text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George H. Healey, Jr., Defendant-Appellant.
    (No. 72-179;
    Second District
    October 11, 1974.

      Rehearing denied November 7, 1974.

      William H. Snively, of Rockford, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant, George H. Healey, Jr., entered a plea of guilty to the offense of murder on January 12, 1970. He was sentenced for a term of 40 to 75 years. He appealed the conviction to this court on the sole issue of the excessiveness of sentence and the sentence was affirmed. (People v. Healey (1971), 132 Ill.App.2d 190, 267 N.E.2d 753.) During the appeal the defendant filed a pro se petition for post-conviction relief which was later amended by court-appointed counsel. Following an evidentiary hearing, the trial court held that the amended petition for post-conviction relief should be denied. It is from this order that petitioner now appeals.

On this, appeal the defendant contends that the trial court in the post-conviction hearing erred in finding that (1) defendant waived his rights ydth respect to all matters presented in his post-conviction petition which should have been raised on appeal; (2) trial counsel was competent; (3) defendant was competent to stand trial, and (4) the guilty plea was not coerced. In addition, defendant asserts that if this court finds a waiver of rights by operation of the direct appeal, then appeal counsel was incompetent for failing to raise all issues on appeal.

In our opinion, however, we need only consider two issues on this appeal. First, did the trial court err in its finding that the defendant waived his rights with respect to all matters presented in his post-conviction petition which should have been raised on direct appeal? Second, was appellate counsel incompetent?

Relief under the Post Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, pars. 122 — 1 through 122 — 7) is clearly limited to a consideration of errors made at trial which result in conviction and are a substantial denial of petitioner’s constitutional rights. (People v. Shaw (1971), 49 Ill.2d 309, 273 N.E.2d 816.) It is not designed as a means by which to retry the question of defendant’s guilt or innoceiice. In addition, when review is obtained by a direct appeal, the judgment of the reviewing ..court is res judicata not only as to those issues actually raised on appeal but also as to those issues which could have been raised but were not. (People v. Weaver (1970), 45 Ill.2d 136, 256 N.E.2d 816.) Where fundamental fairness requires, strict application of the doctrine of res judicata in the context of a post-conviction hearing will be relaxed when there is a showing that the failure to raise certain issues was .due to incompetency of counsel, or other causes beyond the defendant’s control. See People v. McCracken (1969), 43 Ill.2d 153, 251 N.E.2d 212.

Applying these principles to the instant case, as indicated above the defendant appealed his conviction to this court on the sole issue of the excessiveness of sentence. On appeal, the defendant could have raised those issues which were not waived by operation of his guilty plea. By limiting his appeal to a single -issue the defendant thereby waived his right to later assert deprivations of constitutional rights which might have been presented on appeal. Since the defendant was represented on direct appeal by different appointed counsel than had represented him at trial, the appeal also waived the right to later assert incompetency of trial counsel. Thus, in the absence of a showing of causes beyond defendant’s control which prevented the assertion of these issues on direct appeal, they were waived by operation of the appeal.

Defendant also asserts that if this court finds a waiver of rights by operation of his direct appeal, then his first appellate counsel was incompetent for failing to raise all issues on direct appeal. The issue of the incompetency of appellate counsel was not raised in the amended post-conviction petition. In this case the same member of the District Defender Project from the Second District who handled the direct appeal also filed the amended post-conviction petition. Following the filing of the amended post-conviction petition, appointed counsel withdrew and a member of the District Defender Project from the Third District was appointed. This counsel apparently felt that he could not assert the incompetency of a member of his office (but from another district) on a post-conviction hearing. Following the ruling on his amended petition for post-conviction relief defendant moved for a substitution of his second appointed post-conviction counsel. This motion was granted and the attorney representing the defendant on this appeal was appointed. In such circumstances it would be unjust for us to refuse to consider the issue of incompetency of appeal counsel. In this connection, the Supreme Court of Illinois has stated that:

“In view of the need to protect the right to appeal with the aid of competent counsel, and upon appraisal of the spirit and ultimate purpose of the Post-Conviction Hearing Act, we conclude that the Act provides a proper vehicle for review of those issues as to which review by direct appeal has been unconstitutionally denied by deprivation of the right to appeal, the right to competent counsel on appeal, or the concept of fundamental fairness.” People v. Frank (1971), 48 Ill.2d 500, 504, 272 N.E.2d 25, 27.

With regard to the standard to be applied to determine the competency of appellate counsel for purposes of post-conviction relief, the court went on to state:. •

“We recognize no obligation of appointed counsel to brief every conceivable issue on appeal. It is not incompetence for counsel to refrain from raising those issues which in his judgment are without merit, unless his appraisal of the merits is patently wrong.” (Citations omitted.) (48 Ill.2d at 505, 272 N.E.2d at 28.)

Whether or not appellate counsel was incompetent is a question properly cognizable in a post-conviction proceeding. See, e.g., People v. Savage (1972), 8 Ill.App.3d 162, 289 N.E.2d 460.

Defendant has failed to allege facts or authority upon which this court may determine whether appellate counsel was incompetent, aside from the general allegation that if we find that defendant, through his counsel, by raising only the one issue of excessive sentence in his direct appeal, thereby waived other possible issues, then we should find his first appellate counsel incompetent. This, in turn, defendant contends, would thereby deprive him of his constitutional rights. Clearly, the mere fact that some rights have been waived by failure to appeal certain issues does not in itself establish incompetency of appellate counsel. We must judge the acts of appellate counsel to determine whether any issue not raised on appeal was so patently meritorious that the failure to raise it constitutes incompetency.

Appellate counsel was faced with a client who had pled guilty to a particularly violent and brutal murder of his wife. Dr. Hans E. Dolz, who performed the autopsy on the body of the victim, testified that the victim had died of multiple skull fractures, contusions of the brain, brain hemorrhage and internal bleeding caused by a gunshot wound through the upper abdomen and liver. It was the doctor’s opinion that the victim was struck by the killer with a minimum of ten blows in order to inflict the injuries received. The killing was accomplished in full view of a neighbor of the Healey’s, Lynette Dussault, who testified to that effect. The defendant’s guilty plea was entered after the court indicated that it would refuse a voluntary manslaughter instruction and after the court sustained an objection to a hypothetical question which would have raised the defense of insanity. The plea was accepted by the court following a careful interrogation of the defendant in regard to the consequences of his plea. See Ill. Rev. Stat. 1969, ch. 110A, par. 401b.

Defendant contends that the trial court erred in failing to order a competency hearing sua sponte and that if the issue, of. defendant’s competency was waived by appeal, that appellate counsel was incompetent for failure to raise it on appeal. Our review of the record indicates that prior to accepting a guilty plea the trial judge had before him the reports of three psychiatrists which all indicated that the defendant was isane and/or competent to stand trial. The court did not order a competency hearing to be held, and in our view this decision was correct. Clearly, the decision to not appeal on this issue was not “patently wrong.”

Defendant next contends that the issue of whether his plea was coerced should have been appealed. A full review of the record reveals that upon entry of the plea, the trial judge explained the charge, the possible sentence, and the fact that he was abandoning his right to a jury determination of guilt or innocence. The post-conviction hearing judge found that the plea was not the product of coercion and that it was made knowingly and intelligently by the defendant. Defendant contends that it was error to not advise him of the effect of his guilty plea upon his appeal rights at the time of acceptance of the plea. In support of this contention, defendant has cited People v. Phelps (1972), 51 Ill.2d 35, 280 N.E.2d 203, and Supreme Court Rule 605 (Ill. Rev. Stat. 1969, ch. 110A, par. 605). In reading the authorities cited and independent research we find no support for the position asserted. The remainder of defendants argument on this point is conclusionary and does not support a finding of incompetency of appellate counsel for failing to appeal the issue of purported coercion of his guilty plea.

Finally, defendant asserts that his trial counsel was incompetent and that if we find that this issue was waived by direct appeal, then appellate counsel was incompetent for failing to raise it on appeal. In People v. Morris (1954), 3 Ill.2d 437, 449, 121 N.E.2d 810, 817, the supreme court stated that in order for a defendant to establish incompetent representation by appointed counsel he must show:

“* # # (i) actual incompetency @f counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different.”

(See also People v. Dudley (1970), 46 Ill.2d 305, 263 N.E.2d 1, and People v. Georgev (1967), 38 Ill.2d 165, 230 N.E.2d 851.) Defendant contends that the factors to be considered are the manner in which counsel carried out his duties with regard to the defendant’s competency and the voluntary manslaughter issues and the manner in which advice was given at the time of the entry of the guilty plea. He further alleges that had counsel performed differently the outcome of the trial would probably have been different. With regard to the competency issue, defendant contends that trial counsel was incompetent for failing to request a competency hearing. The supreme court has considered this contention in People v. Skorusa (1973), 55 Ill.2d 577, 584, 304 N.E.2d 630. The court there stated:

“The only evidence relied on by the defendant to prove incompetence of comisel is his counsel’s failure to request a competency hearing. However, as we noted in People v. Russo, 52 Ill.2d 425, the mere authorization by the court of a psychiatric examination does not mean that the subsequent failure of counsel to request a ■competency hearing amounts to incompetent representation. This is particularly true where, as here, the Behavior Clinic report com eludes that the defendant is able to co-operate.”

It is to be noted that in the case before us the defendant not only cooperated with counsel at his trial, but counselled with and advised coum sel as to his-defense. In addition, since we have already determined: that no bona fide doubt existed as to defendant’s competency, no substantial prejudice resulted to defendant from the failure of counsel to request a competency hearing. Thus, it cannot be said that the failure of trial counsel to request a competency hearing denied defendant the effective assistance of counsel. As to the allegation of improper advice at the time the change of plea was discussed, defendant asserts that he was assured by counsel that the psychiatric testimony and manslaughter instruction issues would not be waived by a plea of guilty. Our review of-the record leads to the conclusion that even if this advice was erroneous it was harmless and did not result in substantial prejudice to defendant’s rights since the proof of defendant’s guilt was overwhelming. The validity of the plea is unaffected by this advice. See McMann v. Richardson (1970), 397 U.S. 759, 25 L.Ed.2d 763, 90 S.Ct. 1441.) Defendant’s position on these issues is without merit. Thus, we find that defendant has failed to establish the incompetency of trial counsel. It therefore follows that appellate counsel "was not incompetent for failing to raise this issue on appeal.

It may be noted at this point that notwithstanding the fact that various assertions of error were not raised on direct appeal, they were raised in the trial court in the post-conviction hearing. ^The judge presiding took evidence on these issues and following a full hearing found them to be without merit. On appeal, we shall not disturb these findings unless they appear contrary to the manifest weight of the evidence. Our review of the evidence finds the determination of the trial judge to be substantially supported by the evidence.

Since we find that defendant waived certain of his rights by the direct appeal and since we find that appellate counsel was not incompetent for failing to raise these issues on-appeal, we affirm the judgment of the circuit court dismissing defendant’s amended post-conviction petition.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE RECHENMACHER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Fleming, Defendant-Appellant.
    (No. 73-71;
    Second District
    October 25, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Defendant represented by appointed counsel appeals from an order of the Circuit Court of Lake County revoking his probation, and imposing a sentence of 3 to 9 years for the offense of burglary. He also urges this court to “relax” our holding in People v. Nordstrom (1966), 73 Ill.App.2d 168, appeal dismissed (1967), 37 Ill.2d 270, so as to permit him to appeal the original judgment on his guilty plea to burglary.

On June 2, 1971, defendant, under indictment for burglary and represented by privately retained counsel, waived trial by jury and filed his application for treatment as a narcotics addict under section 1 et seq. of the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1971, ch. 91%, par. 120.1 et seq.). Upon being notified of his acceptance for treatment by the Department of Mental Health the defendant came to court on June 25, again with privately retained counsel, and entered his plea of “guilty” to the charge of burglary. He was placed on 5 years’ probation conditioned on the fact that he abide by the rules of the Department of Mental Health Drug Abuse Program, and that he comply with all of said department’s orders and mandates.

On September 10 the State filed its petition to revoke defendant’s probation for his failure to abide by those orders and after defendant was incarcerated the public defender was appointed to represent him. On November 21 a hearing was held on the State’s petition and on November 30 the court entered its order continuing the 5-year probation and vacating defendant’s treatment as an addict under the Drug Abuse Program, but directing the defendant, among other things, to take psychiatric treatment at tire Lake County Mental Health Clinic and to abide by its program.

On May 16, 1972, the State filed a petition to revoke probation because of defendant’s failure to report to the Health Clinic during March and April as he was required to do under the Clinic’s treatment program. Between that date and September 6, the date of the probation revocation hearing, defendant’s brother Floyd appeared in court representing himself to be the defendant and the public defender was again appointed to represent the defendant. At the probation revocation hearing, which was combined with the hearing in aggravation and mitigation, defendant did not deny violation of probation but merely asked and received permission to offer evidence in mitigation. At the conclusion of the hearing the court revoked defendant’s probation and sentenced him to a term of 3 to 9 years.

We first turn our attention to defendant’s request that we reconsider and relax our holding in People v. Nordstrom, supra, and permit him to raise, in his appeal, his contention that at the hearing at which his guilty plea was accepted the trial court failed to admonish him in accordance with the requirements of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). Defendant is aware that under Nordstrom such errors cannot be raised for the first time in an appeal from the revocation of a defendant’s probation. We find no compelling basis for relaxing that ruling in this case. Since defendant had not exercised his right to appeal the judgment of the trial court entered on June 25, 1971, on his plea of guilty, at which time he was placed on probation for 5 years, he is precluded from raising this issue for review on his appeal from the judgment revoking his probation.

It is true, as defendant contends, that Supreme Court Rule 605 (Ill. Rev. Stat. 1971, ch. 110A, par. 605) amended effective September 1, 1970, in effect at the time of defendant’s guilty plea, required the trial court to admonish defendant that “his right to appeal will be preserved only if a notice of appeal is filed * * * within 30 days from the date of the sentence.” It is also true that the record does not indicate that the trial court did so admonish defendant. However, the Illinois Supreme Court has held that the trial court’s failure to give a defendant such notice does not raise a constitutional question and “is not a denial of due process” but merely “stems from the dictates of good practice.” (People v. Covington (1970), 45 Ill.2d 105.) Supreme Court Rule 605 was again amended effective July 1, 1971 (6 days after defendant made his guilty plea here), so as to provide in effect that in the case of a guilty plea the trial court was not required to inform the defendant of his right to appeal and that his right to appeal will be preserved only if notice of appeal is filed within 30 days from the date of sentence.

If gross errors have been committed by the trial court defendant is at liberty to challenge them by way of filing a petition in the trial court pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1 et seq.). That is the orderly process which-has been established and is available to the defendant. We do not intend to preempt the trial court’s prior consideration of appropriate challenges to the administration of justice.

Next the defendant contends that his minimum sentence should be reduced from 3 years to 1 year because the judge who imposed sentence was insufficiently familiar with the facts of the burglary conviction. Defendant calls attention to our statement in People v. Fields (1972), 8 Ill.App.3d 1045, 1048:

“Among the factors to be considered by a trial court in impos- • ing a sentence are the circumstances attending the commission of the offense so that the court can properly assess the protection for the public and the potential rehabilitation of the- accused.”

We continue to adhere to that view. Our examination of the record in the instant case demonstrates that the court was aware not only of the circumstances of the offense committed by the defendant to which he pled guilty, but of the reason for its commission and the defendant’s rehabilitation potential. The judge had given defendant ample opportunity to become rehabilitated but without avail. Thereafter he heard the testimony of defendant’s probation officer and saw and heard the defendant. The judge certainly was in a superior position to a reviewing court to consider and evaluate the likelihood of defendant’s rehabilitation. Moreover the sentence is within the limits prescribed by the legislature and not in variance with the spirit of the law. (People v. Taylor (1972), 8 Ill.App.3d 727, 732; People v. Burbank (1972), 53 Ill.2d 261, 275. ) We cannot say that the minimum sentence imposed by the court was excessive.

Finally the defendant contends that he should be given credit on his sentence for the time spent in custody and on probation. We agree. Section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—7(b)) provides for such credit “for time spent in custody as a result of the offense for which sentence was imposed.” Section 5 — 6—4(h) of-that code (par. 1005 — 6—4(h)) provides for such credit for “[t]ime served on probation.” Defendant is therefore entitled to receive credit for the-time spent in custody and on probation prior to. the filing of .the petition for revocation. People v. Blake (1973), 15 Ill.App.3d 39, 44; People v. Decker (1973), 15 Ill.App.3d 230, 234.

Therefore- the judgment of the trial court is affirmed and the cause is remanded with directions to modify the sentence so as to give credit for time spent in custody and on probation and to cause its mittimus to issue accordingly.

Affirmed and remanded with directions.

GUILD and SEIDENFELD, JJ., concur..


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sammie White, Defendant-Appellant.
    (No. 12627;
    Fourth District
    October 24, 1974.
    John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Walter F. Farrand, Assistant State’s Attorney, of counsel, assisted by Terry Lee Fields, Senior Law Student), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

This appeal raises, as its single issue, the contention that the maximum in a sentence of 1 to 20 years is excessive.

Defendant was charged with the offense of escape, a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 31 — 6(a).) For such offense the statute provides a minimum of 1 year and a maximum not to exceed 20 years. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b) (3).

Defendant’s plea followed negotiations between counsel. In open court defendant agreed that the sentence imposed was that which had been negotiated. He waived presentence investigation, presentence report and sentence hearing.

In argument defendant agrees that the minimum sentence determines parole eligibility, but urges:

“[I]t is not unlikely that one of the factors considered by corrections authorities in determining the rehabilitation potential of the defendant is the grievousness of the offense, as measured by the court’s determination of the maximum period of incarceration warranted.”

No authority, other data or experience supports such tentative and speculative conclusions.

It is further urged that such maximum sentence is so excessive that it may inhibit the defendant’s rehabilitation potential. Since his parole eligibility is determined by the maximum sentence, we reach the contrary conclusion that the sentence imposed provides the greatest possible spectrum for the determination of the rehabilitation of the defendant.

The burden is on defendant to make a substantial showing which justifies reduction of sentence. (People v. Nelson, 41 Ill.2d 364, 243 N.E. 2d 225; People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239.) Defendant’s waiver of pre-sentence report and sentence hearing provides no basis but argument for determining that the maximum is harsh. There is no challenge to the fact that the plea was freely negotiated and was voluntarily and intelligently entered.

The judgment is affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Olen Bell, Defendant-Appellee.
    (No. 73-326;
    Second District
    October 25, 1974.
    Philip G. Reinhard, State’s Attorney, of Rockford (David D. Koski, Assistant State’s Attorney, of counsel), for the People.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. JUSTICE DIXON Mr. JUSTICE ALLOY Mr. JUSTICE STOUDER

text:
    Betty J. Gross, Plaintiff and Counterdefendant-Appellee, v. John D. Gross, Defendant and Counterplaintiff-Appellant.
    (No. 73-278;
    Third District
    October 29, 1974.
    ALLOY, J., specially concurring.
    STOUDER, J., dissenting.
    Robert E. Utter, of Mt. Sterling, for appellant.
    James D. Lucie, of Lybanger & Collins, of Bushnell, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Betty J. Gross, the plaintiff, sued John D. Gross, defendant, for divorce on the grounds of mental cruelty. Defendant answered and counterclaimed on the ground of adultery. The Circuit Court of Hancock County denied plaintiff’s prayer and granted defendant husband a divorce on the ground of adultery. The court ordered defendant to pay plaintiff alimony in gross and her attorney fees. The .defendant appeals from that part of the judgment awarding alimony.

The plaintiff filed her complaint on July 3, 1972. The defendant set up the defense of recrimination (adultery) and filed a counterclaim alleging that the counter-defendant had for more than 18 months prior thereto been living in open and notorious adultery with one William Hester and requesting partition of the only real estate which was co-owned by the parties.

The plaintiffs original complaint did not request an award of alimony nor did it allege any special equities in real estate owned in the name of the defendant. During the course of the trial the plaintiff was given leave to amend her complaint to allege that during the marriage she had made payments on real estate taxes and general repairs on the property from funds earned while operating the family business, and still later the plaintiff was granted leave to file a second amendment to the complaint to include a request for alimony and attorney fees.

The plaintiff, aged 46 at time of trial, and the defendant, aged 48 at time of trial, were married on the 10th day of August, 1946. To this marriage there was born one son who is now a married adult and self-supporting.

The defendant at the time of marriage and thereafter was a partner with his mother and father in the operation of a jewelry store in Mt. Sterling, Illinois, known as L. A. Gross and Son Jewelry. Prior to the impairment of his eyesight, he was a skilled watchmaker and actively shared the management of the jewelry store. In the year 1963, the defendant’s father passed away. Shortly thereafter the plaintiff became actively engaged in the operation of the jewelry store, continuing to be so until March, 1972. The defendant’s mother passed away after the commencement of this proceeding.

In 1958 the defendant acquired a farm of approximately 90 acres and a rental residence by inheritance from an aunt; later, he acquired a remainder interest in the residence that his parents occupied. The title to the jewelry store was acquired by the three partners as joint tenants in the year 1946.

The defendant has a history of intemperance which increased in intensity after the death of his father and the loss of his eyesight which precluded the use of his skills in the watch-repair business.

At about the same period the defendant’s driver’s license was revoked and he has not operated an automobile since. The plaintiff and defendant resided in a home located at the east edge of Mt. Sterling, approximately lVz miles from the store location. The plaintiff, from necessity, drove the defendant to and from work. The defendant contends that the plaintiff would no longer drive him back and forth, making it necessary for him to move into one of the apartments above the store. The plaintiff disputes this claim although in her complaint she alleges that they have not lived together as man and wife since May, 1965.

The record is full of testimony as to plaintiff’s mental and physical anguish attributable fully to defendant’s drinking and his inattention to business since 1965. In fact, defendant concedes that it would be ridiculous to portray himself as a kind, dutiful and affectionate husband. . For a short period of time the plaintiff and their son resided with the defendant in one of the apartments above the store. The plaintiff states that she left the apartment because defendant’s mother had rented it to another.

The income from the various properties progressively deteriorated and the gross sales from the jewelry store during this period were: in 1969— $36,576; 1970 — $30,792; and in 1972 — $23,280. The reportable incomes which the plaintiff assisted in compiling were: In 1971 — $436.80; 1970— $225.40; 1969 — $476.45; and 1968 — $2,352.45. Plaintiff and defendant each individually took their personal and living expenses from the cash drawer, the exact amount each took being unknown.

In 1967 the plaintiff had an operation in a Macomb hospital, at which time she was visited by one Bill Hester who resided in Plymouth, Illinois. At the same time and in the same hospital, the wife of Bill Hester also had surgery. Prior to her marriage to the defendant, the plaintiff and Mr. Hester had been engaged to be married. The plaintiff does not know how many times Mr. Hester drove to Mt. Sterling to see her prior to 1971 but thinks it may have been six or seven times. On such occasions the defendant was not present. After Mr. Hester’s wife died in 1970, he phoned the plaintiff approximately once each week.

During the month of February, 1971, the plaintiff, without the knowledge of the defendant, moved to the home of Bill Hester in Plymouth, Illinois, with whom she continues to reside. From February, 1971 to March, 1972, the plaintiff would drive daily from Mr. Hester’s home to the jewelry store in Mt. Sterling where she worked during the day and then returned at night to Mr. Hester’s home at Plymouth, Illinois, a distance of approximately 54 miles.

The defendant husband became aware of the situation only a short time prior to plaintiff’s permanent departure in March, 1972.

The plaintiff’s testimony as to the defendant’s conduct included three instances of physical violence, one approximately 15 to 20 years ago which she later assumed resulted in a broken nose, a black eye incurred when she lived in the apartment with the defendant and a kick on the ankle or leg on the day of her departure, together with considerable testimony as to her mental anguish arising from defendant’s drinking and his inattention to the store’s business problems or her difficulties in the repair and maintenance of the marital home.

Plaintiff also expressed concern, although never threatened, because she had on many occasions observed defendant with a gun in his pocket. Defendant had a gun collection and had it for protection of the jewelry store. Plaintiff on occasions also carried a handgun.

The plaintiff contends that, in spite of her previous engagement to Mr. Hester, the fact that she has spent almost every night since February 1971 with him, including an overnight trip to Missouri to see her son at school and staying overnight in a motel at Gulfport, Illinois, and their financial arrangements, she is merely a housekeeper and has never engaged in sexual intercourse with Mr. Hester.

Plaintiff receives no set compensation for her services as housekeeper. She originally deposited Mr. Hester’s checks and was authorized to write checks on his account with which she paid the household expenses. At the present time she merely cashes his check and pays certain household expenses in cash.

In August, 1972, the plaintiff purchased a residence in Plymouth, Illinois, and Mr. Hester moved into the home with her. She does all the laundry and cooks the meals for Mr. Hester. Mr. Hester does the yard work and repairs to the house.

She cannot remember the last meal she cooked for the defendant and did not do defendant’s laundry.

The phone in the home of the plaintiff is listed in the name of William Hester.

The plaintiff claims to have suffered a heart attack in 1971 which went undetected until an examination in September, 1972, and because of her heart condition and growths behind her knees, she is unable to be gainfully employed. She claims expenses of $282 per month and indebtedness of $7350, much of which was not established by written evidence of indebtedness. Her only source of income is an anticipated $50 a month from Mr. Hester for his room and board. Plaintiff did not at any time after her departure request funds from the defendant for support.

The defendant during the trial of the case suffered a stroke and was hospitalized for a period of seven weeks. He is physically unable to care for himself. His son and daughter-in-law now assist in the operation of the jewelry business and five with him in the former residence of his parents.

The plaintiff’s appraiser appraised the marital residence at $9,800, the rental residence at $8,500, the former parents’ residence at $13,500, the farm at $35,475 and the jewelry store building at $21,000.

The store indebtedness was approximately $4,000 when plaintiff became active in its management and approximately $3,000 when she left. During the interim of her participation it became necessary to place a $6500 mortgage on the farm, the proceeds which were used in the operation of the store. The mortgage has not been reduced.

The trial court found that the wife had not established any specific equities in the property owned by the husband but found that the plaintiff had worked in the store and carried responsibilities for some length of time. The court believed that her present physical disabilities restricted her work at gainful employment and that some provisions for alimony should be made. The court specifically ruled that it was not proceeding under section 17 of tire Divorce Act but was proceeding under section 18, i.e., the provision having to do with alimony either in installment payments or in gross. The court found the defendant’s equity in the real estate to be $72,000 and that one-fourth would amount to $18,000, which was ordered paid in lieu of periodic alimony. The court further ordered the payment of $1,000 for plaintiff’s attorneys fees and ordered partition of the marital residence held in joint-tenancy.

An erring wife often has an equitable or meritorious claim to a portion of the husband’s estate on the ground that she worked with him, or worked separately and pooled her money with his and so assisted him in acquiring the estate. Section 17 of our Divorce Act authorizes the trial court to make a just division of the property of the parties in satisfaction of the wife’s claims; a separate award of property is made which is distinct from alimony. Gebhardt v. Gebhardt, 18 Ill.App.3d 658; Neumark, Property Rights in Divorce, 62 Ill. B.J. 242 (1974). However, both parties in the instant case agree that the statute involved herein is section 18 of the Divorce Act (Ill. Rev. Stat., ch. 40, par. 19), which provides in pertinent part:

“When a divorce is decreed, the court may make such order touching the alimony and maintenance of the wife or husband, * * * from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just * *

Both parties agree, each citing Pohren v. Pohren, 13 Ill.App.3d 380, 384, that the statute does not refer to, and does not make an award to defendant depend on the question of fault and that they further agree that under certain circumstances the court is empowered by the statute to award alimony to a wife against whom a divorce is granted.

Appellant husband, however, contends that it is an abuse of discretion to award alimony to a spouse guilty of adultery, citing Ganzer v. Ganzer, 110 Ill.App.2d 394 (1969); Spitler v. Spitler, 108 Ill. 120 (1883); and Hickling v. Hickling, 40 Ill.App. 73 (1891), which appear to be the only Illinois cases on the exact point.

In Ganzer, the court after acknowledging that the trial court in its discretion and under proper circumstances might grant alimony to an erring wife stated, “However, it has long been held that where the misconduct of the wife has been so gross, as when she has been guilty of moral delinquency such as adultery, it would be an abuse of discretion to award her permanent alimony.” (10 Ill.App.2d 394, 398.)

Spitler held it to be an abuse of discretion to award permanent alimony to a wife who had deserted her husband to live in adultery with another man. In Hickling, where the marriage took place on 13 September and on the 7th day of October thereafter the adultery took place, an award of alimony in gross was reversed.

It is an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery. 24 Am. Jur. 2d Divorce and Separation §622 (1966); Annot, 9 A.L.R. 2d 1026, 1027 (1950); Annot., 34 A.L.R. 2d 313, 349 (1954); 16A I.L.P. Divorce § 154 (1971); 27A C.J.S. Divorce § 229(3)b (1959).

In the instant case the erring wife had taken up her illicit relationship with the paramour and continued to reside with him for more than 2Yz years prior to the time the decree was entered. She further evidenced no intention of discontinuing the relationship. Her conduct was not an isolated instance of indiscretion or a temporary affair of passion. We agree with Spitler, and Ganzer, supra, that it is an abuse of discretion to award her alimony and accordingly that part of the judgment awarding alimony to the plaintiff is reversed.

Reversed in part.

Mr. JUSTICE ALLOY

specially concurring:

I concur in the conclusion that it was an abuse of discretion to award alimony in gross to the plaintiff in this cause. I do not, however, concur in all of the reasoning set forth in the other reversing opinion filed herein.

I believe that we all agree that the court may make an award of alimony under the terms of section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19) on the basis of what is fit, reasonable and just. Our courts, however, have construed such provision to interpret the statute as meaning that, while it is no longer the rule that alimony may not be granted to a party guilty of misconduct, the courts have reviewed the conduct of the individual involved as one of the significant factors for consideration, and where the conduct is adultery and determined to be so gross as to justify denial of alimony, the award of alimony was considered to be improper. (Ganzer v. Ganzer, 110 Ill.App.3d 394, 294 N.E.2d 660 (1969); Spitler v. Spitler, 108 Ill. 120 (1883).) In this court in the case of Pohren v. Pohren, 13 Ill.App.3d 380, 300 N.E.2d 288, the various facts and circumstances to be considered in the award of alimony were discussed, where the party who was seeking the alimony was guilty of misconduct. It was clearly indicated in such case that the court could consider the nature of the wife’s misconduct and the interest of society in preventing a woman from becoming a public charge. In the cause before us, it appears to me that a consideration of such factors would indicate that an award of alimony in gross should be denied to plaintiff and that the discretion of the court should be exercised in a reasonable manner with consideration of all factors pertinent to the allowance of such an award. I, therefore, conclude, not as a matter of law, but as a matter of determination of whether or not the trial court abused its discretion, that the allowance of alimony in gross in this cause was improper and should be reversed.

Mr. JUSTICE STOUDER

dissenting:

I believe the judgment of the trial court should be affirmed and consequently I am not in agreement with the result reached by my colleagues. The award of alimony is based on section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19) which provides in pertinent part “* # * the court may make such order touching the alimony * * * of the wife s * * from the circumstances of the parties and the nature of the case, [as] shall be fit, reasonable and just * * The foregoing statutory provision does not make its effect depend upon the grounds for which a decree of divorce is granted and conversely does not exclude its application where any particular ground for divorce is the basis of the decree. So far as the statute is concerned, I find no authority or any holding that where the ground for the divorce is adultery the spouse against whom the decree is entered is as a matter of law barred from seeking and receiving an award of alimony. When the opinion of the court states, “It is an almost universal rule that permanent alimony will be denied to a wife who is guilty of adultery,” it seems to me that the court is saying that the adultery of a wife precludes as a matter of law any award of alimony to the erring wife. Such a holding is, I believe, contrary to both the letter and spirit of the statute and goes beyond the two principal cases relied on by either of my colleagues, namely, Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660, and Spitler v. Spitler, 108 Ill. 120. In the Spitler case, decided in 1883, the court nominally recognized that the statute did change the common law in that it no longer barred the receipt of alimony by the party guilty of the misconduct. In deciding, however, that the trial court improperly awarded alimony to the party guilty of the misconduct, namely adultery, the court in the Spitler case emphasized that at that time a wife had no right to her own income since it belonged to her husband as a matter of law and consequently any increase in the value of property accruing during the marriage was of no concern in the determination or awarding of alimony. Furthermore, the court in Spitler observed that the primary responsibility of a husband to support his wife continued only so long as she was a member of his household and that a wife’s fault or folly were sufficient reasons for denying her claims. Since the court in Spitler rationalized its result by referring to circumstances no longer deemed relevant, the persuasive force of the opinion is both diminished and of little assistance in a present-day application of the statute.

Ganzer v. Ganzer, 110 Ill.App.2d 394, 249 N.E.2d 660, also recognized that even where the misconduct is adultery the wife is not automatically barred from an alimony award even though in that case the court of review concluded the misconduct was so “gross” that an award of alimony was improper. As in Spitler, the court in Ganzer concerns itself only with the wife’s misconduct and if the statute is to be given effect neither the court in Ganzer nor in Sp!tler conceive of any circumstances justifying its application. Supporting the result in part because the erring wife was not repentant and rebuffed efforts at reconciliation likewise seems to have introduced irrelevant considerations of doubtful persuasive value so far as the precedential value of the opinion is concerned.

Before proceeding to discuss the award of alimony in this case in terms of judicial discretion, I believe it is important to bear in mind a rule which is a natural outgrowth of the statutory provision. This rule is that alimony is neither punishment for a miscreant nor a reward for the virtuous. (Sandberg v. Sandberg, 11 Ill.App.3d 495, 297 N.E.2d 654; Fox v. Fox, 129 Ill.App.2d 209, 262 N.E.2d 607.) This does not mean that either party has a right to alimony or that either party has a right to avoid the obligation to pay alimony. Although fault is still retained in this state as a necessary condition to the granting of a divorce, in the general consideration of matrimonial problems and the consequences of deteriorated marital relations the fault concept is losing its vigor and significance in determining property rights and related matters.

In the recent case of Pohren v. Pohren (divorce granted for wife’s desertion), 13 Ill.App.3d 380, 385, 300 N.E.2d 288, the court, in discussing the factors to be considered in the awarding of alimony even where the party seeking the alimony was guilty of misconduct, indicated the factors which should be considered. According to Pohren,

“Aside from the factors that affect an award to a wife who is innocent, such as her needs and the husband’s ability to meet them, the age, health and physical condition of the parties [citations] there are a few factors which are of particular importance in determining whether to award alimony to a guilty wife. For example, the court may consider the nature of the wife’s misconduct, the fact that the husband was somewhat at fault or contributed to the causes resulting in the separation of the parties * * * the length of time that the parties lived together; children etc.; the interest of society in preventing a woman from becoming a public charge; the fact that the woman married the husband for the purpose of obtaining some of his money, and most important of all the extent to which the wife has contributed in money and labor toward the enhancement and preservation of the husband’s estate (or even managing the household on a budget that did not consume all the husband’s earnings or estate) #

Since the opinion of the court goes no farther than concluding that the court has no discretion to award the appellee alimony because of her adultery, it can hardly be said that the rules of Pohren have been applied which make such misconduct only one of the factors relevant to the exercise and discretion by the trial court.

Even though the trial court found the appellee to be guilty of adultery in the instant case and no cross-appeal has been filed from such determination, it seems to me that the facts described indicate that the fault is not one-sided or independently unilateral. From the record it appears the appellant was an alcoholic, was neglectful of and disinterested in his wife and, according to his own admission, it would be ridiculous to portray himself as a kind, dutiful and affectionate husband. While the theory of provocation is not applicable where the charge is adultery such consideration would seem to be applicable in determining whether the trial court properly exercised its discretion in awarding alimony. Since the relative conduct of the parties seems to be the only disputed issue so far as the applicability of the Pohren rule is concerned, I think it can be inferred from the record that the trial court did consider the conduct of both parties and could have concluded that the husband’s own conduct contributed in substantial measure to the dissolution of the marriage relation. Even though the husband’s conduct was not a defense to the charge of adultery, it was relevant in determining that an award of alimony to the erring wife was appropriate. Accordingly, I find no abuse of discretion which as a matter of law renders the determination of the trial court improper.


author: Mr. JUSTICE DIXON

text:
    Alex Kuberski, Plaintiff-Appellant, v. Harold Noonan, Defendant-Appellee.
    (No. 74-55;
    Third District
    October 31, 1974.
    Ronald Tenold, of Lamoreaux & Tenold, of Monmouth, for appellant.
    Robert J. Noe, of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Warren County, Illinois, allowing a motion for a summary judgment. The plaintiff, Alex Kuberski, had brought suit against Harold Noonan and Donald Gustafson to recover damages for personal injuries, but Donald Gustaf-son is not a party to this appeal. The issue is whether the trial court erred in granting judgment for the defendant Harold Noonan.

All parties to the lawsuit were engaged in the business of farming on October 7, 1969, when the accident occurred from which this case arose. Gustafson was employed by Noonan to harvest beans on the farm owned and operated by Noonan. Gustafson used his own combine in the harvesting of the beans. On that date the combine developed mechanical problems and became inoperable. Gustafson drove to the farm of Kuber-ski, a friend, to request his help, and the two of them then returned to Noonans farm where the disabled combine was situated. They crawled beneath the machine and attempted to remove a frozen sleeve on the combine. Kuberski held a metal bar against the sleeve while Gustafson hit the bar with a hammer. In the process, a piece of metal flew into Kuberski’s right eye, and he lost almost all sight in that eye.

After suit had been brought, motions had been filed and argued relating to the pleadings, interrogatories had been propounded to Kuberski and answered, and the depositions of Kuberski and Gustafson had been taken, Noonan filed a motion for summary judgment, supported by his affidavit. The trial court denied the motion after hearing arguments. Noonan then filed a motion for reconsideration. Following new arguments the trial court allowed tire motion for reconsideration, vacated its previous order denying the motion for summary judgment, allowed the motion for summary judgment, and entered judgment in favor of Noonan against Kuberski. We must now determine whether, from the entire record (Klesath v. Barber, 4 Ill.App.3d 86), it appears that there was a genuine issue of material fact preventing entry of summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 57) in favor of Noonan.

Kuberski’s argument is that Gustafson was an employee of Noonan at the time of the accident, for whose negligence Noonan was responsible, rather than an independent contractor doing custom combining; that the most important criterion of the employer-employee relationship is having the right to control the method of performing the work, not just the result; that Noonan actually exercised control over the height of cut, the day chosen, and the field to be harvested, and whether he had the right to exercise further control over the details of the work, including the repairing of the combine which took place on his premises, remained an unresolved issue of fact because there was no evidence as to this and the possibility of this degree of control was not disproved; that Noonan, furthermore, was frequently present at the work site, participated in the work by hauling the harvested beans, had complete control of the premises by reason of being the owner, furnished some of the tools other than the combine, and had the right to fire Gustafson if not satisfied with his performance of his duties; and that there were sufficient indications, therefore, of an employer-employee relationship to raise some doubt as to Gustafson’s being an independent contractor and to require that the case go to a jury.

Noonan’s argument is that the case involves two separate relationships, one pertaining to the harvesting of beans and the other pertaining to the repairing of a combine; that in neither was Gustafson the employee of Noonan, on the facts shown; that the facts are not in dispute and only one conclusion can be drawn from the facts, particularly those pertaining to the repairing of the combine; that the arrangement between Noonan and Gustafson was for custom combining, contemplating payment of a fixed fee per acre for work done by Gustafson with his own combine, as both parties understood; that all decisions except as to cho:ce of day, field, and height of cut were in fact made by Gustafson, and for his work he was paid a flat fee without deductions; that Noonan was not present when Gustafson’s combine broke down, and would not have hired someone to repair Gustafson’s machine; that Gustafson and Kuberski had frequently exchanged labor, this was simply a continuation of that practice, and Noonan was paying Kuberski nothing; that Noonan gave no directions concern"ng the repair work and had no right to do so, since Gustafson was engaged in repairing his own property; that Noonan’s only contact with the transaction consisted in his being the owner of the land where the tractor broke down and the work on it was done; and that summary judgment for Noonan was therefore proper.

Whether one is an employee or an independent contractor involves various criteria and is not always easy to determine. (See 41 Am. Jur. 2d Independent Contractors §§5-23 (1988); Ryan v. Associates Investment Co., 297 Ill.App. 544, 549.) In this case there are a few ambiguous statements in the depositions concerning the extent of Noonan’s control over Gustafson’s combining. However, as to Gustafson’s repairing of his own machine, we find nothing in the record to suggest that Noonan had any right to supervise, control, or interfere in that transaction. It is established that in order for the negligence of a servant or agent to be imputed to the master or principal, the relationship must exist in respect to the particular transaction out of which the injury arose. (Metzler v. Layton, 373 Ill. 88, 91; Mosby v. Kimball, 345 Ill. 420, 427; Keith v. Lynch, 19 Ill.App. 574, 579.) We find no evidence that whatever relationship was created by the combining arrangements between Noonan and Gustafson extended to the transaction involving repair of Gustafson’s combine, out of which Kuberski’s injury arose. If there were any such evidence which the depositions and Noonan’s affidavit did not bring out, it was incumbent on Kuberski to file a counteraffidavit. Twohey v. Yellow Cab Co., 33 Ill.App.2d 180, 184.

Kuberski also argues that the trial court erred in failing to consider certain paragraphs of his complaint which had previously been ordered stricken, on the basis that his attorneys did not receive a copy of that order or know of its entry until a pretrial conference was held three months later. We have examined the allegations stricken from the complaint and in our view they do not present any reasons for disturbing our conclusion that no genuine issue of fact existed.

For the reasons stated, the order of the Circuit Court of Warren County granting summary judgment for the defendant, Harold Noonan, is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    The Vernon Company, Plaintiff-Appellant, v. John R. Trimble, a/k/a Jack Trimble, Defendant-Appellee.
    (No. 74-120;
    Third District
    October 29, 1974.
    Lucas, Brown & McDonald, of Galesburg, for appellant.
    Nelson, Gustafson & Blake, of Galesburg, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Knox County dismissing the complaint of The Vernon Company, plaintiff-appellant, seeking to recover damages from John Trimble, defendant. The judgment was entered pursuant to defendant’s motion to dismiss the complaint because the plaintiff, a foreign corporation, did not have a certificate to do business in Illinois in violation of section 125 of the Business Corporation Act (Ill. Rev. Stat. 1973, ch. 32, par. 157.125).

The complaint alleges that on November 15, 1969, the defendant entered into a salesman’s commission contract with the plaintiff and thereby became bound to the terms, conditions, and stipulations contained in the contract. The complaint alleges that at the termination of the defendant’s employment, the defendant owed the plaintiff the sum of $1,972.62. The defendant filed a motion to dismiss the complaint for the reason that the plaintiff is not an Illinois corporation, nor has it obtained a certificate of authority to do business in the State of Illinois, and by reason of its failure to so secure said certificate of authority it is not permitted to maintain a civil action in any court of this state. No affidavits were included with the motion to dismiss, and no evidence was presented. The defendant has filed no brief in this court, and consequently we would be justified in a summary reversal of the judgment. However, since such a reversal would under the circumstances not completely dispose of the issues in this case, some comments seem justified.

It appears the trial court took the position that since the complaint disclosed on its face the plaintiff was a foreign corporation it was required to allege and prove either that it had a certificate to do business in the State of Illinois or that it was not required to have such certificate. On the other hand, the plaintiff argues that where the right of a foreign corporation to bring suit in this State is challenged because of noncompliance with the statute, it is the burden of the defendant to prove that the plaintiff is doing business within this State according to the terms of the statute, thus requiring a certificate as a condition precedent to the bringing of the action.

Quoting with approval from Lehigh Portland Cement Co. v. McLean, 245 Ill. 326, 92 N.E. 248, the court in Textile Fabrics Corp. v. Roundtree, 39 Ill.2d 122, 124, 233 N.E.2d 376, observed,

“‘It is a familiar rule that the legislature has power to impose such conditions as it may choose upon foreign corporations for the exercise of powers and privileges in this State, and such conditions must be complied with. This power of the legislature is, however, subject to the restriction contained in section 8 of article I of the Constitution of the United States, which grants to Congress the power to regulate commerce among the several States. The authority of Congress in this regard is exclusive, and no State, except in the exercise of the police power for the security of lives, health and comfort of persons and .the protection of property, can make any law or regulation which will affect the free and unrestrained intercourse and trade between the States as Congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other States coming or , brought within its jurisdiction.’ ”

It is our conclusion that where a defendant, as in the instant case, seeks to invoke the statutory disqualification of a foreign corporation, it is the burden of the defendant to show that the foreign corporation is doing business in this State in violation of the statute. This burden is not satisfied by merely showing the plaintiff is a foreign corporation.

For the foregoing reasons, the judgment of the circuit court of Knox County is reversed and remanded for further proceedings.

Reversed and remanded.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
      In re Estate of Mary B. Hayden, Deceased—(Edmund Hayden, Jr., Petitioner-Appellee, v. Francis J. Burns, Ex’r of the Estate of Mary B. Hayden, Deceased, Executor-Appellant).
    (No. 74-154;
    Third District
    October 29, 1974.

      James T. Bradley, of Thomas, Wallace, Feehan & Baron, Ltd., of Joliet, for appellant.
    F. Donald Delaney, of Joliet, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Will County construing a will of Mary B. Hayden which identified as the intended beneficiary Edmund Hayden, Jr. After the death of the testatrix, Mary B. Hayden, petitioner Edmund Hayden, Jr., filed a petition to construe her will. One paragraph of her will gave 40 acres of her farm to “Edmund Hayden.” The executor construed this provision to mean Edmund Hayden, Sr., who at this time was deceased, and the executor accordingly considered that the gift had lapsed. The petitioner Edmund Hayden, Jr., sought a construction of the provision to mean petitioner as beneficiary, rather than his deceased father. The trial judge heard the evidence and found that testatrix had meant that the petitioner was to receive the 40 acres in the devise. The trial court denied a post-trial motion by the executor.

It appears from the record that the testatrix Mary B. Hayden was a sister-in-law of Edmund Hayden, Sr. In 1941, the United States Government bought the respective farms of Edmund, Sr., and Mary near Joliet. Edmund Hayden, Sr., then purchased a farm near Woodstock, Illinois, in McHenry County, and a few months later he financially assisted Mary B. Hayden in purchasing an adjacent farm. Edmund, Sr., actually operated and managed Mary’s farm until his death in 1963. Thereafter, his son Edmund, Jr., or “Bud” as he was known, operated and managed the farm for Mary B. Hayden.

The will under consideration was executed in September of 1956. It was shown that the testatrix sought the advice of Edmund, Sr., at that time in preparation of her will; and that Edmund, Sr., had arranged a meeting with Melville Gray, a Joliet attorney. Testimony on behalf of petitioner of his mother, his aunt, and his sister told about a breakfast discussion in 1953, a Thanksgiving dinner in 1955, and a' trip to the Ozarks in 1955. On each of these occasions something had been said about which part of Mary’s land petitioner “Bud” liked best. “Bud” indicated his preference for the wooded area of the farm in spite of its poor situation for farming as it would be a good place upon which to build a house. The 40-acre tract was in a wooded area and was not contiguous to the Edmund Hayden farm. At no time, however, was it shown that Mary Hayden said to anyone that she intended to give or thought about giving any property to “Bud” Hayden (Edmund Hayden, Jr.) in her will or otherwise.

It was shown that in 1951, Edmund, Sr., had a cancer operation which was successful and at the time of tire execution of the will in 1956, there was apparently no reason to doubt his continued vitality, although he did tell Mary that he didn’t want to be executor because he might not be around that long. Edmund, Sr., continued to farm his own land and Mary B. Hayden’s land and to handle the financial affairs for both until his death. Edmund, Sr., died in 1963 of leukemia which was unrelated to the operation 12 years previously. From his death on, “Bud” Hayden took over these chores. Bud was born in 1935 and was, therefore, 20 or 21 years of age at the time of the execution of the will and about 27 or 28 at the time of his father’s death. It is notable that in the will the 40 acres was given to “Edmund Hayden” without distinguishing between the two Edmund Haydens, father and son.

The estate introduced evidence of a deposition of Melville Gray. Mr. Gray died shortly before trial but his testimony had been perpetuated by the deposition. Mr. Gray testified with respect to the execution of the will in 1956. He recalled, after he had looked over his notes but without consulting with an attorney for the estate, that the “Edmund Hayden” in the will was identified by Mary B. Hayden, at the time of execution, as the man who was then the owner of the farm adjacent to hers and was then operating her farm in 1956. The testimony of all witnesses was clear as to the point that in 1956 the owner of the adjacent farm and the operator of Mary’s farm was Edmund Hayden, Sr. Attorney Gray also testified that Mary did not mention Edmund Hayden, Jr., or “Bud” Hayden, at any time. There was testimony that when Mary wanted to distinguish between the two Edmunds she referred to the petitioner Edmund Hayden, Jr., as “Bud.”

On appeal in this court, the executor contends that the trial court’s findings were not supported by the evidence and that, therefore, the court erred in denying the estate’s post-trial motion. Construction of wills follows basic rules and principles which are fairly well defined in this State. The pole star or guiding light which is fundamental is that in construing wills the court seeks to determine the testamentary intent. The court is required to ascertain and give effect to such intent of the testator (Bradshaw v. Lewis, 54 Ill.2d 304, 296 N.E.2d 747). The issue on appeal in such cases is whether the trial court’s construction truly accomplished such objective (Continental Illinois National & Trust Co. v. Kane, 308 Ill.App. 110, 31 N.E.2d 351). It is also apparent that normally a will is considered to be an integrated written document and the courts do not look outside the “four comers” of the will in interpreting its meaning. In cases of ambiguity, however, such as the issue before us as to the identification of beneficiaries, the courts will accept parol or extrinsic evidence as an aid in construction of the will’s terms to truly determine the testator’s intent at the time of execution. Therefore, the testimony of circumstances surrounding the testatrix at the time of the execution of the will is generally admissible (O’Connell v. Gaffney, 23 Ill.2d 611, 179 N.E.2d 647). It is the circumstances at the time of execution which are vital in construing the intent of the testatrix and not acts of beneficiaries after the execution of the will unless such acts are shown to have a specific bearing on the testamentary intent at the time of execution (Rosenthal v. First National Bank, 88 Ill.App.2d 82, 232 N.E.2d 265, aff’d, 40 Ill.2d 266, 239 N.E.2d 826, appeal after remand, 127 Ill.App.2d 371, 262 N.E.2d 262).

It is notable, however, that, as stated in Weir v. Leafgreen, 26 Ill.2d 406, 411, 186 N.E.2d 293, the court is not justified, under the guise of construing a will, in creating a wholly new gift where the testator has made no provision whatever for a contingency which has occurred or where it appears that, in view of subsequent events, a particular provision would probably have been made if the testator had thought of their occurrence. The court indicated there that extrinsic evidence is usually limited to the circumstances in existence at the time of the execution of the will and subsequent events can be considered only if indicative of testamentary intent.

On the basis of the record, it appears that petitioner Edmund Hayden, Jr., failed to overcome the most relevant evidence introduced, the deposition of Melville Gray who prepared the will and testified that the testatrix identified the Edmund Hayden therein referred to as Edmund Hayden, Sr. The discussions over meals in 1953 and 1955 and on the trip in 1955, might indicate a possible desire of the testatrix to give “Bud” Hayden a portion of her farm. Such discussions, however, attained only the level of mere discussions and no witness testified at any time that Mary specifically said she would give “Bud” any land. In 1968, while she was discussing “Bud’s” management of her farm, she did say he would be “well compensated.” This was 12 years after the will’s execution and nothing more specific was said. We note also that in appellant’s brief mention was made that “Bud” was paid for the work he did for Mary but we find nothing in the record to bear out this point and are attaching no significance to this phase of the argument. It is notable also that although Edmund Hayden, Sr., died in 1963, Mary had made no attempt to change her will the remaining 9 years of her life. We also note that in the years prior to the death of Edmund Hayden, Sr., from 1941 until 1963, he managed Mary Hayden’s farm and handled her financial affairs without compensation. She also told Edmund, Sr., that she wanted to give him some land although at that time he said he didn’t need it. All of this tends to confirm the testimony of Attorney Gray who identified the “Edmund Hayden” who was to get the 40 acres as Edmund Hayden, Sr.

On the basis of the evidence in the cause before us, therefore, it appears with reasonable clarity that Edmund Hayden, Sr., was the intended beneficiary at the time of the execution of the will. We find insufficient support in the record for the conclusion of the trial that the testatrix had meant by the “Edmund Hayden” referred to in the will, Edmund Hayden, Jr.

The order of the Circuit Court of Will County finding and designating Edmund Hayden, Jr., as the beneficiary intended in the provisions of the will conveying 40 acres of farm land to “Edmund Hayden” is reversed and the court is directed to enter a finding herein that the “Edmund Hayden” referred to in such will was Edmund Hayden, Sr.

Reversed and remanded.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    Cynthia S. Winnett, n/k/a Cynthia S. Stine, Plaintiff-Appellant, v. Jimmy G. Winnett, Defendant-Appellee.
    (No. 12621;
    Fourth District
    October 31, 1974.

      Sims, Grabb and Bennett, of Mattoon (Nolan K. Sims, of counsel), for appellant.
    No appearance for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff, Cynthia S. Stine, appeals from an order of the circuit court of Coles County denying her petition for a rule to show cause and an order directing defendant to pay alleged child-support arrearages and attorney fees.

On April 13, 1982, a divorce decree was entered in the circuit court of Coles County awarding custody of two minor children to plaintiff and ordering defendant, Jimmy G. Winnett, to pay $20 per week for child support to the clerk of the court. On February 6, 1964, plaintiff filed a petition for a rule to show cause alleging child-support arrearages. A hearing was held on the petition, and a docket entry was entered by the trial judge ordering defendant to make payments through the clerk until final disposition of the petition for rule. The docket entry continued the cause for 30 days but no written order was ever filed. In January of 1974 plaintiff filed a petition for a rule to show cause alleging child-support arrearages and seeking an award of attorney fees. A hearing was held on the petition on February 14, 1974. Plaintiff testified that defendant had made some child-support payments to the clerk of the court and some to her in a sum equal to about “half or less” of the amount ordered by the court. She stated, however, that she had no precise record of the payments made. Defendant testified that he had made some direct payments, but he had not brought his cancelled checks and would “have to look them up.” He stated that he did not make payments to the clerk because he was working out of town and the courthouse would always be closed. The records of the clerk’s office indicated that no payments had been made to that office by defendant since September 27, 1968. Plaintiff moved for a continuance to enable defendant to produce any documentary evidence he might have of direct payments. The trial judge then denied the motion and dismissed plaintiff’s petition stating that plaintiff had not sustained her burden of proving the existing arrearages.

In this cause plaintiff-appellant has perfected her appeal, filed a brief, and has complied with all the requirements of the rules of this court. Defendant-appellee, however, has not filed a brief or made an appearance in this court. In such a situation the order which is the subject matter of the appeal may, within the discretion of this court, be reversed without consideration of the cause on its merits. (See In re Estate of Kunz, 7 Ill.App.3d 760, 288 N.E.2d 520; Household Finance Corp. v. Cage, 115 Ill.App.2d 331, 253 N.E.2d 675. See generally 2 I.L.P. Appeal and Error §560 (1953).) We find this to be appropriate here, for an examination of the record reveals that no injustice would be done by such a disposition.

Accordingly, the order of the circuit court of Coles County is hereby reversed and remanded for further proceedings.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William E. Stewart, Defendant-Appellee.
    (No. 12527;
    Fourth District
    October 31, 1974.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (David E. Eck-berg, Assistant State’s Attorney, of counsel), for the People.
    J. H. Weiner, of Springfield, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On October 11, 1973, complaints were filed in the Sangamon County circuit court charging defendant, William E. Stewart, with driving while under the influence of intoxicating liquor in violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 11— 501(a)) and improper use of title registration in violation of section 3— 703 of the Code (Ill. Rev. Stat. 1973, ch. 95%, par. 3 — 703). The defendant was free on bond during the entire time that the case was before the court. On October 25, 1973, a plea of not guilty was entered, and the case was set for trial on November 21. On November 23, the defendant moved for a continuance, and the case was reset for trial on December 19. On that date defendant’s motion to dismiss was granted by the trial court with the following docket entry:

“No complaining witness Objection by State.”

On January 4, 1974, the State filed a notice of appeal from that order.

We note that the trial court order of December 19, 1973, does not have the essential elements of finality which would enable this court to assume jurisdiction over the appeal. The trial court did not state that the dismissal order was entered with prejudice. Likewise, the State did not attempt to have the complaint reinstated, and we do not then have an appeal from a denial by the trial judge of a motion to reinstate. Accordingly, this appeal is hereby dismissed.

Appeal dismissed.

SMITH, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony LaRocca, Defendant-Appellant.
    (No. 12526;
    Fourth District
    October 31, 1974.

      John F. McNichols and John L. Swartz, of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James Grohne, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Anthony LaRocca, was convicted following a jury tidal of the offense of armed robbery in violation of section 18 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, section 18 — 2) and was sentenced to a 5- to 30-year term of imprisonment. Defendant appeals from the sentence imposed. The sole issue on this appeal is whether the sentence imposed is excessive.

Defendant was convicted of the armed robbery of a liquor store in Springfield, Illinois, on March 6, 1973. Defendant wore a ski mask and held a loaded gun on the owner of the store. At the sentencing hearing on August 24, 1973, defendant presented no evidence in mitigation. The presentence report indicated that defendant was 21 years of age, had no prior criminal record, and had served and been honorably discharged from the army. The court stated that these matters indicated by the presentence report were taken into consideration by the court. Nevertheless, the court then stated:

“This was an armed robbery. There was a gun used. The gun was introduced into evidence, and as the police officer testified had shells in it—
To this court, that is a very serious offense. The court feels that there are many types of criminal activity that some consideration must be given to the defendant because of his past record, his past history — uh—but when someone takes a gun and walks into an establishment — uh—he has come as close as possible to committing the ultimate crime of murder.”

The court then sentenced defendant to 5 to 30 years imprisonment.

Armed robbery is a Class 1 felony and under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1 et seq.) such an offense does not have a maximum and the minimum is determined under section 5 — 8—1(c)(2) as follows:

“(2) [F]or a Class 1 felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.”

Furthermore, the one-third of the maximum rule mandated for Class 2 and 3 felonies is not applicable to Class 1 felonies. We are aware of our authority under Supreme Court Rule 615 (Ill. Rev. Stat. 1973, ch. 110A, par. 615), to reduce the sentence imposed by the trial court but do not feel this to be an appropriate case for such reduction. We note that the penalty prescribed is within statutory limits and that the trial court considered the standards contained in section 5 — 8—1(c)(2) in setting the minimum. The trial court conducted a sentencing hearing and had the benefit of a presentence report. On the basis of this record we cannot say that the trial court abused its discretion in imposing such a sentence nor can we say as a matter of law “that the penalty constitutes a great departure from the fundamental law and its spirit and purpose,” or that the penalty exceeds the prescription that all penalties are to be proportioned to the nature of the offense. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, 677.

Accordingly, the sentence imposed by the circuit court of Sangamon County is hereby affirmed.

Sentence affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael H. Goodman, Defendant-Appellant.
    (No. 12481;
    Fourth District
    October 31, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On June 26, 1972, defendant-appellant, Michael H. Goodman, entered a plea of guilty to the offense of burglary in violation of section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1). A sentencing hearing was held on August 4, 1972, at which time probation was denied and defendant was sentenced to 1 to 6 years’ imprisonment. On September 5, 1972, a notice of appeal was filed from the denial of probation. On October 12, 1972, defendant filed a pro se petition for post-conviction relief which was stricken by the trial court without prejudice to defendant because of a failure to set forth any grounds for such relief. On December 18, 1973, this court ordered the record filed, appointed the State Appellate Defender to represent defendant, and extended the time for the filing of a brief.

On June 17, 1974, the State Appellate Defender moved to withdraw as counsel for defendant, and appended to the motion a brief in conformity with Anders v. California, 386 U.S. 738. The record shows that the letter sent by this court notifying defendant of the motion and sent to his last known address was returned “address unknown.”

In discharge of our responsibilities we have examined the record. On June 26, 1972, defendant, represented by counsel, entered his plea of guilty. The court proceeded to admonish defendant regarding the nature of the burglary charge and advised defendant that he had a right to a jury trial and to plead not guilty. The defendant acknowledged that if he pleaded guilty he would waive a trial, with or without a jury, and his right to confront and cross-examine witnesses. Tire court then admonished defendant regarding the minimum and maximum sentence prescribed by the law then in effect. Defendant stated that he had not been coerced in any fashion and did, in fact, commit the offense in question. The court then questioned defendant regarding the incident, and defendant persisted in admitting his guilt. The plea agreement was then stated in open court.

A sentencing hearing was held on August 4, 1972, and defendant was represented by counsel at that hearing. A presentence report was filed by the probation officer recommending denial of probation. Defendant testified in his own behalf and called a witness to support his request for probation. The court then denied probation stating that defendant had previously been found guilty of three misdemeanors and was currently serving a 5-year probation for statutory rape in Wisconsin when the present offense occurred. The court then sentenced defendant to 1 to 6 years’ imprisonment with credit for time spent in the county jail on the present charge. The sentence imposed was within statutory limits, and defendant was admitted to parole on November 16, 1973.

We agree that this record discloses no justiciable issue for review and that the appeal is without merit and frivolous. Accordingly, the motion of the State Appellate Defender to withdraw as defendant’s counsel is allowed, and the judgment of the trial court is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.