author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Natalie Garland, Plaintiff-Appellee, v. Norman Garland, Defendant-Appellant.
    (No. 59688;
    First District (5th Division)
    May 3, 1974.

      Samuel D. Freifeld and Dennis D. Dicks, both of Chicago, for appellant.
    Wilfred F. Rice, Jr., and Gerald D. Skoning, both of Chicago (Seyfarth, Shaw, Fairweather & Geraldson, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal arises from an order allowing plaintiff to retain custody of her two children and to remove them to Oxford, Mississippi. Defendant initially filed a petition seeking an order restraining the' removal and requesting custody. Plaintiff then filed a counter-petition seeking a modification of the judgment for divorce to allow her to remove the children.

On appeal, defendant contends that (1) the judgment was based on sexual discrimination in violation of the United States and Illinois constitutions; and (2) the judgment was contrary to the manifest weight of the evidence.

Plaintiff was divorced from defendant and was granted the sole care, custody, control and education of the couple’s two minor children, subject to defendant’s reasonable visitation rights. Defendant’s petition asserted that the welfare of the children would best be served by transferring their custody to him. In support thereof, defendant called plaintiff and her fiance, Ronald Schroeder, as adverse witnesses. Both were then teaching in the evening division of Northwestern University and were working toward their doctorate degrees at that school. At that time, Schroeder was 26 years old, approximately 6 years younger than plaintiff, and had never been married. He testified that he had known the children since 1971 and that they responded well to him. He had accepted a teaching position for the fall of 1973 at the University of Mississippi in Oxford, Mississippi, where plaintiff had also been assured that she would be able to find employment. A marriage between Schroeder and plaintiff was to take place after they moved there.

Although defendant informed plaintiff that he would contest the removal of the children, she sold her Evanston residence and used the proceeds as down payment for a house in Oxford. The title and the mortgage to that house were in Schroeder’s name, even though plaintiff had made the $1,000 earnest money payment. She was also to provide the balance of the $15,000 deposit money but, in return, was to receive from him a promissory note secured by a mortgage.

The next witness called by defendant was his present wife, Marilyn Garland. At the time of her marriage to defendant in November, 1972, she was 21 years old. She had had limited experience dealing with children.

Dr. John Loesch, a psychiatrist called by defendant, testified that the children had a strong attachment to defendant and that he acted as a paternal and maternal figure to them. It was Dr. Loesch’s belief that the children preferred being with their father over their mother, and that separation from defendant would be more traumatic to them than to most children.

Around the time of the divorce, Dr. Loesch saw defendant professionally for approximately 10 months. He observed the children for 3 to 4 hours on one afternoon, individually and with their father. He had not known them prior to this meeting.

On cross-examination, Dr. Loesch testified that neither child wanted to be put in a position of having to decide which parent he preferred for custody, which he stated was indicative of consideration for both parents.

Defendant testified that he was a law professor at Northwestern University. He indicated that he was a concerned and loving father who wanted custody of his two children. He believed this would be in their best interest, because they needed his love and guidance, particularly because plaintiff was away from them quite often due to her teaching and school activities and this would probably continue in Mississippi.

OPINION

I.

Defendant first contends that the judgment was based on sexual discrimination, because in denying defendant’s petition, the judge stated:

“I can’t for the life of me find that it would do any great good to either of these youngsters to take them from their mother with whom they have been for so long a period * * *.
* * *
I am not going to put these children in a bind of saying goodby to their mother and living with a father who loves them dearly. I think it would destroy the children emotionally; and yet I know the children must necessarily suffer if they don’t have a meaningful contact with their father and it’s important to them, because it’s been built-up.
* * *
It’s somewhat unusual because with all the problems one has in earning a living, all of the burdens of just day to day living, it’s unusual for a father to have shown the degree of interest Professor Garland has for the children and tire continuing contact that he has had with them, with practically no interruptions * * *.

Defendant maintains that those statements indicate the court’s decision was based on the assumption that the mother is more capable of maintaining custody than fire father, and, as a result, he argues that he was deprived of equal protection of the law. Initially, we note that, in matters involving the custody of children, every presumption is indulged in the continuing validity of the original decree and, if its provisions are to be changed, the burden of proof is on the moving party to show why a change should be made. (Norris v. Norris, 121 Ill.App.2d 226, 257 N.E.2d 545.) New and changed conditions must arise to warrant the court in changing its prior custody (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300), and they must be such that they affect the welfare of the children. Finn v. Finn, 11 Ill.App.3d 385, 297 N.E.2d 1.

As we view the above set forth statements of the trial judge in the light of the entire record, we reach the conclusion that, in his consideration of all the testimony, the trial judge was of the belief that the removal of the children to Mississippi by the mother was not such a change which would so affect the welfare of the children as to warrant a modification of the original decree of custody. See Arden v. Arden, 25 Ill.App.2d 181, 166 N.E.2d 111.

Furthermore, we note that there is no contention that the original custody determination was made upon the assumption that a mother is more capable of maintaining custody of the children than is the father. The record discloses that at that time, defendant agreed to give plaintiff permanent custody and control of the children subject only to his reasonable rights of visitation. His claim of sexual bias now is considerably diluted by his agreement to the terms of the original decree. And, while it is true that defendant was confronted here with a presumption of the continuing validity of the custody provisions of the original decree, the presumption operates to protect the welfare of the children by preserving the status quo regardless of which parent has custody. To that extent, it is neither constitutionally prohibited nor sexually discriminatory.

II.

Defendant next contends that the judgment of the trial court was contrary to the manifest weight of the evidence. He argues that the ruling was supported by neither the evidence nor the existing laws in Illinois.

The evidence presented indicated that there was no question of the fitness of either parent. Defendant, a law school professor, had recently remarried and appeared to be capable of supporting his children. He had exercised his visitation privileges extensively and apparently played a major role in the lives of his children.

It was also indicated that plaintiff was a loving and devoted mother. Defendant, however, contends that the testimony of plaintiff, in explaining her relocation and the details of the purchase of a house in Oxford, indicated her lack of good judgment and instability. He argues that these failings, when considered with the testimony of Dr. Loesch, overwhelmingly supported the conclusion that the welfare of the children would best be served by a custody transfer to him. We disagree. We note that Schroeder, plaintiff’s fiance, although 6 years her minor, had recently received his doctorate and had secured fulltime employment at the University of Mississippi. The University had also assured plaintiff a teaching position, and although the new house was to be titled in Schroeder’s name, plaintiff was to receive a promissory note and a mortgage for the down payment she was providing. Schroeder had become acquainted with the children and wanted to be their stepfather, and in answer to the court’s question, he stated his willingness to marry plaintiff immediately if she were allowed to remove the children. Plaintiff’s intended marital relationship gave every impression of stability and in itself did not constitute sufficient cause to change the custody of the children. The existence of plaintiff’s relationship with Schroeder failed in our opinion to establish either that plaintiff was less fit to have custody of the. children or that their welfare required the change of custody. Hirth v. Hirth, 59 Ill.App.2d 240, 207 N.E.2d 114.

Furthermore, although Dr. Loesch testified that the separation of the children from the father would be more traumatic than to most children because of their apparent closeness,- we believe that the evidence indicates both were good parents and, under such circumstances, a separation from either would be traumatic.

From our review of the record, we conclude that the finding of the trial court was not against the manifest weight of the evidence and the court properly exercised its judicial discretion in allowing the removal of the children and in denying the change of custody request.

III.

Defendant also contends that removal of the children from Illinois to Mississippi would be disruptive to their lives and would cause them grave psychological trauma.

Illinois law permits removal to another state of children whose custody has been awarded to one parent by a divorce decree, as long as it is in the best interests of the children. Spencer v. Spencer, 132 Ill.App.2d 740, 270 N.E.2d 72.

Defendant relies heavily on the testimony of Dr. Loesch in arguing that the best interests of the children would not be served by their removal. Although Dr. Loesch’s testimony is significant, we note that he was with the children, and defendant for only 3 or 4 hours. Defendant had been his patient for about 10 months, and the doctor was well aware of defendant’s close relationship to the children but, although he felt the children preferred their father, he testified that neither child wanted to be put into a position of having to choose one parent over the other. There was no testimony from Dr. Loesch or any other witness negating either the testimony of plaintiff that she also was close to her children or that of Schroeder that the children responded well to him. In any event, the preferences of the children are only appropriate when based on reasons related to their best welfare. Stickler v. Stickler, 57 Ill.App.2d 286, 206 N.E.2d 720. Finn v. Finn, supra.

Although defendant will not be able to see his children as often if they are removed to Mississippi and, as he contends, they may suffer some psychological trauma therefrom, we believe that trauma would also result if a transfer of custody from plaintiff is granted and, from our review of the record, we are of the opinion that the evidence as LO change of conditions affecting the best interests of the children was insufficient to warrant a transfer of custody.

For the reasons stated, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE BURKE.

license: Public Domain

text:
    Coronet Insurance Company, Plaintiff-Appellant, Cross-Appellee, v. Charm Home Carpeting, Inc., Defendant-Appellee, Cross-Appellant.
    (No. 57009;
    First District (1st Division)
    May 6, 1974.
    Haft, Shapiro and Haft, of Chicago (Morris A. Haft, of counsel), for appellant.
    White, White & Berman, of Chicago (Arthur L. Berman and William H. Martay, of counsel), for appellee.
   Opinion by

Mr. JUSTICE BURKE.


author: PER CURIAM:

text:
    Charles Gresham, Plaintiff-Appellant, v. Cleon Poole, Defendant-Appellee.
    (No. 59695;
    First District (1st Division)
    May 6, 1974.
    HALLETT, J., took no part.
    Richard E. Server, of Chicago, for appellant.
    No brief for appellee.
   PER CURIAM:

Judgment by default was entered for Charles Gresham (plaintiff) against Cleon Poole (defendant) upon a complaint charging defendant with libel and malicious prosecution. Defendant’s “Motion in the Nature of Writ of Error Coram Nobis” was sustained and the default judgment was vacated. Plaintiff appeals, contending that the trial court was in error in vacating the judgment; defendant has filed no appearance or brief on this appeal.

Failure to file a brief in conformance with court rules may result in pro forma reversal of the judgment. (Algozino v. Police Board, 111 Ill. App.2d 34, 249 N.E.2d 720; Hardin v. Hardin, 18 Ill.App.3d 69.) Where the circumstances of the case dictate, however, the better view is that the case should be disposed of on its merits. (Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264, 254 N.E.2d 814; People v. Jones, 8 Ill. App.3d 849, 291 N.E.2d 305.) The circumstances disclosed by the instant record warrant a consideration of the merits of this case.

Civil complaint was filed by plaintiff alleging that in August, 1972, he was a City of Chicago building inspector and that he had occasion to cite a building owned by defendant for certain code violations; that defendant caused plaintiff’s arrest and swore out a criminal complaint against him charging him with bribery; that the criminal complaint was later dismissed for lack of probable cause; that the allegations of the criminal complaint were false; that plaintiff lost his employment and suffered other damages as a result of the filing of the criminal complaint; and that malice was the gist of the civil action. Defendant was served with a copy of the complaint both by mail and by service upon a proper member of his family, and appearances were filed on his behalf by two separate law firms within the following two months. On February 14,1973, defendant was allowed 28 days to file his answer, to the civil complaint.

An order of default was entered upon plaintiffs motion on March 23, 1973, after notice was filed with a law firm not appearing of record in the case, although defendant conceded having had contact with that firm. On April 3, 1973, the defendant was personally served with a notice of motion for judgment upon the default order; judgment was entered on that date as to the issue of liability; and on April 10, 1973, judgment was entered in the amount of $25,000 after evidence was heard, the default judgment specifically reciting that malice was the gist of the action and that plaintiff sustained his burden as to the malicious prosecution count of the civil complaint.

Defendant was served with a citation to discover assets on May 14, 1973, for an appearance on May 18,1973, in that regard. Defendant failed to appear on May 18, an order for defendant to show cause why he should not be held in contempt was thereupon entered, and the matter was continued into June; the May 18 order was returned “not found” and a special service at defendant’s home address was returned “defendant has moved.” On June 25, 1973, defendant appeared in open court; it was determined that he did in fact reside at the address named in the special service, and the matter was continued to July 16, 1973. On July 16, 1973, defendant again failed to appear in court and a second order was entered for him to show cause why he should not be held in contempt, which order was served upon defendant the following week. On August 3, 1973, defendant appeared in open court after a second citation had been issued in connection with a land trust allegedly controlled by defendant, and he was given leave to appear with counsel on August 8, 1973. On August 8, 1973, counsel who represented defendant in the instant proceedings below was allowed to file his appearance instanter.

On August 10, 1973, defendant filed the instant verified “Motion in the Nature of Writ of Error Coram Nobis” (hereinafter “petition”), which was dated June 20, 1973. The petition alleged the facts relating to defendant’s retaining his prior counsel, one of whom was still of record as counsel for defendant, and that none of his prior counsel had been served with notice of the default order or the judgment in that regard. The petition further alleged that defendant had a good and meritorious defense to the action, in the form of “privileged disclosures” to the parties involved in the criminal complaint; that had the court been aware of the foregoing facts, it would not have entered the default against defendant; that the court’s lack of awareness of the foregoing was not due to defendant’s negligence; that the court was not aware of the dealings between defendant and his previously retained counsel; and that defendant desired to retain his then current counsel to represent him in the matter. The petition which was not supported by affidavit, prayed that the default judgment be vacated and that a new trial be granted. Plaintiff filed an answer •to the petition, alleging information that one of the firms representing the defendant did not in fact represent him, and that defendant was nonetheless personally served with notices and the like throughout the proceedings.

Hearing was held on the petition which disclosed the foregoing facts of record and during which the trial court stated its position that defendant was “lulled into security” by the actions of his previous counsel and that he deserved his day in court, although plaintiff and his counsel were put to much trouble in the proceedings. Defendant testified at the hearing under section 60 of the Civil Practice Act that he had retained and paid counsel to represent him in the civil action; that he did not recall receiving notices in that case, except for two unidentified letters; that he received a letter from his bank concerning the case; and that he did not know what was going on in the case. The petition was sustained, the default judgment was vacated, and plaintiff’s counsel was denied orders for fees or security of the judgment pending the litigation.

Section 72 of the Civil Practice Act presently governs actions in writ of error coram nobis, inter alia, and creates a single remedy for relief from judgments more than 30 days after entry. (Ill. Rev. Stat. 1973, ch. 110, par. 72.) The “Motion in the Nature of Writ of Error Coram Nobis” filed by defendant must therefore be treated as a petition for relief under section 72.

• The instant petition fails to conform to the requirements for relief under section 72; it is defective on its face as well as in the substance of its allegations. Further, sufficient circumstances are neither alleged therein, nor appear of record to warrant the grant of the relief requested.

To have entitled defendant to relief under section 72 he must have demonstrated that he was diligent in presenting .his petition to the court (Bennett v. Gollant, 127 Ill.App.2d 224, 262 N.E.2d 34.) Defendant failed to discharge that duty. Nothing appears as to when he first learned of the default judgment against him, nor do facts appear which could justify the lapse of 4 months from the time of entry of that judgment until the time the instant petition was filed. Further, the petition was dated June 20, 1973, and yet was not filed until August 10, 1973, and no explanation is advanced to account for that lapse of time. The record is unrefuted that defendant was served personally with multiple notices throughout the proceedings below, which belies his testimony that he was unaware of what had transpired in the case. It is settled that a litigant must follow his case and is not entitled to solely rely upon his counsel in that regard. (Stewart v. Beegun, 126 Ill.App.2d 129, 261 N.E.2d 495.) Finally, the instant petition is not supported by “affidavit or other appropriate showing as to matters not of record” as required by subsection (2) of section 72; defendant has failed to demonstrate in what manner he seasonably moved for the vacation of the default judgment against him.

The petition filed below was patently defective; sufficient matters were not presented to the trial court upon which to have based a determination that defendant was entitled to the relief sought by that petition; and defendant had in fact been served with numerous notices and documents of the default and subsequent proceedings which raise a question as to the bona fides of his position that he was not negligent and acted with due diligence. The trial court improperly allowed the relief requested by the defendant. (Elliot Construction Corp. v. Zahn, 99 Ill.App.2d 112, 116,241 N.E.2d 129.) Defendant’s attitude toward the instant proceedings is further evidenced by his failure to file an appearance or brief on this appeal.

For these reasons, the judgment of the circuit court vacating the default judgment of April 10, 1973, theretofore entered for plaintiff and against defendant is reversed, and the cause is remanded with directions to reinstate the default judgment entered April 10, 1973, for plaintiff and against defendant.

Judgment reversed and cause remanded with directions.

HALLETT, J., took no part in the consideration or decision of this case.


author: Mr. JUSTICE JOHNSON

text:
    John P. Rooney, Plaintiff-Appellant, v. Morton Salt Building, Inc., Defendant-Appellee.
    (No. 56950;
    First District (4th Division)
    May 8, 1974.
    Morton A. Resnick, of Chicago (Ellis B. Rosenzweig, of counsel), for appellant.
    Kirkland & Ellis, of Chicago (Gary M. Elden and William H. Symmes, of counsel), for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, John P. Rooney, was injured on June 1, 1964, in a one-story fall off a ladder while working as a tuckpointer on the Morton Salt Building. On April 29, 1966, he brought this action against the owner of the building pursuant to the Structural Work Act. (Ill. Rev. Stat. 1963, ch. 48, § 60 et seq.) The jury returned a verdict for defendant, and the trial court denied plaintiff’s post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Plaintiff appeals, presenting the following issues for review:

(1) Was the verdict against the manifest weight of the evidence?

(2) Is plaintiff entitled to a new trial because of error in the jury instructions?

The evidence adduced at trial showed that defendant hired Hofer and Associates to perform certain tuckpointing work on its building at 110 North Wacker Drive in Chicago. Hofer agreed to furnish the equipment, hire the tuckpointers, and provide the foremen and supervisors. Morton Salt Building filed a third-party complaint against Hofer for indemnity should it be held liable to plaintiff.

The plaintiff was an experienced tuckpointer, employed by Hofer, when the accident occurred. His injuries resulted from a fall sustained when the wire holding an extension ladder broke.

Plaintiff and a co-worker, Joseph D. Burke, had used the ladder for several weeks before the accident and for 2 hours immediately prior thereto. Before plaintiff got on the ladder, he and Burke tested it by pushing down and also checking the clamps that supported it. “It looked like everything was in place,” plaintiff testified, "or I wouldn’t have got on it.”

Plaintiff stated at trial that Phillip Lundberg, defendant’s building superintendent, told him directly how all the work was to be set up and performed. Plaintiff testified further that it was necessary to use an extension-type ladder to go over the top of the building because Lundberg instructed the workmen to avoid going through the office.

Phillip Lundberg discussed the work progress on a daily basis with Hofer’s foreman, Jerry Hofer. However, Lundberg testified that he never gave specific instruction to the foreman or plaintiff, and that the way the work was done was left up to the tuckpointers. Lundberg denied seeing the ladder which collapsed before the accident and telling the workmen they could not walk through tire office of the building. He stated that plaintiff’s foreman was told the workmen could walk through the building and that boards and mats were provided for the men to wipe their feet before walking through any office.

Joseph D. Burke, plaintiff’s co-worker, testified that the workmen took all their orders directly from the foreman and that the regular procedure in the trade is that the foreman gives instructions. He stated further that he never heard Lundberg say that the workmen were not to come through the building.

At the close of the evidence, the jury returned a verdict for defendant. Plaintiff appeals from the trial court’s denial of his motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The Structural Work Act provisions that are pertinent to this appeal provide:

“§ 60. * * * [A]ll scaffolds, hoists, cranes, stays, ladders * * * erected * * * by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any * * * building * * * shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ' * * *.
* * *
§ 69. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building * * * within the provisions of this act, shall comply with all the terms thereof * * *
* * *
For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; * * *." (Emphasis supplied.) (Ill. Rev. Stat. 1963, ch. 48, §§ 60, 69.)

In the instant case, a key issue argued to the jury was whether the defendant was in “charge of” the tuckpointing work on its building within the meaning of the Structural Work Act.

Plaintiff contends that the defendant, who owned the building where the injury occurred, remained in “charge of” the work and is therefore responsible under the terms of the act. The jury’s verdict to the contrary, he argues, is against the manifest weight of the evidence,

Illinois courts have consistently held that whether a particular individual or corporation is a person “having charge of" the work is a factual question to be left to the jury’s determination. Miller v. DeWitt (1967), 37 Ill.2d 273, 286, 226 N.E.2d 630, 639; Pantaleo v. Gamm (1969), 106 Ill.App.2d 116, 126, 245 N.E.2d 618, 624; Sola v. City of Chicago (1967), 82 Ill.App.2d 266, 274, 227 N.E.2d 102, 107; Spiezio v. Commonwealth Edison Co. (1968), 91 Ill.App.2d 392, 413, 235 N.E.2d 323, 333; Clements v. Schless Construction Co. (1972), 8 Ill.App.3d 291, 296, 290 N.E.2d 21, 25.

Whether the owner of the property where the accident occurred had charge of the work involving the alleged violation was discussed by the Illinois Supreme Court in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 323, 175 N.E.2d 785, 794. The court concluded that a question of fact for the jury was presented under the circumstances of that case. The court stated:

“It is undisputed that the engineering and architectural plans for the work were prepared by the office of the chief architect of the defendant railroad, and that he and other personnel made frequent inspections of the construction project,, spending as much as five hours a day on the premises on occasions. It is not clear from the evidence just how detailed those inspections were. It is also undisputed that the brick-laying, assembling and construction of scaffolds, and the placement of ladders were performed by the employees of the Marhoefer Company, and under their supervision. Under these circumstances, it was at most a disputed question of fact whether the owner could be deemed to be in charge of the construction within the meaning of the act, and it would be the province of the jury, under proper instructions, to make that determination.”

In Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 538, 221 N.E.2d 633, 635, the supreme court reaffirmed its position that the determination of whether an owner is in charge of the construction is a question of fact which must be decided by the jury.

In the instant case, the jury considered the evidence and returned a verdict in favor of the defendant. Plaintiff urges that its verdict was against the manifest weight of the evidence because the defendant hired, selected the materials to be used, inspected, instructed, reviewed the work on a daily basis and directed the workmen on maintaining certain conditions of cleanliness.

Our review of the record shows that there was sufficient evidence to support the jury’s verdict. It is undisputed that defendant hired Hofer and Associates to perform the tuckpointing work, that Hofer agreed to supply the equipment and workmen, and that defendant’s building superintendent had daily discussions with the foreman about the work progress. However, there was a direct conflict in the testimony regarding the degree of control that defendant retained over the performance of the work. Plaintiff testified that defendant’s building superintendent, Phillip Lundberg, directly supervised the work and forbade the workmen from walking through the office of the building. Lundberg testified that he neither gave specific instructions nor directed the workmen not to walk through the building. The testimony of plaintiff’s co-worker, Joseph Burke, was consistent with that of Lundberg. Burke testified that he never heard Lundberg instruct the workmen not to walk through the building and that that men received all of their instructions from the foreman.

Thus, on these disputed issues, only plaintiff’s testimony supported his theory of the case. Burke and Lundberg gave testimony that was in direct conflict with that proffered by plaintiff. Consequently, we find that there was a sufficient basis for the jury to find in favor of the defendant, and its verdict was not against the manifest weight of the evidence.

To support his position, plaintiff relies heavily upon Larson v. Com monwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247, where the jury instruction equated “in charge of’ with “retaining supervision and control,” and quotes the following language from that opinion:

“While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated ‘having charge’ with ‘supervision and control’ in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of tire other. The term ‘having charge of’ is a generic term of broad import, and although it may include supervision arid control, it is not confined to it. As was said of the word ‘charge’ in People v. Gould, 345 Ill. 288, 323: ‘The. word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. “To have charge of” does not necessarily imply more than to care for or to have the care of.’ Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is ‘in charge’, they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficient purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” 33 Ill.2d at p. 321-2.

The facts in Larson showed that there was a much greater degree of participation by defendant than existed in the instant case. In Larson, six Edison employees were on the jobsite at all times to inspect and to insure compliance with the specifications of the contract, and representatives of Edison’s Safety Department visited the site periodically with the authority to make safety suggestions to the contractors and their employees. Despite this evidence of participation, the court did not direct that Edison should be found “in charge of’ the work as a matter of law but instead remanded the case for a new trial. The court stated that whether the particular activities in a specific case were such that an owner could be deemed to “have been in charge” was a question of fact for the jury to determine. Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 321, 211 N.E.2d 247, 251.

An argument similar to that advanced by plaintiff was before the court in Clements v. Schless Construction Co. (1972), 8 Ill.App.3d 291, 296, 290 N.E.2d 21, 25. In that case, plaintiff contended that the question of whether the defendant was “in charge of the work” should not have been submitted to the jury because the evidence clearly showed that defendant was in charge. The court stated:

“Acceptance of Plaintiffs theory in this case would, in essence, require holding that the liability of a general contractor is absolute and nondelegable. We do not believe that this principle can be supported by any authority under the Structural Work Act * * *."

In view of the foregoing, we hold that the question of whether defendant was “in charge of” the work was properly submitted to the jury and its verdict in favor of defendant was not against the manifest weight of the evidence.

Plaintiff next contends that it was prejudicial error for the trial court to give an instruction to the jury which used the phrase “direct cause” instead of “proximate cause.” The instruction to which he objects states, in pertinent part:

“Fourth, that the wilful violation by the defendant in the placement of the ladder was the direct cause of the damages claimed by the plaintiff * * *.” (Emphasis supplied.)

Plaintiff argues that this instruction made a significant and material change in his burden of proof under the Structural Work Act.

In McCormack v. Haan (1961), 30 Ill.App.2d 311, 314-15, 174 N.E.2d 206, 208, the court stated:

“The trend of judicial opinion reveals a reluctance to reverse a case on the ground of technical errors in jury instructions; hence, courts have reiterated that the instructions will be considered as a whole and where the jury has not been misled and the complaining party’s rights have not been prejudiced by minor irregu- . larities, such errors will not be deemed grounds for reversal.” (Emphasis supplied.)

We have reviewed the instructions as a whole and find that the jury was not misled. Based upon this review, we find that the jury was sufficiently informed on the issues involved.

The judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE ADESKO Mr. JUSTICE BURMAN

text:
    Lawrence Friedman, d/b/a Cornell Steel City Distributing Company, Plaintiff-Appellee, v. Jackson Park Drug Co. et al., Defendants-Appellants.
    (No. 58352;
    First District (4th Division)
    May 8, 1974.
    BURMAN, J., dissenting.
    William E. Elston, Jr., of Chicago, for appellants.
    Norman Wexler, of Wexler & Wexler, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

On December 16, 1969, plaintiff-appellee filed a two-count complaint against defendants. The first count against defendant, Jackson Park Drug Co., is not involved in this appeal. The second count named the defendant-appellant, James E. Hurt. It charged Hurt with liability as a guarantor of the obligation incurred by the co-defendant, Jackson Park Drug Co. On January 27, 1970, defendant Hurt filed a motion supported by affidavit to strike Count II, on the ground that the written guaranty sued on and attached to the complaint was not executed, signed or subscribed by defendant Hurt and does not bear his name.

By agreement of the parties the hearing of the complaint was continued to October 27, 1970, at which time neither defendant nor their counsel appeared. Plaintiff in his brief alleged that his attorney made an oral motion to strike defendant Hurt’s motion to strike Count II, but it does not appear in the record. The trial court entered an ex parte judgment against both defendants. An execution was personally served upon Hurt on January 12, 1971. On June 8, 1971, Hurt petitioned the trial court to vacate the judgment of October 27, 1970. In said petition Hurt raised the same defense made in his previous motion of January 27, 1970, to strike Count II of the plaintiff’s complaint, claiming that the signature on the guaranty was not his signature, supported by his affidavit.

On August 16, 1971, a hearing was held and the trial court denied Hurt’s petition to vacate the judgment of October 27, 1970, against Hurt. There is nothing in the record to show a ruling as to the signature of defendant on the guaranty. Hurt did not seek an appeal from the trial court’s ruling.

One year later, on September 8, 1972, defendant Hurt filed a second petition to vacate the judgment which was exactly the same as the petition which had been denied by the trial court. The second petition also supported by affidavit, was denied on the day it was filed upon the basis that the court had already ruled upon the contents of the petition. This appeal followed.

Defendant-appellant Hurt claims that the trial court erred in denying his motion to vacate the judgment against him for the reason that said judgment was void and may be vacated at any time.

The plaintiff-appellee, on the other hand, argues that although section 72(6) of the Illinois Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, sec. 72(6)) provides that “any order entered denying or granting any of the relief prayed in the petition is appealable,” we must also consider Supreme Court Rule 303. Said Rule 303(a) provides that a notice of appeal must be filed within 30 days after the entry of the judgment appealed from. Supreme Court Rule 303(e) provides: “On motion supported by a showing of reasonable excuse for failure to file a notice of appeal on time, accompanied by the proposed notice of appeal, filed in the reviewing court within 30 days of the expiration of the time for filing a notice of appeal, the reviewing court may grant leave to appeal * * *.”

Although plaintiff in his brief alleges that on October 27, 1970, he made an oral motion to strike defendant Hurt’s motion to strike Count II, the record does not support plaintiff’s allegation. Had the trial court made such a ruling, it would have been incumbent upon the trial court to grant defendant Hurt time to answer or otherwise plead before entering the judgment. In our judgment the order of the trial court was void, which is subject to be attacked at any time.

In Oak Park National Bank v. Peoples Gas Light & Coke Co., 46 Ill. App.2d 385, 394, 197 N.E.2d 73, we find this language:

“If the initial judgment was one which the trial court had no power to enter, that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby.”

In the same opinion, at page 396, the court said:

“As we have stated, in our opinion, the judgment originally entered was void, and hence, even though the petition was designated as having been brought under section 72, it is neither necessary nor appropriate to consider the negligence or lack of negligence of the plaintiff as a determinative factor in whether or not the judgment should be vacated.”

Similar decisions have been expressed in Fennema v. Vander Aa, 93 Ill.App.2d 162, 236 N.E.2d 409; and Lake Shore Savings & Loan Association v. American National Bank & Trust Co., 91 Ill.App.2d 143, 234 N.E.2d 418.

In Irving v. Rodriguez, 27 Ill.App.2d 75, 169 N.E.2d 145, the court held:

“A void judgment as distinguished from a voidable judgment may be vacated at any time even after the expiration of the prescribed period within which judgments ordinarily may be vacated. The duty to vacate a void judgment is based upon the inherent power of the court to expunge from its records void acts of which it has knowledge. The doctrines of laches and estoppel do not apply. Stern v. Sheffield, 2 Ill.2d 311, 120 N.E.2d 62.”

Since the trial court failed to rule on defendant Hurt’s motion to strike Count II and said count was not controverted by defendant, the motion stands as an affirmative defense and precluded a judgment against defendant; nevertheless, the court proceeded to give judgment against said defendant. We find said judgment void and remand the hearing of this case to the trial court for further proceedings.

Reversed and remanded for a new trial.

DIERINGER, J., concurs.

Mr. JUSTICE BURMAN

dissenting:

There is no theory that would permit this court to find the judgment in the instant case void. The trial court properly exercised its discretion in denying the petition because of the defendant’s lack of diligence and because the issues presented had been adjudicated previously, and I would affirm.

Count I of the complaint alleged that the plaintiff had delivered certain merchandise to Jackson Park Drug Co. for which it had not been paid. Count II alleged that the plaintiff had been induced to extend credit to Jackson Park Drug because of Hurt’s written personal guaranty that he would be responsible for the price of the merchandise delivered. Hurt was personaHy served with a summons on December 24, 1969, and an appearance was filed in his behalf. In lieu of an answer, he filed a motion to strike Count II on the ground that the signature on the guaranty, which was attached to the complaint, was not his. Shortly thereafter, Jackson Park Drug Co. instituted a bankruptcy proceeding in the United States District Court. The motion to strike was set for a hearing on May 5, 1970, and, by agreement of the parties continued to October 27, 1970. On that date, the defendants failed to appear to defend the action, and default judgments were entered against both the drug company and Hurt. An execution was issued on the judgment and served upon Hurt personally on January 12, 1971.

Hurt filed his first petition to vacate the judgment on June 8, 1971, stating as a ground for relief that the signature appearing on the guaranty was not his. A hearing was had on August 16, 1971, after which the court entered an order denying the petition. Hurt did not appeal this order. Garnishment proceedings were commenced and on September 8, 1972, Hurt filed a second petition identical to the one filed on June 8, 1971. This petition was also denied, and the present appeal followed.

The majority concludes that the court’s failure to rule upon Hurt’s motion to strike Count II of the complaint prior to the entry of judgment renders the judgment void. Hence, it argues, the judgment is subject to coHateral attack at any time. I am not aware of any authority that would support this position. In my opinion it is axiomatic that the trial court has the power, upon the failure of the defendant to appear and defend the claim at the appointed time, to declare him in default and to allow the plaintiff to proceed ex parte.

The application of this principle is aptly demonstrated in Price v. Marie (1917), 207 Ill.App. 112, a case very similar to the instant one. There an action was brought on a promissory note. The defendant appeared and filed a plea of the general issue and a special plea setting up his discharge in bankruptcy. He failed to appear when the case was called for trial. The court allowed the plaintiff to prove up his claim and entered judgment without striking any of the defendant’s pleadings and without ruling upon the alleged discharge in bankruptcy. Approximately 18 months later the defendant petitioned to vacate the judgment, and the petition was allowed. In reversing the trial court’s order the appellate court said, “[w]hile the defendant * *' * had pleaded to the action, he defaulted at the trial, and with his presumptive knowledge of the entry of the judgment he waited more than a year and a half before moving to vacate it. This was laches of the grossest kind, against which even a court of conscience could not afford relief.” 207 IllApp. at 116.

As this court pointed out in Irving v. Rodriquez (1960), 27 Ill.App.2d 75, 169 N.E.2d 145, a case cited to us by the appellant, “[v]oid judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of the person or subject matter and judgments procured through fraud.” (27 Ill.App.2d at 79.) In the present case, there is no question that the court had jurisdiction of the person of Hurt and the subject matter of the cause. Hurt does contend in his brief that the judgment was procured through fraud because it is obvious from the face of the document attached to the complaint as “Exhibit B” and described as his written guaranty that it does not contain his signature or even his name.

It is well established, however, that the type of fraud that renders a judgment void and subject to collateral attack is that which prevents the court from acquiring jurisdiction or gives it merely colorable jurisdiction. Where the fraud occurs in the proceedings once jurisdiction has been obtained it has no such effect. (Dean v. Kellogg (1946), 394 Ill. 495, 68 N.E.2d 898; 23 I.L.P. Judgments § 168 (1956).) This rule rests upon the salutary policy that there should be an end to litigation and the stability of judgments should not be destroyed. (Cohen v. Sparberg (1942), 316 Ill.App. 140, 44 N.E.2d 335.) In the present case the court had obtained jurisdiction, and any claimed defect in the defendant’s guaranty would not render the judgment void. The appropriate remedy would have been to attack the judgment directly through an appeal or collaterally through a timely petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 72).

In this regard, the record reveals that Hurt did file a section 72 petition on June 8, 1971, in which he alleged that the judgment should be vacated because tire signature on the purported guaranty was not his. The court denied this petition following a hearing on August 16, 1971. The record does, not disclose what matters were considered at this hearing. However, the only issue raised by the petition was the signature. The defendant could have pursued his relief further by appealing from the court’s order (See Ill. Rev. Stat. 1973, ch. 110(a), par. 304(b)(3)), but he did not choose to do so.

The petition which is the subject of the present appeal was filed on September 8, 1972, and was identical in substance to the one filed on June 8, 1971, and denied on August 16 of that year. It is clear, therefore, that the matters raised in the second petition were res judicata, having been decided on August 16, 1971, and that the trial court was correct in denying it. Even if it be argued, as the majority suggests, that the second petition raised matters not previously determined, it was still incumbent upon Hurt to demonstrate diligence in seeking to obtain his remedy (Brockmeyer v. Duncan (1960), 18 Ill.2d 502, 165 N.E.2d 294), and nothing in the petition explains his failure to act until over a year from the denial of the first petition.

Hurt was afforded a full opportunity to present his defense at the hearing held on August 16, 1971. After hearing the evidence the court ruled against him, and he chose not to carry the matter further by taking an appeal. In my opinion the litigation should have ended at this point.

For these reasons I would affirm the judgment.


author: Mr. JUSTICE STAMOS

text:
    George F. Mueller & Sons, Inc., Plaintiff-Appellant, v. Leona M. Ostrowski, d/b/a Smitten Kitten et al., Defendants-Appellees.
    (No. 58492;
    First District (2nd Division)
    January 15, 1974.

      Opinion on rehearing filed May 14, 1974.

      J. Edward Jones, of Blue Island, for appellant.
    Alfred M. Walter, of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court upon rehearing:

Plaintiff appeals from an order vacating a judgment. The issue is whether the trial court abused its discretion in vacating the judgment which was entered in ex parte proceedings.

On October 18, 1968, plaintiff filed a complaint alleging breach of contract. Plaintiffs attorney of record was Oscar Harman. (The record indicates, however, that the affidavit of compliance with Circuit Court Rule 0.9 was executed by attorney J. Edward Jones.)

On November 14, 1968, defendants filed their appearance and answer to the complaint. Thereafter, the cause was called for trial, and was continued on eight occasions over the next several years, until February 9, 1972, when the matter came up for trial. The presiding judge was on assignment by our supreme court from outside of Cook County to the circuit court of Cook County. Defendants failed to appear, and plaintiff, through attorney J. Edward Jones, proceeded, ex parte, to prove up damages. The jury rendered a verdict for plaintiff in the amount of $5,159.60, and judgment was entered on the verdict. Pursuant to this judgment, a writ of execution was issued on March 17, 1972, and served on defendant Ostrowski on May 4, 1972, and on defendant Lazare on May 3, 1972, and returned unsatisfied as to both defendants. Service was not effected on defendant Tarala. On April 11, 1972, garnishment proceedings commenced, and defendants were served on April 29, 1972.

On May 10, 1972, defendants filed a petition pursuant to section 72 of the Civil Practice Act to vacate the judgment and have tire matter set for trial. On September 14, 1972, plaintiffs motion to substitute attorney J. Edward Jones as its attorney of record was granted. Defendants filed an amended petition accompanied by a supporting affidavit on September 26,1972. On October 19, 1972, the trial court entered an order vacating the judgment of February 9, 1972, and setting the cause for trial. The court found, inter alia, that defendants’ amended petition set forth valid reasons for the absence of defendants’ counsel on February 9, 1972, and for defendants’ lack of knowledge of the ex parte proceedings; and that defendants, upon acquiring knowledge of the judgment, exercised due diligence in filing their petition to vacate.

Although plaintiff’s brief confuses the issues, rather than clarifying them for this court, it is clear from our reading of plaintiff’s brief that plaintiff contends that defendants’ petition and affidavit failed to sustain the court’s findings and the order vacating the judgment of February 9, 1972. Defendants argue, on the other hand, that in the absence of a record of evidence presented to the trial court, a presumption arises that sufficient facts were presented to support the court’s findings, that the petition and affidavit support the court’s findings, and that, in any event, the proceedings on February 9, 1972, were null and void because plaintiff’s attorney on that date was not the attorney of record.

A petition to vacate filed more than 30 days after judgment is pursuant to section 72 of the Civil Practice Act. The motion to vacate a judgment under section 72 is addressed to the equitable powers of the court (Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348), and the court may exercise its discretion in any manner dictated by the equities of the cause. Upon review of such a decision, an appellate court is justified in disturbing it only when that discretion has been abused. Nagel v. Wagner, 46 Ill.App.2d 2, 196 N.E.2d 728.

In the instant case, the record in the section 72 hearing does not contain a report of proceeding, and it is undisputed that no evidence was presented to the trial court. The order of the court, however, recites that the court was “fully advised in the premises.” In such a situation, it has been held that a reviewing court must presume that the court acted in conformity to the law and had before it sufficient facts to support its order. (Hall v. Hall, 15 Ill.App.3d 599, 304 N.E.2d 763; Smith v. Pappas, 112 Ill.App.2d 129, 251 N.E.2d 390.) Therefore, we will consider only the sufficiency of the petition.

A petition pursuant to section 72 of the Civil Practice Act, although filed in the original proceeding, is not a continuation thereof, but is the commencement of a new cause of action. (Mutual National Bank v. Kedzierski, 92 Ill.App.2d 456, 236 N.E.2d 336.) As in any civil case, the petition must allege facts stating adequate grounds for relief. (Smith v. Pappas, supra.) It is elementary that a judgment or decree may not stand if rendered under allegations without supporting facts. Wilson v. Wilson, 56 Ill.App.2d 187, 205 N.E.2d 636.

In the instant case, defendants’ petition alleged that on February 9, 1972, defendants’ counsel was ill and was being examined at the Chicago Osteopathic Hospital, and that therefore counsel was unable to appear in court that day; that the customary procedure in Cook County was not followed in that no effort was made to telephone the office of defendants’ counsel prior to proceeding ex parte; that on each prior occasion on which the cause had been called for trial, defendants were prepared to proceed and the matter was continued at the request of plaintiff; that defendants did not learn of the judgment until garnishment proceedings were instituted more than 30 days after judgment; that plaintiff appeared before the trial court by counsel not of record on February 9, 1972, and that no order allowing substitution of counsel had been obtained; and that defendants’ answer (which had been timely filed) evidenced a valid defense to the merits of plaintiff’s cause of action.

An affidavit of a physician was attached to the petition. The physician asserted that he treated defendants’ counsel for severe back pain on February 9, 1972, and prescribed bed rest for several days; and that from his examination and treatment he concluded that the patient was in severe pain and that his condition would have precluded him from attending to his usual and customary affairs.

Even though it is the duty of a litigant to follow his case and appear in court when required to do so (Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 236 N.E.2d 719), we recognize that circumstances other than mere inadvertence or negligence sometimes may render a party incapable of appearing. Upon our review of defendants’ petition and affidavit, and upon judicial notice of the customary procedure of telephoning the office of an absent attorney, we agree with the trial court that defendants’ failure to appear was excusable. Our courts have consistently stated that “courtesy among lawyers is and should be the rule rather than the exception.” Stidham v. Pappas, 78 Ill.App.2d 402, 407, 223 N.E.2d 318.

However, even assuming that a petitioner alleges facts which would otherwise justify relief under section 72, the absence of any excuse for faffing to timely assert these facts before the trial court will preclude relief. “The rule is well established that a person may not avail himself of the present remedy (section 72 relief) unless he shows that through no fault or negligence of his own, the error of fact or existence of a valid defense was not made to appear to the trial court.” Brockmeyer v. Duncan, 18 Ill.2d 502, 505, 165 N.E.2d 294.

In the instant case, defendants alleged in their petition that plaintiff delayed in attempting to enforce its judgment until more than 30 days had elapsed, and that defendants filed their motion to vacate immediately upon discovering that garnishment proceedings had commenced. Defendants conclude that they were diligent in asserting facts justifying vacation of the judgment. However, defendants have asserted no reasons why they did not review the court’s records to determine what proceedings, if any, had transpired on the trial date, February 9, 1972. The record is barren as to any facts indicating why no action was taken by defendants subsequent to February 9, 1972 (the date treatment for counsel’s back pain was completed), by which they would have gained knowledge of the ex parte proceedings. It is undisputed that no evidence was adduced in support of defendants’ allegation of due diligence. The order of the trial court merely recites that plaintiff elected to stand on its motion to strike defendants’ amended section 72 petition, and “waived a hearing on the factual basis of the petition.” Defendants did not attempt to amend their petition to conform to the trial court’s finding of due diligence. Defendants have suggested to this court in oral argument matters which were presented to the trial court on the issue of due diligence; none of these matters appear of record. Therefore, we decline to consider them. We conclude that defendants’ failure to allege facts to account for their failure to act from approximately mid-February to almost the end of April evidences a lack of diligence after entry of the judgment.

However, a court, when determining the sufficiency of a section 72 petition, must apply equitable principles as justice and fairness require. (Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348.) Justice and good conscience may require that a judgment be vacated even though there may have been a lack of due diligence. (Hall v. Hall, 15 Ill.App.3d 599, 304 N.E.2d 763; Burkitt v. Downey, 102 Ill.App.2d 373, 242 N.E.2d 901.) The conduct of the parties and of counsel for the parties may be examined in determining the sufficiency of the section 72 petition. Hall v. Hall, supra; Stehman v. Reichhold Chemicals, Inc., 57 Ill.App.2d 40, 206 N.E.2d 299.

In the instant case, we are of the opinion that justice and fairness require vacature of the judgment. Plaintiffs attorney Jones did not advise the trial court of the Cook County custom and practice of telephoning opposing counsel before proceeding to an ex parte judgment, a practice singularly appropriate where opposing counsel had duly appeared and answered the trial call on several prior occasions, at which plaintiff had requested and had been granted continuances. A lawyer’s professional responsibility to his client does not require him to disregard professional courtesies to opposing counsel, including (unless notice to the contrary has been given) adherence to local customary practices designed to assure the doing of substantial justice between the parties, especially when the trial judge on assignment from a different circuit is unaware of the local customary practices. In addition, attorney Jones was not plaintiffs attorney of record when he appeared to prove-up damages, he failed to apprise the trial court of that fact, and he also failed to make a motion for substitution of attorneys until after defendants had filed their section 72 petition. Lastly, defendants had no actual knowledge of the ex parte judgment until they were notified of garnishment proceedings approximately 80 days after entry of the judgment. Service of an execution more than 30 days after rendition of a judgment casts a “cloud” upon the proceedings which a court may consider when determining the sufficiency of a section 72 petition. Hall v. Hall, supra; Stehman v. Reichhold Chemicals, Inc., supra.

In light of the foregoing circumstances, and in view of the fact that defendants filed a timely answer to plaintiff’s complaint and apparently were eager to contest the matter, we are compelled to conclude that the trial court properly exercised its equitable powers in vacating the judgment and setting the cause for trial on the merits. The judgment of the trial court is hereby affirmed.

Affirmed.

HAYES, P. J., and DOWNING, J., concur.

       Ill. Rev. Stat. 1971, ch. 110, par. 72.

       Section 46(3) of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46(3)) provides in pertinent part: “A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs * * *."

       A.B.A. Canons of Professional Ethics No. 7 — 38 (adopted May 1, 1970 by the Illinois and Chicago Bar Associations). See also People v. Sleezer, 8 Ill.App.2d 12, 22-23, 130 N.E.2d 302.

       Cook County Cir. Ct. R. 1.4 provides:
      “(a) Addressing the court — An attorney shall file his appearance before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise.”


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Max Leavitt et al., Plaintiffs-Appellees, v. Charles R. Hearn, Inc., Defendant-Appellant.
    (No. 57778;
    First District (3rd Division)
    May 16, 1974.

      Seymour M. Lewis, of Chicago (Ellis B. Rosenzweig, of counsel), for appellant.
    David H. Greenstein, of Chicago (Alan J. Scheffres, of counsel), for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

On February 15, 1972, the plaintiffs, Max and Anne Leavitt, filed a replevin action in the circuit court of Cook County seeking the return of their automobile and certain personal property contained therein, allegedly seized by the defendant auto dealer, Hearn, Inc., without plaintiffs’ consent and absent proper legal process. Plaintiffs also sought compensatory damages. Defendant filed a counterclaim for the amount allegedly due for mechanical work performed on plaintiffs’ auto. The trial judge, sitting without a jury, awarded possession of the automobile and personal property to plaintiffs, as well as $275.28 in damages. The judge also dismissed defendant’s counterclaim. Defendant appeals.

The facts are undisputed. On January 17, 1972, after plaintiff’s auto failed to start, Mr. Leavitt had the vehicle towed to defendant’s place of business. Leavitt informed defendant’s service manager that he wanted the ignition problem fixed and a malfunctioning heater repaired. Leavitt also directed that no other work was to be performed on the vehicle without first securing his permission.

When Leavitt returned to pick up his auto 11 days later, he gave defendant a check payable to it in the amount of $58.45 for the work performed on the vehicle. After driving a short distance, it became apparent to Leavitt that the heater was not working properly, and he drove over to the side of the road and turned off the motor. When the auto failed to start a few minutes later, Leavitt telephoned his bank and stopped payment on the check.

Leavitt later complained to defendant that it not only had failed to perform the work he had requested but also that it had ignored his prohibition against performing unauthorized work. He subsequently had the vehicle serviced by another mechanic.

About 2 weeks later, on Sunday morning, February 13, Leavitt stopped at a restaurant to have breakfast. He parked the auto in the adjacent lot. When he returned a short time later, the vehicle was missing. He called the police to report it stolen; however, the police informed him that they already had been notified by defendant that it had taken the auto. When attempts to resolve the dispute voluntarily failed, this action was commenced.

Defendant contends that its surrender of the vehicle did not constitute a relinquishment of its mechanic’s lien for the work it had performed. Assuming that proposition to be true, defendant next argues that it was entitled to enforce its lien without legal process as long as no actual breach of the peace ensued. Defendant finally contends that plaintiffs’ failure prior to trial to tender to defendant the amount due it omitted fulfillment of a condition precedent to bringing a replevin action.

Before addressing ourselves to defendant’s contentions, we must comment on a footnote contained in defendant’s brief which states that “the remedy of replevin has been held unconstitutional. Fuentes v. Shevin (1972), 407 U.S. 67.” This statement is overbroad and inaccurate. Fuentes and a companion case dealt with the constitutionality of a particular feature,. specifically the “writ of replevin” provision, contained in the replevin statutes of Florida and Pennsylvania. This provision had enabled the plaintiff, as owner of the chattel, prior to trial and without notice to defendant, the possessor of the chattel, to regain possession of the chattel. The fact that defendant was compelled to surrender the property without even a summary determination of the relative rights of the disputing parties led the Supreme Court to declare such a provision a deprivation of property without due process of law. In Brooks v. LaSalle National Bank (1973), 11 Ill.App.3d 791, 298 N.E.2d 262, we subscribed to that holding, and extended its rationale to the area of landlord lien distress. But, as was noted in Fuentes, its holding is quite narrow. A single statutory provision, the writ of replevin section, was declared unconstitutional. To maintain that the entire statutory scheme relating to replevin actions is unconstitutional, however independent the other sections may be to the writ section, is unsupportable.

If defendant’s footnote is an attempt to apply the Fuentes holding to the Illinois writ provision existing at the time of trial, we must reject the effort. In the first place, defendant has never directly made the provision an issue in the present case. Moreover, Fuentes applied to an appeal by the possessor of a chattel from a judicial order refusing to enjoin the state’s enforcement of the writ provision, and the Court’s decision, unlike the present case, dealt with the constitutionality of pretrial procedures pending a trial on the merits. Additionally, it appears inconsistent to permit defendant, which seized plaintiffs’ vehicle without their consent and absent any legal process, to suggest that plaintiffs’ use of a replevin action would be unconstitutional.

Defendant’s first contention is that its mechanic’s lien for work performed on plaintiffs’ vehicle continued even after it had surrendered actual possession of the vehicle in exchange for plaintiffs’ check. This argument rests upon defendant’s interpretation of the Illinois mechanic’s small lien statute. (Ill. Rev. Stat. 1971, ch. 82, par. 47(a) et seq.) Paragraph 47(a) reads as follows:

“Labor, services, materials or storage of chattels.] § 1. Every person expending labor, services-, skill or material upon or furnishing storage for any chattel at the request of its owner, authorized agent of the owner, or lawful possessor thereof, in the amount of $200 or less, shall have a lien upon such chattel beginning upon the date of commencement of such expenditure of labor, services, skill, or materials or furnishing of storage, for the contract price for all such expenditure of labor, services, skill, or material, until the possession of such chattel is voluntarily relinquished to such owner or authorized agent, or to one entitled to the possession thereof. * *

Defendant maintains that the term “voluntarily relinquished” means that possession is only so relinquished, and hence the hen is only lost, at the time the check is honored or the debt otherwise paid. Plaintiffs counter that defendant “voluntarily relinquished” possession of the vehide when it surrendered actual possession, thereby extinguishing its lien irrespective of the fact that the check was later dishonored.

In our view, the mechanic's lien in paragraph 47(a) survives the mechanic’s surrender of actual possession of the specified chattel in return for tíre owner’s check until the draft is honored. In furthering the objective of the legislature in paragraph 47(a), the term “possession” rather than the term “voluntarily relinquished” demands our interpretation. Thus, when a mechanic exchanges the auto for the owner’s draft, he is voluntarily relinquishing only actual possession of the auto, while legal possession continues in his behalf until the draft is- honored or the debt otherwise paid. A primary consideration for that determination is the essential nature of a check. The mere issuance of a check does not constitute an immediate assignment of funds from the drawee to the payee. This takes place only when the drawee accepts the instrument. (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 409(1).) A draft is a written promise-to pay, and the underlying obligation, suspended pro tanto when the draft is issued, is resurrected if the draft is later dishonored. (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 802.) In view of the conditional nature of a draft and the easy means at the drawer’s disposal to order the drawee to stop payment on the draft, we do not believe that the legislature intended the mechanic’s lien to be as easily displaced as the plaintiffs suggest. This construction also appears to be in keeping with the clearly evidenced legislative intent to create a ready means for a small claims’ creditor to establish a specific lien.

A similar result has been reached in all the jurisdictions which have considered the issue. (Maxton Auto Co. v. Rudd (1918), 176 N.C. 497, 97 S.E. 477; Frost Motor Co. v. Fierce (1945), 72 Ga.App. 447, 33 S.E.2d 910; Yellow Manufacturing Credit Corp. v. Horowitz (1938), 2 N.Y.S.2d 566, 166 Misc. 251.) In Maxton, in which the facts were strikingly similar to those in the instant case, the court stated (176 N.C. at 499, 97 S.E. at 478) that once a defendant stops payment on his check

“* * * he must restore plaintiffs possession and put him in the position to enforce his mechanic’s lien for the amount due. No doubt defendant had no fraudulent purpose in giving the check, and the jury have found that there was no actual fraud, but, having obtained possession of his car under a promise to pay cash, on refusal, he is estopped to resist enforcement of the mechanic’s lien by reason of the possession thus acquired.”

We agree with the trial judge that neither party perpetrated a fraud in the present case. We conclude that defendant’s mechanic’s lien survived its surrender of actual possession of the vehicle to the plaintiffs.

Our acceptance of defendant’s first argument does not mean, however, that we agree with defendant’s next contention that it was entitled to enforce its lien without legal process.

Defendant contends that it was permitted to employ a self-help remedy to obtain the chattel, without notice to or consent of the owners, and absent legal process, in enforcing its mechanic’s lien so long as no breach of the peace resulted. We do not agree.

The Illinois Mechanic’s Small Lien Statute is silent regarding any self-help remedy. We believe that the reason for this is that the legislature intended that the lienor utilize the same normal judicial procedures in resolving disputes and enforcing debts that other creditors are required to use. The fact that the statute gives the mechanic an easy way to create a hen does not of itself permit the mechanic to employ the “law of the streets” to enforce it. (Contra: Gordon v. Sullivan (D.C. Cir. 1951), 188 F.2d 980.) In Brooks v. La Salle National Bank (1973), 11 Ill.App.3d 791, 298 N.E.2d 262, this court rejected an argument similar to the one made by the defendant in the present case. We also note that, in all the cases cited by defendant in support of its first contention that its surrender of the vehicle did not constitute a relinquishment of its hen, the mechanics involved utilized proper judicial procedures to enforce their hens.

The Illinois legislature has shown favor to the mechanic by creating easy means for him to obtain and preserve hens and by allowing him to proceed against the specific chattel to enforce the unpaid debt. However, the legislature did not exempt the mechanic from the courtroom as the proper forum to weigh the relative rights of the disputing parties.

Moreover, even if we were to read into the statute the self-help doctrine defendant proposes, there would be no guarantee that defendant would prevail, since problems of a constitutional magnitude would arise. The decisions of courts throughout the nation clearly reflect the constitutional onslaught against prejudgment self-help remedies. Not only have such remedies been struck down in the fields of wage garnishment (Sniadach v. Family Finance Corp. (1969), 395 U.S. 337) and writs of replevin (Fuentes v. Shevin), but also in the areas of statutory attachment (Randone v. Appellate Department (1971), 5 Cal.3d 536, 96 Cal. Rptr. 709, 488 P.2d 13, cert. denied (1972), 407 U.S. 924), non-wage garnishment (Larson v. Fetherston (1969), 44 Wis.2d 712, 172 N.W.2d 20; Jones Press, Inc. v. Motor Travel Services, Inc. (1970), 286 Minn. 205, 176 N.W.2d 87), and landlord hens (Brooks v. LaSalle Nat. Bank, supra).

Defendant cites the Uniform Commercial Code (Ill. Rev. Stat. 1971, ch. 26, par. 9 — 503) in support of its position that it should be entitled to exercise self-help in a mechanic’s hen situation. That provision expressly gives a creditor the right to regain possession of a chattel upon default by the debtor without the use of judicial process as long as ho breach of the peace ensues. We do not consider tire analogy appropriate. While tire legislature • has made a careful and deliberate decision expressly authorizing the utilization of a self-help remedy in the commercial law context, the statute involved in the present case is silent regarding such authorization. We will not write into the statute such an exception to normal judicial procedures. Furthermore, this provision is under attack as permitting indirectly what Fuentes directly forbade. Until this provision is squarely presented for constitutional adjudication, we are unwilling to accept it as secondary authority.

We also reject defendant’s presumption that, because no actual violence occurred in the taking of the vehicle from the restaurant parking lot, no breach of the peace ensued. As far back as Atkinson v. Lester (1837), 2 Ill. (1 Scam.) 407, Illinois courts have held that implied force may also constitute a breach of the peace. In Phelps v. Randolph (1893), 147 Ill. 335, 35 N.E. 243, while interpreting a forcible entry and detainer statute, the court defined forcible entry to mean “no more than the term 'vi et armis’ means at common law; that is, with either actual or implied force.” The court further stated, at page 341, that the landlord was obligated to use the judicial process to evict the tenant, because “an entry in the absence of a party in possession, against his will, may be regarded as forcible.”

Defendant’s final contention is that the failure of the plaintiffs to tender to it the amount allegedly owed the defendant constituted a failure to perform a condition precedent to bringing a replevin action. However, at trial defendant made no specific allegation to that effect. The only pleading lending any support to defendant’s claim was entitled “Complete and Separate Defense,” in which the defendant combined an affirmative defense with a counterclaim. In that pleading, defendant charged in paragraph 12 that “the plaintiffs have not paid the defendant the amount due for services and material applied.” That averment, however, was made in support of defendant’s claim for damages rather than for the omission of a condition precedent. We believe that the issue has been waived.

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

Judgment affirmed.

DEMPSEY and McGLOON, JJ., ponour.


author: Mr. JUSTICE DEMPSEY

text:
    Alice M. Gaffney, Plaintiff-Appellant, v. Shell Oil Company et al., Defendants—(Norman Razowsky, d/b/a Ontario-Dearborn Shell Service, Defendant-Appellee.)
    (No. 58027;
    First District (3rd Division)
    May 16, 1974.

      Van Emden, Busch and Van Emden, of Chicago (George J. Van Emden, of counsel), for appellant.
    Brian B. Duff, of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Alice Gaffney filed a complaint against the Shell Oil Company and Norman Razowsky. The action was brought on behalf of all purchasers of motor fuel who held Shell credit cards. Razowsky, the owner of the Ontario-Dearborn Shell Service, Chicago, who had sold $9.40 worth of gasoline to the plaintiff, was sued as the representative of all Shell service station operators in Illinois.

The complaint alleged that Shell, Razowsky and other Shell dealers unlawfully computed the Illinois use tax and State and municipal retailers’ occupation taxes (sales taxes) upon the products they sold, by adding to the selling price the Federal petroleum products and State motor fuel taxes which were collected at the time of a sale, and then charging the plaintiff, and the class represented by her, sales taxes on the total. It was further alleged that the defendants remitted to the Illinois Department of Revenue only that portion of the sales tax collected on the products sold, and that they kept for themselves that portion of the sales tax which was collected on the motor fuel taxes. The complaint sought injunctive relief, an accounting and a refund to the plaintiff, and to all persons similarly situated, of the tax money the defendants collected illegally.

Both defendants filed motions to dismiss. Shell’s motion was denied. Razowsky’s motion was denied insofar as the complaint stated a cause of action against him as an individual, but it was sustained insofar as he was sued as the representative of all Shell service station operators in Illinois. The plaintiff appeals from the order which dismissed Razowsky in his representative capacity.

This suit can be temed a “double class” action— there is a plaintiff class and a defendant class. It is unique in that the individual designated as the representative of the defendant class has no direct association with the other members of his class. Although Shell service station operators have no common bond other than the fact that they are in the same business and deal with the same company, the plaintiff contends there is no legal prohibition against suing them as a class and none against naming one of them as the representative of the whole class. Counsel for both the plaintiff and the defendant have informed us that no case bearing upon these contentions has reached the appellate level in Illinois, and that they have been unable to find a case elsewhere (absent statutory authorization) in which the designation of one person to defend many unassociated persons has been approved or disapproved.

Generally, all persons interested in the subject matter of a suit should be made parties (Green v. Grant (1892), 143 Ill. 61) but equity has long recognized exceptions to the rule such as stockholder derivative suits; cases involving persons not in being, unknown parties, beneficiaries, heirs and bondholders; cases against unincorporated associations, and cases involving so many persons that their joinder as parties is impracticable. The last exception, commonly called a class action, is permitted if the number of those interested in the subject of the litigation is very large, if the expense and delay in bringing them into court would be oppressively burdensome and if it appears that they are properly represented so that their interests will receive actual and efficient protection. (Weberpals v. Jenny (1921), 300 Ill. 145, 133 N.E. 62; Farmers’ Loan & Trust Co. v. Lake Street Elevated R.R. Co. (1898), 173 Ill. 439, 51 N.E. 55.) It is necessary that the purported representative and the absent parties have a common right or interest, the operation and protection of which will be for the common benefit of all and to the injury of none. Hale v. Hale (1893), 146 Ill. 227, 33 N.E. 858.

Members of plaintiff and defendant classes who are not parties to the action must be afforded due process (Hansberry v. Lee (1940), 311 U.S. 32) and the criteria used to determine this is the same for both classes. However, these criteria are more easily applied to plaintiff than to defendant class actions, and to the first issue in this case than to the second.

There is no statutory law in Illinois governing class actions; case law controls and the Illinois cases differ as to whether a representative action can be maintained on behalf of a plaintiff class if each member of that class must make individual proof of his claim. (See, Tornquist, Roadmap of Illinois Class Actions, 5 Loyola L.J., 45, 53 (1974).) One line of authority holds that there can be no such action: Newberry Library v. Board of Education (1944), 387 Ill. 85, 55 N.E.2d 147; Peoples Store of Roseland v. McKibbin (1942), 379 Ill. 148, 39 N.E.2d 995; Heller v. Fergus Ford, Inc. (1973), 15 Ill.App.3d 868, 305 N.E.2d 352; Reardon v. Ford Motor Co. (1972), 7 Ill.App.3d 338, 287 N.E.2d 519. A second line of authority holds that multiple claims for damages in varying amounts which have to be separately adjudicated does not bar a class suit if the other requirements of such a suit are present. (Fiorito v. Jones (1968), 39 Ill.2d 531, 236 N.E.2d 698; Harrison Sheet Steel Co. v. Lyons (1959), 15 Ill.2d 532, 155 N.E.2d 595; Lee v. City of Casey (1915), 269 Ill. 604, 109 N.E. 1062; Rodriguez v. Credit Systems Specialists, Inc. (1974), 17 Ill.App.3d 606, 308 N.E.2d 342; Perlman v. First National Bank (1973), 15 Ill.App.3d 784, 305 N.E.2d 236; Hagerty v. General Motors Corp. (1973), 14 Ill.App.3d 33, 302 N.E.2d 678.) Although members of the plaintiff class in the present case háve a community of interest in recovering overpayments made to Shell retailers, each member would have to substantiate his own claim. Likewise, each member of the defendant class would have to resist distinct assertions of excess charges arising from unrelated transactions. By denying Shell’s motion to dismiss, the trial court sanctioned the plaintiff class action. By granting Razowsky’s motion to dismiss, the court tacitly disapproved the defendant class action.

Shell service station operators in Illinois are widely scattered throughout the State and are not members of any voluntary or involuntary association. Their only common interest is the retailing of Shell products. The basic allegation in the complaint was that Razowsky and members of the defendant class charged their customers sales and use taxes computed on the retail sales price of their products, and imposed at the time of each sale motor fuel and petroleum taxes which, instead of being remitted to the taxing authorities, were retained by the members themselves. This allegation, admitted by Razowsky’s motion to dismiss, raised a question of fact and a question of law: is it true that Shell dealers collect and disburse taxes in the manner alleged and, if so, is this practice illegal? The determination of the latter issue will affect all members of the class who indulge in this practice. They would have a common interest in the resolution of the legal issue and the outcome of the litigation. Despite the dichotomy in Illinois decisions concerning separate transactions and individual proof of damages, in our opinion a defendant class action should not be defeated because members of the class may be called upon to make individual accountings of their sales. (Cf. Hale v. Allinson (1903), 188 U.S. 56.) While we recognize that thousands of transactions between hundreds of Shell dealers and their customers could not possibly be identical, it is not essential that they be alike in amount or in consistency as long as the liability for a refund has been determined. While the amounts will differ in each case, the collections would have occurred in the same way, the type of relief will be the same and the mathematical computations simple. It is enough that the previously decided questions of law and fact common to all transactions would not have to be re-litigated. Differences in the measure of damages is not inconsistent with the desirability of common defense. (See Peters v. International Harvester Co. (1946), 248 Wis. 451, 22 N.W.2d 518; Weeks v. Bareco Oil Co. (1941), 125 F.2d 84; Kainz v. Anheuser-Busch, Inc. (1952), 194 F.2d 737, cert. denied, 344 U.S. 820 (1952); Independence Shares Corp. v. Deckert (1939), 108 F.2d 51, reversed on other grounds, 311 U.S. 282 (1940).) The defendants’ contention that each dealer might have distinct equitable defense has not been substantiated. Something more than the mere assertion that hypothetical issues exist is required to bar the action. (Harrison Sheet Steel Co. v. Lyons.) There do not appear to be such defenses available and the defendant has not pointed out any possible ones.

In the final analysis, the propriety of a class action — plaintiff, defendant or both — depends upon a finding that due process will be accorded the members of the class who are not before the court. Due process requires the protection of all absent parties who will be bound by the proceeding. (Hansberry v. Lee; Newberry Library v. Board of Education.) Implicit in the trial court’s decision that designating Razowsky as the party defendant was improper, was the finding that permitting him to stand as the lone representative of the Shell dealers in Illinois would be an infringement upon their right to due process. The decision was no reflection on Razowsky nor on his attorney’s qualifications, experience or ability. The court merely recognized the disproportion between the single defendant and the total members of the class and, furthermore, that he was neither their agent nor their spokesman.

Cases in which an individual plaintiff claimed to represent a large class are plentiful; cases in which a loan defendant has been sued as the representative of a large class are not. Outside of the traditional suits against trustees representing bondholders, creditors, beneficiaries and the like, class suits against an individual have been approved only in cases brought under statutes authorizing the procedure or in cases where the individual sued has a definite, significant relationship to the class he is supposed to represent. Thus in Illinois, where an unincorporated association cannot be sued in its own name (Boozer v. U.A.W. of America (1972), 4 Ill.App.3d 611, 279 N.E.2d 428) a class suit is permitted against an officer of the association, as the representative of its membership, if his position is one of sufficient authority. In Biller v. Egan (1937), 290 Ill.App. 219, 8 N.E.2d 205, the court declared that the real test of adequate class representation is not the number of persons who have been named as defendants but the nature of the relationship of the defendant to the class. Service upon the secretary of a voluntary association composed of many members, was held sufficient to give jurisdiction of a suit in equity against the association in Fitzpatrick v. Rutter (1896), 160 Ill. 282, 43 N.E. 392. A suit against the manager of an insurance exchange (a voluntary, unincorporated association) composed of five or six hundred subscribers was held to be sufficient to bind the entire membership in Warfield-Pratt-Howell Co. v. Williamson (1908), 233 Ill. 487, 84 N.E. 706.

A single defendant has also been permitted in other jurisdictions under special circumstances. In the Wisconsin case of Pipkorn v. Village of Brown Deer (1960), 9 Wis.2d 571, 101 N.W.2d 623, one defendant was named as the representative of certain beneficiaries of a water trust which had been created for the benefit of lot owners of a subdivision. The defendant had been the trustee of the water system and it was his action while in office that gave rise to the plaintiffs’ complaint. Because of this, it was held that he was in a better position than any other beneficiary to represent them and to justify his conduct in office; that his interest was similar to the unnamed defendants and he was the logical person to represent them.

In City of St. Ann v. Buschard (1957), 299 S.W.2d 546, the plaintiff, a city in Missouri, filed an action for a declaratory judgment authorizing it to annex an adjoining area of 750 acres. About 2,000 people lived in the proposed-to-be-annexed area, but only one resident, Lewis Buschard, was named a defendant and, as such, the representative of all the inhabitants. Buschard contested the action on its merits, but did not contest, in either the trial court or the St. Louis Court of Appeals, his designation as the sole representative of his fellow-residents. The reviewing court, however, felt compelled to comment on this phase of the case. It pointed out that the State statute under which the annexation was sought specifically provided that the action should be a class action against the inhabitants of the unincorporated area, and if the persons constituting the class “* * * are very numerous or it is impracticable to bring them all before the court, such of them, one or more, as will fairly insure adequate representation of all may, on behalf of all, sue or be sued * * *." The court further noted that the statute was supplemented by a rule of the Missouri Supreme Court which stated that whenever an action was instituted “against one or more defendants as representative or representatives of a class, the petition shall allege such facts as shall show that * * * the defendants * * * have been fairly chosen and adequately and fairly represent the whole class. The plaintiff shall be required to prove such allegations, * * * and it shall not be sufficient to prove such facts by the admission or admissions of the defendants who have entered their appearance.” The reviewing court held, upon the record made in the case, that Buschard did fairly represent the class and that the requirements of the statute and rule had been satisfied. However, the court made it clear that it did not intend by its decision to encourage the selection of a sole defendant to represent a class in the type of action before it. The court observed that the larger the number defending the class the more likely that the representation would be adequate. In a later case, the same court expressed the same doubt about the naming of one person as a group representative. City of Lebanon v. Holman (1966), 402 S.W.2d 832.

The minimum number of defendants required to insure adequate representation of a class varies from case to case and each case must be decided on its own merits. Three members of a church society were held to truly represent the 900 members in Ross v. Gerung (1954), 69 So.2d 650. The three members, however, were the pastor, the chairman of the board of trustees and a deacon of the church. The contention that 28 defendants out of a class of 3,200 did not truly represent the class was rejected in Richardson v. Kelly (1945), 144 Tex. 497, 191 S.W.2d 857. In Illinois, 100 defendants out of 6,200 inhabitants of the City of Zion, including 1,500 to 1,800 landowners who might have had a special interest in the litigation, were held to be a sufficient number to insure fair representation to the entire class. In re Petition of Whellock (1933), 270 Ill.App. 87.

Ultimately, the decision as to the quality and the quantity of the representation rests in the broad discretion of tire trial court. A proposed class action must be closely examined and allowed only when complete justice is assured. When the right to proceed is doubtful, permission should be refused. (Reardon v. Ford Motor Co.) It has been suggested that the opportunities for improper practices in a defendant class suit — such as handpicking a favorable defendant — requires the application of extraordinary scrutiny to those selected by the plaintiff to represent the defendant class. Gordon, 42 Ill.L.Rev. 518 (1947-1948).-

While it is uniformly stated that one member of a class may sue or defend for the benefit of the whole class (59 Am.Jur.2d Parties, sec. 48, pp. 411-412; Story, Equity Pleadings (10th Ed.) sec. 97) the right to sue cannot be equated with the duty to defend. There are significant distinctions between permitting one person to sue on behalf of a class and compelling one person to defend as the representative of a class. An individual who initiates a class action does so voluntarily. He willingly assumes the plaintiffs’ burden to correct a wrong, assert a right, recover funds or obtain damages in the expectation that he and his counsel (See Andrews, The Class Action Bar, Juris Doctor, Jan. 1974, p. 18) will profit or at least be compensated for their zeal and labor. However, an individual who is singled out as the representative of a defendant class is involuntarily shackled with a heavy responsibility. He must protect not only himself but innumerable other people. He must retain an attorney and spend time and money in the preparation of a defense which will do justice to people he does not know and then must represent their interests in a trial of uncertain duration. Further, unlike a plaintiff class action when its object is a money judgment, no fund becomes available to the defendant class to cover its costs in the event it is successful. (Gordon, 42 Ill. L. Rev. 518 (1947-1948).) If the plaintiff is unable to pay the costs which the defendant has a right to recover, the defendant will have a right without a remedy. Tornquist, 5 Loyola L.J. 45 (1974).

The entire economic burden of defending the present suit was thrust upon one man, Razowsky. His financial stake in the outcome of the suit was not shown to be greater than that of any other of the hundreds of Shell dealers in Illinois. No allegation was made in the complaint as to why he was the proper representative of the dealers or why other dealers were not joined as defendants. The complaint merely stated that Razowsky was “representative of all the numerous class of lessees of defendant Shell, all of whom add Illinois sales tax to the selling price of motor fuel which includes motor fuel taxes, but do not remit to the Department of Revenue all sales tax collected.” Even giving this conclusory allegation all benefit of the doubt, and judging it liberally by the standard applicable to a motion to dismiss, it was woefully deficient in supplying information upon which the court could determine that Razowsky was a proper representative of the defendant class.

The order dismissing Razowsky in his representative capacity is affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: PER CURIAM.

text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellee, v. Ulysses Batitsas, Defendant-Appellant.
    (No. 58943;
    First District (3rd Division)
    May 16, 1974.
    Miller, Green, Frazin & Green, of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appeffee.
   PER CURIAM.

DEMPSEY, J., took no part.


text:
    Benedict Cieslak, Plaintiff-Appellant, v. Dahlstrom Machine Works, Inc., Defendant-Appellee.
    (No. 59188;
    First District (3rd Division)
    May 16, 1974.

      Oliver H. Harris, of Chicago, for appellant.
    J. Laurence Barasa, of Barasa & Larkin, of Chicago, for appellee.
   PER CURIAM.

McGLOON, J., took no part.


text:
    Sharon Judge, Plaintiff-Appellant, v. Lorraine Petrak, Defendant-Appellee.
    (No. 57033;
    First District (5th Division)
    May 17, 1974.

      Robert Q. Hoyt, of Chicago (Philip J. Rock, of counsel), for appellant.
    Tim J. Harrington, of Chicago (Robert Guilfoyle and Larry R. Wikoff, of counsel), for appellee.
   PER CURIAM.