author: PRESIDING JUSTICE MURRAY

text:
    MANNION MECHANICAL SERVICES, INC., Plaintiff-Appellant, v. STALLINGS & COMPANY, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—88—2590
    Opinion filed September 29, 1989.
    Rehearing denied November 7, 1989.

      Donald L. Johnson and Michael P. Fiflis, both of Chicago, for appellant.
    Burke & Burke, Ltd., of Chicago (John M. Burke and Molly C. Mason, of counsel), for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Mannion Mechanical Services, Inc. (Mannion), appeals from an order of the circuit court of Cook County dismissing its complaint for monies allegedly due it from defendant Stallings & Company, Inc. (Stallings), pursuant to a written agreement requiring Stallings to pay Mannion royalties on sales of certain patented products. For the reasons set forth below, we reverse and remand the cause for further proceedings.

On January 1, 1979, Mannion was granted the exclusive license on various United States and Canadian patents. On the same day, it granted Stallings an exclusive license to manufacture, use and sell energy systems and system components under those patents. In return, Stallings agreed to pay Mannion royalties on all sales. One of Stallings’ customers used the products in an installation known as the Hanil Development Job in Saudi Arabia.

On April 6, 1983, Mannion and other related parties filed an action in the Eighteenth Judicial Circuit, Du Page County, Illinois, for an accounting to recover royalties owed it on 11 jobs, including the Hanil job, pursuant to the parties’ patent license agreement. The court subsequently granted summary judgment on October 19, 1983, on the issue of liability in favor of Mannion and, on March 23, 1984, it also entered judgment on the issue of damages on the Hanil and non-Hanil jobs in Mannion’s favor in the amount of $162,975 plus interest and costs.

Stallings filed an appeal in the Appellate Court, Second District, on the issue of the damages award (Mannion I), arguing that the trial court erred in awarding royalties with respect to the Hanil job, because the amount of royalties could not then be determined since its expenses could not be known before the installation was completed and the system successfully started up and, in fact, the uncontroverted testimony of its accountant and bookkeeper demonstrated that the job was incomplete as of January 24, 1984, the time of trial. Based on the foregoing, on April 30, 1985, the appellate court, in an unpublished Rule 23 order (see 107 Ill. 2d R. 23), held that the trial court’s award of royalties on the Hanil project and two other jobs was “against the manifest weight of the evidence” and remanded the cause for a recalculation of the amount of royalties due Mannion on the completed jobs pursuant to a specific formula set forth in its opinion (Mannion v. Stallings & Co. (1985), 132 Ill. App. 3d 1163).

On remand, the Du Page County court ■ considered further evidence concerning the status of the Hanil job. Specifically, it allowed Stallings to file an affirmative defense, alleging that royalties could not be awarded on the Hanil project until all of the expenses for the job were determined and that the total amount of expenses was uncertain because one of its former salesmen, Raymond Putzi, had filed a lawsuit alleging it owed him a commission on the project pursuant to an oral agreement. The court also considered a stipulation between the parties, which provided in pertinent part that (1) if the project was completed, Stallings would owe Mannion $67,211 in royalties, (2) Stallings owed Mannion $50,425.98 on the non-Hanil projects, (3) if Putzi was owed a commission on the Hanil project, Mannion’s royalties would be reduced to $49,349.84, and (4) the trial court was to consider the evidence depositions of two men connected with the Hanil project in determining whether the project had been completed. Based on the foregoing, the trial court found, among other things, that the Hanil project had been completed by the end of 1983 and that Putzi’s third-party claim should not be considered in computing the amount of royalties owed Mannion. It then entered judgment on June 26, 1986, in favor of Mannion for the Hanil and non-Hanil projects.

Stallings again appealed from the trial court’s order (Mannion II), arguing among other things, that the court erred in finding the Hanil project completed and in holding that Putzi’s claim should not be considered in calculating the amount of royalties owed Mannion. The Mannion II court did not decide the issues raised but held that the circuit court’s jurisdiction on remand was limited to following its directions set forth in Mannion I. (See PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d 291 (upon remand of a cause of action, a trial court can take only such action which conforms to the judgment of the court of review and it has no authority to act beyond the dictates of the mandate).) Specifically, the court stated that pursuant to Mannion I, it intended that the trial court only apply the royalty formula approved by it in Mannion I to completed projects, that the trial court had no authority to consider additional evidence concerning the Hanil project, and that the trial court lacked jurisdiction to consider the issues of the completion of the Hanil project and Putzi’s third-party claim. Accordingly, on June 30, 1987, the Mannion II court reversed the trial court’s findings on the issues of the completion of the Hanil project, Putzi’s third-party claim, and repayment of a loan made by Stallings to Mannion. The court further reversed the portion of the trial court’s award representing royalties on the Hand project and ordered that the court set off the $10,000 loan Mannion had received from Stallings against its award of $50,425.98 in royalties on the non-Hanil projects and enter judgment in the sum of the balance for Mannion.

On December 18, 1987, Mannion filed another action in the circuit court of Cook County seeking royalties due on the Hanil project, alleging the job “was completed in 1983.” Stallings filed a motion to dismiss Mannion’s complaint pursuant to section 2 — 619(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(4)), contending that the action was barred on the basis of res judicata. On July 18, 1988, the trial court granted the motion to dismiss, finding that Mannion’s cause of action was identical to the one filed by it in Du Page County in 1983. The court also advised Mannion that it would entertain a motion to vacate the dismissal and allow Mannion to replead as long as any amended complaint alleged that the Hanil job was completed after January 24, 1984. Mannion did not elect to pursue this remedy and instead filed the instant appeal.

Mannion argues that since conditions precedent to a determination of its damages on the Hanil job had not yet occurred in the prior litigation (i. e., it was not completed), the trial court erred in applying the doctrine of res judicata in dismissing its complaint. Stallings, besides arguing that Mannion I is res judicata of the present case, also appears to contend that since Mannion I found that no royalties were due Mannion in 1983 on the Hanil job and it reversed the trial court’s award therefor and ordered a recalculation excluding the amounts for the Hanil job and two other jobs which had not been completed, the court in effect also reversed the trial court’s determination of its liability for the Hanil project, forever barring Mannion from receiving royalties on that project since Mannion did not appeal the decision or seek a clarification of it.

It is well settled that “[ujnder the doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and that judgment is an absolute bar to subsequent actions involving the same claims or demands by the same parties or their privies.” (Emphasis added.) (Catlett v. Novak (1987), 116 Ill. 2d 63, 67.) The burden of showing that the doctrine bars an action is upon the party seeking to invoke it. In determining what issues a court passed upon, a reviewing court must not look to the opinion rendered but must consider the judgment actually entered in reference to the issues presented for decision. People ex rel. Scott v. Chicago Park District (1976), 66 Ill. 2d 65.

In the instant case, we find that Stallings failed to meet its burden. We first observe that the focus of Stallings’ res judicata argument is based on its contention that Mannion alleged in its complaint that the Hanil job was completed in 1983 and that this allegation is identical to the one alleged in its Du Page County complaint for an accounting. However, Mannion’s Du Page County complaint in fact contains no such allegation; it only states that it terminated its agreement with Stallings by notice on January 1, 1983. At the most, based on the nature of a suit for an accounting, Mannion was seeking royalties up to the time it terminated its agreement, the end of 1982. (Because the record before us does not contain transcripts of the proceedings in the trial court, we do not know whether Mannion made such an allegation at trial.)

Similarly, in Mannion I, the court mentions no such specific allegation by Mannion in its opinion relative to its finding that royalties were erroneously awarded for the Hanil job and two others. Specifically, that court stated:

“At trial [January 24, 1984], both Manee and Dean [Stallings’ accountant and bookkeeper] testified that the royalties for the Hanil job could not then be determined because the defendant’s [Stallings’] expenses could not be known before the installation was completed and the system successfully started up. They also testified that the royalties on the two Johnson Control jobs could not be determined because the defendant had not received final payment on either of those jobs. The plaintiff [Mannion] did not dispute this testimony. We hold, therefore, that the trial court’s award of royalties on these three jobs was against the manifest weight of the evidence.”

Actually, the 1983 completion date appears to have arisen for the first time upon remand of the case to the Du Page County trial court during which the parties stipulated that the trial court determine whether the Hanil job had been completed based on the evidence depositions of two men connected with the job. It was the trial court, and not any allegation made by Mannion in its original complaint, that stated the job was completed by the end of 1983.

Moreover, while it is true that the parties involved are the same, Mannion’s claim is only partially the same. In its complaint, Mannion states: “The Hanil Development Job has been completed. In fact, it was completed in 1983.” (Emphasis added.) Although clearly Mannion I is res judicata of Mannion’s allegation that the job was completed in 1983, based upon the uncontroverted testimony of Stallings’ bookkeeper and accountant that the job was not complete at the time of trial on January 24, 1984, Mannion I is not res judicata of Mannion’s allegation that the job has been completed. The actual date of completion is only one aspect of Mannion’s “completion allegation,” which must be proved. We therefore find that Mannion’s statement that the job has been completed sufficiently states an issue different from the one addressed in Mannion I, notwithstanding its incorrect statement that the job was completed in 1983, and that that statement does not require that the date of completion be set out with specificity, since the date of completion automatically must be after 1983 pursuant to the law of the case in Mannion I finding that it was not completed at the time of the original trial on January 24, 1984. We also hold that Mannion II is not res judicata of Mannion’s completion allegation since the court there did not consider the Hanil issue but merely held that the trial court lacked jurisdiction to consider additional evidence concerning the Hanil job because such action was beyond the scope of Mannion Ts sole mandate to recalculate the amount of damages due Mannion, excluding the Hanil job and two others.

Nor were the Mannion I and Mannion II judgments rendered on the merits of Mannion’s completion allegation. As previously discussed, the Mannion I judgment denying royalties on the Hanil job was based on its finding that the job had not been completed at the time of suit, and Mannion II simply did not even address the issue. We further observe that Mannion I did not hold that royalties were not owed for the Hanil job; the court in effect merely found that the damages portion of Mannion’s Hanil claim under the patent license agreement was not ripe for judgment because Mannion failed to prove that it was damaged at the time of suit. Res judicata only applies to the facts and conditions as they existed when the judgment was entered. When conditions change, establishing a new basis for a party’s claims and defenses, the issues are no longer the same and the prior judgment cannot be pleaded as a bar in a subsequent action. (Northern Illinois Medical Center v. Home State Bank (1985), 136 Ill. App. 3d 129.) In the instant case, clearly Mannion I only passed on the issue of whether royalties were owed on the Hanil job at the time of suit; it did not pass on the issue of what royalties would be due once the job had been completed. The fact that Mannion alleged the job was completed in 1983 and that that issue is barred by Mannion F s determination to the contrary does not cancel out Mannion’s additional allegation that the job has now been completed, which is a changed condition and, therefore, a different claim than the one addressed by the court in Mannion I. Mannion I therefore is not res judicata of this changed condition.

We briefly note that in any event we find Stallings’ argument without merit that Mannion is forever barred from recovering royalties from the Hanil project because “it had its day in court” and failed to prove its damages based on Mannion Fs finding that the job was incomplete at the time of trial. We first observe that Mannion I did not reverse the trial court’s judgment with respect to Stallings’ liability to Mannion under the patent license agreement for the Hanil job and, in fact, Stallings appealed only from the amount of the award of damages and not its liability. Accordingly, the court’s order finding liability is actually res judicata of Stallings’ argument that Mannion is forever barred from recovering royalties on the Hanil job. Secondly, we note that notwithstanding the fact that the Du Page County court on remand of the case lacked jurisdiction to hear additional evidence relative to completion of the Hanil job and other issues, Stallings nonetheless stipulated/admitted in that court that it would owe Mannion royalties if the job was completed. Mannion alleges in its complaint at issue here that the job has been completed, a condition that did not exist at the time of trial of its first action, and therefore, after it establishes exactly when the job was completed, it will be entitled to royalties pursuant to the formula set forth in Mannion I.

In summary, we hold that neither Mannion I nor Mannion II decided the merits of Mannion’s claim for royalties based on completion of the Hanil job and therefore the trial court erred in applying the doctrine of res judicata in dismissing Mannion’s complaint. Accordingly, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

PINCHAM and COCCIA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DRUCKER Mr. JUSTICE DRUCKER

license: Public Domain

text:
    Nicholas A. Karris, Plaintiff-Appellee, v. Woodstock, Inc., Defendant-Appellant.
    (No. 58222;
    First District (5th Division)
    January 18, 1974.

      Supplemental opinion filed upon denial of rehearing May 17, 1974.

      Herbert I. Rothbart, of Getzoff, Rothbart & Getzoff, of Chicago, for appellant.
    George B. Collins and Jeffrey Schulman, of Collins & Amos, of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff brought suit for the return of a $50,000 deposit he had placed with defendant. Defendant answered claiming plaintiff had authorized several commodity transactions resulting in losses over and above the amount of the deposit and counterclaimed for $23,920, the amount of this excess loss. Although the complaint was for a declaratory judgment and other relief, the matter was transferred to the law calendar and tried without a jury. The court entered judgment in favor of plaintiff for $50,000 and costs and dismissed defendant’s counterclaim.

Defendant contends: (1) the court erred in allowing an evidence deposition to be used at trial; (2) the court erred in not ruling on certain objections and made inconsistent rulings in the admission of evidence; and (3) that the judgment is against the manifest weight of the evidence. EVIDENCE

The testimony of Martin Scanlon, by deposition (objected to by defendant), was as follows: During the relevant period in issue, he was employed by the defendant as commodity broker and manager of defendant’s office in Kansas City, Missouri. The deposition was taken December 22, 1970, at which time Scanlon was residing in Leawood, Kansas. At the time of the deposition, Scanlon was unemployed. He had known plaintiff since 1958.

In December of 1969 plaintiff had an account with defendant. During this period plaintiff traded in February pork bellies. The trades turned out to be very profitable and plaintiff gave him roughly one-third of the profit or about $16,000. A Mr. Gene Shapiro had an equity interest in this trade with plaintiff but Scanlon denied having any equity in the trade himself nor was he to share in any portion of a loss, if there had been one. With regard to this trading he had been verbally authorized by plaintiff to execute this trade. Also, he thought he probably advised plaintiff, while the market was open, that orders had been filled for plaintiff’s account.

On March 17, 1970, he had a phone conversation with plaintiff concerning commodities in which he suggested that plaintiff trade in pork belly futures. Thereafter, sometime between March 17 and 20, plaintiff deposited $50,000 with defendant. In making his recommendation to plaintiff he used as a factor for his opinion a government quarterly report. This report is made public after the market closes on the day of issuance and was to be released on March 20, 1970.

During the day of March 20 he had several telephone conversations with plaintiff. The first conversation occurred between 9:30 and 10:00 A.M. and concerned the general market conditions relative to pork bellies. During this conversation plaintiff asked to be kept posted on the market. In his next conversation with plaintiff he discussed the margin requirements for pork belly futures and told plaintiff that defendant would require $1000, rather than $700, as a margin for each contract. Plaintiff responded that he wanted to look around and see what margins were required from other commodity houses. After this conversation he also checked the margin requirements at other commodity houses.

From March 17 through and including March 20 plaintiff never specifically placed an order to purchase any commodity, nor was an order placed during any of these conversations. Nevertheless, some time around mid-morning on March 20, he placed orders for plaintiff’s account. He felt that “we were in concert to get along on the market.” “In concert” meant that he felt both he and plaintiff believed the market would go up. He also thought their thinking was the same with regard to the trading in March 1970 as it had been in December 1969. Although he thought his thinking was the same, plaintiff never told him that it was the same.

In placing the orders he called up defendant and told defendant’s employees to buy $50,000 worth of July pork belly futures but did not give them an order to buy 75 contracts, which was the amount eventually purchased. He didn’t specifically remember, but he thought defendant would report the fills (executed orders) either to himself or his secretary from time to time during the day. As these reported fills were received, he did not communicate these to. plaintiff. He did not speak with plaintiff at any time prior to the close of the market to report that orders, had been filled for his account. He did think that other people in the office would have advised plaintiff of the filled orders.

After the market closed on March 20, and some time that evening, he had another phone conversation with plaintiff, which was rather heated, at which time he advised plaintiff of the filled orders. In this conversation plaintiff threatened to sue him and defendant. On the following day he had another phone conversation with plaintiff in which he told plaintiff, “that is the way it was. That is the ball game.” On cross-examination it was brought out that one other customer disavowed a purchase of July pork bellies made by Scanlon on March 20, 1970.

Testimony of plaintiff in his own behalf:

On December 23, 1969, while the market was open, he authorized Scanlon by phone to execute trades for him. Later, and .before the market had closed, Scanlon called him and advised him that his orders had been filled. The order in December 1989 was specific and was not discretionary,. He had requested that Scanlon report fills to him and stated he would require this of anyone. He gave one-third of the profit on the.' December trade to Scanlon as a gratuity. As far as that trade was concerned, a verbal agreement did exist, in the nature of a three-way division of profits and losses, but only he and Gene Shapiro had made an equity investment in the trade. No similar agreement existed with regard to his March deposit of funds with either Scanlon or Shapiro. Defendant impeached plaintiff by introducing a Commodity Exchange Authority form entitled “Statement of Reporting Trader.” In this form plaintiff had checked “no” when asked if other persons have any financial interest in his account, but where next to the question it states, “If yes, give name and address of such person(s),” he listed Scanlon and Shapiro. Plaintiff claimed he filed the wrong document by mistake but has never called the Commodity Exchange Authority about the document.

On March 17, 1970, he delivered to defendant a certified check for $50,000. On this day he had a phone conversation with Scanlon about the general market conditions for pork belly futures. Scanlon felt the market was bullish, that it would probably go up. Between March 17 and 19 several other conversations occurred but only concerning “May pork bellies.” It is a rule of the houses he has traded with that some money must be advanced before a customer can trade commodities.

Some time in late February or early March he also discussed trading in commodities with Leo Waxman, a friend and business associate. Wax-man gave him $10,000 to open an account for him. Authority to execute this account had to come from Waxman although Waxman relied entirely upon him for his investment. No trading was done in this account. With regard to his own $50,000 deposit, no one else had an interest, neither Waxman, Shapiro nor Scanlon.

Right after the opening of the market on March 20, between 9:30 and 10:00 A.M., he called Richard Becker, a vice-president of defendant. He asked Beckers opinion of the market in May pork bellies. Becker was not in favor of a bullish or a long position and did not favor trading on the basis of an anticipated government crop report. He only had one conversation with Becker while tire market was open. He also spoke with Scanlon early that morning and asked him about general market- conditions. Scanlon said he was bullish, but there was a variety of opinions. In a later conversation with Scanlon he was informed that the margin requirement had been changed by defendant from $700 to $1000. He then told Scanlon that he was disturbed by this change and wanted to call around. He later spoke with Scanlon and told him to do nothing until he called back. On March 20 he never placed an order for pork bellies.

After the market closed and while calling the Kansas City office to arrange a refund of his money, he was first advised that orders had been entered for his account. When he learned his account was charged with these orders, he made a demand for refund of his money. He first called Richard Becker to demand a refund of his money but was refused. He then sent a telegram to defendant in Chicago, time stamped 4:00 P.M., reciting that defendant had no authority to execute any order and again demanding a refund of his money.

In the early evening of March 20 he spoke with Scanlon and again demanded his money back. Plaintiff was asked on cross-examination whether Scanlon had given a reason for not refunding the money and stated he didn’t remember. He was impeached by prior deposition testimony wherein he had stated, “He [Scanlon] refused to refund the money. His position at that time was that I had made these orders.”

Scanlon could only deal with specific orders as to price and quantity and commodity. Scanlon never had any discretionary authority.

It was brought out on cross-examination that plaintiff spoke with Scan-Ion a few weeks prior to the trial and that they were friends.

Testimony of Leo Waxman, for plaintiff:

He had discussed trading in commodity futures with plaintiff and decided to join with him in trading. On March 19 he gave plaintiff a check for $10,000. On March 20 he had several conversations with plaintiff. In the first conversation, occurring probably before 9:00 A.M., plaintiff told him that this was the day they would either trade or not. Around noon he had another conversation with plaintiff who told him “Forget it, we are not doing anything today, do what you want to do, go on about your business.” Later in the day he had a third conversation with plaintiff. He was then told, “You had better call the broker and find out if they have used your money. They have used mine, and I gave them no authority to do it. See if your money is there. I am going to have troubles. See if you will have some troubles.”

On cross-examination it was brought out that he and plaintiff are friends and have had a variety of social and business dealings. His funds were not used for the purchase of commodities and he subsequently got his money back.

Testimony of Gene Shapiro, for plaintiff:

In December 1969 he had been involved in a commodities futures transaction with plaintiff and Scanlon. The defendant had been the brokerage house involved. He had put up $22,500 of the total $45,000 deposit that had been made. Plaintiff in a conversation in March had asked him if he would be interested in a similar situation to December, which he turned down. During a conversation with plaintiff on March 20 plaintiff told him he wasn’t going to trade. On March 20 he did not participate in any commodities transaction with plaintiff.

Testimony of Walter Kowalski, head statistician at the Chicago Mercantile Exchange, for defendant:

The government pig report is released from his office at 2:00 P.M. Chicago time and is available to the public around 2:15 P.M. These reports can have a bearish or bullish effect on the market.

Testimony of Peter Stavros, supervisor of all defendant’s activities on the floor of the Mercantile Exchange, for defendant:

He was under instructions to keep his employers informed at all times of what customers are trading, what their positions are and what they wish to do in the market at all times. Scanlon would place orders with him for Scanlon’s customers. He neyer talked personally with plaintiff. On December 23, 1989, he put in orders for plaintiff and reported back to Scanlon.

On March 20, 1970, orders were placed for plaintiff between 11:30 and 12:30. After filing each of these orders, he would report to Scanlon. He would also immediately report the fills to either Richard or Sidney Becker. Subsequently he sold the 75 cars for the account of plaintiff, pursuant to Scanlons instructions. He does not receive orders from customers directly; rather, he receives them from salesmen or branch managers. On March 20 he reported to Scanlon that the orders were placed.

Testimony of Richard Becker, defendant’s vice-president who administrates the functions of the company, for defendant:

Plaintiff had a nondiscretionary account with defendant. All orders were entered verbally. In December he told plaintiff to put all his orders through Scanlon.

On December 23, 1969, plaintiff bought around 70 cars. Every time an order was executed, Stavros would call him. During that day plaintiff had called and asked him his opinion of the market and also acknowledged the purchases he had made.

Around March 17, 1970, he had another conversation with plaintiff. Plaintiff told him another report was coming out and asked his opinion of the market. After he had a phone conversation with Scanlon about plaintiff, and at 10:00 A.M. on March 20, plaintiff again called him. Plaintiff told him, “Dick, the same situation has come up, why don’t you take a fly yourself?” Plaintiff also said, “Go ahead, will buy them the same way, a few at a time, and I will be in touch with you..” Plaintiff also mentioned Waxman’s account. No trades were made for Waxman and his money was subsequently returned.

After the ten o’clock conversation, plaintiff called several more times during the trading day. In these conversations plaintiff wanted to know at approximately what time the orders were being given, what he was buying and where the market was at each point. In a noon conversation plaintiff wanted to know exactly how many cars he had bought and what the prices were.

The next conversation occurred around 1:00 P.M., just after the market closed. Plaintiff told him he had bought 70 or 75 cars and wanted to know the closing price. After the government pig report was issued and around 3:00 P.M., he had another conversation with plaintiff. In this phone call plaintiff said, “Dick, it looks like I am in trouble. The market is going to break wide open. I don’t want those trades.” At about 4:00 or 4:30 he received a telegram from plaintiff. Defendant did not participate in any equity position in these trades.

Subsequent to March 23, 1970, a margin call was issued. Thereafter, since plaintiff did not come up with additional money, defendant had to sell out plaintiff’s account. In connection with the March 1970 trading, defendant had to pay $23,920 to the Mercantile Exchange.

On cross-examination he stated that in his last conversation with plaintiff on March 20, 1970, plaintiff did not say that he didn’t authorize the trades. He was impeached by his prior deposition testimony wherein he stated that plaintiff told him he hadn’t authorized the trades, He was also impeached as to his recitation of conversations with plaintiff during the trading day. In a prior deposition he was asked, “Did you have any conversations with Karris while they were trading?” and responded “no” to this question.

Plaintiff finally testified in rebuttal: After his first early morning conversation with Richard Becker on March 20, he had no further conversations with him while the market was open. In a subsequent conversation after the market had closed, he told Becker he had not placed any order and demanded a refund of his money.

OPINION

Defendant contends that the court erred in permitting Scanlon’s evidence deposition to be used at trial without a prior showing by plaintiff of reasonable diligence to obtain the attendance at trial of Scanlon and because it appeared that Scanlon’s absence was procured by plaintiff. The use of an evidence deposition at trial is governed by Supreme Court Rule 212 (Ill. Rev. Stat. 1967, ch. 110A, par. 212). In pertinent part the rule provides:

“(b) USE OF EVIDENCE DEPOSITIONS. All or any part of an evidence deposition may be used for any purpose for which a discovery deposition may be used, and may be used by any party for any purpose if the court finds, that at the time of the trial: * * *
(2) the deponent is out of the county unless it appears that the absence was procured by the party offering the deposition,

Defendant points out that Scanlon and plaintiff had prior financial dealings together, that Scanlon was unemployed and that shortly before trial Scanlon had talked by phone with plaintiff while the former was in Chicago. Defendant argues that because of “bias, prejudice, financial interest, social interest and outright fear” that existed between plaintiff and Scanlon, not only could the attendance of Scanlon at the time of trial have been procured through reasonable diligence, but that Scanlon’s absence was obviously dictated by plaintiff.

In urging that plaintiff had to show reasonable diligence, defendant relies on John v. Tribune Co., 28 Ill.App.2d 300, 171 N.E.2d 432, reversed on other grounds, 24 Ill.2d 437, 181 N.E.2d 105. In John, when the evidence deposition of a witness was offered, the court stated that although there was a reference to the witness as presently living out of the state, the party offering the deposition had not shown reasonable diligence in trying to obtain the presence of the witness. The key fact which distinguishes the instant cause is that Scanlon both at the time of the taking of the evidence deposition and at trial, was not a resident of this state but lived in Leawood, Kansas; whereas in John the deponent was a resident of Illinois at the time of the deposition and was shown to be out of state only at the time of trial. Powers v. Kelley, 83 Ill.App.2d 289, 227 N.E.2d 376, seems to be directly in point. There plaintiff sued under the Dram Shop Act for personal injuries when he was shot in a tavern. Over objection plaintiff introduced an evidence deposition of one of the men who shot him; the deposition had been taken outside Illinois in St. Louis, Missouri. The court stated the relevant law at 296-297:

“As is pointed out in the Historical and Practice Notes following Rule 19 — 10 in the Illinois Annotated Statutes, subsection (3) of the rule altered the prior rule, to now provide that the test of the deponent’s status is applied at the time of trial. Here the court was advised by statement of counsel, and it was shown by the deposition itself, that the deponent resided in St. Louis, Missouri, on the date it was taken, October 29, 1965, almost six months before tire trial. The presumption of continuation of residence is well known in the law — residence once established is presumed to continue until the contrary is shown. In re McCalmont, 16 Ill.App. 2d 246, 148 N.E.2d 23; People v. Estate of Robert Moir, 207 Ill. 180, 69 N.E. 905; In re Estate of Dedmore, 257 Ill.App. 519; in each of these cases the court held that there is a presumption of continued residence, and the burden of proof to show a change of residence is upon the party asserting such change. The showing of residence of the deponent outside St. Clair County, and in fact outside the State, raised the presumption of continuance of residence in Missouri, and as a resident of Missouri the deponent was not amendable to subpoena. C 110, § 62, Ill. Rev. Stat, 1963.”

The Powers court then went on to distinguish John, stating at page 298:

“In the present case, no such showing [of reasonable diligence] was necessary in view of the presumption of continued residence in Missouri, and deponent’s not being amenable to summons. Had there been a showing that deponent had resided in St. Clair County in the present case, it would have become incumbent upon plaintiff to have made a showing, upon which the court could have based a finding; but with the presumption of continued residence in Missouri and appellants’ failure to overcome the presumption, we cannot say that the court abused its discretion in admitting the deposition.”

Nor was there probative evidence presented in the instant case to demonstrate that plaintiff procured the absence of Scanlon. Although defendant has made allegations to this effect, he has only shown that Scanlon may have been biased in favor of plaintiff. This alone will hot serve to demonstrate that plaintiff procured the absence of Scanlon. Therefore, we find that the court did not err in admitting the evidence deposition at trial.

Defendant next argues that the trial court committed prejudicial and substantial error in not ruling on certain objections and by making inconsistent rulings in the admission of evidence. Defendant points to three specific instances to justify this contention: (1) the court never ruled on objections contained in Scanlons evidence deposition; (2) the court excluded certain hearsay testimony; and (3) the court precluded Richard Becker from testifying as to conversations with plaintiff on March 20. Although defendant cites these rulings or lack thereof to support his contention of prejudicial error, he has not cited any cases nor attempted to show how each individual ruling was erroneous. Nevertheless, we will review each claim.

While Scanlon’s evidence deposition was being taken, defendant objected to the form of many of the questions as being leading questions. At trial, when the deposition was being read into the record, defendant again objected. The court reserved ruling on these objections until after he had heard the entire deposition. The defendant never renewed his objections nor did the court make any ruling.

In Cusanelli v. Steele, 287 Ill.App. 490, 5 N.E.2d 296, the court gave an excellent description of the law in this area when it stated at page 495:

“The record does not show that the court made any ruling thereon, hence there is nothing for the consideration of this court relative to the offer of such evidence. Where a ruling on objections to evidence is reserved, and not afterwards made, there is no ruling for consideration on review. Mitchell v. Chicago, B. & Q. Ry. Co., 265 Ill. 300.
To avail of an objection, counsel must insist upon a ruling of the trial court upon the objection, and must either obtain a ruling or a refusal of the court to rule. Mere failure to rule is not sufficient, City of Salem v. Webster, 192 Ill. 369; Summerville v. Penn Drilling Co., 119 Ill.App. 152; Chicago & E. I. R. Co. v. Heilingstein, 137 Ill.App. 35. The law upon this question is stated in 3 Corpus Juris, p. 889, sec. 795: ‘As a general rule, error alleged in the admission or rejection of .evidence, cannot .b.e .considered by .the reviewing court if it does not appear from the record that there, was a ruling relating thereto.’
Here the record fails to disclose á ruling upon thé objection to the offer of the exhibits, and further does liot show that defendant insisted upon such ruling, or that the court refuséd to make same-hence, within the rule of the authorities cited, there is nothiiig for the consideration of the court upon the proposition.” (Emphasis supplied.)

(See Jones v. Lukas, 122 Ill.App.2d 162, 258 N.E.2d 147; Rasmussen v. Clark, 346 Ill.App. 181, 104 N.E.2d 325.) In accordance with the authorities above cited, we find that any alleged error was waived.

Defendant has pointed to numerous instances where the court sustained plaintiff’s objection to testimony of conversations between defendant’s employees as being hearsay. We have reviewed the relevant portions of the record and find these conversations were hearsay and that the court’s rulings were proper.

Defendant argues that the defense witness, Richard Becker, was precluded from testifying as to conversations with plaintiff on March 20. The court sustained plaintiff’s objections to defendant’s questions on this subject as being repetitious. “Where a witness has already testified fully as to the facts involved, it is not improper for the court to restrict repetitious interrogation. People v. McCain, 29 Ill.2d 132.” (People v. Davis, 35 Ill.2d 55, 62, 219 N.E.2d 468; Chism v. Decatur Newspapers, Inc., 340 Ill.App. 42, 91 N.E.2d 114.) Contrary to defendant’s above assertion, Richard Becker was allowed to fully recite the substance of these conversations. It was only when the questions were repetitive that the court sustained plaintiff’s objections, and at those times the court in commenting on its rulings stated in detail the witness’ prior testimony as to ¡these conversations. The court acted within its discretion, and we find no error in these rulings.

Finally, defendant argues that the judgment was against the manifest weight of the evidence. He urges this court to review the arecord without giving any weight to what the trial court may have found regarding Scanlon’s deposition, since the court could not view the demeanor of that witness. We agree that insofar as this deposition is concerned, we are in equally as good a position as the trial court to weigh the evidence. But the trial court was in a superior position to observe the demeanor and the credibility of the many other witnesses who testified, including the plaintiff and the two major officers of the defendant. While a trial court’s finding is always subject to review, it will not be disturbed unless manifestly against the weight of the evidence. In such case an opposite conclusion must be clearly evident. Comm v. Goodman, 6 Ill.App.3d 847, 286 N.E.2d 758.

The court had before it the testimony of plaintiff and Scanlon denying that plaintiff authorized any trades. The court also heard the corroboative testimony of Waxman and Shapiro that plaintiff did not trade on March 20 and evidence that at least one other customer of Scanlon disavowed a trade Scanlon made for him on that day. Although defendant’s witnesses directly contradicted plaintiff’s position, the court could have felt that this testimony was at least partially impeached when Richard Becker stated that during the day of March 20 he had several conversations with plaintiff wherein he confirmed the orders, whereas Becker, in a prior deposition, had stated that he had no conversations with plaintiff while they were trading.

From a review of the record we cannot say that an opposite conclusion is clearly evident.

The judgment is affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING.

Mr. JUSTICE DRUCKER

delivered the opinion of the court:

On January 18, 1974, this court issued its opinion affirming a judgment of the circuit court in favor of plaintiff for the return of plaintiff’s $50,000 deposit. Defendant had withheld these funds because of losses sustained as a result of certain commodities transactions which defendant claimed plaintiff authorized. Implicit in our opinion was the conclusion that Martin Scanlon, who admitted making the purchases of commodity futures, was defendant’s agent and not the agent of plaintiff. In the instant petition defendant asserts that this court misapprehended the state of the record when it found that the trial court’s determination of agency was not against the manifest weight of the evidence. More specifically, defendant contends that Scanlon, in placing the March 20th trades, (1) was acting as plaintiff’s agent and not defendant’s agent, and (2) if he was defendant’s agent, he was acting outside the scope of his employment. To support this contention defendant relies on the facts that Scanlon received no salary from defendant and that plaintiff controlled Scanlon’s actions.

We have reviewed the record and find that the evidence overwhelmingly refutes defendant’s instant arguments. There is evidence to demonstrate that for a period of time, including the relevant dates in question, Scanlon was employed by defendant as a broker and manager of its Kansas City office. It is true, as defendant avers, that Scanlon did not receive a salary until April or May. However, he was being paid by defendant for soliciting business.

Defendant asserts that Scanlon was controlled by plaintiff. It must be noted that plaintiff had a non-discretionary account with defendant. Defendant could not act without specific orders as to price, quantity and commodity. Defendant, in its opening statement to the court, characterized its business as accepting and executing orders to buy or sell. Therefore, in carrying out defendant’s activities, Scanlon was limited to executing specific buy and sell orders from plaintiff. This evidence concerning the control plaintiff had over Scanlon is not indicative of an agency relationship. It was actually defendant who exercised control over Scanlon, for the evidence demonstrated that Scanlon was limited by defendant’s margin requirements which were communicated to him.

The proof presented other factors which refute defendant’s contentions: No evidence was introduced that Scanlon executed orders through any other clearing members, besides defendant; Richard Becker, defendant’s vice-president, initially told plaintiff to put all orders through Scanlon; Becker stated that any refunds must be made directly to plaintiff and could not be given to Scanlon; and with regard to the alleged transaction in March, Scanlon was the person who initiated the first conversation with plaintiff, rather than plaintiff coming to Scanlon.

Defendant asserts that Scanlon looked to plaintiff for compensation and that he was only furthering his own interest, thus acting outside the scope of his employment. It bases this argument on the fact that in a prior trade (December) Scanlon received a gratuity from plaintiff. We have already noted that defendant paid Scanlon for soliciting customers. There was no evidence in the record to show that there was any agreement that plaintiff would compensate Scanlon for the alleged March trading. The most that can be said was that if plaintiff made a profit, he might have rewarded Scanlon with a gratuity. Also, any orders executed would directly benefit defendant’s interests. The executing of orders was defendant’s basic function. Defendant presented proof that a commission charge of $2700 would be due from the alleged transaction. This demonstrates that Scanlon was directly advancing defendant’s interests.

Finally, we take note of the following colloquy occurring between plaintiffs counsel, defendant’s counsel and the court:

“MR. COLLINS [plaintiff’s counsel]: The broker calls in the order on behalf of his own company. Scanlon, by statute, is the agent of Woodstock.
THE COURT: That is my understanding.
MR. COLLINS: And when Scanlon called Stavros who is also a Woodstock agent, that is two agents of the same principal talking to each other, and that conversation goes back and forth, which is self-serving, within the purview of his client’s business and not within the purview of my client.
MR. ROTHBART [defendant’s counsel]: We are not denying that.”

We have reviewed the cases cited by defendant and find them to be distinguishable on their facts. There was sufficient evidence in the record to support the finding that Scanlon was not plaintiff’s agent. The petition for rehearing is denied.

Petition for rehearing denied.

SULLIVAN, P. J., and LORENZ, J., concur.

       Another question in this form asked if the individual was a member of a partnership dealing in commodity futures, which was answered “no.” The form also asked if any other person controlled the trading in the account, which was likewise answer “no.”
      It was brought but later, in the testimony of Richard Becker, that this form had to be filed the same day or the next day after a trade is executed. This form was filed in February, at least a month prior to March 20,

       In the original briefs filed with this court the issue of agency was raised only collaterally. Defendant alleged that Scanlon and plaintiff were acting in concert and so plaintiff should have been bound by Scanlon’s actions. No case authority was originally cited to support the contention that Scanlon was plaintiff’s agent.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbert A. Hall, Defendant-Appellant.
    (No. 58864;
    First District (3rd Division)
    April 4, 1974.

      Paul Bradley, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant Wilbert Hall was indicted on four counts of aggravated battery and two counts of attempt murder. He was charged with two counts of aggravated battery and one count of attempt murder for the attack on Norma Boose and two counts of aggravated battery and one count of attempt murder for the attack on Susan Boose. After a bench trial in the circuit court of Cook County defendant was found guilty on all counts of aggravated battery and one count of attempt murder. He was found not guilty on the second count of attempt murder. For the two counts of aggravated battery and one count of attempt murder of Norma Boose, he was sentenced from 5 to 20 years. For the two counts of aggravated battery of Susan Boose, he was sentenced from 1 to 10 years. The sentences were concurrent. Defendant appeals.

He has presented one issue for review. He contends that the prosecution failed to carry its burden of proof on the issue of whether defendant was criminally responsible for his conduct. Although defendant testified to being elsewhere at the time the crimes were committed, he raised the affirmative defense of insanity and this was the theory of his defense.

We affirm.

The complaining witness, Mrs. Norma Boose, defendant’s aunt, testified that on January 11, 1972, at about 4 P.M. defendant telephoned her at her house at 1325 Marengo, Forest Park, Illinois. He wanted to borrow $10 from her and she consented. Defendant arrived at her house at about 5:30 P.M. At this time only she and Susan Boose, her 14-year-old daughter, were at home. Mrs. Boose was cooking in the kitchen. Susan was in the basement.

Defendant was sitting at the kitchen table, drinking a cup of coffee. His aunt was standing opposite him at the table kneading on dough. A few minutes later, unexpectedly and apparently unprovoked, defendant got up, walked over to where his aunt was standing, and stood close behind her. She turned around and asked him what he wanted. Defendant grabbed for her throat, backed her against the kitchen sink and began choking her. As she was trying to push him away, he apparently cut her with a knife on the right index finger. She was unable to scream. Defendant then stabbed her three times in the chest area, once in each breast, and once in the middle of the chest. At this point Susan, her daughter and defendant’s cousin, came upstairs. Her mother shouted for her to call the police. As Susan went to the telephone in the kitchen, defendant chased her and began fighting with her. Mrs. Boose told her daughter to go to the neighbors. The daughter screamed and ran from the kitchen into the dining room. Mrs. Boose ran after her to the front door. Defendant was following her. Before Mrs. Boose reached the front door she fell. She heard the back door close, got up, and telephoned the neighbors.

The police arrived shortly thereafter. Mrs. Boose felt the pain in her back and the police discovered she had a knife sticking in her back. At the hospital the knife was removed. At trial she identified the knife as one that was in her kitchen on the afternoon in question. Tire court admitted the knife into evidence.

Susan Boose gave similar testimony as to that part of the episode which took place after she came upstairs from the basement. She further testified that as she was about to use the telephone to call for help, defendant stabbed her once in the left arm and once in the chest. She then ran out the front door and went to a neighbor’s house.

Defendant testified as to his whereabouts on January 11, 1972. He went to a tavern in Berwyn, Illinois at 1 P.M. He stayed until about 1:45 P.M. He then went to another tavern. He arrived there at 2 P.M. and stayed until 5:30 P.M. He then walked to a restaurant, ate something, and walked to his girl friend’s house. He arrived there at about 6:27 P.M. and remained until 10:30 P.M. At that time Officer Hinz of the Forest Park Police Department arrested defendant pursuant to an arrest warrant. Defendant remembered telephoning his aunt at 5 P.M. that day, asking her to lend him $10, and not being refused. Aside from the telephone conversation defendant did not remember any other contact with his aunt that day.

The remainder of defendant’s testimony concerned his personal history. During defendant’s testimony, Dr. Werner Tuteur, a psychiatrist, was present in the courtroom. Defendant called Dr. Tuteur as an expert witness. Dr. Tuteur gave his medical opinion as to defendant’s state of mind at the time of the stabbings. Pursuant to a court order he had examined defendant on July 9, 1972, at the Cook County Jail for over an hour. His findings were that defendant was generally suspicious; that he was disturbed about his habit of stealing female undergarments, wearing them, and obtaining sexual gratification from this behavior; and that he was particularly hostile towards his relatives who knew this and whose undergarments he took. Defendant’s previous testimony revealed that from the age of 8 or 9 he had the habit of stealing women’s clothing from his aunt, Norma Boose, and his stepmother. He felt that Norma Boose informed on him about this habit. As a result he was eventually sent to St. Charles reformatory at age 12. His parents had been the complainants in the proceedings which resulted in this confinement. The doctor’s further findings were that defendant did not trust anyone and had never entered a meaningful relationship with anyone.

The doctor diagnosed defendant’s illness as paranoid state. He characterized defendant as psychotic. He further testified that defendant’s illness could manifest itself by irrational and impulsive behavior and he found a specific hostility toward the aunt. The doctor did not find defendant to be suffering from any kind of brain damage. Defendant’s personality was characterized by hostility, suspicion, personal unhappiness, withdrawal from society, and the possibility of explosive behavior.

In response to hypothetical questions, the doctor responded that at the time of the stabbings defendant lacked the capacity due to mental illness to realize the criminality of his acts, and that defendant lacked the capacity to conform his conduct to the requirements of law at that time.

Dr. Richard Malek, a psychiatrist, testified for the prosecution in rebuttal. He had examined defendant three times before trial. Before these examinations he had access to defendant’s social history which was obtained from friends and relatives, reports of the alleged victims’ testimony, and results of psychological tests and psychological interviews. He diagnosed defendant’s illness as antisocial personality disorder. He found defendant was neurotic as opposed to psychotic. He further found that defendant was not psychotic at the time of trial and never had been psychotic. In response to hypothetical questions, he responded that defendant could appreciate the criminality of his conduct at the time of the stabbings and did have the substantial capacity to conform his conduct to the requirements of law at that time.

George Lundt, defendant’s parole officer, also testified in rebuttal. He testified that defendant was not a problem client. He further testified that defendant did not tell him about any of his problems nor did he reveal any hostility towards his relatives.

Bonnie GhodI, defendant’s girl friend at the time of the stabbings, also testified in rebuttal. She testified that while they were dating she thought their relationship was normal and that his general behavior seemed normal. When defendant arrived at her house on the night in question at about 6:27 P.M. it was her further opinion that he was sober.

After having heard all the evidence, the trial court found defendant guilty on four counts of aggravated battery and one count of attempt murder. The trial court thought that the only issue in the case was defendant’s responsibility at the time of the offenses.

On appeal defendant’s argument relates solely to whether the prosecution carried its burden of proof on the issue of defendant’s mental capacity at the time of the commission of the offenses. Defendant correctly points out that once he introduced some evidence on the issue of his sanity at the time of the commission of the offenses, the prosecution had the burden of proof on that issue in addition to its burden of proof on the other elements of the offenses. Ill. Rev. Stat. 1971, ch. 38, sec. 3 — 2; People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702, cert. denied, 392 U.S. 940.

In the instant case the presumption that defendant was sane at the time of the offenses disappeared when defendant introduced the opinion testimony of a psychiatrist and a burden of proof arose for the prosecution on this issue. A psychiatrist and two laymen testified for the prosecution in rebuttal and gave opinion testimony contradictory to that offered by the defendant. Resolution of the resulting conflict was a matter for the trier of fact. (People v. Muniz, 31 Ill.2d 130, 198 N.E.2d 855.) We will not disturb the finding of the trier of fact on this issue unless it was the result of passion or prejudice. (People v. Ford, 39 Ill. 2d 318, 235 N.E.2d 576.) We have reviewed the record and on the basis of all the evidence presented we find sufficient evidence to support the trial court’s finding that defendant was responsible for his conduct on the afternoon of January 11, 1972. See People v. Lassiter, 133 Ill.App.2d 353, 273 N.E.2d 166.

Defendant further argues that the trial court by his remarks attempted to shift the burden of proof to him. He contends the trial court placed upon him the burden of proving insanity beyond a reasonable doubt. This argument is predicated on the taking of certain comments of the judge out of context and has no merit.

Accordingly, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Allen, Defendant-Appellant.
    (No. 57751;
    First District (3rd Division)
    April 4, 1974.
    Howard D. Geter, Jr., of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, John M. Cutrone, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DEMPSEY.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bernard Terpening, Defendant-Appellant.
    (No. 58757;
    First District (3rd Division)
    April 4, 1974.
    Paul Bradley, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tony Maurice Carter, Defendant-Appellant.
    (No. 57721;
    First District (4th Division)
    April 10, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Charles I. Weitzman, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James Veldman, Linda West Conley, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant, Tony Maurice Carter, was found guilty of murder. He was sentenced to a term of from 15 to 25 years in the Illinois State Penitentiary.

The only issue presented on appeal is whether the defendant was proven guilty beyond a reasonable doubt.

On February 12, 1971, at approximately 11:45 P.M., Charles Garrett and his two brothers, Hugh and Leo, were walking along 72nd Street in Chicago. Three men walked past the brothers and then turned around. Words were exchanged. The defendant began hitting each of the three brothers. Hugh and Leo Garrett observed a gun in the hands of James Owens. Hugh and Leo alleged at trial the defendant then said, “Shoot, man, shoot.” Shots were fired as the three brothers ran from the scene, Hugh and Leo moving in one direction while Charles left in another. Hugh and Leo returned to Hugh’s home and found Charles slumped in a chair. The police were summoned immediately. They took Charles to Jackson Park Hospital, where he died of gunshot wounds. The defendant, Tony Carter, and co-defendant, James Owens, were subsequently indicted for the murder of Charles Garrett. Owens waived his right to a jury trial and was tried before the bench simultaneously with defendant Carter being tried before a jury. At the trial, Hugh and Leo Garrett admitted the statements given by them to the police following Charles Garrett’s death, without reference to the words “Shoot, man, shoot.” At the close of the trial, the court found co-defendant Owens not guilty, although he was accused of firing the shots. The jury found defendant Carter guilty of murder. He was sentenced to 15 to 25 years imprisonment.

The State maintained the defendant was guilty of murder on the theory of accountability under section 5 — 2 of the criminal code Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2). Section 5 — 2 reads in pertinent part:

“A person is legally accountable for the conduct of another when:
* * *
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

Hugh and Leo Garrett testified on behalf of the State that during the encounter between the Garrett brothers and their assailants, the defendant solicited the aid of another to commit murder by his statement, “Shoot, man, shoot.” The State contends the defendant was therefore accountable for the murder of Charles Garrett regardless of the identity of the individual who fired the gun. The State further argues the defendant is accountable for murder even though the co-defendant was acquitted. The State bases its contentions on the credibility of the testimony of Hugh and Leo Garrett. The State relies on the decision in People v. Arndt (1972), 50 Ill.2d 390, wherein the supreme court held that once the credibility and weight to be given the testimony of witnesses has been determined by the trial judge, that determination will not be overturned on review unless it is palpably erroneous.

The defendant contends the State failed to prove beyond a reasonable doubt that the defendant was accountable for the shooting of Charles Garrett. Defendant bases his contention on the decision in People v. Butler (1963), 28 Ill.2d 88, wherein the supreme court, in reversing a conviction of larceny, held that due deference to a trial judge’s appraisal of the witnesses’ credibility does not excuse a reviewing court from its duty to examine the evidence to determine whether guilt has been established beyond a reasonable doubt.

We agree with the defendant’s contention that he was not proven guilty beyond a reasonable doubt. Hugh and Leo Garrett testified at trial that the defendant told one of his accomplices to “Shoot, man, shoot.” A review of the record indicates, however, that neither of the two Garrett brothers mentioned the words “Shoot, man, shoot” when they reported their brother’s shooting to the police. At the coroner’s inquest, Leo again failed to mention the alleged words. Furthermore, Leo testified before the grand jury that the attackers “didn’t say nothing.” The entire testimony of the Garrett brothers was so replete with contradictions and inconsistencies that a conviction based upon such testimony cannot stand. (People v. Roldan (1973), 54 Ill.2d 60.) The trial judge obviously did not believe them when he found Owens not guilty. We find the testimony of Hugh and Leo Garrett in the instant case is sufficiently contradictory and improbable as to raise a reasonable doubt as to the defendant’s guilt of murder. People v. Reese (1966), 34 Ill.2d 77.

Neither do we believe the evidence establishing the defendant’s guilt was stronger than that presented against the codefendant. It was the same transaction. A finding of not guilty by the trial judge as to co-defendant Owens and the inconsistent finding of guilty by the jury as to the defendant raises a reasonable doubt as to the guilt of the defendant. (People v. Patterson (1972), 52 Ill.2d 421.) Where co-defendants are tried on the same facts, the verdicts should be consistent. (People v. Griffin (1967), 88 Ill.App.2d 28.) In the case at bar, no plausible evidence was introduced by the State which would support a finding of guilty as to the defendant, Tony Carter.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed.

Reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Malone, Defendant-Appellant.
    (No. 59366;
    First District (3rd Division)
    April 4, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. JUSTICE DRUCKER

text:
    John Stevens, Plaintiff-Appellee, v. The Department of Law Enforcement et al., Defendants-Appellants.
    (No. 58084;
    First District (5th Division)
    April 11, 1974.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    Daniel J. Leahy, of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff filed a complaint under the provisions of the Administrative Review Act to review the finding of discharge by the Civil Service Commission. The circuit court reversed the Civil Service Commission on the basis that the Commission lost jurisdiction of the case by failing to hold a hearing within 30 days after the date notice was received from plaintiff requesting a hearing. Defendants appeal arguing that the 30-day requirement is directory only.

Plaintiff was suspended as an employee of the Department of Law Enforcement pending discharge, for a 30-day period from June 22, 1971, to July 22, 1971. He had previously been suspended for 15 days in January 1971. He received notice of his discharge effective July 28, 1971, and filed a request for a hearing, which request was received on August 11, 1971, by the Civil Service Commission. The Commission set September 15, 1971, as the date for a hearing. The hearing was continued, on defendants’ motion, to September 27, 1971. The hearing examiner’s recommendation that plaintiff be discharged from his position as an agent with the Illinois Bureau of Investigation, Department of Law Enforcement, was adopted by the Civil Service Commission. Plaintiff’s motion before the hearing officer to dismiss the charges because the hearing was scheduled beyond the 30-day limit was denied. It is admitted that the hearing was scheduled and held more than 30 days after plaintiff requested it.

The sole question involves the construction to be given to section 11 of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b111), which in pertinent part provides:

“No officer or employee under jurisdiction B, relating to merit and fitness, who shall have been appointed under the rules and after examination, shall be removed or discharged, demoted, or suspended for a period of more than 30 days, except for cause, upon written charges approved by the Director of Personnel, and after an opportunity to be heard in his own defense if he makes written request to the Commission within fifteen days after the serving of the written charges upon him. Upon the filing of such a request for a hearing, the Commission shall grant a hearing within thirty days." (Emphasis supplied.)

OPINION

Defendants in their brief correctly state the precise issue to be "whether the word ‘shall’ was intended to be directory to the Civil Service Commission or rather whether it was meant to be mandatory and binding upon the Commission.” We have filed today an opinion in McReynolds v. Civil Service Com., 18 Ill.App.3d 1062, where this exact issue was presented and decided by this court.

In McReynolds we held that the word “shall” was intended by the legislature to be a mandatory requirement. One basis for this determination was that the statute serves to protect the employee from possible injury and thus falls within the language of People v. Jennings, 3 Ill.2d 125, 127, 119 N.E.2d 781, where the court quoted from French v. Edwards, 80 U.S. (13 Wall.) 506, 20 L.Ed. 702, as stating:

“ ‘* * * But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise’.”

We also considered the purpose of the statute and the language used. In view of our decision in McReynolds, an extended discussion is not necessary. The judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       The instant case and McReynolds were argued orally together, before this court, although they were not consolidated on appeal.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Liberty Leasing Co., Inc., Plaintiff-Appellant, v. Crown Ice Machine Leasing Co., Inc., Defendant—(Swift & Company, Garnishee-Defendant-Appellee ).
    (No. 59388;
    First District (3rd Division)
    April 4, 1974.

      Howard D. Hollander, of Chicago, for appellant.
    Alan L. Butler and Walter W. Kurczewski, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Liberty Leasing Co., Inc., brought this garnishment action in the circuit court of Cook County against garnishee-defendant, Swift and Company. After a hearing, the trial court entered an order releasing and discharging Swift. Liberty appeals.

On November 16, 1972, Liberty obtained a default judgment against Crown Ice Machine Leasing Co., Inc., and another company arising out of a breach of a lease agreement. On January 31, 1973, Liberty instituted non-wage garnishment proceedings against Swift. Swift’s answer to the garnishment interrogatories stated that it had no funds belonging to Crown in its custody or control. Liberty contested the answer and claimed that, pursuant to a contract entered into on December 10, 1971, Swift agreed to purchase annually from Crown between 7,500 and 18,200 tons of ice at a price of $4 per ton. At a hearing on Liberty’s motion for judgment, Swift filed, in addition to a memorandum of law, an affidavit of one of its officers plus several exhibits showing that Crown had assigned its right to the proceeds under the contract, as it was empowered to do by an express provision in the contract, to a bank in Jackson, Mississippi. The assignment was executed approximately 10 months prior to the time Liberty obtained its judgment against Crown. The affidavit also set forth that Swift had honored the assignment. Liberty did not contest Swift’s affidavit. The trial court denied Liberty’s motion for judgment and discharged and released Swift.

The garnishor bears the burden of showing that the garnishee holds property belonging to the judgment debtor. (Vinson v. Roscoe (1971), 133 Ill.App.2d 73, 272 N.E.2d 818.) As in other types of litigation, any affirmative defense raised by the garnishee in the pleadings must be established by a preponderance of the evidence in order to be sustained. Gregory v. Highway Insurance Co. (1960), 24 Ill.App.2d 285, 164 N.E.2d 297.

After Liberty proved that a contract was in force at the time of the commencement of the garnishment proceedings, the burden of going forward shifted to Swift. Swift’s claim that Crown had assigned its right to the proceeds prior to the time Liberty obtained judgment constituted an affirmative defense and placed the burden of proving such defense on Swift. See Ill. Rev. Stat. 1971, ch. 110, par. 43(4).

It seems clear that Swift met that burden, Its uncontradicted affidavit recited that Crown had assigned its proceeds of the contract with Swift to a Mississippi bank. In addition, Swift attached several exhibits to the affidavit consisting of correspondence between the bank and Swift further evidencing the assignment. It has been the general rule in Illinois that an assignment by the judgment debtor prior to the commencement of garnishment proceedings, absent fraud, precludes the garnishor from prevailing against the garnishee. Ray v. Faulkner (1874), 73 Ill. 469; Williams v. West Chicago Street R.R. Co. (1902), 199 Ill. 57, 64 N.E. 1024; See National Bank of Albany Park v. Newberg (1972), 7 Ill.App. 3d 859, 289 N.E.2d 197.

Liberty argues, however, that Swift’s burden should not terminate once the latter proves the existence of a prior valid assignment on the part of the judgment debtor. It urges, without citing legal authority, that Swift should further be required to prove that the unfiled security interest of the assignee takes priority over the subsequent judgment lien of Liberty. See Ill. Rev. Stat. 1971, ch. 26, pars. 9 — 102(1) (b), 9 — 301(1) (b), and 9 — 302(1) (e).

A garnishment action is concerned with one fundamental question: the existence of subsisting rights between the judgment debtor and the garnishee defendant. (See Schwitz v. 75th & Exchange Drug Co. (1940), 303 Ill.App. 192, 24 N.E.2d 889.) The effect of garnishment is to subrogate the judgment creditor to whatever rights the judgment debtor may have against the garnishee. (Krensky & Co. v. Rothman (1958), 18 Ill.App.2d 540, 152 N.E.2d 598 (Abstract opinion).) Where, as in the present case, the garnishee sustains its affirmative defense and, therefore, proves that it has no attachable debt owing to the judgment creditor, the garnishment action must fail and the garnishee must be discharged.

We do not believe that a garnishee should have the additional responsibility of proving that an assignee has a greater priority to its proceeds than the garnishor. The garnishee has no interest in the priority issue, a matter wholly separate from the garnishment proceedings. The resolution of that question is better left to an action tire garnishor may wish to bring against the assignee. The trial court correctly discharged Swift.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE BURKE

text:
    American National Bank and Trust Company of Chicago, as Trustee, et al., Petitioners-Appellees, v. The City of Chicago et al., Respondents-Appellants.
    (No. 59780;
    First District (1st Division)
    April 15, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan, Richard F. Friedman, and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellants.
    Raymond F. Simon, of Chicago (John J. George, of counsel), for appellees.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This action arose as a petition for a writ of mandamus to order the Building Commissioner of the City of Chicago to issue a permit for construction of a 44-story building at 555 East Illinois Street in Chicago. The trial court found that the petitioners were entitled to the permit and ordered that a peremptory writ of mandamus issue directing the respondents to issue the permit. This appeal followed.

The respondents contend that the petitioners have no right to a permit for a project which would violate a comprehensive lakefront land use ordinance publicly announced prior to application for the permit. The petitioners claim they acquired a vested right to issuance of the permit.

The petitioner, Centex Homes Corporation (hereinafter called Centex), is the beneficial owner of real property held in trust by the petitioner, American National Bank and Trust Company of Chicago. The property is commonly known as 555 East Illinois Street in Chicago. Centex purchased the property on October 31, 1972, at a cost of $4,472,500. At the time of purchase, the property was zoned to permit construction of multiple-family, high-rise buildings. Mr. James Blaeser, regional vice-president of Centex, testified that Centex was aware of the zoning classification of the property prior to purchase, that Centex relied on that classification and would not have purchased the property had it not been so classified.

In November, 1972, the petitioners entered contracts for the preparation of surveys and architects’ plans for the construction of a condominium project on the subject property. In December, 1972, a contract was entered for soil tests on the property. In January, 1973, a contract with a structural engineering firm was entered to provide working drawings and specifications for the project’s construction. Also in that month, contracts for engineering and survey services and for mechanical drawings and typed specifications for the project were entered. Testimony established that payments totalling over $200,000 had been made on these contracts by the time of trial. On June 1,1973, the same day the architects’ plans were delivered to them, the petitioners applied for a building permit for the proposed project. The application was accompanied by the required information and the necessary fees were proffered. On or about June 15,1973, the petitioners sent certified letters to the Chicago building commissioner and the Commissioner of Development and Planning, demanding that a permit issue or that reasons be given for non-issuance. The letters described the expenditures to date on the project and apprised the officials of the economic hardship which would ensue should the permit be denied. There was no response to these letters. The petitioners brought the instant action to force issuance of the requested permit, alleging that there was no discretion in the building commissioner to withhold the permit.

The respondents filed an answer, admitting that the zoning in effect on the subject property would permit construction of a multi-story building. They stated that the building commissioner was not required to issue the permit requested by the petitioners, since at the date trial began there was pending before the. Chicago City Council a lakefront study ordinance, which was introduced to the Council on June 6, 1973. A copy of “The Lakefront Plan of Chicago”, upon which the proposed ordinance was based, is part of the record in this case. It is dated December, 1972; it was released on May 23, 1973. The policy for development of the lakefront, as outlined in the plan, was adopted by the City Council on October 24, 1973, the same day the lakefront protection ordinance was enacted. The lakefront plan recommended that no further private development be permitted east of Lake Shore Drive and the lakefront protection ordinance was meant to implement the plan. Since the petitioners’ property is east of Lake Shore Drive, their projected multi-unit building is not a permitted use under present law.

The respondents’ answer also alleged that widespread publicity attended the proposed zoning amendment, with the result that “every person has received actual notice of a likelihood of change in the law.” The answer alleged that the petitioners have not substantially changed their position “prior to or during the time that the municipality is in the orderly process of enacting a comprehensive zoning ordinance amendment.”

A hearing was held and the court found that the petitioners were entitled to the permit. A peremptory writ of mandamus was ordered, re-, quiring the respondents to issue the requested permit.

We are obliged to determine this appeal on the basis of the law now in existence, in spite of the fact that at trial the ordinance which would prohibit the petitioners’ project was not in effect. (Fallon v. Illinois Commerce Com., 402 Ill. 516, 84 N.E.2d 641.) The respondents argue that the lakefront protection ordinance, which is now the law, applies to bar the petitioners’ project. They contend that the city had a right to delay issuance of the permit while the ordinance was pending before the City Council. The respondents rely on what we term the Palatine rule, which has been expressed as follows:

“* * * a municipality may properly refuse to issue a permit for construction which is permitted under existing zoning classifications if the municipality has already begun statutorily prescribed amendatory procedures (such as public hearings on planning commission recommendations for ordinance amendments) which would prohibit the proposed building development (Chicago Title & Trust Co. v. Palatine, 22 Ill. App 2d 264, 268, 160 NE2d 699); * * *." First National Bank of Skokie v. Village of Skokie, 85 Ill. App. 2d 326, 332, 229 N.E.2d 378, 382.

The petitioners counter with tire argument that they acquired a vested right to issuance of the permit under a well-established exception to the retroactive application of a change in the law. This exception, called the Deer Park rule (Deer Park Civic Association v. City of Chicago, 347 Ill. App. 346, 106 N.E.2d 823), has been approved by the Illinois Supreme Court:

“* * * any substantial change of position, expenditures, or incurrence of obligations occurring under a building permit or in reliance upon the probability of its issuance is sufficient to create a right in the permittee and entitles him to complete the construction and use the premises for the purposes originally authorized irrespective of a subsequent zoning or change in zoning classification.” Fifteen Fifty North State Building Corp. v. Chicago, 15 Ill.2d 408, 416, 155 N.E.2d 97, 101.

Where both the Palatine rule and the Deer Park rule are raised, the Deer Park exception may still prevail. That is, even if it is proper for a municipality to delay action on a permit while legislation is pending, the applicant may present evidence to establish a vested right to issuance of the permit, although the legislation enacted after application would bar the proposed project. (People v. City of Calumet City, 101 Ill. App. 2d 8, 241 N.E.2d 512.) Palatine was decided on the narrow issue of whether the applicant’s right to a permit crystalized at the time of application, a time when the intended use was permitted. The court held that no vested right accrued as a result of the fortuitous timing of the application. Legislation to change the uses permitted on the applicant’s property was pending at the time application was made. The question of whether the applicant had substantially changed position, etc., in reliance on existing zoning was not discussed. Chicago Title & Trust Co. v. Village of Palatine, 22 Ill.App.2d 264, 160 N.E.2d 697.

The respondents contend that the vested right theory of Deer Park should not be applied in this case, since the Deer Park exception is directed at spot zoning of property in response to a permit application for an unwanted use. We find no merit in this contention. The vested right theory has been applied in cases other than those involving spot zoning. (See, for example, People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill. 2d 183, 157 N.E.2d 33.) Moreover, the present case certainly raises the question of spot zoning. The law now forbids any private development east of Lake Shore Drive. The respondents state in their brief: “[t]he parcel of land in question is the last private vacant area on Chicago’s lakefront.” Hence, only the petitioners are affected by this prohibition against private development. The fact that this prohibition was but a part of a comprehensive lakefront plan does not foreclose the possibility of a part or parts of the plan amounting to spot zoning.

The respondents also contend that the vested rights theory has been appled in Illinois “only to situations where the permit application itself was the impetus for the proposed zoning change or where the landowner in question has already begun construction.” We find no reason why the vested right theory should not be applied in the instant case. There is nothing in the Deer Park rule or in cases applying it requiring that the application precipitate a proposed change in the law. The timing of and motivation behind a proposed change in the law are not relevant to application of the rule as it is stated in Illinois. As a practical matter, of course, a proposed amendment may counter the applicant’s argument of reliance on the probability a permit would issue, such that a change of position, etc., after knowledge of the proposal would not be included in a test of substantiality of change, expenditures, etc., which go to establish the vested right to issuance of a permit.

To determine whether the petitioners come within the Deer Park rule, two questions must be examined. One is whether the expenditures made by the petitioners were substanial, and the other is whether the expenditures were made in reliance on the probability a permit would issue.

The petitioners detailed their expenditures, amounting to $212,815 in addition to the cost of the land by the time of trial. The seven contracts entered by the end of January, 1973, resulted in total obligations of $380,815, partial payment of which is represented by the expenditures in evidence. The respondents argue that the petitioners’ expenditures do not qualify as substantial, because there is no evidence of the proportion of the proposed project represented by the expenditures and because the cost of the land should not be considered in determining whether substantial expenditures have been incurred. The respondents cite cases in other jurisdictions to support this attack on substantiality. It, is, however, the rule in Illinois that substantiality is determined without regard to any proportional test and by considering the cost of the land. (People ex rel. National Bank v. County of Cook, 56 Ill. App. 2d 436, 206 N.E.2d 441). On the record in this case, the petitioners met the test of substantiality under the Deer Park rule.

The next point to examine is whether the expenditures were made in reliance on the probability a permit would issue. At the time the property was purchased and throughout the lower court proceedings, the property was zoned to permit the proposed use. To the north and south of the petitioners’ property, multi-family high-rise buildings had been or were being constructed. Mr. Blaeser testified that the property was purchased and contracts entered in reliance on the existing zoning classification, permitting the petitioners’ projected high-rise.

The respondents contend that the petitioners had actual knowledge of the lakefront plan, but proceeded with their project in spite of such knowledge. They argue that Mr. Blaeser admitted such knowledge at trial. The record reveals the following exchange, upon which the respondents base their contention:

“Q. Now, Mr. Blaeser, were you aware of the proposed Chicago-land Lakefront Plan back in the middle of 1972?
A. I believe we saw a document that was prepared at that time.”

While it is obvious that such testimony does not prove that the petitioners had actual knowledge of the proposed change in zoning of their property, the respondents claim that the testimony raises the inference that the petitioners had such knowledge. It was then, goes the argument, the petitioners' burden to prove that they did not have such knowledge. We cannot agree. The Chicagoland Lakefront Plan mentioned in the question of Mr. Blaeser was not identified as the one upon which the City Council was during trial considering action. The plan upon which the enacted ordinance was based was called “The Lakefront Plan of Chicago.” That there is reason for making such a technical distinction was brought out at oral argument in this cause. The petitioners presented, with the consent of the respondents, a number of other lakefront plans proposed at various times. It was for the respondents to show that the plan which would change the zoning of the petitioners’ land was known to the petitioners prior to the time that substantial expenditures were made.

The respondents argue that there was public notice and widespread media coverage of the lakefront plan “so that every person has received actual notice of the likelihood of change in the law.” The quoted statement from respondents’ answer to the petition for a writ of mandamus was not replied to by the petitioners. The respondents claim that this failure to reply amounts to an admission of the statement’s truth, thereby establishing that the petitioners had knowledge of a proposed change in zoning. (See Westerheide v. Obernueferman, 3 Ill. App. 3d 996, 279 N.E.2d 402, where a proposal was “general knowledge” in the community. ) Of what is the statement an admission? That at some point the petitioners were aware of the proposal is obvious. The real question is whether the awareness preceded their expenditures, and' there is no evidence in this record that such was the case. “The Lakefront Plan of Chicago,” which is in the record, is dated December, 1972. It was released May 23,1973. The respondents offered no evidence to substantiate their claim of widespread media coverage of the plan or to establish a date at which time the plan could be said to be generally known in the community. Hence, even if we regard the petitioners’ failure to deny the statement quoted above as an admission of- its truth, it does not defeat their claim to a vested right in the permit. The petitioners established every material fact necessary to show the plain duty of the respondents to act as requested; hence, they were entitled to the writ of mandamus. (Brown v. City of Joliet, 108 Ill. App. 2d 230, 247 N.E.2d 47.) The record shows that the petitioners expended substantial sums in reliance on the probability a permit would issue. Having established their right to a writ, it was for the respondents to show that the petitioners did not rely on existing zoning at the time the expenditures were made.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.