduct of the parties and ascertaining the construction they themselves have placed upon the ambiguous terms. (See Street v. Chicago Wharfing & Storage Co., 157 Ill. 605.) Defendant admitted that it had agreed to pay a 25% commission to plaintiff when the latter solicited either a borrower or an investor on any one transaction, and contended that the phrase — “negotiated by, or otherwise administered by” — is to be construed as referring, under the above-mentioned constructional rules, only to matters “solicited” by plaintiff.

Defendant asserts that the language is ambiguous because under the words “administered by,” Leon could claim commissions on all business in which he participated in any manner. This, defendant maintains, is inherently unreasonable and therefore ambiguous. To further demonstrate the ambiguity of the language and the “lack of equity,” defendant refers us to the nature of the business and the consequences of allowing plaintiff to recover commissions on business merely administered by him.

Joseph Miller, as principal shareholder and president of Miller & Son, conducted a small mortgage banking business, and employed two vice-presidents, Harold Leifer and Melvin Leon, who did substantially the same work and received substantially the same form of compensation— an annual salary and a 25% commission on all business solicited by them. Because of the small nature of the business, each of the officers at one time or another would “administer” in some way almost every item of business engaged in by Miller & Son. Thus, if plaintiff would be entitled to a commission on all business which he “administered,” he would receive an annual salary of $20,000 plus 25% of the gross receipts. The result, defendant submits, is patently unfair and unreasonable.

Defendant further alleged that the conduct of the parties indicated that plaintiff was to receive a 25% commission only when he solicited the business, but not when he merely negotiated or otherwise administered a transaction. In support thereof, defendant asserted that of the approximately 20 transactions in which plaintiff was involved during his period of employment, he solicited 4 and received a 25% commission oii each. As to the remaining transactions, which plaintiff may have negotiated or administered in some way, plaintiff never pursued a claim to participate in any such commission. Further, defendant alleged that it employed one Harold Leifer in the same capacity as plaintiff, and that under the terms of an oral agreement with Leifer, defendant was to pay Leifer a salary and a 25% commission only on business which was procured by him. Moreover, defendant alleged that in the mortgage banking business, there existed a common custom and usage that employees of mortgage banking houses would receive in addition to their basic salaries a commission earned on business procured by them for their employers. Defendant did admit, however, that on several occasions it had paid Leifer and plaintiff bonus commissions as though they had jointly solicited the transaction. The effect of the bonus commission was to grant both Leifer and plaintiff a 12%% commission on transactions which had not been solicited by either of the parties. These, however, were Strictly bonuses and not legal entitlements. Thus, under the terms of the agreement, plaintiff was entitled to a 25% commission only on matters which he solicited, and for such transactions he was duly paid; however, plaintiff was not entitled to commissions on transactions which he merely negotiated or administered.

On appeal, defendant initially argues that summary judgment was inappropriate in that there existed disputed factual issues as to the execution of the employment contract, or alternatively, the terms of employment.

In viewing defendant’s contentions, we note that the purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. (Hendricks v. Deterts, 13 Ill.App.3d 976, 301 N.E.2d 625.) If the pleadings, discovery depositions, and affidavits present a genuine issue as to any material fact, summary judgment should be denied. (Morris v. Anderson, 121 Ill.App.2d 169, 259 N.E.2d 601.) However, the factual issues which are disputed must be material to the essential elements of the cause of action or defense; and those which are unrelated, regardless of how sharply controverted, do not warrant the denial of summary judgment if otherwise proper. (Cibis v. Hunt, 48 Ill.App.2d 487, 199 N.E.2d 246.) Moreover, where properly alleged facts in affidavits in support of a motion for summary judgment are not contradicted by counter-affidavits, the facts so averred must be taken as true, notwithstanding the existence of contrary averments in the pleadings of the adverse party which purport to raise issues of fact. Fooden v. Board of Governors, 48 Ill.2d 580, 272 N.E.2d 497; Renieris v. Village of Skokie, 85 Ill.App.2d 418, 299 N.E.2d 345.

From these general precepts, we turn first to defendant’s affirmative defense of fraudulent misrepresentation. Viewing the pleadings, affidavits, and deposition in a light most favorable to defendant, it appears that Joseph Miller was presented with a document relative to plaintiffs terms of employment; that he directed that it be presented to a law firm for a legal opinion; that plaintiff falsely represented that he had complied with Miller’s directions and had obtained approval; and that said document was then re-presented to Joseph Miller who subsequently signed the document without having read its terms.

One is under a duty to learn, or know, the contents of a written contract before he signs it, and is under a duty to determine the obligations which he undertakes by the execution of a written agreement. (17 C.J.S. Contracts § 137b (1963).) And the law is that a party who signs an instrument relying upon representations as to its contents when he has had an opportunity to ascertain the truth by reading the instrument and has not availed himself of the opportunity, cannot be heard to say that he was deceived by misrepresentations. (Nathan v. Leopold, 108 Ill.App.2d 160, 247 N.E.2d 4.) Apart from the above rules, to avoid a contract for false representations, the character of the representation and the circumstances under which it was uttered must have been such as to give the injured person a right to rely thereon. Morel v. Masalski, 333 Ill. 41, 164 N.E. 205.

We initially note that although defendant is required to substantiate the allegations of its defensive pleading (Fooden v. Board of Governors, supra.), the evidentiary matters submitted by defendant indicate that the only statement made by Leon after returning with the document, was that “[e] very thing looks fine.” Moreover, an examination of the record reveals that no facts were alleged from which it may be inferred that plaintiff had an affirmative duty to disclose the terms of the agreement.

Notwithstanding defendant’s failure to substantiate the claims of his defense, a consideration of those allegations would nevertheless lead to the conclusion that the trial court properly granted summary judgment against defendant’s affirmative defense. Under the allegations, defendant has failed to demonstrate both the materality of the alleged misrepresentation and its right to rely upon it. (See Gateway Securities Co. v. Schultz, 321 Ill.App. 312, 52 N.E.2d 825 (abstract opinion).) Plaintiff made no representations as to the contents of the agreement, but merely a collateral matter — the presentation of the document to defendant’s attorney and his approval of it. There are no facts alleging that defendant’s attorney knew the terms of plaintiff’s employment so that a legal opinion could be rendered, nor did defendant attempt to communicate those terms to its attorney subsequent to plaintiff’s initial presentation of the document. Defendant has failed to substantiate the allegations of his defensive pleading, and moreover, has failed to present any facts, assuming the truth of the allegations, sufficient to constitute a defense. Thus, the legal efficacy of the employment contract was properly ruled upon.

Defendant’s alternative defense is that the phrase — “all matters solicited by, negotiated by, or otherwise administered by Melvin H. Leon in the ordinary course of handling such transactions” is ambiguous and subject to construction. As we understand defendant’s argument, it alleges that because the word “administered” is ambiguous and subject to interpretation, the words “solicited,” “negotiated,” and “administered” are ambiguous in relation to each other, and therefore, under the constructional rules asserted by defendant, we properly deprive the words “negotiated” and “administered” of any legal effect insofar as they, relate to matters not solicited by plaintiff. We disagree. The three words em•ployed within the subject phrase are in the disjunctive and fairly denote separate and distinct aspects of a particular transaction, and thus, their interrelationship is not ambiguous. Since each of the words “solicited,” “negotiated,” and “administered” fairly particularizes a distinct aspect of a transaction, the rule of ejusdem generis is inapplicable. Although we accept defendant’s hypothetical assertion that the .individual words may be considered ambiguous, i.e., what is intended by “administered ® * * in the ordinary course of handling such transactions,” defendant neither requests a construction of the individual words, nor disputes the operative facts of the particular transactions. In the proceedings below,- plaintiff filed an affidavit stating that he performed the following services in connection with the transactions in which he claimed a commission: he analyzed the inquiries, obtained the necessary documentation for the preparation of the mortgage loan offerings (such as plans, specifications, cost data, and financial statements of the corporation or sponsors), prepared: the loan offering, negotiated the loan request with the investor, and submitted loan offerings to investors with whom the affiant .had developed business relations over a period of many years, and procured commitments from these various investors. Defendant does not point out, nor does our search of the record reveal, a denial of the above statements. Accordingly, they are admitted as true (Fooden v. Board of Governors, supra), and as such, are clearly within the meaning of the subject phrase. In light of the foregoing, the trial court properly ordered summary judgment in favor of plaintiff on his complaint and against defendant on its defenses.

Defendant also filed a three-count counterclaim, only two counts of which are pertinent to this appeal. In Count I, defendant alleged that it is in the business of mortgage banking which consists primarily of securing loans for clients from various corporate lenders such as insurance companies; that Melvin Leon, counter-defendant, was assigned to obtain and prepare the necessary, financial information pertaining to one of its clients, Abe Swed and Associates (hereinafter Swed), for the purpose of inducing a corporate lender to make loans to the borrower-applicant; that counter-defendant induced counter-plaintiff to believe that Swed had a net worth substantially in excess of $1,000,000; that, in fact, Swed was insolvent and had. no net worth, and that S wed’s insolvency would have been discovered upon a proper investigation. Miller & Son alleged that Leon had been negligent in his examination and acquisition of the necessary financial information, and that as a proximate result thereof, counter-plaintiff was damaged in the sum, of $75,000.

In his answer to the counterclaim, Leon denied that he “induced” counter-plaintiff to believe that Swed had a net worth of $1,000,000, in that Joseph Miller had full access to all financial information involved and fully supervised counter-defendant’s handling of the transaction, and Joseph Miller personally approved of the loan and counter-defendant’s handling of the same. In his affidavit, Leon further stated that the failure of the Swed deal was nothing more than a typical risk incurred by mortgage bankers in the ordinary course of business, and that the administrative procedures employed by affiant in the Swed transaction were the usual and customary procedures followed in all other transactions handled by Miller & Son.

In his deposition, Joseph Miller testified that had Leon performed the credit investigation in the usual and customary manner, by contacting the various creditors of Swed, the latter’s insolvency would have been discovered. Miller denied that he fully supervised Leon’s handling of the transaction, and further testified that Leon induced Miller & Son to loan Swed $32,000, and induced one of its investor-clients to approve a loan to Swed. Swed’s insolvency was subsequently uncovered by the investor, resulting in “a year’s work thrown down the drain,” the filing by Miller & Son of three related lawsuits against Swed, and the payment of attorney’s fees. Swed was subsequently discharged in bankruptcy.

Count III of the counterclaim alleged that Leon, during the term of his employment, was entrusted with Miller & Son’s confidential lists of investors, secret trade sources of funds, and other confidential matters; that in or about October 1968, Leon removed the aforesaid from the offices of Miller & Son, for which counter-plaintiff sought an accounting and injunction. Counter-defendant denied the allegations and testified in his affidavit that when he left the employ of Miller & Son he did not remove any files, lists of investors, or other trade secrets. Based upon his 22 years of experience in the mortgage brokerage business, he further testified that there are no trade secrets in the business in that commercial investors and lending institutions are known to the public at large and retain no special relationship with any particular mortgage banking institution to the exclusion of any other mortgage brokerage house.

It is asserted by defendant that the information was not merely a list of names and addresses, but reflected the idiosyncrasies of the individual investors, the character of the loans which they preferred, and other valuable data resulting from Joseph Miller’s subjective analysis made over a long period of time.

We initially note that the record pertaining to the counts of the counterclaim is factually meager in many important respects, and therefore, all inferences from the matters presented are to be construed in a light most favorable to counter-plaintiff. (Chrysler Credit Corp. v. M.C.R. Leasing Co., 118 Ill.App.2d 111, 254, N.E.2d 153.) Furthermore, on appeal, counter-defendant does not attack the legal sufficiency of the allegations, but argues a “lack of substance” in the allegations. Whatever the ultimate merits of the counterclaim may be, it was encumbent upon counter-defendant to demonstrate that no material issue of fact was presented. This he has failed to do.

As to Count I, the parties dispute the standard of care which is normally exercised in making credit investigations, the conduct of Leon in the Swed transaction, the conduct of Miller in supervising that matter, and whether counter-plaintiff had fully acquiesced in Leon’s alleged omission of performance. As to Count III, the parties dispute the basic fact of whether the lists were converted, and further dispute the character of those lists. From the record before us, and the arguments of counsel, we cannot say that counter-defendant’s right to invoke summary judgment was free from doubt. See Wegener v. Anna, 11 Ill.App.3d 316, 296 N.E.2d 589.

In view of the foregoing, the order of the circuit court granting summary judgment in favor of Melvin Leon on the complaint is hereby affirmed with enforcement stayed pending determination of the counterclaim; the order granting summary judgment against Miller & Son on its counterclaim is hereby reversed and remanded for further proceedings not inconsistent with this opinion.

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

HAYES, F. J., and LEIGHTON, J., concur.

       The alternative defense was properly stricken for failure to allege facts sufficient to constitute a defense. Although given ample opportunity, defendant failed to avail itself of the leave granted to plead over, and failed to argue the defense in its answer to plaintiff’s motion for summary judgment. Consequently, its appellate arguments on this point do not present a reviewable issue,

       There, facts, standing uncontradicted, further refute defendant’s assertion that the contract is inherently unreasonable because plaintiff could claim a. commission on every transaction handled by defendant regardless of plaintiff’s degree of participation in the matter.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Daniel Doyal, Petitioner-Appellant.
    (No. 59731;
    First District (2nd Division)
    October 8, 1974.
    James J. Doherty, Public Defender, of Chicago' (Terrence McQuigg and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James B. Haddad, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DOWNING

text:
    Robbins, Coe, Rubinstein and Shafran, Ltd., Plaintiff-Appellee, v. Ro Tek, Inc., Defendant—(First National Bank in Peru, Garnishee-Defendant-Appellant).
    (No. 59854;
    First District (2nd Division)
    October 8, 1974.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Douglas M. Reimer and James W. Carter, Jr., of counsel), for appellant.
    Carmel, Ellis & Baker, Ltd., of Chicago (Kenneth Edward Marcus, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This appeal is taken from an order of the circuit court denying gamishee-defendant-appellant First National Bank in Peru’s (hereinafter the bank’s) motion to dismiss or in the alternative to transfer to the circuit court for LaSalle County the garnishment proceedings initiated against it in the circuit court of Cook County by plaintiff-appellee Robbins, Coe, Rubenstein & Shafran, Ltd. (hereinafter plaintiff).

The sole issue presented for review is whether section 94 of title 12 of the United States Code applies to the situation where a national bank is a garnishee-defendant.

On March 28, 1973, judgment in the principal action was entered on behalf of the plaintiff in the circuit court of Cook County in the amount of $764 plus costs. On August 8, 1973, in accordance with statutory requirements, plaintiff filed an affidavit for garnishment (nonwage) with the clerk of the circuit court of Cook County and caused to be issued a nonwage garnishment summons which was served upon the bank in LaSalle County, Illinois.

The bank filed a general appearance along with a motion to dismiss or transfer the garnishment proceedings. In its written motion the bank alleged its status as a national banking association; that it is located and maintains its only office in the city of Peru, county of LaSalle, Illinois; that, under title 12, section 94, of the United States Code (the Banking Act), no action or proceeding could be maintained against it in any county other than LaSalle County; and that the garnishment proceeding should therefore be dismissed or, in the alternative, transferred to La-Salle County.

In response to these allegations, appellee asserted that section 94 relates only to direct lawsuits against national banking corporations and, since a garnishment action is not a new or independent lawsuit but merely an ancillary proceeding to enforce a judgment obtained against a third party, the federal venue provision does not control.

The trial court, in denying the bank’s motion, made the following specific findings of fact:

“1. That the Garnishee Defendant is a National Banking Corporation, organized under and subject to Title 12 of the United States Code.

2. That the garnishment proceedings herein were of a supplemental nature only and ancillary to the lawsuit filed in the Circuit Court of Cook County.

3. That service of garnishment summons was properly made upon Garnishee Defendant in LaSalle County, Illinois.

4. That Section 94 of Title 12 of the United States Code is not applicable as to a National Bank, which, as here is no more than a Garnishee Defendant.”

It is from this order that the bank prosecutes this appeal.

I.

Section 94, title 12, of the United States Code provides for the venue of suits, actions, and proceedings against national banks. These venue provisions are mandatory (Mercantile National Bank v. Langdeau (1963), 371 U.S. 555, 561-62, 9 L.Ed.2d 523, 83 S.Ct. 520; Buffum v. Chase National Bank (7th Cir. 1951), 96 L.Ed 702, 192 F.2d 58, cert. denied, 342 U.S. 944) and are representative of congressional authority to prescribe the circumstances under which national banks can be sued (Mercantile National Bank v. Langdeau, supra, at 559). Nevertheless the mandatory application of these provisions has been qualified by the United States Supreme Court on two occasions.

In Casey v. Adams (1880), 102 U.S. 66, 26 L.Ed. 52, Adams & Co. foreclosed the mortgage held by it on a certain parcel of land and sought to gain possession of the property, but the sheriff refused to implement the adjudication until Adams & Co. paid certain mortgage claims of the New Orleans Banking Association and other creditors. When Adams & Co. obtained a rule against the creditors- to show cause-why the mortgage claims should not be cancelled, Casey, the receiver of the banking association, ' appeared and argued, pursuant tó the statutory predecessor of section 94, that a national bank could be sued only in the county in which it is located. The lower court ruled in favor of Adams & Co.

On appeal the United States Supreme Court noted the local nature of the proceeding and that the only obstacle to: final settlement was a conflict of privileges to the proceeds of the- sale among the various credito’rs.The Court then concluded that Adams & Co. had'made no 'personal claim against the bank but only sought to “class the privilege” of the bank on1- the property “according to its rank.”" In affirming the lower court’s ruling, the Supreme Court declared:

“[A]nd We see nowhere in the Banking Act any evidence of an intention on the part of Congress to exempt banks from the ordinary rules of law affecting the locality of actions founded on local things. The distinction between local and transitory-' actions is as old as actions themselves, and no one has ever supposed' that laws which prescribed generally where one should bé sued; included such suits as were local in their character, either by statute or the common law unless it was expressly so declared'. Local actions are in the nature of suits in rent, and are to be prosecuted' where tire thing on which they are founded is situated. To give the act of Congress the construction now contended for, would bé; in effect, to declare that a national bank could not be sued at all in a local action where the thing about which the suit was brought was not in the judicial district of the United States within which the bank was located. Such a result could never have been contemplated-by Congress.” (102 U.S. at 67-68.)

Accordingly, the venue provisions of section.94 are not applicable- to purely local proceedings.

The second exception to the mandatory application of section 94 was articulated by the Supreme Court in First National Bank v. Morgan (1889), 132 U.S. 141, 33 L.Ed. 282, 10 S.Ct-37. There the Court held that the venue provisions of the banking act can be waived if a national bank fails timely to assert its right to be sued in its home County: (132 U.S. at 145.) Also, Central Bank v. Superior Court (1973), 30 Cal. App. 3d 913, 106 Cal. Rptr. 696.

■ In the case at bar it is conceded that the bank is a national banking corporation and, having made- prompt objection to-the-venue of the court, iti has not Waived' its right under section' 94. The further question of whether garnishment proceedings are local in nature and therefore exempt from application of the Federal venue provisions first requires- some analysis of the character of such proceedings.

Garnishment, unknown to the common law, is a statutory proceeding whereby property of defendants in civil actions in the possession of third persons is subjected to payment of judgments recovered against such defendants (see 20 I.L.P. Garnishment § 1 et seq. (1956)). It has long been recognized-as an ancillary statutory proceeding in the nature of process to obtain satisfaction of a judgment rendered in the principal action. Our courts have recognized that under the state garnishment act, process may be sent to any county in the state (Toledo, W. & W. Ry. Co. v. Reynolds (1874), 72 Ill. 487, 488-89; Wiebolt Stores, Inc. v. Sturdy (1943), 384 Ill. 271, 275, 51 N.E.2d 268). In Toledo, W. & W. Ry. Co. v. Reynolds, our supreme court specificaUy recognized that “[a]ny person, whether resident or not of the county in which the original judgment is rendered, may be summoned as a garnishee,” reasoning that the legislature clearly intended this course of action so as to facilitate the collection of debts. (72 Ill. at 488-89.) In fact the bank does not otherwise contend.

The garnishment process is remedial in nature and is an additional step in the original action for judgment and is designed to reach property belonging to the judgment debtor after ordinary execution has failed. ( Zimek v. Illinois National Casualty Co. (1939), 370 Ill. 572, 574, 19 N.E.2d 620; Baron v. Villareal (1968), 100 Ill.App.2d 366, 373, 241 N.E.2d 227.) It is in the nature of a proceeding in rem although it moves against a garnishee in personam (Freeport Motor Casualty Co. v. Madden (1933), 354 Ill. 486, 489, 188 N.E. 415; Bowen v. Pope (1887), 26 Ill.App. 233, 235), since it is not enough that the garnishee be within the jurisdiction of the court issuing the process — the res itself must also be within the court’s jurisdiction (Bowen v. Pope, supra, at 234-35). Thus, while a garnishment action moves against the garnishee in personam (Freeport Motor Casualty Co. v. Madden, supra, at 489), the object of the proceeding is to obtain property of the judgment debtor which is within the jurisdiction of the court issuing the process and which is held by the garnishee (also within such jurisdiction), whomever the latter may be, and wherever in tire state he may be. Indeed, after service of the garnishment summons, the garnishee is no more than a mere ■ stakeholder. Equitable Life Assurance Society of thje United States v. Wagner (1954), 2 Ill.App.2d 284, 119 N.E.2d 405 (abstract opinion).

Plaintiff urges that garnishment proceedings are ancillary to an original lawsuit and not “actions and proceedings” to which section 94 applies. Put another way, plaintiff "urges, that.Congress never intended to prescribe the proper venue for proceedings, such as garnishment, which are merely ancillary to a principal action. Indeed, the statute by its own terms applies only to “[sjuits, actions, and proceedings against any association under this title 0 * (Emphasis supplied.) In support of its position, plaintiff points out that the cases relied upon by the bank which concern the applicability of section 94 all involved a direct suit against a bank wherein the liability of the bank itself was at issue. E.g., Michigan National Bank v. Robertson (1963), 372 U.S. 591, 9 L.Ed.2d 961, 83 S.Ct. 914 (charge of usury); Mercantile National Bank v. Langdeau (1963), 371 U.S. 555, 9 L.Ed.2d 523, 83 S.Ct. 520 (conspiracy to defraud); Anderson v. First Security Bank (D.C. Idaho 1944), 54 F.Supp. 937 (malicious prosecution).

As noted above, garnishment proceedings are directed toward obtaining the property of the judgment debtor that is held by the garnishee within the jurisdiction of the court wherein the judgment in the principal action was rendered. Once the garnishment summons has been served the garnishee becomes merely a stakeholder. Accordingly, our supreme court in Freeport Motor Casualty Co. v. Madden, supra, at page 489, declared that:

“[Garnishment] is not an independent proceeding but is ancillary or auxiliary. It depends upon another proceeding in law or in equity. It is entirely remedial, and is resorted to either in aid of a pending action or in aid of an execution issued on a judgment already recovered.”

Further, it is significant that the congressional purpose for prescribing mandatory venue provisions in actions against national banks, was expressed by the Supreme Court in Charlotte National Bank v. Morgan, supra, at page 145:

“This exemption of national banking associations from suits in state courts, established elsewhere than in the county or city in which such associations were located, was, we do not doubt, prescribed for the convenience of those institutions and to prevent interruption in their business that might result from their books being sent to distant counties in obedience to process from state courts.”

Our Garnishment Act, however, requires only that the garnishee appear before the court in wj^ch judgment in the principal action was rendered and answer in writing and under oath the interrogatories submitted by the judgment debtor. (Ill. Rev. Stat. 1971, ch. 62, par. 33.) Such a procedure is not of such a complex nature as that envisioned by Congress.

In resolving this question, based on the record before us, we believe it appropriate to look at the equities involved. -This court has held that garnishment proceedings are equitable in nature. (National Bank v. Newberg (1st Dist. 1972), 7 Ill.App.3d 859, 866, 289 N.E.2d 197.) Plaintiff herein commenced a cause of action in the circuit court of Cook County and thereafter obtained a judgment in the amount of $764 plus costs. Thereupon, pursuant to and in accordance with its statutory right, plaintiff instituted the supplementary nonwage garnishment proceeding. So far as this record is concerned, there is nothing to indicate that by complying with the Garnishment Act the bank will in any way be prejudiced or caused to suffer any hardship. We must say, therefore, that the equities of this record certainly favor the plaintiff.

In deciding this issue in favor of the plaintiff, we are not, in any manner, suggesting what resolution would or should be made under the provision of the Banking Act on which the bank has relied, should the bank file a written answer and assert a no-fund or adverse claim in such a garnishment proceeding, together with a reservation of any rights under the said provision.

For the reasons set forth above the order of the circuit court of Cook County dated December 4, 1973, is affirmed and the cause is remanded back to that court for such other proceedings as may be appropriate.

Order affirmed and cause remanded for further proceedings.

HAYES, P. J., and LEIGHTON, J., concur.

       Section 94, title 12, of the United States Code (the Banking Act) provides that:
      “Venue of suits. Actions, and proceedings against any association under this title [National Banks] may be had in any district, or Territorial court of the United States held within the district in which such association may be established, or in any State, County, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.” 12 U.S.C. § 94 (1970).

       Ill. Rev. Stat. 1971, ch. 62, par. 33 et seq.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel Ballauer (Impleaded), Defendant-Appellant.
    (No. 59126;
    First District (4th Division)
    October 9, 1974.

      Paul Bradley and Steven Clark, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Edna Selan Epstein, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Daniel Ballauer, was indicated on April 7, 1972, along with Arthur Peters and John Peters, for both the armed robbery and murder of Frank Posejpal. Arthur Peters was also indicted for the attempted murder of Leslie Russ and Andrew Bultas in connection with the same incident. On February 15, 1973, the defendant pled guilty to murder and armed robbery, and also to the attempted murder of Russ and Bultas. He was sentenced by the court to the penitentiary for a term of 14 to 20 years for the murder, 4 to 16 years for each of the attempted murders, and 14 to 20 years for the armed robbery, all the sentences to run concurrently.

It is initially pointed out by the defendant on appeal, that although he pled guilty to and was sentenced for the attempted murder of both Russ and Bultas, he was never charged by indictment with those offenses. We. agree with the defendant’s argument, which the State concedes in its brief, that this is manifest error. We accordingly reverse the defendant’s convictions for attempted murder.

The defendant also asserts on appeal (1) the non-compliance by the trial court with certain provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402), which imposes certain duties on the trial court in accepting a guilty plea, requires reversal of the murder and armed robbery pleas, and (2) that, the murder and the armed robbery arose from the same conduct.and that therefore the conviction for the lesser offense of armed robbery must be reversed.

It is argued first, in regard to Supreme Court Rule 402, that the trial court failed to explain the nature of the charge of both armed robbery and murder to which the defendant was pleading guilty, as required by 402(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(1))., We disagree.

The Rule provides:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge."

The record shows that before the guilty plea was entered, defense counsel informed the court that the defendant wished to withdraw his previous plea of not guilty as a result of negotiations between the defense counsel, the assistant State’s Attorney, and the defendant. The defendant verified that statement to the court, and the following ensued:

“THE COURT: Understand by pleading guilty to these charges—
Can I have a copy of the indictment?
MR. WITKOWSKI: Yes, sir.
(Counsel handing document to Court.)
THE COURT: That you are pleading guilty and charged with murder and that you did on February 10, 1972, shoot one Frank Posejpal, and you did at the same time and place commit the offense of attempt, and that you did with the intent to commit the crime of murder, intentionally kill one Leslie Russ, by shooting Leslie Russ with a gun; and attempt also to kill one Andrew Bultas, by shooting at him in an armed robbery upon the same Frank Posejpal, at the same time and place.
Is that correct?
MR. HALPRIN [Defense counsel]: May I state for the record, the defendant would state to Your Honor that he did not fire a gun at anybody.
He understands that he is liable here as predicated upon the accountability theory, for acts of another, for whose conduct he is legally accountable, for what they have done.
Have I stated that correctly?
THE DEFENDANT: Yes, sir.”

The defendant, in urging that this exchange failed to satisfy the requirements of Rule 402(a)(1), cites People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550, and People v. Krantz, 12 Ill.App.3d 38, 297 N.E.2d 386. In Krantz the appellate court reversed a plea to forgery where the only inquiry of the defendant by the trial judge regarding the nature of the charge was “Mr. Krantz, do you understand what you’re charged with in these indictments, forgery?” to which the defendant responded affirmatively. In Ingeneri the court, while in dictum stating that merely furnishing a copy of an indictment to the defendant would not be sufficient compliance with Rule 402(a)(1), actually held that a mere reading of the details set forth in the armed robbery indictment to the defendant was sufficient to assure his understanding of the nature of the charge.

The defendant contends, based on these decisions, that the court violated 402(a)(1) by not articulating the legal definition of armed robbery to the defendant. In this regard we note that a confession given to the police by the defendant, detailing his involvement in the “holdup” of a man named Frank while armed with a loaded automatic weapon, was stipulated to at the hearing and read into the record. There was thus little practical consequence in describing the crime to the defendant as “armed robbery” rather than as “a taking of certain property from the person or presence of one Frank Posejpal with the use of force or threatening the imminent use of force and while armed with a deadly weapon,” when the defendant’s own confession, stipulated to at the hearing, admitted all of these latter elements. We therefore find that the procedure employed does not, under the circumstances, preclude a finding of substantial compliance with Rule 402 (a)(1), which is all that is required. See People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223; People v. Wintersmith, 9 Ill.App.3d 327, 292 N.E.2d 220; cf. People v. Wright, 2 Ill.App.3d 304, 275 N.E.2d 735, involving the old Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b)) requirement that a defendant pleading guilty be admonished regarding the nature of the charge.

As to the murder charge, it appears affirmatively on the record that while the judge was explaining the nature of the charges to the defendant, the defense counsel interjected that his client understood his liability for the crimes to which he was about to plead guilty, and the defendant orally affirmed that statement. This is similar to People v. Trinka, 10 Ill.App.3d 183, 293 N.E.2d 179, where the defense counsel merely advised the court that he had, together with his client, gone over the Information charging the defendant with the offense (misdemeanor theft) for which a guilty plea was being entered. This was held to have constituted substantial compliance with Rule 402(a)(1). Likewise, in the instant case, the defendant’s understanding of his guilt for murder under the theory of accountability was documented by his counsel’s statement and the defendant’s acknowledgment. It is clear that where murder is committed during a robbery, all participants in the robbery are deemed equally guilty of murder and it is immaterial who fired the fatal shot. People v. Johnson, 55 Ill.2d 62, 302 N.E.2d 20.

For these reasons we deem the citation of People v. Krantz, 12 Ill.App.3d 38, 297 N.E.2d 386, and People v. Irigeneri, 7 Ill.App.3d 809, 288 N.E.2d 550, unpersuasive, and find no transgression of Rule 402(a)(1) in regard to either the armed robbery charge or the murder charge. ■

The defendant next urges -that the trial court failed to adhere to subparagraph (b) of Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402(b)) by not ascertaining whether there was any coercion by force or threat made to induce the plea. Subparagraph (b) provides:

“(b) Determining Whether the Plea is Voluntary.
The court shall not accept, a plea of guilty without first determin-. ing that the plea is voluntary. If the tendered plea is the result " of a plea agreement, the agreement shall be stated in open court. The court, by questioning, the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a. plea agreement, were used- to obtain-the plea.”

The record shows that the court specifically asked the defendant whether he understood that he was waiving his right to trial by jury- or by the court and to confront the State’s witnesses, and that he could be sentenced to- the penitentiary, for the rest of his life. The defendant acknowledged this, and the.following occurred:

“THE COURT: No promises except about the results of the conferences your attorney just talked about, namely, if you plead guilty I would sentence you on a murder charge, fourteen to twenty, and also armed robbery to the same time * * *.
Understand that, sir?
THE DEFENDANT: Yes, sir.”

The court then asked for a stipulation as to the facts, and a factual basis for the plea was established.

The defendant claims that, although the plea agreement was stated in' open court, and it was determined that no promises, apart from the plea agreement, were used to obtain the plea, subparagraph -(b) was nevertheless violated because the court made no inquiry to determine if any force or threat had coerced the plea. This argument is without merit. We reiterate that substantial, comp Vance with the entirety of Rule 402 including subparagraph (b), is all that is required, and the omission of a specific inquiry as to whether any force, or threats had been used, where the- record- clearly shows that none were used and that the plea .was voluntary,- does not amount to less than substantial compliance. Peoplev. Gratton, 19 Ill.App.3d 503, 311 N.E.2d 717.

The final contention in-regard to Rule 402 is- that subparagraph (c)' thereof, requiring the court-to determine if there is .a factual basis for a guilty plea before accepting it, was not adequately complied with.

The record indicates in this regard that, following the defendant’s assurance to the court that no promises were made other than the plea agreement, the court asked for a stipulation as to the facts. The defense counsel then stipulated in- response to the assistant State’s Attorney’s request, that the testimony of the witnesses who appeared before the grand jury would sufficiently prove the charges. The assistant State’s Attorney then further read at length from a statement of the defendant taken at the police station the day of the crime. In it the defendant detailed his involvement in the "“holdup” of a man named “Frank,” the proprietor of a sporting goods store, who “was killed” during the robbery. The statements read were stipulated to by the defense counsel.

As stated in People v. Hudson, 7 Ill.App.3d 800, 803, 288 N.E.2d 533, 535:

“The requirement of Rule 402(c) that there be a factual basis for the plea is met when it appears on the record that there is a basis for reasonably concluding that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. It is not necessary that it appear on the record beyond a reasonable doubt or even by a preponderance of the evidence that the defendant committed the offense.”

We therefore find the defendant’s argument on appeal that the plea-must be reversed because “there is no indication in the record that ‘Frank’ was killed by the shots fired during the robbery” devoid of merit. There, was clearly substantial compliance with the Rule 402(c) requirement that a factual basis for-the plea- be determined to exist.

The final contention of the defendant is that the murder'and armed robbery convictions arose from the same conduct and that therefore the conviction-, for. the lesser offense of, armed robbery must be reversed. We hold, however, that the armed robbery and the murder that occurred during the robbery were two- separate ■ and: distinct. crimes, each punisháble by separate and distinct sentences. (See People v. Robinson, 18 Ill.App.3d 804, 310 N.E.2d 652; Ill Rev. Stat. 1971, ch. 38, par. 1 — 7(m), as amended, Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4; see also People v. Johnson, 55 Ill.2d 62, 302 N.E.2d 20.)

The judgments on the. convictions for murder and armed robbery.- are therefore affirmed. The convictions for attempted murder are reversed.

Affirmed in part and reversed .in part. . . .

DIERINGER and JOHNSON, JJ., concur.


text:
    John A. Relli, Plaintiff-Appellee, v. Sandra Kemnitz Leverenz, Defendant-Appellant.
    (No. 59355;
    First District (4th Division)
    October 9, 1974.
    Paulson & Ketchum, of Chicago, for appellant.
    Thomas M. Riley, of Skokie, for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Plaintiff, John A. Relli, brought an action in the Circuit Court of Cook County to recover personal injury and property damages arising out of an automobile collision with defendant. The cause was submitted to the court without a jury. The court entered judgment in favor of plaintiff in the amount of $3500 and defendant appeals.

The impact occurred on March 11, 1971, at the intersection of Sunny-side and Marmora in the city of Chicago. There were no traffic control signs or signals at the intersection. Plaintiff was driving north on Mar-mora which was a narrow two-lane street, and defendant was driving west on Sunnyside which was approximately 40 feet in width. After plaintiff had proceeded approximately three-quarters through the intersection, his automobile was struck broadside at the right door and front fender by defendant’s car. Plaintiff’s car then ran into a tree 60 feet away causing further damage.

Defendant primarily contends that the finding and judgment are against the manifest weight of the evidence, and that plaintiff is guilty of contributory negligence as a matter of law. This argument is premised upon plaintiff’s failure to observe defendant’s approaching vehicle, and upon plaintiff’s alleged violation of the Illinois right-of-way statute. The statute reads:

“When 2 vehicles enter an intersection from different roadways at approximately the same time, the driver of the vehicle on the left must yield the right-of-way to the vehicle on the right.” (Ill. Rev. Stat. 1969, ch. 95%, par. 165 (b).)

It is argued that inasmuch as defendant was to plaintiff’s right, the plaintiff should have yielded the right-of-way; and, therefore, he is guilty of contributory negligence as a matter of law.

The determinative question presented to us on this issue is whether there is any evidence in the record standing alone and considered to be true which would tend to prove that the plaintiff, before and at the time of the occurrence, was exercising ordinary care for his own safety; and if so, the issue of contributory negligence is for the trier of facts who sees and hears the witnesses. (Moss v. Wagner, 44 Ill.App.2d 180, 194 N.E.2d 481.) From the outset we stress that the mere fact that defendant was to the right of plaintiff at the time plaintiff entered the intersection does not constitute contributory negligence per se. It is beyond challenge that the above, statute does not grant an absolute right-of-way to the driver on the right. (Klein v. Pritikin, 6 Ill.App.3d 323, 285 N.E.2d 457.) Each case must be decided on its own particular facts, and no one feature such as the right-of-way statute alone is determinative. As stated in Leonard v. Murphy, 13 Ill.App.2d 39, 45, 140 N.E.2d 537.

“It has been repeatedly held by the courts of this state that the statute on right of way does not contemplate ■ that this right may be invoked, when the car from the right is so.far from the intersection at the time the car from the left enters upon it, that with, both running within recognized speed limits, the latter will,- reach the line of crossing before the former will reach the intersection.”;

Thus, we reiterate that the statute does not confer an absolute right-of-way nor afford the favored motorist a conclusive presumption that the, other must yield. The statute must be considered - with regard to) both the distance and speed of the vehicles approaching the intersecting streets. (Breslin v. Bates, 14 Ill.App.3d 941, 303 N.E.2d 807.) Whether the plaintiff was exercising ordinary care prior to the collision, depends upon-the circumstances of the impact.

Plaintiffs testimony, -if believed, is that he came.- to a full stop prior to entering the intersection. Before proceeding, he looked to both his, left and right. His line of vision to the right was somewhat obscured by trees and parked vehicles. Seeing no approaching cars, he proceeded - slowly into the intersection, and he again looked in both directions. Both-plaintiff and defendant stated that at the time of the collision, plaintiff.had. proceeded beyond the middle of the intersection, and that the -impact occurred in the northeast one-quarter of the intersection. Thus)-;-, plaintiff travelled 20 to 30 feet from a. stopped position to the point of impact, whereas defendant travelled approximately 10 feet into the intersection. Defendant testified that -when she reached the intersection, she observed plaintiff to her left, and he appeared to be slowing down. She then looked to her right and proceeded through the intersection at a,, rate of 10 to 13 miles per hour. • , ■

Defendant cites numerous cases in which the.plaintiff has been found' to be guilty of contributoiy negligence for-failure to . yield the right-of-way to an oncoming vehicle. Our attention is called particularly to .the . decision in Lamberes v. Northern Cartage Co,, 86 Ill.App.2d 311, 229 N.E.2d 901, wherein the plaintiff was held to be guilty of contributory negligence as a matter of law for a flagrant violation of the right-of-way-statute. In Lamberes the plaintiff was approaching an uncontrolled inter- - section at a speed of 20 to 25 miles -per hour. The defendant also was; proceeding at the same rate of speed. When plaintiff was 7 to 8 -feet.fr.om the crosswalk, he saw the defendant’s 'automobile approximately, one-quarter block from the intersection. Despite observing the. on-coming, vehicle, he proceeded into the intersection at an unchanged speed and. wa,s struck broadside at or near the middle of the intersection. No such-factual situation exists in the case at bar.

We find that in Lamberes,. as well, as all other eases ..cited by de-.. fondant;- there exist at least two determinative factors which distinguish them from the -instant situation. The first of these is that both vehicles entered the intersection at approximately the same time. For example, ih Lamberes both vehicles were proceeding at the same rate of speed, and the collision occurred in the center of the intersection. From these facts it is manifestly obvious that the vehicles entered the intersection at approximately the same time. The facts in the instant case are easily distinguishable.' The collision occurred in the northeast one-quarter of the intersection. Since Sunnyside was considerably wider than Marmora, plaintiff travelled substantially further into the intersection than did defendant. Plaintiff did this from -a stopped position, whereas defendant was in continuous motion. Furthermore, as a sole result of the impact, defendant’s car was rendered a total loss. This fact raises an inference aá to the speed of defendant’s automobile. From these considerations of distance and speed, it is clear that the trial judge determined that plaintiff entered the intersection before defendant and not at approximately the same time. Thus, the statutory protection concerning right-of-way is not applicable.

The second distinguishing factor in all the cases cited by defendant is that the plaintiff proceeded in the face of a hazard he either observed or had no cause not to observe. For example, in Lamberes the plaintiff saw an approaching vehicle in ample time to take corrective measures, but he failed to do so. We do not dispute that such an act is contributory negligence. The case at bar, however, is distinguishable, for the plaintiff did not see defendant’s approaching automobile. Therefore, he was unaware of any need to adjust his speed. Defendant also contends that plaintiff is guilty of contributory negligeiice as a matter of law for failure to see defendant’s car. We note that in all cases cited by defendant, a finding of contributory negligence is made expressly contingent upon the plaintiff having an unobstructed line of vision.

In the case at bar, plaintiff testified that his view to the right was obscured by trees and parked vehicles. Thus, we cannot say as a matter of law that plaintiff did not exercise ordinary care for his own safety, since his failure to observe defendant’s car was excused under the circumstances. ■ ■

In Pfister v. West, 53 Ill.App.2d 305, 203 N.E.2d 35, the court stated that a motorist may not blindly rely on presumptions concerning the right-of-way, and that these laws do not excuse the favored motorist from exercising reasonable care in light of the circumstances. It is a question of fact whether the driver exercised reasonable care in entering the intersection; and thus, in the case at bar it was for the trier of facts to determine where the truth lay. A finding by the trial court will not be set aside upon review unless it is clearly and manifestly against the weight of the evidence. Stevens v. Fanning, 59 Ill.App.2d 285, 207 N.E.2d 136.) Manifest weight means the clearly evident, plain and indisputable weight of the evidence. (Haas v. Woodard, 61 Ill.App.2d 378, 209 N.E.2d 864.) We find that the judgment in favor of plaintiff is supported by the evidence, and we see no basis to find it against the manifest weight.

It is next contended that the court erred in striking allegedly prior inconsistent statements made by plaintiff to an investigator. We have examined the record and are in accord with the trial court that this offered testimony is not impeaching. We also reject defendants claim that the damages assessed by the trial court were based upon mere surmise and conjecture. We deem it unnecessary to detail the reasons, but suffice it to say that a judgment for a much larger sum could be sustained.

The judgment of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. JUSTICE JOHNSON

text:
    Michael Kachigian, Plaintiff-Appellee, v. Howard Minn, Defendant-Appellant.
    (No. 59629;
    First District (4th Division)
    October 9, 1974.

      Melvin B. Lewis, of Chicago, for appellant.
    Wisch and Dyer, of Chicago (Dinah B. Dyer, of counsel), for appel-lee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The action was commenced when plaintiff, Kachigian, sought a declaratory judgment to establish the rights and liabilities of the parties hereto with respect to the oral lease of an office in defendant’s suite at 35 East Wacker Drive, Chicago, Illinois. The complaint requested a declaration as to the amount owing by plaintiff to defendant for the costs of rentals and services incurred in the operation of a law office. Defendant answered and counterclaimed for collection of the disputed claim. Summary judgment was entered on plaintiff’s motion, adjudging the claim by defendant for rental for the period following January 31, 1972, to be barred by the Statute of Frauds. Defendant appeals from that judgment, and raises the issue of whether defendant’s claim against the plaintiff for rent and other expenses for the period subsequent to January 31, 1972, is barred by the Statute of Frauds.

The parties are lawyers who occupied adjoining suites in a building located at 30 North LaSalle Street in Chicago. In 1971, the tenants were notified that the building would be demolished, and that they would be required to terminate their tenancies by vacating the building. Consequently, Kachigian and Minn discussed the possibilities of moving into the same suite. Minn initiated a search for suitable office space which resulted in the discovery of a large office at 35 East Wacker Drive. Kachigian approved the new location so Minn entered into a lease with the building management that was to run from September 1, 1971, until January 31,1977.

Kachigian desired to have a particular office arrangement and he con-suited with a construction .engineer employed by one of his clients to redesign the layout of the suite. An architect was engaged to prepare plans in accordance with the engineer’s design which required major construction work. The suite was designed to comply with plaintiff’s request and resulted in remodeling costs of $8000, of which plaintiff agreed to pay one-fifth.

'During September 1971, the parties moved into the Wacker Drive quarters,' and Minn caused Kachigian’s furniture to be moved to that address. On October 8, 1971, the plaintiff paid the defendant $900, and on November 8, 1971, tire plaintiff paid the defendant $1000. There was disagreement between the litigants as to the allocation of these payments. Plaintiff moved out of the suite shortly after December 1, 1971, without tendering to defendant a 30-day notice. Minn has advertised for a new occupant for the vacated suite without success.

' In March 1972, Kachigian commenced a declaratory judgment action. Minn answered, denying Kachigian’s significant factual allegations, and counterclaimed for the sum of $450 per month for the period during which Kachigian’s office stood vacant and for the accrued charges of $5131.80 plus costs and interest. Kachigian answered, denying Minn’s factual allegations and alleged that Minn’s claim was unenforceable under the Statute of Frauds. Minn replied to plaintiff’s answer to the counterclaim and denied Kachigian’s factual averments. Kachigian moved for summary judgment, invoking the Statute of Frauds on the grounds that no written agreement existed between plaintiff and defendant. Minn moved to strike plaintiff’s motion on the grounds that the record showed that his agreement .had been performed in full, and filed an alternative answer to the motion setting up the facts of the transaction.

The first question to be resolved is whether the parol agreement between the parties is enforceable for the period subsequent to December 1971 when Kachigian moved. The Statute of Frauds (Ill. Rev. Stat 1973, ch. 59, sec. 1, par. 1) provides in its pertinent part:

“That no action shall be brought * * * upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or. note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” ,

The law is clear that unless the terms of an oral lease agreement can be completely fulfilled within 1 year from the date of its making, it falls within the prohibition of section 1 of the Statute of Frauds, Luster v. Estate of Cohon (1973), 11 Ill.App.3d 608, 297 N.E.2d 335 (abstract opinion). ‘

The parol agreement in the instant case was an agreement whereby Minn would rent to Kachigian an office suite for $450 per month, ending January 31, 1977. It is clear from the facts that the parol agreement-involved in this controversy is within the purview of section T of the Statute of Frauds, since it was an oral agreement that could not be performed within the space of 1 year. Therefore, we conclude that the trial court was correct in holding the agreement unenforceable because it violates the prohibitions specifically delineated in section 1 of the Statute of Frauds.

It has been held where a parol lease is made, fixing the amount of rent and the time of its payment, and fixing the term at a greater period than 1 year, it is clearly within the Statute of Frauds; and the tenant entering under such voidable contract and paying rent at the sum fixed by the contract, becomes a tenant from month to month. (Marr v. Ray (1894), 151 Ill. 340, 344, 37 N.E. 1029, 1030, 24 I.L.P. Landlord and Tenant §68 (1966).) The facts are uncontroverted that the parties in the instant case entered into a parol agreement, and that Minn was the sole signatory on the lease with the building management. Pursuant to the oral agreement between the litigants, Kachigian, the tenant, paid rent on a monthly basis. Therefore, we hold, affirming the trial court, that Kachigian was a month-to-month tenant and, as such, is hable for rent for the period he occupied the office suite.

The next issue to be considered is the question of notice. For many years the law of this state has been that a month-to-month tenant must give a 1-month notice of his intention to terminate tire tenancy. (Gronek v. Neuman (1964), 52 Ill.App.2d 250, 252, 201 N.E.2d 617, 618.) In the case at bar, the appellee terminated his tenancy in December, witiiout tendering to his lessor, Minn, the required 30-day notice evidencing his intention to quit. We think the lessee breached his duty by failing to tender the required 30-day notice. Consequently, we affirm the trial court’s holding Kachigian hable for $450 rent for the month of January 1972.

The appellant cites Fox v. Starr (1903), 106 Ill.App. 273, and argues that his claim is not barred by the Statute of Frauds because he was not Kachigians lessor. We disagree with the appellant’s argument that he was not the appellee’s lessor. Furthermore, we think that Starr is in-apposite to the instant fact situation since it involved a broker’s commission.

Next, the appellant urges that he signed the lease on Kachigian’s behalf. Then he argues that the Statute of Frauds can be invoked against the building management, but not the appellant. He cités Newman v. Lumley (1906), 125 Ill.App. 382. We do not find Lumley to be controlling in this case.

Finally, the appellant submits that Hindle v. Dillbeck (1971), 1 Ill.App.3d 1021, 274 N.E.2d 594; Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill.App.2d 80, 243 N.E.2d 40; and Scharf v. Waters (1946), 328 Ill.App. 525, 66 N.E.2d 499, are controlling and that summary judgment was improper here. We disagree and affirm the decision of the trial court, holding that summary judgment was proper in this case since there were no material issues of fact to be resolved.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    Edwin D. Dienthal, Plaintiff-Appellant, v. Eugene Branovacki, Defendant-Appellee.
    (No. 59913;
    First District (4th Division)
    October 9, 1974.

      Gordon, Brustin & Schaefer, Ltd. and Brown, Rosenthal, Wilson, Carnow and Mulack, both of Chicago (Robert E. Gordon, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton and James P. Dorr, of counsel), for appellee.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from an order entered by the Circuit Court of Cook County. Plaintiff’s cause of action against the defendant was dismissed by the court for want of prosecution due to plaintiff’s failure to attend a pretrial conference. A subsequent motion by plaintiff to vacate the dismissal order was denied.

The issues presented on appeal are: (1) whether the trial court abused its discretion in dismissing plaintiff’s cause of action for want of prosecution; and (2) whether the court abused its discretion in denying plaintiff’s motion to vacate the dismissal order.

The plaintiff, Edwin Dienthal, brought an action to recover damages against the defendant, Dr. Eugene Branovacki. By order of the trial court, a pretrial conference was scheduled for August 9, 1973. On that date the conference was continued until the following day. Prior to the pretrial conferences scheduled for August 9 and 10, counsel for plaintiff conscientiously and diligently made numerous attempts to contact the plaintiff, both by telephone and in writing, and inform him his attendance was required at the pretrial conference. On the date of the scheduled pretrial conference, counsel informed the trial judge that, despite his numerous attempts, he had been unable to contact the plaintiff and thereby procure his attendance at the conference. It was obvious plaintiff was out of town and could not be reached. The trial court dismissed plaintiff’s cause of action for want of prosecution due to the failure of the plaintiff to be present at the pretrial conference.

On September 7, 1973, within 30 days after plaintiff’s cause of action had been dismissed, the plaintiff filed a motion to vacate the dismissal order and reinstate the cause. The motion was continued until October 15, 1973, without any written order of court. The plaintiff was in attendance on that date and a conference was held. The trial judge attempted to settle the case between the plaintiff and defendant and recommended to the plaintiff to accept a $2,500 settlement offer made by the defendant. The plaintiff rejected the offer, and the trial judge ’denied plaintiff’s motion to vacate the dismissal order.

The plaintiff first contends the trial court abused its discretion in dismissing plaintiff’s cause of action for want of prosecution. The authority for the imposition of sanctions for refusing to comply with rules or orders relating to pretrial conferences is embodied in Supreme Court Rule 219(c) (Ill. Rev. Stab 1973, ch. 110Á, § 219(c)), which provides, in pertinent part:

“(c) Failure to Comply with Order or Rules. If a party, or any person at the instance of or in collusion with a party, unreason>-ably refuses to comply with any provision of Rules 201 through 218, or fails to comply with any order entered under these rules, the court, on motion, may enter * * * such orders as are just, including, among others, the following:
# # # .
(iii) that he be debarred from maintaining any particular claim, counterclaim, third-party complaint, or defense relating to that issue.” (Emphasis supplied.)

It is a fundamental principle of law that judgments by default are not encouraged and should be employed only as a last resort. (Gillespie v. Norfolk & Western Railway Co. (1968), 103 Ill.App.2d 449.) In Booth v. Sutton (1968), 100 Ill.App.2d 410, the trial judge dismissed the defendant’s countercomplaint because of defendant’s failure to appear at a pretrial conference and denied defendant’s petition to vacate the dismissal order. The appellate court reversed the decision, holding:

“ ‘The dismissal of a party’s cause of ■ action is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court’s authority.’ ” (100 Ill.App.2d at 415-416.)

Counsel for plaintiff in the instant case made numerous attempts: to contact the plaintiff prior to the pretrial conference. Despite his efforts, counsel was unable to notify the plaintiff, and as a result plaintiff did not appear at the conference. Plaintiff’s failure to attend the conference was not deliberate and was not in defiance of the court’s authority, and his attorney was present every time. In light of such circumstances we believe the trial court abused its discretion in dismissing the plaintiff’s cause of action.

The plaintiff next contends the trial court abused its discretion in denying plaintiff’s motion to vacate the dismissal order. Plaintiff filed his motion pursuant to section 50(5) of the Illinois Civil Practice Act (Ill. Rev, Stat. 1973, ch. 110, § 50(5)), which provides:

“(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”

Plaintiff’s motion was filed within 30 days after the court dismissed his cause of action for want of prosecution, and set forth the extenuating circumstances for the plaintiff’s failure to attend the pretrial conference. The motion further stated that plaintiff had a valid cause of action and could now personally attend any subsequently scheduled conference. It is well established that a default judgment should be set aside when it will not cause a hardship upon the parties to go to trial on the merits. (Lynch v. Illinois Hospital Services;, Inc. (1963), 38 Ill.App.2d 470.) Both parties in the present case were ready and prepared for trial on October 15, the date of the scheduled hearing on the motion. In Bishop v. Canal-Randolph Corp. (1973), 10 Ill.App 3d 997, a case closely related to the case at bar, the appellate court held the trial judge’s dismissal of plaintiff’s personal injury action and refusal to vacate the dismissal order because of plaintiff’s failure to attend the pretrial conference, constituted an abuse of the court’s discretion.

We believe the trial court in the instant case likewise abused its discretion in denying plaintiff’s motion to vacate the dismissal order. The conduct of the trial judge in “recommending” to the plaintiff that -he accept the defendant’s settlement offer or be denied a trial, and then denying plaintiff’s motion to vacate the order of dismissal when plaintiff rejected the offer, cannot and will not be condoned by this court. A party to a lawsuit is entitled to his day in court. Pretrial procedures exist to expedite the orderly disposition of cases and to promote justice. Justice is not served when a trial judge forces a party to a lawsuit to either accept the court’s settlement proposals or be denied the opportunity to proceed on the merits of the case. When the court in the case at bar was informed by plaintiff’s counsel that plaintiff had finally been reached and notified and was prepared to attend any subsequent pretrial conference and did attend the next conference, justice demanded the dismissal order be vacated and plaintiffs cause of action reinstated. The failure of the trial court to do so constituted abuse of its discretion.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed and the cause remanded with directions to vacate the dismissal order and reinstate the cause. Under the circumstances, it is further ordered that the cause be returned to the assignment judge for re-assignment.

Reversed and remanded with directions.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE DIERINGER.

text:
    La Salle National Bank, as Trustee, Plaintiff-Appellee, v. William H. Doggett, Jr., et al., Defendants-Appellants.
    (No. 60071;
    First District (4th Division)
    October 9, 1974.
    Joel Sideman, of Cook County Legal Assistance Foundation, Inc., of Evanston, for appellants.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE DIERINGER.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alonzo Flynn, a/k/a Carl R. Colston (Impleaded), et al., Defendants-Appellants.
    (Nos. 58204, 58866 cons.;
    First District (5th Division)
    October 11, 1974.

      James J. Doherty, Public Defender, of Chicago (Marilyn D. Israel, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William J. Haddad, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendants Alonzo Flynn and Irving Duffy were found guilty of armed robbery and aggravated assault and, after holding that the charges arose out of the same transaction, the court sentenced them to terms of 10 to 15 years for armed robbery. On appeal they contend that they were not proven guilty beyond a reasonable doubt and that their sentences are excessive.

The following evidence pertinent to this appeal was adduced.

Dolly King testified for the State.

She is the wife of Leonard King and lived with him and their 5-year-old daughter at 1915 W. Crystal. On the evening of November 6, 1971, at approximately 9 P.M. her husband went to the store for groceries returning approximately 15 minutes later accompanied by the two defendants. Defendant Duffy put a gun to her head and ordered her to the dining room area where Flynn was holding a gun to her husband’s head. Duffy announced it was a robbery and demanded money. Duffy took her back to the kitchen where he put the gun to the baby’s head at the same time warning the witness that she would not be harmed provided she did not cause trouble. Duffy beat her husband in the face and head with his gun. Flynn ransacked the apartment searching for money and found $145. Duffy also took money out of her husband’s pocket. While she was . in the dining room she saw that Duffy had picked up a pillow arid placed it on top of his gun. Flynn ordered her to go into the pantry and start pulling out all the drawers. Her husband was sitting on the floor in the dining room at this time. She was in the pantry about 2 or 3 minutes when she heard a crash. As Flynn ran out the front door of the apartment, she picked up her child and headed for her landlady’s apartment on the first floor to call the police. She noticed a broken window, approximately a foot away from where her husband had been sitting. Both defendants were in the apartment about 25 or 30 minutes. She denied knowing either defendant by name and denied having ever had them as guests in her home.

Leonard King testified for the State.

On November 6, 1971, sometime after 9 P.M., he was accosted by defendants in the vestibule of the building where he resided with his wife Dolly and their 5-year-old daughter Michelle. Defendants, with whom he was acquainted, held guns to his body and forced him to go upstairs to his second-floor apartment where they proceeded to terrorize him and his family for the next 25 to 40 minutes in search of money. Flynn had seen him cash his $250 paycheck that day. His total vacation money was $1200. Flynn at one point struck him in the face and said, “We’re going to kill you, because you know us.” After ransacking the apartment of $145 and “tape recorders and things like that,” Flynn ordered Duffy to “[k]ill him.” Duffy picked up a pillow off a nearby bed and moved toward where the witness sat by a window on the dining room floor. When the gun was cocked and raised toward his head, he bolted running full force through the window, breaking it, a storm window and the screen. He landed on the ground, 22 to 25 feet below, in a dazed condition. Crawling over to the trash cans on the other side of the building, he hid until he saw Duffy run past him with a drawn gun. He then went to a nearby home to summon the police, who on their arrival accompanied him back to his building where he found his wife and child in the landlady’s first floor apartment. He was thereafter taken to the hospital where he received treatment for cuts and bruises on his face, hands and legs and a brace for a chipped bone in his wrist.

On cross-examination, King testified that he knew Duffy for about 6 years and Flynn for 10 to 15 years, that he would see and speak to them on the street occasionally, but that he did not socialize with them. He did not offer defendants a drink, but they did make themselves one. He was left alone in the dining room for 5 or 10 minutes while defendants were in the kitchen with his wife. He could not tell what defendants were doing. Defendants kept going back and forth from the front rooms to the back rooms where his wife and child were. Duffy came into the dining room and held a gun on him while Flynn guarded his wife. He at first denied belonging to any organizations, but then admitted belonging to an organization called “The Blacks.” He denied having a conversation with Duffy concerning a plan to rob the Drake Hotel or of being given money to purchase uniforms to impersonate employees of the hotel although he admitted that on November 4, 1971, as he was returning from work at the Drake Hotel, Flynn and two companions approached him to suggest such a plan. He refused to be part of the plan and reported this incident the next day to the chief officer at the hotel. On the night of the robbery, after returning from the hospital, he moved his family to his mother’s house at 624 West Division. He was unaware that Flynn lived at 524 West Division. He did not see either defendant on the street after the incident nor has he spoken to them since that time. Because he moved out of his apartment he missed the detectives who came calling at his apartment. He was in contact with the police and did sign a complaint 2 weeks later. He denied ever taking any narcotics and exhibited his arms to show that he had no injection scars. The witness identified a .32-caliber gun that Duffy used the night of the robbery.

Richard Wedgbury testified for the State.

He is a Chicago police officer and that on November 20, 1971, at approximately 12:30 A.M. he arrested Flynn as he was sitting in a taxicab. He recovered a ,32-caIiber gun that defendant had taken out of his pants and slipped underneath the front seat.

Irving Duffy testified on his own behalf.

He and Flynn had gone to King’s home on the night in question to get some money that they had given him a few days before. It was King’s idea to purchase uniforms, pose as employees of the Drake Hotel, and rob the cashier’s office of the hotel. King told them that they would have to wait. He did not know King too well and did not trust him. He and King started pushing and shoving each other around while Flynn and Dolly King were in the kitchen making drinks. King was acting kind of crazy, and when he turned around King jumped out the window. He and Flynn went downstairs where they saw King hopping along the alley. They walked over to their automobile and drove away. He further testified that neither he nor Flynn had a gun that night, that he did not take any money from King and that they did not ransack the apartment.

Alonzo Flynn testified on his own behalf.

He had known King for 10 to 15 years, that he attended grade school with both King and his wife Dolly, that he used to live across the street from him, that Dolly used to like him, that he had been invited to their home several times, that he and King belong to the Black Family Youth Organization and used to drink and take heroin together. He corroborated Duffy’s testimony regarding King’s robbery plan and further testified that King took him and Carl Colston to work to show them the layout of the hotel. On the date in question he and Duffy went to King’s apartment to get their money back because they decided not to go through with the plan. King started acting funny and refused to give back the money. He was in the kitchen with Dolly when he heard a crash. He did not táke any money nor did he threaten King or his family. The next day he saw King on the street. King said that he had been high on drugs that night and was upset because his wife had left him, but that everything was all right now.

Robert Higgins testified for the defense.

He coiToborated defendants’ version that the robbery scheme had been King’s idea, that King had been given $100 on November 3, 1971, for the purchase of uniforms and 2 days later told him, Flynn, Duffy and three other fellows who had contributed money that something went wrong and that they should go to his house that night. He, however, did not go to King’s house that night. He further testified that he had seen Flynn over at the King’s home on several occasions and had heard and seen Flynn and Dolly engaged in conversations at several lounges. He admitted that he was a convicted felon.

Enis Chaney testified for the defense.

He, King, Flynn, Duffy and Carl Colston had met on November 3, 1971. King was talking about the Drake Hotel and wanted $100 for some uniforms. He didn’t contribute any money.

Opinion

Defendants first contend that the evidence does not establish their guilt beyond a reasonable doubt. They argue that it is unlikely that they would rob persons with whom they were acquainted and who could therefore make a positive identification. Defendants also suggest that the testimony of the complaining witnesses was not credible, was marked with inconsistencies and was contradicted by defendants and two disinterested witnesses.

The rule is well established that it is the function of the trier of fact to weigh testimony, judge the credibility of witnesses, and determine factual matters. Only where the evidence is so unsatisfactory as to leave a reasonable doubt of defendant’s guilt will the finding of the trial court be disturbed. People v. Benedik, 56 Ill.2d 306, 310, 307 N.E.2d 382.

After reviewing the record, we do not find the evidence improbable or unsatisfactory as to leave a reasonable doubt of defendants’ guilt. We cannot accept, as defendants urge, that it was improbable that defendants would rob persons who could later make a positive identification, or that it was unlikely that King would leave his family if they were being threatened and jump out a second-floor window. The purported inconsistencies, on closer examination, reveal no material discrepancies. Regarding the testimony offered by the defense that contradicts the complainants version, we note that it essentially raises a question of credibility of the witnesses. We conclude that defendants’ guilt was proven beyond a reasonable doubt.

Defendants also contend that their sentences of 10 to 15 years are excessive. They argue that the trial judge incorrectly found defendants guilty of aggravated battery, considered improper evidence in sentencing defendants and entered sentences grossly in excess of modem penology guidelines.

At the conclusion of defendants’ trial, after hearing evidence in aggravation and mitigation, the court stated:

“First, the aggravated battery counts are merged in the armed robbery arising out of the same series of events and under that set of circumstances, I don’t think legally I can impose separate sentences. I impose sentence on the armed robbery which is charged and which I found both Mr. Flynn and Mr. Duffy guilty of.”

Defendants argue that the court’s sentence was affected by it having erroneously found defendants guilty of aggravated battery, an offense, not even charged. We disagree. The finding of guilty was entered the previous day “in manner and form as charged in the indictment” We are inclined to agree with the State that the trial court’s statement was merely a verbal misnomer which did not affect the sentence since the court merged the offenses and entered sentence solely on the armed robbery charge.

The improper evidence that defendants allege affected their sentencing concerned remarks of the prosecutor that Flynn had had a burglary charge stricken and that he had been convicted on a charge of possession of marijuana. The statute for the latter offense had subsequently been declared unconstitutional.

Arrests or other encounters with the law which have not resulted in convictions have been held inadmissible in arriving at the punishment for the crime charged. (People v. Riley, 376 Ill 364, 33 N.E.2d 872; People v. Grigsby, 75 Ill.App.2d 184, 220 N.E.2d 498.) However, it must be readily apparent that the sentence was affected by such inadmissible evidence (People v. Johnson, 13 Ill.App.3d 204, 300 N.E.2d 535.), to the substantial prejudice of defendant. (People v. Riley, 376 Ill. 364, 33 N.E.2d 872.) Moreover, it should be presumed that the trial court, on the hearing in mitigation and aggravation, disregarded any incompetent or immaterial evidence. People v. Rradford, 23 Ill.2d 30, 177 N.E. 2d 139.

In the instant case, there is no affirmative indication that the sentence imposed was affected by the conviction for possession of marijuana or the stricken burglary charge. Flynn was at the time of the hearing serving probation for his conviction of unlawful use of weapons and Duffy’s record showed convictions for robbery, unlawful use of weapons, gambling and failure to register a firearm. When considered with the particular crime evidenced here, we must conclude that substantial admissible evidence supported the sentence.

Defendants’ final argument that the sentences were grossly excessive is not borne out by the record. The State’s Attorney, because of the invasion of the complainant’s home and the threats made on his family, sought 10 to 20 year sentences. The trial judge, however, imposed 10 to 15 year sentences. We do not find an abuse of the trial court’s discretion requiring this court to reduce that sentence.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.