author: JUSTICE CAMPBELL JUSTICE BUCKLEY,

text:
      In re MARRIAGE OF LANAE SILVESTRI-GAGLIARDONI, Petitioner-Appellant, and CESARE GAGLIARDONI, Respondent-Appellee.
    First District (1st Division)
    No. 1—87—0223
    Opinion filed June 30, 1989.

      BUCKLEY, J., dissenting.
    Schiller, Du Canto & Fleck, Ltd., of Chicago (Burton S. Hochberg and Sarane C. Siewerth, of counsel), for appellant.
    Kirsch, Berman & Hoffenberg, Ltd., of Chicago (Alan D. Hoffenberg and Mary Ellen Dienes, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Petitioner, Lanae Silvestri-Gagliardoni, appeals from the dismissal of her action in the trial court for dissolution of marriage from respondent, Cesare Gagliardoni, on the basis that the jurisdiction of the matter was governed by the courts of Milan, Italy, where a prior decree had been entered. On appeal, Lanae contends that (1) the trial court abused its discretion by dismissing her petition for dissolution of marriage and ordering all future matters be litigated in Milan, Italy; and (2) the trial court abused its discretion by failing to conduct an evidentiary hearing on the issue of the jurisdiction of the Italian court and the validity of the Italian decree.

Lanae and Cesare were married in Chicago, Illinois, on April 12, 1981. A son was born to the parties on November 20, 1981, in Cook County, Illinois. The marital residence of the parties was in Milan, Italy. During the course of the marriage, Lanae would travel to Chicago with her son for extensive visits with her parents and friends. On September 12, 1986, Cesare served Lanae in Italy with a petition requesting judicial separation which required her to appear in court on September 23, 1986. That same day she retained an Italian attorney to represent her in the proceedings. Lanae’s father, Arnold Silvestri, an Illinois attorney, who is fluent in Italian, travelled to Italy to advise her and was present at the proceedings. At the hearing on September 23, 1986, after an attempt at reconciliation by the court failed, the parties presented a separation agreement to the court which they had signed and which the court accepted.

The separation agreement provided that the parties would have joint custody of the child and that the child would reside with the mother in Milan, Italy. The agreement permitted Lanae to travel with the child to the United States three times a year with each visit not to exceed one month, except the first visit in September 1986, which could be up to two months. The cost of the first two trips annually was to be borne by Cesare. Under the terms of the agreement, child support and maintenance were set at $2,800 per month with $2,250 specifically designated as child support. Cesare would pay Lanae $15,000 to furnish an apartment in Milan and would receive an Oldsmobile automobile. Cesare was required to pay Lanae’s attorney $2,800 in fees and Lanae was required to agree that the child would travel on an Italian passport. The agreement further required that Lanae was to sign a sworn statement before the United States Consulate certifying her obligation to return to Italy with the minor child under the terms of the agreement. On September 25, 1986, Lanae appeared before the United States Consulate and stated that she intended to be bound by the separation agreement. Thereafter, she returned to the United States with the child of the parties.

On October 17, 1986, Lanae filed a petition for dissolution of marriage in the circuit court of Cook County. In her petition, she requested the court to declare the separation agreement void on the basis that it was entered into under duress and fear. In addition to her petition, Lanae also filed a petition for a temporary restraining order and preliminary injunction seeking temporary custody of the child. On October 17, 1986, an ex parte order was entered without notice enjoining Cesare from visiting with the child. Upon his arrival in Chicago to visit with the child, Cesare was personally served with a summons and a copy of the pleadings. On October 24, 1986, Cesare filed a special and limited appearance and two motions to dismiss. One motion to dismiss was based on the existence of the prior Italian court decree. Lanae was granted leave of court to file an amended petition for dissolution during the pleading defects raised by Cesare.

On November 24, 1986, following a hearing, the court granted Cesare’s motion to dismiss based on the prior Italian decree. The trial court ruled that the Italian court had jurisdiction of both Cesare and Lanae and that Italy was the home of both parties. The trial court found that when the parties came to Chicago with their child to visit, they did so to enable the child to see his grandparents. The court further found that Lanae had made a decision some years earlier to live in Italy and had never attempted to convince Cesare to move their residence to the United States. The court stated that La-nae had been “well represented in Italy” by counsel, including both retained Italian counsel and Lanae’s father, Arnold Silvestri. Lanae had not shown that the amount of notice given to her prior to the Italian court proceedings was unusually short. The judicial proceedings and the manner in which they were conducted were not unusual and demonstrated no prejudice by the Italian court. The court noted that the agreement covered all issues relating to child custody and property and that, under the terms of the agreement, the child was permitted to visit the United States just about as often as he had done during the five years prior to the agreement.

During oral argument on this matter on February 22, 1988, counsel for Lanae advised this court that Cesare had filed an enforcement action under the Italian judgment requesting that Lanae and the minor child of the parties be ordered to return to Italy. This court requested a report from the parties on the status of the proceedings in the Italian court. Subsequently, counsel for both parties have been granted numerous motions for extension of time to file the status report, advising that the parties were engaged in settlement negotiations, and requesting a suspension of consideration of the appeal. On January 18, 1989, counsel for Lanae filed a status report advising this court that the settlement negotiations between the parties had not been successful and we now proceed with the disposition of this appeal.

Lanae first argues that the trial court abused its discretion when it dismissed Lanae’s petition for dissolution of marriage and ordered all future matters to be litigated in Milan, Italy. Adjudication of interstate and international custody issues involved in child custody proceedings before courts in the State of Illinois is governed by the Uniform Child Custody Jurisdiction Act (UCCJA or Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 2101 through 2126). Since the case at bar involves the custody decree of a foreign nation, the provisions of the UCCJA became operational to determine whether the trial court had jurisdiction. Section 2 of the Act specifically provides that one of the purposes of the Act is “to avoid jurisdictional competition.” (Ill. Rev. Stat. 1987, ch. 40, par. 2102.) Section 24 of the Act further provides:

“The general policies of this Act extend to the international area. The provisions of this Act relating to the recognition and enforcement of custody judgments of other states apply to custody judgments and judgments involving legal institutions similar in nature to custody institutions rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.” (Ill. Rev. Stat. 1987, ch. 40, par. 2124.)

Thus, the provisions of the UCCJA extend to foreign custody judgments. In addition, section 9(b) allows the Illinois courts to decline jurisdiction and precludes modification of a custody judgment,

“if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody.” (Ill. Rev. Stat. 1987, ch. 40, par. 2109(b).)

A review of these statutory provisions leads us to conclude that the UCCJA operated in this case to deprive the Illinois court of jurisdiction by operation of the prior Italian decree. It is our opinion that the UCCJA compels Illinois courts not only to recognize proper custody decrees from foreign nations, but also that they must decline to accept jurisdiction to modify custody decrees in the absence of the showing of conditions in the custodial household that are physically or emotionally harmful to the child. We agree with the trial court that Italy qualified as the proper forum to assume jurisdiction because it was “in the best interest of the child” since both of the child’s parents had a significant connection with Italy and there was available in Italy substantial evidence concerning the child’s housing, support, education, medical and dental care and personal relationships. Therefore, the judgment entered in the Italian court is subject to enforcement in the Illinois courts and the trial court did not err in dismissing Lanae’s petition for dissolution of the marriage and transferring the cause back .to the courts of Milan, Italy.

Lanae further argues that under Illinois law, a prior pending proceeding in a foreign country will not bar a similar proceeding in Illinois. (Goldberg v. Goldberg (1975), 27 Ill. App. 3d 94, 237 N.E.3d 299; Farah v. Farah (1975), 25 Ill. App. 3d 480, 323 N.E.2d 361.) We find this argument without merit because a judgment was entered by the foreign court and it is not a pending proceeding. As correctly noted by the trial court, the Italian decree resolves the issues raised, including custody, maintenance, child support, attorney fees, and cash distribution. A review of the decree shows that these issues were disposed of with finality in a certified and registered decree of the Italian court in Milan. In our opinion neither the fact that a waiting period exists between the dissolution of the marriage is considered final nor the fact that other portions of the decree are modifiable renders it a nonfinal order. The judgment is a final decree by an Italian court which incorporated a marital agreement. Under Illinois law, the settlement agreement was not only incorporated into, but also had the effect of a judgment of the court. (In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015.) As such, the trial court here did not have jurisdiction to grant Lanae the relief she sought since the issues raised were disposed of in a prior Italian decree.

Lanae further contends that the Italian decree did not meet the standards for recognition of a foreign judgment. The elements required to establish a prima facie case of entitlement to recognition of a foreign country judgment are that the rendering court had jurisdiction over the person and subject matter; there was timely notice and an opportunity to present a defense; no fraud was involved; and the proceedings were according to a civilized jurisprudence. Hunt v. BP Exploration Co. (N.D. Tex. 1980), 492 F. Supp. 885.

From our review of the record, these elements were established by facts set forth in the record. Lanae concedes in her petition for dissolution of marriage that the separation agreement entered into by the parties was executed “under the laws of Italy.” The decree itself states that both parties appeared in person before the court and participated in the proceedings. Therefore, the Italian court had jurisdiction over the persons and subject matter. Lanae does not dispute that the Italian decree was entered only after timely notice was given to the parties and she had an opportunity to present a defense. Although Lanae alleges that she entered into the agreement under duress and coercion, it is our determination La-nae’s pleadings do not sufficiently plead fraud in the procurement of this judgment. (See Dawson v. Duncan (1986), 144 Ill. App. 3d 532, 494 N.E.2d 900.) Lanae was represented by Italian counsel who recommended that she settle the case. Lanae’s father, an Illinois attorney who was fluent in Italian, advised her and did not suggest any alternative course of action. There is nothing in the record to suggest that any unusual procedures were followed regarding the setting of the hearing, the time of trial or the manner in which the court documents were processed. No allegation was presented of any prejudice on the part of the Italian court.

The trial court noted, and we agree, that Lanae’s correct remedy was to present her allegations of coercion and duress to the Italian court and to seek a continuance of the proceedings there if necessary. There is no indication in the record that Lanae made any effort to present her allegations there or that the Italian courts failed to present her a full opportunity to be heard.

Having determined that the Illinois courts lacked jurisdiction to hear Lanae’s petition for dissolution of marriage and that the Italian decree is entitled to recognition and enforcement in Illinois, we find it unnecessary to address the remaining issues raised on appeal beyond the issue of jurisdiction.

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

Judgment affirmed.

MANNING, P.J., concurs.

JUSTICE BUCKLEY,

dissenting:

I respectfully dissent.

Petitioner’s residence in Illinois at the time of the commencement of this action gave the circuit court subject matter jurisdiction to entertain the filing of a petition for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.). The Act’s jurisdictional requirement that “one of the spouses was a resident of this State *** and the residence *** had been maintained for 90 days next preceding the commencement of the action or the making of the finding” (Ill. Rev. Stat. 1987, ch. 40, par. 401(a)) has been interpreted as requiring 90-day residency at the time of the court’s ultimate decision on the dissolution petition and as granting circuit courts’ jurisdiction to grant temporary relief where one of the spouses maintains a residence in Illinois at the commencement of the action. (In re Marriage of Mates (1987), 156 Ill. App. 3d 26, 28-29, 508 N.E.2d 1181, 1182-83.) The circuit court also had subject matter jurisdiction as to the child custody dispute pursuant to section 601 of the Act, which incorporates the UCCJA’s jurisdictional provisions, and section 4(a)(2) of the UCCJA (Ill. Rev. Stat. 1987, ch. 40, par. 2104). In addition, the circuit court acquired in personam jurisdiction over respondent because he was personally served in Illinois according to the required statutory procedure. In re Marriage of Pridemore (1986), 146 Ill. App. 3d 990, 497 N.E.2d 818.

Having subject matter jurisdiction as to all issues before it and personal jurisdiction over respondent, the next appropriate issue confronting the circuit court was the effect of the Italian court decree, which consisted of a separation agreement providing for custody, child support and maintenance. As to the decree’s custody provisions, the UCCJA’s recognition and enforcement provisions became operational. These provisions mandated recognition of the Italian custody decree if the Italian court had assumed jurisdiction under statutory provisions substantially in accordance with the UCCJA and if reasonable notice and opportunity to be heard were given all affected persons. (Ill. Rev. Stat. 1987, ch. 40, pars. 2124, 2114.) While the UCC-JA’s jurisdictional provisions do not require personal jurisdiction but operate quasi in rem, the UCCJA sets forth provisions to encourage and assure that affected persons are given the opportunity to have their day in court. (In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 346, 458 N.E.2d 559, 563; Commissioners’ Prefatory Note, Unif. Child Custody Jurisdiction Act, 9 U.L.A. 114 (1979).) Petitioner’s complaint here sufficiently brought into question whether the Italian decree met these jurisdictional standards by alleging facts sufficient to support a finding that the agreement and Italian decree were procured by coercion and duress, thereby denying petitioner an opportunity to be heard. The circuit court, therefore, should have given petitioner an evidentiary hearing to determine whether she was afforded an opportunity to be heard in the Italian court.

In any event, the UCCJA’s mandatory recognition provisions did not require the dismissal of the dissolution of marriage petition, as it operates only with regard to custody determinations and not with regard to marital judgments or property division, maintenance and support matters. Furthermore, recognition of the Italian judgment under comity principles would be improper here because the judgment cannot be found to be res judicata as to the petition for dissolution of marriage filed in Illinois since it is not a divorce decree but merely a legal separation agreement.

Thus, the circuit court’s dismissal of the petition for dissolution of marriage and the petition for a temporary restraining order and preliminary injunction seeking temporary custody of the child should have been reversed.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM PHILLIPS, Defendant-Appellant.
    First District (2nd Division)
    No. 1—86—0960
    Opinion filed June 30, 1989.
    Rehearing denied August 14, 1989.

      Gordon H. Berry, of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Joseph G. Howard, and Brian T. Sexton, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendant was indicted with Marvin Stutts and Bryant Stutts for a number of offenses, including aggravated kidnapping, kidnapping, aggravated battery, attempted murder, unlawful use of weapons and aggravated criminal sexual assault. Bryant Stutts pleaded guilty and was sentenced to 13 years’ imprisonment. The defendant and Marvin Stutts were tried by a jury. The charges against Marvin Stutts at the time of trial were aggravated criminal sexual assault, aggravated kidnapping and kidnapping; and the charges against the defendant were aggravated criminal, sexual.assault, attempted murder, aggravated kidnapping, kidnapping, aggravated battery and unlawful use of weapons. Marvin Stutts was found not guilty of aggravated criminal sexual assault and guilty of aggravated kidnapping and kidnapping. The defendant was found not guilty of aggravated criminal sexual assault and attempted murder and was found guilty of aggravated kidnapping, kidnapping, aggravated battery and unlawful use of weapons. He was sentenced to concurrent terms of seven years’ imprisonment for aggravated kidnapping and four years for each of the other offenses. He contends that various errors by the trial court as well as improper argument by the State warrant a new trial. Additionally, he claims that his sentence of seven years for aggravated kidnapping constituted an abuse of discretion. No issue is made of the sufficiency of the evidence to support the verdict against the defendant, who was found guilty under the accountability statute; but, since his principal claim of error is the refusal to give a compulsion instruction, a detailed recitation of the evidence is required.

On Saturday, November 3, 1984, Bryant Stutts (Stutts), a longtime friend of the defendant, went to Partina Purdie’s (Purdie’s) home with a letter and a rose for her. Purdie, who had been Stutts’ girlfriend for about three years, had recently broken off the relationship; and he was seeking a reconciliation.

She testified as follows.

She read the letter, tore it up and threw it in the garbage in front of Stutts. Stutts did not leave when Purdie asked him, and her brother “put him out.” Around 9 to 9:30 p.m. her date, Michael Hay-good, arrived. After Haygood had parked his 1984 Toyota Célica and entered the house, Stutts returned. Purdie spoke to Stutts at the front door and would not allow him to enter the house. The conversation ended with Purdie slamming the door. Stutts observed Haygood’s car parked in front of the house.

Purdie and Haygood left for a movie at River Oaks Theater in Calumet City. After they had seen the movie, they walked to Hay-good’s car. She saw Stutts walking toward them with his arm “kind of like along his leg.” When Stutts got about 10 feet away, he pointed a shotgun at them and ordered them into a car. Haygood ran and ducked behind another car. Stutts grabbed Purdie and “dragged” her to a car from which the defendant got out and opened the back door. Stutts pulled her into the back seat, and the defendant got in the driver’s seat. Purdie was surprised to see the defendant and said, “So you’re in on this, too?”; and he said, “Yeah.” The defendant pulled the car out of the parking lot “fast.”

While the defendant was driving, Stutts began to punch Purdie in the face. The beating was “steady,” and Stutts threatened that he was going to kill her. She was crying and pleaded with Stutts to stop beating her. Stutts struck her in the head with the butt of the shotgun, causing it to discharge. The shot went between Purdie’s arm and body and blew a large hole in the upright portion of the back seat. Stutts shouted, “Bitch, you done shot me.” The defendant asked Stutts if he had been hit, and Stutts answered that he thought so but did not know how bad it was. The defendant continued driving to “some dark place” under a viaduct.

When the car stopped and Stutts opened the door, Purdie grabbed the gun from him and threw it up on a hill. He dragged her up the hill and got the gun. At that time she was not wearing shoes. The defendant had picked up her shoes and purse and put them in the trunk of the car. Stutts told her, “Oh, girl, what me and Bill are going to do to you tonight.”

Stutts told the defendant to take the car, which belonged to Stutts’ mother, and come back in the car owned by the defendant’s mother. At the time the defendant drove off, Purdie was bleeding and kept asking Stutts not to hit her anymore.

After the defendant left, Stutts began asking her questions about Haygood. He told her to take down her pants. When she refused, he pointed the gun at her and indicated with the gun that she was to pull down her pants. He pulled down his pants. At that time the car containing the defendant and Marvin Stutts (Marvin) was coming, and Stutts pulled up his pants. It was the same car that the defendant had driven away in, but this time Marvin was driving and the defendant was on the passenger side. Marvin and the defendant got out of the car, and Stutts put Purdie in the back seat on the floor. Marvin drove off with the defendant on the passenger side and Stutts and Purdie in the back seat. Stutts still had the gun. He made her lie on the floor. Marvin asked what was going on, and Stutts told him, “This bitch was out with another man.” At that time there was still blood on her face. Marvin drove to a liquor store, where he bought some beer. From the time they left the forest preserve to the time they arrived at the liquor store, Stutts was still hitting her in the face. She was crying. All three of the men drank beer, but she refused to drink any. She was wiping the blood from her face on the back seat.

Marvin drove to a motel after Stutts told him to. Stutts gave Marvin his identification and money and told him to get a room and to use a false license plate number. Marvin came back and said there were no rooms. Purdie was crying and bleeding. She could see blood dripping from her head. Marvin drove to a motel on Stony Island Avenue. The men were all laughing because Haygood ran and left her. Marvin went into the second motel with Stutts’ identification and money and returned with the key and gave it to Stutts. Stutts gave the gun to Marvin and the defendant and told them to get rid of it. Marvin got Purdie’s shoes and purse from the trunk and gave them to her. Stutts told Marvin to take the back seat out of the car and to tell their mother that someone had stolen it. It had a big hole in it from the shotgun blast, and blood was everywhere. Marvin and the defendant left in the car.

Stutts made her go into a room, and she sat down on the bed. He told her to take off her clothes. When she refused he pulled her in front of the mirror and told her to look at herself. She could barely see her face because it was covered with blood and her lip was big. He made her shower and told her to get on the bed. She testified that he got on top of her and “raped” her. After he was finished, he called his home and then told her that they had to get out of the motel. He then called his father and asked him to meet them at 79th Street and Stony Island Avenue, because he was in trouble. He made her walk down Stony Island after she dressed. They took a cab to 79th Street and Stony Island, where they met Stutts’ father. Stutts’ father asked her if she wanted him to take her to a hospital. She asked that he just take her home.

Purdie’s mother did not recognize her at the door when she walked past. She subsequently passed out in her brother’s arms and was taken to St. Francis Hospital. Vaginal swabs were taken, and it was stipulated that the swabs revealed the presence of sperm. She never saw Stutts point the shotgun at either the defendant or Marvin and neither one offered her any assistance.

Michael Haygood’s testimony as to what occurred at the parking lot was the same as that of Purdie. He also testified that one of his tires had been cut, causing it to go flat, and broken bottles had been placed behind the three other wheels.

Detective Robert Dywer was assigned to investigate and went to the home of Marvin Stutts. Marvin took him to the basement and Dwyer observed a hacksaw and hacksaw blade, part of a shotgun barrel, the chamber housing for shells and part of a rifle stock barrel which he thought had been sawed off. Marvin was arrested and taken to Area 2 Headquarters. Dwyer also examined the car used and discovered a shotgun hole in the back upright portion of the backseat. He also recovered Purdie’s watch and earring from the back seat.

Stutts was arrested around 4 a.m., and the defendant at 7 a.m. at his home. He was questioned by Assistant State’s Attorney Earl Grinbarg, who testified that he advised the defendant of his rights, and the defendant told him what had occurred. Grinbarg transcribed the defendant’s statement verbatim. The defendant reviewed the two-page statement, corrected and signed it.

In that statement the defendant said the following: Stutts picked him up at his girlfriend’s at 9:30 p.m. He said that they were going to River Oaks “to fuck with Tina [Purdie] because he had seen Tina going to the movies there with some other guy.” Stutts showed him the sawed-off shotgun he had. They waited in the parking lot for Purdie to come out; and when she did, Stutts put the sawed-off gun up his sleeve and got out of the car. He walked up to her and her boyfriend. The boyfriend saw the gun and ran. Purdie tried to get away, but Stutts aimed the gun at her and dragged her into the car. Stutts told the defendant to drive. Stutts got in the back seat with Purdie and started hitting her with his fists and with the handle part of the gun. Stutts told him to drive to 127th and Halsted under the viaduct. He dropped them off there when Stutts told him to go back and get his mother’s car. Stutts said “he was going to Mil the bitch.” When he left, he really thought Stutts would kill her. He went to Marvin’s and told him what had happened and that he thought Stutts was going to kill Purdie. They drove back together in the same car. Stutts got back in the car with the shotgun he had kept while waiting with Purdie. Stutts then told Marvin to go to Sibley and Torrence to a motel. Marvin went in to get a room for Stutts, but there were no vacancies. Stutts said to go to the Ranch Motel at 93rd and Stony Island Avenue. They did and dropped Stutts and Purdie off after Marvin got a room. Stutts told them to get rid of the gun. They drove to the home of a man named Lorenzo at 124th and Wentworth, and Marvin left the shotgun with him. He never hit Purdie, but he watched Stutts hit her and heard Stutts tell her to keep her head down.

The defendant’s testimony was at variance with his statement. He testified that around 9 p.m., he was at his girlfriend’s house when Stutts, whom he had known for several years, came to see him. Stutts asked if he would drive out to River Oaks Theater with him to pick up his girlfriend, “Tina.” He could see that Stutts had been drinking but agreed to go with him.

During the ride to the theater Stutts drove in a “zigzag” fashion and the car almost went off the ramp exiting the Calumet Expressway. He also stopped off at a liquor store and purchased a half pint of whiskey. After they arrived at the theater, Stutts parked the car in the parking lot. He began drinking and complaining about Purdie. Stutts passed the bottle to the defendant, and he took a “hit” off it. The entire conversation lasted about an hour. On one occasion Stutts got out of the car and went to the rear and opened the trunk. He assumed that Stutts was urinating during this time. When Stutts came back he placed a screwdriver on the seat and resumed talking about Purdie. When the show let out, Purdie and Haygood started approaching the vicinity of the Stutts car. Stutts got out and walked over to Purdie. From a distance of roughly 10 feet, the defendant saw Stutts point “something that look[ed] like a pipe that was up his sleeve” and then grab Purdie’s arm. At that point her boyfriend fled. Stutts walked Purdie back to the car and opened the rear door on the driver’s side. Purdie entered the car after Stutts. When Stutts and Purdie got into the car, the defendant was in the front passenger seat.

His testimony at that point was as follows:

“Q. Now, when you got in, you say you observed what?
A. Well, when he got in, I had seen the barrel of a gun pointing at me.
Q. Well, what did you think at that time?
A. At that time, I was scared. I didn’t know what to do. If — you know, I thought that he would shoot me if I didn’t do what he said.
Q. Why would you think that?
A. Well, I didn’t see a gun, until he had got into the car. So, I thought that he was — you know, him and Tina was just going to talk. I didn’t know what he was doing.
Q. Well, didn’t you see the gun when Michael — or when the young man ran away?
A. No. Like I said, I thought it was a pole. I didn’t know what it was. It looked like a pole to me.
Q. You realized it was a gun, though, when he got in the car?
A. Right.
Q. Now, what happened after he got in the car? When you saw the gun?
A. Well, he had told me to get in the driver’s seat, and pull off.
A. Well, to me he had looked like he was upset, or something, or for some reason, his eyes was red, and he was drunk, and he looked like he was nervous, because when he got in the car, he had walked up to the— *** He had got out of the car, and walked up to Tina, he was — he was shaking, shaking at that time. So when he got back in the car, he was scared, or nervous or something.
Q. What happened next, after he was in the car with her?
A. Well, I had turned around, and seen the barrel of the shotgun pointed at me in my face. Right there, I was scared, I was terrified. I didn’t know what to do, I couldn’t say anything.
Q. Why couldn’t you say anything?
A. I was surprised.
Q. What surprised you?
A. The gun barrel.
Q. What happened next?
A. He told me to get in the driver’s seat, and pull off.”

Later he testified that when they got on the expressway, Stutts kept hitting Purdie in the face, and he told Stutts, “Why don’t [you] just stop hitting her, and just talk to her?” Stutts told him to just kept driving. He didn’t know whether the gun was in Stutts’ sleeve at that point because he didn’t bother to turn around to look. Purdie asked Stutts to stop hitting her, but Stutts did not stop.

When the defendant got on the expressway he started doing “75” because he hoped that a police car would see him. He was scared and didn’t know what else to do. It “seemed like” he could not reason with Stutts so that Stutts would stop beating her. There was a police car going in the opposite direction, and he was blinking the lights on and off hoping the police would see the blinking lights and that he was speeding. Stutts told him to slow down, so he did. At that time Stutts was still hitting Purdie in the face, and she was crying steadily. Before he got off the expressway, the gun discharged in the car. He guessed that Stutts had put the gun down and that Purdie had tried to get the gun from him, and it went off in the back seat. He got off at 130th Street because Stutts told him to. He was scared when he heard the gun go off and thought Purdie had been shot. Stutts said, “Oh, I’m shot.” He asked Stutts if it was serious and Stutts said, “Yeah.” The defendant asked Stutts if he wanted to go to a hospital, and Stutts told him to just keep driving.

When he was asked why he did not just stop driving and say “I’m not going anyway,” he answered, “I don’t know. I was scared, I didn’t know what to do.” He said he tried to reason with Stutts by asking him would he stop abusing Purdie the way he was doing. Stutts did not say anything other than, “Keep driving.” He kept driving because Stutts told him to, “plus he had the shotgun, too.” He went to the forest preserve at the direction of Stutts. He thought that Stutts would kill him and Purdie and probably himself. He didn’t know why he thought that. He had never seen Stutts act that way before. After the car stopped he got out after they did. Stutts pushed Purdie out of the car. Stutts had taken her shoes and purse and thrown them out. He was standing by the driver’s door, and Stutts came over to him and told him to take the car home and come back in the car of the defendant’s mother.

He drove to Stutts’ home and told Marvin that his brother was at the forest preserve, that he had a shotgun and that he had beaten up Purdie very badly. He and Marvin went back in the same car with Marvin driving. When he returned to where he had left them, he got out of the car and called Stutts, who came out with Purdie. It had taken him about five minutes to go from Stutts’ house back to where he had left them. Stutts had his arm around Purdie, and they walked back toward the car. Stutts was hugging Purdie. He heard Purdie mention to Stutts that “she wanted to go to a motel.” Marvin drove to a motel at 159th and Torrence but was unable to get a room. Stutts told Marvin to go to a motel at 93rd and Stony Island where he and Purdie used to go when they were dating. Before they got to that motel they stopped at a liquor store called “The Shrimp Boat.” Marvin purchased a six-pack of beer. He, Marvin and Stutts each had one beer. They went to the motel, and Marvin got a room for Stutts. Stutts and Purdie were in the back seat, and there was no fighting going on at that time. There was no fighting from the time they left the forest preserve and went to the first motel. There was no arguing. He saw Purdie and Stutts go into the motel. He was no longer “scared” because it seemed like everything had “cleared up.” Before Stutts left he had handed Marvin a piece of the gun and told him to take it home and “put it up.” He and Marvin left and went to Lorenzo Eidelberg’s home. Marvin took the gun out of the trunk and took it to Lorenzo’s brother. The defendant had noticed that Purdie had some bruises on her face. Stutts had his arm around Purdie; they were hugging when he observed them walk into the motel.

On cross-examination he admitted giving a statement to an assistant State’s Attorney in the presence of a police detective. However, he denied making those statements which showed his complicity in Stutts’ plan to get Purdie; they were lies made up by the assistant State’s Attorney.

The defendant first contends that the trial court committed reversible error when it refused to give an instruction on the affirmative defense of compulsion, which is defined as follows in section 7— 11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 7— 11):

“(a) A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.”

Since compulsion is an affirmative defense, unless the State’s evidence raises the issue involving the defense, the defendant “must present some evidence thereon.” (Ill. Rev. Stat. 1985, ch. 38, par. 3—2(a).) The supreme court has held that “very slight evidence” of a defense will justify the giving of an instruction. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31.) But the court cautioned that “the merest factual reference or witness’s commentfs]” may not necessarily support an instruction on an affirmative defense. People v. Bratcher (1976), 63 Ill. 2d 534, 541, 349 N.E.2d 31. See also People v. Currie (1980), 84 Ill. App. 3d 1056, 405 N.E.2d 1142.

In determining whether an instruction on the defense of compulsion is necessary, a reviewing court is not authorized to weigh the evidence upon a question of whether or not compulsion is shown but must determine whether or not the issue was sufficiently raised to justify such an instruction. (People v. Scherzer (1989), 179 Ill. App. 3d 624, 534 N.E.2d 1043 (a case which upheld the refusal of a compulsion instruction).) In this regard, we recognize that it is not relevant that the defendant’s testimony is at odds with the testimony of Purdie as well as his own statement. If his testimony constitutes “some evidence,” that is enough. “Some evidence” has been described as evidence sufficient to raise an issue of fact for the jury, creating a reasonable doubt as to the defendant's guilt. People v. Redmond (1974), 59 Ill. 2d 328, 337-38, 320 N.E.2d 321.

The issue, therefore, is narrowed to whether the defendant’s testimony was “some evidence” that he was acting under the compulsion of threat or menace of the imminent infliction of death or great bodily harm and that he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform certain acts. The case principally relied upon by the defendant is People v. Adcock (1975), 29 Ill. App. 3d 917, 331 N.E.2d 573. In that case, the defendant, Adcock, was in a car with men named Youngblood and Thorn when Youngblood drew a weapon on Thorn and forced Thorn to participate in a robbery of a nearby tavern in Chicago. The opinion is silent about the defendant’s activities while the robbery was taking place. After the robbery, the three men left Chicago to drive to Kentucky. Adcock guarded Thorn constantly, holding a gun to Thorn’s neck, while Youngblood drove. Youngblood, who was extremely intoxicated, threatened to shoot Adcock if he continued to guard Thorn with the gun. After a tire blowout, Youngblood flagged down a truck operated by a man named Keene. Youngblood drew a gun on Keene and forced him to lie down in a ditch. Adcock and Thorn approached Youngblood; and Youngblood threatened to shoot Thorn if he did not return to the Keene truck. There was evidence that Adcock also or dered Keene into the ditch and made him lie down on his stomach. Adcock and Youngblood drove away in Keene’s truck and were subsequently arrested and charged with the robbery of Keene.

Adcock testified that he approached Youngblood and Keene to assure there would be no violence and that he returned to the truck with Thorn because he feared for his own safety. (Although Youngblood had threatened to shoot Thorn, not Adcock.) He also testified that he drove away in Keene’s truck with Youngblood, because he feared he would be shot if he refused. The Appellate Court, Second District, reversed Adcock’s conviction because the trial court refused to give a compulsion instruction.

We must express strong misgivings about the holding of Adcock, because there was no evidence that Youngblood ever threatened to kill or harm Adcock if he did not participate in the Keene robbery. Ironically, the only threat against Adcock was made to compel him to stop using a gun against Thorn. The opinion makes no mention of what Adcock later did with the gun he had been holding.

In another case, People v. Creach (1979), 69 Ill. App. 3d 874, 387 N.E.2d 762, the appellate court reversed a conviction, with one judge dissenting, in part on the ground that the court erred in refusing to give a compulsion instruction. The supreme court granted the State’s petition for leave to appeal and affirmed on another ground, but expressly abstained from passing on the appellate court majority’s holding that the compulsion instruction should have been given. (People v. Creach (1980), 79 Ill. 2d 96, 402 N.E.2d 228.) Neither side has cited Creach; and it would unnecessarily lengthen this opinion to recite the facts of that case. Suffice it to say that we agree with the dissenting opinion, which was cited with approval in People v. Scherzer (1989), 179 Ill. App. 3d 624, 645, 634 N.E.2d 1043.

We do not believe that the defendant’s testimony here meets even the standard of “slight evidence” to require the giving of a compulsion instruction. As has been said in a case upholding refusal to give a necessity instruction, “[n]ot every remark is specific enough to rise to the level of a direct threat or be so dire a warning as to reasonably instill the degree of fear of impending harm claimed to necessitate [the] defendant’s actions and require an instruction on necessity.” (Emphasis added.) (People v. James (1989), 180 Ill. App. 3d 461, 465, 535 N.E.2d 1147, 1150.) The same observation may be made of a compulsion instruction.

The defendant and Stutts had been friends for the period of time they had lived in that neighborhood, 12 years. There is not one word from Stutts of “threat or menace of the imminent infliction of death or great bodily harm.” Instead, the defendant relies on his testimony that his friend “pointed” the shotgun at him and “told [him] to get in the driver’s seat and pull off” to permit the inference that he reasonably believed his “friend” would shoot him if he did not do everything he was told. The defendant uttered not one word of protest and asked not one question. Even after the shotgun was discharged, the defendant’s only questions were whether Stutts was injured and if Stutts wanted to be taken to a hospital. Moreover, the shotgun was later seized by Purdie, who threw it away; and the defendant took no steps at that time to assist Purdie, who was dragged by Stutts as he retrieved the shotgun; nor did the defendant attempt to flee. To borrow from People v. Perez (1981), 97 Ill. App. 3d 278, 281, 422 N.E.2d 945, a case holding that there was not even slight evidence to justify a finding of necessity, “[sjimple common sense conjoined with the record in this case prohibits the conclusion” that the defendant’s testimony was sufficient to establish that Stutts’ conduct constituted a direct threat or a dire warning that would reasonably instill in the defendant the degree of impending harm that would justify his actions in aiding and abetting Stutts.

Even assuming that the evidence was sufficient to require the instruction, no error occurred in its refusal for another reason. It must be noted that there are two separate time periods in the crime: before the defendant drove away from the forest preserve and after he returned with Marvin. The defendant testified that, after he returned with Marvin, there were no further beatings and Purdie, with her arms around Stutts, asked him if they could go to a motel. No threats of any kind were made against the defendant after he returned. Thus, if any crimes were committed after he returned, the defense of compulsion was admittedly not available to him. If the testimony of Purdie was to be believed, since she testified that, after Marvin and the defendant returned, she was still held prisoner and that Stutts had a gun, the jury would be justified in finding both Marvin and the defendant guilty of aggravated kidnapping. The fact is that the jury, understandably, did believe Purdie and not the defendant, as evidenced by the finding of guilty of Marvin. The evidence also established that Stutts continued to beat Purdie while Marvin drove to the motel and, therefore, supported a finding of aggravated battery against the defendant. See People v. Ruiz (1967), 82 Ill. App. 2d 184, 191, 226 N.E.2d 438.

Kidnapping is a continuing offense. (People v. Turner (1989), 128 Ill. 2d 540; People v. Tate (1981), 94 Ill. App. 3d 192, 418 N.E.2d 1048.) The kidnapping of Purdie was an ongoing crime and included the period of time before and after the defendant left and returned. Therefore, the giving of this instruction, general in its terms and without limitation as to time, would have been confusing to the jurors, since it would have embraced acts to which it was admittedly not applicable.

Finally, even assuming that the instruction should have been given, any error in its refusal would be harmless. The evidence of guilt is so clear and convincing that the jury’s verdict could not have been different. People v. Carter (1988), 177 Ill. App. 3d 593, 532 N.E.2d 531; People v. Bailey (1986), 141 Ill. App. 3d 1090, 490 N.E.2d 1334.

The defendant next contends that error occurred when Purdie testified to statements made by Stutts and when Detective Dywer testified to statements made by Marvin. Neither Stutts nor Marvin testified. The defendant did not object to the testimony which he now assigns as error, nor did he refer to the testimony in his written motion for a new trial. We conclude that the defendant has waived this assignment of error. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

Even absent waiver, we judge that no reversible error occurred. Purdie testified that Stutts told her, “Oh, girl, what me and Bill are going to do to you tonight.” That testimony was admissible for a number of reasons. First, our reading of the record leads us to conclude, contrary to the defendant’s brief, that the statement was made in the presence of the defendant, who implicitly concurred by silence. Second, it was part of the res gestae. And third, it was a declaration made by a coconspirator in furtherance of the conspiracy.

The other alleged error occurred when Dwyer testified that after Marvin was arrested, Marvin told him that the defendant had come to his home after midnight, that Stutts had a sawed-off shotgun, and that he and the defendant abducted Purdie, that while driving to a deserted area during a struggle, the shotgun went off. The defendant tacitly recognizes, as he must, that the evidence was admissible against his codefendant, Marvin. Moreover, the statement attributed to him by Marvin is no different than his testimony. He admitted assisting Stutts in the abduction and that a shotgun was fired. Consequently, there was no prejudice to him. Last, we repeat that the evidence so overwhelmingly supports the verdict that the absence of this evidence could have had no effect on the outcome.

The defendant next argues that reversible error occurred during the State’s closing argument. He contends that the argument distorted the law of accountability and ignored “specific intent.” In our judgment the prosecutor’s argument was not improper; and we note specifically that he did not ignore the requirement of intent:

“And [the judge] is going to tell you a person is legally responsible for a conduct of another person when either or before the commission of an offense, with the intent to promote or facilitate the commission of the offense, the person knowingly aids, abets, agrees to aid or attempts to aid the other person in the planning and commission of the offense.
And he is going to tell you that we have to prove that the defendant or somebody who he is legally responsible for, that the defendant did perform an act which [sic] a substantial step towards the commission of a murder. That is one. And that when he did so, he intended to commit the offense of murder.
How many times did Tina tell you from the witness stand what Bryant told her, I’m going to kill you. You’re done. This is it. You have had it. How many times did he tell her that? How do you determine intent? By what a person does and what a person says.” (Emphasis added.)

The defendant also argues that he was improperly convicted of kidnapping, aggravated battery and unlawful use of weapons, because, he says, they are lesser included offenses of aggravated kidnapping. The State concedes that the conviction for unlawful use of weapons was an element in the conviction for aggravated kidnapping and it should be vacated, but does not concede that the convictions for kidnapping and aggravated battery should be vacated.

We agree that the conviction for aggravated battery should stand. The beating that Purdie received from the fists of Stutts and the blow from the shotgun were acts constituting aggravated battery and were separate from the act of forcing her into the car at gun point, which was the first step in the aggravated kidnapping. But we do not agree with the State that the kidnapping was not part of one continuous crime of aggravated kidnapping. The conviction for kidnapping, therefore, is vacated. See People v. Turner (1989), 128 Ill. 2d 540.

Last, the defendant maintains that his sentence should be reduced. In light of the brutal nature of the crimes, the defendant’s callous participation in them and his apparent lack of remorse, as evidenced by his preposterous testimony which included the traducement of Purdie, we refuse to say that the trial court abused its discretion.

For these reasons, the judgments of conviction for aggravated kidnapping and aggravated battery are affirmed. The convictions for kidnapping and unlawful use of weapons are vacated.

Judgment affirmed in part and vacated in part.

BILANDIC, P.J., and SCARIANO, J., concur.

      Justice Egan participated in the decision of this case prior to his assignment to the sixth division.


author: PRESIDING JUSTICE JIGANTI

text:
    THE VILLAGE OF SCHAUMBURG et al., Plaintiffs-Appellants, v. METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—88—2300
    Opinion filed June 30, 1989.

      Jack M. Siegel, of Chicago, for appellant Village of Schaumburg.
    John J. Coffey and Jonathan E. Rothschild, both of Rothschild, Barry & Myers, of Chicago, for appellees Graham Company, Roderick Kirkwood, and John Graham.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs filed an action contesting a land purchase made by the Metropolitan Sanitary District (MSD). This is an appeal from an order which dismissed the party who sold the land to the MSD.

The defendants-appellees, John Graham, the Graham Company, and Roderick Kirkwood, owned a 73-acre tract of land located in the Village of Schaumburg. On October 13, 1987, they entered into a contract to sell the property to the MSD for $19,650,000. The closing date specified in the contract was December 7, 1987.

On October 26, 1987, the plaintiffs-appellants, the Village of Schaumburg and four individuals who were Schaumburg officials and taxpayers, filed a three-count complaint against the MSD and the Graham defendants. Count I, entitled “Declaratory Judgment,” sought a declaration that the MSD would be subject to the zoning ordinances of the Village of Schaumburg if it were to acquire the property. The plaintiffs also requested an injunction to prevent the MSD from using the property for a sewage-treatment plant until it obtained rezoning or a special use permit. The plaintiffs further sought to enjoin the MSD and the Graham defendants from completing the sale of the property.

In count II, entitled “Injunction,” the plaintiffs alleged that the MSD had no lawful purpose for buying the property and therefore lacked statutory authority to acquire it. In this count, the plaintiffs sought injunctive relief to prevent the MSD and the Graham defendants from completing the sale.

Count III, entitled “Breach of Fiduciary Duty,” alleged that the proposed acquisition of the property for purposes not permitted by the statute would be a violation of the fiduciary duty owed by the MSD and its commissioners to the individual taxpayers of the district. In this count, the plaintiffs sought to enjoin the MSD and its commissioners from violating their fiduciary duties.

On October 27, 1987, one day after the complaint was filed, the MSD informed the plaintiffs that the sale of the property was scheduled for closing on December 7, 1987. Other than filing the complaint, the plaintiffs took no steps to secure an injunction before the closing date. When the time for closing arrived, the Graham defendants performed their obligations under the contract with the MSD and completed the sale of the property.

The Graham defendants subsequently moved to dismiss the complaint against them on the grounds of mootness. The Graham defendants argued that as to them the complaint requested only injunctive relief and they could no longer be enjoined from selling their property to the MSD because it had already been sold. The trial court granted the motion to dismiss.

On appeal, the plaintiffs argue that the trial court erred in dismissing the Graham defendants. The plaintiffs concede that the request for injunctive relief can no longer be granted because the sale of the property has been completed. However, the plaintiffs assert that the Graham defendants remain necessary parties to the action against the MSD. In this regard, the plaintiffs focus on count II of the complaint.

The plaintiffs assert that in count II of the complaint, they seek a declaration that the MSD was without corporate authority to purchase the property. The plaintiffs argue that if they prevail on this issue, then the purchase of the property by the MSD would be ultra vires, the contract would be void, and the court could order rescission and reconveyance of the property to the Grahams and order the Grahams to return the $19,650,000 purchase price. The plaintiffs conclude that because the rights of the Grahams would be affected by such an order, the Grahams are necessary parties.

A necessary party is an individual or entity having a present, substantial interest in the matter being litigated, and in whose absence a complete resolution of the matter in controversy cannot be achieved without affecting that interest. (Bovinett v. Rollberg (1979), 73 Ill. App. 3d 490, 494-95, 392 N.E.2d 27, 31.) Without jurisdiction of a necessary party, it is error for a court to hear and dispose of a case on the merits. Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 Ill. App. 3d 50, 61, 505 N.E.2d 1076, 1084.

Initially we note that count II of the complaint does not, as the plaintiffs assert, request declaratory relief. A review of the complaint, which was never amended, indicates that in count II, the plaintiffs allege that the MSD lacked corporate authority to purchase the property. The only relief requested in this count is an injunction to -prevent the Grahams from completing the sale. This relief can no longer be granted.

Even if we were to liberally construe count II as requesting a declaration that the MSD lacked corporate authority to purchase the property, we are not persuaded by the plaintiffs’ argument that the Grahams are therefore necessary parties to the action. The plaintiffs’ premise for asserting that the Grahams are necessary parties is based on the suggestion that if the MSD lacked corporate authority, the purchase would be ultra vires and the contract would be void. The plaintiffs then conclude that if the contract is void, there is a possibility that the contract could be rescinded and the Grahams could be required to reconvey the property. The plaintiffs acknowledge that in the event the contract is declared void, reconveyance is only one of several possibilities, such as selling the property at a public sale.

The plaintiffs’ suggestion that the contract could be voided if the court determines that the MSD lacked corporate authority is made -without any citation to a body of law. So, too, is the plaintiffs’ assertion that it is possible that the court could order reconveyance of the property. More importantly, the plaintiffs make no request for re-conveyance of the property in their complaint. The plaintiffs’ suggestions as to possible outcome of this litigation without citation to any body of case law or without requesting the relief that forms the basis of their argument is not enough to convince us that the Grahams have a present substantial interest in the matter being litigated. Nor can we say that a complete resolution of the matter cannot be achieved without affecting the interest of the Grahams. Therefore, we conclude that based on the complaint before us, the Graham defendants are not necessary parties.

For the foregoing reasons, we conclude that the trial court properly granted the Graham defendants’ motion to dismiss. Accordingly, the decision of the trial court is affirmed.

Affirmed.

McMORROW and JOHNSON, JJ., concur.


author: PRESIDING JUSTICE MURRAY

text:
    COMMUNITY MENTAL HEALTH COUNCIL, INC., Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    First District (5th Division)
    Nos. 1—88—2991, 1—89—0427 cons.
    Opinion filed June 30, 1989.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen S. Rosenwinkel, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Donald Hubert & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant Department of Revenue of the State of Illinois (Department) appeals from an order of the trial court reversing its decision denying a charitable tax exemption on certain real estate located in Cook County to plaintiff Community Mental Health Council, Inc. (Council) (appeal No. 88 — 2991). The Department also filed a notice of appeal from a later order entered by the trial court requiring it to refund $5,827.74 to the Council for taxes it paid on the subject property in 1986 (appeal No. 89 — 0427). In its first appeal, the Department argues that (1) this court must dismiss the appeal because the Council failed to name the Community Mental Health Foundation (Foundation) as a party defendant in its administrative review action in the trial court and (2) the trial court erred in finding that the Council was entitled to a charitable tax exemption on its property. In its second appeal, the Department did not file a brief and, on an oral motion during argument before this court, it moved to have its brief in the first appeal stand as its brief in the second appeal. We granted the Department’s motion. The issue involved therein will be discussed later in this opinion.

The record discloses that the Council was incorporated as a not-for-profit corporation on February 13, 1975. Its purpose is to “promote positive mental health” within a community on the south side of Chicago and, accordingly, it is governed by the Illinois Community Mental Health Act (Ill. Rev. Stat. 1987, ch. 91½, par. 300.1 et seq.). The Council receives 95% of its funding for operation of its services from an annual grant provided by the Department of Mental Health. The Council subsequently created the Foundation as a “holding company,” since under the ternas of the annual operation grant received from the Department of Mental Health the Council may not, among other things, use it to purchase real estate or make mortgage payments.

On July 14, 1986, the Council entered into a contract with Northwestern University to purchase the property at issue here (a three-story building with a full basement and two parking lots located at 8704 South Constance in Chicago), subject to a lease held by Illinois Bell which was to expire on December 31, 1986. The property was bought to house the Council’s headquarters. The Council’s $100,000 down payment on the property was made with funds from a reimbursable grant received from the Department of Mental Health. The grant agreement provides that should the building generate any income in excess of the Council’s expenses, such excesses are to be remitted to the Department of Mental Health until the $100,000 is repaid. At the time of closing, the Council signed a conveyance nominating the Foundation as “purchaser of the property” and the property was accordingly deeded to the Foundation on September 15,1986.

At the time of the purchase of the property, Illinois Bell’s monthly rental payment on the entire property to Northwestern was $4,382. Based on the real estate sale contract between the Council and Northwestern, the Foundation was required to make a monthly mortgage payment in the amount of $5,999.16, beginning October 1, 1986, plus a monthly $4,000 payment to an escrow account to pay a balloon payment of $246,085.73, which was to be paid at the end of five years.

From September 15 through December 31, 1986, Illinois Bell used only one-third of the building and the two parking lots; two-thirds of the building remained vacant. At that time, Illinois Bell agreed to allow the Council full use of the vacant portion of the building, notwithstanding that it was paying rent on the entire building. The Council then began preparations to renovate the building for its purposes; its development staff, architects, and 12 different contractors frequented and had unfettered access to the vacant two-thirds of the building. In January 1987, Illinois Bell vacated the building. The Council then took possession of the building and parking lots and began paying rent to the Foundation.

The Council subsequently applied to the Board of Tax Appeals for a charitable tax exemption on the property from September 15 to December 31, 1986. The Board granted it a partial exemption, but the Department later reversed the Board. The Council then filed an administrative review action in the circuit court of Cook County. The court reversed the Department’s decision and remanded the case back to the Department for a hearing to calculate the amount of the exemption the Council was entitled to on the building and the two parking lots. The Department then filed an appeal from this order (appeal No. 88-2991).

On January 9, 1989, after the agency’s hearing on the amount of tax exemption due the Council, the trial court entered an order requiring the Department to refund $5,826.74 to the Council for taxes paid on the property in 1986 pursuant to a stipulation between the parties that the exemption for the building amounted to $5,426.36, for the rear parking lot, $290.70, and for the adjacent parking lot, $109.68. The Department then filed a notice of appeal from the order (appeal No. 89 — 0427) and subsequently moved to consolidate the appeal with appeal No. 88 — 2991, which this court granted.

We reject the Department’s first argument in appeal No. 88— 2991 that the appeal must be dismissed because the Council did not name the Foundation as a party defendant in its administrative action as required by section 3 — 107 of the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 107). Section 3 — 107 provides that an “administrative agency and all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 107.) We first observe that even though the Department now argues that the Foundation was a necessary party in the Council’s administrative action, the Department itself did not name the Foundation as a party in the hearing in which it denied the Council an exemption on its property, notwithstanding the fact that it had served the Foundation with notice of the hearing. The Department’s argument that the Foundation “participated” in the hearing does not a party of record make; in fact, no witness even appeared solely on behalf of the Foundation. This point is established by reference to the Department’s administrative law judge’s statements in his “Recommended Disposition” where, under the caption of “APPEARANCES,” he referred to the witnesses and attorneys who appeared before him as appearing “on behalf of the Community Mental Health Council, Inc.,” and referred to himself as having appeared on behalf of the “Illinois Department of Revenue.” Thus, he did not state that the Foundation was a party of record. Since the Foundation was not a party of record, as the term is used in section 3 — 107, the Council was not statutorily required to make the Foundation a defendant in its administrative review action.

Secondly, as the Council further points out, the Department’s brief is incorrect in stating that “the tax was levied against the Foundation as legal title holder of the property” and, therefore, (1) the Foundation was a necessary party to the administrative review action and (2) the trial court lacked subject matter jurisdiction in the absence of the Foundation as a party to review its decision denying the tax exemption. (See People ex rel. Illinois Department of Human Rights v. Arlington Park Race Track Corp. (1984), 122 Ill. App. 3d 517, 461 N.E.2d 505.) In fact, the face of the tax bill shows the taxpayer to be “COMMUNITY MENTAL HEALTH”; it does not indicate whether the taxpayer is the Council or the Foundation. In addition, the Department’s assertion is inconsistent with a notation made by its law judge who referred to the Council as the taxpayer, i.e., the Department’s exhibit 2F was marked at the direction of the judge as “Taxpayer: COMMUNITY MENTAL HEALTH COUNCIL, INC.” Finally, we note that a failure to name a necessary party is not a jurisdictional defect so that the issue will be deemed waived on appeal if not raised in the trial court. (Barnes v. Barbosa (1986), 144 Ill. App. 3d 860, 494 N.E.2d 619.) The Department clearly did not raise this issue in the trial court and it therefore cannot be raised on appeal under the circumstances here.

Thirdly, it would have been absurd for the Council to name the Foundation as a party defendant in the administrative review action because it would in effect be suing itself since the Foundation is merely its alter ego, having no interests in conflict with the Council’s. That this is the case, as pointed out by the trial court, we need only look to the similarity of the names of both corporations — Community Mental Health Council and Community Mental Health Foundation— as reflecting their close relationship; the Foundation’s bylaws provide that it is created solely to hold title to the Council’s property and to collect income therefrom and surrender the entire amount, less expenses, to the Council for its exclusive use to terminate the mortgage on the property at issue here; the Foundation’s bylaws also provide that only board members of the Council may serve as board members of the Foundation, and they serve at the will of the Council; and any checks written by the Foundation are signed by the president and treasurer of the Council.

In light of the foregoing, the Foundation clearly was not a necessary party to the Council’s administrative review action against the Department.

We also reject the Department’s second argument that the trial court erred in finding that the Council is entitled to a charitable tax exemption on the subject property. The record discloses that the Department denied the Council’s application for an exemption based on its findings that the Foundation, rather than the Council, was the legal titleholder of the property from September 15 through December 31, 1986; the Foundation was not a charitable organization; and that the Foundation did not use the property for charitable purposes but rather leased the property with a view to profit to Illinois Bell during the involved period. On the other hand, contrary to the Department’s findings, the trial court based its decision on its determination that the Council qualifies as a charitable institution under section 19.7 of the Revenue Act of 1939 and its use of two-thirds of the building during the taxable period involved was for charitable purposes (renovations to the building in preparation of providing its services to the public), it is entitled to the exemption as the equitable owner of the property, and that since the parking area of the property was not leased out and did not generate any income, that property is also exempt. We agree with the trial court, except as to its exemption on the parking lots.

Section 19.7 of the Revenue Act of 1939 (Ill. Rev. Stat. 1987, ch. 120, par. 500.7) exempts the following property from taxation:

“All property of institutions of public charity, all property of beneficent and charitable organizations, whether incorporated in this or any other state of the United States, *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit ***.”

Implicit in the above statute are the requirements that an organization be a charitable one, that it is the owner of the property sought to be exempted, and that the property is actually being used for charitable purposes.

In the instant case, the Department argues that although it is well settled that our courts look beyond the mere holder of title to determine ownership (see People v. Chicago Title & Trust Co. (1979), 75 Ill. 2d 479, 389 N.E.2d 540) and, therefore, an equitable owner of property may be entitled to a charitable exemption under section 19.7 of the Revenue Act (see Christian Action Ministry v. Department of Local Government Affairs (1978), 74 Ill. 2d 51, 383 N.E.2d 958), “the Council cannot be deemed the equitable owner for exemption purposes where the Council had no connection to the property during the tax period in question.” Specifically, the Department asserts that the Council made no rental payments for its use of two-thirds of the building during the tax period involved and the building was being operated by the Foundation -with a view to profit from the lease with Illinois Bell, thereby precluding application of a section 19.7 exemption. The Council counters that it is in fact the equitable owner of the property and therefore entitled to the section 19.7 exemption.

We first briefly note that the Department does not assert that the Council is not a charitable organization, nor can it. As the trial court found, “[t]he Council is a comprehensive mental health center for poor and predominantly black families on Chicago’s South Side. Its services are offered free of charge to the residents of the community. The Council operates a medical assessment service, a family systems service, an out-patient program for those with long term mental illness and a job placement program for mentally ill adults. Through its services, the Council strives to prevent or shorten hospitalization and enables clients to continue functioning as a part of the community so as to save the community money and result in better and more humanistic treatment. *** The Council likewise fulfilled all six guidelines for charitable exemption set forth in Methodist Old Peoples Home v. Korzen, 39 Ill. 2d 149 (1968). The Council 1) gives its benefits to an indefinite number of people; 2) derives no profit and has no shareholders or capital stock; 3) receives its funds mainly from public charity in the form of governmental grants and uses such funds exclusively to operate the mental health center; 4) dispenses its services to all people regardless of age, race, religion, national origin or income; 5) places no obstacles in the way of those seeking benefits; and 6) uses the property exclusively (primarily) for charitable purposes as discussed above. The Council qualifies as a charitable institution under 19.7 of the Revenue Act of 1939.”

We further observe that Southern Illinois University Foundation v. Booker (1981), 98 Ill. App. 3d 1062, 425 N.E.2d 465, is analogous to the case here relative to whether the Council, as the equitable owner of the subject property, is entitled to a property tax exemption. In Booker, the court granted a tax exemption to Southern University Foundation, which was formed solely to hold title to school housing property and to lease it to Southern Illinois University. The determinative factors relied on by the court in granting the exemption to the university as the equitable owner of the property were: (1) the close relationship between the foundation and the university, reflected in the foundation’s name and bylaws; (2) the fact that the foundation acquired title solely as a convenience with regard to long-term financing; (3) the existing identity between the foundation as the bare legal titleholder and the university as the holder of equitable title; and (4) the fact that the university controlled the property and received benefits from it. In the instant case, those factors are present, as we previously discussed in concluding that the Foundation is merely the Council’s alter ego, i.e., the similarity of the Foundation’s and Council’s names; the fact that the Foundation was created solely to hold title to the Council’s property and collect the income therefrom and surrender it to the Council, less expenses, for its use to repay the mortgage on the subject property; the fact that the Council enjoyed the right to the benefits of the property; the identity which exists between the Foundation as the bare legal titleholder and the Council as the holder of equitable title as they are composed of many of the same board members and the Foundation’s board members are subject to the will of the Council; and the fact that checks written by the Foundation are signed by the president and treasurer of the Council. Accordingly, there is no question that the Council, as the equitable owner of the property, is entitled to the property tax exemption if it was using the property for its charitable purposes.

We have now reached the Department’s argument that notwithstanding the fact that the Council is a charitable organization, it was not using the property for charitable purposes because it was not paying rent to the Foundation and the building was being used with a view to profit from the Illinois Bell lease. The Department’s argument must fall in light of the simple fact that it cites to no authority, and we know of none, which makes rental payments by an equitable owner on its property a condition in obtaining a charitable tax exemption on the property. What the Department also fails to recognize is that although section 19.7 of the Revenue Act (Ill. Rev. Stat. 1987, ch. 120, par. 500.7) requires that the property be used exclusively for charitable purposes, the word exclusively may be applied to the use of a portion of property for charitable purposes, which the Council was doing with two-thirds of the building by preparing it for its charitable purposes. (See Weslin Properties, Inc. v. Department of Revenue (1987), 157 Ill. App. 3d 580, 510 N.E.2d 564 (exemption allowed for property in the actual process of development and adaptation for exempt use).) We further note that the Council’s renovation activities “connected” it with the property, as did its actions in signing the real estate sale contract with Northwestern and obtaining the $100,000 down payment from the Department of Mental Health to purchase the property.

Similarly, we find the Department’s argument without merit that because the property was leased to Illinois Bell, and therefore being operated with a view to profit, no exemption on the property is appropriate. Nothing in the record indicates that a profit was being made from the Illinois Bell lease; apparently the Department merely assumed the Council/Foundation was making a profit because it was receiving income in the form of Illinois Bell’s monthly rental payment. We believe a review of the required monthly mortgage and escrow payments of the Council and the speculative expenditures for its construction staff dispels such an assumption in any event. For example, although Illinois Bell was paying $4,382 per month on its lease of the property, at nearly the same time the Council was required to pay a $5,599.16 monthly mortgage payment beginning October 1, 1986, it was required to pay an additional $4,000 per month into an escrow account, and it was incurring expenses for the work of its construction staff during the taxable period involved here. We therefore find it highly unlikely that the Council/Foundation was making any profit from the income derived from Illinois Bell’s monthly rental payments. We further observe that even if a profit were to be made, by the terms of the Council’s reimbursable grant agreement with the Department of Mental Health any profit was required to be remitted to it until the $100,000 grant was repaid. Accordingly, any profit would not technically be a profit made by the Council.

Finally, we note that the lease with Illinois Bell simply was not entered into with a view to profit. The Council/Foundation was forced to honor the lease, which had been in existence since 1955. The Council purchased the property solely to house its headquarters to extend its services to the community. No tax exemption was allowed for the portion of the building used by Illinois Bell during the taxable period involved and the fact that Illinois Bell allowed the Council to use the vacant portion of the building to begin renovation of the building while it nonetheless continued to pay its monthly rental does not change the fact that the two-thirds of the building used by the Council was being used for a charitable purpose. We believe, at most, Illinois Bell’s generosity to the Council amounts to a nonmonetary contribution to the Council's objectives, rather than a monetary profit, as asserted by the Department. In other words, the reality of the situation here is that although Illinois Bell technically was paying 100% rent on three-thirds of the property, in effect, and by choice, it was paying 100% for one-third of the building and the two parking lots by allowing two-thirds of the building to be used by the Council for its charitable purposes rent free. To deny the Council an exemption because it was not paying anyone for the privilege of pursuing its charitable purposes at an earlier date it otherwise would have been unable to do is simply unsupportable by law or common sense.

In light of the foregoing, we therefore affirm the trial court’s judgment in appeal No. 88 — 2991.

With respect to appeal No. 89 — 0427, we affirm in part, reverse in part, and remand with directions. Since the Department did not file a brief in the appeal, and its brief in appeal No. 88 — 2991 does not address any issue with specificity as to the order appealed from, we address only the issue raised by the Council. The Council concedes that it should not have received an exemption for the subject property parking lots because Illinois Bell, and not it, used the lots, which apparently was not brought to the attention of the trial court or was the result of confusion in the evidence presented. Accordingly, we reverse that portion of the order pertaining to the exemptions for the parking lots and direct that the trial court modify its order by striking that portion of the order allowing exemptions in the amount of $290.70 for the rear parking lot and $109.68 for the adjacent parking lot.

Appeal No. 88 — 2991, Affirmed.

Appeal No. 89 — 0427, Affirmed in part; reversed in part and remanded with directions.

LORENZ and PINCHAM, JJ., concur.


author: JUSTICE PINCHAM PRESIDING JUSTICE MURRAY,

text:
    RONALD C. ROBINSON et al., Plaintiffs-Appellants, v. JULIUS A. JONES et al., Defendants-Appellees.
    First District (5th Division)
    No. 1—89—0752
    Opinion filed June 30, 1989.

      MURRAY, P.J., and COCCIA, J., specially concurring.

      David A. Epstein and Karlo M. Karacic, both of Carroll, Sain & Epstein, Ltd., and Nathaniel R. Howse, Jr., both of Chicago, for appellants.
    Freddrenna Lyle, of Smith & Lyle, Larry R. Rogers, of Hayes & Power, and Channon Williams and Chester Slaughter, both of C. Slaughter & Associates, all of Chicago, for appellee John 0. Steele.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiffs, Ronald C. Robinson and Leonard Barr, appeal from an order of the circuit court of Cook County dismissing their complaint for an election contest of the February 28, 1989, special election for the office of alderman of the sixth ward of Chicago and for an injunction because their complaint was not filed within the five-day statute of limitations set forth in section 21 — 27 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 21 — 27). The issues presented for review are whether this Chicago sixth ward aldermanic election contest was governed by section 21 — 27 of the Illinois Municipal Code (Municipal Code), or section 23 — 20 of the Illinois Election Code (Election Code) (Ill. Rev. Stat. 1987, ch. 46, par. 23 — 20) and whether the trial court properly denied plaintiffs’ request for injunctive relief.

On February 28, 1989, the Chicago Board of Election Commissioners (Board) held a special election for the offices of mayor of the City of Chicago and alderman of the sixth ward. Plaintiff Ronald C. Robinson and defendants John 0. Steele, Roy P. Oliver and Derotha H. Rogers appeared on the ballot as candidates for the office of alderman and Julius A. Jones ran for alderman as a write-in candidate.

On March 7, 1989, the Board proclaimed the following results for the sixth ward aldermanic election:

‘Alderman 6th Ward Count Percent'

Roy P. Oliver 1,523 6.55

Ronald C. Robinson 11,641 50.10

Derotha H. Rogers 2,249 9.68

John 0. Steele 7,824 33.67

Write-Ins

*Percentage does not include write-in votes.

Votes

Julius A. Jones 88”

Because none of the candidates received a majority of the total votes cast in the aldermanic election, the Board scheduled a supplementary (run-off) election for April 4, 1989, for alderman between plaintiff Robinson and defendant Steele, who, respectively, had received the highest and second highest number of votes.

On March 16, 1989, plaintiffs filed the instant complaint for election contest and injunction. Plaintiffs alleged, inter alia, that 82 of the 88 write-in votes cast for Julius A. Jones were invalid because the election judges had failed to sequentially number the write-in ballot cards as required by the handbook prepared and issued by the Board for election judges. By reason of these alleged invalid votes, plaintiffs asked the court to declare that plaintiff Robinson had received a majority of the valid votes cast in the aldermanic election and that plaintiff Robinson had been duly elected alderman of the sixth ward and to enjoin the Board from conducting the supplementary April 4, 1989, run-off aldermanic election.

On March 17, 1989, defendant Steele filed a motion to dismiss plaintiffs’ complaint on the ground that it was insufficient at law for the reason that the sequential numbering provision, relied upon by plaintiffs to contest the election, was merely an instruction to facilitate the administrative tasks of the election process and was neither a mandatory nor directory statutory requirement and that the complaint failed to allege that the failure of the election judges to sequentially number the write-in ballot cards improperly affected the results of the election or would cause a change in the election results.

The trial court, sua sponte, raised the issue as to whether it had jurisdiction to hear plaintiffs’ complaint because the complaint had not been filed within five days of the election as required by section 21— 27 of the Municipal Code. After hearing argument by counsel and reviewing the pleadings and memoranda, the trial court entered an order dismissing plaintiffs’ complaint for election contest and injunction upon its findings that (1) the right to contest an election was statutory; (2) there must be strict compliance with the statutory procedure; (3) pursuant to section 21 — 27 of the Municipal Code a complaint to contest an aldermanic election must be filed within five days of the election; and (4) plaintiffs’ complaint was untimely and the court was without jurisdiction to hear it because it was filed 16 days after the election. Plaintiffs then brought this appeal.

We must determine whether this election contest was governed by section 21 — 27 of the Municipal Code, or section 23 — 20 of the Election Code, as plaintiffs contend. The right to contest an election did not exist at common law and was created by statute. (In re Contest of Election for Governor (1983), 93 Ill. 2d 463, 474, 444 N.E.2d 170.) Therefore, questions of jurisdiction and procedure are strictly governed by specific statutory provisions. (Young v. Washington (1984), 127 Ill. App. 3d 1094, 1097, 470 N.E.2d 14.) It is well settled that in construing statutory provisions, this court is required to determine the intent of the legislature and to give it effect. City of Springfield v. Board of Election Commissioners (1985), 105 Ill. 2d 336, 340, 473 N.E.2d 1313.

An election for the office of alderman in the City of Chicago is governed by article 21 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 21 — 24). Section 21 — 27 of article 21 expressly sets forth procedures to contest the results of an aldermanic election. In relevant part, section 21 — 27 appears below:

“Any candidate whose name appears on the ballots used in any ward of the city at any election for alderman, may contest the election of the candidate who appears to be elected from such ward on the face of the returns, or may contest the right of the candidates who appear to have received the highest and second highest number of votes to places on the official ballot at any supplementary election, by filing within 5 days after such election with the Clerk of the Circuit Court of Cook County, a complaint in writing, verified by the candidate making the contest, setting forth the grounds of the contest.” Ill. Rev. Stat. 1987, ch. 24, par. 21 — 27.

Sections 23 — 19 and 23 — 20 of the Election Code provide:

“The election of any person declared elected to any office other than Governor, Lieutenant-Governor, Secretary of State, State Comptroller, Treasurer, Attorney General, Senator or Representative, may be contested by any elector of the state, judicial division, district, county, town or precinct in and for which the person is declared elected.” Ill. Rev. Stat. 1987, ch. 46, par. 23 — 19.
“The person desiring to contest such election shall, within thirty (30) days after the person whose election is contested is declared elected, file with the clerk of the proper court a petition, in writing, setting forth the points on which he will contest the election, which petition shall be verified by affidavit in the same manner as complaints in other civil cases may be verified.” Ill. Rev. Stat. 1987, ch. 46, par. 23 — 20.

Plaintiffs assert that this election contest was governed by section 23 — 20 of the Election Code and that the trial court acted improperly when it relied upon previously set forth section 21 — 27 of the Municipal Code in dismissing plaintiffs’ complaint because it was not filed within the five days after the election. Plaintiffs further argue that there is a conflict between the aforementioned provisions of the Municipal Code and the Election Code and that section 23 — 20 of the Election Code must prevail because the legislature enacted it “to supersede the 5-day rule” provided in section 21 — 27 of the Municipal Code.

It is well settled that where several constructions may be placed upon a statute, the court should select that construction which leads to a logical result and the court should avoid a construction which the legislature could not have contemplated. (Orbach v. Axelrod (1981), 100 Ill. App. 3d 973, 978, 427 N.E.2d 399.) In interpreting statutes, courts are required to presume that the legislature intended its enactments to be consistent and harmonious. Thus, where statutory provisions are in pari materia, the court must construe them with reference to each other so that each may be construed in harmony with the other. United Citizens v. Coalition to Let the People Decide in 1989 (1988), 125 Ill. 2d 332, 338-39, 531 N.E.2d 802.

As we have heretofore indicated, plaintiffs contest the results of the February 28, 1989, Chicago aldermanic election. Article 21 of the Municipal Code expressly governs elections for aldermen in the City of Chicago. Section 21 — 27 specifically provides for the circumstances herein, where none of the candidates for the office of aider-man has received a majority of the votes cast and a supplementary election between candidates receiving the “highest and second highest number of votes” has been scheduled by the Board. This provision addresses certain specific and extraordinary circumstances which have not been provided for in the Election Code.

Section 23 — 20 of the Election Code must be read in conjunction with section 23 — 19. Both sections expressly authorize any elector to contest an election of “any person declared elected.” (Emphasis added.) (Likens v. Baas (1985), 133 Ill. App. 3d 42, 50, 478 N.E.2d 507; Jordan v. Kusper (1987), 164 Ill. App. 3d 990, 994, 518 N.E.2d 432.) Section 21 — 27 of the Municipal Code is expressly limited to Chicago “aldermanic candidates who wish to contest the election of the candidate who appears to be elected from such ward on the face of the returns” or the “right of the candidates who appear to have received the highest and second highest number of votes to places on the official ballot at any supplementary election.” (Ill. Rev. Stat. 1987, ch. 24, par. 21 — 27.) In the instant case, none of the candidates in the special election received a majority of the votes cast for alderman. The election results disclosed that plaintiff Robinson and defendant Steele, respectively, received the highest and second highest number of votes cast. None of the aldermanic candidates was “declared elected.” In order for section 23 — 29 to apply to an election contest, a candidate must first be “declared elected.” However, even if any of the aldermanic candidates had been “declared elected” in the instant matter, section 23 — 20 would still be inapplicable because article 21 of the Municipal Code governs Chicago aldermanic election contests.

Further, our construction is consistent with the purpose of the Election Code in that it provides uniformity in the election process and stability in government. (See United Citizens v. Coalition to Let the People Decide in 1989 (1988), 125 Ill. 2d 332, 531 N.E.2d 802.) Under the circumstances, we believe the trial court properly dismissed plaintiffs’ complaint for failure to file within five days of the election as required by section 21 — 27 of the Municipal Code.

As to plaintiffs’ contention that the trial court erroneously denied their request to enjoin the supplemental election, we note that courts have no jurisdiction to enjoin the holding of an election except where it is necessary to prevent a waste of public funds by conducting an election under an unconstitutional election statute or an election called in violation of the constitution. (Jordan v. Officer (1987), 155 Ill. App. 3d 874, 877, 508 N.E.2d 1077.) Our review of the record has not led us to conclude that either of the aforementioned exceptions exist or that plaintiffs have alleged their existence. Further, plaintiffs have an adequate remedy at law, i.e., an election contest as expressly provided in section 21 — 27 of the Municipal Code. (Torres v. Board of Election Commissioners (1986), 142 Ill. App. 3d 955, 957, 492 N.E.2d 539.) Therefore, we believe that plaintiffs’ contention is without merit.

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

Affirmed.

PRESIDING JUSTICE MURRAY,

specially concurring:

I concur completely with the majority’s opinion. For what it is worth, I would like to point out a defect the case discloses in our election laws that needs legislative correction. As the majority opinion indicates, the provisions of the Municipal Code relating to elections limit the right (if any) of a candidate to file a contest to a Chicago aldermanic election for a period of five days after the election. In this case in the February 28, 1989, election, Ronald Robinson, the incumbent, received 11,641 votes to 7,824 votes for John 0. Steele, the eventual successful candidate. The proclamation of the results was made on March 7, 1989, seven days after the election. Yet, the election law, as indicated by the court’s opinion, permitted a judicial review of the Election Board’s proclamation only if Robinson had filed his petition within five days of the election, a point not even raised by the eventual successful candidate in the first judicial proceedings of this case. The effect of the application of the law as written is to place into an election board the power to foreclose the contest of an election by merely delaying the proclamation of the result until the time has passed to contest the same. The legislation as it now stands should be amended to permit a candidate or voter to test the efficacy of a Chicago aldermanic election upon the filing of a petition to contest the same five days after the proclamation by the Board of the results rather than the election itself.

JUSTICE COCCIA, specially concurring:

I also concur completely with the majority opinion.

I also wish to join with Justice Murray and therefore concur with his specially concurring opinion regarding the need for legislative correction.

Accordingly, I file this as my specially concurring opinion.

       Although Oliver, Rogers and Jones were named as party defendants in the complaint, they are not parties to this appeal.