author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene “Pepper” Smith, Defendant-Appellant.
    (No. 73-29;
    Fifth District
    August 9, 1974.

      Murry A. Marks, of Clayton, Missouri, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered by the circuit court of Madison County on a jury verdict against the defendant, Eugene “Pepper” Smith, for the offense of murder and the imposition of a sentence of 14 to 42 years in the penitentiary.

On November 12, 1969, an attempted armed robbery of Louis Knowles took place in the Ridge Package Liquor Store in Alton. The attempt resulted in an exchange of gunfire between Louis Knowles and the perpetrator of the attempted armed robbery. In the course of the exchange of gunfire Louis Knowles was mortally wounded. He died 2Vz weeks thereafter.

The case against the defendant is based in part upon: (1) the “dying declarations” of the victim, Louis Knowles, made to Magdaline Knowles, wife of the victim; (2) the testimony of Detective John Parker and Captain John Light of the Alton Police Department as relating to “dying declarations” of the victim made at the hospital; (3) the testimony of various physicians as to the extent of the victim’s injuries, the cause of death, and the removal of one of the “slugs” from the body of the victim; (4) admissions of the defendant made to Edward Smart while both were inmates in the Madison County Jail prior to defendant’s indictment; (5) the testimony of Alma Kinsella who identified the defendant as the person she saw enter the Ridge Package Liquor Store shortly before the offense; (6) the testimony of Susan Komar, the supervising criminalist at the Illinois Bureau of Identification; (7) the introduction into evidence of a chrome-plated .32-caliber pistol found by Russell Brown, one glass jar containing a slug allegedly removed from the victim, a plastic envelope containing three spent slugs from a .32-caliber pistol removed by the police- from behind the counter of the Ridge Package Liquor Store immediately after the shooting; and (8) the testimony of patrolman Fleming who picked up the gun found by RusseU Brown and Lieutenant Sandidge who retrieved the slug, allegedly removed from the victim, from the hospital.

The defendant filed: a pre-trial motion to suppress dying declarations; a pre-trial motion to suppress any and aU statements, confessions, or admissions of the defendant; and a pre-trial motion to exclude the eyewitness identification of Alma Kinsella. In an order entered March 24, 1971, the motion to suppress the eyewitness identification of Alma Kin-sella was denied; the motion to suppress the statement of Edward Smart was granted; the motion to suppress dying decarations was denied with respect to evidence relative to any dying declaration made by the victim on November 29, 1969, to the police officers, John Light and John Parker, and Mrs. Geraldine Hill, and was granted with respect to any dying declarations made to Magdaline Knowles, and was granted with respect to the witness Lula Shake “save for the language of Lula Shake, to wit; ‘I identified the son of a bitch, Luly.’ ” The order of March 24, 1971, concluded by stating that:

“It is the further finding of this Court that the deceased was at the time of making statements to the police officers, John Light and John Parker and the other witness, Geraldine Hill, as well as the witness, Lula Shake, beyond a reasonable doubt, of the opinion that he was about to die.
It is hereby ordered, adjudged and decreed that the Court does find as a matter of law and beyond a reasonable doubt relative to those statements of the deceased, Louis Knowles, which have heretofore been admitted into evidence that the same were made while the decedent was “in extremis” and in contemplation of his impending death and finds beyond a reasonable doubt that the same were dying declarations within the meaning of the law.”

Subsequently, the court, on March 26, 1971, revoked its March 24, 1971, order, with respect to granting of the motion to suppress the testimony of Magdaline Knowles.

The State appealed the court’s ruling with respect to the suppression of the statement made by the defendant to Edward Smart while both were incarcerated in the Madison County Jail. This court held in People v. Smith, 5 Ill.App.3d 642, 283 N.E.2d 736, that “The statements made by the defendant to Smith were not post-indictment statements of the accused to a government agent,” and since there is no case which “prohibits the use of volunteered incriminatory statements which are gathered because of the cooperativeness of an informer in whom a prisoner has misplaced his confidence,” the statements made to Edward Smart by the defendant were admissible as admissions. Accordingly, this court reversed this portion of the trial court’s order and remanded for further proceedings not inconsistent with its opinion. Thereafter a jury trial was held and the aforementioned evidence was presented.

In this appeal the defendant contends: first, that the trial court erred in overruling appellant’s objections to “the lack of a proper chain of custody in regard to certain State’s exhibits and erred in admitting other evidence despite counsel’s failure to object”; secondly, that the trial court erred “in allowing into evidence those purported dying declarations previously excluded by Judge Kinney”; thirdly that the trial court erred “in admitting into evidence, and trial counsel erred in failing to object, to all statements which were admitted into evidence as purported dying declarations” and thereby defendant “was deprived of a fair and impartial trial and due process of law”; fourthly, that the trial court erred in admitting the eye-witness identification of the defendant by Alma Kin-sella, that such violated the sixth and fourteenth amendments to the United States Constitution, and that the defendant’s being placed in a lineup without counsel deprived him of due process of law; fifthly, that the court erred in overruling defendant’s motion for a directed verdict of acquittal at the close of all the evidence; sixthly, that the State failed to sustain their burden of proving the defendant guilty “beyond a reasonable doubt relative to” defendant’s “affirmative defense of alibi”; and lastly, that the trial court erred in “excluding or striking” the testimony of defense witnesses Edward Welch and Robert Troné.

Here defendant contends that certain evidence heard without objection was so prejudicial as to require reversal. It has been frequently stated that failure to object to the admission of evidence operates as a waiver of objections and precludes consideration of the question on appeal. (See, e.g., People v. Scott, 52 Ill.2d 432, 288 N.E.2d 478.) Notwithstanding the fact that no objection was made to inadmissible testimony, appellate courts will consider errors which are so prejudicial as to clearly deny defendant a fair trial (People v. Mays, 48 Ill.2d 164, 269 N.E.2d 281; People v. Hanson, 10 Ill.App.3d 593, 295 N.E.2d 120), or where, by reason of counsel’s failure to object, the defendant contends that his appointed counsel was incompetent (People v. Oden, 20 Ill.2d 470, 170 N.E.2d 582). Although the defendant contends that it was “error” for his counsel not to object to the admission of certain evidence, he does not argue that his counsel was incompetent and, therefore, we need only determine whether the evidence was erroneously admitted and, if so, was so prejudicial as to clearly deny defendant a fair trial under the “plain error” doctrine provided in Supreme Court Rule 615. (Ill. Rev. Stat. 1971, ch. 110A, par. 615.) In making this determination, if it appears that the result would not have been different had the errors complained of not occurred, the judgment of conviction will not be set aside. People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Anderson, 48 Ill.2d 488, 272 N.E.2d 18; People v. Tribbett, 41 Ill.2d 267, 242 N.E.2d 249; People v. Douglas, 130 Ill.App.2d 938, 267 N.E.2d 43.

Defendant’s first contention is based in part on the trial court’s failure to sustain defense counsel’s objection to State’s Exhibit No. 9, a small glass jar containing a .32-caliber slug allegedly removed from the body of Louis Knowles. The basis for said objection was a lack of a proper chain of custody. Foundation for introduction of an object may be laid either through its identification by a witness or through establishment of a chain of possession (People v. Greer, 28 Ill.2d 107, 190 N.E.2d 742); both, identification and establishment of a chain of possession, are not, however, required as such a requirement would pose an unnecessary burden and would not assure a fairer trial of the accused (People v. Patterson, 2 Ill.App.3d 902, 274 N.E.2d 467, supplemented, 2 Ill.App.3d 902, 276 N.E.2d 354). In the instant case Dr. Edward V. Ferguson testified that after a slug was removed from the body of Louis Knowles, “that it was given to the pathologist at the hospital.” After which the following colloquy occurred between Dr. Ferguson and the State’s Attorney:

“Q. And who might that be?
A. Dr. Stromsdorfer.
Q. And was that given to him by you or someone else?
A. That was given to him by the nurse in charge of the operating room.
J. All Right. Did she do that in your presence?
A. Well, she put the bullet into a special container and was putting identifying names and so forth on it, and I did not see it after it left the operating room.”

The next person to testify with respect to this exhibit was Dr. Stroms-dorfer. He testified that the small glass jar, which was a part of State’s Exhibit No. 9, was similar to those kept at St. Joseph’s Hospital. He further noted that the jar was ‘labelled with a label, with the name of Louis Knowles on it, bullet, room 400, which is the same number as the intensive care unit.” Although he could not ascribe the handwriting on the label to anyone “specific at the hospital” he testified that “it resembles the handwriting” on other labels on specimen containers at the hospital. He concluded by stating that the slug shown him in court was similar to the one he had previously examined. Lieutenant Sandidge then testified that he received the slug in the glass jar from Mrs. Latham, an employee of Dr. Stromsdorfer. When shown State’s Exhibit No. 9, Lieutenant Sandidge stated: “This is the container that she gave me when I went to the hospital. It has my initials on the evidence seal.” He then stated that he had scratched his initials, D. E. S., into the base of die slug with a metal Scribe. He identified the scratching on the bottom of the slug contained in State’s Exhibit No. 9, as the “D. E. S.” he had previously inscribed. In view of the positive identification of Lieutenant Sandidge We need not concern ourselves with the chain of possession after this point. Thus the only “break,” if any, in the chain of possession occurred between the time that Dr. Ferguson last saw the jar containing the slug and when Dr. Stromsdorfer received it for examination.

The rule that an object must be in substantially the same condition as when the crime was committed does not require the State to exclude all possibility that the article may have been tampered with, provided the court is satisfied that in reasonable probability it has not been changed in any important aspect. (People v. Wrona, 7 Ill.App.3d 1, 286 N.E.2d 370.) And, in the absence of any indication or suggestion of substitution, alteration or other form of tampering, we are of the opinion that the protective and identification procedures employed within the hospital were sufficient to make admissible State’s Exhibit No. 9. People v. Pittman, 28 Ill.2d 100, 190 N.E.2d 802; People v. Harper, 26 Ill.2d 85, 185 N.E.2d 865; People v. Wrona, 7 Ill.App.3d 1, 286 N.E.2d 370; People v. Appleton, 1 Ill.App.3d 9, 272 N.E.2d 397.

Defendant next argues that “the failure of appointed counsel to object to State’s Exhibits 10, 11, 12, and 13 constitutes plain error within the purview and meaning of Rule 615.” The defendant does not specify on what basis this objection should have been made, therefore, we can only infer, from the discussion in defendant’s brief immediately preceding this allegation, that basis was a lack of a proper chain of custody. Although there may be some dispute with respect to the chain of possession of State’s Exhibit 10, three spent slugs from a .32-caliber pistol removed from behind the counter of the Ridge Package Liquor Store, and State’s Exhibit 12, a chrome plated pistol found by Russell Brown, both were adequately identified or marked prior to any alleged “break” in the chain of possession. The three spent slugs were marked by detective Carl Logan with his initials, “C. L.”, before they were shipped to the crime laboratory. The .32-caliber pistol can be clearly identified by its serial number, 275783, which was recorded by Patrolman Fleming before it was sent to the crime laboratory. The foregoing procedures vitiated the necessity of establishing a chain of possession with respect to State’s Exhibits No. 10 and 12. (See People v. Patterson, 2 Ill.App.3d 902, 272 N.E.2d 467, supplemented, 2 Ill.App.3d 902, 276 N.E.2d 354.) State’s Exhibit No. 11, shell casings taken from State’s Exhibit No. 12, after it was recovered, and State’s Exhibit No. 13, the box and wrappings in which State’s Exhibits Nos. 9, 10? 11, and 12 were sent to the crime laboratory, were not of an incriminating nature and did not so prejudice the defendant as to constitute “plain error.”

The defendant finally argues that all of the State’s Exhibits Nos. 9, 10, 11, 12, and 13 were irrelevant and their admission was “erroneous and a non sequitur.” We find no merit in this argument since those exhibits which had any prejudicial tendency, State’s Exhibits Nos. 10 and 12, were not irrelevant and the remaining exhibits even if irrelevant were not so prejudicial as to constitute “plain error.”

Due to the correlation of defendant’s second and third contention they will be considered at the same time. The defendant’s second contention is that the trial court erred “in allowing into evidence those purported dying declarations previously excluded by Judge Kinney.” The defendant’s third contention is that the trial court erred “in admitting into evidence, and trial counsel erred in failing to object, to all statements which were admitted into evidence as purported dying declarations” and thereby the defendant “was deprived of a fair and impartial trial and due process of law.” Before a court may admit a statement as a dying declaration it must be satisfied beyond a reasonable doubt that the alleged dying declaration was made while the declarant believed he was beyond hope of recovery and near death, i.e., “in extremis.” (People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280.) That the judge used this standard in his determination is evident from the wording of the order previously set forth. In 5 Wigmore on Evidence, § 1442, at 235, 238 (3d ed. 1940), it is stated:

“In ascertaining this consciousness of approaching death, recourse should naturally be had to all the attending circumstances. 066 The circumstances of each case will show whether the requisite consciousness existed; and it is poor policy to disturb the trial judge upon the meaning of these circumstances.”

A similar view was espoused by our Supreme Court in People v. Tilley, 406 Ill. 398, 94 N.E.2d 328. Therein the court stated that:

“The questions which go to the credibility of * * * witnesses and the weight to be given their testimony, were matters for the court on the preliminary examination and later for the jurors when the witnesses testified before them. In such function this court will not substitute its judgment for that of the court or jury.” (406 Ill. at 407.)

We find no reason to disturb the order with respect to statements of the deceased which the court determined to be dying declarations.

Since the defense counsel did not object to certain objective evidence of circumstances attending the dying declarations and subjective opinions of the witnesses allegedly excluded by the modified order, our inquiry is limited to determining if the erroneously admitted evidence so prejudiced the defendant that the result would have been otherwise had such evidence been excluded. At the trial various witnesses testified as to the appearance, and their impression of the condition, of the decedent, Louis Knowles. Although such testimony was properly excluded under the order, we cannot say that the admission of such evidence was so prejudicial as to require reversal, since from competent evidence it was determined that the victim was “in extremis.”

The defendant’s fourth contention is that the trial court erred in admitting the eye-witness identification of the defendant by Alma Kinsella, that such violated the sixth and fourteenth amendments to the United States Constitution, and that the defendant’s being placed in a lineup without counsel deprived him of due process of law. In Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, the United States Supreme Court held that a police station showup that took place after the defendant’s arrest but before he had been indicted or otherwise formally charged was not a “criminal prosecution” at which the defendant had a constitutional right to be represented by counsel. Similarly, Illinois courts have held that the failure to supply a defendant with counsel at a pre-indictment lineup does not vitiate his conviction. (People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288; People v. Pierce, 53 Ill.2d 130, 290 N.E.2d 256; People v. Patrick, 53 Ill.2d 201, 290 N.E.2d 227; People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358.) In the instant case the lineup in which defendant participated without counsel was prior to his being indicted and the only evidence in the record directly relating to this subject was the testimony of Detective John Parker who stated that the defendant agreed to waive his right to have an attorney present at the lineup and signed a written waiver to that effect. Under such circumstances we find no merit in defendant’s claim that he was denied assistance of counsel at a crucial stage in the proceedings.

After reviewing the testimony recounting the procedure used at the lineup and considering the totality of the surrounding circumstances, we agree with the denial of defendant’s motion to suppress the eye-witness identification of the defendant by Alma Kinsella and find that the confrontation was not unnecessarily suggestive or conducive to irreparable mistaken identification. (People v. Lee, 44 Ill.2d 161, 254 N.E.2d 469; People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358.) The defendant has failed to sustain his burden of proving that the lineup was conducted in an unnecessarily suggestive manner. (People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1; People v. Dailey, 51 Ill.2d 239, 282 N.E.2d 129.) Whatever equivocation of the identifying witness there may have been affected her credibility in the eyes of the jury not the admissibility of her identification of the defendant. People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631; People v. Oswald, 26 Ill.2d 567, 187 N.E.2d 685; People v. Pelkola, 19 Ill.2d 156, 166 N.E.2d 54; People v. Washington, 121 Ill.App.2d 174, 257 N.E.2d 190.

The main thrust of defendant’s fifth and sixth contention is the argument that the State failed to sustain its burden of proof. Defendant’s sixth contention alleges that the State, in particular, failed to sustain this burden with respect to defendant’s “affirmative defense of alibi.” In support of this contention the defendant cites the abstracted opinion of People v. Morris, 90 Ill.App.2d 208, 234 N.E.2d 52, and quotes the following language therefrom:

‘If the issue of alibi is raised, it is incumbent upon the State to prove the Defendant guilty beyond a reasonable doubt as to that particular issue as weU as to all other elements of the crime charged.”

We have no quarrel with this pronouncement, in fact, a defendant need not prove his defense of alibi beyond a reasonable doubt to entitle him to acquittal; it is sufficient if the defense, on that point, raises a reasonable doubt of his presence at the time and place of the offense charged. (People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1.) However, the trier of fact is not obligated to believe the alibi testimony over positive identification of the accused; even though given by a greater number of witnesses. (People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462; People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378; People v. Polk, 10 Ill.App.3d 408, 294 N.E.2d 113.) There is ample testimony in the record to place the defendant at the Ridge Package Liquor Store at the time of the offense charged. We find the language of our supreme court in People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462, particularly appropriate. That court, after stating that there was no obligation to believe alibi testimony over positive identification of the accused, went on to state that:

“The trier of fact here was in a superior position to observe the demeanor of these witnesses during examination and to consider their obviously strong interest in exonerating the defendant. We shall not disturb its findings in that regard.” (54 Ill.2d at 149.)

Inasmuch as there was substantial competent evidence to sustain the jury’s finding of guilty, we likewise find no merit in defendant’s fifth contention, that he was entitled to a directed verdict of acquittal at the close of all the evidence.

The defendant’s final contention is that the trial court erred in “excluding or striking” the testimony of defense witnesses Edward Welch and Robert Troné. The testimony of these witnesses related to a specific act on the part of Edward Smart, a State’s witness, which was proffered by the defense in an attempt to impeach Smart. It is permissible to show that a witness in a criminal case has a bad reputation for truth and veracity (People v. Nash, 36 Ill.2d 275, 222 N.E.2d 473, cert. denied, 389 U.S. 906); however, it is not permissible to reflect on a witness’s credibility by establishing that on a former occasion he lied about a totally unrelated matter. Fugate v. Sears, Roebuck & Co., 12 Ill.App.3d 656, 299 N.E.2d 108; Rose v. B. L. Cartage Co., 110 Ill.App.2d 260, 249 N.E.2d 199.

A reading of the record discloses that while defendant was not given a perfect trial, he was given a fair trial. For the reasons we have set forth we affirm the judgment of the circuit court of Madison County.

Judgment affirmed.

G. MORAN, P. J., and CREES, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CARTER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Troyan, Defendant-Appellant.
    (No. 73-206;
    Fifth District
    August 14, 1974.

      Robert E. Farrell, of Mt. Vernon, and Allen L. Wiederer, of Chicago, both of State Appellate Defender’s Office, for appellant.
    No brief for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant appeals a sentence of 5 to 7 years to the Department of Corrections on a plea of guilty to armed robbery and attempted murder. The plea was negotiated and the prosecution dismissed the charge of unlawful use of firearms.

The appeal of the defendant is based on alleged violation of Supreme Court Rule 402 (Ill. Rev. Stat., ch. 110A, sec. 402).

After emptying the cash register at the filling station, the defendant drove away. A state trooper sighted the defendant driving on the highway, and there was an exchange of gunfire by the defendant with the state trooper and another police officer. Some hours later the defendant was found in a barn in the area suffering from a flesh wound. In his possion was ninety-three dollars and eighty-three cents ($93.83), the amount of money missing from the filling station.

The record of the trial proceedings indicates that the trial judge never did advise the defendant of the minimum and maximum sentence possible on his plea of guilty. Where the record is devoid of any such admonition, it cannot be said that the defendant entered a plea of guilty knowingly and intelligently as required by Boykin v. State of Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. Such a failure of this admonition requires a reversal and a remand of the case. If, however, the record does indicate that the defendant was otherwise aware of the minimum and maximum sentence possible under his plea, this court has permitted such proceedings as a substantial compliance. However, there are no statements in the record in this case from which it can be reasonably inferred that the defendant was aware at any time of the minimum and maximum sentence possible under his plea. The fact that this was a negotiated plea does not remove the case from the Supreme Court Rule 402(a)(2) requirement. People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548.

The defendant’s second contention is that the trial court did not sufficiently inform him of the nature of the charge in violation of Supreme Court Rule 402(a)(1) (Ill. Rev. Stat, ch. 110A, sec. 402). As the defendant points out, there is nothing in the record to indicate that he was personally admonished in open court as to the nature of the charge as required by Rule 402(a)(1). All the trial judge did was name the charges and ask the defendant if he understood those charges. This court has previously held that merely telling the defendant the charge by name or giving him a copy of the indictment is not necessarily compliance with Rule 402(a)(1). This court in People v. Ingeneri, 7 Ill.App.3d 809, 811, 288 N.E.2d 550, said:

“Since a guilty plea is an ‘admission of all the elements of a formal criminal charge’ and ‘cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts," McCarthy v. United States, 394 U.S. 459, we believe the trial court must inform the defendant of the essential elements of the crime of which he is charged.”

This does not mean that the court itself must mouth the words explaining the nature of the charge. In a recent case, People v. Billops, 16 Ill.App.3d 892, 307 N.E.2d 206, this court addressed itself to the question of whether a recitation of the factual basis may be sufficient to inform him of the nature of the charge. In Billops, cited by the defendant, the defendant pled guilty to robbery and was sentenced to 2 to 4 years in accordance with plea negotiations. Defendant was not admonished of the nature of the charge by the court. The. recitation of the factual basis also contained the essential elements for the nature of the charge. This court, however, did not accept them as interchangeable. This court felt that the failure of the trial court to personally confirm that the defendant understood the nature of the charge as so stated was not a following of the requirement that the court personally admonish the defendant.

The purpose of Rule 402(a)(1) is to make the trial court satisfy itself that the defendant understands what he is pleading guilty to. In this case there was an extensive recitation of the factual basis to which the defendant concurred; however, it was not a clear and hard-to-misunderstand restatement of the nature of the charge. There is no indication that the defendant was informed of the intent necessaiy to constitute the offense of attempted murder. In the case of People v. Davis, 6 Ill.App.3d 622, 627, 286 N.E.2d 8, the court said:

* * * conviction of attempted murder must be predicated upon specific intent to kill.”

From this it can be concluded that the defendant entered a plea of guilty to attempted murder without being aware that he had to have the specific intent to kill to be guilty. This is in direct confrontation with the Boykin rationale.

Additionally, it is evident from the record that the defendant may have been under the influence of drugs at the time of the crime. Not only might this vitiate the element of intent concerning defendant, but it also stands as a statutory defense. See Section 6 — 3 of the Criminal Code (Ill. Rev. Stat, ch. 38, par. 6 — 3), which states:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition either:

(a) Negatives the existence of a mental state which is an element of the offense; or
(b) Is involuntarily produced and deprives him of substantial capacity either to appreciate the criminality of his conduct or to conform his. conduct to the requirements of law.”

Had defendant been aware of the element of intent, instead of pleading guilty, he may have wanted to persist in this defense and may have been successful. Although a guilty plea waives all defenses, the fact that there was such a potential defense should malee the trial judge inquire more in depth into the factual basis before accepting the plea. The exchange between the court and the defendant was as follows:

“The court: Mr. Troyan, you have no memory of this, is that right?
Defendant: No, I don’t.
The court: Is there a reason you don’t know, don’t remember?
Defendant: The only thing I know, I was on drugs.
The court: Let the record show that the defendant states he was using drugs at that time.”

The court made no further investigation as to how this matter might have affected the factual basis. Since the purpose of determining the factual basis is to tie defendant’s intent and acts with those required for the offense, the trial judge did not substantially comply with Supreme Court Rule 402(c) by inquiring further as to whether defendant had the requisite intent.

Accordingly, the judgment of the Circuit Court of Fayette County is reversed and remanded with directions to' allow the defendant to plead anew.

Reversed and remanded with directions.

G. MORAN, P. J„ and EBERSPACHER, J., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Eugene Dye, Defendant-Appellant.
    (No. 73-29;
    Second District
    August 8, 1974.

      David F. Smith and William L. Balsley, both of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    Ketth Baldwin, Plaintiff-Appellee, v. Carol Baldwin, n/k/a Carol Davis, Defendant-Appellant.
    (No. 74-32;
    Reversed and remanded.)
    August 13, 1974.

      Joel Deutsch, of Sidney Deutsch, of Rock Island, for appellant.
    John Westensee, of Braud, Warner & NeppI, of Rock Island, for ap-pellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the Circuit Court, of Rock Island County. Defendant-appellant Carol Baldwin (now known as Carol Davis), hereinafter referred to as appellant, filed a petition for rule to show cause for the enforcement of arrearage of back child-support payments pursuant to a decree of divorce. In her petition she prayed for an order of court finding the plaintiff, Keith Baldwin, in arrears for child support in the amount of $3,790 and for a contempt of court citation against him. The plaintiff-appellee, Keith Baldwin, hereinafter referred to as appellee, filed an answer to this petition.

The trial court denied appellant’s petition for accumulated unpaid child support.

The issues presented for review are (1) whether after a divorce the court may cancel and deny past-due and accrued child-support payments granted pursuant to a decree of divorce, (2) whether the “husband” may be relieved of his obligation to pay past-due support payments for his child on the doctrines of waiver and equitable estoppel, and (3) whether the “wife” should be barred by the doctrine of laches from proceeding against her former husband for child support.

In this case the appellee, Keith Baldwin, obtained a divorce from the appellant on May 6, 1980. The decree of divorce provided among other things that the plaintiff should pay child support in the amount of $12 per week and gave custody to the appellant.

In December 14, 1973, the appellant filed a verified petition for rule to show cause stating that plaintiff had not made child-support payments as provided by the decree and that child support arrearage was in the amount of $3,790.

On December 21, 1973, the appellant argued her rule to show cause before the court pro se. The court after hearing testimony from the ap-peUant on the petition for rule to show cause both through her direct testimony and on cross examination by appellee’s attorney entered an order which discharged appellant’s rule to show cause.

As to the first issue as to whether or not the court may cancel and deny past-due child-support payments granted pursuant to a decree of divorce, it is a well settled rule in Illinois that past-due instaUments of support money are a vested right and these past-due instaUments are not subject to modification either as to amount or time of payment. Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139; Lewis v. Lewis, 120 Ill.App.2d 263, 256 N.E.2d 660; Stark v. Stark, 131 Ill.App.2d 995, 269 N.E.2d 107.

Regarding the second issue presented for review, whether the husband may be relieved of his obligation to pay past-due support payments to his chUd on the doctrines of waiver and equitable estoppel, in this case there is no evidence presented to the court of any waiver of chUd support by the appellant, nor is there any evidence that the appellee relied upon any agreement or waiver which would give rise to equitable estoppel. The law is well settled that the party claiming estoppel must have reHed upon the acts or representations of another. See Dill v. Widman, 413 Ill. 448, 109 N.E.2d 765.

The third issue, raised, to the effect that the back support payments are barred by the doctrine of laches, is not controlling in this case. In the case of Gill v. Gill, 8 Ill.App.3d 625, 290 N.E.2d 897, the court specificaUy sets out the requirement necessary in order to set up a defense of laches to back support payments. Therein the court set out a four-part test for the application of laches which included among other things injury or prejudice to the defendant in the event relief is accorded to a complainant or the suit is held not to be barred. In this case, as similar to the case of Atwater v. Atwater, 18 Ill.App.3d 202, 309 N.E.2d 632, there is no factual evidence to show prejudice or injury to the appellee as he is merely being asked to pay what he has owed for a number of years and there is no factual showing of prejudice or injury to him.

In this case there was no showing of any agreement to- waive child support, there was no showing of any refiance of the appellee on the fact that chUd support would be waived, there was no showing that there is any prejudice to the appellee by his being required to pay the back child support, and therefore there can be no modification or rejection of back child support claims by the court. If indeed child-support arrearage could be defeated merely by the passage of time, it would put a greater burden on those people awarded child support to make every effort to pursue and in some cases harass the person obligated to pay the child support in order to protect their claim, and would reward those obligated to pay child support who are able to avoid payment of the same either by mere refusal or secreting themselves from the claimant.

Due to the fact that there is no substantial evidence in the record to arrive at a figure of back child support due, we reverse the order of the trial court which denied appellant’s request for back child support and remand this cause to the trial court for a further determination of the amount of back child support due to the appellant.

Reversed and remanded with directions.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    Julian E. Cannell, Plaintiff-Appellant, v. The Medical and Surgical Clinic, S.C., Defendant-Appellee.
    (No. 74-8;
    Third District
    August 6, 1974.
    Kavanagh, Scully, Sudow, White & Frederick, of Peoria, for appellant.
    Davis, Morgan & Witherell, of Peoria, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Peoria County, allowing the motion to dismiss filed by the defendant in this case and dismissing the plaintiffs complaint.

The complaint of the plaintiff, Julian E. Cannell, alleged that a certain Steve Nelson was treated by one of the doctors associated with the defendant, The Medical and Surgical Clinic, a corporation; that Steve Nelson signed a form authorizing the plaintiff to obtain information regarding Steve Nelsons physical condition from the defendant; that this form and a request for a medical report were sent to the doctor who had treated Steve Nelson; that another doctor associated with the defendant informed the plaintiff that they would not release any medical information about their patient, Steve Nelson, without the consent of his employer; that the plaintiff then advised the latter doctor that the standards of practice governing the relationship between lawyers and physicians approved by the Peoria Bar Association and the executive council of the Peoria Medical Society required that a report be furnished promptly by the physician upon receipt of a written authorization from the patient or a party examined; and that the defendant nevertheless refused to furnish any medical information concerning the examination or treatment of Steve Nelson.

The defendant’s motion to dismiss stated that the complaint failed to present a claim upon which relief could be granted; that the plaintiff was attempting to deprive the defendant of its property without due process of law; that the records and information sought by the plaintiff were found in the private files of the defendant, and were subject to production only in a lawsuit in which the plaintifFs physical condition was in issue; that the plaintiff was the petitioner in a proceeding to recover workmen’s compensation benefits from his employer, and he could subpoena the defendant’s records for use at the workmen’s compensation hearing but had no right to prehearing discovery; and that the plaintiff had been given treatment on behalf of his employer and so the employer was a necessary party to this proceeding.

Our review of the trial court’s order of dismissal requires us to consider whether a physician has a duty to disclose medical information to a patient on request, apart from any obligation which might be imposed on him by issuance of a subpoena under section 16 of the Workmen’s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, § 138.16), or utilization of discovery procedures under section 58 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 58). It appears that there are no reported Illinois decisions which establish the existence of such a duty. However, in a fairly recent case decided outside Illinois a physician was held to have a duty to permit inspection of medical records in the absence of legal proceedings in which disclosure could be compelled.

Emmett v. Eastern Dispensary & Casualty Hospital, 396 F.2d 931 (D.C. Cir. 1967), was a suit for damages under the Survival and Wrongful Death Acts of the District of Columbia. Joseph N. Emmett had died while a patient in a hospital, and William J. Emmett, his son and the administrator of his estate, charged that the hospital and the attending physician through their negligence had caused his father’s death. The limitation period applicable to a wrongful death action was 1 year, and suit was not filed within that length of time. The son alleged, however, that he was unable to get into court within the 1-year period because of the defendant’s conduct in concealing the facts relating to his father’s death. He had made several demands for inspection of the decedent’s medical records before being appointed administrator and before commencing suit for damages, but his demands had been refused. Summary judgment for tire defendants on the wrongful death claim was reversed on appeal. It was held that both the hospital and the doctor had a duty of disclosure, that the son was a qualified recipient of information, that concealment of the facts from the son tolled the statute of limitations, and that it was not necessary for the son to secure appointment as administrator in order to defeat an erroneous claim of medical privilege.

Regarding the duty of disclosure the Court of Appeals said: “The responsibilities of physicians and hospitals to protect their patients’ medical facts from extrajudicial exposure spring from the confidential nature of the relationship. We find in the fiducial qualities of that relationship the physician’s duty to reveal to the patient that which in his best interests it is important that he should know.” (396 F.2d at 935.) Further, regarding the absence of any legal proceedings when demands for examination of records were made, the court said: “And we are unwilling to hold that one to whom a duty to disclose medical data is already owed is compelled by the rule of reasonable diligence to engage in legal proceedings to attain a loftier status.” 396 F.2d at 939.

We believe that the thoughts expressed in the Emmett case should be considered descriptive of the law in the State of Illinois. It is our opinion that the “ ‘fiducial qualities’ of the physician-patient relationship” (see also Cobbs v. Grant, 8 Cal.3d 229, 246, 104 Cal. Rptr. 505, 516, 502 P.2d 1, 12 (1972); Canterbury v. Spence, 464 F.2d 772, 782 (D.C. Cir. 1972)) require the disclosure of medical data to a patient or his agent on request, and that the patient need not “engage in legal proceedings to attain a loftier status” (396 F.2d at 939) in his quest for such information. Accordingly we find that the complaint filed in the case before us did not fail to state a claim on which relief could be granted, as the defendant maintained, and that the information sought by the plaintiff should have been produced by the defendant as requested.

Although information must be given, the physician’s records themselves need not be turned over to the patient. (See McGarry v. J. A. Mercier Co., 272 Mich. 501, 262 N.W. 296 (1935), pertaining particularly to Xrays, and In Re Culbertson’s Will, 57 Misc. 2d 391, 292 N.Y.S.2d 806 (Sur. Ct. 1968).) The prayer of the complaint to this extent asks for too much, but the prayer for relief need not shape the relief awarded. (See American National Bank & Trust v. Mar-K-Z Motors & Leasing Co., 11 Ill.App.3d 1046, 1049, 298 N.E.2d 209, 2911.) A court may grant less relief than demanded. (61 Am. Jur. 2d Pleading § 123 (1972).) In any event, excesses in the prayer do not vitiate the complaint. 61 Am. Jur. 2d Pleading § 122 (1972).

The order of the Circuit Court of Peoria County allowing the motion to dismiss and dismissing the complaint is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


author: Mr. PRESIDING JUSTICE SIMKINS Mr. JUSTICE CRAVEN

text:
    William L. Seim, Plaintiff-Appellant, v. Board of Education of Community Unit District No. 87, McLean County, Defendant-Appellee. Ernest E. Eveland, Plaintiff-Appellant, v. Board of Education of Community District No. 87, McLean County, Defendant-Appellee.
    (Nos. 12353-4 cons.;
    Fourth District
    July 31, 1974.

      Rehearing denied August 27, 1974.

      CRAVEN, J., dissenting.
    Drach, Terrell and Deffenbaugh, P.C., of Springfield, for appellants.
    Jay G. Swardenski and Roy G. Davis, of Davis, Morgan & Witherell, of Peoria, for appellee.
   Mr. PRESIDING JUSTICE SIMKINS

delivered the opinion of the court:

These cases were consolidated, the issues and facts being virtually identical and the trial court filing an identical opinion in each cause. This is an appeal from the orders dismissing with prejudice plaintiffs’ respective petitions for writs of mandamus and complaints for declaratory judgment and injunctive relief pursuant to defendant’s motions to dismiss.

The powers of school boards are enumerated in sections 10 — 22.1 to 10 — 23.9 of the School Code. Section 10 — 22.31 authorizes school boards to enter into joint agreements with other school boards to provide special educational facilities and to employ a director and other professional workers as defined in section 14 — 1.10 and to establish facilities as described in section 14 — 1.08 for types of children described in sections 14 — 1.02 to 14 — 1.07. Section 10 — 22.31 further gives the school boards the authority “[t]o designate an administrative district to act as fiscal and legal agent for the districts that are parties to such a joint agreement.” Ill. Rev. Stat. 1971, ch. 122, par. 10 — 22.31.

Section 14 — 1.10 of the School Code defines the term “professional worker,” and that term is defined to include school social workers. Section 14 — 9.01 of the School Code pertains to the qualifications of teachers, other professional personnel, and necessary workers. It provides that, a person employed to teach a program under the Special Education Article must hold a teacher’s certificate as provided by law. It goes on to state that all other professional personnel employed in any class, service, or program authorized by the Special Education Article shall hold such certificates and have such special training as the Superintendent of Public Instruction requires. Thirdly, the section authorizes a school board to employ any workers necessary to assist teachers in the special educational facilities providing they have such training as the Superintendent of Public Instruction requires. The second paragraph of the section then states that the employment of any teacher in any special education program provided for in article 14 shall be subject to the provisions of sections 24 — 11 to 24 — 16, and that any teacher employed in a special education program in which two or more districts participate shall enter upon contractual continued service in each of the participating districts subject to the provisions of sections 24 — 11 to 24 — 16. Ill. Rev. Stat. 1971, ch. 122, pars. 14 — 1.10, 14 — 9.01.

Pursuant to the statutory authority in section 10 — 22.31, 29 school districts, located in McLean, Logan, and DeWitt counties, set up a special education organization known as the Tri-County Special Education Association for handicapped children residing in the 29 districts as required by article 14 of the School Code. The defendant, District No. 87 of McLean County, was one of those 29 member districts and during the 1970-71 and 1971-72 school years served as the administrative district. The joint agreement creating the Association provided for an executive committee consisting of 14 members chosen from the 29 school districts to develop all of the policies and procedures for the Association. One member district was to be designated on a year-by-year basis by the executive committee as the administrative district to serve as “the parent district for purposes of positive legal entity required to execute the program.” Although the executive committee was to develop all of the policies and procedures for the Tri-County Special Education Association, “Final approval shall be made by the Board of Education of the Administrative District.” The agreement also provided that “The Administrative District shall perform all legal and financial functions as directed by the Executive Committee”, and “The Administrative District shall, upon the recommendation of the Executive Committee, employ the director and other staff members as directed.” On March 10, 1971, contracts were entered into by the plaintiffs and “District No. 87 acting as the Administrative District for the Tri-County Special Education Association for the position of social worker in the Tri-County District Schools # * *” for the 1971-72 school year. The contract stated that the employment, if accepted, would be subject to the rule of the executive committee of the Tri-County Association and the administrative district and was signed by the director of the Association and secretary of the board of education of the administrative district.

Plaintiffs’ contracts were to expire on June 23, 1972, and the last day of school in District No. 87 was June 9, 1972. On April 6, 1972, a special meeting of the executive committee of the Tri-County Association was held for the purpose of considering which Association employees should be rehired, and it was decided not to rehire the plaintiffs. On April 7, 1972, the president of the defendant school board sent the following notice of their termination to plaintiffs by registered mail:

“This is to advise you that the Bloomington Board of Education, School District No. 87, McLean County, as the administrative district of the Tri-County Special Education Association, is dismissing you from employment at the end of your present contract June 23, 1972. The specific reason for this action is your failure to follow direction of superintendents in your assigned area. If you would like a hearing before the Tri-County Board at which you can respond to this reason, * *

It was not until April 12, 1972, that the school board of District No. 87 met and formally approved the termination of plaintiffs’ employment.

In October, 1972, the plaintiffs filed petitions for writs of mandamus and complaints for declaratory judgment and injunctive relief, alleging that the plaintiffs were employed as full-time certified persons by the defendant school district for the school years 1970-71 and 1971-72, and were entitled to contractual continued service in that at no time prior to 60 days before June 9, 1972, which was the last day of school in District No. 87, did the defendant school board take formal action to dismiss them as certified employees. The plaintiffs sought to invoke the benefits of section 24 — 11 of the School Code providing for tenure and for the defendant to be directed to assign them positions in the defendant school district. Plaintiffs do not deny receiving registered notice at a point more than 60 days prior to June 9, 1972, but contend that the notice they received on or about April 7, 1972, did not satisfy the 60-day requirement of the statutory tenure provision because defendant school board did not formally meet and approve the termination until 5 days later.

The defendant did not file an answer to plaintiffs’ complaints, but on November 27, 1972, filed motions to dismiss and several sworn affidavits in support thereof, pursuant to section 48 of the Illinois Civil Practice Act. The motions to dismiss alleged that the plaintiffs were employed by the Tri-County Association rather than the defendant school district; that plaintiffs were social workers rather than teachers and therefore could not acquire tenure; that plaintiffs had failed to join indispensable parties to the action by failing to name the other 28 school districts which were members of the Tri-County Association, because if plaintiffs had acquired tenure with the defendant district according to section 24 — 11 of the School Code, they would also acquire tenure in every district in the Association; and that plaintiffs were estopped from complaining of any details of their termination because they had failed to avail themselves of an offered administrative hearing regarding their terminations. Defendant’s affidavits described the formation of the Tri-County Association by 29 named school districts, its purpose, and its mode of operation. The affidavits state that the Association employs a full-time staff, including social workers whose work is directed by the director of the Association and the superintendents of the member school districts in which the particular employee works. The operation of the Association is directed by the executive committee which decides whether to employ or terminate employees. It was stated that during the school year 1971-72 one plaintiff worked in nine named school districts while the other worked in six named school districts, none of which were the defendant District No. 87 of McLean County.

On June 7, 1973, the court granted defendant’s motion to dismiss along with an opinion explaining the dismissal. The trial court’s dismissal was apparently primarily based upon its finding that the notice sent by registered mail on April 7, more than 60 days before the end of the school year, was sufficient in that the plaintiffs were employed as “social workerfs]” in the “Tri-County District Schools” with such contract being entered into between the plaintiffs and the defendant acting as administrative district for the Tri-County Association. The trial court referred to the provisions of the Association agreement, concluding that social workers and other special education employees were employed by the Tri-County Association and that only the executive committee of the Association had the authority to hire or terminate such employees, with the defendant as administrative district having no discretion in the matter so that the notice given after the decision by the executive committee of the Association was valid. In addition, the trial court found that all of the participating districts of the Association were necessary parties to the plaintiffs’ action because under section 24 — 11 of the School Code, if the plaintiffs were entitled to tenure, it would be not only in the defendant District No. 87, but in every school district of the Association. The trial court did not decide whether the plaintiffs’ failure to avail themselves of an administrative hearing constituted any waiver. As to whether or not the plaintiffs were persons entitled to tenure, the trial court noted that plaintiffs were hired as social workers rather than teachers, but that their complaint alleged they were employed as “certified persons” and that they “taught” and that as part of the relief sought to be assigned to “teaching duties.” The trial court did not decide the issue, stating that other than the description of the plaintiffs as “social workers” in the contracts, the pleadings contained no basis to permit the court to determine that they would not be able to prove the status claimed.

The School Code provides that any teacher who has been employed in a district as a full-time teacher for a probationary period of two consecutive school terms shall enter upon contractual continued service (tenure) unless given written notice of dismissal by the “employing board” by registered mail at least 60 days before the end of such term. (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 11.) The plaintiffs’ contracts state that they were hired by the defendant acting as administrative district for the Tri-County Association for the position of social worker in the Tri-County District Schools. Therefore, the defendant was a party to the contract by merely taking its turn as administrative district at that time even though the plaintiffs did not work in the defendant district but in other districts belonging to the Association. The executive committee of the Association voted to terminate plaintiffs’ employment April 6, 1972, and the president of District No. 87 sent notice by registered mail to plaintiffs on April 7, 1972, both events being more than 60 days prior to the end of the school year. Plaintiffs do not deny receiving actual notice, nor do they attack the cause for their dismissal, but rather maintain that because the defendant school board did not approve the dismissal until April 12, the notice was invalid, relying on Bessler v. Board of Education, 11 Ill.App.3d 210, 296 N.E.2d 89. In Bessler, the school teacher was notified more than 60 days before the end of the school term by the personnel director of the defendant school district that she would not be reemployed to teach the foUowing year, but the school board did not meet until 2 weeks later, which was less than 60 days required by the tenure statute. The appellate court held in favor of the teacher on the grounds that a school board may not delegate its authority to hire and fire teachers, so the timely notification by the personnel director was of no effect, and held that the doctrine of ratification would be inapplicable because the statutory duty was imposed on the board to perform within the specified time and its action took place less than 60 days before the end of the school term. This case is distinguishable from Bessler in that there an agent (personnel director) acted without authority before the principal (school district) had made a determination. In the instant case, the defendant school District No. 87 was an agent of the Tri-County Association. The principal (Tri-County Association) had decided to dismiss the plaintiffs and notice of such was given 60 days prior to the end of the school term, but before the agent (the administrative school district) had performed its administrative act.

The mode of dismissing or removing teachers from their positions is a matter expressly regulated by statute which must be substantially followed if a dismissal is to be valid and effective. (Donahoo v. Board of Education, 413 Ill. 422, 109 N.E.2d 787.) In the case of teachers who have not acquired tenure by teaching for two consecutive school terms, notice of dismissal stating the specific reason therefor, given by registered mail at least 60 days before the end of the probationary period, is all that is required. The required “specific reason” mandates notice which clearly informs the teacher of the alleged deficiencies which the school board has determined warrant dismissal, and the notice enables the teacher to refute the charge. (Ill. Rev. Stat. 1971, ch. 122, par. 24 — 11.) The case law makes it clear that the notice requirements in tenure provisions of the School Code are absolute and strict — but this refers to the contents and the formal giving or sending of notice. In this case, it is not the elements of the notice which are under attack, nor the fact of actual notice or its timeliness, but rather it is the technical validity of the notice being given before the administrative school board had approved the firing of plaintiffs.

Looking at the overall concept of tenure from the perspective of both the employer and the employee, it appears the purpose is to provide a 2-year probationary period for the employee to prove himself and for the employer to evaluate the employee’s performance before being committed to the relationship of contractual continued service. In this case, the plaintiffs were initially evaluated, selected, and hired by Tri-County Association; plaintiffs worked in several school districts within the Association, but neither worked in the defendant district — defendant merely happened to be taking its turn as the administrative district at this point in time; Tri-County Association, who hired plaintiffs, utilized their services, and evaluated their performance, made the decision within the prescribed time not to renew plaintiffs’ contracts. Plaintiffs were given actual notice more than 60 days before the end of the school term in the required manner with the required information. The only defect was that the administrative school board did not pass on the matter until several days later. Plaintiffs suffered no prejudice whatsoever in that the administrative school board had no discretion to exercise in the matter. There was nothing misleading and no possibility that the administrative district would decide not to terminate, since the plaintiffs did not even work in that school district so their performance there could not be evaluated. The notification letter sent to plaintiffs said that their employment was being terminated by defendant as administrative district for the Association and specifically stated that if plaintiffs wanted to respond they could have a hearing before the “Tri-County Board”, rather than District No. 87 board.

Although plaintiffs’ complaints alleged that they were employed as full-time certified persons by the defendant and sought to be reemployed and assigned positions by the defendant school board, the employment contract indicates that plaintiffs were hired for the Association by the defendant as administrative district to work as social workers in the Tri-County Association. Furthermore, the Association Agreement discloses no discretion to be exercised by the administrative district on such matters, but rather specifically provides that the administrative district, upon the recommendation of the executive committee of the Association, shall employ persons as directed, and speaks of the administrative district being the parent district for purposes of executing the Association’s programs and decisions. The Association which hired plaintiffs, utilized their services, and evaluated their work, had made the decision not to rehire them, and notice of such decision was given and received as required by statute.

The trial court also founded the dismissal of the complaints, on the grounds that merely naming the administrative District No. 87 defendant was not sufficient because the School Code provides that if the plaintiffs acquired tenure, they would acquire tenure in each and all of the 29 districts associated with the Association. Since we have determined that the notice was valid, this issue need not be considered.

We note that by reason of the posture of this case in the trial court and in this court, we decide only the narrow question of the timeliness of the notice. We express no opinion as to the necessity of notice since the question of the application of the tenure provisions of the School Code to professional workers hired pursuant to the provisions of article 14 of the School Code (Ill. Rev. Stat. 1971, ch. 122, pars. 14 — 1.01 to 14 — 14.01) is not before us.

Affirmed.

CLARK, J., concurs.

Mr. JUSTICE CRAVEN

dissenting:

The specific statutory scheme applicable to this proceeding required that District #87 — the administrative district — give notice to the plaintiffs. This was not done. A result contrary to that reached by the majority may be said to be “undesirable” but that seems wholly irrelevant. District #87 was not a mere agent in this proceeding but was the employer by statute. Under the Bessler case, cited in the majority opinion and unsuccessfully distinguished in the principal opinion, the notice here given was untimely. I would reverse the judgment of the trial court.


author: Mr. JUSTICE SIMKINS

text:
    Paul L. Keefner, Plaintiff-Appellant, v. Super X Drugs of Illinois, Inc., Defendant-Appellee.
    (No. 12414;
    Fourth District
    August 15, 1974.

      Rehearing denied September 4, 1974.

    Edward F. Casey, of Casey & Casey, of Springfield, for appellant.
    Gillespie, Burke & Gillespie, of Springfield, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff Paul Keefner, a pharmacist and manager of a Super X drugstore in Springfield, Illinois, appeals from an order denying his motion to vacate a judgment entered against him in an action commenced to recover approximately $2700 alleged to be owed plaintiff under the bonus clause of a written employment contract for the year ending September 9, 1972. The contract provided plaintiff in relevant part:

“* * * with an opportunity to earn additional income, over and above your base salary, for achieving results which are better than reasonable expectancy * * * Your maximum potential under
this plan is one-third of your total salary paid for these periods.
# # #
In order to earn a bonus under this contract, a store manager must remain in active full-time service with the company through [September 9, 1972]. Any bonus achievement applicable to the [first six months of the] contract period wifi be forfeited if the store manager does not remain in full-time service through [September 9, 1972], The only exceptions to this are in case of death or retirement under the company retirement program, in which case an employee’s bonus payment will be prorated for the part of the contract period prior to his death or retirement. If an employee is discharged, for cause or otherwise, or leaves the company prior to the close of [the contract period] for any reason whatsoever, he shall not be entitled to any payment under this plan.” (Emphasis added.)

Plaintiff was fired 6 to 8 weeks before the end of the bonus period, and was paid through the last week of his employment plus 2 weeks vacation. In his complaint plaintiff aUeged only that defendant had breached the contract in terminating his employment without cause. There was no allegation, however, that defendant acted fraudulently or in bad faith for the sole purpose of depriving him of his bonus payment. Likewise, there was also no allegation that the forfeiture clause is a penalty or an improper liquidated damages clause.

The trial court expressly found that the evidence established that plaintiff was fired for cause. Mr. Baumgarth, the district manager of Super X Drugs, testified that in early July of 1972, he and the president of Super X, after giving advance notice, inspected plaintiff’s store and found it not to be in satisfactory condition. He further testified that an even earlier inspection had revealed that “the store was in complete shambles from the standpoint of general operation work.” He testified to disputes over plaintiff’s working on Saturdays and of plaintiff’s refusal to work on Saturdays even when expressly told to do so. It was also stated that plaintiff’s store followed check cashing procedures very loosely, and that plaintiff was allowing customers to purchase merchandise on credit contrary to company policy. Company records showed that plaintiff was dismissed for insubordination. Plaintiff stated that he did not agree that he was doing a bad job and testified that the store was in the red when he arrived but made $78,000 in 1971. He further stated that he had offered to resign after being criticized by Baumgarth, but that the next day he told Baumgarth that he would like to continue until the end of the current bonus cycle. The trial court’s determination that plaintiff was fired for cause is clearly not against the manifest weight of the evidence.

Since plaintiff was properly fired for cause before the end of the bonus period, the bonus forfeiture provisions are applicable to the plaintiff. There is absolutely no allegation in the complaint that the forfeiture provision is a penalty or an improper liquidated damages clause. Nevertheless, we see no injustice or wrong that will accrue from enforcement of the forfeiture clause in the instant case.

For the reasons stated above the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE CREBS

text:
    James C. Green, Plaintiff-Appellant, v. Shirley J. Green, Defendant-Appellee.
    (No. 73-370;
    Fifth District
    August 8, 1974.

      Cohn, Carr, Korein, Kunin and Brennan, of East St. Louis (Rex Carr, of counsel), for appellant.
    Malcolm D. Durr and James R. Heil, both of Alton, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal by the plaintiff husband from an order of the Circuit Court of Madison County awarding a judgment to the defendant wife for past-due alimony and child support. Appellant contends that equitable principles require the setting aside of such judgment because the circumstances show that his default and arrearage in payments were beyond his control. He also contends that the court’s interpretation of certain portions of the original support order was incorrect.

A full understanding of the issues necessitates a detailed summary of the background of facts and pleadings leading up to the judgment in question. Following a complaint for divorce filed by her husband, defendant wife filed a counterclaim for separate maintenance and a petition for temporary alimony and child support. Based on an agreement between the parties the court entered his own hand-written order on April 6, 1972, providing, among other things, that the husband pay to the wife as and for temporary child support and alimony the sum of $200 per week beginning April 10, 1972, and further, that he should “pay all household expenses and utility payments.”

In February 1973, the wife filed a petition for citation seeldng to hold her husband in contempt for failure to comply with said order, and requesting a judgment for the amount he was in arrears, plus attorney fees and court costs. On April 9, just prior to the hearing on the citation petition, the husband filed a petition to modify the original order, requesting a reduction in his support and alimony payments because of a drastic reduction in his income, and further asking for an interpretation of that portion of the order referring to payment of household and utility expenses. The court refused to hear the petition to modify, stating it would be set for a later time, and then proceeded with the hearing on the citation. Mrs. Green testified that her husband was in arrears $3200 in weekly payments and that he had not paid any household or utility expenses. These latter expenses she interpreted to mean mortgage payments, house and individual insurance policy premiums, repairs, utility bills, donations, vacations, books, magazines, etc., and she estimated them to be $1072 per month. Mr. Green did not testify but from his answers to interrogatories previously filed in the case it was apparent that at the time of the original order he was making $600 per week. However, within 5 days after the entry of this order his company was placed in receivership, causing him to lose not only his income but all of his assets. His counsel admitted that since plaintiff made no effort to seek a modification of the order his wife probably did have a vested right to the unpaid support money at the rate of $200 per week, but he argued that she was not entitled to household and utility expenses as that provision was intended to apply only to such expenses due at the time the order was entered and not to future expenses, and certainly not to expenses of the type enumerated by Mrs. Green. The court commented that the order relative to these expenses appeared to him to be ambiguous and that he was concerned with what it really meant. However, after a recess, the court announced from the bench that having considered all of the testimony, and the answers to the interrogatories as well, he found that the evidence supported an arrearage of $3200 in weekly payments and $10,720 in household expenses, or a total of $13,600 up to the date of filing of the petition for citation. He then stated that, “* * * the court enters judgment for defendant and against plaintiff for said amount.” In addition, the court found that the failure to pay household expenses was not wilful, but that the failure to pay the weekly amounts was wilful, and plaintiff was sentenced to serve 7 days in the county jail. Further, the clerk was directed to set a date for a hearing on plaintiffs petition to modify and also a date for a hearing of the case on its merits.

These pronouncements from the bench show up on the docket for April 9, 1973, as follows:

“Hearing held on Pet. for Citation filed on Feb. 2, 1973. Parties and attorneys present and ready. Witnesses sworn. Testimony presented. (Tape 144 — side 2) Order entered. See Order. A. Greenwood.”

The order referred to, hand-written and signed by the judge, is also dated April 9,1973, and reads as follows:

“Hearing held on Pet. for Citation filed Feb. 2, 1973, court finds:
(1) Arrearage owed by Plaintiff to Defendant as of date of Pet. for Git. Feb. 2, 1973 to be $13600.00.
(2) Judgment should be entered for Defendant against Plaintiff for $13600.
(3) Defendant’s request for Atty Fees and Costs reserved.
(4) Plaintiff in wilful contempt for failure to pay as ordered and specifically the wilfulness in paying only $100/wk. rather than 200.00/wk. as ordered.
(5) Plaintiff in technical contempt but not wilful for failure to pay the household expenses of defendant.

Wherefore it is Ordered:

A. Defendant jailed in Madison Co., Ill. Jail for 7 days as punishment for his wilful contempt.
B. Atty Fees and costs are reserved until final hearing.
C. Clerk to set Pet. to Modify and case on merits on next available setting.
(Clerk to send Copies to Attys P. Theis and M. Durr.)
Arthur L. Greenwood
Associate Circuit Judge”

In compliance with this order Mr. Green was confined to the county jail for 7 days. Then, on April 26, Mrs. Green filed another petition seeking to hold her husband in contempt again for failing to pay the ar-rearage of $13600 above mentioned.

On May 11, 1973, plaintiff husband filed the following:

1) Amended petition to modify the original support order of April 6, 1972.
2) Motion to set aside the judgment of April 9, 1973, finding him in arrears in the amount of $13600.
3) Answer to petition seeking to hold him in contempt again.
4) Amended answers to interrogatories, setting out his financial status and income.

On May 30, and continuing on July 3, 1973, the court heard evidence offered by the parties in support of defendant’s second petition for citation, and in support of plaintiff’s motion to set aside the arrearage judgment of April 9, 1973, and in support of his amended petition to modify the original support order of April 6, 1972.

On July 10, 1973, having taken the matter under advisement, the court entered its written order with directions to the clerk to mail copies to counsel. This order found that plaintiff had failed to prove that he was legally entitled to set aside the arrearage judgment of April 9, but that he did prove changed circumstances sufficient to justify a modification of the original support order. It then ordered that the arrearage judgment of April 9 remain in full force and effect; that judgment be entered against plaintiff for additional arrearage of $5036. This sum represented cash payments due at a rate of $200 per week from April 9 to July 3 and household payments due at rate of $1072 per month for 3 months, or a total of $5616 less $580 actually paid by plaintiff during that time. In addition, it ordered a modification of the original support order, and provided that henceforth plaintiff should pay $100 per month for child support and $200 per month for alimony until the further order of court. It is from this order that the present appeal has been taken.

Plaintiff argues that the trial court erred in refusing to set aside the April 9 arrearage judgment of $13600, and in entering the additional judgment of $5036 on July 10, citing the undisputed evidence of his financial inability to pay such sums. He cites several cases to the effect that an aggrieved party has a right to appeal from an order allowing temporary alimony and support, and that a court of review should reverse where the record is insufficient to prove that the financial ability and circumstances of the husband are such that he is unable to pay the amount ordered. (Dejoie v. Dejoie, 6 Ill.App.3d 381; Rabin v. Rabin, 57 Ill.App.2d 193; Micelli v. Micelli, 45 Ill.App.2d 159.) We agree with this principle but find it inapplicable here. Each of the cases cited involves a direct appeal from the order making the award, whereas in the facts before us the award went unchallenged for several months during which time the plaintiff on his own initiative either totally refused to comply or chose to pay less than ordered. This, of course, cannot be condoned, nor can plaintiff expect any redress. It is well established that past-due installments of alimony and support money become vested, and, though a court has power to modify alimony and maintenance terms as to future payments, it has no such power to adjust or change any amounts past due. (Needler v. Needler, 131 Ill.App.2d 11; Gregory v. Gregory, 52 Ill.App.2d 262.) Applying this rule to the present facts we conclude that as to past-due cash installments of alimony and support payments there can be no adjustment in the terms of the original order of April 6, 1972. By his inaction plaintiff has brought his dilemma upon himself and neither the trial court nor this court on review has any power to change or alter the amount owed however improvident his action may have been in not seeking earlier redress. Stark v. Stark, 131 Ill.App.2d 995; Slavis v. Slavis, 12 Ill.App.3d 467.

However, we do note that in its order of July 10 the trial court found that plaintiff had proved changed circumstances sufficient to justify a modification of the original support order as to future payments, and it ordered such payments reduced to $100 per month for child support and $200 per month for alimony, which order was made effective as of July 3, the day the hearing thereon was concluded. From our review of the record we agree with this reduction, but we believe the reduction should have been made effective as of April 9, the day plaintiff filed his original petition for modification and which petition had not previously been considered. As stated in Needler v. Needler, 131 Ill. App.2d 11, on a proper showing of changed conditions defendant is entitled to a modification from the date of his petition. Accordingly, we find that portion of the trial court’s order of July 10 which assessed arrearage of $5036 from April 9 to July 3 was in error, and such judgment order is hereby modified by striking therefrom such award for arrearage.

Finally, though plaintiffs notice of appeal is from the trial court’s order of July 10, he nonetheless devotes much of his argument to a challenge of the order of April 9 in which the first arrearage was assessed. He bases his right to question it on the fact that he filed a motion to vacate or modify it on May 11, and the court in its July 10 order did consider the motion, and, in effect, denied it by ordering that the arrearage judgment of April 9 remain in full force and effect. Defendant endeavors to answer this argument by calling attention to the fact that the motion was filed more than 30 days after the entry of the April 9 order. She argues, and it is the sole argument contained in her brief, that under the provisions of section 68.3 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 68.3) an order becomes final 30 days after its entry, and that the trial court therefore lost its jurisdiction, and had no authority to alter or amend such order, citing Campo v. Clark Theater, 123 Ill.App.2d 145. We agree with this rule and find that a properly entered order becomes final 30 days after its rendition and is not subject to modification by the trial court, nor, in the absence of a timely notice of appeal, is it reviewable on appeal. (In re Estate of Ireland, 132 Ill. App.2d 157.) Further, a motion to set aside cannot be considered as a petition under section 72 of the Civil Practice Act. Martin v. Masini, 90 Ill.App.2d 348.

However, we believe it pertinent to call attention to the fact that the order of April 9 does not appear to have been properly entered so as to come within the above rules. Supreme Court Rule 272 (Ill. Rev. Stat., ch. 110A, par. 272) provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

The Committee Comments state that the purpose of this rule is to remove any doubt as to the date a judgment is entered; that it applies to both law and equity; and that the distinction as to the effective dates of a judgment at law and a decree in equity is abolished. It is also stated in the supplement to historical and practice notes that this rule identifies what is not a final judgment for purposes of appeal; that in the interim between the announcement of a final judgment in which the judges requires the submission of a form of written judgment and the actual signing of the written judgment the proceedings are in a state of temporary abeyance; that the announcement of the final judgment cannot be attacked by motion, cannot be appealed from, and cannot be enforced.

A number of cases have likewise interpreted this rule. In Davidson Masonry & Restoration, Inc. v. J. L. Wroan & Sons, Inc., 2 Ill.App.3d 524, a judgment was entered on the docket on May 7 with a notation that a written order would follow. A notice of appeal was filed on June 5, but the written order was not filed until July 23, The court held that at the time notice of appeal was given there was no final appealable order, that therefore there was no basis for appellate jurisdiction and the appeal must be dismissed. In Loveless v. Loveless, 3 Ill.App.3d 967, it was held that where an order was entered on the docket on February 10 with a notation of a written order to follow and the written order was not filed until April 16, the fact that a notice of appeal was filed on March 2 did not divest the trial court of jurisdiction because at that time there was no final appealable order and the notice was ineffective. In Grissom v. Buckley-Loda Community Unit School District, 11 Ill. App.3d 55, it was held that where a final appealable order did not exist until the trial court actuaHy signed a written judgment order, the appellate court had no jurisdiction to entertain an appeal where notice of appeal was filed on same day trial court orally announced judgment. Also, it has been held that a written judgment order cannot be entered nunc pro tunc to relate back to the time of the docket entry. People ex rel. Henderson v. Redfern, 104 Ill.App.2d 132.

From the record here it clearly appears that on April 9, the court announced its judgment from the bench and ordered plaintiff to pay $13600 in arrearage. Also, the docket entry clearly refers to a written order, so that under Rule 272 the written order is controlling. The written order was also filed on April 9, but contrary to the courts oral announcement, and for reasons unknown, this written order makes only a recital or finding that a judgment “should be” entered against plaintiff for $13,600. It does not order such a judgment and its failure to do so is made glaringly apparent in the fact that a number of other matters are specifically ordered, including plaintiffs remandment to jail for contempt. We consider this written judgment to be substantively defective, for, as stated in 46 Am. Jur. 2d Judgments § 78, it is only the decretal portion of a judgment that is operative as a judgment and the rights of the parties are adjudicated by that portion alone and not by the recitals. It therefore necessarily follows, under the provisions of Supreme Court Rule 272, that even though there was an announcement of a final judgment from the bench, the written order which was to follow is missing insofar as an assessment of arrearage is concerned. As stated above, until the written judgment is filed the proceedings are in a state of temporary abeyance and the bare announcement of the final judgment cannot be attacked by motion, cannot be appealed from, and cannot be enforced. Under such circumstances the order of July 10 holding that the order of April 9 remained in full force and effect was ineffective. In addition, though the plaintiff had no right to attack it by motion when he did, nonetheless, when and if an effective written judgment is filed, then from that date plaintiff may take such action as he may deem appropriate, including, for instance, the timely filing of a notice of appeal in the event the trial court, on motion, refuses to reconsider its interpretation of the meaning of the household expense provision of the original support order.

The judgment order of the Circuit Court of Madison County dated July 10, 1973, is affirmed as to that portion thereof modifying the original temporary support order of April 6, 1972, and providing for payments by the husband to the wife of $100 per month for child support and $200 per month for alimony, except that said portion of the order is hereby modified to provide that it shall be effective as of April 9, 1973, and said payments shall be due and payable from and after that date. In all other respects said judgment order is reversed and the cause remanded for proper entry of judgment, consistent with this opinion.

Affirmed in part as modified and reversed and remanded in part with directions.

EBERSPACHER and CARTER, JJ., concur.