author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William G. MacPhail, Defendant-Appellant.
    (No. 59851;
    First District (2nd Division)
    December 3, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Thomas D. Rafter, and Michael A. Tyrell, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delores Smith, Defendant-Appellant.
    (No. 60050;
    First District (2nd Division)
    December 3, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE GOLDBERG

text:
    Ira J. Marcus, Plaintiff-Appellee, v. Lonnie Marcus, Defendant-Appellant.
    (No. 59060;
    First District (1st Division)
    November 18, 1974.

      Mel Sloan and Stephen J. Schlegel, both of Chicago (Joseph W. Lascara, of counsel), for appellant.
    Gary M. Elden, of Kirkland & Ellis, of Chicago (Anthony J. Pauletto, of counsel), for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Bradley Marcus, the child who is the central figure in this regrettable litigation, was bom August 31, 1970. On January 13, 1972, in the circuit court of Cook County, his parents, Ira J. Marcus (father) and Lonnie Marcus (mother), were divorced on the ground of mental cruelty. By agreement of the parties, custody of the child was vested in the mother subject to further orders of the court with permission to remove the child from the jurisdiction and subject to specified reasonable and liberal rights of visitation and vacation with the child by the father. This judgment contemplated removal of the mother and the child to Phoenix, Arizona,- and the father agreed to pay the mother a fixed sum for this purpose.

After considerable litigation, which will be later described, the trial court entered an order granting custody of the child to the father. The mother has appealed from this order. The contentions raised in this court by the respective parties will be stated at a later point.

On September 8, 1972, the father filed a verified petition in which he prayed permanent custody of the child. The theory of this petition was that the mother was not a fit person to have custody and that a substantial change in circumstances required a change in custody. The mother filed an answer to this petition which was basically a specific denial thereof as regards the charges made. Lengthy hearings were held by the trial court prior to entry of the order appealed from. A careful examination of the entire record enables us to state in summary the following facts which are, in our opinion, pertinent to the merits of the situation.

After the divorce, the mother and child moved to Phoenix, Arizona. The mother’s sister, married but separated from her husband, lived in a townhouse which had been purchased by her parents. The mother had little or no income at that time other than the payments specified in the judgment for divorce.

The father is a practicing lawyer in Chicago, associated with his sister s husband. After the divorce, he maintained his own place of residence. The father had no communication with' the mother or child, beyond making required payments by mail, from the divorce in January of 1972 until June of that year. He then visited them on the way home from a vacation. At that time, in his opinion, the child was in good health, apparently well cared for and looked very beautiful. At the end of that visit, the father took the child back to Chicago with him for 1 month. The child lived with the father’s sister. She and her husband maintain a good home with adequate facilities in a suburban area of Chicago. They live with their three children of school age, all older than the child here involved. In July of 1972, the father returned the child to the mother in Phoenix. She and the child then moved to the home of her parents in Wichita Falls, Texas. The mother’s sister, in due course, left the home in Phoenix.

In August of that year, a dispute occurred between the mother -and her father as a result of which she and the child changed their residence to the home of a lawyer (some 43 years old) living in Wichita Falls. The only other person living there was a young lady (some 21 years old), a friend of the lawyer. During August of 1972, the mother accompanied this lawyer on a long automobile trip which took about 6 days. The reasons for and the circumstances surrounding this trip were a source of considerable dispute in the testimony and in the briefs before this court, as were all of the remaining facts with reference to the activities of the mother during this time which she spent in Texas and on the trip.

The second anniversary of the birth of the child (August 31, 1972) occurred during this trip. The father attempted to reach the child by telephone and eventually spoke to the lawyer’s young lady friend in whose custody the child had been left. Stating the ultimate facts with brevity, the evidence shows that the father went to Wichita Falls* located the child and took temporary custody. In due course, he brought the child back to Chicago to live in his sister’s home.

All of these facts were brought out by the testimony of a number of witnesses. In addition, the court heard testimony of two psychiatrists: Dr. Robert Bussell, appointed by the court, and Dr. Abraham Jackman, retained by the mother. Dr. Bussell interviewed and spoke to many of the interested parties, including the father and mother. Dr. Jack-man had, only the benefit of a written report from Dr. Bussell and one interview with the mother. Dr. Bussell reached the conclusion that both the father and the mother were immature. He found the father slightly more mature than the mother and basically more stable, as well as “less neurotically involved” with his sister than the mother with her parents. He recommended that the father have custody of the child. Dr. Jackman agreed generally with, or at least did not disagree with, the basic findings of his colleague’s report but reached a different conclusion. In his opinion, the mother had given the child proper and adequate care, and removal of a child of that age from the mother would be harmful to the child.

The order appealed from (entered December 11,1972) found that the mother had engaged in a course of conduct which was contrary to the best interests of the child and that there was a substantial change in circumstances since the divorce which warranted a change in custody of the child for his own best interests. Accordingly, the judgment for divorce was modified by awarding custody and control to the father on condition that he and the child continue to reside within the metropolitan area of Chicago. The order also provided that the child should continue to reside in the home of the father’s sister and her husband. The father was given 90 days within which to take up residence with the child on a permanent day-to-day basis. Elaborate directions were set up in this order with reference to visitation of the child by the mother. These latter provisions are not specifically criticized by either of the parties. Shortly thereafter a motion supported by affidavits was made by the mother to vacate the order appealed from. An answer to the motion, also supported by affidavits, was filed in behalf of the father. This motion was denied in due course.

In the lengthy briefs filed by the parties, the basic contentions made by the mother are: that the ruling appealed from which changed custody of the child was against the manifest weight of the evidence and contrary to the best interests of the child; and that prejudicial error occurred when the trial court required a medical examination of the parties on its own motion. The father contends that the best interests and welfare of the child require that he be placed in the custody of the father and that no error occurred in connection with the psychiatric examination and evidence. • '

We will consider first the issues regarding the use of psychiatric testimony. This contention is actually presented in three separate subdivisions: the court should not have appointed the psychiatrist on his own motion; no issue was raised by the pleadings regarding the mental or emotional condition of the parties so that the manner and purpose of the appointment was improper; and the court erred in reading and considering the psychiatric report.

As regards the first of these contentions, the record shows that the parties, by their attorneys of record, freely consented in open court to the appointment of a psychiatrist by the court. The mothers counsel cooperated actively with the court in this regard. Not only did her counsel then avail themselves of the doctors report during trial, but she herself by her attorneys retained the services of Dr. Abraham Jackman, the other psychiatrist who testified. Consequently, this issue has been effectively waived for purposes of appeal. (Moynihan v. Moynihan, 9 Ill.App.3d 520, 525, 526, 292 N.E.2d 105.) In addition, the language of the Supreme Court rule specifically vests discretion in the court to order a psychiatric examination and report during trial. (Ill. Supreme Court Rule 215(d)(2), 50 Ill.2d R. 215(d)(2).) We find no error in appointment of the psychiatrist by the court.

In addition, the physical and mental condition of both parents is necessarily a material issue in cases involving custody of a child. Since the welfare and best interests of the child are compelling and paramount, it would seem that both parties would welcome an evaluation by qualified and impartial professional experts. Furthermore, in this situation, as in other cases in which expert opinions are used by the court, no harm is done by the expression of expert opinion bearing directly upon the ultimate issues. The trial court “is not required to accept the opinion of the expert * * (Merchants National Bank v. Elgin, J. & E. Ry. Co., 49 Ill.2d 118, 122, 273 N.E.2d 809.) Thus, in a case involving custody of a child, this court has held that receiving the opinion of a psychiatrist “would not usurp the decision-making function of the court.” Filipello v. Filipello, 130 Ill.App.2d 1089,1095, 268 N.E.2d 478.

As regards the final portion of this contention, the report of the psychiatrist, Dr. Bussell, was made available to all parties but was not technically admitted in evidence. It was, however, made a part of the record for review by this court. This was partly caused by the fact that the mother used the report as a basis for a hypothetical question which her counsel asked her own psychiatrist. In addition, the report was evaluated and commented upon favorably, except for the conclusions it reached, by the mother’s own expert witness.

Finally, we will presume here that the trial court considered only proper evidence in arriving at the result appealed from. (Reese v. Melahn, 53 Ill.2d 508, 292 N.E.2d 375.) It remains next to consider the contentions of the parties with reference to the merits of the situation.

The legal principles involved in judicial determination of custody of children are in themselves necessarily simple. By the very nature of these situations, each one is different and only the most general principles exist for the guidance of the trial and reviewing courts. It must be the sole objective of the court “to reach a decision designed to protect the child’s best interests.” (Patton v. Armstrong, 16 Ill.App.3d 881, 882, 883, 307 N.E.2d 178.) The custody of a chHd should be awarded to any person only where such action is “consistent with the welfare and best interests of the child.” People ex rel. Morris v. Morris, 44 Ill.2d 66, 68, 254 N.E.2d 478, and additional cases there cited.

In the case before us, the original judgment for divorce gave the mother custody of the chHd. This was done by agreement of both parents. Under these circumstances, and since the father sought to modify that arrangement in the trial court and to change custody, the burden rested upon him to prove either that the mother was “unfit to retain custody or that a change of conditions makes a change of custody” in the best interests of the chHd. (Vysoky v. Vysoky, 85 Ill.App.2d 306, 309, 310, 230 N.E.2d 3.) It foHows, therefore, that it was the duty of the trial court to hear and weigh aH of the avaüable evidence and to determine if the mother was an unfit person to retain custody of the chHd, or, alternatively, whether there had been some change of conditions or circumstances which required a change of custody for the benefit and welfare of the child.

In reviewing orders bearing upon child custody, it is also the duty of this court to give constant and unswerving attention to the best interests of the chHd. However, in view of the particular importance of weighing the evidence and determining the character of the conflicting parties in this type of case, it is our duty to entrust the trial court with broad discretion. The trier of fact has significant opportunity to observe both parents and the child and thus is able to assess and evaluate their temperaments, personalities and capabflities. This is a vital and important link in the chain of judicial decision. (Corcoran v. Corcoran, 79 Ill.App.2d 328, 333, 224 N.E.2d 611.) We should not disturb the determination of the trial court in this type of case unless it has resulted in manifest injustice or is against the manifest weight of the evidence. These basic and important principles are well brought out in Vysoky v. Vysoky, 85 Ill.App.2d 306, 311, 230 N.E.2d 3, and in Sorenson v. Sorenson, 10 Ill.App.3d 980, 982, 295 N.E.2d 347.

As a final cautionary matter, it should be noted that there is today no inflexible rule which requires that custody of chfldren, especiaHy of tender age, be vested in the mother. Equahty of the sexes has entered this field. The fact that a mother is fit is only one facet of the situation and, standing by itself, it does not authorize a denial of custody to the father, when this appears necessary because of other considerations. Braun v. Goodman, 3 Ill.App.3d 1002, 1005, 279 N.E.2d 177; Carlson v. Carlson, 80 Ill.App.2d 251, 255, 225 N.E.2d 130; Ill. Const. (1970), art. I, § 18.

It is next necessary to apply these wise and established principles to the record before us. We cannot find from this record that the mother is unfit to have custody of the child. The trial court did not reach that conclusion and neither do we. In our opinion, it is apparent that the. mother used faulty or perhaps immature judgment in discharging her duty as regards care of the child. Although her intentions may have been above criticism in leaving the child and departing upon a lengthy motor. trip in the company of a person whom she knew for a comparatively short time, mature judgment based upon the welfare of the child would not approve of this type of conduct. She also displayed a lack of judgment in the selection of the person with whom she left the child. This was done virtually by chance and without the exercise of careful and deliberate discretion.

However, a critique of her judgment was not the issue before the trial court nor is it the issue before us. The trial court properly considered whether or not there had been a change of circumstances in the lives and surroundings of this mother and father which would require a change in the custody of the child for his best interests and welfare. It was the duty of the trial court to confine the inquiry to the best interests of the child as formulated at the time of the hearing. We can hardly be reminded with excessive frequency that in cases of this type the best interest and welfare of the child are “the overriding consideration” (Mulvihill v. Mulvihill, 20 Ill.App.3d 440, 444, 314 N.E.2d 342) and the “guiding star” (Nye v. Nye, 411 Ill. 408, 415, 105 N.E.2d 300) as well as the “paramount issue” (Breedlove v. Breedlove, 5 Ill.App.3d 774, 776, 283 N.E.2d 919).

When this matter was heard, the mother did not know, and could not determine, whether she would return to her parents’ home in Texas or whether she would attempt to choose another place of residence. Apparently by then her home with her sister near Phoenix was no longer available. The question of residing with her parents seems unfeasible in view of the fact that when she last attempted this she found herself obliged to leave the parental home after approximately 2 weeks. As regards the choice of another place of residence, this mother had no assets of any consequence, no .profession, no education or experience which would enable her to. earn her own way and to provide a proper home for the child apart from basic support. No amount of good intentions by themselves can suffice to overcome these insuperable handicaps.

As regards the father, he too was described by the psychiatrist as immature but to a lesser degree. He also, appears well-intentioned as regards the future welfare of the child. It is true that this time would necessarily be spent to a large degree in his professional life. However, it cannot be denied that the record shows that his married sister had the ability and the means to provide a stable and secure home environment for the child and the father. According to the decree as worked out by the trial court, the father would be required to live with the child and with his sister in order to retain custody of the child. The trial court made it admirably plain that he would give careful consideration to any violation of this decree in future orders regarding the custody of the child. We approve of this point of view.

These considerations seem to be most important and decisive in the result here reached. It seems basically essential for this child to have the benefit of a stable and secure home with his paternal aunt and uncle and the company of three other children, his cousins, slightly older than he. Added to this would be the important realization that his father would be a part of the same household with ample opportunity for companionship between the two. The impartial observer cannot help but feel that this type of situation is manifestly more beneficial to the child than a life of complete uncertainty.

As shown, the presumption in favor of the result reached by the trial court is always strong and compelling in this type of case. The trial judge here was most careful and patient in hearing all of the lengthy evidence and arguments reflected by this record. In our opinion, he did everything within his power to arrive at a proper result, and apparently these efforts have proved successful. Despite the able arguments of counsel for the mother, we do not feel justified in reversing or changing the order as entered by the trial judge. Accordingly, the order appealed from will be affirmed.

Order affirmed.

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


author: Mr. JUSTICE DIXON

text:
    Richard Becker et al., Plaintiffs-Appellees, v. Sincero Pescaglia, Defendant-Appellant.
    (No. 74-16;
    Third District
    December 4, 1974.
    James Kellstedt, of Peoria, for appellant.
    James R. Brodie, of Pekin, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an action by a number of plaintiffs for an injunction and for money damages caused by overflow of water on their property allegedly caused by the defendant. The complaint has 25 counts and prays for $123,000 damages. Return day was October 1, 1973. Plaintiffs, the next day, on October 2, 1973, secured an order whereby the defendant was judged to be in default, and the complaint was ordered to be taken as confessed against him. The Circuit Court of Tazewell County, on October 29, refused to set aside the default orders and on November 6 refused to reconsider.

Affidavits show that after being served with summons on August 31, 1973, defendant took the summons to the law office of his attorney and left it with a secretary sometime between September 18 and 21. The summons did reach the attorney’s attention. He asked a secretary to make a new file and return it to him. The secretary inadvertently failed to calendar the return day. Usual procedural matters of office administration failed. The attorney was out of the state from September 26 until October 23, 1973. He was informed of the order of default on October 23, and immediately prepared and filed a verified motion to vacate the default order. The defendant submitted an affidavit of meritorious defense and a proposed answer.

The plaintiffs in the instant case filed no counteraffidavits, and accordingly the statements of fact in defendant’s affidavits must be taken as true. (Lane v. Bohlig, 349 Ill.App. 487.) In view of the allegations of fact appearing in the affidavits, we think that the factor of existence of a meritorious defense has been fully shown by the defendant, and we have before noted that the application was promptly made. The uncontroverted facts show reasonable diligence by defendant and inadvertence on the part of his attorney.

The facts show that the failure to plead or answer was a clerical error, an excusable mistake. (Goebel v. Benefit Trust Life Insurance Co., 88 Ill.App.2d 19.) Only a few days after counsel discovered the existence of the default he took steps to have it vacated. In our opinion this was sufficient to show due diligence on the part of defendant and his attorney. (Goebel, supra.) A setting aside of the default will not prejudice plaintiffs but will merely assure both sides a day in court for the fair determination of the merits of the case. Vosnos v. Wenzel, 44 Ill.App.2d 192.

The motion herein was made under section 50(5) of the Civil Practice Act (Ill. Rev. Stat. ch. 110, par. 50(5)) which provides: “The court may in its discretion before final order, judgment or decree, set aside any default * *

It should be noted that the provisions of section 50(5) do not specifically require that a defaulted defendant show that he has a meritorious defense to plaintiffs claim or that the neglect resulting in the default be excusable. Earlier cases assumed such requirements. Later cases only require that a just result be achieved and where it is reasonable, under the circumstances, to compel the other party to go to trial on the merits. (People ex rel. Reid v. Adkins, 48 Ill.2d 402, 406.) The existence of a meritorious defense or excusable neglect is made secondary to the aim of assuring the defaulted party his day in court. Today these are not necessary requirements but are factors, as is hardship suffered by the plaintiff, which the court may take into account. (Morning v. Morning, 9 Ill.App.3d. 555; Busser v. Noble, 8 Ill.App.2d 268; Dalton v. Alexander, 10 Ill.App.2d 273; Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, where defendant’s attorney relied on an incorrect marking in his diary; Lynch, v. Illinois Hospital Services, Inc., 38 Ill.App.2d 470, where the attorney’s secretary failed to note a pending hearing in the daHy log and appointment book.) The trend of the courts is to subordinate the existence of a meritorious defense or excusable neglect to the primary goal of assuring that justice be served by affording the defaulted party his day in court. The reviewing court need not determine, as a matter of law, that the trial court abused its discretion, but only resolve the question of whether justice has been served. Trojan v. Marquette National Bank, 88 Ill.App.2d, 428, 438.

It is the opinion of this court that allowing the defendant to have his day in court and a trial on the merits of this case will not result in any hardship on the plaintiffs. It is the belief of this court that justice will be done by reversing the judgment and order of the trial court and remanding with instructions to set aside the default judgment and allow the defendant a reasonable time to plead.

Reversed and remanded with directions.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
      In re Estate of Edwin J. Roth, Deceased.—(Irene Roth, individually and as Ex’r of the Estates of Edwin J. Roth, deceased, and Fannie Roth, Deceased, et al., Petitioners-Appellants, v. Melvin E. Roth, Ex'r of the Estate of Edwin J. Roth, Deceased, Respondent-Appellee.)
    (No. 74-52;
    Third District
    December 12, 1974.

      David B. Radley, of Safford, West, Tomow, Radley, Mathers, of Peoria, for appellants.
    Wilson C. Washkuhn, of Sutkowski & Washkuhn, Assoc., of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Petitioner, Melvin Roth, one of two co-executors of the estate of Edwin Roth, filed his final report and petition for approval thereof and discharge as such co-executor. Beneficiaries of the Edwin Roth estate objected to the final report and its approval but the circuit court of Tazewell County approved the report and discharged the co-executor from which judgment this appeal follows.

Edwin Roth died a resident of Tazewell County, Illinois, on January 17, 1964, leaving as his heirs-at-law his widow, Fannie Roth, and four children. His will was admitted to probate on February 26, 1964, and Melvin and Irene Roth, two of his children, were appointed and qualified as executors. Testator owned an undivided one-half interest in each of two farms, the other one-half interest being owned by his widow. By his will the testator devised his interest in one of the farms to his widow for her life and upon her death to his four children. By his residuary clause the testator left the remainder of his property including his interest in the other farm to his widow.

On March 8, 1971, Fannie Roth died and Irene and Alice Roth were appointed co-executors of her estate. On January 8, 1973, Melvin Roth filed a final report and account in the Edwin Roth Estate with a petition for approval of his final account. Objections to the final report were filed by Melvin Roth’s three sisters, Irene, Alice and Frances and by Irene and Alice in their representative capacities.

The report filed by Melvin Roth in January, 1973, was the only report which he filed concerning his acts and doings since the date of his appointment in 1964. Prior to his father’s death Melvin had been the tenant on the two farms in which his father had an interest and also had farmed two other farms in which his father had no interest. After his father’s death Melvin continued to be the tenant on all four farms without any written lease or approval of the court, and, after his appointment as co-executor, he represented the estate with respect to such farms. Irene, the other co-executor, did not exercise any control of the farms and did nothing as co-executor, claiming she had not been permitted to do so by her brother. It appears that in the operation of the farms by Melvin the transactions were intermingled and not completely segregated. As indicated earlier, the court did approve the co-executor’s final report, and the beneficiaries of the estate have appealed.

The principal assignments of error urged by the objectors on this appeal relate to the contention that the reports filed by the co-executor are insufficient to show the nature and propriety of the transactions which occurred. Before discussing the errors urged by appellants, it will be necessary to consider appellee’s contentions that this appeal should be dismissed first, because the appellants failed to file timely notice of appeal and, second, because the objections to the reports were not timely made in the trial court.

As indicated earlier, Melvin Roth filed his report on January 8, 1973, and the beneficiaries filed their objections on January 27, 1973. These objections were never formally ruled upon, but on August 21, 1973, the co-executor filed a supplemental report. The report and supplemental report were approved on September 7, 1973, after notice and hearing, at which time counsel for the objectors and some of the objectors were present but offered no evidence. On October 1,1973, the objectors moved to vacate the order approving the report and discharging the co-executor. A hearing was had on the motion, testimony was introduced and on November 5, 1973, tire court suspended its previous order approving the report and directed the co-executor to file a supplemental report regarding two general areas included in the report, namely, amounts received from the government as agricultural subsidies and amounts paid to an individual. Thereafter the co-executor filed another supplemental report in accord with the directions of the court and on November 27, 1973, a hearing was had at which time the reports of the co-executor were approved and he was discharged. Notice of appeal was filed on December 6, 1973, and it is the contention of appellee that because the order of November 5, 1973, was a final and appealable order, the notice of appeal filed by appellants on December 6, more than 30 days thereafter, was not timely filed and hence this court has no jurisdiction to consider the appeal.

In support of its contention the appellee refers to Supreme Court Rule. 303(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 303(a)) which provides “* * * the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed e e # within 30 days after the entry of the order disposing of the motion.”

According to appellee, the order of November 5, 1973, disposed of the post-trial motion and therefore the period during which an appeal could properly be filed commenced as of that date. We believe the appellee misapprehends the meaning of the rule, because the disposition referred to must mean a final disposition; otherwise, there is no order “disposing of the motion.” As in this case where the prayer of a post-trial motion is granted, it may be that it does not dispose of the controversy, and whether the order does so dispose of a controversy depends upon the relief sought and granted. The order of November 5 in the instant case by specific provision suspended the previous order approving the reports and discharging the executor. Additionally, the order directed the filing of a supplemental report. Under these circumstances there was no judgment approving the reports and discharging the executor until the judgment of November 27, and, because of the required additional reports, there could have been no final order until such reports had been filed. The theory of requiring appeals only from final judgments is based on the practical considerations that justice is not served by piecemeal appeals, and, further, the review of a judgment which can be affected by future proceedings by the trial court would be of doubtful value. In our view of the order of November 5 it was not a final appealable order, and consequently we conclude the notice of appeal was timely filed with respect to the final order of November 27, 1973.

In their objections filed January 26, 1973, to the co-executor’s initial report, three reasons were specified. The first indicated the report was not accurate because it did not specify the distributive shares of the beneficiaries, the second related to the failure of Irene Roth to approve the report as co-executor and the third referred to property belonging to the estate not accounted for in the report. As indicated, these objections were never formally ruled upon and it appears from the record of the November 5 hearing that the judge had apparently advised the parties of his hope that they would get together and resolve their differences. In any event, a short supplemental report was filed in August which attempted to satisfy the initial objections. At the hearing on September 7, 1973, counsel for the objectors requested a continuance in order to consider the supplemental report, but the motion was denied and the reports were approved without additional formal objections. As a consequence of the September 7 order, the objectors employed new counsel who filed on October 1, 1973, a detailed list of objections in a petition seeking, to vacate the order of September 7. It is appellee’s position that the- objections included in the October 1 petition came too late to be considered by the trial court and therefore cannot be an appropriate basis for errors assigned on this appeal.

As may be noted from the chronological order of events, it is undisputed that the post-trial motion, namely, the petition to vacate the September 7 judgment, was timely filed, and there is no dispute but that the trial court had jurisdiction to consider the petition and to rule on such petition in accord with law. Although the reasons for objecting to the co-executor’s reports are more specific and detailed in the October 1 petition, it is clear that they generally relate to the objections filed in January and in our opinion were appropriately considered by the trial court. In fact the court partially granted the relief sought by the objectors regarding certain inadequacies in the reports. Indeed, the appellee has not suggested on this appeal that this action of the trial court was improper. We believe that there is a sufficient basis in the record for considering appellant’s principal objections raised on this appeal.

This brings us to tire appellant’s contention that the transactions described in the reports are insufficiently described to enable the beneficiaries to determine either their propriety or reasonableness. The basic rule is it is the burden of the executor to maintain by proof itéms entered in the account as being just and proper when objections are filed. (5 James, Illinois Probate Law and Practice § 290.4, at 280 (1951).) Whenever objections are timely filed the burden is on the administrator to maintain by proof that the items objected to are just and proper. (1A Homer, Probate Practice & Estates § 765, at 549. (4th ed. 1961).) This rule gains additional force when approval of the transactions reported has not previously been requested or secured. As observed in Nonnast v. Northern Trust Co., 374 Ill. 248, 259-60, 29 N.E.2d 251:

[W]here objections are filed, as here, it is the duty of the executor to prove the claims it paid were just, owing and correct as to amount. With reference to claims for services, it would also have to prove the reasonable value of the services if no fixed amount had been agreed upon by the testator in his lifetime with the claimant. If rendered to the estate, the personal representative must show the necessity and the reasonable, value of such services. There is no burden on the objector to disprove the validity of . claims that were not filed, proved and allowed.”

We have examined the reports of the executor which are lengthy, as might be expected from the period of 9 years covered. However, the descriptions of the transactions included are sketchy, incomplete and generally reveal little other than the amount of the transaction. Abbreviations are used which do not add to the description of the transaction. For example, there may be an item of “oats” indicating a dollar amount received but no other information. It also appears from the reports that the executor wrote 66 checks totalling $14,072.52 to himself personally, which amounts are without explanation. We conclude that the descriptions of the transactions in these reports are insufficient to support any conclusion respecting their necessity or reasonableness, and consequently the executor has failed to adequately discharge his duties as executor.

Conceding that the reports may not contain sufficient information, the executor nevertheless insists that the objectors are in no position to question the inadequacy of the reports because of their failure to take any earlier action. It would be sufficient to say that we find no pleading in the record in which the executor urged the application of the doctrines of waiver, estoppel or laches, and consequently such an argument cannot be made for the first time on appeal. However, we believe the executor’s duty when he is actively managing and controlling the principal assets of the estate is a continuing one, and hence these doctrines would be inapplicable. This is particularly true where, as in the instant case, the executor has acted both as landlord on behalf of the estate and as tenant on his own behalf.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is reversed, and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

Reversed and remanded.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE SMITH

text:
      In re Estate of Ray G. Redding, Deceased.—(Virginia Dodson, Petitioner-Appellant, v. Lena Redding Ex’rx, Respondent-Appellee.)
    (No. 12486;
    Fourth District
    December 17, 1974.

      Ralph D. Glenn, of Glenn & Logue, of Mattoon, for appellant.
    Joseph P. Smith, Jr., of Mattoon, for appellee.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Coles County on a citation to discover assets of an estate. The petition was brought by an heir and devisee and the court ruled that the proceeds of three checks deposited in a joint tenancy bank account of the decedent with his surviving widow were properly deposited in such account and were not assets inventoriable in the estate. On appeal, the plaintiff contends that these funds belonged to the estate because they were deposited in the joint tenancy bank account by a third party whose specific authority to do so was not adequate, and hence the proceeds of those checks never departed the ownership of the decedent and should therefore be inventoried as a part of his estate. We affirm the trial court.

Under the will of decedent, the personal estate and a life estate in his real estate went to the defendant wife and the remainder to the plaintiff, a daughter, unless she predeceased the defendant and in such case, the realty went to grandchildren. The facts are basically not in dispute. The decedent and his wife established the bank account in 1958 in joint tenancy, and used this fund for a period of some 14 years for the benefit of each and the benefit of both. Shortly before his death, the decedent contracted to sell his one-half interest in a building to a business partner by the name of Wolf, who was a co-owner. Five hundred dollars was paid down by Wolf, the balance of some $9,000 was paid by Wolf to the decedent and a third check made payable to the decedent on an unrelated debt for $2,435.96. Under the court decree these three deposits ultimately wound up in the joint tenancy bank account, and the trial court held they belonged to the widow and not to the estate. Within a few days after the closing of the transaction, the decedent died. He was quite feeble at the time; the documents required were signed either by an “X” or with the aid of the wife.

The decedent and his partner had kept a cotenancy account where money was sometimes deposited to take care of the mortgage, interest, taxes, etc., on the real estate. The wife took the first $500 and deposited it in that account. When the transaction was finally closed, the check on the old loan and the balance of the check on the purchase of the property was delivered by the decedent to a Mr. Behrend, who was a longtime personal friend, an ex-banker, and one quite familiar with the decedent’s. business affairs, and he was directed to deposit it either “in my account at the bank” or “in the bank” or “in our joint account.” Behrend deposited the money in the joint tenancy account, and the sole issue in this case is whether or not the money was properly in the joint tenancy account rather than in an individual account. We answer that question “yes.”

It is at once clear that the precise terms of the directions given to Mr. Behrend are not clear from the record so far as the precise account into which the money should go is concerned. It should also be stated here that there can be little doubt but that the money was to be put in the bank. The partner so testified, Mr. Behrend so testified, and the widow so testified, and that’s where the money was deposited. On the record, it is clear that the husband and wife had established a joint tenancy bank account some 14 years before, and both had used it for that period of time. There was no other bank account in which tire wife was directly interested individually or otherwise. There was no individual bank account of the decedent. There was the partnership account with Wolf for the purpose of taking care of mortgage payments, etc., on the very building that was involved in the contract and which gave rise to the three checks here involved. It is conceded that if the directions given by the decedent were sufficiently precise as a matter of law or fact to justify the deposit in the joint tenancy bank account, that’s where it belongs rather than in the estate. Unfortunately, the instructional precision which the plaintiff seeks to invoke is simply not present in this record and plaintiff therefore suggests that the donative intent is not established and that the ownership of these three checks and their proceeds was still in decedent at the time of his death. This is no suggestion of fraud, undue influence, overbearing, inducement or any of the usual accusation of unfairness asserted by the plaintiff. The question we decide therefore is a narrow one.

The plaintiff readily concedes that if the decedent had himself placed •the money in the joint bank accounts, no question arises. The first issue is whether the language used by the decedent authorized Behrend to do so. For the trial court and this court to determine that intention in the absence of a • clearly expressed and unequivocal instruction to Mr. Behrend, we need to place ourselves so far as we can in the position of the parties. Plaintiff urges that the language is susceptible of three interpretations: (1) that it be deposited in the partnership account. The testator’s language didn’t say so; (2) that it be deposited in the joint tenancy account. The widow stated that he did say so — the other two witnesses were not so specific, and (3) it be deposited in some other account. The testator did not have any other account, and we find difficulty in construing his words to direct Mr. Behrend to open up a new individual checking account. It is equally clear from this record that had Behrend done the latter, it would have been in the estate at the time of the decedent’s death and would have gone to the widow under the will in any event in the absence of debts. We also note that the citation to discover assets was not filed until the petition for the sale of real estate to pay debts was filed. We likewise mention that this litigation is between a daughter of the first marriage and a second wifé. These are all facts surrounding the situation which we review. These were facts known to the parties at the time of the transaction involved, except, of course, the chronology of the suit to pay debts and the citation proceedings.

It would seem to us most unlikely that the words used by the decedent in instructing his friend, Behrend, would refer to the partnership account between the decedent and Wolf where the source of these checks was Wolf himself and where a deposit in that account would amount to a gift of one-half of such checks to Wolf. The evidence is barren of any such donative direction or intention. Where this decedent apparently had never used an individual banking account and had created a joint tenancy account with his wife some 14 years before, it would seem that the words “my account” would be carefully tied in with the only account that the old gentleman had, that is, the joint banking account. Behrend testified that he was familiar with the decedent’s business over many years, and the only account he knew the decedent had was the joint tenancy account.

In the face of these facts, it seems to us that there is a complete failure on the part of the plaintiff to establish that this money does not belong in the joint tenancy account. In Murgic v. Granite City Trust & Savings Bank, 31 Ill.2d 587, 202 N.E.2d 470, it was held that an instrument creating a joint account under our statute presumably speaks the whole truth and in order to go behind the terms of the agreement, one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift by a donor was not intended. The burden does not shift to the surviving joint tenant to prove otherwise. We think Mr. Behrend did what everyone present including the testator intended for him to do. The disposition of these checks simply followed a policy established by the testator for more than 14 years. The theory that following uniform practice is not justified under the record in this case would follow an ¿logical route to an illogical conclusion ending in an illogical result. There is not a scintilla of evidence in this record to indicate anything other than that the instructions of the decedent were carried out by his trusted friend. When the direction was to deposit “in my account,” it seems reasonably logical to conclude that he meant the joint tenancy account which he had used over the years for all of his personal business except the limited partnership account. We conclude that the trial court was correct.

Affirmed.

SIMKINS, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Walker, Defendant-Appellant.
    (No. 11874;
    Fourth District
    December 17, 1974.

      Ronald L. Barnard, of Chicago, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Michael J. Flynn, Assistant State’s Attorney, and Steven M. Helm, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

The trial court entered judgments of conviction upon jury verdicts finding defendant guilty of armed robbery and conspiracy to commit aimed robbery. The defendant appeals the convictions and sentence of 2 to 5 years imposed for the armed robbery.

The robbery occurred at about 11 P.M. on June 3, 1969. A complaint against defendant was filed on June 24, 1969, after procuring a statement from an alleged accomplice. The defendant was indicted on November 7, 1969. In June, 1970, the prosecution learned that defendant was in Detroit and a warrant for his arrest was sent there. Sometime later, upon inquiry, the officials in Detroit reported that the warrant had not been received. In December, 1970, a Federal fugitive warrant was obtained and defendant was arrested in February, 1971, and returned for trial.

Defendant’s alibi includes an assertion that he left the city at about 5 P.M. on June 3, the date of the robbery, stayed with his wife in Chicago for the rest of the week and then went to Detroit where he was employed on June 13, 1969. Thomas, who pleaded guilty to the robbery, testified that defendant left on the morning of June 4, following the robbery, and that defendant talked about going to Detroit.

Defendant’s aunt testified that upon occasions in November and December, 1969, an individual showing police credentials had called to ask the whereabouts of the defendant but that although she knew defendant was in Detroit she believed the man was a bill collector and advised that she didn’t know where defendant was or the address of defendant’s sister in Chicago. Defendant asserts that he did not know of the charges until the day of his arrest.

Upon these circumstances, defendant asserts that he was denied the equal protection of the Fifth Amendment and a speedy trial under the Sixth Amendment. Defendant cites or argues certain language from People v. Love, 39 Ill.2d 436, 235 N.E.2d 819, without examining the facts or the applicable law. In that case a warrant had been issued but not served upon the defendant who resided within the county. The issue of speedy trial was raised in the context of section 103 — 5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 103 — 5), which required a trial within 120 days where a person was in custody.

In Love, the court pointed out that such statute was not co-extensive with the constitutional right to a speedy trial and that, apart from that statute, whether defendant had been denied a speedy trial was a judicial question. It was said that if it was not clear that a speedy trial was denied, the fact that defendant was or was not prejudiced through delay was of major significance in determining whether the delay was reasonable or unreasonable. Other than a general assertion, defendant does not demonstrate any actual prejudice through the loss of testimony or other evidence. No such deficiency appears in the trial record. Again, the record shows nothing of an intentional or oppressive delay for tactical advantage. People v. Henry, 47 Ill.2d 312, 265 N.E.2d 876; People v. Tetter, 42 Ill.2d 569, 250 N.E.2d 433.

In a constitutional context there is no absolute period for establishing a deprivation of the right of speedy trial. (People v. Henry.) It is a relative right determined through a “functional analysis of the right in the particular context of the case.” (Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182.) In such analysis, one examines the totality of the factors of the length of the delay, the reason for such, the degree of prejudice shown and whether there has been a waiver of the right to speedy trial. (Barker v. Wingo; People v. Henry and People v. Tetter.) The factor of waiver is not present here.

An assertion of prejudice does not establish such as a fact, but is speculative in the absence of a showing of actual prejudice. (United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455; People v. Love, 39 Ill.2d 436, 235 N.E.2d 819.) The record is clear that a principal reason for the delay in prosecution was the absence of defendant from the. state combined with the act of his aunt in choosing to deny her knowledge of defendant’s whereabouts or that of others of the family who might know where he was located. No case has been cited and we have found none which supports defendant’s assertion that the delay in finding a person who has left the state establishes negligence or want of diligence constituting a deprivation of speedy trial. In People v. Tetter, 42 Ill.2d 569, 250 N.E.2d 433, defendant, after release on bond, was in the custody of the military. The latter failed to honor a detainer and the whereabouts of defendant was lost until his arrest 22 months later. In People v. Henry, 47 Ill.2d 312, 265 N.E.2d 876, there was a delay of 26 months before defendant was extradited from another state. It was determined that defendant’s pending appeals in the custodial state were a sufficient reason to delay extradition.

Defendant’s citation of Dickey v. Florida, 398 U.S. 30, 26 L.Ed.2d 26, 90 S.Ct. 1564, has little relevance to these facts. There defendant’s place of custody was known; he had made repeated demands and taken legal action to secure prompt trial. A loss of evidence was established so that the court could determine that a delay of 8 years was for the convenience of the state.

There is no showing of a violation of due process absent the demonstration of actual prejudice or oppressive or intentional delay to gain tactical advantage. (United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455.) See also Klopfer v. North Carolina, 386 U.S. 213, 18 L.Ed.2d 1, 87 S.Ct. 988.

After defendant introduced testimony to establish an alibi, the prosecution called a rebuttal witness, Mrs. Printz. The defendant argues that the identification of defendant by this witness originated in improper identification procedures. Mrs. Printz testified that she was employed as a desk clerk at the Howard Johnson Lodge (a motel), and that at about 9 P.M. on June 3, two men came into the lobby, one of whom made what she considered an unusual, if not bizarre, inquiry. Shortly thereafter, the police called to advise that there had been the armed robbery here concerned. On the morning of June 4, a police officer called and showed her seven photographs. From this group she picked the accomplice, Thomas, and the defendant as the men who had come to the motel to make the inquiry. Upon the evening before she testified at this trial, in February, 1972, she was asked to appear at the court house to see whether she could identify a man. Upon her arrival she was shown the same seven photographs and, again, picked out the defendant. Pursuant to an order in limine before she entered the court to testify, defendant had changed his clothing and was seated in a group of nine men outside the bar of the court. The court noted that they were comparable in build and appearance. She positively picked defendant from this group and identified him as the man who came into the Howard Johnson Lodge with Thomas. She testified that the light in the motel lobby was good, that defendant was about 4 feet distant across the counter and was present for about 10 minutes while the inquiry was made and while she searched the registration records. Direct and cross-examination disclose that on neither occasion when she examined the group of photographs was any suggestion made but only the inquiry as to whether she had seen any of the persons in the photographs. She testified that she neither saw any identification upon any photograph nor was told of anything concerning the individuals. Her recollection of the date and the identity was clear through the coincidence of the man making the unusual inquiry, the notification of the armed robbery and the fact that she was shown the group of photographs on the next morning.

Defendant argues that the pretrial procedure was so suggestive that it constituted a denial of due process, citing People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685, People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152, and People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3. In Martin, the identification witness was shown a photograph of defendant alone prior to trial. While condemning the practice, the court found from all of the circumstances that the identification had an independent origin. In Blumenshine, the witness observed defendant at a showup and was told that the man was a suspect. That opinion held that it could not be ascertained from the record whether or not the identification witness picked defendant from a group of 20 photographs and also from police bulletins. It was held that such evidence of identification was admissible as the record showed an independent origin. Defendant also cites Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967. In this case, however, the witness identified the defendant at a showup and was told that he was a suspect.

The independent origin of the identification here is emphasized by reason of the fact that in-court identification was made while defendant sat amongst eight individuals chosen by him. In the light of such circumstances, the record shows clear and convincing evidence that the identification at trial had an independent origin without influence from the view of the photographs. United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926.

While not raised here, we note that the pretrial display of the several photographs to the witness does not present an issue of the right to counsel under the Sixth Amendment. United States v. Ash, 413 U.S. 300, 37 L.Ed.2d 619, 93 S.Ct. 2568.

One Solomon was the desk man at the motel during this robbery. He did not identify defendant at the trial or from any photographs shown by the police. From such facts defendant argues that he was not proven guilty beyond a reasonable doubt and that the testimony of the accomplice, Thomas, was not trustworthy. The record shows, however, that upon the first entrance into the motel, the accomplice, Thomas, made an inquiry as to rates. When the two men approached the desk the second time and announced the robbery, Solomon was talking on the telephone. Defendant described as the man with the gun, stepped around to cover a second man behind the counter. The latter resided out of the state at the time of trial. Immediately Solomon became engrossed with the robber whom he identified as Thomas, and who demanded the money from the cash register and the cash boxes. We analyze the argument in the context of the rule that the uncorroborated testimony of the accomplice will sustain a conviction if it satisfies the trier of fact beyond a reasonable doubt. (People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d .490.) If there is material corroboration of the testimony of the accomplice, that testimony is entitled to great weight. People v. Mentola, 47 Ill.2d 579, 268 N.E.2d 8; People v. Burnett, 13 Ill.App.3d 931, 301 N.E.2d 600.

There is substantial corroboration of the testimony of the accomplice, Thomas. Early in the trial he testified that following the robbery the defendant stated the alibi which he planned to use. Such alibi was thereafter presented by defendant in his defense. Thomas’ account of the series of events in the robbery of the motel was corroborated by the witness, Solomon. Finally, the rebuttal witness, Printz, identified defendant as being with Thomas about an hour prior to this robbery and testified to the same sequence of events as stated by Thomas. Such constitutes a substantial corroboration of the testimony of the accomplice.

Defendant argues that the trial court denied probation because he did not plead guilty and that such denial was an abuse of discretion. The record does not support this position. The court noted the seriousness of the offense in the context that defendant had handled the weapon, that the legislature had recently increased the minimum term for armed robbery from 2 to 4 years, and the necessity of a sentence to establish a deterrent effect. He heard the testimony of defendant and was well-advised botib as to defendant’s background and the circumstances of the offense. There is no basis which supports a conclusion of arbitrary or capricious action. People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300.

The trial court entered judgment of conviction upon the verdict of guilty of conspiracy to commit armed robbery, although he did not impose sentence. The record shows that the acts supporting such conviction were identical to and inseparable from the acts incident to the armed robbery. Upon the rule of People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316, and People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651, the conviction of conspiracy to commit armed robbery must be reversed and the cause remanded to the trial court with directions to enter an amended mittimus. Hie conviction for armed robbery is affirmed.

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

CRAVEN, J., and SIMKINS, P. J., concur.


author: Mr. JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Milton John, Defendant-Appellant.
    (No. 12513;
    Fourth District
    December 17, 1974.
    Kenneth L. Jones and Lynn Sara Frackman, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Jerry Finney, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE GUILD.

text:
    Jean C. Bobus, Plaintiff-Appellee, v. Charles E. Bobus, Defendant-Appellant.
    (No. 73-201;
    Second District (1st Division)
    December 18, 1974.
    Jones & Huszagh, of Chicago, for appellant.
    Pokorny & Snyder and Richard W. Kennedy, both of LaGrange, for appellee.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Derlis Medrano, Defendant-Appellant.
    (No. 73-328;
    Second District
    December 18, 1974.
    Ralph Ruebner and Richard J. Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.

      John J. Bowman, State’s Attorney, of Wheaton (Malcolm Smith, Assistant State’s Attorney, and James W. Jerz and Edward Morris, both of Illinois State’s Attorneys Ass’n, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Defendant herein, represented by a series of court-appointed counsel, was tried by a jury and found guilty of the offenses of burglary, rape and two counts of deviate sexual conduct. He was sentenced to 10-30 years in the State penitentiary for the offense of rape.

The sole contentions in this appeal are, first, that the conviction of the defendant was void as the statute defining rape is unconstitutional as being a denial of equal protection on the basis of sex and, secondly, that the sentence is excessive. Rephrased, this contention is that the statute is unconstitutional because the Illinois statute (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 11 — 1) provides that only a male person may be guilty of rape and that the statute does not provide for conviction of a female for the offense of rape. It is to be expressly noted, of course, that a female may be guilty of rape as an accessory, an aider or an abettor. People v. Trumbley (1911), 252 Ill. 29, 96 N.E. 573.

The facts herein are that on October 8, 1972, the complaining witness, separated from her husband, resided with her four small children in her residence in Wood Dale, Illinois. She was awakened by a man who said, “Shut up, lady, or I will kill you and I will kill the kid.” Her 6-year-old child was sleeping in the same room with her. The man, subsequently identified by the complaining witness as the defendant, made the complaining witness waken her son and put him out of the room. The defendant then put a pillowcase over the head of the complaining witness and, with a knife to her back, again told her to shut up or he would “go get your girls.” The other three children of the complaining witness, aged 6, 8 and 13, were asleep in the other bedrooms. The defendant then raped the complaining witness, slapped her across the face, then placed his penis in the complaining witness’ mouth. After committing other deviate sexual acts, which would serve no purpose to detail, he then placed his penis in the complaining witness’ rectum. After the threats as to the daughters of the complaining witness, she stated that she would do anything if he would leave them alone and he then proceeded to rape her the second time, followed by a third rape in a different position.

The argument as to the unconstitutionality of the Illinois rape statute was not argued in the trial court, nor was it presented in post-trial motion. The only allegation as to the unconstitutionality of the statute was a statement by the defendant, Medrano, at the sentencing hearing where he stated, “I felt the rape was unconstitutional under the law. It didn’t say a woman can rape a man.” While we do not feel that the question of the constitutionality of the statute in question was sufficiently raised in the trial court, nonetheless, we will consider the same.

In People v. Ellis (1974), 57 Ill.2d 127, 131, 311 N.E.2d 98, the Supreme Court of Illinois has stated there were two standards of review to be employed in testing the validity of statutory classifications. “The basic standard, permissive review, permits classifications which are rationally related to the legitimate governmental objective (People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 363), and the burden is on the party challenging the validity of the classification to prove that it is arbitrary.” The second standard as pointed out by the court, with relation to statutes which differentiate between individuals raises the “active review standard” where the burden is on the State to show that the “* * “ distinction was related to some compelling State purpose.” (57 Ill.2d 127, 131.) Applying either standard, we find that the statute here in question is both rationally related to a legitimate governmental objective, namely the protection of females, and that there is a compelling reason which not only justifies but makes essential the crime of rape as being an offense which may only be committed directly by a male.

The question in this case was presented directly and considered by the Supreme Court of the State of Arizona in State v. Kelly, - Ariz. -, 526 P.2d 720, 723:

“Defendant argues that the statutes make it a crime for a man to commit a sexual act upon a woman without her consent while a woman, however, who commits the same sexual act upon a man without his consent, cannot be charged with the crime of rape.
# # #
“In the instant case, we believe that the need for treating males and females differently in enacting the rape statute is clearly reasonable. The statute satisfies the real, if not compelling, need to protect potential female victims from rape by males.
“However, for obvious physiological as well as sociological reasons we perceive no need by males for protection against females from rape which would be sufficient to demand legislative attention. The fact that the law does not provide the same protection to males as it does to females does not deny the male perpetrator the equal protection of the law. The classification is logical and rational. The individual’s as well as the government’s interests are apparent. We do not find the statutes constitutionally infirm.”

In considering the same contention, the Supreme Court of Wisconsin, in State v. Ewald (1974), stated:

“The sex classification is reasonable and bears a fair and substantial relationship to the object of the law. Sec. 944.01 is intended to protect women against sexual attack and forced pregnancy. We do not feel called upon to engage in a dissertation of the psychological, medical, sociological and moral problems as they relate to a woman subjected to such a possible pregnancy and those same problems as they relate to a potentially unwanted child.” State v. Ewald (1974), 63 Wis.2d 165, 173, 74, 216 N.W.2d 213, 218.

We, therefore, find that the statute of the State of Illinois limiting the offense of rape as being commitable only by a male to be constitutional.

The second contention of the defendant is that the sentence imposed for the offense of rape is excessive. In support of this argument the defendant says that the complaining witness was not physically harmed. With this we do not agree. The defendant kept the complaining witness under his control with a knife for a period of almost 2 hours, in which time he committed all of the most degrading sexual offenses that are capable of being committed by a male, including threats to her and her children’s life. Under the circumstances the sentence imposed herein is in no way excessive.

The judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People ex rel. Gerald J. Brooks, City Attorney, of Wheaton, Plaintiff-Appellant, v. The Village of Lisle, Defendant-Appellee.
    (No. 72-305,•
    Second District
    December 9, 1974.

      Gerald Brooks, of Naperville, for appellant.
    Richard J. Hill, of Geneva, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff appeals from an order denying its petition for leave to file a quo warranto complaint. The issue presented for review is whether plaintiff, as a municipality and as a representative of its citizens, has standing to initiate quo warranto proceedings challenging defendant’s annexation of territory outside of plaintiffs corporate limits.

In 1968, the defendant passed an ordinance annexing the territory in question. Thereafter, plaintiff requested both the Attorney General and the Du Page County State’s Attorney to file a quo warranto action to challenge the annexation. The requests were denied and, 4 .years later, on its own relation, plaintiff petitioned for leave to file a quo warranto complaint on the basis that it (plaintiff) was a citizen having an interest in the question to be resolved. In affidavits filed, plaintiff asserted that it had a governmental interest in the planning and zoning of territory outside its corporate limits. After a hearing, the trial court found plaintiff was not a proper party and denied leave to file the complaint in quo warranto.

To determine whether, under the quo warranto statute (Ill, Rev. Stat. 1971, ch. 112, § 10), plaintiff is a proper party requires a study of the fundamental characteristics of quo warranto, its origin and development.

Quo warranto is defined as “[a]n extraordinary proceeding, prerogative in nature, addressed to preventing a continued exercise of authority unlawfully asserted.” (Black’s Law Dictionary 1417 (4th ed. 1951.) Originally, the action could only be brought to correct public wrongs and was not available for the correction of private wrongs. In Illinois, the Quo Warranto Act of 1874 abrogated the common-law rule and allowed the issuance of the writ to correct wrongs done to either public or private rights. (The dual role of the quo warranto action remains the law today. See Ill. Rev. Stat. 1973, ch. 112, §9 et seq.)

Under tire 1874 statute a fundamental distinction arose between quo warranto proceedings brought to protect purely public interests and those brought to enforce a private right. In cases where the public interest was involved, the Attorney General and State’s Attorney were held to have the sole, absolute and discretionary power to decide whether the action should be brought. The discretion vested in these state officials could not be controlled, coerced or reviewed by others. (This is true today.) Even when a private interest was involved, it was necessary that the action for quo warranto be commenced in the name of the People by one of these State officials and, at times, a mandamus action was required to compel its initiation. Today, under the Quo Warranto Act of 1937, the mandamus procedure has been eliminated. After an individual’s request has been refused by state officials, the person can, on his own relation, apply directly to the court for leave to file a quo warranto complaint. (For a complete explanation, see Rowan v. City of Shawneetown, 378 Ill. 289, 294-97 (1941), overruled for other reasons in People ex rel. McCarthy v. Firek, 5 Ill.2d 317, 325 (1955).)

Prior to Firek, supra, public and private rights were found to be mutually exclusive. (Rowan v. City of Shawneetown, supra.) The Firek decision eliminated the distinction and recognized that the right sought to be protected could be both public and private in nature. (People v. Firek, supra, at 323-325.) Thus, today the fact that the wrong sought to be remedied is in one sense public in nature would not be sufficient in and of itself to sustain a denial of a citizen’s quo warranto complaint where a sufficient private interest is specifically alleged.

Firek did not, however, alter the statutoiy language that determines who is the proper party plaintiff to bring a quo warranto action. (See Ill. Rev. Stat. 1971, ch. 112, § 10.) The right to act as representative for the People remains inherently, exclusively and legally vested in the Attorney General and the State’s Attorney. Where matters of purely public import touching no private interest are involved, only these public' officials can qualify as proper party plaintiffs. This limitation was in-. tended to avoid the confusion and possible dispute which might arise if concurrent control of the quo warranto remedy was to vest in other hands. (People v. Wood, 411 Ill. 514, 521-25 (1952).) We therefore find that the City of Wheaton, in its capacity as representative of the People, fails to qualify under section 2 of the Quo Warranto Act as a proper party plaintiff to assert a public right.

There remains the question of whether the City of Wheaton is a proper party to apply for leave to file a quo warranto complaint as a “citizen having an interest in the question on [its] own relation.” As previously noted, this interest must be private in nature in order to entitle one to file a petition on his own relation. Although it may appear that the City of Wheaton, in a certain sense, has an interest not common to the general public, only by turning our backs on the fundamental characteristics of quo warranto, its origin and development, could we find plaintiff’s interest to be private. (People v. Wood, supra, at 524.) The right here asserted is plaintiff’s interest in planning and zoning for adjacent territory outside its municipal boundaries, clearly a governmental rather than private function, (See Merrill v. City of Wheaton, 379 Ill. 504, 509 (1942), for the distinction between governmental and private functions.) We find no private interest asserted and thus the City of Wheaton fails to qualify as a “citizen having an interest in the question on [its] own relation.”

For the foregoing reasons, we find that the trial court was correct in finding that the City of Wheaton was not a proper party plaintiff and in denying plaintiff’s petition.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.

       “The proceeding shall be brought in the name of the People of the State of Illinois by the Attorney General or State’s Attorney of the proper county, either of his own accord or at the instance of any individual relator; or by any citizen having an interest in the question on his own relation, when he has requested the Attorney General and State’s Attorney to bring the same, and the Attorney General and State’s Attorney have refused or failed so to do, and when, after notice to the Attorney General and State’s Attorney, and to the adverse party, of the intended application, leave has been granted by any court of competent jurisdiction, or any judge thereof.”


text:
    Howard C. Gregory, Plaintiff-Counterdefendant-Appellee, v. Florence C. Gregory, Defendant-Counterplaintiff-Appellant.
    (No. 73-4;
    Second District
    December 12, 1974.

      Rehearing denied January S, 1975.

      Korf, Pfeil & Graves, of Elkhorn, Wisconsin, and Rinella & Rinella, of Chicago, for appellant.
    Pedderson, Menzimer, Conde, Stoner, Ferolie & Spelman, of Rockford (Clifford E. Stoner, Clifford A. Pedderson, and Dale F. Conde, of counsel), for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant appeals from decrees, founded upon jury verdicts, which granted plaintiff a divorce on the grounds of extreme and repeated mental cruelty and denied defendant a divorce on the same grounds. Plaintiff cross-appeals, claiming that the trial court erred by making certain awards to the defendant. Pending appeal, plaintiff moved to dismiss defendant’s appeal. The motion was ordered taken with the case. Numerous issues are raised by both parties, but it is necessary for use to consider only plaintiff’s motion and the question of whether the decrees entered are supported by the evidence.

Plaintiff’s motion is in the nature of a plea of release of errors. It is argued that by accepting the $175 weekly alimony payments ordered in the divorce decree, defendant is estopped from appealing the decree. It is a rale of law that a party cannot attack a divorce decree after having enjoyed its benefits, when to do so would place the opposing párty at a distinct disadvantage upon reversal of the decree. Lemon v. Lemon, 14 Ill.2d 15,17-18 (1958); James v. James, 14 Ill.2d 295, 298 (1958); Pope v. Pope, 12 Ill.App.3d 800, 803-04 (1973); Hancox v. Hancox, 54 Ill.App.2d 476, 479-80 (1964).

Pursuant to the decree of divorce, alimony was paid to defendant for approximately 4 months after which time, on motion by the defendant, the trial court ordered that, pending disposition of tire appeal, forthcoming alimony payments would be considered payment of temporary alimony. (See Ill. Rev. Stat. 1971, ch. 40, § 16.) Evidence reveals that the defendant accepted these funds under protest; she did not use the funds but held them in a bank account. Under these facts we find that the defendant has not enjoyed the benefits of the decree and that plaintiff would not be placed at a distinct disadvantage by a reversal of the decree. The motion is denied.

A complete review of the testimony relied upon by the parties to establish extreme and repeated mental cruelty is necessary in order to determine whether the evidence justifies the judgments entered.

At the time of then- separation, this marriage (the third for both parties) had endured for 25 years. Defendant had no children; plaintiff had four children bom of his first marriage. At the time of trial, plaintiff was 85 years of age, defendant, 69.

After asserting that during their- marriage he had been very considerate and generous toward defendant, plaintiff testified to the following incidents which occurred during or as the result of various arguments between the couple. Four to five years prior to trial, as plaintiff went to the closet for his coat, defendant seized him and, in the process, knocked off his glasses. During the same period, defendant seized plaintiff while he was sitting in his chair and, on another occasion within the last 2 or 3 years, defendant forced plaintiff backward on the bed and seized his arms. Plaintiff could not recall the cause of the arguments; the parties were alone when these acts occurred. Plaintiff testified that, while he had not been physically hurt, he reacted with a keen sense of disappointment in being subjected to such treatment and that the acts were a source of embarrassment and humiliation to him.

Two or three years prior to trial, plaintiff learned from a third party that defendant had purchased a farm. He characterized as embarrassing both the purchase and the manner in which he learned of it.

Early in 1970, the parties agreed to equally divide plaintiff’s income. In November of that year, plaintiff asked for defendant’s consent to invade the corpus of a trust for the purpose of their making a relatively small joint gift to certain charities; defendant refused. Plaintiff thereupon withdrew his consent to divide his income with the defendant and defendant responded by refusing to perform any domestic services for plaintiff. This continued until the middle of December, 1970, when the plaintiff left to visit one of his daughters and her family in North Carolina. On his return in early January, 1971, plaintiff became ill. Defendant rendered him services during his illness but after his recovery rendered no further services until plaintiff left on January 14, 1971, for an around-the-world cruise. Plaintiff returned in April, 1971, and established his own domicile.

In December of 1970, defendant exercised her power to have the plaintiff removed as comanager of one of their trusts. Notice of removal was sent to an officer of the trust (First National Bank of Rockford). Plaintiff was embarrassed and disappointed by this act because it reflected on his ability to handle financial matters. (Before his 1962 retirement, plaintiff had been treasurer of J. L. Clark Co.) In April, 1971, prior to filing his complaint for divorce, plaintiff, with' one of his daughters, went to the marital domicile to gather his personal effects; defendant was very angry, refused to help him gather his belongings, and called him a “senile old goat.”

It is upon this evidence that the defendant was found guilty of extreme and repeated mental cruelty.

Defendant’s bill of particulars sets forth 22 acts of alleged mental cruelty covering a 23-year period. We relate only those incidents which seemingly are of more substance. In 1948, while dining out together and while plaintiff read a newspaper and drank his cocktail, defendant attempted to surprise him by slipping her newly-acquired commercial pilot’s license under the newspaper. Plaintiff moved the paper to one side, looked at the license and returned to his reading. His action caused the defendant to cry.

Plaintiff and defendant sailed from Japan to San Francisco in April of 1961 and defendant became ill. During the trip she was cared for by the purser and the captain; plaintiff did not bring her food or ask how she was feeling. Although still ill upon arrival in San Francisco, defendant reluctantly followed plaintiffs suggestion that she go to Los Angeles and sit in the sun with her brother. Since plaintiff was traveling the distance home by train, he left defendant at the train station, thereby causing her a great deal of difficulty in reaching the San Francisco Airport. Defendant flew to Rockford from Los Angeles, arrived home before plaintiff, and called her doctor, who saw her four times that night. She did not recover from her illness for approximately 1 year.

In 1966, plaintiff visited his son in Connecticut and planned to depart from there on a North Cape cruise. In a telephone conversation the night before his departure, defendant informed him that she had been taken ill; plaintiff told her to go to bed, departed as scheduled, and did not write or phone during the voyage.

The following year, preparatory to flying the two of them to St. Paul, Minnesota, defendant began a flight check on her plane. Plaintiff talked to defendant and was asked to please keep quiet until she finished the check; plaintiff became angry and threw a thermos of coffee in the direction of the defendant. The bottle broke when it hit the instrument panel. Defendant cleaned up the mess, and they proceeded on their trip.

During a 1968 cruise, defendant again became ill and was able to disembark at only 5 of the 17 ports of call. When they reached Florida, the defendant wanted to go home; plaintiff wanted to rent an apartment in Florida. An argument ensued and plaintiff took the defendant to the airport. She returned home alone to seek medical attention.

Plaintiff did not take defendant along on his 1970 cruise and left her only $200 for expenses during his 2-month absence. To meet expenses, defendant wrote $1400 in overdraft checks which were honored by the bank. Upon plaintiff’s return, the two consulted an attorney and, on his advice, agreed to divide plaintiff’s income equally.

The defendant testified that plaintiff never brought her gifts from his travels, that he left her alone for three Christmases which he spent with his children, and that for Christmas 1967 to 1970, he gave her a total of three boxes of stationery while he gave his children stocks with an approximate total value of $50,000.

Plaintiff denied that he failed to render the defendant aid during her 1961 illness and testified that he could not recall throwing the thermos.

Upon this evidence, plaintiff was found not guilty of extreme and repeated mental cruelty.

Our legislature has the sole power to determine what causes, if any, must be established in order for one of the State’s residents to be entitled to a divorce. While other jurisdictions in recent years have recognized the countervailing consideration that much harm may result from a denial of a divorce where the marriage has ended in fact (24 Am.Jr.2d Divorce and Separation § 9), the public policy of our State is to preserve the marriage. (Stanard v. Stanard, 108 Ill.App.2d 240, 249 (1969).) The law in Illinois remains that a marriage should not be lightly terminated. A plaintiff is required to prove a statutory cause for divorce by competent evidence, even though the court might conclude the marriage to be dead. McGowan v. McGowan, 15 Ill.App.3d 913, 915 (1973).

Extreme and repeated mental cruelty is a cause for diyorce. (Ill. Rev. Stat. 1971, ch. 40, § 1.) Whether certain acts constitute mental cruelty depends upon the total factual background of each case, the emotional and personal make-up of the parties and the circumstances under which the incidents occurred. (Woodshank v. Woodshank, 2 Ill.App.3d 596, 599 (1971); Loveless v. Loveless, 128 Ill.App.2d 297, 300 (1970); Howison v. Howison, 128 Ill.App.2d 377, 381 (1970); Akin v. Akin, 125 Ill.App.2d 159, 165-66 (1970).) The ultimate test is the effect the complained-of-conduct had upon the complaining party and the marriage. (Howison v. Howison, supra, at 381.) Generally, the elements of extreme and repeated mental cruelty have been recognized as a course of abusive and humiliating treatment, calculated or obviously of the nature to torture, discommode, or render miserable the life of the opposite spouse, which conduct actually affects the physical or mental health of the spouse. (Howison v. Howison, supra, at 382; Marks v. Marks, 8 Ill.App.3d 212, 214 (1972); Quilty v. Quilty, 5 Ill.App.3d 801, 803 (1972); Stanard v. Stanard, supra, at 249.) The complaining party also bears the burden of proving by a preponderance of the evidence that the conduct complained of was not provoked. Stanard v. Stanard, supra, at 246.

The record reveals that, under the law, neither party met the quantum of proof necessary to support a decree of divorcé based upon mental cruelty. Plaintiff testified that at sporadic times during the marriage defendant’s conduct embarrassed and humiliated him, but he failed to establish that defendant’s conduct was calculated or obviously of a nature to torture, discommode or render his fife unendurable or miserable and actually affected his physical or mental health. Incidents of humiliation, by themselves, are not sufficient to cause mental cruelty. Defendant’s evidence on her counterclaim fails for the same reason.

Another deficiency of proof is that neither party established the lack of provocation. Defendant’s evidence wholly fails in this respect. Plaintiff, in an attempt to avoid this defect, mistakenly relies upon the general statement that he had been very considerate and generous to defendant, a statement made in answer to a question concerning his conduct generally toward the defendant during their marriage, and not for the purpose of proving lack of provocation. When specifically asked the cause of the arguments which led to defendant’s conduct, plaintiff could not recollect .the causes.

A reviewing court is not free to set aside a jury verdict on the basis that it would have reached a different conclusion, but where there is a complete absence of fact to support the jury’s conclusion, it becomes the duty of the reviewing court to set the verdict aside. (Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, 171 (1956); Owen v. Pret’ A Porter Boutique, Inc., 15 Ill.App.3d 438, 443 (1973).) In the present case, tire jury’s verdict in favor of the plaintiff was based upon insufficient facts and must be set aside. On the same basis, its verdict against the defendant is found to be correct.

For these reasons, the decree granting plaintiff a divorce is reversed and the order denying defendant a divorce is affirmed.

Motion to dismiss appeal denied; decree of divorce as to plaintiff, reversed; order denying divorce to defendant, affirmed.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dan T. Slaughter, Defendant-Appellant.
    (No. 74-87;
    Second District (2nd Division)
    December 18, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE T. MORAN.