author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard S. Matthews, Defendant-Appellant.
    Gen. No. 69-117.
    Second District.
    May 7, 1970.

      Edwin L. Douglas, Public Defender, of Wheaton, and Kevin P. Connelly, Assistant Public Defender, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, and A. E. Botti, Assistant State’s Attorney, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, Richard S. Matthews, and a codefendant were found guilty of the crime of Attempt Theft in an amount less than $150, and Possession of Burglary Tools.

This defendant appeals, urging that the indictment charging Possession of Burglary Tools fails to allege the requisite mental state, and also that the mechanic’s type tools in question do not fall within the category of burglary tools as intended by the legislature.

The indictment charged:

“. . . that on or about the 19th day of September, A. D., 1968, at and within DuPage County, Illinois, (KENNETH R. TUCKER and) RICHARD S. MATTHEWS committed the offense of POSSESSION OF BURGLARY TOOLS in that they had in their possession with intent to enter into a motor vehicle of Celozzi-Ettleson Chevrolet, Inc., an Illinois corporation, located at 15 W 600 Roosevelt Road, Elmhurst, Du Page County, Illinois, and to commit therein a theft, tools suitable for use in breaking into said motor vehicle, in violation of Illinois Revised Statutes 1967, Chapter 38, Section 19-2, . . . .”

The relevant statute (Ill Rev Stats 1967, c 38, § 19-2) provides:

“19-2. Possession of Burglary Tools.) Whoever possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Motor Vehicle Law, . . . railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft shall be imprisoned in the penitentiary from one to 2 years.”

Defendant concedes that the wrenches, tire jack, screwdrivers, and assorted mechanic’s tools found at the scene and possessed by defendant are suitable to break into a car, and that it is immaterial that they were also designed and adapted for lawful uses. See The People v. Taylor, 410 Ill 469, 473, 474, 102 NE2d 529 (1951); and The People v. Faginkrantz, 21 Ill2d 75, 79, 171 NE2d 5 (1960).

Defendant argues, however, that where tools which are designed and adapted for lawful uses are involved, the intent to use them to effect a “breaking in” must be alleged and proved. Conversely, he argues that the possession of tools suitable for the commission of a burglary, is not the gravamen of the offense when the intent is to effect a simple theft, or as he characterizes it, “a non-breaking entry.”

Knowledge or intent need not be alleged in an indictment charging a crime of possession, even though such knowledge or intent is an essential element in the chain of proof of the crime charged, when the indictment in substance is in the language of a statute which prohibits the unauthorized possession. See The People v. Mills, 40 Ill2d 4, 11, 237 NE2d 697 (1968); followed in The People v. Bussie, 41 Ill2d 323, 325, 243 NE2d 196 (1968); and see People ex rel. Miller v. Pate, 42 Ill2d 283, 285, 246 NE2d 225 (1969).

Defendant urges that Mills is a case which adopts decisions of other states interpreting the Uniform Narcotics Act and is a departure from Illinois law as defined in the Criminal Code (citing Ill Rev Stats 1965, c 38, § 111-3), and should be confined particularly to narcotics cases. Neither the reasoning in Mills or Bussie, supra, indicate any such limited application, however. And we note that in Miller v. Pate, supra, the Mills decision has been cited with approval in a nonnarcotics case, confirming that the tests respecting the sufficiency of an indictment are uniform, whether it would enable a defendant to prepare his defense and whether it would sustain the plea of judgment in bar of any further prosecution for the same offense. The indictment here passes these tests.

Defendant suggests that People v. Billingsley, 67 Ill App2d 292, 213 NE2d 765 (1966) and People v. Greene, 92 Ill App2d 201, 235 NE2d 295 (1968), support his position in this case. In our view, they do not. In Billingsley, the charge was in the language of the statute defining Deceptive Practices, which statute did not include the essential element of an intent thereby to defraud, and the trial proceeded with no effort to prove that essential element. In Greene, supra, this opinion was followed in a similar situation.

The defendant also contends that the tools commonly referred to as “mechanic’s tools” were not proved to be possessed as burglary tools used with intent to facilitate a breaking (although agreeing that an actual breaking is no longer an essential element of burglary), since no entry into the motor vehicle was necessary to remove a transmission.

Our view of the record belies this contention since it clearly shows the general intention of the defendant to commit a burglary. Defendant was apprehended in an automobile dealer’s car lot at approximately 12:06 in the morning; he was observed to have wrenches in his hands, and wrenches, screwdrivers, and assorted mechanic’s tools were found scattered at the scene and in the open trunk of a nearby car used to convey defendant to the scene. His hands, face and clothing contained grease and dirt. The codefendant was viewed coming from beneath the dealer’s vehicle with a jack handle in his hand. The hood of that vehicle was raised, its transmission was loosened and was hanging down from its housing and partially on the ground. The bolts connecting the drive shaft to the transmission had been removed.

To sustain a conviction under the statute (Ill Rev Stats 1967, c 38, § 19-2), it must be proved that the tools are adapted and designed for breaking and entering, that the defendant possessed them with knowledge of their character, and that he intended to use them for breaking and entering. The People v. Faginkrantz, supra, at page 79. The proof need not be of intention to break and enter a particular place or vehicle, but may be proof of general intent to commit a burglary of some place or vehicle as designated in the statute, which intention may be shown by circumstantial evidence of criminality. The People v. Taylor, supra, at page 475; The People v. Taranto, 2 Ill2d 476, 482, 119 NE2d 221 (1954).

The cited cases interpreted an antecedent statute and did not deal with possession of tools suitable for use in breaking into a motor vehicle. The enlargement of the definition of places to include motor vehicles in the present statute does not change the nature of the offense, although it may lead to special problems of interpretation. We consider that the amended statute retains the basic proscription against possession of tools suitable for use in the unlawful breaking and entering of some type of enclosed structure or place.

Under the circumstances in this record, we find that the possession of tools suitable for use in breaking into a motor vehicle with intention to commit a theft was sufficiently proved.

It is not necessary that the tools be intended for use in opening doors, windows, trunk lids, hoods or similar entrances to effect entry into a motor vehicle. The intention to break and enter into an integral portion of a motor vehicle’s mechanism — here the transmission — is equated in our view with a breaking and entering into a motor vehicle. And we consider the possession of tools suitable for that purpose and use with intention to effect such unlawful entry as the possession of burglary tools within the meaning and purpose of the relevant statute. We are not ruling, under the circumstances of this case, on the kind of hypothetical situation posed by defendant’s counsel to illustrate the limits of consequences characterized as absurd, such as the use of a tool to pry off a hub cap of a vehicle which effects unauthorized entry into a nonenclosed portion of a motor vehicle.

In defendant’s reply brief, and for the first time, defendant challenges the count of the indictment charging Attempt (theft), on the grounds that while it charged defendant with intending to deprive the owners of the benefit of the property, it failed to allege the intention of depriving the owners permanently. No authorities in support of defendant’s position are cited in the reply brief; and the State offered no authorities in opposition in oral argument, merely commenting that the omission of the word “permanently” to characterize the allegation of the required intent was “de minimus.”

The crime of Attempt (Ill Rev Stats 1967, c 38, § 8-4 (a)) requires the intent to commit a specific offense and a substantial step in that direction. See People v. Martin, 62 Ill App2d 97, 102, 210 NE2d 587 (1965).

Ill Rev Stats 1967, c 38, § 16-1 requires that the particular act and the requisite mental state must coincide to constitute the offense of theft. (See also Committee Comments.) In each of the described mental states the word deprive is qualified with the word permanently. “Permanently deprive” is defined in chapter 38, supra, section 15-3, and clearly cannot be included within the definition of the term “deprive.”

An indictment which fails to allege the requisite mental state or to describe acts which indicate such mental state is fatally defective. See People v. Hayn, 116 Ill App2d 241, 245, 253 NE2d 575 (1969); People v. Slaughter, 67 Ill App2d 314, 214 NE2d 20 (1966) (Abst).

The judgment below based on the charge of “Attempt” is therefore reversed. The judgment based on the charge of “Possession of Burglary Tools” is affirmed.

Affirmed in part and reversed in part.

ABRAHAMSON and MORAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    People of the State of Illinois ex rel. Cherry Valley Fire Protection District, a Public Corporation, Plaintiff-Appellant, v. City of Rockford, Illinois, Defendant-Appellee, Board of Education in and for the School District of the City of Rockford, No. 205, Winnebago County, Illinois, Intervening Defendant-Appellee.
    Gen. No. 69-180.
    Second District.
    May 7, 1970.

      Philip G. Reinhard, State’s Attorney, of Rockford, and H. Emmett Folgate, Special Assistant State’s Attorney, for appellant.
    John W. Nielsen, City Attorney, of Rockford, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The State’s Attorney of Winnebago County filed a complaint in quo warranta on relation of the Cherry Valley Fire Protection District against the City of Rockford that challenged the annexation of certain property to the City. On July 8, 1969, the trial court denied judgment of ouster as sought in the complaint and entered judgment of justification and this appeal followed.

The territory in question is an irregular shaped parcel approximately 1% miles in length and includes 212 acres. On December 19, 1966, the territory was annexed to the City and on December 18, 1967, a quo warranta was brought by the State’s Attorney on relation of the Rock River Library District and the Cherry Valley Fire Protection District. A judgment of ouster was entered on March 11, 1968, on the grounds that the City failed to furnish proper notice to the fire protection district as required by statute and that the territory was not contiguous to the City.

On April 9, 1968, the City annexed the identical territory covered by the judgment of ouster and one additional lot. For this purpose, the original petition for annexation was used together with a separate petition signed by the record owner of the added lot.

On November 29, 1968, a second complaint in quo warranta was brought on relation of Cherry Valley only and, after a hearing, the judgment of justification was entered.

In the interim between the hearings on the two complaints, one of the record owners on the original petition had conveyed his interest in a portion of the territory to a new owner. Neither the new owner nor the Board of Education of School District 205, the record owner of 125 acres of the territory had joined in either petition for annexation.

On appeal, the plaintiff contends that the annexation ordinance was void since it was not signed by all owners of record as required by section 7-1-8 of the Illinois Municipal Code (Ill Rev Stats 1967, c 24, § 7-1-8); that the territory was not contiguous to the City, and that the judgment of ouster entered on March 11, 1968, was res ad judicata on the issue of the validity of the annexation of the territory.

If we were to determine that the doctrine of res ad judicata had application as here urged, it would mean that this territory could never be annexed to the City of Rockford. However, as is well established, that doctrine has application only where there is an identity of parties, subject matter and cause of action. The earlier cause concerned itself with the issues of contiguity and the required notice to the fire protection district. It appears that notice was properly served prior to the second annexation ordinance and the inclusion of the additional lot significantly affected the question of contiguity. The issues presented to the court for determination in the second quo warranta, thus, were not identical with those resolved in the earlier cause and the doctrine of res adjudicata was not applicable.

Prior to the inclusion of the added lot, the territory at one point was connected only by a street. Roadway annexations have been repeatedly held invalid as “corridor” or “strip” annexations that fail to meet the tests of contiguity as intended by the legislature. People ex rel. Village of Worth v. Ihde, 23 Ill2d 63, 69, 177 NE2d 313; The People v. Village of Streamwood, 15 Ill2d 595, 601, 155 NE2d 635. We have recently held that the contiguity as contemplated by the legislature means “an actual touching in a reasonable physical sense.” La Salle Nat. Bank v. Village of Burr Ridge, 81 Ill App2d 209, 218, 225 NE2d 33. The conclusion of the trial court that the addition of the crucial lot satisfied the statutory requirement of contiguity was not contrary to the manifest weight of the evidence and will not be disturbed.

However, we do not feel that it is necessary to consider the other matters raised by the plaintiff to dispose of this case for it is evident that the trial court based its decision on the doctrine of loches.

The application of the doctrine of loches to quo warranto suits brought on behalf of or in the name of the people was, • until recently, in some doubt. However, in the case of People ex rel. Lindsey v. Board of Education, 3 Ill2d 159, 120 NE2d 887, the Supreme Court barred a quo warranta brought against a school board five years after its formation where the board had levied and collected taxes, disposed of school buildings, purchased buses and operated schools. The court stated at page 167 of that decision:

“The rule that loches is not usually applied against the State has been created for the benefit and protection of the public. It should not be reversed in its purpose and applied where it results in public detriment and harm. The courts therefore should, in all quo warranta proceedings, consider all the circumstances of the case and where it appears that harm rather than benefit will be done to the public welfare, the application of loches against the public is justified.”

In The People v. Junior College Dist. No. 526, 42 Ill2d 136, 139, 246 NE2d 292, the Supreme Court affirmed a judgment of the trial court that barred a quo warranta brought against a junior college district nearly two years after it was organized. The district had levied and collected taxes, leased land, hired teachers and enrolled students. The court held that where . . as a result of inexcusable delay and public acquiescence, a judgment of ouster would result in great public inconvenience and detriment, the public interest requires that loches be applied in bar of the proceeding.”

We have recently stated, in People ex rel. Knaus v. Village of Hinsdale, 111 Ill App2d 368, 373, 250 NE2d 309, that "Quo Warranto is a high prerogative writ and courts in administering the remedy should proceed with due deliberation and caution and with the exercise of sound discretion, considering whether the public interest will be served or damaged by the writ and the necessity for and the policy of allowing the remedy.”

In the instant case, the Board of Education that owned a substantial portion of the annexed territory was permitted to intervene. Evidence was introduced that the Board had purchased the land in three parcels, the last parcel in June of 1968.

In August of 1968, the Board retained an architectural firm to prepare detailed plans and drawings for the construction of a technical and vocational school on the site. Those plans were prepared on the assumption that the site was within the city limits and provided for the utilization of various municipal services such as water, police and fire protection. The architect was paid $140,000 for his services and contracts awarded in April of 1969 for the construction of a vocational center at an estimated cost of $3,000,000. There was further evidence that construction had commenced and that in the event of an ouster the plans would have to be redesigned at considerable expense and that the school would not be completed by the autumn of 1970 as otherwise anticipated.

Cherry Valley maintains that the disconnection of the territory from the district as a result of the annexation will cause a serious loss in the assessed valuation available for the district and create other difficulties in its functions as a fire protection district. Section 38.3 of the State Fire Marshall Act (Ill Rev Stats 1967, c 127%, § 38.3) provides that a disconnection by law as a result of an annexation will not occur if the fire protection district files a petition with the appropriate court within 60 days of the date of the annexation. Despite the fact of notice of the annexation, Cherry Valley did not choose to exercise the remedies available under section 38.3 but waited for over 7 months to challenge the action of the city by way of quo warranta.

We are mindful of the fact that the reported cases in regard to the application of loches to public bodies in quo warranta proceedings involve circumstances of unquestionable public inconvenience and detriment.

It is uncontradicted that the Board of Education has expended considerable funds to acquire and develop their site within the territory on the assumption that it was a part of the City of Rockford and that further expense and inconvenience would result from an ouster. The public harm that would be thus experienced more than outweighs any possible loss to the relators. If Cherry Valley had brought a petition pursuant to the Fire Marshall Act within the required 60 days, much of the public detriment could have been avoided. In view of these considerations, we feel that the trial court properly exercised its sound discretion within the limits expressed in People ex rel. Knaus v. Village of Hinsdale, supra, and that the judgment of July 8, 1969, should be affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph E. Medley, Jr., et al., Defendants, Joseph E. Medley, Jr., Defendant-Appellant.
    Gen. No. 11,168.
    Fourth District.
    May 7, 1970.
    Richard J. Cadagin, of Springfield, for appellants.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield, and Robert James Steigmann, Assistant State’s Attorney, for appellee.
   SMITH, J.

The sole issue in this case is whether or not the defendants were properly admonished as to the consequences of their pleas of guilty to the charge of armed robbery. They appeared at different times before different judges, withdrew their pleas of not guilty and entered pleas of guilty. As to Sargent and Agans, the State’s Attorney concedes that the admonition was inadequate and properly confesses error in this court. This leaves us only with the sufficiency of the admonition to Medley.

So far as the consequences of his plea are concerned, the record shows the following colloquy:

Q. “You further understand if you plead guilty and the court accepts your plea of guilty you could be sentenced to an indeterminate term of years in the penitentiary with a minimum of not less than 2 years.”
A. “Yes, sir.”
Q. “Knowing all that do you still desire to plead guilty?”
A. “Yes, sir.”

The court accepted the plea of guilty and imposed the sentence. The decision in this case is controlled by People v. Terry, 44 Ill2d 38, 253 NE2d 383. In Terry at p 38, the admonition held inadequate was as follows:

Court: “Well, the punishment for burglary is an indeterminate sentence in the penitentiary. What is it, Mr. Hall?”
Mr. Hall: (State’s Attorney): “Not less than one year.”
Court: “Not less than one year. And knowing that to be the penalty, do you still want to enter a plea of guilty, . . . Mr. Terry?”
Mr. Terry: “Yes, sir.”

The State’s Attorney insists however that People v. Scott, 43 Ill2d 135, 251 NE2d 190, controls. In Scott, the court advised the defendant that upon a conviction of the crime of burglary, he could be sentenced to the penitentiary for any number of years and not less than one year. In Scott, the Supreme Court held the admonition sufficient. The State’s Attorney concedes that the admonition in Scott using the words “for any number of years” is more simply stated than using the term “indeterminate number of years” and therefore we should follow Scott rather than Terry. We are not at liberty to do so. The court in Terry uses the precise language that the trial court did in this case and used the term “indeterminate.” Both of these cases were decided by the Supreme Court after the events of the case at bar. The State’s Attorney argues that actually it is pure semantics to differentiate between the term “indeterminate number of years” and the words “any number of years” and that this record does not show the defendant was in any way confused or misled by the use of the term “indeterminate.” The State’s Attorney asks us to apply an improper test. We might presume that the trial court would not have accepted this plea had it not been satisfied that it was understandingly made and that the defendant comprehended the nature of the crime charged and the punishment fixed by law. In so doing, we would be violating the mandate of the Supreme Court in People v. Mackey, 33 Ill2d 436, 211 NE2d 706, in which the Supreme Court said at p 438:

“To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumption.”

We are therefore not at liberty to indulge in presumptions as to what was in the mind of the court when it accepted the plea nor whether the defendant understood “an indeterminate number of years” as readily as “any number of years.” Its finding must be shown in the record. From the cases cited above, it is clear that it is the obligation of the trial court to follow the statute which states that a plea of guilty may be accepted when “. . . (2) The court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.” Ill Rev Stats 1967, c 38, § 115-2.

Furthermore, Supreme Court Rule 401(b) provides that “. . . The court shall not permit a plea of guilty . . . unless the court finds from proceedings had in open court at the time . . . that he understands the nature of the charge against him, and the consequences thereof if found guilty, . . . .” (Emphasis ours.) There is no such express finding in this record. No reason is suggested nor does any appear why this simple procedure cannot be readily followed. The transcript required by the Supreme Court as to each of the three defendants falls short of approximating the admonition and the finding required by the statute, the rule, and the decisions.

Accordingly, this cause is reversed and remanded with directions to vacate the plea of guilty and the sentence imposed and for a rearraignment in accordance with the views herein expressed.

Reversed and remanded.

CRAVEN, P. J. and TRAPP, J., concur.


author: HR. PRESIDING JUSTICE DAVIS

text:
    Lydia Hoda, Plaintiff-Appellee, v. William E. Hoda, Defendant-Appellant.
    Gen. No. 69-214.
    Second District.
    May 7, 1970.

      Covey, McKenney & Powers, of Crystal Lake, for appellant.
    Franz, Franz, Wardell and Lindberg, of Crystal Lake, for appellee.
   HR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Lydia Hoda, filed suit for divorce on October 14, 1969. Her verified complaint alleged that the parties had been living separate and apart since October 6, 1969; that the defendant had threatened her with physical violence in the past; and that she feared that upon notice of the suit being filed, he would physically injure her and interfere with her well-being, unless restrained by an injunction issued without notice and bond. The complaint included a prayer for the issuance of a temporary injunction without notice or bond restraining the defendant from “molesting, bothering, annoying, physically injuring or otherwise interfering with the well-being and freedom of movement of the plaintiff.”

The defendant was served with summons on October 16, 1969, but no application was then made for a temporary injunction, nor was such injunction obtained. The defendant’s attorney entered his appearance on November 3, and on November 5, the defendant received a notice that the plaintiff would appear before the court on November 6,1969, and move the court to enter an order to “enjoin the Defendant from entering upon the marital domicile or bothering or molesting the Plaintiff, as prayed for in the Complaint.” This motion was continued to November 7,1969, at 9:30 a. m.

Immediately prior to the hearing on November 7, the defendant filed his verified answer, but it does not appear that it was brought to the attention of the court. The defendant objected to the hearing, and stated that he had not received any pleading upon which the hearing was based, and could not properly prepare a defense. The plaintiff suggested that she was merely proceeding upon her complaint, although her notice suggested that she was seeking broader injunctive relief than prayed for in the complaint. The court stated that it would consider only the matters regarding the temporary relief sought in the complaint.

The plaintiff was placed on the stand and testified relative to occurrences subsequent to the filing of her complaint, including an alleged act of physical violence committed against her by the defendant. She had been under psychiatric care, and her answers at times were unresponsive and indicated a lack of respect for the court. Her attorney was unsuccessful in his efforts to control her.

The defendant’s conduct was not much less reprehensible. He interrupted the proceedings with emotional outbursts while the plaintiff was on the stand. At the conclusion of the plaintiff’s testimony, the court stated that this was an emergency matter; that the parties were brawling and were inclined to continue such conduct; and that it would issue a restraining order. The court subsequently, however, permitted the defendant to cross-examine the plaintiff. During the course of the cross-examination, the court stated that it would issue the temporary restraining order to protect the respective parties and to keep them apart, and that such order was necessary for their safety and well-being.

The trial judge indicated throughout the hearing that he was going to disqualify himself from further consideration in this case in that he was prejudiced. The record suggests that the court may have felt prejudiced against the plaintiff because of her conduct on the witness stand.

An order was entered by the court that the defendant be enjoined “from entering the domicile and bothering and molesting the plaintiff until further order of the court.” The court later, without additional hearing, denied the defendant’s motion to vacate this order. It' appears that the trial court had attempted to transfer the matter to another judge, but no other court would intercede on the motion to vacate the temporary order. This appeal appears to be in conformity with Supreme Court Rule 307 (Ill Rev Stats 1965, c 110A, par 307).

When we review the record of the hearing before the trial court, and consider the conduct of the plaintiff on the witness stand, the conduct of the defendant while attending the hearing, the strong indication of the defendant’s propensities toward violence, and the emotional instability of the plaintiff, we are convinced that the trial court acted in the best interest of the physical and mental well-being of the parties.

Nevertheless, it is our duty to determine whether the trial court also acted within the provisions of the law in granting such injunctive relief. Such requirement is necessary in order that parties litigant may be assured that they may have their day in court and an opportunity to be heard when rights are to be taken away from them. The exceptions to the requirement of due notice and full hearing are limited to very narrow confines wherein the law will permit rights to be taken away without such notice and the opportunity to be heard.

Under the provisions of section 3-1 of the Injunctions Act (Ill Rev Stats 1967, c 69, par 3-1), no temporary restraining order shall be issued without notice to the adverse party unless it clearly appears from a verified pleading that immediate and irreparable injury or loss will result to the applicant before notice can be served or a hearing held. Every temporary restraining order must define the injury and state why it is irreparable and why the order was granted without notice. Each order is limited in time, but may be extended. Other provisions of the statute limit the nature and effect of the order. Every order must set forth the reasons for its issuance, shall be specific in its terms, and shall describe in reasonable detail, the act or acts sought to be restrained.

Section 23 of the Divorce Act (Ill Rev Stats 1967, c 40, par 21.4), permits one spouse to have sole possession of the marital home during the pendency of the proceedings where there is on file “a verified complaint or a verified petition seeking temporary eviction . . . only upon due notice and full hearing, unless waived by the court on good cause shown.”

The plaintiff seeks to justify the order of the trial court on the basis of this section of the Divorce Act. Such explanation is not well-founded. The verified complaint does not seek a temporary eviction of the defendant. It alleged that the parties are living separate and apart and the proof established that the defendant was not living in the marital home. The complaint did not pray for an order barring him from the marital home, and no other pleading was filed by the plaintiff. If the plaintiff were seeking relief under this section, she did not properly invoke it by either a verified complaint or a verified petition. Failing in this respect, she cannot seek to justify the relief granted by the court on the basis of this statute. Broberg v. Mann, 66 Ill App2d 134, 137, 138, 213 NE2d 89 (1965).

From the record in this case, the exact circumstances under which the defendant left the marital home are not at all clear. However, it does appear that his counsel advised him to leave the home to avoid trouble.

The plaintiff and the defendant had been married for 34 years and in the light of these circumstances, we believe that before the defendant was forbidden to enter the marital home, there should have been a full hearing, based upon an adequate pleading, which would have fully advised him of the issues he was to meet.

The plaintiff had a history of mental illness and the instance concerning which she testified as the basis for awarding the injunctive relief, apparently occurred on November 3. There was sufficient time for her to file a pleading setting forth the basis of her claim for a temporary injunction and advising the defendant of the charge he was to meet. Kelly v. Kelly, 293 Ill 169, 173, 127 NE 377 (1920).

At the time of the hearing, the defendant had filed a verified answer denying the allegations made in the complaint. This answer should have been brought to the attention of the trial court. Had such procedure been followed, the court undoubtedly would have permitted the defendant to be heard on his answer and would have allowed him to present evidence rebutting the charges made by the plaintiff; and the court’s failure in this respect would have constituted error. Centennial Laundry Co. v. West Side Organization, 55 Ill App2d 406, 414, 204 NE2d 589 (1965); Kleinschmidt v. Kleinschmidt, 343 Ill App 539, 552, 99 NE2d 623 (1951).

Many errors are charged by the defendant, but we see no reason to belabor the points raised. While we believe that the conclusion reached by the trial court was unquestionably in the best interests of the parties, the injunction order which restrained the defendant from entering his marital home was not entered in compliance with the existing applicable law. It did not set forth the reason for its issuance and was not specific in its terms.

It is unfortunate that the plaintiff did not file a pleading for the specific relief which she sought; that the court did not require such pleading and an appropriate answer thereto (Ill Rev Stats 1967, c 110, par 42(1)); that counsel for the parties were unable or unwilling to arrange for a complete hearing before another judge after the trial judge indicated his disqualification; that the injunction order did not comply with the provisions of section 3-1 of the Injunctions Act; and that the circumstances seemed to require an appeal from the orders in question.

For the reasons heretofore stated, the order of November 7, 1969, for the issuance of an injunction, and the order of November 14, 1969, denying the motion to vacate such order, are reversed; the injunction which issued pursuant to the order of November 7, 1969 is dissolved; and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome R. Lanners, Defendant-Appellant.
    Gen. No. 70-31.
    Second District.
    May 7, 1970.
    Peter K. Wilson, Jr., of Aurora, for appellant.

      William R. Ketcham, State’s Attorney, of Elgin, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Jerome R. Banners, defendant, was convicted under five separate indictments charging him with Forgery (Ill Rev Stats 1967, c 38, § 17-3), all consolidated in this appeal. The facts constituting the offenses were stipulated.

On each occasion, defendant prepared and cashed checks knowing they would not be paid by the depository. In one instance the check was made payable to an existing person, other than defendant, but the drawer and drawee were fictitious. The remaining checks were made payable “to Jerome Banners” but signed with fictitious names as drawers.

Defendant’s motion to dismiss each indictment, on the basis that the signing of a fictitious name could not constitute the crime of forgery, was denied.

The argument of defendant, in the alternative, is that his stipulated acts are not within the Forgery statute if that statute is properly construed; and if held to be within the terms of the statute that it violates the equal protection clause of the United States Constitution, and Article 2, Section 11 of the Illinois Constitution requiring that “All penalties shall be proportioned to the nature of the offense . . . .”

The appeal was filed in the Illinois Supreme Court and that court transferred it here. The order of transfer stated:

“On this appeal defendant seeks to challenge the validity of the section of the Criminal Code defining the crime of forgery. In our opinion the contentions of the defendant do not present a substantial constitutional question, but involve a question of the proper construction of the section.”

Construction of the Forgery statute involves the following provision:

“Forgery.) (a) A person commits forgery when, with intent to defraud, he knowingly:
“(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; . . . .” (Ill Rev Stats 1967, c 38, § 17-3.)

Defendant argues that the language “purports to have been made by another,” assumes that there is “another”; and if, in fact, there is no other in existence, then the document cannot purport to have been made by another.

The People v. Gould, 347 Ill 298, 179 NE 848 (1932) is cited by defendant as authority for this argument. Gould was indicted for making and passing a coupon note using the name “M. D. Tomlinson” as the purported maker. The signature was not that of any known living person. The court found that the indictment could not be supported under then section 107 of the Criminal Code (Smith’s Stats 1931, c 38, § 279 — relating to “Fictitious Bills, Notes, etc.”) since there was no evidence in the record of an unconditional promise to pay as required under that section and the document, therefore, was not a “promissory note.” While noting that the language in the indictment clearly contemplated the charge under section 279, the court further noted that it could not, in any event, be justified under then section 105 (Smith’s Stats 1931, c 38, § 277) since that section, limited to forgery and counterfeiting was not intended to apply where a fictitious name was signed to a document.

The stipulated acts of Lanners here would have constituted the crime of drawing or uttering fictitious bills, notes, checks, etc. under section 279 of the old law. This section has been included in the codification of the present section 17-3, supra. (See SHA, c 38, § 17-3, “Committee Comments.”) In Gould, the court was distinguishing between the crime of forgery, as-then narrowly defined, and the crime of fictitious paper, which was then covered by a different section of the Criminal Code. Each were distinct and different offenses. However, the present Criminal Code broadly incorporates all forms of forgery into a single crime. See The People ex rel. Miller v. Pate, 42 Ill2d 283, 286, 246 NE2d 225 (1969) and People v. Haynes, 73 Ill App2d 85, 87, 218 NE2d 489 (1966). Also see 49 ALR2d 852, Annotated. Thus, Gould is inapplicable.

Defendant has admitted that he drew checks with intent to defraud, using the name of a fictitious person in each case as the purported maker. The crime of forgery under the present section 17-3 (a)(1) was properly charged in the language of the statute.

The major portion of defendant’s brief and argument has been devoted to his claim of constitutional violations. Since the transfer order expressly found no substantial constitutional questions raised by the appeal, we comment on these issues only briefly.

In substance, defendant’s argument is that one who signs his name to a check drawn on either a fictitious bank or with knowledge of insufficient funds in the depository is guilty of only the misdemeanor of a deceptive practice (Ill Rev Stats 1967, c 38, § 17-1 (d)), although he has the same criminal intention as this defendant. Thus, defendant reasons that there is deprivation of equal protection and the imposition of penalties punishing essentially the same acts disproportionately.

Classification of offenses which are reasonably drawn and which provide penalties not so disproportionate as to shock the conscience of reasonable men, are within legislative discretion with which the courts cannot interfere. See The People v. Ladwig, 365 Ill 574, 585, 7 NE2d 313 (1937); The People v. Saltis, 328 Ill 494, 497, 498, 160 NE 86 (1928); The People v. Touhy, 9 Ill2d 462, 466, 138 NE2d 513 (1956).

Skinner v. State of Oklahoma, 316 US 535, 62 S Ct 1110 (1942), is principally relied upon by defendant. In that case the court recognized that the state need not provide abstract symmetry in enactment of its criminal laws and may set apart classes and types of problems according to its needs and as dictated by experience. It could not, however, deprive individuals of a basic and irredeemable right to procreate by a sterlization statute which made invidious discriminations between classes of offenses. The ruling cannot help defendant in the circumstances before us.

Here the legislature has been fit to proscribe various kinds of acts of obtaining property of another by various forms of deception and with various descriptions of mental state or intent. (See SHA, 1967, c 38, § 16-1 (Theft); § 17-1 (Deceptive Practices); § 17-3 (Forgery) — and Committee Comments.) A range of alternative penalties of fine or imprisonment or‘both is provided. The legislature has chosen to distinguish the culpability of one who uses his own name as a maker from that of one who dissembles by the use of a fictitious name. We do not find that the legislative classification is so unreasonable or that the range of penalties is so disproportionate as to be constitutionally impermissible.

We, therefore, affirm the judgments below.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


author: RICHARDS, J.

text:
    Hattie M. Reed, Plaintiff-Appellant, v. Marie Long, as Administrator of the Estate of Harry Long, Deceased, Defendant-Appellee.
    Gen. No. 11,151.
    Fourth District.
    May 7, 1970.
    Elmo E. Koos, of Peoria, for appellant.
    Authur D. Young, of Lewistown, for appellee.
   RICHARDS, J.

This is an appeal from an order striking the complaint for lack of jurisdiction of the subject matter. This action is a second suit filed regarding the same occurrence, the first having been dismissed for want of prosecution. Plaintiff argues that despite the fact that the statute of limitations had expired at the time of the filing of this suit, the action was brought within one year of the dismissal of the first action under the authority of chapter 83, § 24a, Ill Rev Stats 1965.

The occurrence upon which the suits were based happened on July 15, 1962. The complaint in the first suit was filed on June 12,1964, and the defendant, Harry Long, filed his answer and later died on October 12, 1964. On December 21, 1964, plaintiff’s attorney suggested defendant’s death and on motion leave was granted to substitute a new party defendant. However, a new party was not thereafter substituted in that suit. On December 10, 1965, a rule was entered on the plaintiff to show cause why that suit should not be dismissed for want of prosecution, and on January 18, 1966, the rule was enforced and the suit was dismissed. On December 12, 1966, the second suit, being the suit here under consideration, was filed again naming Harry Long as the defendant and the summons that had been issued was returned on December 14, 1966, showing “Defendant is deceased as of October 23, 1964.” On October 18, 1968, plaintiff filed a motion to substitute Marie Long as Administrator of the Estate of Harry Long as a party defendant, stating in said motion that Harry Long had died October 12, 1964, and that Marie Long had been appointed administrator of his estate on October 16, 1968. The motion to substitute the party was allowed on the day it was filed and summons was issued and returned showing service on the defendant, Marie Long, on October 26, 1968. Thereafter, on November 25, 1968, the defendant filed her special appearance and moved the court to strike the complaint for lack of jurisdiction of the subject matter. On February 18, 1969, that motion was allowed and the court dismissed the complaint.

The appellee, in her brief, raises the question whether the filing of a suit against a deceased person invoked the jurisdiction of the court. This question is determinative of this litigation.

Although the cause of action could have been timely brought against an administrator of Harry Long’s estate under present day statutes, it is basic that at common law the action against Harry Long abated upon his death. 1 Am Jur2d, Abatement, Survival and Revival, § 47. The abatement was an entire overthrow or destruction of the suit. Fiegenbaum v. McFarlane, 339 Ill 367, 77 NE2d 816; Geiger v. Merle, 360 Ill 497, 509, 196 NE 497. Abatement extinguished the court’s jurisdiction over the subject matter. 1 ILP, Abatement, § 81; The People v. Taylor, 342 Ill 88, 94, 174 NE 59. A dead person cannot be a party to a suit as such is a nonexistent entity and the proceedings were void ab initia. Its validity could be called to the court’s attention at any stage of the proceeding. Lewis v. West Side Trust & Savings Bank, 377 Ill 384, 385, 36 NE2d 573. Accordingly, as the suit under consideration was a nullity and invoked no jurisdiction of the court, the allowance of the motion to substitute the administrator of Harry Long’s estate as the party defendant was of no effect as there was no valid pending action in which she could be substituted, nor had there been any party thereto that she could be substituted for. Chandler v. Dunlop, 311 Mass 1, 39 NE2d 969, 973.

The order of the Circuit Court of Mason County is affirmed.

Affirmed.

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


author: STOUDER, J.

text:
    Russell K. Taubert and June L. Taubert, Plaintiffs-Appellees, v. Frances L. Fluegel, Walter J. Fluegel, The Pekin Loan and Homestead Association of Pekin, Illinois, Henry A. Brinkman and Gordon K. Brinkman, d/b/a Brinkman Bros., Jerry J. Mahoney, d/b/a Mahoney Plumbing & Heating, Ashley & Gunsten, a Partnership, Illinois Valley Glass & Mirror Company, Inc., a Corporation, and Conklin Lumber Company, a Corporation, Defendants-Appellants.
    Gen. No. 69-61.
    Third District.
    May 8, 1970.

      Elmo E. Koos, of Peoria, for appellants.
    Dale E„ Sutton, of Pekin, for appellees.
   STOUDER, J.

The Plaintiffs-Appellees, Russell Taubert and June Taubert, husband and wife, brought this action in the Circuit Court of Tazewell County against Defendants-Appellants, Frances Fluegel and Walter Fluegel, husband and wife, seeking a mandatory injunction to compel defendants to remove a portion of their house which extended across a subdivision building line restriction. The court entered the injunction and it is from such decree that this appeal follows.

Defendant, Frances Fluegel, the owner of two adjoining lots in Arlann Country Club Subdivision, Tazewell County, Illinois, commenced the erection of a residence thereon in March or April of 1963. Plaintiffs owned the property to the east of defendant’s property, the property of plaintiffs being vacant at the time of the construction in 1963 and at the time of this action. Defendant’s house was completed in August 1963, and she moved in at that time. This action was commenced in May, 1964. The complaint, requesting a permanent mandatory injunction, alleged that the defendant had intentionally constructed her house in such a location that a portion thereof extended across the side building line as set forth in the applicable restrictions.

The subdivision restrictions provided that no residence could be built within eight feet of the side lot lines. Plaintiffs offered the testimony of a surveyor who testified concerning his procedures in surveying the area and his conclusion that defendant’s house extended across the side building line 4.6 feet at the front of the house, the encroachment continuing at an angle toward the rear of the house so that the rear portion did not extend across the side building line. A drawing prepared by the surveyor was introduced over the objections of defendant. It showed the location of the house in relation to lot lines and building lines.

The testimony presented by defendant tended to show that plaintiffs’ property suffered no damage, and that her house, valued at approximately $85,000, would be depreciated in value at least 25% if the front corner was removed.

In seeking to reverse the decree of the trial court, defendant first argues that her residence was not shown to be in violation of the side line building restriction. She argues that the plat was erroneously admitted into evidence since it was hearsay and made no reference to government monuments.

The surveyor testified concerning the measurements he had made, the bench marks he had used and indeed such bench marks included pipes or pins which had been placed by others as well as by him. From such reference points he determined the corners of the lot involved, the location of the common boundary line and the location of the house with relation thereto. His drawing referred to as a plat, was intended to explain his testimony. Seidschlag v. Town of Antioch, 207 Ill 280, 69 NE 949. In our view of the case, the surveyor’s testimony being admissible, the plat or drawing was also admissible. Kuglin v. Bock, 181 Ill 165, 54 NE 907, cited by defendant, holds only that a survey was incorrect (not incompetent) where based on the field notes of another surveyor and where contrary to stakes establishing the lot boundaries in a subdivision. This is not the case with the plat involved in the case at bar. Further, the Kuglin case indicates that monuments of the original survey are more satisfactory evidence of the boundaries of city lots than field notes, maps or plats. See also, Wolpert v. City of Chicago—Baldwin v. City of Chicago, 280 Ill 187, 117 NE 447. Such monuments were the reference points used by the surveyor. Additionally it should be noted that no evidence contrary to the surveyor’s testimony was offered by defendant.

Defendant next argues that based on the evidence, the issuance of a mandatory injunction was unwarranted. According to defendant, the encroachment caused little, if any, damages to plaintiffs’ property and the damage to defendant’s property would be serious and substantial if the injunction be sustained. A mandatory injunction is an extraordinary remedial process which is not a matter of right, but may be granted only upon the exercise of sound judicial discretion in cases of great necessity. Ambassador Food Corp. v. Montgomery Ward & Co., 43 Ill App2d 110, 192 NE2d 572. As applied to encroachment cases, the equitable doctrine of balancing equities requires that injunctive relief be denied where the encroachment is unintentional. Stroup v. Codo, 65 Ill App2d 396, 212 NE2d 518. Injunctive relief is appropriate where the encroachment is intentional. Nitterauer v. Pulley, 401 Ill 494, 82 NE2d 643, and Ariola v. Nigro, 16 Ill2d 46, 156 NE2d 536. No claim is made or evidence referred to from which it may be concluded that the encroachment was unintentional and hence the injunction is not contrary to equitable principles.

Restrictions upon the use of property imposed as a part of a general plan for the benefit of several lots, create rights in the nature of basements. O’Gallagher v. Lockhart, 263 Ill 489, 105 NE 295. Where the owner of property is chargeable with notice of restrictions imposed upon the use of such property or has actual notice of such restrictions, courts of equity will enforce such restrictions. The award of relief by injunction does not depend upon proof of substantial damage resulting from the violation. Hartman v. Wells, 257 Ill 167, 100 NE 500.

Where a restriction provided that only one residence could be built on a lot, the court in Fick v. Burnham, 251 Ill App 333, ordered the removal of a second residence erected in violation of the restriction. In O’Gallagher v. Lockhart, supra, the court ordered the removal of a large covered porch which extended across the front building line.

Lastly, defendant argues that the trial court erred in granting the injunction because the plaintiffs were not diligent in the enforcement of their rights. There is no doubt but that plaintiffs are required to act with due diligence. They may not sit idly by watching their rights being violated and then seek to enforce their rights at the expense of the defendant. The case of Carstens v. City of Wood River, 344 Ill 319, 176 NE 266, relied on by defendants, is illustrative of the general rule but is inapplicable to the facts at bar. There is no evidence from which it may be concluded that the plaintiffs failed to act diligently but on the contrary, there is ample evidence supporting the conclusion that they did act with appropriate diligence.

Taubert, one of the plaintiffs, was called as an adverse witness by the defendant. He testified that he first learned of the defendant’s building intentions prior to the commencement of construction. At that time Walter Fluegel, husband of defendant, telephoned plaintiff indicating that a contemplated house was larger than would fit on their lots and asked plaintiff’s permission to encroach across the building line. Taubert refused such permission. He did not thereafter see the construction until after the house was finished and within a month or two thereafter this action was commenced.

For the foregoing reasons, the decree of the Circuit Court of Tazewell County is affirmed.

Decree affirmed.

RYAN, P. J. and ALLOY, J., concur.


text:
    City of Kankakee, Plaintiff-Appellee, v. Eugene A. Young, Defendant-Appellant.
    Gen. No. 69-72. (Abstract of Decision.)
    Third District.
    May 8, 1970.


author: STOTJDER, J.

text:
    Earl F. Malchow and Bernice E. Malchow, Plaintiffs-Appellants, v. Ernest A. Tiarks, et al., Defendants-Appellees. Ernest A. Tiarks and Enid I. Tiarks, Plaintiffs-Appellees, v. Earl F. Malchow and Bernice E. Malchow, Defendants-Appellants.
    Gen. No. 69-96.
    Third District.
    May 8, 1970.
    Rehearing denied June 9, 1970.

      John F. Sloan, of Peoria, for appellants.
    Leiter, Newlin, Fraser, Parkhurst & McCord, and Theodore Korb, of Peoria, for appellees.
   STOTJDER, J.

Plaintiffs, Earl Malchow and Bernice Malchow, brought this action in the Circuit Court of Peoria County against Ernest Tiarks and Enid Tiarks, Defendants, seeking the reformation of two deeds or in the alternative, a conveyance of certain property by the defendants. The parties are the owners of adjoining lots and this controversy arises because the Malchows’ house encroaches on the property of the Tiarks. Alternatively, the complaint sought damages against Richard Baxter and Floyd Roth, Defendants, based on misrepresentation should the plaintiffs sustain damage on account of the encroachment. Motions for summary judgment were filed by all defendants. Three months later, the Tiarks in a separate action sought a permanent mandatory injunction against the Malchows ordering the removal of that part of the Malchow house which extended onto the Tiarks’ property. The cases were considered together in the trial court as well as on this appeal, and for that reason, the parties will be referred to as they are designated in the initial action, although their designation as plaintiffs and defendants were reversed in the second action. The court granted the motions for summary judgment, dismissed plaintiffs’ complaint and entered a permanent mandatory injunction as requested. Appeal has been taken from all of such orders.

The facts appear from the pleadings, pretrial depositions of all parties and additional affidavits. In May, 1966, the Tiarks purchased lot 230 from the owner of the subdivision, the lot being then vacant. In November, 1966, the Malchows purchased lot 231, also a vacant lot, the purchase having been made through Baxter and Roth, sales representatives of the subdivision owner. As shown by the subdivision plat, lots 230 and 231 are located at the south end of a cul-de-sac. The long dimension of the lots is from north to south and it is the more or less northerly line of the lots which fronts on the street (Cobblestone Court). Lot 230 adjoins and is west of lot 231.

According to the Malchows, prior to November, 1966, they were shown lot 231 by Wilma Allenspaeh, a sales representative of Baxter and Roth. A deep gulley extended over a part of the rear portion of the lot. She showed them the lot lines and four metal stakes one inch in diameter. She showed them a stake on Cobblestone Court farthest to the north and also a stake on Cobblestone Court to the southwest. She showed them a stake at the northeast corner of the lot and pointed out another stake at the top of the gulley on the southwesterly side of the lot. The plat showed that this line extended back into the gulley and was 204 feet from the northwesterly stake in front on Cobblestone Court. The stake at the top of the gulley was about 135 feet back from the northwesterly stake on the corner of Cobblestone Court. According to Malchow, he never did find any stake at the rear in the gulley since it would have been considerable distance from any structure to be built on the lot. Shortly after the lot was purchased in November, 1966, Malchow stated that he stretched a line between the two westerly stakes in order to ascertain the boundary line between his property and that of the Tiarks. He also said at that time he called Wilma Allenspaeh, the saleslady, asking her about the location of the southwest corner and was informed that if he measured 204 feet from the front stake through the stake at the top of the gulley, he would find the corner.

In May, 1967, Malchow together with his contractor Schielein, went to the lot to lay out the house, at which time Malchow pointed out to his contractor the stake in the northwest corner on Cobblestone Court and the stake at the top of the gulley as being on the west line of the property. The contractor placed a larger wooden stake in front of the metal stake at the top of the gulley, ran a line to the front stake and then laid out the house so that the closest corner to the boundary line was seven feet therefrom, as required by the subdivision restrictions. Construction of the Malchow house was commenced in May, 1967, and substantially completed by the latter part of August, 1967, at which time plastering and some other inside work remained to be done.

According to the affidavit of Schielein, he talked with Graham, the contractor for Tiarks, early in August. Graham inquired about the stakes and Schielein told him that the stakes had been represented to him as being the west line of the Malchow property. Graham indicated that he would use the line as the boundary and lay out the Tiarks’ house with reference thereto. Graham did lay the house out, commenced construction and by the latter part of August he had started framing the house.

During the week preceding August 29,1967, Mr. Tiarks indicated to Mr. Malchow that he thought there might be some error in the boundary. On August 29, 1967, Tiarks called Malchow and told him that a survey had been made and that the boundary line ran through the corner of Malchow’s house and that he, Tiarks, was going to see his attorney. This litigation followed.

Plaintiffs sought reformation of the deeds from the owner of the subdivision to the Tiarks and to themselves, said reformation to describe the lots they each owned as staked out on the ground rather than as platted. If such reformation was not possible, the complaint requested a portion of defendants’ property necessary to be added to plaintiffs’ property to avoid the encroachment and to comply with side lot building lines be determined and valued and upon payment thereof conveyance of the property be ordered. Defendants’ request for a permanent mandatory injunction is based on the theory that plaintiffs are not entitled to the relief which they requested but that on the contrary the defendants are entitled to have the encroachment removed. As indicated earlier, the trial court agreed with the defendants’ position and the mandatory injunction was ordered. The trial court also dismissed plaintiffs’ complaint for misrepresentation against Baxter and Roth.

Plaintiffs first argue that the undisputed evidence shows that the deeds were based on a mutual mistake of fact and for that reason the trial court erred in declining to reform the deeds. We find no merit to this contention.

The rule regarding reformation of a deed on account of mistake is stated in Schmitt v. Heinz, 5 Ill2d 372, 125 NE2d 457, as follows, “To reform an instrument upon the ground of mistake, the mistake must be of fact and not of law, mutual and common to both parties, and in existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing and, by mistake, expressed another.” When this rule is applied to the facts at bar, it appears that there is a complete absence of any evidence from which it may be inferred that any mistake was made in the deed from the owner of the subdivision to the Tiarks. In May they purchased lot 230, and this is the lot described in the deed and the lot which was both intended to be conveyed and intended to be purchased. Although plaintiffs seek to infer the contrary, there is no evidence from which it can be inferred that the Tiarks purchased their lot with reference to or in reliance upon location of any particular stakes. Absent evidence that the Tiarks considered that the stake at the top of the gulley on what would have been the east line of their lot, was the east line, there can be no mutuality of error.

Although plaintiffs attempt to attach significance to the fact that each of the lots was purchased from a common owner as in Maes v. Olmsted, 247 Mich 180, 225 NW 583, such rule still requires a mutual mistake, i. e., some failure of the documents conveying title to accurately represent the intention of the parties. No such failure of intention can be attributed to the parties in the case at bar. Korosic v. Pearson, 377 Ill 413, 36 NE2d 744, cited by plaintiffs, illustrates a case where deeds were reformed on account of mutual mistake of fact. The facts justifying the reformation in the Korosie case are so different from those in the case at bar that the reasoning and result are consistent with, and support the conclusion of the trial court on this issue.

Plaintiffs next argue the trial court erred in granting the permanent mandatory injunction and further, that in accord with sound equitable principles, whatever injury defendants may have sustained can be remedied by other appropriate equitable relief.

The mandatory injunction is recognized as an extraordinary remedial process which is granted not as a matter of right but in the exercise of sound discretion. It is a writ not regarded with judicial favor and is used only with caution in cases of great necessity. Lyle v. City of Chicago, 357 Ill 41, 191 NE 255.

The application of equitable principles to encroachment cases is discussed in Stroup v. Codo, 65 Ill App2d 396, 212 NE2d 518, which concludes, “It is an accepted principle of law that where an encroachment is slight and unintentional and the cost of removing it great, and the corresponding benefit to the adjoining owner is small, and damages can be had, the courts will ordinarily refuse to grant injunctive relief, and will leave the complaining party to his remedy at law. See Pradelt v. Lewis, 297 Ill 374, 130 NE 785.” In the application of the foregoing equitable principles, there is no question that a compulsory removal of a portion of plaintiffs’ house would cause serious inconvenience and substantial expense, and the corresponding benefit to the defendants would be small. Whether such rule then is applicable depends on the rather narrow issue of whether the encroachment was unintentional, as contended by plaintiffs, or intentional as insisted by defendants. In Stroup v. Codo, supra, the court concluded the encroachment was unintentional where the contractor relied on an erroneous plat. For an encroachment to be intentional, it must be either deliberate or in willful disregard of the rights of the adjoining property owner. Nitterauer v. Pulley, 401 Ill 494, 82 NE2d 643. Such an encroachment will be regarded as deliberate when made after due warning. Ariola v. Nigro, 16 Ill2d 46, 156 NE2d 536. Willful disregard of the adjoining property owner’s rights may result from culpable negligence, that is, the failure to take ordinary and reasonable precaution to ascertain the boundary line. Nitterauer v. Pulley, supra.

No contention is made in the instant case that plaintiffs commenced construction of their house with any knowledge that it encroached upon the property of defendants or that the construction of the house was commenced at its location, notwithstanding contrary warnings of defendants. Thus, the only question is whether the plaintiffs took appropriate precautions in locating the boundary lines.

We believe from the undisputed facts contained in the documents submitted to the trial court that the encroachment was not the result of willful disregard of defendants’ rights. It is undisputed that the boundary line was based on two metal stakes of the kind used to set out boundaries on the ground in the subdivision. Further, plaintiffs believed such stakes to be the boundary line, such belief being based on the representations of the real estate agent whose representations the plaintiffs could have been reasonably expected to believe. Although these facts might establish the unintentional nature of plaintiffs’ conduct, such conclusion finds additional and in our opinion, irrefutable support from defendants’ own conduct. What did defendants rely upon to establish the boundary line and lay out their own house? They relied, according to the undisputed affidavit of Schielein, on his representation that he had been told the two stakes were on the boundary line. If defendants’ conduct in establishing the boundary line was reasonable, then plaintiffs’ conduct was even more reasonable and defendants ought not to be heard to complain. Since we hold that the facts set forth in the documents considered by the trial court failed to support any inference that plaintiffs’ conduct was intentional, it therefore follows that the court erred in granting the mandatory injunction. We further believe that in the application of equitable principles, defendants’ injury may be adequately relieved by conveyance of or release to the plaintiffs of sufficient area to abate the encroachment upon the payment of reasonable compensation therefor as may be determined by the court.

The last question presented is the propriety of the trial court’s action in granting the motion for summary judgment made by Baxter and Both. The familiar rules relating to the granting and refusing of motions for summary judgment are discussed by each party. The parties are in general agreement that the propriety of the court’s action depends on whether or not genuine or triable factual issues are disclosed by the facts and inferences therefrom in the documents considered by the trial court. Patterson v. Stern, 88 Ill App2d 399, 232 NE2d 7, and Buzinski v. Do-All Co., 31 Ill App2d 191, 175 NE2d 577.

As can be concluded from the facts stated in other portions of this opinion, plaintiffs’ claim against Baxter and Both is based on testimony that a saleslady xnisrepresented the location of a metal stake at the top of the gulley as being on the west boundary line of the property.

Where one who is selling property takes the responsibility of locating the lot line, he is under a duty to correctly locate it and where purchaser is ignorant of the location, he has a right to rely upon the positive statement and representation, and hold the person making such statement responsible. Lickus v. O’Donnell, 321 Ill App2d 144, 52 NE2d 271. Defendants do not dispute this rule, but argue that the facts as a matter of law show no liability on their part. In particular, they rely on an exculpatory clause in the offer to purchase, signed by plaintiffs, and also on the assertion that plaintiffs had no right to rely on the representation.

Subparagraph N of the offer to purchase provided, “The purchaser has personally examined this property and is satisfied as to its condition and all other matters pertaining to it. This proposal is made as a result of said examination and through no representations other than those expressed herein either oral or written.” Although such clause purportedly is an exemption from all liability for misrepresentation unless the representation is included in the purchase offer, it is clear from defendants’ own argument that such exemption may not be literally applied. The defendants argue that the plaintiffs were shown a plat which included the lot 231, which they purchased, and that the dimensions of the lot as shown by the plat are true and correct. Since the size of the lot or the length of its boundaries was not mentioned in the purchase offer under defendants’ interpretation of its contract, what difference would it make if the plat (not a representation in the purchase offer) were true and correct ? By representing and describing the lot by its number in the purchase contract, we believe that such representation not only includes reference to the plat, as conceded by defendants, but also the location of the boundary lines as may have been pointed out and established by defendants’ agent. We would further observe that we do not see how the exculpatory clause can have any application to a representation which by its nature could not have been included in a written purchase offer. Accordingly, it is our conclusion that the exculpatory provision of the purchase offer was inapplicable to the misrepresentation charged.

Defendants’ remaining argument in support of the action of the trial court is that its sales representative ought not to have been believed, and in any event, what she may have said was immaterial. Their argument in this respect may be summarized by the last observation in their brief which is “Not by the wildest stretch of the imagination could it have been anticipated that the parties would have indulged in such reckless conduct and it is submitted that it would be most unjust to call upon the realtors to compensate them for their imprudence.” As matters turned out, it was imprudent for the plaintiffs to have relied on the defendants’ agent. However, we do not believe that the facts set forth in the various documents establish defendants’ liability or nonliability as a matter of law. It appears from defendants’ own argument that triable issues of fact exist regarding the materiality of the representation and whether plaintiffs were entitled to rely upon them.

In summary, we hold one, that no error was committed by the trial court in declining to reform the deed on account of mistake, two, that the evidence is insufficient to support the trial court’s award of a mandatory injunction, three, that other equitable relief is available to alleviate defendants’ injury, and four, that disposition of plaintiffs’ claim for damages resulting from misrepresentation was not appropriately determined by motions for summary judgment, such proceeding revealing that triable issues of fact exist.

For the foregoing reasons, the judgments of the Circuit Court of Peoria County are reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Judgment reversed and remanded with directions.

RYAN, P. J. and ALLOY, J., concur.


text:
    John Wayne Eiker, a Minor, by Charles L. Eiker, His Father and Next Friend, Plaintiff-Appellant, v. Ross E. Ragon and Melvin B. Brock, Defendants-Appellees.
    Gen. No. 69-50. (Abstract of Decision.)
    Third District.
    May 15, 1970.


text:
    Ronald W. Smith, Plaintiff-Appellee, v. Dolores J. Smith, Defendant-Appellant.
    Gen. No. 69-178.
    Second District.
    May 15, 1970.
    Roy S. Lasswell, Lasswell & Sodergren, of Geneva, for appellant.
    Charles H. Atwell, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This cause was first presented on appeal in this court almost three years ago. (Smith v. Smith, 87 Ill App2d 21, 230 NE2d 474 (1967).) At that time the defendant, Dolores Smith, appealed from the judgment of the Circuit Court of Kane County denying a change of venue and denying modifications of the divorce decree pertaining to child custody. The complaint for divorce charged the defendant wife with adultery and consorting with a criminal. A default decree was granted to the plaintiff on March 12, 1965, awarding custody of the two minor children of the parties to the plaintiff. The defendant had, in defiance of a previous court order entered on September 29, 1964, granting temporary custody to the father, removed the children from his care and kept them under her control until the plaintiff located the children and secured their custody by a writ of attachment on November 4, 1966. The defendant, upon failure to show cause why she should not be held in contempt of court, served a seven day sentence in the Kane County Jail. She then appealed from the denial of a change of venue and from an order modifying the divorce decree entered on February 8, 1967. The cause was reversed and remanded in this court (Smith v. Smith, supra), with directions to grant the change of venue; to vacate the order denying the petition for change of custody entered February 8, 1967, and to hold a hearing on any petition the defendant may file in the cause relative to the custody of the minor children. Most of the essential facts pertaining to the custody of these children up to the remandment by this court are set forth in this court’s opinion (1967) and need not be repeated here.

On November 6, 1967, the defendant filed an amended petition to modify the decree of divorce alleging a change in circumstances and that “she is now a fit and proper person to have the care, custody, control and education of said minor children.” The cause was set for hearing in April of 1968 before another judge of the circuit, who after many hearings wherein witnesses for both parties testified, entered an order on May 29, 1969, denying defendant’s petition for a change of custody of the minor children. This appeal followed.

The defendant contends that the trial court erred in denying her custody of the minor children since there was no evidence that she was unfit and no positive showing that giving the custody to the father was for the best interest of the children. She cites but one case, Nye v. Nye, 411 Ill 408, 105 NE2d 300, and relies upon the following language in that opinion at page 414 as a determination of her right to custody of the children:

“Under our divorce statute the court is clothed with a large discretion in determining to which parent a child will be given. It is usual in such cases, due to the tender years of the child and in consideration of its best interests, to entrust its care and custody to the mother, she being a fit and proper person to rear the child. Miner v. Miner, 11 Ill 43; Draper v. Draper, 68 III 17. The maternal affection is more active and better adapted to the care of the child. Especially is this true in the case of a minor daughter, where the care and guidance of a mother’s hand is doubly important. This principle has become so well fixed and followed in this State that this court has not in recent years been called to rule upon it. Therefore, compelling evidence must be presented, proving the mother to be an unfit person, to cause the custody of her minor daughter to be denied her, or there must be a positive showing that to deny custody to the mother would be for the best interests of the child.”

However, in Carlson v. Carlson, 80 Ill App2d 251, 255, 225 NE2d 130, it was stated that in Illinois there is no arbitrary rule that unless there is evidence that a mother is unfit she should have custody of young children and the case of Nye v. Nye, supra, and similar cases, was distinguished from cases wherein the previous custody of the children had been given to the father. The court stated that in a case where the original decree was modified by changing custody from a mother to a father, it would be an abuse of discretion to change the custody unless there was a proper adjudication of unfitness on the mother’s part or proof of changed conditions since the original custody order. Furthermore, the court stated that where both parents are fit persons they have equal right to the custody of minor children and the paramount concern of the court is the welfare of the children. In the Carlson case the mother had not previously been given custody of the children by court order and after reviewing the evidence the court sustained the order of the trial court which denied the relief of changing the custody from the father to the mother. Here, as in the Carlson case, the divorce decree awarded custody to the father and the mother never had legal custody of the children since the divorce. Thus, it was not necessary for the trial court to determine the unfitness of the mother.

In Maroney v. Maroney, 109 Ill App2d 162, 249 NE2d 871, the court stated at page 170:

“The guiding star in a hearing to modify child custody provisions of a decree is at all times the best interests of the child. Frees v. Frees, 99 Ill App2d 213, 240 NE2d 274. After a divorce decree, the custody of a child may be changed by order of the court from time to time as the best interests of the child demand.”

The Nye case, (411 Ill 408, 105 NE2d 300) stands for the proposition that the decree is res judicata as to the facts which existed at the time it was entered but not as to facts occurring thereafter. In Barbara v. Barbara, 110 Ill App2d 189, 198, 249 NE2d 269, it is stated that there is no “immutable rule of law that a child should be awarded to its mother in every case in which she is found to be a fit parent,” and that “the guiding star is and must be the best interest of the child.”

Here the mother is a 27-year-old woman who has been married to her second husband for the past three years. They live in a new three-bedroom home and both are employed. She testified that if she could obtain custody of the children, she would stop her employment and take care of the children. The father has been married to his second wife for the past four years and both are employed. The children are cared for during the day by a babysitter. The testimony is that the father is of excellent reputation and highly regarded by his employer, church and the community. Furthermore, it appears that the children are presently happy and are well provided for.

Also, the trial judge conducted extensive hearings before finally determining that the children should remain with the father and we find that his decision is supported by the record. It has been often said that in the absence of convincing evidence that a manifest injustice has been done or unless the trial court has abused its discretion, the reviewing court should not reject the findings and decision of the trial court in matters of this nature. (Barbara v. Barbara; Maroney v. Maroney, and Carlson v. Carlson, supra.) Here there is no change of condition affecting the best interests of the children which require a change in custody at this time.

Defendant also complains that the court order appealed from makes no findings as to the unfitness of the mother or the advantages to the children in remaining with the father. From what has previously been said, it is neither necessary to make a finding of unfitness on the part of the mother, nor to make a factual finding concerning the advantages to the children in remaining with the father. Smith v. Smith, 36 Ill App2d 55, 58, 183 NE2d 559.

For the reasons stated above, judgment of the Circuit Court is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J„ concur.


text:
    Illinois Association of Remittance Agents, a Not-For-Profit Corporation of the State of Illinois, Roy Lundgren, Individually and on Behalf of All Licensed “Remittance Agents” of the State of Illinois, Plaintiffs-Appellees, v. Paul Powell, Secretary of State of the State of Illinois, Defendant-Appellant.
    Gen. No. 11,137.
    Fourth District.
    May 18, 1970.

      William J. Scott, Attorney General of State of Illinois, of Springfield (Francis T. Crowe, Assistant Attorney General, of Chicago, of counsel), for appellant.
    Graham & Graham, of Springfield, and Snyder, Clark, Dalziel, Holmquist and Johnson, of Waukegan, for appellees.
    McCarthy, Scheurich, Duffy & McCarthy, of Chicago (John M. Duffy and Daniel J. McCarthy, of counsel), for amici curiae.
    Fohrman, Lurie, Holstein & Sklar, of Chicago (Paul M. Lurie and Robert A. Holstein, of counsel), for class amici curiae.
   SMITH, J.

In 1966, the Secretary of State inaugurated a program of authorizing banks to issue and distribute passenger vehicle license plates. A bank desirous of doing so entered into an agreement with the Secretary which set forth his requirements and the procedures to follow. There are, as we know, other means of obtaining license plates, such as mailing an application to the Secretary or seeking out the services of a licensed remittance agent. Banks furnishing this service have steadily increased from an initial twenty-three to now around eighty-seven. Likewise, the number of plates distributed through them has increased from some 612,000 in 1967 to over a million in 1969. Under their agreement with the Secretary, the banks involved process the application, determine and receive the correct fee, issue the plates and remit the fee to the Secretary. All of the equipment necessary for processing is standardized and all expenses are borne by the banks. The availability of this arrangement gives banks an opportunity to provide an additional service for their customers, or for that matter, noncustomers — something they apparently like to do— and on top of that they charge a fee — generally $1. The Secretary’s agreement doesn’t prohibit this charge nor has he published any suggested fee schedules for the banks to follow. In short, he has said nothing at all apropos thereof. Those in a bank responsible for issuing the license are its employees and the Secretary exercises no supervisory control over them whatsoever. Nor do the applicants. As long as the banks follow the procedures outlined in the agreement, and the requests of the applicant, all goes well. As we have said, all expense incidental to issuance, even to the extent of purchasing the validating machines, the banks pick up. The banks even pick up the plates — literally, from the Secretary. The General Assembly at its last session did authorize the Secretary to prescribe maximum service charges for persons authorized “to receive and remit or transmit to the Secretary such renewal application and fees therewith,” but we are not concerned with such here, but rather with the propriety of the assumption by the Secretary to act in the first instance, and if proper, whether the banks can charge a fee of the applicant.

The Secretary, defendant, says he has the right to authorize banks to do that which has just been described. Plaintiff, Illinois Association of Remittance Agents, disputes this. They say that the Remittance Agents Act provides the only avenue of doing what the Secretary and the banks are presently doing — that the banks have not complied with the Act, and, perforce, are acting illegally. Banks, they argue, should become licensed remittance agents, like their members. The Remittance Agents Act (Ill Rev Stats 1969, c 16%, §§ 91-100) in § 92 defines a “remittance agent” as any person “. . . who holds himself out to the public as being engaged in, or who engages in accepting money for remittance to the State of Illinois . . . for the payment of vehicle taxes or vehicle license or registration fees;....” The purpose of the Act, so the first section says (§ 91), is to provide some means of regulation of remittance agents because of the obvious hazard of irresponsible agents failing to make remittance with “consequent loss to the remitters.”

The Secretary argues that this Act is not exclusive, and his agreement with the banks is perfectly proper. Suffice it to say while banks could doubtless qualify as remittance agents, they disincline to do so, and as we have seen, to date, they have been able, in fact, to operate as remittance agents without so complying. Whatever their reasons, they haven’t had to, and as we now\ hold, they don’t have to, so long, that is, as the Secretary continues the present arrangement with them.

The provision of the Act which takes banks out of the Remittance Agents Act and precludes its use as a bar to their present arrangement with the Secretary is § 6(1), (Ill Rev Stats 1969, c 16%, § 97) which reads:

“This Act shall not apply to (1) any person who accepts for remittance only such sums as he is authorized to collect by the remittee as its agent, . . . .” [Emphasis supplied.]

The Secretary points also to (2) of this section as additional authority for the noninclusion of banks:

“. . . (2) to any person who, in connection with the issuance of a license to him to conduct a business in this State, shall have filed, pursuant to a statutory requirement, a surety bond covering the proper discharge of any liability incurred by him in connection with the acceptance for remittance of money for the purposes designated in the Act. . .

The banks, the Secretary says, all have a “Bankers blanket bond.” This feature, while doubtless reassuring, does not, in our opinion, provide a statutory basis for exclusion, though the argument has much to commend it.

It seems to us the banks that have signed up fall precisely within this exception, § 6.1, as they are indeed agents of the “remittee,” the Secretary, and are authorized by him to accept for remittance only such sums as they are authorized to collect.

Assuming we are right, plaintiff next questions the modus operand! of the banks in collecting a fee for themselves in addition to license fees. This is really the nub of the Association’s complaint. But before providing an answer, we must first answer the question as to whether this kind of agreement can properly be entered into by the Secretary and we can do so without further ado by responding in the affirmative, since it is not prohibited by law and no public policy we are aware of positions it beyond the pale.

There is no authority provided by law which allows banks to charge a fee, nor, as we have seen, does the Secretary authorize them to do so. But we deem all this somewhat beside the point. The true answer lies in distinguishing between the banks as agents for the Secretary and as agents for the applicants. Most assuredly, the banks themselves are not employees of the Secretary or the applicants. We can agree with the statement in Sprinkle v. Cass County, 340 Ill 382, 172 NE 720, 721, cited to us by the Association, and yet hold that the fee charged is proper for the reason that a bank when exacting does so as an agent of the applicant who is the one who pays it:

“Compensation for official services rendered in behalf of the state or any public corporation rests wholly upon statutory provision or authority. . . . Public officers have no claim for official services rendered except where, and to the extent that, compensation is provided by law. ...”

True, the Motor Vehicle Act sets forth the fees for plates (Ill Rev Stats 1969, c 95%, §§ 3-801 to 3-834), and the Secretary and his employees are prohibited from charging anything more, even a fee for administering an oath. (§ 2-107, c 95%.) But these prohibitions are as nothing to a bank when charging a fee of an applicant for its services as his agent in processing his application for plates.

The trial court found that the banks were “employees or agents” of the Secretary and were prohibited from charging a fee, reasoning that the law governing the flat fee restrictions on the Secretary applied with equal effect to the banks, that is, since the Secretary could only charge the statutory fee — not something in addition for going through the mechanics of issuance— then the like effect as to his “employees or agents”— here the banks.

It is true, of course, that a public employee or officer in the performance of his duties cannot in addition to his authorized compensation, whether by fee (now almost passé) or salary (today’s mode) exact something additional. There may be perquisites but that is not the same as additional remuneration. But, in holding as we do, there is no dilution of this salutary principle which prohibits public officials or their employees and agents from accepting other than the compensation provided by law. Quite the contrary — the banks here charge the applicants for their services as their agents — a selection, or rather election, of their own making. The banks are not agents of the Secretary of State when they perform this service for the applicants and a charge is, therefore, permissible. The banks serve in a dual capacity, as an agent for the applicants when the banks’ services are sought, and as an agent for the Secretary when it processes the applications and remits the requisite fees. There are other ways of obtaining plates, by mail or appearing personally at one of the Secretary’s distribution centers, where there is no charge. However, if one seeks the aid of a bank in obtaining plates, the bank then becomes his agent and, as we have said, a charge is proper. There is nothing unusual in any person or corporation serving two principals in a given transaction where the services to each are consistent with his duty to each and the interest of neither is disparaged.

Accordingly, the judgment appealed from is reversed and remanded with directions to enter a final decree in accordance with the views herein expressed.

Reversed and remanded.

CRAVEN, P. J. and JONES, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Rice, Defendant-Appellant.
    Gen. No. 11,148.
    Fourth District.
    May 18, 1970.

      Arthur M. Lerner, of Champaign, for appellant.
    Lawrence E. Johnson, State’s Attorney of Champaign County, of Urbana, for appellee.
   SMITH, J.

The defendant appeals from a sentence of five to fourteen years in the penitentiary on a jury verdict finding him guilty of forgery. He assigns four grounds for reversal: (1) His motion for discharge should have been allowed because he was not given a speedy trial; (2) the court erred in allowing into evidence the contents of his wallet; (3) the court erred in allowing into evidence articles found in the automobile in which the defendant was riding; and (4) his guilt was not established beyond a reasonable doubt. On this record, the errors assigned are specious and the judgment is affirmed.

On July 22, 1968, the defendant entered the Colonial Liquor Store, selected a bottle of Haig Scotch whiskey and presented to the cashier a check for $65 payable to Matthew Rector and bearing the name of John Herschf eld as maker. Defendant identified himself to the cashier, said he was employed by the Hirschfeld Distributing Company and that the check was his payroll check. The cashier deducted the price of the whiskey and gave the defendant the balance in cash. This was the incident on which he was tried. A little later in the evening he went to another store, tendered another check for $54. The owner of that store had done business with the Hirschfeld Company for about twenty-five years and noted that the printed name Hirschfeld was misspelled as Herschfeld. The defendant again identified himself as Matthew Rector and the proprietor then telephoned the Urbana police. The defendant retrieved his check and fled. The officers responded, were given a description of the defendant’s automobile and the direction he had taken. They trailed him for about eight blocks with the red lights flashing and the siren operating. Just before they reached him, several pieces of paper were tossed out of the right front seat window of the automobile. The defendant was riding in the right front seat. These pieces of paper were retrieved, as were several others just like them, from the bottom of the car and from the defendant’s wallet, and a bottle of Haig Scotch whiskey was on the floorboard of the car. These pieces of paper were more checks. The defendant identified himself as John Rice at the time of his arrest. The defendant was identified by the cashier at the first place and by the proprietor of the second place and by the police officers as the man who was arrested following the pursuit described. The first complaint involving the second establishment was filed July 23. The complaint involving the check at the first establishment was filed August 30. On August 30, the defendant appeared and was furnished a copy of the complaint and a public defender was appointed to represent him, moved for an immediate preliminary hearing and it was allowed. Evidence was heard and the defendant was bound over to the Grand Jury. On November 7, the indictment was returned. The case was set for trial on November 18, which was within 120 days of the defendant’s arrest. His trial lawyer was the one appointed August 30, and they then moved for a continuance on the grounds that; a continuance was necessary to properly prepare their defense. That motion was allowed and the trial was continued to and begun December 2.

A mere reading of the facts above stated clearly demonstrates that the defendant was brought to trial within 120 days after this charge was filed against him; that he had had an attorney since August 30 who was present when the evidence in the preliminary hearing was given and who conducted the trial. This same attorney and the defendant moved for a continuance. Under these circumstances, it seems apparent that the defendant was accorded the opportunity for a speedy trial within the contemplation of his constitutional right and the decisions construing that right. It is recognized that various factual situations involving the 120-day rule may arise and it is incumbent upon the court to examine the facts in each case to prevent a miscarriage of justice either by technical evasion of the right to a speedy trial by the State or by a discharge of the defendant for delays in fact caused by him. People v. Fosdick, 36 Ill2d 524, 224 NE2d 242; People v. Bagato, 27 Ill2d 165, 188 NE2d 716. In People v. Love, 39 Ill2d 436, 235 NE2d 819, the Supreme Court recently again discussed the requirements of the Constitution and of the statute. It was there pointed out that the constitutional proviso is met where the defendant is brought to trial within 120 days, after being taken in custody or after filing a demand when on bond and under such circumstances there will ordinarily be no constitutional question involved because there would be no arbitrary or oppressive delay which the constitution prohibits. Where the delay, however, is occasioned by the defendant, there is likewise normally no violation of the constitutional provision nor of the statute. People v. Baskin, 38 Ill2d 141, 230 NE2d 208. It is apparently the defendant’s contention here that since the case was not noted for trial until the twilight of the 120-day period, that this delay was oppressive and arbitrary and prejudiced the defendant. It is charged that the delay was arbitrarily brought about by the State’s Attorney. The facts do not support the charge. Indeed, the entire case seemed to have moved along with reasonable dispatch and the continuance was patently caused by the defendant. Where an attorney has represented a defendant for almost three months before the time here involved and needs more time to prepare, it defies fact to say that the delay was not occasioned by the defendant.

It is also contended that the checks picked up along the road and in the automobile, along with the Haig Scotch whiskey, were the product of an unlawful search and seizure and should not have been admitted into evidence. The defendant concedes that People v. Robinson, 40 Ill2d 453, 240 NE2d 630, probably controls. We agree. It is hard to manufacture the facts in this case into a search at all. The whiskey was in plain sight, the checks were in plain sight, and the checks tossed out of the window were in plain sight. Within the principles stated in Robinson, no search was conducted and no warrant was necessary.

The defendant complains also that in the pretrial conference there was a demand for physical objects and in particular some discussion about the wallet, but the State’s Attorney indicated that he did not intend to introduce the wallet in evidence. The trial judge indicated that since such was the case, no discovery was required. However, several items which came out of the wallet, including some identification of John Rice and some identification of Matthew Rector, were admitted and received into evidence. Counsel appearing in our court, who was not the trial counsel, now says that trial counsel was deluded and misled by the State’s Attorney. The record does not bear out this charge. While there was some failure of communication, the record also establishes that at least twice prior to the trial the State’s Attorney inquired about any further items of discovery. In any event, these items were not required to support or sustain a conviction in this case as there was ample identification otherwise, and the evidence offered was purely cumulative. In addition, the record indicates that the State’s Attorney offered his file to the defendant. We fail to see any error in these occurrences.

It is also urged that one Delva, who drove the car and was arrested, was quite similar in size, height, and looks to the defendant and that it was incumbent upon the State to establish that it was the defendant and not Delva who committed the forgery. The only evidence offered on behalf of the defendant was Delva’s photograph. Delva’s name was not endorsed on the indictment and it appeared during the trial that Delva would now be available to testify for the State. The defendant objected to his testimony because he wasn’t endorsed. After the photograph was offered in evidence, the defendant again objected to calling Delva as a rebuttal witness and the objection was sustained. It does not lie in the mouth of the defendant to now complain that Delva was not produced as a witness when it was the defendant himself who invited the situation. He can’t complain if that evidence was not admitted when he closed the door on its admission. There is no doubt from this record that the jury were justified in finding the defendant guilty beyond a reasonable doubt.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.