source: Caselaw Access Project

author: JUSTICE LEWIS

license: Public Domain

text:
    HELEN BEELER, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Sherwin Williams, Appellee).
    Fifth District
    No. 5—88—0307WC
    Opinion filed January 18, 1989.
    Rehearing denied March 10, 1989.
    John J. Larsen, Jr., of St. Louis, Missouri, for appellant.
    Robert L. Mueller, of Livingstone, Mueller, O’Brien & Davlin, of Springfield, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Petitioner, Helen Beeler, widow of Melvin Beeler, filed an application for adjustment of claim under the Workers’ Occupational Diseases Act (Ill. Rev. Stat. 1981, ch. 48, par. 172.36 et seq.), naming as respondent therein Sherwin Williams Chemical Division, Mr. Beeler’s former employer. An arbitrator denied petitioner’s claim for compensation, finding that petitioner had failed to prove decedent’s death arose out of and in the course of his employment with respondent or was causally related thereto. Petitioner obtained a reversal of the arbitrator’s decision in proceedings before the Industrial Commission. The Commission found that decedent had been exposed to an occupational hazard in the course of his employment that was causally related to his death. Respondent sought review of the Commission’s order in the circuit court of Montgomery County, and on May 2, 1988, the court set aside the Commission’s award, holding that the Commission’s decision was against the manifest weight of the evidence. Petitioner appeals raising a single issue, whether the decision of the Industrial Commission was against the manifest weight of the evidence.

At the hearing before the arbitrator the petitioner testified that she had met her husband, Melvin Beeler, in April of 1941. At that time he had just started to work for Eagle Pitcher Industries, the predecessor of Sherwin Williams. He was in good health and had no respiratory ailments. Mr. Beeler was a member of the armed services from July 1942 to December 1945. He returned from the service with no apparent health problems and resumed his employment at Eagle Pitcher’s plant, where he was continually employed up to the date of his death on May 15,1981.

On days when he returned from work without having showered, he was completely covered with “white oxide,” a dust-like substance. He had dust on his face on days when he had not worn a respirator. In 1962 Mr. Beeler, a nonsmoker, developed a chronic cough and respiratory problems. His health steadily deteriorated. His condition seemed to be worse upon his return home from work; however, it would improve somewhat by morning. Mr. Beeler suffered an asthmatic attack on the morning of May 15, 1981, while preparing his lunch for work and died a short time later.

Lester Roemlin, formerly employed as a supervisor for Eagle Pitcher Industries and respondent, Sherwin Williams, testified concerning Mr. Beeler’s working conditions. Roemlin stated that he had seen Beeler covered with zinc oxide dust. Beeler’s job entailed sweeping dust off the floor of the plant and repairing bags containing the dust. Roemlin said there was not much dust in the plant, but respirators were provided to all employees. Beeler did not always wear a respirator. The company did not enforce rules requiring employees to wear respirators.

The transcript of Dr. Noah Dixon’s deposition was introduced as evidence. Dixon testified that he had served in the Air Force for six years as a senior flight surgeon and as a consultant concerning pulmonary diseases prior to entering private practice in 1961. Dr. Dixon was board-certified in internal medicine, allergy and pulmonary diseases, and immunology. He served on the staff of Southern Illinois University Medical School and was a consultant to intensive care services at St. John’s Hospital in Springfield, Illinois. Dixon’s practice was limited primarily to allergy and pulmonary diseases. He was Melvin Beeler’s treating physician.

In 1972 Beeler, suffering from severe asthmatic bronchitis, was examined by Dr. Dixon and was subsequently hospitalized. Beeler told Dr. Dixon that he had been engaged in dusty work most of his life and had experienced coughing, wheezing, and shortness of breath since 1967. Dixon diagnosed Beeler’s condition as “infectious bronchitis with asthmatic bronchitis and chronic obstructive lung disease and bronchitis medicamentosa.” The condition was chronic and “intrinsic in nature,” that is, it was engendered by no specific identifiable external cause. Dr. Dixon was of the opinion that exposure to dusts would aggravate and compound the condition.

A translation of a Russian study of the effects of zinc oxide dust in the workplace was introduced. The study noted the “highly dispersible” characteristics of the dust and concluded that zinc oxide dust has an adverse effect on the upper respiratory system.

The transcript of Dr. Howard Van Ordstrand’s deposition was admitted into evidence. Dr. Van Ordstrand’s curriculum vitae was introduced to demonstrate his experience and qualifications. Dr. Van Ordstrand was undoubtedly highly qualified in thoracic, respiratory, and pulmonary medicine. His achievements, memberships, and associations are too numerous to recount here. Dr. Van Ordstrand had studied Beeler’s medical records and had examined his X rays. He had read X rays for “several large companies.” Dr. Van Ordstrand expressed the opinion that Beeler suffered from episodic attacks of intrinsic bronchial asthma and that he died because of his asthmatic condition. Dr. Van Ordstrand explained that intrinsic asthma is caused by internal factors such as stress or infections; extrinsic asthma is caused by external factors such as pollen. Intrinsic asthma is characterized by periods of latency between attacks, that is, it is episodic; extrinsic asthma caused by an agent in the workplace occurs as long as the agent is present. According to Dr. Van Ordstrand, if Beeler had reported that irritants at his workplace caused his asthma and that his condition improved when he was away from the workplace, then he might have had extrinsic asthma. However, Dr. Van Ordstrand was of the opinion that, regardless of the quantity of zinc oxide dust to which Beeler had been exposed, the dust could not have been a cause of his asthma or an aggravating factor. When questioned by petitioner’s counsel, Dr. Van Ordstrand acknowledged that some authorities believe all asthma would prove to be extrinsic if only the appropriate antigens were identified. Generally speaking, extrinsic asthma is caused by known agents, whereas intrinsic asthma is caused by unknown agents.

Respondent introduced into evidence Beeler’s medical records, which indicated excessive exposure to dust and allergies to pollen and dust; three medical articles addressing the effects of exposure to zinc oxide dust; and a letter from Dr. Van Ordstrand.

An arbitrator denied petitioner benefits. On the same evidence the Industrial Commission reversed, finding that Beeler had been exposed to an occupational hazard that aggravated his preexisting condition of bronchial asthma and was causally related to his death. The circuit court reversed the Industrial Commission, stating, “The Court is not qualified to say which expert has more expertise overall, but it is apparent that Dr. Van Ordstrand has superior knowledge of the effects of zinc oxide in the workplace and of occupational asthma in general.” The court also noted that “the greater weight of scientific literature supports the proposition that zinc oxide dust or powder is not harmful to the employee.”.

It is the function of the Industrial Commission to resolve disputed questions of fact, including those of causal connection, to draw permissible inferences, and to decide which of conflicting medical views is to be accepted. (Material Service Corp. v. Industrial Comm’n (1983), 97 Ill. 2d 382, 454 N.E.2d 655.) Credibility of witnesses and causal connection are questions for the determination of the Industrial Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. (Certi-Serve, Inc. v. Industrial Comm’n (1984), 101 Ill. 2d 236, 461 N.E.2d 954.) A reviewing court should neither overturn the Commission’s findings simply because a different inference could be drawn nor otherwise substitute its judgment for that of the Commission. (Hoegger v. Industrial Comm’n (1987), 158 Ill. App. 3d 1025, 512 N.E.2d 110.) In this case, we think that the circuit court substituted its judgment for that of the Commission.

Both Drs. Dixon and Van Ordstrand diagnosed Beeler’s condition as intrinsic asthma. Even assuming that Beeler’s condition was not caused by dust in his workplace, Dr. Dixon testified that exposure to dust would aggravate and compound Beeler’s preexisting illness. A compensable injury will be found upon a showing that a preexisting illness was aggravated or accelerated by conditions in the workplace. (Williams v. Industrial Comm’n (1981), 85 Ill. 2d 117, 421 N.E.2d 193.) Dr. Van Ordstrand testified, however, that no amount of zinc oxide dust or powder could have caused Beeler’s asthma or aggravated his condition.

Contrary to Dr. Van Ordstrand’s suppositions, Beeler’s medical records indicate that Beeler had complained of dust in the workplace. Petitioner testified that her husband had been covered with dust on those occasions when he came home from work without having showered. She also testified that his condition was worse upon his return from work and improved after a night away from work. From petitioner’s testimony it could be inferred that Beeler had been regularly exposed to zinc oxide dust that apparently aggravated his asthma. From Dr. Dixon’s testimony, it is evident that exposure to dust would have aggravated Beeler’s condition. Thus, a causal connection was established. The Commission could have inferred that the adverse effect of frequent exposure to high concentrations of dust in the air would be more pronounced in a person, such as Beeler, with a preexisting condition. The Industrial Commission could reasonably have relied upon Dr. Dixon’s opinion and rejected that of Dr. Van Ordstrand.

As stated in Board of Trustees of Southern Illinois University v. Knight (1987), 163 Ill. App. 3d 289, 291, 516 N.E.2d 991, 993:

“A decision is contrary to the manifest weight of the evidence only when, after viewing the evidence in a light most favorable to the agency, the court determines that no rational trier of fact could have agreed with the agency’s decision.”

It appears the circuit court substituted its judgment for that of the Industrial Commission. The record shows that the decision of the Commission is not against the manifest weight of the evidence. Therefore, the judgment of the circuit court is reversed, and the decision of the Industrial Commission is reinstated.

Circuit court reversed; order of the Illinois Industrial Commission reinstated.

BARRY, P.J., and McNAMARA, WOODWARD, and McCullough, jj., concur.


author: PRESIDING JUSTICE WELCH HOWERTON, J., JUSTICE HARRISON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff-Appellant, v. PATRICK O. HICKS, Defendant-Appellee.
    Fifth District
    No. 5—87—0412
    Opinion filed February 6, 1989.
    HARRISON, J., dissenting.
    Don Sheafor, State’s Attorney, of Vandalia (Kenneth R. Boyle, Stephen E. Norris, and Kathy J. Geer, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This is an appeal from an order entered on May 4, 1987, in the circuit court of Fayette County granting defendant’s motion to suppress certain evidence.

On February 9, 1987, defendant was charged and arrested for the offense of burglary. After being taken into custody at the Fayette County jail, defendant was advised of his Miranda rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 88 S. Ct. 1602, at which time defendant exercised his right to remain silent. On February 10, 1987, defendant appeared in court, at which time counsel was appointed to represent him in defending the burglary charge.

At the time of defendant’s arrest for burglary, he was currently on mandatory supervised release as part of a previously imposed sentence for an unrelated crime. Defendant was returned to Graham Correctional Center for violating the terms of his parole. While being transported by a deputy sheriff from Fayette County jail to the correctional center in Hillsboro, Illinois, on February 11, 1987, defendant voluntarily began offering information pertinent to the burglary for which defendant had been charged. The deputy responded that he was unable to talk with the defendant about the burglary because an attorney had been appointed to represent him. The deputy’s reminder notwithstanding, defendant made further comment regarding the burglary charge.

Shortly thereafter, while the deputy and defendant continued driving toward Hillsboro, they passed the scene of another recent burglary, at which time the deputy inquired as to what defendant knew about that burglary. In response, defendant offered incriminating information, the admissibility of which is the subject of this appeal.

While the ruling of the trial court suppressing defendant’s incriminating statement does not specify which of defendant’s rights were violated, the parties do not now dispute that the sixth amendment right to counsel is not brought into issue in this appeal because a defendant’s right to counsel under the sixth amendment does not attach until a defendant has been charged for a crime. (U.S. Const., amend. VI; see People v. Martin (1984), 102 Ill. 2d 412, 466 N.E.2d 228.) Thus, the question we are asked to review is whether defendant’s right to counsel arising under the fifth amendment was violated. U.S. Const., amend. V.

Defendant in the instant case relies on United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240, for the proposition that when an accused invokes his fifth amendment right to counsel there can be no further questioning of that defendant, even where the further inquiry relates to a crime other than that for which defendant is currently in custody. However, this does not hold true in cases where, as in the instant case, the defendant initiates further questioning after having once been afforded the protection of an attorney — either through court appointment or at the defendant’s request. Arizona v. Roberson (1988), 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093.

In Roberson, the Supreme Court expanded the holding of Edwards v. Arizona (1981), 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880, to bar police-initiated interrogation following a suspect’s request for counsel in the context of a separate investigation. Taking language from Edwards (451 U.S. at 484-85, 68 L. Ed. 2d at 386, 101 S. Ct. at 1885), the Roberson Court stated that “[sjurely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he ‘is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” (486 U.S. at_, 100 L. Ed. 2d at 714, 108 S. Ct. at 2098.) The Roberson Court applied this language to prohibit police interrogation of a defendant who had requested the assistance of counsel, even when such interrogation pertained to a crime separate from that for which defendant was in custody.

The Roberson Court did not specifically state to what extent authorities may resume interrogation once a defendant has himself initiated “further communication, exchanges, or conversations” with the police. (486 U.S. at_, 100 L. Ed. 2d at 714, 108 S. Ct. at 2098.) This is the crux of the present case. At the suppression hearing, the trial court heard testimony indicating that, after counsel had been appointed to represent him, defendant initiated conversation with an officer pertaining to the crime for which the defendant was in custody. Indeed, the defendant continued to speak even after being reminded by the officer that the officer could not discuss the crime with defendant because an attorney had been appointed to represent defendant. After defendant’s persistent initiation of conversation regarding the crime for which he was in custody, the officer inquired as to what defendant knew about an unrelated crime. Defendant’s incriminating remarks followed and became the subject matter of the suppression hearing herein under review.

Defendant does not now deny that he attempted to initiate conversation pertaining to the crime for which he was in custody. Instead, he asserts that his initiation of conversation pertained to only one crime and the officer’s question pertaining to an unrelated crime was therefor impermissible. We disagree.

A defendant’s request for counsel raises the presumption that he is unable to proceed without a lawyer’s advice. (Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321.) As discussed above, the Roberson Court ruled that a defendant’s request for counsel should apply to any questions the police wish to pose. In Roberson, the defendant’s unwillingness to answer any questions without the advice of counsel, without limiting his request for counsel, indicated that the defendant did not feel sufficiently comfortable with the pressure of custodial interrogation to answer questions without an attorney. (486 U.S. at_, 100 L. Ed. 2d at 715, 108 S. Ct. at 2099.) The Court went on to state that “[t]his discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation; unless he otherwise states, *** there is no reason to assume that a suspect’s state of mind is in any way investigation-specific.” (486 U.S. at_, 100 L. Ed. 2d at 715, 108 S. Ct. at 2099.) So too, in the instant case, there is no reason to assume that the defendant’s state of mind was investigation-specific. Therefore, we find that the defendant’s voluntary waiver of his right not to be interrogated without having a counsel present was not limited to a specific crime, and the incriminating information offered by defendant should not have been suppressed.

For these reasons, the order of the circuit court of Fayette County is hereby reversed.

Reversed.

HOWERTON, J.,

concurs.

JUSTICE HARRISON,

dissenting:

When defendant was arraigned on the initial burglary charge, an attorney was appointed to represent him. By accepting this appointment, defendant invoked his fifth amendment right to counsel. (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 126, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240.) As long as defendant remained in continuous physical custody, the police were therefore barred from initiating any further interrogation of him outside the presence of his lawyer. (.Edwards v. Arizona (1981), 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386, 101 S. Ct. 1880, 1885.) This does not mean simply that they were precluded from inquiring about the initial burglary for which defendant had been arrested. It means that they should not have questioned him about any crime, including the second burglary. Arizona v. Roberson (1988), 486 U.S. 675,_, 100 L. Ed. 2d 704, 716-17, 108 S. Ct. 2093, 2100-01.

The majority holds that defendant’s fifth amendment right to counsel was waived. I disagree. Although there is no dispute that defendant offered certain information to the police on his own initiative, that information pertained exclusively to the crime with which defendant had already been charged. Defendant volunteered nothing about the second burglary. The second burglary was discussed by him only after the police specifically questioned him about it sometime later.

The majority simply assumes that because defendant was willing to waive his rights with respect to the first crime, he was willing to waive those rights generally. Such a view cannot be sustained. A court must presume that an individual has invoked the full extent of his right to counsel. (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 123, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240.) It cannot indulge in any presumption that this right has been waived. For there to be a valid waiver of counsel, the waiver must not only be voluntary, but must also constitute a knowing and intelligent abandonment of a known right (Edwards v. Arizona (1981), 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884), and the burden of establishing a valid waiver rests with the State (United States ex rel. Espinoza v. Fairman (7th Cir. 1987), 813 F.2d 117, 123, cert, denied (1987), 483 U.S. 1010, 97 L. Ed. 2d 745, 107 S. Ct. 3240, citing Michigan v. Jackson (1986), 475 U.S. 625, 633, 89 L. Ed. 2d 631, 640, 106 S. Ct. 1404, 1409).

In this case I believe that the circuit court could properly have found that the State did not meet its burden. I would therefore affirm its order suppressing defendant’s statements regarding the second burglary. Accordingly, I dissent.


author: JUSTICE HARRISON

text:
      In re PATERNITY OF MARIAH DAWN SMITH (Mariah Dawn Smith, a Minor by Janice Smith, her Mother and Next Friend and Guardian, Petitioner-Appellant and Cross-Appellee, v. Mike Barbre, Respondent-Appellee and Cross-Appellant).
    Fifth District
    No. 5—87—0672
    Opinion filed February 9, 1989.

      Robert H. Rath, of Rath & Fornes, of Harrisburg, for appellant.
    Bruce D. Stewart, of Harrisburg, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

The petitioner, Janice Smith, as guardian for her daughter Mariah Smith, appeals and the respondent, Mike Barbre, cross-appeals from a judgment of the circuit court of White County. On May 11, 1987, the circuit court granted the petitioner’s motion for summary judgment and found paternity of the respondent in the child, Mariah Smith, born on June 13, 1972. The court heard the remaining issues on May 11 and 12, 1987, and entered a judgment on those issues on September 1, 1987. As we find that the trial court erred in granting the petitioner’s motion for summary judgment, we reverse the court’s judgment and remand the cause.

The respondent resides in Carmi, Illinois, and is employed as a farmer and as a jailer for the White County sheriff. He has also worked at various times for McKnight Motors, the Bargain Barn, the Vintage Lounge, and for the township road commissioner. The petitioner also resides in Carmi and has worked in the medical records department at Wabash General Hospital in Mt. Carmel, Illinois, since September of 1986. Both parties were 41 years old at the time of the hearing, and both have known each other since a very young age.

At the time of the conception of Mariah, the petitioner was married to Kenneth Smith. The petitioner testified in her deposition that she first had sexual intercourse with the respondent in June of 1971. The petitioner stated that Mariah was conceived when she had intercourse with the respondent on his birthday in September of 1971, and that she gave birth to Mariah nine months later, in June of 1972.

The petitioner stated that the respondent visited her house about eight months after Mariah’s birth in June of 1972. At that time, the petitioner discussed Mariah with him, and the respondent told the petitioner that he did not believe that Mariah was his child. The petitioner continued to have an intimate relationship with the respondent after the birth of Mariah.

The petitioner stated that she often spoke to the respondent about assisting with payments for food and clothing for the child, but failed to receive any support. In 1977, when Mariah was five years old, the petitioner and the respondent argued and did not see again each other for three years. The petitioner testified that she last asked the respondent for aid for Mariah on the morning of December 24, 1985. Her request went unheeded.

On May 11, 1987, the court entered summary judgment on the issue of the respondent’s paternity of Mariah. In its order, the court stated that it had reviewed the depositions of the petitioner, the respondent, and Mary Wallhermfechtel, the paternity-testing supervisor at the Missouri-Illinois Red Cross; had reviewed the results of the blood tests of the petitioner, the respondent, and the child; and had determined that no genuine issue of material fact existed as to the respondent’s paternity of Mariah. The court heard the remaining issues on May 11 and 12, 1987. In the trial court’s judgment of September 1, 1987, the court ordered that: (1) the respondent contribute to the support of Mariah in the amount of $635 per month commencing August 1, 1987; (2) the petitioner establish a guardianship for the estate of Mariah with the power to receive payments from the respondent; and (3) the respondent pay the sum of $20,152 to the petitioner, an amount equivalent to the monthly support that had accrued during the pendency of the action, along with the petitioner’s attorney fees and the costs of bringing the action. The court denied the child’s claim to support for the period prior to the commencement of the action.

The petitioner contends on this appeal that the trial court abused its discretion under section 14 of the Illinois Parentage Act of 1984 (the Act) (Ill. Rev. Stat. 1985, ch. 40, par. 2514) when it denied support for the minor child for the years prior to the commencement of the action. The petitioner also contends that the trial court erred when it ordered that the respondent pay current support obligations to the child through a guardianship and when it required that the petitioner account for expenditures made for the support of the child.

The respondent contends on his cross-appeal that: (1) the circuit court erred in granting the petitioner’s motion for summary judgment on the issue of paternity; (2) the finding of the circuit court that the respondent’s net income was $38,105 per year, and the court’s order requiring respondent to pay the sum of $635 per month in child support, were against the manifest weight of the evidence; (3) the circuit court erred in ordering payment of a lump sum award for child support during the pendency of the case and in computing the amount of the support at the rate of $635 per month; and (4) the circuit court erred in ordering the respondent to pay the petitioner’s costs and attorney fees.

Since our ruling upon the first issue in the respondent’s cross-appeal, i.e., that the circuit court erred in granting the petitioner’s motion for summary judgment on the issue of paternity, is dispositive of this appeal, we need not rule upon the remaining issues in the respondent’s cross-appeal or upon the issues in the petitioner’s appeal.

In her reply to the respondent’s contention that the circuit court erred in granting summary judgment, the petitioner asserts that the evidence, including her deposition testimony that the respondent was the father of the child, the results of the blood test, and the respondent’s allegedly contradictory and confusing testimony, when considered in toto, correctly convinced the trial court that no genuine issue of material fact on the question of paternity remained for trial. The argument between the parties thus focuses on whether the petitioner’s evidence, including the blood test and the deposition testimony, so overwhelmingly outweighed the respondent’s evidence in rebuttal of the proposition that he fathered the child that paternity was not a genuine issue and the trial court was correct, as a matter of law, in granting summary judgment on that issue prior to trial.

The law in the State of Illinois, as in most other States, directs that summary judgment is appropriate only if no genuine issue of material fact exists as to an issue. (See, e.g., 49 C.J.S. Judgments §220, at 394 (1947) (“[i]n passing on [a motion for summary judgment], the court is not authorized to try an issue of fact between the parties, but is to determine whether or not there is an issue to be tried, and whether under the facts defendant is entitled to defend. If it is apparent from the opposing affidavits or other pleadings and proof that there is a substantial issue between the parties, a judgment can be entered only after the trial of the issue in regular course”).) Section 2 — 1005(d) of the Code of Civil Procedure prescribes that “[i]f the court determines that there is no genuine issue of material fact as to one or more of the major issues in the case, *** the court shall thereupon draw an order specifying the major issue or issues that appear without substantial controversy, and directing such further proceedings upon the remaining undetermined issues as are just.” (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1005(d).) Summary judgment is a drastic remedy (Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 627, 404 N.E.2d 869, 872), and the party’s right to summary judgment must be clear and free from doubt (Cimino v. Dill (1980), 92 Ill. App. 3d 345, 348, 415 N.E.2d 1272, 1274-75). “Summary judgment is recognized as a salutary procedure in the administration of justice [citation], but must be cautiously granted so that the respondent’s right to trial is not usurped in the presence of material evidentiary conflicting facts and inferences. The function of the procedure is to determine the existence or absence of triable issues of fact, not to try them.” (Montes v. Hawkins (1984), 126 Ill. App. 3d 419, 423, 466 N.E.2d 1271, 1274.) In ruling upon a motion for summary judgment, the trial court has a duty to consider the entire record to determine whether a genuine issue of material fact exists. Hoel v. Crum & Forster Insurance Co. (1977), 51 Ill. App. 3d 624, 632, 366 N.E.2d 901, 907.

We initially note that the petitioner was married to Kenneth Smith at the time of the conception and birth of Mariah Smith, that the law presumes him to be the father of Mariah, and that the petitioner must rebut this presumption with clear and convincing evidence. Section 5 of the Act prescribes:

“(a) A man is presumed to be the natural father of a child if:
(1) he and the child’s natural mother are or have been married to each other, even though the marriage is or could be declared invalid, and the child is born or conceived during such marriage;
* * *
(b) [a] presumption under this Section may be rebutted only by clear and convincing evidence.” (Ill. Rev. Stat. 1985, ch. 40, par. 2505.)

The common law had a similar rule prior to the legislature’s enactment of section 5 in July of 1985. In People ex rel. Davis v. Clark (1981), 99 Ill. App. 3d 979, 426 N.E.2d 294, the appellate court stated that a presumption exists that a child born to a married woman is legitimate, i.e., that the husband of the wife is the father of the child. This presumption is not conclusive, however, and may be rebutted by clear and convincing evidence. (Davis, 99 Ill. App. 3d at 980, 426 N.E.2d at 295.) The petitioner in the instant case must therefore rebut the presumption of Kenneth Smith’s paternity of Mariah with clear and convincing evidence. We find from the record that she did so.

Mary Wallhermfechtel, the paternity-testing supervisor for the Missouri-Illinois Red Cross, testified in her deposition that the respondent’s blood test could not exclude him as the father of Mariah. She stated that the relative chance of the respondent’s paternity is 99.99%, and that the test would have excluded 99.94% of falsely accused men. However, she also stated that the test would have failed to exclude at least 20,000 other men in the United States, all but one of whom would be falsely accused. Wallhermfechtel related that blood testing alone cannot affirmatively establish paternity. Blood testing for paternity is a test of exclusion and can only establish whether a putative father is not the father of a child. It is not conclusive of paternity. The blood testing does not take into account whether the mother has engaged in sexual relationships with other men that may have fathered the child. We find, however, that the result of the blood test, with its high relative probability of the respondent’s paternity, was clear and convincing evidence sufficient to rebut the presumption of Kenneth Smith’s paternity of the child.

Once the petitioner has met her burden of producing clear and convincing evidence to rebut the presumption of Mariah’s legitimacy, the presumption of Kenneth Smith’s paternity ceases to operate; however, we find from the record that the question of whether the respondent, Barbre, fathered the child remained a genuine contention between the parties and that the trial court thus erred in granting summary judgment on this issue. Ray Winter, the respondent’s cousin, executed an affidavit stating that he had once received a letter from a person purporting to be Mariah Smith in which she claimed that Winter was her father. Petitioner caused Kenneth Smith’s name to be placed on Mariah’s birth certificate, and she advised the Department of Public Aid that Kenneth was the father of the child. The petitioner admitted that she had engaged in sexual intercourse with three men, other than the respondent, during the year in which Mariah was conceived. The respondent denied in his response to the petitioner’s request for admission of fact that he was the father of Mariah and stated in his deposition that he did not know whether he was the father of Mariah. The respondent testified that the first time the petitioner informed him that he was the father of Mariah was when he was served with summons in the cause. This evidence clearly demonstrates that a genuine issue on the question of paternity remained for trial.

Finally, the petitioner argues that since this cause was heard before the bench, it was reasonable for the court, in the interest of judicial efficiency, to grant summary judgment before trial rather than trying the case to a predestined outcome. We note, however, that the respondent was entitled to have the trial judge assess the credibility of the witnesses. The counsel for the petitioner admitted in oral argument that blood testing alone was not sufficient proof for paternity. The question of paternity, thus, in part, pitted the credibility of the petitioner against the credibility of the respondent. The petitioner testified in her deposition that she had named someone else as the father of the child on several occasions. The respondent repeatedly stated in discovery that he had not, or did not know whether he had, fathered the child. The trial judge apparently determined the question of paternity in part upon evidence in the petitioner’s deposition, without ever having observed her while testifying. We find that the respondent is entitled to have the trial court assess the credibility of the parties in open court to determine the respective validity of their claims.

Since a genuine issue remained for trial as to the paternity of Mariah Smith, we hold that the trial court erred, as a matter of law, in granting summary judgment upon this issue. We thus reverse the court’s judgment and remand this cause to the circuit court of White County.

Reversed and remanded.

WELCH, P.J., and HOWERTON, J., concur.


text:
      In re MARRIAGE OF THOMAS A. JACKSON, Plaintiff-Appellee, and DOROTHY FAYE JACKSON, Defendant-Appellant.
    Fifth District
    No. 5—87—0645
    Opinion filed February 10, 1989.
    Rehearing denied March 1, 1989.

      William C. Evers III, of Collinsville, for appellant.
    Melroy B. Hutnick, of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

Dorothy Faye Jackson (Dorothy), filed a petition in the circuit court of St. Clair County alleging that her former husband, Thomas Jackson (Thomas), the plaintiff in the underlying divorce proceeding, was in arrears with regard to his child support payments for their two children. Thomas maintained that his reduction of his child support payments was proper because of three affirmative defenses, which were as follows: (1) that the parties had agreed at the time of the original divorce decree that child support should be $25 per week per child and that he was permitted to unilaterally reduce the child support upon his oldest child becoming emancipated; (2) that Dorothy should be estopped from seeking arrearage of the child support; and (3) that Dorothy’s petition should be denied as she had “ratified” Thomas’ reduction of the child support payments. Thomas also raised a counterclaim in which he sought a declaratory judgment from the court regarding the construction of the language of the parties’ divorce decree. The circuit court dismissed Thomas’ counterclaim and his affirmative defense that, at the time of the original divorce decree, the parties’ had intended and had agreed that the amount of child support Thomas was to pay was to be $25 per week per child. Following a hearing, the circuit court denied Dorothy’s petition, finding that she had “ratified the actions of the plaintiff in reducing the child support without leave of court.” Dorothy appeals this order.

A divorce decree was entered on April 20, 1977, by the circuit court of St. Clair County dissolving the marriage of Thomas and Dorothy. In this decree, Dorothy was awarded custody of the parties’ two children, Randy Bruce, age 13, and Ricky Wade, age eight. Additionally, the decree provided that child support for the two children was to be paid as follows:

“Second party (Dorothy) understands and agrees that she shall be awarded the sum of Fifty Dollars ($50.00) per week support for the parties’ two minor children, said sum to be paid promptly to coincide with First Party’s (Thomas) pay days.”

On December 16, 1981, the parties’ oldest son, Randy, reached the age of 18, and on or about June 1982, after Randy graduated from high school, Thomas unilaterally reduced his payments of child support from $50 per week to $25 per week. On February 19, 1987, Dorothy filed a post-decree petition contending that Thomas was delinquent in paying the child support ordered in the divorce decree.

At the hearing on the petition, Thomas testified that he was aware that the divorce decree provided that he was to pay $50 per week for child support and that there had never been a court order entered modifying the amount of child support. Thomas stated that in December 1981, he contacted his attorney, Norvan Adams, to ask if he could reduce his child support payments. According to Thomas, Adams advised him to wait until Randy graduated from high school before he reduced the payments, which Thomas did. Thomas admitted that after talking to Adams, he did not contact Dorothy to discuss his child support, but that he included a note on his check of June 1982, indicating that he had discontinued paying child support for Randy, their emancipated child. Thomas had paid Dorothy $25 per week since that time.

Thomas stated that he currently had an income of $30,000 and that he and his current wife owned a 1985 Dodge Lancer. Thomas had recently deeded his interest in his home to his current wife; however, he participated in the mortgage payments and was liable on the mortgage of the home. It was stipulated that, at all times, Thomas had had the ability to pay the child support ordered by the divorce decree.

Dorothy Jackson (now Vogt) testified that it was Thomas’ attorney, Norvan Adams, who had handled their divorce and who had authored the divorce decree. Dorothy corroborated that after Randy graduated high school, Thomas reduced his child support payments from $50 per week to $25 per week and that she understood why Thomas had done this. Thomas never called her or wrote to her about his reduction of the child support payments, and she had never contacted- him regarding this matter. Dorothy stated that she had not filed a petition for delinquent support payments since 1982, until she filed this petition.

Dorothy believed that she should be receiving $50 per week as that was what the divorce decree stated. She admitted that Thomas had told her he could only afford to pay her $25 per week per child. Dorothy did not have any understanding as to the difference between $25 per week per child and $50 per week.

Norvan Adams, Thomas’ attorney, testified that he had handled the divorce for Thomas. Adams recalled that towards the end of 1981, Thomas contacted him and discussed his child support payments. According to Adams, the substance of Thomas’ call was that his oldest son would soon obtain majority and that $25 should be deducted from his child support payments. It was also determined that Thomas’ child would graduate in the spring. Adams stated that he told Thomas that he could reduce his child support when Randy graduated from high school. Adams could not remember if he told Thomas that he needed to go to court, but he did recall telling Thomas that he should contact Dorothy and explain what he was trying to do.

In closing argument, Thomas argued that Dorothy should be estopped from receiving accrued child support as Thomas had changed his position and Dorothy had waited five years before seeking arrearage. He also argued that Dorothy had “ratified” his actions. The circuit court found that Dorothy had ratified Thomas’ actions without leave of court and denied Dorothy’s petition to enforce the divorce decree.

On appeal, Dorothy contends that the circuit court erred when it determined that she “ratified” Thomas actions and denied her petition. Thomas counters Dorothy’s contention by arguing that the circuit court exercised its judicial discretion when it determined that Dorothy had ratified his actions. Further, he states that because Dorothy knew that the child support was to be $25 per week per child at the time of the original divorce decree, because she understood that the reason Thomas reduced the child support in 1982 was because of the emancipation of their oldest child, and because she had actual knowledge and had acquiesced in the reduction of the child support by not filing a petition for arrearage for five years, that Dorothy had “ratified” the reduction of the child support.

We initially note that the law regarding the unilateral modification of a lump-sum periodic payment of child support is well established. Although section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(c)) provides that a party’s legal obligation to support a child ceases upon a child becoming emancipated, a divorce decree which orders a lump-sum periodic payment cannot be unilaterally modified by reducing the award pro rata upon a child’s emancipation without leave of court. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) Such modification of child support payments is solely a judicial function, and it is the circuit court who must determine whether a reduction should be made pro rata or whether other equitable considerations require a different amount be paid. Automatic reduction of child support, such as here, infringes upon the discretionary powers of the circuit court to modify an award. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125; Finley, 81 Ill. 2d 317, 410 N.E.2d 12.) Under the facts presented in the case sub judice, Thomas’ pro rata unilateral reduction of the lump-sum periodic payments of $50 per week established by the divorce decree was improper under the law, and therefore, barring that any equitable doctrines were applicable, Dorothy’s petition to enforce the decree should not have been denied, and the circuit court’s ruling denying her petition under the circumstances presented here was error. However, our analysis of this case cannot end here.

Thomas raised a unique defense to Dorothy’s petition when he asserted that she ratified his actions. There are no cases in Illinois where ratification has been held to foreclose a petitioner’s right to a vested and accrued right to child support.

Ratification, like laches, is a form of equitable estoppel. (Schmitt v. Wright (1943), 317 Ill. App. 384, 46 N.E.2d 184.) Ratification involves the express or implied adoption of the acts of another by one for whom the other assumes to be acting, even without authority; and the consequences are the same as if the acts ratified had been fully authorized in the beginning. Acquiescence by the person for whose benefit the act was performed will be held to constitute a ratification. (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 504 N.E.2d 1289; Effingham State Bank v. Blades (1985), 139 Ill. App. 3d 259, 487 N.E.2d 431.) At the heart of the doctrine of ratification is the concept that the person ratifying obtains a benefit, and that the benefit is obtained through the actions of a person that is acting in his behalf, i.e., with apparent or implied authority. Generally, in cases involving ratification, there is usually found the existence of a principal and agent relationship. In the case at bar, we fail to see the benefit which accrued to Dorothy by Thomas’ action of reducing her right to child support, and we cannot conclude that Thomas’ actions were the result of apparent or implied authority or that there was a principal and agent relationship between Thomas and Dorothy. We find that the circuit court misapplied the legal concept of ratification and that it erred in denying Dorothy’s petition.

Likewise, we do not find that the doctrine of equitable estoppel bars Dorothy’s petition. An essential element of estoppel is that there is reliance by the person asserting estoppel. (Finley, 81 Ill. 2d 317, 410 N.E.2d 12.) Thomas did not reduce his child support payments because of any act or omission of Dorothy; rather, he did not comply with the provisions of the divorce decree because of his reliance on the advice of his attorney and because he believed he was no longer liable for the amount specified in the decree and that he could unilaterally reduce his payment. As Thomas did not rely on the acts and omissions of Dorothy, she was not equitably estopped from bringing her suit.

For the foregoing reasons, we reverse the judgment of the circuit court of St. Clair County denying Dorothy’s petition to enforce the divorce decree and remand this cause to the circuit court for calculation of the amount of past-due child support owed Dorothy.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.


author: JUSTICE GOLDENHERSH

text:
    EDGAR WILSON et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF MONROE-RANDOLPH COUNTIES et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0732
    Opinion filed February 10, 1989.
    Joel M. Drury, of Belleville, for appellants.
    Randall W. Rodewald, State's Attorney, of Chester, for appellee Regional Board of School Trustees of Monroe-Randolph Counties.
    D. McMeekin Conn, of Conn, Clendenin, Norton & Farris, of Sparta, for appellee Sparta Community Unit School District No. 140.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiffs, Edgar Wilson and Barbara Wilson, appeal from an order of the circuit court of Randolph County dismissing their complaint for administrative review. The issue on appeal is whether the trial court erred in dismissing their complaint for failure to comply with Supreme Court Rule 291 (107 Ill. 2d R. 291). This court reverses and remands.

Plaintiffs petitioned defendant, Regional Board of School Trustees of Monroe-Randolph Counties (Board), to have their residence detached from the Sparta Unit School District 140 and annexed to the Steeleville Unit School District 138. After a hearing, the Board denied their petition in a written order dated June 29, 1987. Soon thereafter, on July 30, 1987, plaintiffs filed a timely complaint for administrative relief in the circuit court of Randolph County against the Board, the Steeleville Community Unit School District 138 (not a party to this appeal), and the Sparta Community Unit School District No. 140 (School District). In a letter addressed to the clerk and filed with the complaint, plaintiffs specifically stated that the complaint was for administrative review and requested a summons to be issued for each defendant but did not cite Supreme Court Rule 291 (107 111. 2d R. 291). On July 30, 1987, the clerk issued a law division summons stating that defendants had 30 days to file answers instead of 35 days as per Rule 291.

Defendant, Steeleville Community Unit School District 138, filed its written appearance on August 13, 1987, and defendant School District filed its written appearance on August 14, 1987. On September 2, 1987, the Board filed its written appearance along with a motion to dismiss for failure of the summons to comply with Rule 291 as it failed to provide 35 days to answer. After a hearing on September 18, the court filed a written order dismissing the complaint, finding that the court lacked jurisdiction. From this order, plaintiffs appeal.

It is well established that courts will “ ‘liberally construe a right to appeal so as to permit a case to be considered on its merits.’ ” (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 403, 451 N.E.2d 842, 844, quoting Glasco Electric Co. v. Department of Revenue (1981), 86 Ill. 2d 346, 351-52, 427 N.E.2d 90, 93.) That “right to review a final administrative decision is limited and circumscribed by the statute or statutes authorizing such review,” and as such, a party seeking such review must do it in a timely manner, acting promptly and within the time prescribed by statute. Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees (1987), 156 Ill. App. 3d 504, 506, 509 N.E. 2d 132, 134.

The court will relax a mandatory requirement:

“[W]hen a party has done all that he can to meet the statutory requirements, but there is failure to comply with the statute because of the action or inaction of a third person outside his control, [and] to deny him the right to pursue his administrative remedy would constitute a deprivation of due process.” (City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 380, 454 N.E.2d 652, 654, citing Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148.)

Specifically, where a party can show a good-faith effort to have the clerk issue a summons within the 35-day period, the time requirement may be relaxed. Board of Education of North Boone Community Unit School District No. 200 v. Regional Board of School Trustees (1987), 156 Ill. App. 3d 504, 508, 509 N.E. 2d 132, 135; Piasa Motor Fuels, Inc. v. Department of Revenue (1985), 138 Ill. App. 3d 422, 427, 486 N.E.2d 379, 382.

In this case, plaintiffs acting with due diligence filed the complaint and letter requesting summons to be issued well within the 35-day requirement. Plaintiffs acted in a prompt and timely manner to meet the mandatory requirement. However, the clerk promptly but incorrectly issued a law division summons. At this point, defendants argue that plaintiffs are not excused because an improperly prepared summons is insufficient, and as such, plaintiffs lacked substantial compliance with Rule 291. Defendants cite Ellis v. Miller (1983), 119 Ill. App. 3d 579, 456 N.E.2d 987. This court finds Ellis factually distinguishable from the case at bar.

In Ellis, plaintiffs sought administrative review by attempting to file on the thirty-fifth day and one hour prior to closing of the clerk’s office his complaint and summons. When the clerk attempted to file the complaint, he discovered that the summons did not state “Summons in Administrative Review.” On the following, thirty-sixth, day, plaintiff filed a complaint and “proper” summons. This court cited the holding in Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842, that where a plaintiff has acted with diligence in presenting to the clerk a summons which requires only a signature and seals prior to service, the plaintiff should not be denied his day in court. The Ellis court found that although Cox was controlling, it did “not perceive the language in Cox as sanctioning any exception by reason of an uncorroborated delay occasioned by the clerk’s office as distinguished from a situation where the facts are established that the clerk’s office occasioned the delay in the issuance of the summons only.” Ellis, 119 Ill. App. 3d at 581-82, 456 N.E.2d at 989.

In this case, plaintiffs filed their complaint and request for appropriate summons not on the last day and last hour prior to the expiration of the 35-day time limit, but rather at a time at which, had they known about any problems with the summons or been informed by the clerk of any problem, they would have had sufficient time to cure the defect. More importantly, the “defect” in the summons was occasioned not by plaintiffs but by a third party not under their control.

In addition to the above-mentioned findings, this court also notes that Rule 291 requires only substantial compliance with the form of summons contained in the rule. Instances which illustrate substantial compliance are where notice by registered mail is required but notice by first class mail is used and where the aggrieved party was diligent in obtaining issuance, of summons but a third party not in its control causes the summons to be delayed beyond the 35-day limit. (Cox v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 399, 451 N.E.2d 842; City National Bank & Trust Co. v. Property Tax Appeal Board (1983), 97 Ill. 2d 378, 454 N.E.2d 652; Piasa Motor Fuels, Inc. v. Department of Revenue (1985), 138 Ill. App. 3d 422, 486 N.E.2d 379.) Furthermore, under section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 103), the form of the summons is to be according to the supreme court rules, and as such, a use of the wrong form of summons will not defeat the jurisdiction of the court. (107 Ill. 2d R. 101(e).) Since plaintiffs have substantially complied with Rule 291, we will not permit a third party, not in control of the aggrieved party, to defeat that party’s right to administrative review, especially where the aggrieved party acted with due diligence. In conclusion, this court finds that the trial court erred in dismissing plaintiffs’ complaint where the wrong form of a summons was issued not because of plaintiffs’ lack of either due diligence or substantial compliance to meet the requirements of the appropriate statute, but rather because of the fault of a third party not within the control of plaintiffs.

For the foregoing reasons, this court reverses the order of the circuit court of Randolph County and remands for further proceedings not inconsistent with this decision.

Reversed and remanded.

RARICK and CHAPMAN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    KATHERYN SCOTT, Plaintiff-Appellant, v. KATHERYN SCOTT, Ex'r of the Estate of David L. Scott, Deceased, et al., Defendants-Appellees.
    Fourth District
    No. 4—88—0469
    Opinion filed January 26,1989.
    Richard L. Heavner, of Heavner & Handegan, of Decatur, for appellant.
    David C. Nelson, of Dilsaver, Nelson & Winter-Black, of Mattoon, for appellees Joseph William Spencer and Joseph Wayne Spencer.

      David Y. Eberspacher, of Harlan Heller, Ltd., of Mattoon, for appellee Anna Marie Owens.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff Katheryn Scott appeals a trial court order dismissing her complaint for foreclosure of an equitable lien. Plaintiff argues the trial court erred in finding she was the owner of the land in question by devise from her deceased husband and took it subject to encumbrances.

We affirm.

On June 29, 1987, plaintiff filed a complaint for foreclosure of an equitable lien on certain real estate. Plaintiff alleged that she had redeemed the premises which had been the subject of a foreclosure by Federal Land Bank on May 29, 1987; the redemption was evidenced by a certificate of redemption; the certificate of redemption, recorded on May 29, 1987, stated she was entitled to a first priority equitable lien on the premises. Plaintiff also alleged that she, as executor of David L. Scott’s estate, was the owner of the premises, that David and Carol Scott made mortgages to the other defendants, which were subordinate to her equitable lien.

The certificate of redemption stated the real estate had been sold on December 1, 1986, pursuant to a judgment of foreclosure entered on October 23, 1986. Prior to expiration of the redemption period, plaintiff, individually, paid the purchase price plus interest to the clerk of the court. The court certified the property had been redeemed and declared the certificate of sale void and found the plaintiff had an equitable first priority lien on the real estate, which could be foreclosed in the same manner as any lien secured by a mortgage. Plaintiff is not individually liable on the promissory note signed in conjunction with the Federal Land Bank loan.

Defendants Joseph William Spencer, Joseph Wayne Spencer, and Anne Marie Owens moved to strike and dismiss the complaint alleging plaintiff, the widow of David L. Scott, was the owner of the premises at the time she redeemed.

The dates important to a determination of this appeal are:

March 10,1985 Date of death, David Scott
March 27,1985 Will of David Scott admitted to probate-devised all real estate to plaintiff
1986 Foreclosure proceeding instituted by Federal Land Bank of St. Louis
October 23,1986 Judgement of Foreclosure
December 1,1986 Foreclosure Sale
May 29, 1987 Redemption by plaintiff

Defendants alleged that as the widow of David L. Scott, plaintiff acquired an ownership interest in the property subject to the debts secured by the property. Therefore, when she redeemed from a sale to satisfy the senior lien, she did not acquire a first priority lien as against the other creditors.

Plaintiff argues she, as an individual, is not the owner of the property. She asserts she was named as defendant in the foreclosure action because of her homestead interest. As a defendant in the action, she could redeem the property. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 122.) Plaintiff further argues that since she did not have any ownership interest in the property, her redemption created a first priority equitable lien. Since she redeemed from the first lienholder, she succeeded to his interest. Plaintiff maintains the estate owns the property until after probate has closed. However, plaintiff concedes that if she redeemed as an owner of the property subject to encumbrances, the redemption left the property subject to defendants’ liens. In such a case, she would not take a first priority equitable lien. Plaintiff’s argument is without merit as she was the owner of the property when the foreclosure proceedings commenced.

A redemption made by the debtor or his grantee leaves the property subject to all other liens existing at the time of the sale which are not ordered paid by it. One having a judgment lien on the property at the time of its sale to pay a superior judgment lien may have the property sold to satisfy his judgment, after the debtor or one taking the property through the debtor redeems. Hack v. Snow (1929), 338 111. 28, 169 N.E. 819; see 5 C. Nichols, Illinois Civil Practice §5318, at 222-23 (1982).

A redemption by the owner of the equity of redemption does not affect the state of his title in the land. (Hack v. Snow (1929), 338 111. 28, 169 N.E. 819.) Plaintiff contends the date the estate is closed is the date title to devised property vests.

Section 4 — 13 of the Probate Act of 1975 states:

“Effect of order admitting will to probate. Every will when admitted to probate as provided by this Act is effective to transfer the real and personal estate of the testator bequeathed in that will.” (Ill. Rev. Stat. 1987, ch. IIOV2, par. 4 — 13.)

The effect of the order admitting a will to probate is to vest the title to the property in the devisees. (Craig v. Trotter (1911), 252 Ill. 228,

230, 96 N.E. 1003, 1004; Epley v. Epley (1927), 244 Ill. App. 237, 237.) Once admitted to probate, the will is considered valid for vesting title to the realty in the devisee. (Stull v. Veatch (1908), 236 Ill. 207, 86 N.E. 227; Havill v. Havill (1928), 332 Ill. 11, 163 N.E. 428.) As stated in Havill:

“A will speaks from the death of the testator. At the moment of his death the rights of his heirs and devisees to succeed to his estate are fixed and vested ***. ***
* * *
***The effect of the probate of a will is to vest the title in the devisee as completely as a deed from the owner of property vests the title in his grantee and is subject to no greater contingency.” (Havill, 332 Ill. at 15-16,163 N.E. at 429-30.)

However, the transfer of the real and personal estate is subject to change in accord with any appropriate orders of the court. In re Estate of Shultz (1942), 316 Ill. App. 540, 45 N.E.2d 577; Ill. Rev. Stat. 1985, ch. 1011/2, par. 20 — 1 et seq.

On the day David Scott died, plaintiff became the owner of the real estate, the probate of the will vested her with title and the redemption at the foreclosure sale was as owner. Any statement or notation on the certificate of redemption of her equitable interest does not alter her status as owner.

Since plaintiff was the owner of the property subject to the debts against it through her husband’s will at the time she redeemed the property, she did not succeed to the rights of the Federal Land Bank. (Hack v. Snow (1929), 338 111. 28, 169 N.E. 819.) Therefore, the trial court correctly dismissed her complaint for foreclosure of the lien. Because of this conclusion, we need not address plaintiff’s other arguments.

For the above reasons, we affirm the trial court.

Affirmed.

KNECHT and GREEN, JJ., concur.


author: JUSTICE SCOTT

text:
      In re ONARGA, DOUGLAS & DANFORTH DRAINAGE DISTRICT OF IROQUOIS COUNTY (John Goldenstein, Objector-Appellant, v. Onarga, Douglas & Danforth Drainage District of Iroquois County, Petitioner-Appellee).
    Third District
    No. 3—88—0296
    Opinion filed February 10,1989.
    Petersen, Deck, Ruch & Baron, of Kankakee (Charles E. Ruch, Jr., of counsel), for appellant.
    Patrick J. Murphy, of Brock, Markwalder, Sunderland, Murphy & Spenn, of Watseka, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

John Goldenstein and Edwin Goldenstein are brothers who own a total of 240 acres of farmland in Iroquois County. Edwin owns the southeast quarter of section 27, and John is the owner of 80 acres of land lying immediately to the east in the southwestern quarter of section 26. Both parcels are in township 27 north, range 14 west of the second principal meridian in Iroquois County. Edwin’s acreage is in the petitioner district, being the Onarga, Douglas, and Danforth Drainage District of Iroquois County, but John’s land is not.

Both sections 27 and 26 are bordered on the south by a common roadway running east and west. This appeal stems from a dispute between the brothers regarding a drainage tile which begins at a catch basin in the southeast corner of section 27 and which extends and lies in an easterly direction into section 26, where it empties into an open ditch. The two sections are divided by a north-south roadway under which the tile travels.

The tile which is the subject of this litigation is 10 inches in diameter. There is no document or any record which sheds light as to when or how the easement for the tile was created. There was testimony before the trial court of a speculative nature that the easement for purpose of a drainage tile might well have been in existence and use for approximately 100 years. Testimony was adduced at trial that the petitioner’s district had maintained the tile for at least 40 years.

On December 3, 1984, the commissioners of the petitioner’s drainage district entered into an agreement with Edwin Goldenstein to the effect that the district would replace the tile with a larger one. Tile being 24 to 30 inches in diameter was discussed by a commissioner of the petitioner. The larger tile would replace the 10-inch tile then lying under the land of John Goldenstein. Edwin agreed to reimburse the district for all expenses incurred. The record discloses that the permission or consent to larger tile and resultant larger easement was never sought from John.

On January 3, 1985, the petitioner district filed a petition in the circuit court of Iroquois County which sought the approval of the agreement it had entered into with Edwin. John objected to the petition. On April 22, 1988, the trial court entered a written order approving the December 3, 1984, agreement in all respects with the exception that the replacement tile was not to exceed 24 inches in diameter.

John appeals from the trial court’s order and raises several issues for determination.

We first direct our attention to the question as to whether the petitioner’s drainage district can unilaterally and without consent or authorization increase the burden of an easement on the servient tenement in circumstances presented in the instant case.

We have no difficulty in concluding that an easement by prescription for a 10-inch tile was created across John’s land, but such easement was restricted to the use of a 10-inch tile. With the exception of the easement which had existed for at least 40 years, the remainder of John’s land was not subject to a servient tenement. We find that an old Latin expression best describes John’s position, namely, Cujus est solum ejus est usque ad celum et ad inferos. Translated idiomatically as follows: “To whomever the soil belongs, he owns also to the sky and to the depths.” Black’s Law Dictionary 453 (4th ed. 1957).

The cases disclose that the courts of review in our State have been loath to increase the usage to which an easement is put even through the proposed use is relative to the original purpose of a constituted easement. See Marlatt v. Peoria Water Works Co. (1969), 114 Ill. App. 2d 11, 252 N.E.2d 403; Vallas v. Johnson (1979), 72 Ill. App. 3d 281, 390 N.E.2d 939.

As heretofore stated, the easement in the instant case was obtained by prescription. This court has held that if an easement arises by prescription, the extent of the prescriptive use defines the easement. Valias v. Johnson (1979), 72 Ill. App. 3d 281, 390 N.E.2d 939. See also Dymeak v. Christjensen (1917), 279 Ill. 242, 116 N.E. 654.

A case quite similar to the one being considered is Schiff v. Upper Salford Township (1974), 456 Pa. 420, 321 A. 2d 876. In the cited case we have an easement for drainage of water acquired by prescription. After 30 years of water drainage by a pipe located under a road, the township resurfaced the road, widened, deepened and sloped the ditch where the drainage pipe was located. As the result of such changes by the township the amount of water drainage increased substantially. The plaintiff’s property became swampy. Erosion of land occurred, as well as damage to trees and shrubs. The supreme court of Pennsylvania upheld the issuance of a permanent injunction prohibiting the increased flow of water. In the opinion of the Pennsylvania court, it stated: “[Fallowing the principle that where the owner of a prescriptive easement undoubtedly has the right to continue the use, he may not unreasonably increase that use beyond the original use he acquired by prescription.” 456 Pa. at 422, 321 A.2d at 877.

The objector further sets forth in his brief that the district must institute condemnation proceedings in order to increase the size and burden of its underground easement. We are not inclined to address this issue. Upon reversal of the decision of the trial court, it then becomes incumbent upon the parties as to which action if any is to be commenced. We do not deem it advisable to dictate or attempt to dictate the legal proceeding which may or may not arise in the future.

For the reason set forth the judgment of the circuit court of Iroquois County is reversed.

Reversed.

WOMBACHER and HEIPLE, JJ., concur.