author: MR. JUSTICE STAMOS

text:
    People of the State of Illinois ex rel. Voters for Progress Party, a Legally Constituted New Political Party, Edward Lee, Mary Lois Quilici, Jerry Perelli, John Smida, Jr., and Marvin Isaacson, Plaintiffs, v. Estelle Wilk, Village Clerk of Village of Dolton, and the Village of Dolton, a Municipal Corporation, Defendants.
    Gen. No. 53,897.
    First District, Fourth Division.
    December 31, 1969.

      Arvey, Hodes & Mantynband, of Chicago (J. Herzl Segal, Jerome T. Burke, of Chicago, and Henry J. Wieloch, of Dolton, of counsel), for appellants.
    Frank Glazer, of Chicago, for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs appeal from a judgment of the trial court refusing to issue a writ of mandamus commanding defendants to place relator’s candidates on the ballot in the forthcoming Village Election.

Plaintiffs’ petition for writ of mandamus alleged substantially as follows: the Voters for Progress Party was a legally constituted political party; the individual relators are candidates of the Voters for Progress Party; relators filed nominating petitions and all necessary appurtenances in accordance with the Election Code; the Municipal Officers Electoral Board pursuant to objections filed, ruled that plaintiffs’ nominating petitions were insufficient and/or inoperative; plaintiffs cured all defects in their nominating petitions and filed the cured nominating petitions with the office of the Village Clerk of the Village of Dolton pursuant to Ill Rev Stats, c 46, § 10-11 (1967); nominating petitions were returned to the attorney for the Voters for Progress Party by the Village Clerk “by reason of the fact that same were not filed with her (the Village Clerk) personally”; acceptance of the nominating petitions is purely a ministerial function and the Village Clerk is obligated to accept the petitions and place the names of the candidates nominated therein on the official ballot; and plaintiffs prayed for appropriate relief.

Defendants answered denying substantially all the allegations in relators’ petition for writ of mandamus and alleged by way of affirmative defenses: that the Voters for Progress Party had no legal capacity to sue; that petitions to form a new political party do not constitute certificates of nomination; that the action of the Municipal Officers Electoral Board declaring plaintiffs’ nominating petitions inoperative did not create vacancies on the ballot so as to entitle relators to nominate candidates for places thereon; and that section 10-11 of the Election Code, Ill Rev Stats, c 46 (1967) does not impose any duties upon the Village Clerk.

On plaintiffs’ motion an immediate hearing was granted by the trial court because of the impending election. At the hearing plaintiffs established that after the Municipal Officers Electoral Board had held their nominating petitions invalid they caused to be filed in the office of the Village Clerk of the Village of Dolton, a petition, which they contend is in conformity with section 10-11 of the Election Code. It was further established that their petition was left with an employee of the Village of Dolton, who under the Civil Service Act had the title of Special Assistant to the Village Clerk, and that the Village Clerk was not in the office when this petition was left with this employee; and that the Village Clerk caused the employee who received the petitions to return them to the attorney for the Voters for Progress Party. The trial court’s judgment denying mandamus was entered on March 28,1969.

OPINION

Relators contend that they are entitled to a position on the ballot by reason of the Election Code, section 10-11 which provides as follows:

“In case a candidate who has been duly nominated under the provisions of this Article 10 die or decline the nomination, as in this Article provided, not less than 45 days before the election, or should any certificate of nomination be held insufficient or inoperative by the electoral board, the vacancy or vacancies thus occasioned may be filled not less than 40 days before the election by the political party or other persons making the original nominations. The certificates of nomination made to supply such vacancy shall state, in addition to the other facts required by this act, the name of the original nominee, the date of his death or declination of nomination, or the fact that the former nomination has been held insufficient or inoperative, and the measures taken in accordance with the above requirements for filling a vacancy.”

A reading of the statute reveals that vacancies are created when a candidate, duly nominated, dies or declines the nomination or when a certificate of nomination is held insufficient or inoperative by the electoral board.

Plaintiffs do not claim that they are seeking to fill vacancies caused either by the death or declination of duly nominated candidates, rather they claim that they are entitled to fill vacancies occasioned by the action of the electoral board. Plaintiffs contend that the action of the electoral board in declaring their nomination petitions invalid was tantamount to declaring a certificate of nomination insufficient or inoperative, therefore, entitling them to fill such vacancies pursuant to section 10-11 of the Election Code.

Nominations by established political parties are made by filing a certificate of nomination as set forth in Ill Rev Stats, c 46, § 10-1, as follows:

“Any convention, caucus or meeting of qualified voters of any established political party as herein defined may make one nomination for each office therein to be filled at any election, for officers of such township, city, village or incorporated town, by causing a certificate of nomination to be filed with the clerk of such township, city, village or incorporated town. Every such certificate of nomination shall state such facts as are required in Section 10-5 of this Article, and shall be signed by the presiding officer and by the secretary of the convention, caucus or meeting, who shall add to their signatures, their places of residence. Such certificates shall be sworn to by them to be true to the best of their knowledge and belief, and a certificate of the oath shall be annexed to the certificate of nomination.” (Emphasis supplied.)

A group of persons who desire to form a new political party and to have their candidates placed upon the ballot proceed by petition under section 10-2 of the Election Code which provides in part as follows:

“Any group of persons hereafter desiring to form a new political party . . . shall file ... a petition [with the proper authority as directed by statute]
9t

Section 10-2 continues and provides:

“The filing of such petition shall constitute the said political group a new political party, for the purpose only of placing upon the ballot at such next ensuing election said list of party candidates for offices to be voted for throughout the State, or for offices to be voted for in such district or political subdivision less than the State, as the case may be under the name of and as the candidates of such new political party.
“Any such petition shall be filed at the same time and shall be subject to the same requirements and to the same provisions in respect to objections thereto and to any hearing or hearings upon such objections that are hereinafter in this Article 10 contained in regard to the nomination of any other candidate or candidates by petition.”

In the instant case plaintiffs’ petition to form a new political party was held insufficient and inoperative by the electoral board. Therefore, there was no new political party or any certifiable nominees thereof. There were no vacancies to fill. Plaintiffs recognized this when they filed a new petition to form a political party. We cannot consider this new petition to be a certificate of nomination to fill a vacancy.

This cause was argued in this court as an emergency matter on April 9, 1969 so it could be determined prior to the election which had been set for April 15. Our decision affirming the trial court was rendered orally at the hearing, with this opinion to be filed in due course.

Judgment is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois ex rel. The Vigilant Party, a New Political Party, in the Village of Dolton, County of Cook, State of Illinois, et al., Plaintiffs-Appellees, v. The Village of Dolton and Estelle Wilk, Village Clerk, Village of Dolton, Defendants-Appellants.
    Gen. No. 53,902.
    First District, Fourth Division.
    December 31, 1969.
    Matthew J. Beemsterboer, Brunswick, Beemsterboer & Jemilo, of Blue Island, and Frank Glazer, of Chicago, for appellants.
    Chester Stasack and Arthur Dillner, of Dolton, and Irwin D. Bloch and Louis M. Leider, of Chicago, for appellees.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Plaintiffs, the Vigilant Party and its candidates for municipal office in the Village of Dolton, petitioned for a writ of mandamus to compel defendants, the Village of Dolton and Estelle Wilk, Village Clerk, to place plaintiffs’ names on the ballot for the general election to be held April 15, 1969. Defendants denied plaintiffs’ places on the ballot. The trial court issued the writ of mandamus and defendants appeal from that judgment.

The facts as alleged in the pleadings are that on or about February 10, 1969, the plaintiffs filed a full slate of candidates under the name Citizens Party for the April 15 election. On February 21, 1969, the Municipal Officers Election Board ordered the candidates’ names stricken from the ballot. The reasons given were that the nominating petitions were not securely bound and the name Citizens Party was in use in the Village of Dolton by a preexisting party. An appeal of this administrative decision was taken to the Circuit Court of Cook County where it is now pending.

On March 3, 1969 the plaintiffs as the Vigilant Party sought to file documents with the Village Clerk, Estelle Wilk, which they referred to as certificates of nomination as authorized under Ill Rev Stats, c 46, § 10-11 (1967). The Village Clerk refused to accept the documents on the grounds that they did not constitute certificates of nomination as authorized in § 10-11, but that they were a petition to form a new political party and were, therefore, untimely under Ill Rev Stats, c 46, § 10-6 (1967). The Circuit Court of Cook County issued a writ of mandamus on March 17, 1969 compelling the Village Clerk to accept the documents after they had been amended from alleging “certificate of nomination” to “petition.”

On March 24, 1969, after the documents were accepted for filing, the plaintiffs made a formal demand on the Village Clerk to place the names of the candidates on the ballot pursuant to Ill Rev Stats, c 46, § 10-8- (1967). The Village Clerk again refused the demand stating that the documents were petitions to form a new political party untimely under § 10-6 and with § 10-8, therefore, having no effect.

The plaintiffs then filed this cause to compel defendants to place the names of the candidates on the ballot. The trial court issued a writ of mandamus and defendants appeal.

OPINION

Defendants contend that the documents filed by the plaintiffs under the writ of mandamus of March 17, 1969 constituted a petition to form a new political party governed by Ill Rev Stats, c 46, § 10-7 (1967) which requires such filing to be accomplished at least 64 days before the election. Plaintiffs, however, contend that the documents constitute certificates of nomination pursuant to Ill Rev Stats, c 46, § 10-11 which reads:

“In case a candidate who has been duly nominated under the provisions of this Article 10 die or decline the nomination, as in this Article provided, not less than 45 days before the election, or should any certificate of nomination be held insufficient or inoperative by the electoral board, the vacancy or vacancies thus occasioned may be filled not less than 40 days before the election by the political party or other persons making the original nominations. The certificates of nomination made to supply such vacancy shall state, in addition to the other facts required by this act, the name of the original nominee, the date of his death or declination of nomination, or the fact that the former nomination has been held insufficient or inoperative, and the measures taken, in accordance with the above requirements for filling a vacancy.

In light of this provision the plaintiffs maintain that since their slate of candidates filed on or about February 10, 1969 was stricken from the ballot by the Municipal Officers Election Board on February 21, 1969, a vacancy was created within the meaning of § 10-11 and that, therefore, they were entitled to file certificates of nomination pursuant to § 10-11 to fill those vacancies.

Established political parties nominate their candidates pursuant to Ill Rev Stats, c 46, § 10-1 (1967) which reads:

“Any convention, caucus or meeting of qualified voters of any established political party as herein defined may make one nomination for each office therein to be filled at any election, for officers of such township, city, village or incorporated town, by causing a certificate of nomination to be filed with the clerk of such township, city, village or incorporated town. Every such certificate of nomination shall state such facts as are required in Section 10-5 of this Article, and shall be signed by the presiding officer and by the secretary of the convention, caucus or meeting, who shall add to their signatures, their places of residence. Such certificates shall be sworn to by them to be true to the best of their knowledge and belief, and a certificate of the oath shall be annexed to the certificate of nomination.”
(Emphasis supplied.)

Persons wishing to create a new political party and submit a slate of candidates are governed by Ill Rev Stats, c 46, § 10-2 (1967) which reads:

“Any group of persons hereafter desiring to form a new political party . . . shall file ... a petition (with the proper authority as directed by statute)
9f

Section 10-2 continues and provides:

“The filing of such petition shall constitute the said political group a new political party, for the purpose only of placing upon the ballot at such next ensuing election said list of party candidates for offices to be voted for throughout the State, or for offices to be voted for in such district or political sub-division less than the State, as the case may be under the name of and as the candidates of such new political party.
“Any such petition shall be filed at the same time and shall be subject to the same requirements and to the same provisions in respect to objections thereto and to any hearing or hearings upon such objections that are hereinafter in this Article 10 contained in regard to the nomination of any other candidate or candidates by petition.”

The plaintiffs’ original filing in the instant case pursuant to § 10-2 was declared invalid by the Municipal Officers Election Board. Therefore, no political party was in existence at the time of the attempted March 3 filing. Since no political party was in existence at that time, no vacancies existed either. The plaintiffs could not have availed themselves of § 10-11 and the new filing could not have constituted certificates of nomination. (People ex rel. Voters for Progress Party v. Wilk, 118 Ill App2d 386, 254 NE2d 834 (1969).)

Therefore, we hold that the trial court erred in issuing the writ of mandamus.

This cause was argued in this court as an emergency matter on April 9, 1969 so it could be determined prior to the election which had been set for April 15. Our decision reversing the trial court was rendered orally at the hearing, with this opinion to be filed in due course.

Reversed.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. JUSTICE ENGLISH

text:
    George DeWolf, a Citizen, a Taxpayer and an Adjoining Property Owner, Individually and on Behalf of All Other Persons Similarly Situated, Intervener and Third-Party Plaintiff-Appellant, v. Central National Bank of Chicago, Not Individually, but as Trustee Under Trust Dated December 23, 1968, and Known as No. 15485, Plaintiff-Appellee, and Chicago Park District, a Municipal Corporation, William L. McFetridge, Daniel J. Shannon, Marshall F. Bynum, Joseph L. Gill and Franklyn B. Schmick, Commissioners, Defendants- Appellees.
    Gen. No. 54,084.
    First District, Fourth Division.
    December 31, 1969.
    McCarty & Watson, of Chicago, for appellant.

      Frank Maher and Robert Pfaff, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Third-party plaintiff, George DeWolf, has appealed from orders of the Circuit Court (1) dismissing his complaint for want of equity, and (2) establishing and defining the boundary line between the lands of plaintiff, Central National Bank of Chicago, as trustee (hereinafter referred to as “plaintiff”), and defendant, Chicago Park District.

Plaintiff has moved in this court for entry of an order dismissing the appeal of third-party plaintiff.

A summary of the proceedings in the Circuit Court follows. Plaintiff filed a complaint to confirm its agreement with defendant, Chicago Park District, whereby certain submerged land would be conveyed by defendant to plaintiff in exchange for the transfer of riparian rights from plaintiff to defendant, and, further, to establish the permanent boundary line of the property. Chicago Park District answered, admitting all allegations of plaintiff’s complaint. Third-party plaintiff filed a petition to intervene and plead in the action, which petition was granted by the court. Third-party plaintiff, as “a citizen, a taxpayer and an adjoining property owner, individually and on behalf of all other persons similarly situated,” then moved to dismiss the complaint because the proceedings were violative of due process in permitting the Chicago Park District to “surrender submerged land to adjoining owners in exchange for their riparian rights, without notice, public hearing, or opportunity for public sale.” This motion was denied.

By leave of court, third-party plaintiff then filed a complaint alleging in part that the following detrimental consequences would result from a transfer of the land in question: (1) The welfare of the general public will ultimately be endangered by the accumulation of debris on the Thorndale Avenue public beach resulting from construction on the site; (2) traffic problems will ensue on Sheridan Road and West Glenlake Avenue, particularly, fire trucks being then unable to turn around on West Glenlake Avenue, thus greatly diminishing the quality of fire protection to third-party plaintiff, as an adjoining landowner; (3) a larger building might be constructed than was possible at the time the zoning ordinance was established, necessitating construction of a wall or high base shell on the Sheridan Road side of the property, blocking the lake view and destroying its scenic beauty; (4) a dock and boat launch area might be constructed which would increase oil and debris in the lake and add to the hazardous use of the public beach. The complaint also alleged, as in the motion to dismiss, that the statute authorizing the transfer of the property (Ill Rev Stats 1967, c 105, § 81), is violative of due process because it does not provide for public notice.

Defendant’s answer as to each allegation of the complaint denied that third-party plaintiff had any interest in the proceedings which would entitle him to any relief, and defendant asked that the complaint of the third-party plaintiff be dismissed. Plaintiff also filed an answer which asked that the third-party plaintiff’s complaint be stricken.

After a hearing on the third-party complaint, it was dismissed because the court found:

(a) The Intervenor has failed to prove any special damage which will occur to him by reason of the confirmation of the agreement between plaintiff and defendant.

(b) The complaint of the Intervenor ought to be dismissed for want of equity.

The court then entered a decree establishing the permanent boundary line between the properties of plaintiff and defendant.

We now turn to a consideration of plaintiff’s motion before this court to dismiss the appeal of third-party plaintiff. Plaintiff argues that the petition for intervention was improvidently granted by the trial court. The petition, which enumerated certain factors that might be “detrimental to the interest of George DeWolf and the general public,” was, in essence, merely an abbreviated version of the subsequent third-party complaint as outlined above. Our consideration of the petition leads us to conclude that third-party plaintiff did not have the requisite interest to intervene at the time leave was granted, for the reason that he did not demonstrate that he would suffer any special damage. Plaintiff has cited Droste v. Kerner, 34 Ill2d 495, 504, 217 NE2d 73, where the court said:

[I]t has long been the law in Illinois that an individual, be he a taxpayer, (Koehler v. A Century of Progress, 354 Ill 347; McPike v. Illinois Terminal Railroad Co., 305 Ill 298,) or a property owner, (McCormick v. Chicago Yacht Club, 331 Ill 514; Carstens v. City of Wood River, 344 Ill 319,) in the absence of statutory authority conferring such right, has no standing in equity to enjoin an alleged misuse of property held in trust for the public, unless he alleges and proves that he will suffer special damage, different in degree and in kind from that suffered by the public at large.

The primary requisite of standing was not met in the instant case—that of alleging special damage. The original parties made timely objection to allowance of the petition, and the court erred in permitting third-party plaintiff to intervene without such pleading. That order is therefore reversed, and, as a result, plaintiff lacks standing to prosecute this appeal.

Nevertheless, we have also examined the complaint of third-party plaintiff. We find that it, too, was totally devoid of allegations setting forth special damage, and the record includes no evidence thereof. As a result of these fatal omissions, it is clear that the trial court properly dismissed the third-party complaint for want of equity. In view of our holding above, however, our conclusion on this point is not determinative.

The order of the trial court permitting George DeWolf to intervene is reversed, and the appeal is then dismissed.

Reversed in part, and appeal dismissed.

DRUCKER, P. J. and STAMOS, J., concur.


author: EBERSPACHER, J.

text:
    Louis Whitsell, Petitioner-Appellant, v. Arnold Rutherford, Respondent-Appellee.
    Gen. No. 68-135.
    Fifth District.
    December 31, 1969.

      Calvo & Mateyka, by M. Joseph Hill, of Granite City, for appellant.
    Nick D. Vasileff, of Madison, for appellee.
   EBERSPACHER, J.

This action was brought to contest the election held on June 11, 1968, wherein Arnold Rutherford, the respondent herein, was declared elected to the office of Precinct Committeeman in Precinct Number 1, Nameoki Township, Madison County, Illinois. The action was brought by Louis Whitsell, the petitioner herein, and was filed on July 11, 1968. A motion to dismiss was filed by the respondent alleging that the Petition to Contest The Election did not state a cause of action, that the petitioner was not running for public office and that the petition had not been filed within the time limit required by the statutes. Following a hearing on the motion to dismiss, the trial court allowed the motion. This appeal was taken from the court’s order allowing the respondent’s motion to dismiss.

The sole question raised by the pleadings is whether the petition filed herein fails to state a cause of action and more particularly, whether the petition to contest the election is sufficient to state a cause of action pursuant to section 23-20 of the Election Code of Illinois, chapter 46, Ill Rev Stats 1967, under which it was filed, or whether a contest of election is to be made under Article 7 of the Election Code to the exclusion of other articles of the Code, particularly Article 23.

Taking the second issue presented for our initial consideration, it is our opinion that the petitioner has proceeded correctly under Article 23 of the Election Code. While Article 7 of the Election Code sets forth the procedure for conducting a primary election, the Legislature did not intend that Article 7 would be the exclusive means of contesting an election, chapter 46, Article 7, section 7-1, Ill Rev Stats 1967. There is no question that the Primary is an election in the general sense. Chapter 46, Article 1, section 1-3, Article 7, section 7-4(1) and (2) Ill Rev Stats 1967. The Primary is the general election insofar as a precinct committeeman is concerned. The precinct committeemen are elected and not nominated at that election. This distinction is apparent by the various sections of Article 7 which distinguish between candidates nominated and committeemen elected. Chapter 46, Article 7, sections 7-1, 7-8, 7-10, 7-17, 7-19, 7-58 and 7-59, Ill Rev Stats 1967. In contrast to Article 7 which deals generally with the nominations by political parties, Article 23 of the Election Code concerns itself with the contesting of elections. Section 23-5 of that Article provides, “The Circuit Court shall hear and determine contests of election of all other county, township and precinct officers, and all other officers for the contesting of whose election no provision is made.”

The respondent quite forcefully brings to our attention that there are no “precinct officers” if the word “officer” is used in the true meaning of the word. In this regard the defendant has cited for our consideration People v. Brady, 302 Ill 576, 135 NE 87 (1922). The Brady case clearly holds that a precinct committeeman is not a public officer. As stated in the Brady case:

“The committeemen are not nominated at the primary election, but they are elected to serve their respective political parties as managers of the campaign conducted subsequent to the primary to elect the candidates nominated by the respective political parties at the regular election held to select the officers of the State and its subdivisions. The act plainly indicates that the General Assembly was not creating new public officers to whom it delegated part of the sovereign power of the State, but it was simply recognizing the existence of the managing committees of the several political parties and regulating the manner in which the members of these committees should be selected and the manner in which the powers long exercised by such committees should be exercised.”

Since there are no precinct officers within the context of the Brady case, we are led to the conclusion that “officers” as used in section 23-5 was not meant in the sense as described by the Brady case but used to describe the position of precinct committeemen.

Our own conclusion is further fortified by the absence of any procedure for the contesting of an election of committeemen under the provisions of section 7-63 of the Election Code. That section which the respondent argues applies to the contest of this election in our interpretation is the procedure for contesting a nomination and is devoid of any reference to the contesting of an election. The section deals solely in terms of a candidate contesting election of candidates nominated.

Concluding as we do that the petitioner proceeded properly under Article 23 of the Election Code, we then reach the first issue of whether the Petition To Contest The Election is sufficient to state a cause of action. The requirements of the petition are set out in Article 23, section 23-20. The first requirement is that the petition be filed within 30 days from the date the person elected is declared elected. This requirement was met inasmuch as the petition was filed 21 days after the respondent was declared elected.

An additional requirement that the petition must be verified has also been met.

Further requirements as to the petition are found both in the statute and case law. These require that the petition must allege: That the petitioner voted in the election; that a mistake or fraud was committed; that some irregularities occurred in the conduct of the election; and that the results of the election were changed by the fraud or irregularities. Chapter 46, Article 23, section 23-20, Ill Rev Stats 1967; Zarhay v. Emricson, 25 Ill2d 121, 181 NE2d 756 (1962); Easdale v. Sparta Community School Dist., 29 Ill2d 554, 194 NE2d 306 (1963); McCaslin v. Moore, 67 Ill App2d 355, 214 NE2d 18 (1966). Our examination of the pleadings reveals that these requirements were also met by the petitioner. While the specific irregularities are not set out in the petition, this is not necessary and general allegations are sufficient. Joyce v. Blankenship, 399 Ill 136, 77 NE2d 325 (1948).

We conclude that the Circuit Court of Madison County erred in granting the Respondent’s Motion To Dismiss. That order, accordingly, is reversed and the cause remanded to the Circuit Court of Madison County for further proceedings.

Reversed and remanded.

MORAN and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lloyd Norris, Defendant-Appellant.
    Gen. No. 68-161.
    Second District.
    December 31, 1969.

      Peter Alexander, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and William R. Beu, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

Defendant Lloyd Norris appeals from a judgment of the Circuit Court of Winnebago County sentencing him to a term of one to five years in the penitentiary after a jury found him guilty of aggravated battery and reckless conduct. Defendant contends that the State failed to prove him guilty beyond a reasonable doubt; the court erred in making a certain witness the court’s witness; the jury verdicts finding him guilty on both charges are inconsistent and, therefore, defective; and comments and inferences of the prosecuting attorney and witnesses were prejudicial.

On Saturday, January 28, 1967, in response to a call, the police removed Margaret Scott from defendant’s apartment in Rockford to the hospital where she died that evening. They found her lying on the bed in messy clothing with a bruise on her forehead and blood clotted in her nose. An autopsy showed the cause of death to be aspiration pneumonia or the inhalation of stomach contents into the lungs; bruises and hemorrhaging under the scalp on the left side and under the brain covering on both the right and left sides. According to testimony, Margaret Scott came to defendant’s apartment on Tuesday morning, where she spent most of the time in bed until Saturday morning when she was taken to the hospital by the police. Ressie Morrell was also in the apartment during that time, Arlie Kebler was there three days that week, Emery Fields was there on Friday, John Comer made a short visit on Friday evening, and defendant was present during the time involved herein. Statements made to the police and testimony at the trial by the above-named persons were inconsistent and varied as to detail, but generally indicated that considerable quantities of alcoholic beverages were consumed by the parties during those five days. Ressie Morrell stated that Margaret Scott messed and wet the bed several times and she and defendant cleaned up after her. She also testified that Scott fell out of bed more than once, and at one point defendant threw her out of bed; he slapped her repeatedly; he dragged Scott by the hair into the bathroom, put her in a tub of cold water, and dragged her back to the bed; he directed several threats at the deceased. The witnesses stated that there were no unusual marks or bruises upon the face or body of the deceased until Friday evening.

A reviewing court will disturb the finding of guilty only where the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Crews, 38 Ill2d 331, 335, 231 NE2d 451. Although inconsistent statements were made by the State’s occurrence witnesses, inconsistent statements were also made by the defendant. The question is one of credibility, which was properly submitted to the jury so that it could evaluate the conflicting evidence. The evidence here is not so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of defendant’s guilt, and we are not justified in interfering with the jury’s findings.

The assistant State’s Attorney called a Robert Ritter as a witness and, when he started to impeach Ritter, the defense attorney objected and the objection was sustained. Thereupon the Assistant State’s Attorney moved the court to make Ritter a court’s witness in accordance with Supreme Court Rule 238, Ill Rev Stats 1967, c 110A, § 238, and the motion was allowed. It is claimed by the defendant that this is error because Rule 238 makes it incumbent upon the requesting party to call the witness in “good faith” and to be “surprised” by his testimony. The decision of the court upon such a motion is largely discretionary. People v. Williams, 22 Ill2d 498, 177 NE2d 100. Despite the claim that the assistant State’s Attorney was not “surprised” and did not act in “good faith,” the record reveals that there had been two prior and inconsistent statements made by Ritter, and the court was made aware of these statements. Under these circumstances the court could properly arrive at the conclusion that the assistant State’s Attorney could not know what Ritter’s testimony would be until he actually testified. There was sufficient basis for the trial judge in the exercise of his discretion to determine that the prosecutor was surprised and that he acted in good faith. People v. Wesley, 18 Ill2d 138, 163 NE2d 500.

Defendant contends that the jury verdicts finding him guilty of aggravated battery and reckless conduct were fatally inconsistent in that the intent elements of each offense are mutually exclusive. The State agrees with the defendant’s contention that the intent elements of the crimes of aggravated battery and reckless conduct are different, and that inconsistent verdicts cannot stand. The intent element to support a verdict of aggravated battery is that the act be done intentionally and knowingly; while the intent element to support a verdict of reckless conduct is that the act be done recklessly. The State points out, however, that the time period involved extends from Tuesday to Saturday and that the testimony shows four different acts of physical violence by the defendant upon the deceased. The jury could very well conclude that some of the defendant’s acts, such as throwing her from the bed and striking her, were knowing and intentional; while other acts, such as dragging her around the apartment, were reckless and thus found that more than one act was involved so that the finding of guilty as to both aggravated battery and reckless conduct were the result of different acts and not the same act. In our opinion the verdicts were not inconsistent and are, therefore, sustained. It is noted that the defendant was only sentenced on the aggravated battery conviction.

Defendant’s last contention is that he was deprived of a fair trial by prejudicial comments of the assistant State’s Attorney and prosecuting witnesses. Ressie Morrell testified that the defendant is “absolutely crazy when he gets a few drinks.” This was an unresponsive answer to a question by the State and objection was made and sustained. She made a second comment that the defendant “goes insane” and is “dangerous” when he drinks, but this was in response to a question by defense counsel on cross-examination and no objection was made. The State is not responsible for questions asked by the attorney for the accused under these circumstances. People v. Hester, 49 Ill App2d 308, 311, 200 NE2d 3. It is also stated that the assistant State’s Attorney made comments regarding testimony before the grand jury without proving the statements and that this was an attempt to prejudice the jury. None of these alleged errors were raised in defendant’s motion for a new trial and are, therefore, precluded from appellate review. People v. DeMarco, 44 Ill App2d 459, 465, 195 NE2d 213. Defendant cites People v. Weinstein, 35 Ill2d 467, 220 NE2d 432 for the proposition that even though defense counsel does not object to certain prejudicial statements, that does not waive defendant’s right to raise the points on appeal. Here the circumstances are not analogous to those in Weinstein. We will not consider the alleged error since it was not properly preserved for review.

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

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


text:
    Daily Journal, a Corporation, Plaintiff-Appellee, v. Andy Smith, Defendant-Appellant.
    Gen. No. 69-31.
    Second District.
    December 31, 1969.

      Idarius, Rubin and Zahn Associates, of Lombard, for appellant.
    Chase, Wotan and Muscarello, of Elgin, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

A small-claim complaint was filed in the Circuit Court of Kane County by plaintiff to recover on a claim for fraud. A default judgment was entered and the defendant, within 30 days, filed a motion to vacate the judgment which was denied. Defendant appealed to this court from the default judgment and the denial of the motion to vacate.

On July 5, 1968, the plaintiff filed a small-claim complaint stating, “I, the undersigned, claim that the defendant is indebted to the plaintiff in the sum of $1,987.31 for fraud .... That the defendant resides at 225 West 89th Street, Chicago, Illinois .... That plaintiff resides in Elgin, Illinois.” Defendant was served with an alias summons requiring his appearance at the Kane County Court House on September 16, 1968. The alias summons contained the admonition “. . . you must appear in person or by attorney at the time and place specified in the summons or a default judgment will be entered against you.”

On the return day defendant, by counsel, appeared before the Small-Claims Magistrate and filed a special appearance. By stipulation there was no order entered at that time because the parties were attempting to determine if a settlement could be reached. Thereafter, defendant served a notice upon the plaintiff that he would appear in court on January 9,1969, and move for a transfer to a proper venue. The plaintiff appeared on January 9 and, upon failure of the defendant to appear, moved the court for a default judgment. A judgment order was entered by the Magistrate which states, “that the defendant having been duly served with summons as shown in the file and having failed to appear, answer or otherwise plead, and the complaint having been taken as confessed against the defendant, and the court having heard the testimony of the parties and witnesses ... it is therefore ordered and decreed that judgment be and is hereby entered in favor of the plaintiff and against the defendant in the sum of $1987.31 . . . .”

On January 27, 1969, the parties appeared before the Magistrate pursuant to defendant’s notice and motion to vacate the default judgment entered on January 9 and to transfer the cause to a proper venue. The Magistrate refused to entertain the oral motion and the case was continued to February 4 so that defendant could submit a written motion. On February 4, defendant filed a written motion stating, among other things, that he filed his special appearance in order to question the jurisdiction of the court, and that no ruling was made on this matter, that the defendant is not and has not been a resident of Kane County, nor has any transaction or any part of any transaction occurred in Kane County out of which this cause of action allegedly arose, and that this action was commenced in violation of section 5 (Venue— Generally) of the Civil Practice Act.

The motion further alleges that the complaint violates section 45 (pertaining to objections to pleadings) of the Civil Practice Act, and Supreme Court Rules 281-288, (Small Claims) in that the complaint is substantially insufficient in law. The motion asserts that the complaint alleged a mere legal conclusion; that the plaintiff chose an improper venue and disregarded the Supreme Court Rules on Small Claims which states in section 281: “a small claim is a civil action based on either tort or contract for money not in excess of $500,”; and the prayer of the motion was that judgment by default be vacated and that the cause be dismissed as wrongfully brought. The defendant’s motion was denied.

The trial court record does not reveal any motion by plaintiff for a default or a default order. The next item to appear in the record after the defendant filed his special appearance on September 16, 1968, is the judgment order entered on January 9, 1969. Therefore, it does not appear that defendant received any notice that plaintiff would move the court for a default; that there was any ruling on defendant’s special appearance, nor any order entered requiring defendant to file an answer or setting a trial date.

The issues presented are whether Supreme Court Rules 281-288, (Ill Rev Stats 1967, c 110A, §§ 281-288), prescribed the rules for filing small claims, and whether a small-claim complaint filed for a sum in excess of $500 is void for failure to state a cause of action; whether a defendant who enters his appearance is entitled to notice before the default can be taken; whether a complaint so insufficient states a cause of action that a default judgment is improper, and whether the vacation of a default judgment pursuant to section 50 of the Civil Practice Act is based upon substantial principles of right and wrong and is to be exercised by the court for the prevention of injustice.

We believe that defendant’s contention that a small-claim complaint filed for a sum in excess of $500 is void and fatally defective for failure to state a cause of action is without merit. Article VI, Judicial Department, Constitution of the State of Illinois, which is commonly known as the Judicial Article and which became effective January 1, 1964, provides in section 9: “The circuit court shall have unlimited original jurisdiction of all justiciable matters . . . The purpose carrying out the unification of the courts is set forth not only in sections 8 and 9 of Article VI, Illinois Constitution, but also in paragraph 5 of the Schedule to the Judicial Article. Supreme Court Rules on small claims, Ill Rev Stats 1967, c 110A, § § 281-288 are complete. It is noted that although the amount of $500 applied when this case was filed, the rule was amended later to increase from $500 to $1,000 the upper limit of a small claim. It is apparent that a small-claim complaint filed for a sum in excess of the amount stated in Supreme Court Rule 281 is not fatally defective and void for failing to state a cause of action, but such a case should be transferred from the small claim division to another division of the Circuit Court.

The next issue presented is whether a defendant who has entered his appearance must be notified properly before a default judgment can be taken against him. In this case the defendant entered a special appearance on the return date specified in the summons. No notice was given by either party prior to the default judgment being entered to have the Magistrate pass upon the special appearance. It was quite apparent from the face of the small-claim complaint that the amount sought was in excess of the amount specified in Supreme Court Rule 281. It is also noted that nowhere in the record does it appear that any evidence was offered to support the judgment, and plaintiff does not contend that any evidence was offered to support the judgment before the judgment was entered. Supreme Court Rule 286, (Ill Rev Stats 1967, c 110A, § 286), provides as follows:

“Unless the ‘Notice to Defendant’ (see rule 101(b)) provides otherwise, the defendant in a small claim must appear at the time and place specified in the summons and the case shall be tried on the day set for appearance unless otherwise ordered. If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.”

Rule 6 of the Rules of Practice of the Circuit Court of Kane County is entitled “Appearances and Default— Notice of Proceedings” and states:

“Notice of all proceedings in an action shall be given to all parties who have appeared and have not been found by the Court to be in default for failure to plead, unless notice is excused by the Court.”

In Sentry Royalty Co. v. Craft, 79 Ill App2d 410, 226 NE2d 282, it is stated at p 417:

“Defendants were entitled to notice in writing that plaintiff would move the trial court for a default, (Uniform Rules of the Circuit Court of Illinois, Rule 2.1, 111 Rev Stats 1965 c 110, sec 302.1, adopted by the Twentieth Judicial Circuit January 2, 1964,) but the record shows no proof of such notice, nor does any party contend such notice was given. Had such notice been given, defendants would have been afforded an opportunity of a hearing to prevent the default order as well as the decree being so promptly entered.”

Under the circumstances here present the defendant was entitled to proper notice before a default judgment was entered.

Another contention of the defendant is that the Magistrate improperly refused to vacate the default judgment pursuant to section 50 of the Civil Practice Act (Ill Rev Stats 1967) c 110, § 50 (5). The motion to vacate the default judgment and to transfer the case to a proper venue was filed within 30 days of the entry of judgment. Section 50(5) of the Civil Practice Act is as follows:

“The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”

The pertinent allegations of the motion to vacate have hereinbefore been set forth. Plaintiff did not respond to the allegations of the motion.

It was said in Widucus v. Southwestern Elec. Cooperative, 26 Ill App2d 102, p 109,167 NE2d 799:

“It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of outcome.
“The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

This court in Mieszkowski v. Norville, 61 Ill App2d 289, 209 NE2d 358, traced the standards for guidance in determining whether a default judgment is to be set aside, and in quoting from the Widucus case stated at p 294, "... a court may set aside a judgment on a motian made within thirty days ‘upon any terms and conditions that shall be reasonable’ ” . . . .

Under the circumstances here, the motion to vacate the default judgment should have been allowed by the magistrate and he should then have ruled on defendant’s motion to transfer the cause to a proper venue.

We do not decide the issue here as to whether the complaint is insufficient to state a cause of action because the magistrate will have to determine first whether the cause should be transferred to another division of the Kane County Circuit Court, due to the amount of money involved, or whether the case should be transferred to Cook County, or another county, because of wrong venue (Ill Rev Stats 1967, c 110, pars 7 and 10). The sufficiency of the complaint can then be tested in the proper court in accordance with section 45 of the Civil Practice Act.

Accordingly, the judgment entered on January 9, and the order of the magistrate dated February 4 denying the motion to vacate, are both reversed and the cause remanded to the Kane County Circuit Court with directions to proceed consistent with the views expressed in this opinion.

Reversed and remanded with directions.

DAVIS and SEIDENFELD, JJ., concur.


author: PRESIDING JUSTICE THOMAS J. MORAN ABRAHAMSON, J.,

text:
    Anthony D. Warner, a Minor, Plaintiff-Respondent-Appellant, v. William J. Basten, Defendant, and Charles May, Petitioner-Intervenor-Appellee.
    Gen. No. 69-73.
    Second District.
    December 31, 1969.
    Rehearing denied February 13, 1970.

      ABRAHAMSON, J., dissenting.
    Fritzshall and Fritzshall, of Chicago (Robert S. Fritzshall, of counsel), for appellant.
    John F. Grady, of Waukegan, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This action is brought upon a petition to enforce an attorney’s lien as provided under the Illinois Attorney’s Lien Act (Ill Rev Stats 1967, c 13, § 14). The trial court, after hearing the testimony upon the petition and answer, found for the petitioner and ordered a lien and charge against all proceeds of the claim in question in the amount of 25% of any such proceeds, giving such lien priority over any other attorney.

The claim in question arises out of a truck-bicycle collision which occurred on September 22, 1968. On that date, William J. Basten operated a truck which struck a bicycle being operated, on the shoulder of a road, by Anthony Warner. The circumstances surrounding the accident, as set out in the pleadings and the record strongly indicate liability on the part of Basten.

Anthony Warner, seven years of age, received serious internal injuries some of which required the removal of his right kidney and the surgical repair of his liver. The minor’s father, Terry Warner, respondent, was riding a bicycle nearby and received a slight injury to his hand when struck by the truck. The respondent, a member of the U. S, Naval service, contacted the legal department at Great Lakes Naval Center and was referred to the chairman of the Legal Referral Service of the Lake County Bar Association. The Legal Referral Service, in turn, referred the respondent to Charles May, attorney at law and petitioner herein.

On October 7, 1968, the respondent met with the petitioner in the latter’s office. During the meeting, in the presence of the respondent, the petitioner dictated a “memorandum to file” concerning the accident and prospective investigative and preparatory steps to be taken. Included in the memorandum, which was allowed into evidence, was a statement to the effect that the petitioner would charge 33%% of the sum recovered in the event suit were filed or 25% of the sum recovered in the event of settlement.

Upon cross-examination, with reference to the first conversation, the following testimony took place:

Q. “In this case. What was that conversation?”
A. “I told Mr. Warner that as a prospective client, I thought he should hear from me that our firm did on occasion represent insurance clients, but that if he saw fit to retain us, I could give him my full and complete assurance that it didn’t matter who the case turned out to be against, I would devote my best efforts to he and to his son.”
Q. “Did you tell him at that time that you were representing Maryland Casualty Company?”
A. “No specific reference was made that I had a case for Maryland Casualty. At that specific time we didn’t have any idea whether Mr. Basten was insured with Maryland Casualty.”
Q. “Did you tell him you would not be able to prosecute his claim, his son’s claim if you found that you represented a company that you were involved with defense work in, or had represented before?”
A." “No, I specifically told him the opposite, that if I undertook to step into a case, it didn’t matter whether or not in the past I had defended one of those insurance company clients, I would represent his son.”

It appears that on the same day, after the meeting, the petitioner retained an investigator and undertook investigation of the case by visiting the scene with the respondent and the investigator; instructed the investígator as to the necessary photographs to be taken; went to respondent’s home and photographed the bicycle involved; unsuccessfully attempted to contact Basten at his home; and instructed the investigator to canvass the scene of the accident for additional occurrence witnesses, as only one occurrence witness was known at the time. Subsequently, the petitioner, by telephone, informed the respondent that the photographs ordered were completed ; that in addition to obtaining a statement from the known witness, the investigator uncovered three additional witnesses; that because of a conflict in the description of the truck, colored photographs of the same were obtained after several unsuccessful trips to the place of employment and the home of Basten. It was at this time that the petitioner again visited the home of the respondent and informed him that Basten refused to give him a statement.

Thereafter, on October 25,1968, the respondent visited the petitioner’s office and further discussed the status of the case. Petitioner testified that, during this discussion, he recommended, in light of Basten’s refusal to give a statement, that suit be filed immediately, the investigation having disclosed that there may have been a dram-shop action based upon the possibility that Basten was intoxicated at the time of the accident and, further, that Maryland Casualty Company (Maryland), who insured Basten, refused to disclose their liability limits. Also at this meeting, the petitioner testified he informed the respondent that, instead of charging the usual 33%% in the event suit is filed, his contingent charge would be 25%. This, he said, was based upon a new policy, placed in effect the day before, by the probate division of the court which limited attorneys’ fees to 25% where representation was based upon a minor’s interest.

On October 31, 1968, the petitioner and respondent, along with a court reporter, appeared at the traffic hearing involving Basten. After the hearing, the petitioner left town to attend a seminar; however, prior to leaving he had dictated a complaint for filing. Up to this point of time, there had been no expression of dissatisfaction made by the respondent to the petitioner concerning the handling of the case.

Upon his return, the petitioner received a letter dated November 1, 1968, signed by Mr. and Mrs. Warner, discharging the petitioner. The letter was as follows:

“Mr. May,
“My wife and I have discussed the progress of the case for Anthony quite thouroughly (sic) during the past few days. We have both agreed that we are not satisfied with the progress of the case at this point.
“It is our decision to engage a different lawyer to prosecute the case from this date.
“If you will submit a bill to me for your services,
I will send the payment as soon as possible.
“Sincerely,
“Terry N. Warner
“Louisa J. Warner
“1303 Chippewa
“Wildwood, Illinois”

The trial court found that the petitioner had been discharged without cause. Respondent maintains that the court erred in this finding and that there existed sufficient cause because the petitioner failed to disclose to the client the fact that, in another matter, he represented Maryland which was the public-liability insurer of Basten.

The record discloses that, at the time of the instant hearing, the petitioner was handling one case at the request of Maryland. The record further discloses that the petitioner’s firm represents only one insurance carrier on an exclusive basis, but represents other insurance carriers, including Maryland, only upon an infrequent occasion. Petitioner testified that he has engaged in more cases against Maryland than he has handled for them.

The trial court, after hearing the testimony of the petitioner and the respondent, found that the petitioner entered into a binding and valid contract with the respondent, as the father and next of friend of Anthony Warner, to represent the minor in a personal injury claim against Basten upon a contingent fee of 25% of any sum recovered by way of suit or settlement. The court found that the contract was fair and reasonable and understood by the respondent; that the petitioner had fully performed his obligation under the contract up to the time that he was discharged by the respondent and thereby prevented from rendering further service; that said discharge was without cause; and that the petitioner had properly served a notice of attorney’s lien in accordance with the provisions of the statute. Appeal is taken from these findings and the judgment in favor of the petitioner.

Respondent maintains that the court erred in finding that the petitioner was discharged without cause because the contract was void ab initia as against public policy due to a conflict of interest of the petitioner. In support of this point, respondent argues that the firm of which petitioner was a partner had in the past represented Maryland, the insurer of the defendant, and had, on occasion, personally handled the defense of an insured of Maryland.

The fact that the petitioner and the firm of which he was a partner had represented Maryland was first learned by the respondent at the hearing in January of 1969, about three months after the discharge. The record reveals the following, with regard to the petitioner and his representation of Maryland, as well as his practice: That the petitioner is principally a trial attorney dealing in bodily injury cases; between the years of 1952 and 1956, while practicing alone and before becoming associated with the present firm, 15% to 20% of his practice was composed of the prosecution of cases on behalf of plaintiffs, while 75% to 80% of his practice was composed of the handling of the defense of bodily injury claims on behalf of insurers; that since 1960 to the date of the hearing, 75% to 80% of his practice is concerned with the prosecution of plaintiffs’ cases, while the balance is on behalf of the defense of persons for insurers. In the present firm there are three to four lawyers engaged in trial work who do handle the representation of insurance cases and the defense of bodily injury claims.

To the best recollection of the petitioner, he was, at the time of the hearing, defending the Waukegan Park District at the request of Maryland, its insurer. He recalled three cases since 1960 wherein he represented plaintiffs against Maryland and in each of those cases effected a settlement against Maryland’s insureds. In 1966 he filed suit against an insured of Maryland while, at the same time, he was defending the Waukegan Park District in the case above mentioned.

The petitioner did not know whether any other members of the firm had other cases against Maryland at the time of this hearing.

The petitioner also testified that it is a common practice in Lake County for attorneys to represent personal injury claimants as well as be retained by various insurance companies. To the best of his own personal experience and knowledge, he knew of only one attorney officing and practicing in the county who restricted his practice solely to the prosecution of plaintiffs’ personal injury cases. He also testified that there was nothing unusual about a trial attorney handling cases (not the same case) both for and against the same insurance company, except in those instances where there may be a precise agreement between the attorney and a particular company which he represents on an exclusive basis. He also testified that virtually no insurance company gives all their work to any one particular firm in the county but divides it among a number of attorneys and firms.

Neither counsel is able to cite any precedent setting forth the exact situation placed before us.

The case of In re Paders, 250 App Div 418, 294 NYS 252, relates to a disciplinary proceeding against an attorney who was the wife of an officer of a casualty company. It appears from the opinion that the attorney’s husband was the officer of a casualty insurance company which insured a bus company. When a collision occurred between a bus and another vehicle the injured persons, or their representatives, were brought to the office of the casualty company, where the attorney’s husband advised them that they had a claim against the party whose vehicle had collided with the bus. The people were then sent to the respondent in an obvious effort to escape liability on behalf of the bus company and so benefit the casualty company. The casualty company conducted the investigations and often effected the execution of the retainers. From time to time, the attorney represented the bus company in the settlement of infants’ claims against the assured company.

The court held that it was improper for the wife of an officer of the casualty company, and one who represented it from time to time, to take a retainer from anyone who had an interest which might or did conflict with that of the casualty company. The facts in that case make it inapposite to the situation at hand.

Likewise the disciplinary proceeding set out in the case of Kelly v. Greason, 23 NY2d 368, 296 NYS2d 937, 244 NE2d 456, does not precisely control. In this case two attorneys, Whalen and Kelly, were engaged in a partnership. Whalen was an adjuster for Nationwide Insurance Company employed by that company while so engaged in the practice of law. The partnership handled matters referred to them by Nationwide employees, chiefly medical payment claims under Nationwide’s policies. With one exception, no negligence liability claims against Nationwide for such assureds were ever handled by them. However, several negligence liability claims against Nationwide were handled for claimants who had been referred by automobile repairmen and others not associated with Nationwide. Nationwide had full knowledge of the practice of Kelly and Whalen.

The New York Court of Appeals observed that the representation of conflicting or adverse interests may constitute misconduct because a lawyer is charged with a high degree of undivided loyalty to his client; that, with rare and conditional exceptions, the lawyer may not place himself in a position where a conflicting interest may give the appearance of affecting the obligations of the professional relationship; that in those rare and exceptional situations where there may be a potential conflict, the lawyer must disclose to all affected parties the nature and extent of the conflict and obtain their consent to the continued representation.

The court held that it was prima facie evidence of professional misconduct for the partnership to represent claimants, whether assureds of Nationwide or not, in their claims against the carrier, while at the same time Whalen was also the carrier’s paid employee. The case was remanded for the taking of further evidence with the admonition that if it should appear that Whalen’s relationship to Nationwide as its adjuster was such that, even as to claims not assigned to him, he was charged with a duty to protect its interests, there would be no effective consent by the clients.

In the matter at hand there is no employment as an employee of any member of the petitioner’s firm. It appears from the only witness that testified to this question, without contradiction, that the employment of the firm or the petitioner by Maryland was occasional in nature. The petitioner has been adverse to Maryland more times than he had represented its assured.

The argument of respondent carries with it an assumption that an attorney who has, occasionally, represented the insurer of a prospective defendant, might compromise his client’s interest in an effort to ingratiate himself with the insurer.

Canon 6 of the American Bar Association’s Canons of Ethics prohibits an attorney from representing conflicting interests except after giving full disclosure of the facts, in that an attorney should not place himself in a position to contend for that which duty to another client requires him to oppose. The canon also requires him to disclose to the client that which might influence the client in the selection of counsel.

Rule 6-101 of the Code of Professional Responsibility, recently adopted by the American Bar Association, prohibits an attorney from accepting employment when the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.

It is the judgment of this court that there did not exist any conflict that would make the representation of this claimant, by the petitioner or his firm, professionally reprehensible or void. The realities of the practice of law and in particular the practice in litigated matters are that many of the more active and notable members of the trial bar start their practice with the representation of assureds for insurance companies. Many of these practitioners gravitate to the representation of claimants and still occasionally represent assureds at the request of insurance companies. This does not, in and of itself, automatically create a conflict of interest.

As the record in this case reflects, a diligent counsel will be diligent without regard to the status of his client. There is no evidence herein to suggest that petitioner was indifferent in the handling of the case, or failed to disclose any possible conflict, but rather the record reflects that petitioner, at the time of the initial visit of the respondent, discussed with the client the fact that he had represented insurance companies in the past and present but, notwithstanding, he would do his utmost for the claimant. Furthermore, petitioner appears to be equally accessible to claimants as well as insurers.

The suggestion that trial attorneys are either “Plaintiff” or “Defendant” is not the fact of the practice, although many attorneys do represent plaintiffs or defendants primarily, at given times in their practices. To freeze trial counsel into such polarities is to deny them one of the rewarding challenges of their profession and denies, to both the plaintiffs and defendants of this State, thoroughly trained and free representation. We find no merit, under the circumstances of this case, to the respondent’s contention.

It is next argued that the court erred in finding a valid contract because there was a mistake as to the terms and conditions and there was no meeting of the minds. The trial court specifically found a contract existed. The petitioner testified that on the same day he first talked with the respondent, he went to the scene of the accident with an investigator; that on three separate occasions he visited the home of the respondent in the company of an associate or the investigator for the purpose of seeking photographs or giving him a report on the progress of the case. On two other occasions the respondent met with the petitioner in his office and the petitioner appeared on behalf of the respondent at the traffic hearing against the defendant. The respondent testified that he understood that the fee would be 25% of the settlement and that he found it necessary to discharge the petitioner, in his own mind, because he and his wife had decided to “shop” for another lawyer. His letter discharging the petitioner states that he had decided to engage a different lawyer to prosecute the case from that date and requested a bill for services to be forwarded. We feel there is abundant evidence in the record to indicate that the parties understood the amount of the fee as well as their respective duties and obligations.

An agreement for a contingent fee can never be implied but must be a matter expressly contracted for between the attorney and the client. Sullivan v. Fawver, 58 Ill App2d 37, 42, 206 NE2d 492 (1965). It is clear from the evidence that no other arrangement other than a contingent fee arrangement was discussed, and both parties understood. The fact that the injured party was a minor does not invalidate the contract. A contingent fee contract for the recovery of an award for personal injuries to a minor, entered into on behalf of the minor by his parents or next friend, has long been recognized as enforceable unless it appears from the proof that it was an unreasonable amount. Goldberg v. Perlmutter, 308 Ill App 84, 87, 31 NE2d 333 (1941); Caruso v. Pelling, 271 Ill App 318, 322 (1933).

It is next contended that the court erred in finding a binding contract because the petitioner failed to disclose that he was handling cases for the insurance company which carried the coverage on the defendant’s vehicle, and that such disclosure was a condition precedent of any contract.

Because contingent fee contracts do have the practical effect of giving an attorney a pecuniary interest in the successful prosecution of litigation and because such contracts sometimes lead to solicitation and otherwise bring disrepute to the law, they are closely scrutinized by the courts. This is true without regard to whether or not the contract was entered into during the attorney-client relationship or before the relationship. In any event a contingent fee contract is always subject to the supervision of the courts as to its reasonableness. Pocius v. Halvorsen, 30 Ill2d 73, 83, 195 NE2d 137 (1963).

Certainly the conduct of the attorney should be beyond suspicion and there must be a full and fair disclosure made to the client. At the same time a client having entered into such a contract with an attorney, owes the duty to be fair, reasonable and abide by his contract. Respondent maintains that the petitioner told him that if it turned out that the petitioner represented the insurance company of Mr. Basten, he would be unable to handle the case. He also testified that he understood that the petitioner would withdraw from the case under these circumstances.

During trial in January of 1969, the respondent testified that the first time he knew that petitioner or his firm represented the insurer of Basten was at the hearing on this petition. On cross-examination the respondent stated that if he had known that petitioner or his firm may have, on occasion, represented Maryland, it would have been one of the reasons for having discharged him on November 1,1968.

The testimony is without conflict that, at the initial meeting, petitioner advised the respondent that he or his firm, upon occasion, represented insurance companies. Neither party knew the insurer of the defendant at the time. Petitioner testified that he assured the respondent that if he undertook to step into the case it would not matter whether he had, in the past, defended one of the insurance company’s clients; that he would represent the respondent’s son and would devote his best efforts to his case.

There is nothing in the testimony or evidence of the case to indicate any consideration of a condition precedent to the contingent contract. At the time that the respondent discharged petitioner, he did not know whether or not petitioner or his firm had ever represented the insurer of Basten. The evidence and conduct of the parties does not raise or support his contention.

It is claimed that the court erred in admitting petitioner’s Exhibit No. 1 which was a document entitled “memorandum to the file.” It appears that at the time of the initial conference with the respondent, the petitioner dictated, on an office dictating machine, information regarding the occurrence, the injuries and the steps that would be taken. This memorandum to the file was attached to the petition as Exhibit B.

Petitioner testified that he dictated the entire memorandum in the respondent’s presence; that the belt upon which it was dictated was transcribed by his secretary and that after it was transcribed, he read it; that the written transcription prepared by the secretary truly and correctly reflected what he had dictated in the presence of respondent. Furthermore, it appears that the memorandum to the file had been forwarded to the respondent as an enclosure to a letter written by petitioner on November 5, 1968. The respondent, upon examination by his own attorney, stated that the two pages which composed the memo did not comprise the complete conversation that he had with petitioner on that day but only what he dictated on the machine after they had discussed it quite a bit.

The memorandum was made contemporaneously with the transaction, its transcription verified by the person who prepared it; the parties against whose interest the document would apply, identified it and stated that it was done in his presence. The record reflects that the witness was referring to the memorandum while he testified on direct examination before it was marked as an exhibit. We therefore hold that it was properly admitted into evidence. Healy v. City of Chicago, 109 Ill App 2d 6, 11-13, 248 NE2d 679 (1969); Waring v. F. W. Woolworth Co., 32 Ill App2d 7, 13-15, 176 NE2d 700 (1961); Chambers v. John T. Shayne & Co., 32Ill App2d 16, 26-27, 176 NE2d 645 (1961), opp den 21 Ill2d 621.

The final contention of the respondent is that the judgment of the court is against the manifest weight of the evidence. A court of review should not substitute its judgment for that of a trial judge who heard and saw the witnesses and where there is sufficient evidence upon which to base his findings. Sawchyn v. Samlow, 109 Ill App2d 363, 370, 248 NE2d 763 (1969).

A thorough review of the record in this case leads us to the conclusion that there was sufficient evidence upon which the trial court based its decision and therefore hold that the judgment entered was not against the manifest weight of the evidence.

It is elementary doctrine that a client has an absolute and unconditional right to discharge his attorney at anytime without regard to whether the fee arrangement between them is contingent, quantum meruit, per diem or any other reasonable basis. The question of valid cause for the discharge goes to the right of the attorney to compensation. In other words, an attorney who is without fault can nevertheless be discharged, subject only to the client’s obligation to compensate the attorney for services theretofore rendered, either on a quantum meruit or according to an express contract, if any, between the parties. Miller v. Solomon, 49 Ill App 2d 156, 167, 199 NE2d 660 (1964); DeKorwin v. First Nat. Bank of Chicago, 155 F Supp 302, 305-306 (1957).

When an attorney is discharged by the client without good or reasonable cause, rendering it impossible for the attorney to perform his contract of employment, the client is bound to compensate the attorney in accordance with his contract. This rule is nonetheless valid in those cases where the attorney, discharged without cause, is acting on behalf of a minor in the prosecution of a personal injury claim pursuant to a contingent fee contract. Caruso v. Felling, supra, pp 323-324; Goldberg v. Perlmutter, supra, pp 90-91.

For the reasons stated herein, the judgment of the trial court is affirmed.

Judgment affirmed.

SEIDENFELD, J., concurs.

ABRAHAMSON, J., dissenting.

ABRAHAMSON, J.,

dissenting:

Although the majority opinion here appears to be in accordance with case law, I conclude that under the rules of the Circuit Court of Lake County the contingent fee on personal injury cases is limited to 25% where a minor is involved.

A client unquestionably has the right to discharge his attorney at will and engage another. Goldberg v. Perlmutter, 308 Ill App 84, 31 NE2d 333.

There is no question in the instant case but there were two sets of attorneys employed on a contingent fee basis of 25%. There is a minor involved and I conclude, in keeping with Phelps v. Elgin, J. & E. Ry. Co., 37 Ill App2d 46, 184 NE2d 799, that the minor’s estate cannot be charged with two fees of 25 % for each attorney and that the only equitable solution to the problem is that the fees be divided amongst the two sets of attorneys according to the efforts expended by each of them in obtaining the settlement.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Russell H. Wilson, d/b/a Russell Wilson Trucking Co., Plaintiff-Appellant, v. The White Motor Corporation and Waddell White Trucking Sales, Inc., Defendants-Appellees.
    Gen. No. 69-85.
    Second District.
    December 31, 1969.
    Rehearing denied January 28, 1970.

      Knight, Ingrassia and Schirger, of Rockford, for appellant.
    Gilbert, Powers & Graves, Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellees.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal arises from the granting of a motion to dismiss the amended complaint filed herein.

In April of 1962, the plaintiff purchased a new White truck from the defendant Waddell White Trucking Sales, Inc. The defendant, The White Motor Corporation, manufactured the truck. In 1963, 1964, 1965 and twice in 1966, the rear suspension system collapsed. Each time it was repaired with new parts furnished by the defendants. The last breakdown occurred on June 21, 1966. On August 7, 1967, the plaintiff filed a complaint against the defendants herein, based upon the June 21, 1966 occurrence. This complaint was dismissed with leave given the plaintiff to file an amended complaint. On November 27, 1968, the plaintiff filed a six-count amended complaint. Three of the counts, charging negligence, implied warranty and strict liability, were directed toward Wad-dell. The balance of the counts made identical claims against White. A motion to dismiss the amended complaint under section 48 (e) was allowed with leave to file a further amended complaint within 30 days. The plaintiff failed to file an additional amended complaint and on March 13, 1969, the suit was dismissed with prejudice.

The plaintiff seeks a reversal of the trial court’s order for two reasons: 1) the limitations on Personal Actions was misinterpreted by the court and, 2) because replacement parts were purchased within the limitations of the act, the statute would not create a bar to recovery.

Personal action for injury to personal property is barred if actions are not brought within 5 years of the time they accrue. The statute (Ill Rev Stats 1967, c 83, § 16) reads in part as follows:

“. . . actions on unwritten contracts, expressed or implied ... or to recover damages for an injury done to property, real or personal, . . . and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.”

The trial court construed the phrase “after the cause of action accrued” to mean when the act occurred rather than when the injury took place. This is in line with the Illinois case law interpreting this portion of the statute. Sabath v. Morris Handler Co., 102 Ill App2d 218, 228, 234 NE2d 723 (1968); Board of Education of High School Dist. No. 88 v. Joseph J. Duffy Co., 97 Ill App2d 158, 161, 240 NE2d 5 (1968).

The plaintiff argues that the interpretation of the phrase, for which there is a basis in some other jurisdictions, should properly be that the statute commences from the time of discovery of the injury. While this view, at times referred to as the “known or should have known” rule, would be in keeping with more recent authorities, still we are of the opinion that such a change of policy properly should be within the province of the legislature and not the courts. Sabath v. Morris Handler Co., supra, 228-229.

A recent decision of our Supreme Court, not cited by the parties, may at first impression give credence to the plaintiff’s argument. The case, Rozny v. Marnul, 43 Ill 2d 54, 250 NE2d 656 (1969) concerns an interpretation of the same statute as involved in the instant case. In that case, the Court applied the “known or should have known” rule as it pertains to a land surveyor. However, it must be pointed out that legislation was passed in 1967, relative to registered land surveyors, which expressly adopted the “known or should have known” rule (Ill Rev Stats 1967, c 83, § 24(g)). This same rule is also adopted in legislation pertaining to medical malpractice (section 22.1) and to fraudulent concealment (section 23). Under section 22.1, the running of the statute commences when the action is known or should have been known but bars any such action filed more than 10 years after treatment or operation. Under section 23, the running of the statute commences at the time of discovery but then limits any action to within 5 years of discovery. Section 24(g) bars any action 4 years after it is known or should have been known. Sections 23 and 24(g), in effect, extend the statute of limitations, depending upon the circumstances of the particular case, to an indefinite period of time.

The sections are cited to show that the Legislature is cognizant of the rule proposed by the plaintiff and has applied the same, recently, in certain instances. However, the Legislature, we believe, has intentionally not adopted such rule for the circumstances of the case at bar and we are of the opinion that the Rozny case is limited in its application to cases within section 24(g). We, therefore, conclude that the trial court was correct in finding that the cause of action herein “accrued” in April of 1962 and that the statute of limitation barred recovery on the part of the plaintiff under the allegations of his amended complaint.

It is argued that the recent purchase of replacement parts, for the suspension system, tolled the statute of limitations. This theory is advanced for the first time on appeal and was never argued before the trial court. A theory advanced in the trial court cannot be changed on review nor can an issue not raised or considered by the trial court be presented for the first time on review. Benson v. Isaacs, 22 Ill2d 606, 610, 177 NE2d 209 (1961); Hinduliak v. Inn of Four Lakes, Inc., 98 Ill App2d 42, 47, 240 NE2d 532 (1968). In addition, the amended complaint is based upon the sale of a truck with a defectively designed suspension system and not upon any defective replacement parts which were later acquired.

For the above reasons the judgment of the trial court dismissing the amended complaint must be affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.