text:
    Marsha Maroney, Plaintiff-Appellant, v. Jack D. Maroney, Defendant-Appellee.
    Gen. No. 68-68.
    Third District.
    May 29, 1969.

      Vonaehen, Cation, Lawless, Trager & Slevin, of Peoria, for appellant.
    Carl F. Reardon, of East Peoria, for appellee.
   RYAN, J.

This is an appeal from an order modifying the terms of a Divorce Decree with regard to child custody. In October, 1966, plaintiff was granted a divorce from the defendant. The Decree awarded custody of the minor son of the parties to the plaintiff with visitation rights to the defendant.

In August, 1967, the defendant filed a Petition for a Rule to Show Cause alleging certain violations of the Decree by the plaintiff. An Order to Show Cause was entered as prayed in the Petition and the same was set for hearing on September 6, 1967. No further action was taken on this Petition and Order.

According to the defendant’s version, after the plaintiff was served with a copy of the Order to Show Cause on September 5, she refused to allow the defendant visitation with his son. On November 1, 1967, the defendant indulged in some self help with regard to his right to visitation. After being involved in a fight with the plaintiff’s present husband, defendant obtained physical control over his son and took him away from the plaintiff.

On November 2 the plaintiff filed her Petition for Rule to Show Cause and also prayed that the Decree be modified to restrict the defendant’s visitation rights and other relief. The court entered the Rule to Show Cause and set the same for hearing for November 7, 1967, and also set the prayer of the Petition relating to modification of the defendant’s visitation rights and for other relief at the same time.

On November 7, 1967, before the hearing commenced, the defendant filed a Motion to Dismiss plaintiff’s Petition for a Rule to Show Cause and to Quash the Order to Show Cause against the defendant. He also filed the Petition to Modify the Divorce Decree asking that custody of the child be permanently awarded to him.

When the hearing commenced on November 7,1967, the court properly concluded that a determination of all of the issues involved in the many pleadings before it would require several hearings over an extended period of time. At the hearing, the plaintiff demanded an immediate return of the child pursuant to the terms of the original Decree. The defendant’s Petition to Modify contained certain allegations which, if true, would indicate that it would not be to the best interest of the child to return him to the plaintiff. The court felt it was necessary to hear evidence as to who should have temporary custody pending the determination of the many issues. At the conclusion of the hearing on November 8, 1967, the court entered an Order suspending the provisions of the original Decree concerning custody and awarded temporary custody to the defendant.

On January 18,1968, at the conclusion of the hearing on plaintiff’s Petition for Rule to Show Cause the court found the defendant in contempt of court for violating the Divorce Decree and ordered him to pay the Clerk of the Court Ten Dollars ($10) and to pay the plaintiff’s attorney fees in the amount of One Hundred Fifty Dollars ($150). The next morning in open court, the order of the court was satisfied by the defendant. The court then proceeded with the hearing on the defendant’s Amended Petition to Modify the Divorce Decree. After many hearings and continuances, the matter was concluded. On April 18, 1968, the court entered an Order modifying the Divorce Decree granting custody of the child to defendant. It is from this Order that the appeal has been taken.

The plaintiff has challenged the authority of the court to enter the temporary order which placed the custody of the minor child with the defendant pending the determination of the many issues presented by the pleadings. Plaintiff contends: 1) That no pleading requested that an order be entered concerning the temporary custody of the child; 2) That the defendant willfully violated the Divorce Decree by physically taking the child from the plaintiff and refusing to return it. By virtue of such conduct, he had “unclean hands” and the court should not have entered the temporary order placing the custody of the child with the defendant.

The question of the propriety of the temporary order is now moot. The temporary order has been superseded by the permanent order entered by the court on April 18,1968, which modified the Divorce Decree and granted custody of the child to the defendant. 27B Corpus Juris Secundum, 589. The defendant now has custody by virtue of this permanent order and not by virtue of the temporary order. A temporary order as its name implies is provisional in character and continues only during the pendency of the action. When the cause is disposed of on its merits, the temporary order has fulfilled the purpose of its creation and is of no further effect. It is superseded by the provisions of the final Decree. Schuler v. Wolf, 372 Ill 386, 24 NE2d 162; Wain v. Barnay, 219 Ill App 401.

It is not clear from the plaintiff’s brief whether or not she is raising the “unclean hands” issue in relation to the permanent order. The record does not indicate that this question was raised in the trial court. The plaintiff filed a Motion to Dismiss the defendant’s original Petition to Modify filed November 7, 1967. One of the several grounds for dismissal urged by the plaintiff in her Motion was the “unclean hands” doctrine. The court granted the Motion to Dismiss the defendant’s Petition to Modify but did not specify the “unclean hands” doctrine as a reason therefor. The court then granted the defendant leave to file an Amended Petition to Modify which the defendant filed December 6, 1967. The record does not disclose that a Motion to Dismiss this Amended Petition was ever filed by the plaintiff nor that the “unclean hands” doctrine was ever raised with regard thereto. The permanent order of April 18, 1968, was based on this Amended Petition. The plaintiff not having raised the issue in the trial court is not now at liberty to do so in this- court. 2 Ill Law and Practice, 237.

Furthermore, in this case it appears that the trial court was attempting to do complete justice and to determine the best interests of the child. Both the plaintiff and defendant had filed petitions to modify the Divorce Decree. Both the plaintiff and the defendant had been ruled to show cause why they should not be held in contempt of court for violating the Divorce Decree. The defendant contended that the plaintiff had “unclean hands” and the plaintiff (as to the defendant’s original Petition to Modify) contended that the defendant had “unclean hands.” This maxim of equity is not a judicial straightjacket. The maxim is not intended to prevent equity from doing complete justice. It is not favored by the courts and the application rests in the sound discretion of the court. 30 Corpus Juris Secundum, 1034, 1036, 1037,1048. It does not appear that the court has abused that discretion.

The plaintiff contends that the trial court erred in denying her petition for a change of venue which alleged the prejudice of the trial judge. This petition was filed on November 17, 1967. It was filed after a hearing on the plaintiff’s Petition for a Rule to Show Cause had commenced and after the court had ruled adversely to the plaintiff on substantive matters. The trial court properly denied plaintiff’s Petition for a change of venue.

The plaintiff’s Petition for Rule to Show Cause in addition to praying that the defendant be ordered to show cause why he should not be punished for violating the Divorce Decree, also prayed that the Decree be modified so that the defendant would thereafter be permitted to visit the child only in the plaintiff’s home and in her presence. It also prayed for such other and further relief as the court may deem equitable and just. These matters were all set for hearing at the same time on November 7, 1967. The hearing was commenced on that date and continued to November 8. The order entered on November 8 recited, “This cause coming on to be heard on the Petition for Rule to Show Cause filed by plaintiff herein . . . .”

At the hearing it was clear that part of the relief that plaintiff was seeking under the prayer for other and further relief in her petition was the immediate return of her child pursuant to the terms of the original Decree. The order entered November 8 denied her this relief, temporarily suspended the provisions of the Decree granting plaintiff custody, granted to the defendant the temporary custody of the child and denied plaintiff all visitation rights until final determination of the question of custody. Nine days later, November 17, 1967, plaintiff filed her petition for a change of venue.

The hearing on November 7 and 8 was not an interim hearing concerning matters unrelated to the issues of the controversy as the plaintiff contends. As the order of the court recited, it was a hearing on the plaintiff’s Petition for a Rule to Show Cause. Part of the relief the plaintiff sought at the hearing on her petition was the enforcement of the original Decree by having the child immediately returned to her. The rulings of the court were adverse to the plaintiff and were on substantive issues involved in the case.

The venue statute (Ill Rev Stats 1967, c 146, § 1 et seq.) gives an absolute right of change of venue to the petitioner when his petition alleging the prejudice of the trial judge is duly made, verified and filed in accordance with the statute. The petition must be filed at the earliest practical moment and if filed after a hearing has commenced on the merits, it is filed too late. Smith v. Smith, 87 Ill App2d 21,230 NE2d 474.

A petition comes too late after the trial judge has ruled on a substantive issue in the cause. Miller v. Miller, 94 Ill App2d 138, 236 NE2d 321; Marshall Savings & Loan Ass’n v. Henson, 78 Ill App2d 14, 222 NE2d 255; or after the hearing has begun and the judge has ruled adversely to the petitioner. Booth v. Metropolitan Sanitary Dist., 79 Ill App2d 310, 224 NE2d 591.

The plaintiff complains of two errors of the court in the admission of certain evidence during the hearing of defendant’s petition to modify. The first of these relates to the admission into evidence of a copy of a report written by Dr. Hauk pertaining to his examination of the child of the parties. Any error involved in the admission of this document was obviated when at a continuance of the hearing at a later date plaintiff presented Dr. Hauk as a witness who testified at length concerning the boy, his examination of him and his report. As to matters contained in the report not covered by direct or cross-examination of Dr. Hauk, we wish to emphasize that this is a chancery proceeding heard by the court without a jury. It is presumed that the court in reaching its decision disregarded any improperly admitted evidence if the record contains sufficient competent evidence to sustain the result. Cleary, Handbook of Illinois Evidence, 2d Edition, page 105.

The other alleged evidentiary error involves an attempt by the defendant’s attorney in the cross-examination of the plaintiff and her present husband to elicit certain information concerning the past conduct of the plaintiff’s present husband concerning a crime involving moral turpitude committed in the state of Iowa. Defendant’s counsel was not thereby trying to impeach plaintiff’s present husband as a witness nor was he trying to prove a past conviction. The cases cited by the plaintiff condemning such cross-examination did not involve child custody hearings and are therefore not helpful. Inasmuch as the plaintiff was asking that the court return the child to her custody, the moral fitness of her husband with whom the child would reside was relevant. Serotzke v. Serotzke, 335 Ill App 485, 82 NE2d 375.

Finally, plaintiff contends that the decision of the trial court to modify the decree and grant custody of the child to the defendant is not supported by the evidence.

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. Nye v. Nye, 411 Ill 408, 105 NE2d 300. New conditions must have arisen since the decree to warrant the court changing its prior custody determination and these changed conditions must have affected the welfare of the child. Nye v. Nye, supra; Wade v. Wade, 345 Ill App 170, 102 NE2d 356.

It is a policy of the courts of review to recognize a broad discretion in the trial court called upon to award custody of the children, however, such discretion is a judicial one and is subject to review. Nye v. Nye, supra; Maupin v. Maupin, 339 Ill App 484, 90 NE2d 234. The discretion of the trial court relating to custody should not be disturbed unless the same is against the manifest weight of the evidence. Bateman v. Bateman, 337 Ill App 7, 85 NE2d 196; Schmidt v. Schmidt, 346 Ill App 436,105 NE2d 117.

In this case the trial court conducted extensive hearings on the issues between November 7, 1967, and April 18, 1968. Both the plaintiff and the defendant were given ample opportunity to introduce evidence in support of their positions and voluminous evidence was presented. In support of the court’s determination that the best interests of the child would be served by granting custody to the defendant, the record reveals the following:

That the plaintiff refused to allow the defendant visitation with the child for several months; the plaintiff spanked the child on numerous occasions; the plaintiff struck the child on various occasions with a plastic belt and a wooden spoon leaving marks and bruises on his body; the plaintiff was hysterical on occasions; the child had bruises around his eye; the child was pale and thin; the plaintiff had thrown the child across the room; the child was sickly and poorly clothed; during the first nine months after the plaintiff was divorced she moved on the average of once every two months; the plaintiff’s present husband had been involved in certain difficulties in Iowa and was receiving psychiatric counselling in Peoria.

These are but a few of the many evidentiary facts contained in the record relating to the welfare of the child which support the trial court’s determination. We feel that the determination of the trial court as to the requirements of the best interests of the child is not against the manifest weight of the evidence and should not be disturbed.

Accordingly, the decision of the Circuit Court of Peoria County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    In the Matter of the Estate of Pervus Brandt, Deceased. John Brandt, et al., Objectors-Appellants, v. Federal Sign and Signal Corporation, R. R. Cultra, d/b/a Cultra Nursery, Leslie Bork, d/b/a Bork’s Nursery, Hosman Greenhouse, Chattam Coal Company, B. R. Tongren, Edith Brandt, John Scheffers, Dirk Hoekstra, Theodore Hoekstra, and Pullman Bank and Trust Company, Claimants-Appellees.
    Gen. No. 68-79.
    Third District.
    May 29, 1969.

      Martin, Loomos, Drucker & Karcazes, of Chicago, for appellant.
    Gray, Thomas, Wallace, Feehan and Baron, of Joliet, and Clinton & Tongren, of Peotone, for appellee.
   ALLOY, J.

The record in this case discloses that Pervus Brandt had operated a nursery business in Chicago under the name of Brandt’s Nursery. On February 16, 1966, Brandt was declared incompetent by the Will County Circuit Court, and his wife, Edith Brandt, was appointed Conservator of his estate. Pervus Brandt died about six months later (August 18, 1966) and had never been restored to his rights. After Mrs. Brandt had been appointed Conservator, she moved the nursery business to Monee, Illinois, where she operated under the name of Brandt’s Nursery. In Monee, in the conduct of the nursery business, she incurred obligations and made collections, without any order of the court approving or granting authority to her to do so as Conservator. During this period of time, prior to the death of Pervus Brandt, Mrs. Brandt contracted for various materials and services under the name of “Brandt Nursery, Edith Brandt.” No claims were filed against the Conservatorship of Pervus Brandt.

After the death of Pervus Brandt, a total of 14 claims were filed against the estate. The children of Pervus Brandt objected to the claims, and the trial judge directed all claimants to file their appearances and answer or otherwise plead to objections filed therein on or before February 6, 1968. Only Pullman Bank and Trust Company and B. B. Tongren filed answers. At the hearing on the 14 claims, the trial court allowed the various claimants to testify on their own behalf and overruled objections made to such testimony under the provisions of the so-called “Dead Man’s Act” (1967 Ill Rev Stats, c 51, § 3). The trial court allowed 11 of the claims. On four of the claims, the only testimony was by the claimant. On two of the claims there was no testimony but only a stipulation that Mrs. Brandt ordered the merchandise, and on one claim there was apparently no testimony of any kind.

Only two of the claimants, who also filed answers to the objections, Pullman Bank and Trust Company and B. R. Tongren, filed briefs on appeal in this Court. The remaining 9 claimants whose claims were allowed did not appear and filed no briefs on appeal in this Court. On appeal in this Court, the objectors assert that the court erred in allowing claims as against the estate which were not proven by clear and convincing evidence; that the court allowed improper testimony contrary to the so-called “Dead Man’s Act,” and that the court also assumed the function of an advocate on behalf of various claimants. We find nothing in the conduct of the trial court which shows that it dealt improperly or in any manner which would, in itself, justify reversal (People v. Smith, 18 Ill2d 547,165 NE2d 333).

The claim of Pullman Bank and Trust Company was based on a promissory note dated April 6,1966. This note was signed by Mrs. Edith Brandt, and the words “Conservator of the Estate of Pervus Brandt” were typed below her signature after she had already signed. The record shows that Pervus Brandt first borrowed $5,000 on March 14, 1963. This note was renewed from time to time, and the last note actually signed by Pervus Brandt was on December 7, 1965. Before this note was due, Pervus Brandt was declared incompetent. When the note became due, Mrs. Brandt signed the new note dated April 6,1966. The Pullman claim was based on this note. No money was distributed to Mrs. Brandt and the note was a renewal of the former note of Pervus Brandt. While it was dated April 6, 1966, apparently it was actually signed in July of 1966. After the death of Pervus Brandt, Pullman Bank filed a claim for the $5,000 as against the Pervus Brandt estate. No claim had ever been filed by the Pullman Bank as against the Conservator-ship of Pervus Brandt.

The claim of B. B. Tongren was for attorney’s fees resulting from services performed for the Pervus Brandt Conservatorship. Tongren and his law partner performed services for the Conservatorship. The services were described in detail by testimony of Mr. Tongren. The attorneys prepared the petition for appointment of the Conservator together with notices and summons. They attended hearings and prepared the order appointing Conservator with the oath and bond. An inventory and various other documents were prepared and filed. Certain documents were also prepared in connection with the proposed sale and mortgage of the Conservator-ship property, at the request of Mrs. Brandt, but were not filed when she changed her mind about the method of proceeding with the Conservatorship. Appearances in court were specifically shown by claimant Tongren, who also testified as to preparation of a final report, his attempts to have it approved, and his eventual withdrawal as attorney for Mrs. Brandt at her request. The claim of attorney Tongren was for $950 in attorney’s fees and $118 in costs advanced. The trial court allowed the claim for $600 in attorney’s fees and $118 in costs advanced.

With respect to the Pullman Bank claim for $5,000, it is clear that there was evidence showing that the $5,000 note on which the claim was based was a renewal of a previous note which had been executed by Pervus Brandt. Brandt had first borrowed the money in March of 1968. The note was renewed several times by him through execution of a renewal note. It became due after Brandt had been declared incompetent. Mrs. Brandt then signed a renewal note and it was shown that she did not receive any money from the bank at the time the note was signed. It was also shown that the words “Conservator of the estate of Pervus Brandt” were typed in after the note was signed as a result of an understanding with Mrs. Brandt.

Evidence of the making of a note and its delivery is sufficient to establish a prima facie case for recovery on the note (In re Estate of Burke v. Sullivan, 247 Ill App 233). The evidence was clear that Mrs. Brandt signed the note. The only question was whether she signed the note obligating herself as an individual or whether she signed the note as Conservator for Pervus Brandt. The parties concede that Mrs. Brandt had no court authority as Conservator to execute the note prior to the time she signed the note. The evidence clearly establishes, however, that the note was actually a renewal note, since no money was received by Mrs. Brandt and there was sufficient evidence that Mrs. Brandt intended to sign the note as Conservator for Pervus Brandt. The fact that she had not obtained court authorization to sign the note as Conservator did not prohibit this note from becoming an obligation of the estate of Pervus Brandt (Bruner v. Wolford, 356 Ill 514, 191 NE 70). The trial court apparently felt that there was a sufficient showing that the act of Mrs. Brandt in executing the note was an action as Conservator and so intended, particularly in view of Brandt’s death a few months thereafter. Although Mrs. Brandt was allowed to identify her signature as her sole testimony, this bit of testimony was unnecessary for the purpose of establishing the claim since there was other independent testimony of an eyewitness who saw her sign the note. A judgment of a trial court should not be set aside if there is evidence in the record which supports the decision (In re Estate of Brumshagen, 27 Ill App2d 14, 169 NE2d 112). On the basis of the record in the present case, it is apparent that there is substantial evidence to support the conclusion of the trial court that the obligation represented by the note to Pullman Bank was an obligation of the estate of Pervus Brandt.

As to the claim of B. R. Tongren for attorney’s fees, it is clear that the determination of the trial court was not against the manifest weight of the evidence. The Conservatorship was closed without notice to attorney Tongren and it was proper for him to file his claim as against the estate of Pervus Brandt. The question of the proper amount to be allowed as attorney’s fees in the estate of a decedent or estate of an incompetent is properly one for the court (In re Estate of Klappa, 18 Ill App2d 501, 506, 152 NE2d 754). While the attorney objects on appeal to a reduction of his claim from the requested amount of $950 to $600, we cannot say on the basis of the record before us that the decision of the trial judge in making such allowance was contrary to the manifest weight of the evidence. The circumstance that the final report which attorney Tongren had prepared, listed the attorney’s fees as $907 with some work still to be done, did not amount to a specific finding by the court with respect to attorney’s fees as shown in the Conservator’s final report, and thus it was proper for the trial court to make a specific finding of the $600 figure following a hearing in which there was detailed testimony as to the services performed.

As to the remaining 9 claims, none of the claimants had filed an answer to the objections to the various claims and few of them, if any, were represented by attorneys at the hearing on the claims. Such claimants have filed no brief in support of their claims in this Court. It would appear from the record that improper testimony in violation of the Dead Man’s Act referred to was admitted to prove the various claims, and in one instance, there was apparently no evidence to prove the claim. In view of the record in this cause, the allowance of such claims cannot be sustained.

It is, therefore, our conclusion that the trial court was correct in allowing the claim of Pullman Bank for $5,000 and that the trial court was likewise correct in allowing the claim of B. E. Tongren for $718. The remaining 9 claims, on the basis of the record, should not have been allowed and the allowance of such claims will, therefore, be reversed. This cause will, therefore, be remanded to the Circuit Court of Will County with directions to such court to disallow the 9 claims herein referred to. The allowance of the claims of Pullman Bank and Trust Company in the sum of $5,000 and of B. E. Tongren in the sum of $718 are expressly approved and confirmed.

Eeversed in part, affirmed in part and remanded.

STOUDEE, P. J. and EYAN, J., concur.


author: MORAN, J.

text:
    In the Matter of the Estate of Albert A. Lynn, Deceased. John D. Lyle and Glenn I. Coffey, Executors of the Will of Albert A. Lynn, Deceased, Petitioners-Appellants, v. W. Clell Hill, Respondent-Appellee.
    Gen. No. 68-82.
    Fifth District.
    June 2, 1969.

      Conn & Clendenin, of Sparta, and William A. Schuwerk, of Chester, for appellants.
    Paul H. Nehrt, of Red Bud, and Dreman and Sterling, of Belleville, for appellee.
   MORAN, J.

The executors of the estate of Albert A. Lynn, deceased, appeal from a judgment entered on March 22, 1968, by the Circuit Court of Randolph County in favor of the defendant, W. Clell Hill.

This action was brought by the executors against Hill, as a Petition for the Issuance of a Citation Against a Surviving Partner. Following the issuance of a citation, Hill filed an answer denying that he was a surviving partner and claiming that he had purchased the partnership business from the deceased prior to his death. Two days later, Hill filed a petition styled “Petition for an Order Directing Executors to Execute a Deed to W. Clell Hill” for certain real estate allegedly purchased by him as part of the partnership business. However, the petition only asked the court to direct the executors to file a petition for authority to execute a deed to him for the said real estate. The executors filed a reply denying the dissolution of the partnership and the purchase of the real estate in question by Hill. The trial court, sitting without a jury, found the issues to be in favor of Hill on both the Petition for Citation and the Petition for a Deed; found that the partnership had been terminated and that the deceased had sold his interest therein to Hill; and that there was a balance due the estate of $630.10 from Hill.

Hill’s petition alleged:

“Your petitioner, W. Clell Hill, respectfully states:
“1. On or about the 15th day of October, 1957, the Decedent entered into an oral agreement with your petitioner whereby he agreed to sell to your petitioner his interest in the following described real estate, to wit:
“ ‘That part of Lot 102 Armour’s Survey to the City of Sparta, as described in a certain deed recorded in Book 173, on Page 257, Book 168 on Pages 350 and 352 of the Recorder’s Office of Randolph County, Illinois; and “ ‘Lots 8, 9, and 10, in Block 2, in W. E. Borders’ First Addition to the Village of Tilden: Both situated in Randolph County, Illinois.’
“along with the Decedent’s interest in all other assets in the partnership known as Lynn Funeral Home, for the approximate sum of $44,000.00.
“2. At the time of the death of the Decedent, there remained unpaid to him on account of the said agreement, the sum of approximately $1,630.10. By the terms of the Will of the within Deceased, petitioner and his wife were bequeathed the sum of $1,000.00. Your petitioner is ready, willing and able to pay the balance, $630.10, and has in all other respects complied with the said agreement between petitioner and Deceased.
“3. Wherefore, your petitioner prays that an Order be entered by this Court directing John D. Lyle and Glenn I. Coffey, as Executors of the Will of Albert A. Lynn, Deceased, to file a Petition in this
Court, praying for authority to execute a deed to your petitioner, conveying to him the interests in the real estate hereinabove described.
/s/ W. Clell Hill,
W. Clell Hill.”

After the hearing, the Circuit Court did not enter an order pursuant to the prayer of Hill’s petition, but instead entered a judgment in Hill’s favor directing the executors of the last will and testament of the decedent to execute a deed in Hill’s favor on his paying the balance due on the oral contract.

The record discloses that the trial court lacked jurisdiction to enter the foregoing order and in such a situation we will take notice of it, although the parties have not raised the question. Kudla v. Industrial Commission, 336 Ill 279, 168 NE 298. For this reason we will not consider other questions raised by the respective parties.

In a proceeding in probate to compel an administrator or executor to execute a deed, the Circuit Court exercises its jurisdiction pursuant to the following sections of chapter 3, Ill Rev Stats (1967):

“Sec. 218. Contracts of Decedent.) Upon the direction of the court in which his estate is administered contracts made by a decedent may be performed by the executor of his will or the administrator of his estate.
“Section 252. Completion of Decedent’s Contract to Convey Real Estate.) When a decedent has contracted to convey real estate or interest therein and dies before all of the conditions of the contract are complied with the executor or administrator may file a petition in the court which issued his letters praying that he be allowed to execute an instrument of conveyance to the purchaser conveying to him the real estate or interest therein that the decedent agreed to convey by the contract. If an executor or an administrator fails to file the petition as provided herein upon application of any interested person and proper showing the court may enter an order directing the executor or administrator to file it.
“This section shall not apply to the sale or conveyance of real estate or interest therein made by an executor under a power given in a will to sell or convey such realty or interest therein.
“Section 253. Contents of Petition to Execute Deed.) The petition shall be verified and shall state the facts and circumstances upon which it is founded and the names and post office addresses of the purchaser and all the heirs, devisees and legatees of the decedent.
“Section 254. Application for hearing—Notice.) On application the court shall set the petition for hearing upon some day not less than 30 days thereafter, unless all persons entitled to notice of hearing are of legal age and under no disability and file waiver of notice in writing, and then the court may hear the petition immediately. Not less than 20 days prior to the date of the hearing on the petition the clerk of the court shall mail a notice of the time and place of the hearing to each of the parties whose names and post office addresses are stated in the petition, and who have not waived notice.”

The heirs, legatees and devisees of the decedent were never made parties to the proceedings to sell the real estate as required by section 253.

Where a statute positively requires the petition to name and describe the heirs, an omission to comply with this requirement is jurisdictional and renders the decree void. 34 CJS 562, at page 516. The necessity of making the heirs parties to such a proceeding was expressed in Eaton v. Bryan, 18 Ill 525, at page 527:

“One of these conditions is, as we have seen, that the heirs shall be made parties to the proceeding, which is to authorize another to convey away from them the title to their land. But independent of this reference to other provisions of the statute, we should not hesitate to hold, under the general provision of chancery law, that the heirs should be made parties. They are directly interested, and, by the general rules of equity, must be made parties, that they may protect that interest, else they should not be bound by the decree. The executor has no interest in the land directly or incidentally, except so far as creditors may be concerned.”

In People v. Nunes, 58 Ill App2d 55, at 60, 207 NE2d 143, we stated that where a court is exercising a special statutory jurisdiction, it must proceed in strict conformity with the statute and its authority is limited to those special cases designated by statute:

“A court of general jurisdiction is presumed to have jurisdiction to render any judgment entered by it. Bartunek v. Lastovken, 350 Ill 380, 183 NE 333. Every reasonable presumption will be indulged in favor of its jurisdiction. Matthews v. Hoff, 113 Ill 90. (See discussion and cases, 14 ILP 173.) However, no such presumption prevails in connection with special statutory jurisdiction. In such cases jurisdiction is never presumed, and whatever the jurisdiction of the court, the proceedings must be in strict conformity with the statute. Brown v. Van Keuren, 340 Ill 118, 172 NE 1. As said in Chicago v. Hitt, 334 Ill 619, at page 628, 166 NE 517, ‘A court of general jurisdiction may have a special statutory jurisdiction conferred upon it not exercised according to the course of common law and which does not belong to it as a court of general jurisdiction. Nothing is taken by intendment in favor of the jurisdiction of a court of limited jurisdiction, or of a court of general jurisdiction while exercising special or limited powers. In the latter case the record must show the facts which authorize the court to act, and a judgment rendered without jurisdiction may be treated as void everywhere.’ ”

The failure of the trial court to proceed in conformity with the statute deprived it of jurisdiction and thus rendered its judgment void.

For the foregoing reasons, the judgment of the Circuit Court of Randolph County is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MILLS, J.,

text:
    In the Matter of the Estate of Ralph L. Moss, Deceased. John R. Moss, Plaintiff-Appellee, v. Dorothy J. Vulgamott (Nee Licek), Defendant-Appellant. Dorothy J. Vulgamott (Nee Licek), Plaintiff-Appellant, v. John R. Moss, et al., Defendants-Appellees.
    Gen. No. 11,048.
    Fourth District.
    June 3, 1969.

      N. E. Hutson, of Monticello, for appellant.
    Craig & Craig, of Mattoon (Jack E. Horsley and Whitney D. Hardy, of counsel), for appellees.
   MILLS, J.,

delivered the opinion of the court.

This appeal involves an estate in probate and two chancery cases, consolidated by the trial court. A purported stipulation was entered into in open court by counsel for the parties litigant, and this appeal was brought to challenge (1) the validity of the stipulation, and (2) whether it is enforceable.

Ralph L. Moss died on October 16, 1965. Two days later, appellant recorded a deed executed by decedent conveying to her certain interests in real estate. The will of Mr. Moss was admitted to probate in November, 1965, and appellant filed a claim in the estate in the amount of $31,168. In January, 1966, an action was filed by one of the Moss heirs against appellant to set aside the deed. The following month, appellant filed a partition proceeding directed toward land described in the deed.

One and a half years later, on June 8, 1967, the record reflects that the consolidated cases came on for pretrial conference, with appellant and her attorney, and members of the Moss family and their attorneys, present in open court. Pretrial hearing was recessed in the morning and extensive settlement negotiations then took place. Later in the same afternoon, the pretrial conference reconvened and the following interchange occurred:

“MR. HORSLEY: May the record show, if the Court please, that present in open court are Dorothy J. Licek, personally and by her counsel, and also present in open court are Kenneth Moss and John Moss, personally and by Craig & Craig, their counsel, and Mr. Arnold Moss by his counsel, Mr. Ralph Pearman, and further that Mr. Kenneth Moss is present in open Court personally and by counsel as Executor of the Estate of Ralph Moss, Deceased, and we move jointly that the cause be called for pretrial conference on this consolidated basis. Is that agreeable with the others?
“MR. BYERS: No objection.
“THE COURT: All right.
“MR. HORSLEY: We would like to represent to the Court that the various issues existing in these and related cases have been compromised and settled; that a formal written settlement contract is to be drawn to the approval of the attorneys involved and that it is, with Your Honor’s permission, deemed advisable to report in this pre-trial conference the skeletal structure of the contract so there will be a record on it, and all parties involved will know what has been officially agreed upon. These, if Your Honor please, are the terms:
“There is to be paid to Dorothy J. Licek by the Mosses, or in their behalf, the sum of $11,082.03, and Dorothy J. Licek is to convey to the Mosses, or to whomever among them or otherwise they direct, by a deed suitable in form to the grantee or grantees all interest in any real estate involved in this estate. And by this, Your Honor, it is meant to describe whatever real estate is involved other than the property located in the City of Chrisman, which is excluded from the estate and to which the estate makes no claim. The consideration described, and the deed described, are to be placed in escrow at The Citizens National Bank of Paris, to be released-by the escrowee when Dorothy Licek has furnished, at her expense, a title policy guaranteeing the validity of the title which she conveys to the Mosses, such policy to be issued by Chicago Title and Trust Company. The details of the escrow agreement to be worked out between the attorneys. Also, that Dorothy Licek shall dismiss or withdraw all claims, complaints, petitions and demands in any of the suits involved, and that she shall release and discharge any claim or claims she has in the probate proceedings, and that she shall, out of the proceeds to be paid to her, or otherwise, pay and discharge the claim of Paul Licek and Mary Licek and indemnify the estate and all other persons interested in the estate against any assertion further of that claim by those claimants. That Kenneth Moss shall continue as Executor, and that Dorothy Licek shall make over and assign to the Mosses any claim that she has under the will of Ralph Moss or otherwise, so that this settlement shall include a complete divorcement of Dorothy Licek from the estate and discharge of all claims she has as beneficiary under the will, claimant or otherwise against the estate. That there shall be reciprocal releases between the Mosses, including Kenneth Moss as Executor, and Dorothy Licek, so that each side discharges the other from any and all claims that either side may have against the other; that Kenneth Moss, as executor, shall have full control of estate administration affairs and assets, with the responsibilities and duties that accompany that control, with one qualified exception. One of the assets, Your Honor, is a litigated claim instituted by the decedent in his lifetime against Mass Construction Company in the Circuit Court of Macon County, with the firm of Rosenberg, Rosenberg & Bickes as attorneys for the plaintiff in his lifetime and for the executor of his estate now. As to that claim, the net proceeds are to be divided equally, when and if proceeds are produced, between Mrs. Licek on the one hand, and the Mosses or their designatees on the other, with the further proviso that Kenneth Moss as executor shall have unqualified and unlimited discretion in settlement of the Mass Claim, provided that the settlement negotiated is $7,500 or more, and if the maximum settlement figure negotiated is less than $7,500 it must, before it is accepted be reported to and approved by Mrs. Licek and her attorney of record here. Also, if Your Honor please, in connection with the Chicago Title and Trust Company policy, I want to advise the Court, with Your Honor’s permission, it is the purpose of the parties to move Your Honor to amend the decree previously entered in which the Court held that Mr. Ralph Moss’s deed to Dorothy Licek, which was the subject matter of action 66-E-2, was fraudulent in some measure. Your Honor will recall that. The purpose of this, again with the Court’s permission, will be to reconsider that aspect and modify that portion of it so that Chicago Title and Trust Company will not reject the application for insurance on the concept that there might be an equity outstanding. We will, of course, represent that to Your Honor at the time, but I did want to tell the Court that’s part of what I have agreed upon, subject to Your Honor’s approval.
“THE COURT: Will we have any trouble with the thirty days ?
“MR. HORSLEY: We considered that, Your Honor. It was not a final and appealable order. It was left open on the question of the amount, and it did not have the section 50 language in it, so Mr. Byers’ and my feeling was that the thirty days would not affect it. That it would not be a final and appealable order because it was still open on one essential aspect, namely the amount involved.
“Now, may I ask, Mr. Byers, have I correctly stated the substance of our agreement?
“MR. BYERS: Yes. Some of these understandings which have been related will necessarily result in contract-type procedures between the parties. Some will involve stipulations and orders of the Court in the various cases. It is also the understanding that the abstract of the Chrisman property will be delivered.
“MR. HORSLEY: We will deliver that today. We have the abstract of title to the Chrisman property, and we will surrender that to counsel before we separate.
“MR. BYERS: Thank you. I think this properly represents the subject of our agreement. I am sure there are minor details that aren’t here, but that’s not serious.
“MR. HORSLEY: Very good.
“MR. BYERS: Also, so far as anything pending in these cases, I assume that should be continued with the idea that they all will be dismissed when we get this formal order.”

Immediately thereafter, for a period of over two months, there occurred a mutual exchange of correspondence between respective counsel regarding reciprocal releases, deeds, motions, escrow agreements, suggestions, proposals, amendments, drafts and redrafts of the formal agreement. But no final agreement was executed, and in October, 1967, appellees moved for specific performance of the settlement stipulation. The motion was heard in open court, and in response to direct inquiry by the trial judge, appellant’s same attorney of record agreed that all parties were present at the settlement and that no issue was involved of any attorney exceeding his authority. Appellant was again personally present in open court during this inquiry. The motion was allowed and specific performance was ordered by the court. Two months later, a new counsel for appellant came upon the scene. He entered his appearance as her “associate attorney,” filed a motion for reconsideration of the court’s findings on the motion for specific performance and represents her in this appeal. Although appellant’s original counsel of record filed his notice of lien and apparently took no further part in any of the proceedings in the trial court thereafter, it is noted that Attorney Byers has never been officially dismissed by appellant nor filed his withdrawal as her counsel of record. At the hearing on the motion for reconsideration, appellant testified at great length and with an exceptional lay familiarity with legal semantics. The pith and core of her protestations was that she did not understand the stipulation to be final and binding, and that she did not authorize her attorney to enter into the agreement.

The reviewing courts of this state have consistently held that stipulations by parties or their attorneys affecting the conduct of suits will be enforced, unless there is proper showing that any stipulation is unreasonable, violative of public morals or the result of fraud. Kazubowski v. Kazubowski, 93 Ill App2d 126, 235 NE2d 664, 668; Roin v. Checker Taxi Co., 36 Ill App2d 447, 184 NE2d 736, 738; 860 Lake Shore Drive Trust v. Gerber, 19 Ill App2d 1, 153 NE2d 253, 257. “Thus, a party to a pending litigation may waive, by stipulation, his statutory or constitutional rights and the court will hold him bound by such stipulation.” People v. Spring Lake Dist., 253 Ill 479, 492, 97 NE 1042. Indeed, our Supreme court has ruled that where a defendant in a criminal case is present in open court and permits his attorney to waive constitutional rights, unless he objects he acquiesces in such waivers and is bound thereby. People v. Novotny, 41 Ill2d 401, 244 NE2d 182, 186, 187. Stipulations are looked upon with favor by the courts, since they tend to promote disposition of cases, simplification of issues and the saving of expense to litigants. The ends of justice are furthered by stipulations of settlement and the reluctance of courts to vitiate such agreements is well founded in fundamental logic. “Parties will not be relieved from a stipulation in the absence of a clear showing that the matter stipulated is untrue, and then only when the application is seasonably made.” Brink v. Industrial Commission, 368 Ill 607, 15 NE2d 491, 492.

Appellant’s avowals are athwart the record. She was personally present in the courtroom on the day the stipulation was orally announced in open court on the record. Having made no objections or remonstrances, she was bound by the actions and representations of her attorney of record. And were this not enough, she permitted her counsel to continue thereafter for over two months to draft, examine, prepare changes to, and work on the details of, the documents required to fulfill the stipulation entered into. It was not until appellees were forced to seek specific performance of the settlement did appellant then obtain an “associate attorney” and file a motion for reconsideration. This was over seven months after the stipulation. The record is replete with admissions of appellant’s original counsel of record of the efficacy of the subject stipulation. Mr. Byers was still representing appellant at the time of the hearing on November 24, 1967, on the motion for specific performance, and with appellant present in open court he said:

“Then in 1967 they finally reached some kind of understanding, and that was the understanding dictated into the record and the court has a copy. Now, it’s complete in that it attempted to settle claims in the Estate; not only claims of third parties but claims of the various members of the Licek family and the Moss family. It provided for their disposition . . . a calculated figure was arrived at and at some $11,082.03, and the mere fact it gets down to three cents will show the court there was quite a bit of negotiations as to how we got that. It was at that time agreed this would settle all of these proceedings.”

There is no doubt that appellant was personally aware of the stipulation as entered into by her counsel in open court and in her presence, that she thereafter acquiesced in the stipulation and that her desire to renege comes unseasonably.

It is also urged by appellant that a stipulation, like a contract, “must be clear, certain and definite in its material provisions.” We agree. She argues that this stipulation does not meet that test. We disagree. A mere reading of the stipulation reproduced in this opinion reflects that all basic and material elements of the agreement are contained therein, and that the details of implementation thereof can be properly supervised by the court. The trial judge entered a series of orders to implement the stipulation, and it would unduly prolong this opinion to consider every finding and each detail of those orders. Suffice it to say that the appellant has failed to show this court, either by argument or authority, in what specifics the trial court erred. In the absence of such showing, we are not prone to disturb the detailed and exhaustive orders of implementation.

The stipulation was voluntary, valid, binding and enforceable. There must be a point of no return—a moment of finality—in all litigation. This case is no exception.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


author: RYAN, J.

text:
    Herbert Lang, et al., Petitioners-Appellees, v. Board of Education of Community School Dist. No. 16 by Order of Court changed to Community Unit School Dist. No. 16, in McLean, Woodford, DeWitt, Logan and Tazewell Counties, Illinois, Respondent-Appellant.
    Gen. No. 68-52.
    Third District.
    June 3, 1969.

      William M. Goebel, of Bloomington, for appellant.
    Swain, Johnson & Gard, of Peoria, for appellee.
   RYAN, J.

This is an interlocutory appeal over certain procedural points raised in a suit brought to contest a school bond election. Although the original petition contesting the election was filed within the thirty-day period provided by law, (Ill Rev Stats 1967, c 46, § 23-20), it suffered from two substantial defects. The petition was defective in naming as the respondent the Board of Education instead of the School District itself which is required by statute to be made the respondent in such proceedings (Ill Rev Stats 1967, c 46, § 23-24). It was further defective in challenging only the validity of the election and not the result thereof, (Ill Rev Stats 1967, c 46, § 23-24). After the expiration of the statutory period within which an election petition may be filed, but within the time to plead thereto, respondent filed a motion to dismiss the petition. Petitioner thereupon moved for leave to amend the petition by making the School District the respondent and for leave to amend the language of the petition so as to challenge the result of the election. Both amendments were allowed by the Court and the motion to dismiss was then denied. These rulings of the Court are the subject of this appeal.

Respondent contends that since the contest was not brought against the proper party within the time allowed by law and since the original petition failed to state a cause of action in not challenging the result of the election, that the Court lacked jurisdiction to allow petitioner’s two amendments after the time had expired for bringing the contest. Respondent concludes that even the amended petition is fatally defective since some of the sworn allegations are on information and belief only.

We believe that the original petition was sufficient to confer jurisdiction on the Court for purposes of subsequent amendment. While it is true that the procedure for maintaining a school election contest is set forth in sections 23-19 through 23-30 inclusive of the Election Code, and that these sections control to the extent to which they regulate procedure, (Ill Rev Stats 1967, c 110, § 1), the Civil Practice Act applies as to matters of procedure not regulated by the Election Code. Graves v. Needham, 379 Ill 25, 39 NE2d 321.

Section 46 (4) of the Civil Practice Act provides that a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if all the following terms and conditions are met:

(a) The time had not expired when an original action was filed.
(b) The failure to join was inadvertent.
(c) Service was in fact had upon the person, his agent or his partner.
(d) The person knew of the action within the time that the action might have been brought against him.
(e) The original and amended cause of action grew out of the same cause of action.
(Ill Rev Stats 1967, c 110, § 46(4)).

There can be no argument as to conditions (a), (c), (d) and (e). The original petition was filed in time. Service in this case was obtained upon the President of the School Board of the School District and hence its agent and copies of the petition were sent by certified mail to and received by both the President and Secretary of the respondent, all within the time during which the contest could be brought. The same cause of action is involved.

Was the petitioner’s act of making the Board of Education the party defendant instead of the School District as required by statute inadvertent within the meaning of the Civil Practice Act? The Trial Court felt that it was. A possible explanation for this inadvertence may have been found in the form of the ballot itself which reads: “Shall the Board of Education . . . issue bonds . . . ?” In the case of Silver v. Lee Shell Equipment Corp., 31 Ill App2d 266, 175 NE2d 287, where the same point was passed on, the Appellate Court said at page 269:

“The dictionary defines ‘inadvertent’ as: ‘Not turning the mind to a matter; heedless; negligent; inattentive; . . .’ Webster’s New International Dictionary, Second Ed. It appears to us that the word was used in that broad sense in the statute, and includes such a situation as exists in the instant case.”

At page 270, the court added:

“. . . it (the legislature) took account of the problem that lawyers in our time have of determining the right defendant .... The primary basis for allowing such an amendment is knowledge of the suit through actual service on the person sought to be added or substituted or his partner or agent within the period of the statute of limitations, albeit he was served in the wrong capacity.”

Numerous decisions have held that the granting or denying of an amendment to the pleadings is a matter for the discretion of the Trial Court whose ruling will not be disturbed on review unless there is a showing of abuse of that discretion. Lahman v. Gould, 82 Ill App2d 220, 226, 226 NE2d 443; Miller v. Community Discount Centers, Inc., 83 Ill App2d 439, 228 NE2d 113; Davidson v. Olivia, 18 Ill App2d 149, 151 NE2d 345. We cannot say that the Trial Court abused its discretion in this matter in allowing the substitution of respondents nor did it abuse its discretion in allowing the language of the petition to be amended. In Dinn Oil Co. v. Hanover Ins. Co., 87 Ill App2d 206, 230 NE2d 702, at pages 211-212, the Appellate Court said:

“Section 46 of the Civil Practice Act, which provides for amendment of pleadings, is to be liberally construed ‘to the end that the controversy may be decided upon its facts and its merits and in furtherance of justice.’ Cain v. New York Central RR Co., 35 Ill App2d 333, 338. Applying these rules of liberal construction, a cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, no cause of action can be stated. Olin Mathieson Chemical Corp. v. J. J. Wuellner & Sons, Inc., 72 Ill App2d 488; Davis v. Hoeffken Bros., Inc., 60 Ill App2d 139.”

Our Supreme Court has ruled that an amendment of pleadings in an election contest relates back to the filing of the petition and is not barred by the thirty-day limitation of the General Election law, stating that to hold otherwise would render nugatory the ameliorative provisions of section 46 of the Civil Practice Act. Graves v. Needham, 379 Ill 25, 39 NE2d 321. The amendments which reached the objections of the motion to dismiss having been allowed by the Trial Court, the motion to dismiss was properly denied.

The respondent relies upon the Village of Metamora v. Eureka, 163 Ill 9, 45 NE 209, and McCurdy v. Board of Education, 359 Ill 188, 194 NE 287. In both cases the petitions failed to name the proper parties defendants in election contest cases within the statutory period. Both cases are distinguishable. In the Metamora case the election concerned the moving of the county seat of Woodford County from Metamora to Eureka. The petition to contest the election made the Village of Eureka and certain county officials defendants. No attempt was made to make the county of Woodford a party defendant as required by law until after the expiration of the thirty-day statutory period. This case did not involve an attempt to amend by substituting one party for another under conditions comparable to those provided for in section 46 (4) of the Civil Practice Act. The McCurdy case involved an attempt to contest an election held on the proposition of levying a school tax. The petition made the Board of Education a party defendant and did not make the School District a party defendant. On motion, the petition was dismissed. Amendments were thereafter offered by the petitioners and refused by the court. The Supreme Court as to the offered amendments stated at page 191, “the proposed amendments which sought to add the words, ‘which is School District No. 87 in the City of Bloomington, County of McLean, and State of Illinois’ were not sufficient to make the School District a party defendant because the Board of Education and the School District are separate corporate entities under the law.” Therefore, this case also did not involve an attempt to amend by substituting one party for another. Both, the Metamora case and the McCurdy case, were decided before the addition of subparagraph 4 to section 46 of the Civil Practice Act in 1955 and neither case involves conditions sought to be covered by said subparagraph 4. The Metamora case and the McCurdy case, therefore, are not helpful nor controlling in the case now before this court.

We further find that the petition as amended is not fatally defective. In Whitley v. Frazier, 21 Ill2d 292, 171 NE2d 644, our Supreme Court said at page 295 that:

“It is true, the opinion in the Hulse case contains intimations that if an original petition alleges everything on information and belief only, it would be too defective to be cured by amendment after the thirty days have expired. We think, however, that in these questions of practice the court should look to the essence of the allegations rather than to their form; and that insofar as present purposes are concerned the information-and-belief recitation may be treated as a matter of form only. In Smith v. Township High School Dist., 335 Ill 346, where a similar question was presented, this court observed that ‘A statute, however, which requires a statement of the points upon which an election will be contested should receive a reasonable construction in order to accomplish the purpose intended. To hold that a petition to contest an election should only contain such allegations of fact as are within the contestant’s personal knowledge would be impracticable, for the very nature of the proceeding compels him largely to rely upon information obtained from other persons, and it is obvious that as to such information the contestant can only make oath that he believes the allegations to be true.’ . . . The implication in the Hulse case . . . embodies too strict a rule on this question of pleading, is highly technical and can no longer be taken as correctly stating the law.”

For the reasons given, we believe that the Circuit Court of Tazewell County did not abuse its discretion in making the questioned rulings. Said rulings are accordingly affirmed and the cause is remanded for further proceedings.

Affirmed and remanded.

STOUDEE, P. J. and ALLOY, J., concur.


author: SMITH, J.

text:
    Carmen Maria Trapani, Plaintiff-Appellee, v. Salvatore Joseph Trapani, Defendant-Appellant.
    Gen. No. 10,994.
    Fourth District.
    June 3, 1969.

      Eoscoe Bonjean, of Springfield (Carl T. Meyer, of counsel), for appellant.
    Brown, Hay & Stephens, and Eobert H. Blalock, of Springfield (Eobert A. Stuart and Edward J. Cunningham, of counsel), for appellee.
   SMITH, J.

The trial court entered a decree for divorce for plaintiff on the grounds of extreme and repeated cruelty and for other relief. The defendant now appeals on the ground that (1) the trial court erred in allowing the plaintiff to amend her complaint by alleging acts of cruelty occurring after the original complaint was filed and entering a decree thereon, and (2) that the trial court erred in denying the defendant’s request for a jury trial of the issues. Neither error is well taken and the decree of the trial court is correct.

The original complaint in this case alleges three specific acts of cruelty on specific dates prior to the filing of the complaint and on other occasions. The suit was filed on October 11,1966. On January 11, 1967, the plaintiff filed her amended complaint alleging that the parties became reconciled on October 22, 1966, and that after said reconciliation further acts of cruelty and threats were committed towards the plaintiff on November 22, 1966, December 23, 1966, and January 3, 1967. In the trial court’s memorandum opinion and in the decree he found that acts of extreme and repeated cruelty were established on November 28, 1965, November 22, 1966, and March 15,1967. It will be observed that only one of these acts was included in the original complaint and the other two were included in the supplemental and amended supplemental complaint. It is the defendant’s position that no relief can be granted on the amended supplemental complaint for a cause of action which did not exist when the original complaint was filed. This position stems from the fact that the trial court in granting his decree found one act of cruelty existing at the time of the original complaint and two acts charged and established under the supplemental complaint. From this the defendant reasons that no cause of action existed under the original complaint as Illinois requires two acts of cruelty to establish a cause of action for divorce and since only one was established under the original complaint, the supplemental complaint did not aid it and the court granted the decree erroneously.

The answer to this position was rather succinctly stated more than 100 years ago in Davis v. Davis, 19 Ill 334 (1857), when the court stated at pages 342:

“In the English ecclesiastical courts, it is every day’s practice to introduce charges of adultery committed since the institution of the suit, by supplemental bill, and a sentence may be obtained on facts not existing at the commencement of the suit . . . Where, then, the necessity of driving her to a supplemental bill, or a fresh suit, when all the matter can be determined as the pleadings stand?”

Defendant cites 71 CJS Pleading, § 330 (c) and 41 Am Jur Pleading, § 265, for the proposition that where a complaint states no cause of action, it cannot be aided by a supplemental pleading setting up matters that have occurred after the commencement of the suit. Miller v. Cook, 135 Ill 190, 25 NE 756 is cited for the same proposition. These citations have no bearing on the case at bar for the very simple and cogent reason that the original complaint in this case did state a cause of action. The amended complaint stated a condonation and living together and further and additional acts of cruelty occurring after that date. This is a factual pattern wholly different from the authorities cited by the defendant and has no relation to the principle urged. In addition, in Kovac v. Kovac, 26 Ill App2d 29, 167 NE2d 281, the supplemental complaint charged adultery occurring after the filing of the complaint and the court granted the divorce on the supplemental complaint. In Rasgaitis v. Easgaitis, 347 Ill App 477, 107 NE2d 273, the suit was brought for divorce on the grounds of extreme and repeated cruelty. Following the acts alleged, there was cohabitation. Thereafter, a supplemental complaint was filed alleging additional acts of cruelty. It was there contended that the original complaint did not state a cause of action and therefore the original complaint should have been dismissed. The Appellate Court repudiated this theory and in effect said that the refusal to give effect to the plaintiff’s supplemental complaint in this case would be to hark back to the unfortunate situation which existed prior to the passage of our present Civil Practice Act where restrictive rulings on amendments frequently foreclose any cause of action because of the statute of limitations. We are not impressed with the thought that we should return to the restrictive pleading practice of yesteryears and require the filing of a new suit here.

The second point raised by the defendant is that he was deprived of his right of trial by jury. This right is granted under our statute, c 40, § 8, Ill Rev Stats 1967. The time that it must be demanded is set out in our Civil Practice Act, Ill Rev Stats 1967, c 110, § 64(1), which reads in part “. . . A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury . . .” As stated in Stephens v. Kasten, 383 Ill 127, 133, 48 NE2d 508, 511, “. . . the need for a systematic order of procedure requires that there be regulation of the time when the right to a jury trial be requested.” This is the legislative and the judicial policy of this State. As stated, however, in Hudson v. Leverenz, 10 Ill2d 87, 92, 139 NE2d 255, 257, “. . . even though a plaintiff does not file his jury demand ‘at the time suit is commenced/ or a defendant ‘at the time of filing his appearance/ this court has said that the right to have a jury is not necessarily foreclosed.” This statement is predicated upon the proposition that the right to a jury trial is a substantial right and that it ought not be foreclosed if there is a sound or substantial reason for waiving strict compliance with the statute. In the case at bar, the request for jury was filed more than six months after the original complaint and 3 months after the answer was filed and after the parties had appeared some eight times in court without once requesting a demand for a jury trial. Defendant seems to take the position that the burden is on the one resisting the motion for jury trial to show that there will be no inconvenience to anybody to grant the motion. In our judgment, this is a wrong approach. Ill Rev Stats 1967, c 110, § 59, stated: “On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.” While this paragraph may be said to indicate liberality, it should be pointed out that the obligation to show good cause rests with the one seeking relief and not with his opponent. The allowance or disallowance of the leave to file the demand late is within the sound discretion of the trial court. In Hudson v. Leverenz, 10 Ill2d 87, 139 NE2d 255, the court stated that the defendant did not advance any reasons or good cause other than to say their failure resulted from misapprehension of the facts, mistakes and inadvertence. In the case at bar, the defendant says that he had been advised by his attorneys that he was entitled to a jury trial and he would like to have one. He does not state that he was unaware of his right to jury trial or not so advised by his previous attorneys. He had been in court many times on various motions and in response to various petitions for temporary support and otherwise. If defendant felt a need for a jury that need was as apparent when his answer was filed as it was several months afterwards. Just because he now wants a jury cannot be ballooned into good cause for waiving the time limit. The promulgation of such a doctrine nullifies the statute. We cannot say that the trial court abused his discretion in denying the jury trial and cases cited by the defendant are readily distinguishable.

The judgment of the trial court is affirmed.

Affirmed.

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


author: EBERSPACHER, J.

text:
    Peggy L. Orr, Administrator of the Estate of Charles E. Orr, Deceased, Plaintiff-Appellee, Plaintiff-Cross-Appellant, v. Morrison Motor Freight, Inc., Defendant-Appellant, and Dycus Oil Company, Inc., and Harold F. Henrichsmeyer, Defendants-Cross-Appellees.
    Gen. No. 68-77.
    Fifth District.
    June 3, 1969.
    Gordon Burroughs, Burroughs, Simpson and Burroughs, of Edwardsville, and Emerson Baetz, of Alton, for appellant.
    J. Richard Royal, of Vandalia, and John H. Stern, of Indianapolis, Indiana, for appellee.
   EBERSPACHER, J.

This is an appeal from a final judgment of a plaintiff administratrix against a corporate motor truck operator, Morrison Motor Freight, Inc., for the wrongful death of plaintiff’s husband, Charles E. Orr, in a highway collision. The judgment was originally entered for $50,000 upon the general verdict, but was reduced to $30,000, the statutory limit in effect at the time of death of plaintiff’s intestate. (Ill Rev Stats 1963, c 70, §§ 1, 2.)

The death of plaintiff’s intestate occurred when a truck driven by him ran into the rear end of defendant’s tractor trailer truck; the latter was standing partially on the paved portion of the outer westbound lane of Interstate 70 in Fayette County, and was not in compliance with statutory regulations regarding the placing of lighted signals in advance of, and upon the roadway side of, such vehicle. (Ill Rev Stats 1963, c 95y%, § 218.) Evidence was presented by plaintiff from which the jury could have found that the lights on the Morrison truck were not lighted as required by the statute (c 95y%, § 202, Ill Rev Stats 1963) and that lighted signals were not placed to its rear in compliance with the statute.

A road service company, Dycus Oil Co., Inc., and its driver, Henrichsmeyer, who at the time of the collision was engaged in making the tire change on defendant-appellant’s truck, were also parties defendant but were exculpated by the jury. The driver for defendant-appellant died (from causes other than the collision) before the suit was filed and his personal representative was not joined. Henrichsmeyer, although at the site of the collision, neither heard nor saw the truck driven by plaintiff’s decedent approach, nor did he see the collision. The case was tried on both negligence and willful and wanton counts.

Motions for directed verdict were made by appellant, both at the close of plaintiff’s evidence and at the close of all the evidence. All were denied. A post trial motion was filed by appellant and denied. The notice of appeal prays that this Court set aside the judgment, sustain appellant’s motion for directed verdict made at the close of all the evidence notwithstanding the verdict of the jury and prays judgment for appellant; in the alternative it prays that the cause be remanded for a new trial and such other relief as this Court deems necessary.

Appellant states its theory on appeal to be that, “The motions of defendant-appellant for a directed verdict in its favor under both counts of the amended complaint should have been sustained because (a) there was no evidence of a proximate causal relationship between the acts and omissions charged to the defendant-appellant, and (b) there was no evidence that the plaintiff’s intestate was free of negligence or willful and wanton misconduct causing or contributing to cause his death.” Appellant states the issues presented for review are: (1) Was there evidence of a proximate causal relationship between the acts and omissions charged to the defendant-appellant and the death of plaintiff’s intestate so as to permit the cause to go to the jury?, and, (2) Was there evidence of freedom from negligence and willful and wanton misconduct on the part of plaintiff’s intestate so as to permit the cause to go to the jury?

As we review these proceedings and presentment here, the issue has been narrowed to the question of whether or not as a matter of law the trial court erred in overruling appellant’s motion for a directed verdict at the close of all the evidence. From our review of all the evidence, when viewed in its aspect most favorable to plaintiff, it does not so overwhelmingly favor appellant that no verdict for plaintiff could ever stand. Pedrick v. Peoria and Eastern Railroad Company, 37 Ill2d 494, 229 NE2d 504.

In this case, defendant submitted two special interrogatories to the jury:

1. “Was Paul D. Holman, driver of the Morrison Motor Freight truck, guilty of willful and wanton misconduct proximately causing the death of plaintiff’s intestate?” The answer of the jury was yes.

2. “Was plaintiff’s intestate in the exercise of due care and caution at. and immediately prior to the time of the collision, as alleged in plaintiff’s complaint?” The answer of the jury was yes.

Neither below, nor in this Court, has appellant challenged the answers to the special interrogatories. Therefore, the question of whether there is evidence of defendant’s willful and wanton misconduct which was the proximate cause of the death of plaintiff’s intestate, and the question of whether there is evidence of plaintiff’s contributory negligence is not before this Court. We note that the first interrogatory presented the question of proximate causal relationship between the acts and omissions charged to the appellant. The finding of the jury included in the answer to the second interrogatory being that plaintiff’s intestate was in the exercise of due caution is tantamount to a finding that he was free of willful and wanton misconduct which caused or contributed to his death. The findings are substantially conclusive of the proximate causal relationship and plaintiff’s intestate’s exercise of due care and caution, the facts upon which, under appellant’s theory, the issue of liability depended and which plaintiff allegedly failed to prove. We must under this state of the record, consider the special findings to have been fully sustained by the evidence. Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128.

In Turnbull v. Porter, 55 Ill App2d 374, 206 NE2d 97, defendant contended there was no evidence of willful and wanton misconduct on the part of defendant. The jury, in answer to a special interrogatory found that he was guilty of willful and wanton misconduct. Defendant did not assign this finding of the jury as error in this post trial motion. The Court said:

“Defendant did not challenge the jury’s answer to the interrogatory in the trial court and therefore the question of whether there is evidence of defendant’s willful and wanton misconduct is not before us.” 55 Ill App2d 374m, 206 NE2d 103.

The Court there relied upon Freeman v. Chicago Transit Authority, supra, and cited Forslund v. Chicago Transit Authority, 9 Ill App2d 290, 132 NE2d 801 and Voight v. Anglo-American Provision Co., in both the Appellate Court, 104 Ill App 423, and the Supreme Court, 202 Ill 462, 66 NE 1054. See also Lipscolm v. Coppage, 44 Ill App2d 430d, e, 195 NE2d 222, in which the plaintiff contended the verdict to be against the weight of the evidence in the post trial motion, but did not in that motion state that the answers to the special interrogatories were against the weight of the evidence. The Court in that case referred to Rubottom v. Crane Co., 302 Ill App 58, 23 NE2d 354, which describes ways a party may escape being conclusively bound by the special finding of the jury.

We are presented with no assignment of error as the basis for a new trial, and as a result we affirm the judgment.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Abe Rice, Defendant-Appellant.
    Gen. No. 10,962.
    Fourth District.
    June 3, 1969.

      John Gambill, of Rantoul, for appellant.

      Lawrence E. Johnson, State’s Attorney, of Urbana, for appellee.
   TRAPP, P. J.

Defendant appeals his conviction following a jury trial upon an indictment for forgery. He was sentenced for a term of 8 to 14 years.

At issue is whether the failure to place the defendant on trial within 120 days from the date taken into custody, as required by chapter 38, section 103-5, Ill Rev Stats 1965, resulted from a delay “occasioned by the defendant.”

Defendant was arrested on November 18, 1966, and was indicted on December 20, 1966, following a preliminary hearing. The record shows that the arraignment set for December 28,1966, was not consummated. On February 23,1967, the case was set for trial on March 13,1967.

Much of the factual background was set out at length in our opinion in People v. Rice, 96 Ill App2d 253, 238 NE2d 266 (4th Dist 1968), wherein this court held that the trial court erred in finding one Bracy, a lawyer, in contempt of court, when he did not appear on the trial date, March 13, 1967. This court determined that the fact that Bracy, an attorney practicing in Chicago, had appeared for the defendant at a preliminary hearing and in a proceeding to reduce bail did not constitute him an attorney of record in the matter of the subsequent indictment of the defendant where Bracy had not entered his appearance at arraignment or otherwise. It was considered a significant factor that there had been no arraignment of the defendant as of that trial date.

The report of proceedings shows that on March 13, 1967, the case was called by the court without a jury. Bracy did not appear. Following a colloquy among the court, the State’s Attorney and the defendant, there were one or more attempts to reach Bracy by telephone. Thereafter the court ordered a citation to issue against Bracy returnable March 16. During this time, the State’s Attorney advised the court that on March 9, Bracy had stated that he was not an attorney representing defendant. The State’s Attorney also suggested that the defendant be arraigned.

Bracy appeared on March 16 in response to the citation, and protested that he was not in contumacious contempt in that in his experience he would be attorney of record for defendant only following an appearance after the indictment of the defendant. The report of proceedings discloses that in a telephone call on March 14, Bracy advised the court that he was not an attorney for the defendant.

Despite the fact that Bracy was held in contempt for failure to appear, the report of proceedings shows that the court stated, “I take it your position still is that you are not attorney for Abe Rice.” Thereafter the court granted Bracy’s motion for leave to withdraw. The court thereupon appointed the public defender to represent the defendant. At this time defendant inquired of the court whether or not he was to be bound over to the grand jury, and was advised that an indictment had already been returned.

During this portion of the proceedings the State’s Attorney advised the court that the statutory period of 120 days would expire on March 18. The court stated that the jury would not be available on March 17 and there is basis in the record for concluding that the jury had been excused from reporting until March 20.

On March 17, defendant appeared in court with the public defender and the State’s Attorney. The record recites that he stated to the court that he did not want an attorney. When the court suggested appointing other counsel, defendant replied that he did not want any attorney. Thereupon defendant was furnished a copy of the indictment and a list of witnesses. He pleaded not guilty and stated to the court that he was ready to go to trial. The court vacated the appointment of the public defender and set the case for trial on Monday, March 20, which was the second day following the expiration date of the 120-day period.

On March 20 defendant appeared and made an oral motion for discharge under chapter 38, section 103-5, Ill Rev Stats 1965. The motion was denied. Defendant then asked to procure his own counsel and moved to vacate the trial date. On March 27 defendant advised that he had not obtained counsel and the court indicated that it would appoint counsel for the defendant. The court on this date made a finding of an understanding waiver of counsel and continued the case for trial on April 10. On the latter date the defendant requested appointment of counsel other than the public defender and the present counsel was appointed. The latter made a written motion for discharge pursuant to the statute. This motion was denied.

Prior to the trial, defendant renewed his motions for discharge and tendered evidence that he had been in jail since November 18, 1966, and that he had neither made a motion for continuance nor authorized one to be made in his behalf. The People v. Jones, 33 Ill2d 357, 211 NE2d 261 (1965); People v. Terlikowski, 83 Ill App2d 307, 227 NE2d 521 (3d Dist 1967).

The essential argument of the State’s Attorney upon the issue is that the delay was occasioned by the failure of “defendant’s attorney” to appear on March 13. This assumption was found wanting in our opinion in People v. Rice, 96 Ill App2d 253, 238 NE2d 266 (4th Dist 1968). That opinion considered the statutes concerning the function of an arraignment in establishing the proper representation of a defendant.

While the State’s Attorney argues that the notice of the arraignment for December 28, 1966, was ignored by the attorney, Bracy, such circumstance actually is a form of advice that Bracy was not serving as attorney of record. The fact that the State’s Attorney mailed a notice of a trial date to an attorney who had not entered an appearance at an arraignment or otherwise following indictment is hardly a basis for charging a delay to the defendant. The record also shows that a copy of the same notice was also sent to another Chicago attorney. He does not otherwise appear in the proceedings.

Again, the State’s Attorney was advised on the 9th of March that Bracy was not serving as an attorney in the case, and such fact was reported to the trial judge on March 10. Nothing intervenes in the record until the trial date, March 13, when the want of representation was demonstrated.

We are impressed with the issue of constitutional due process in the sense of fundamental fairness in procedure in this case. The People v. Finn, 17 Ill2d 614, 162 NE2d 354 (1959). Such is exemplified in the proceedings when on March 16, the State’s Attorney suggested that the case be set for trial on March 17 so that defendant could ask for a continuance, as it was assumed that he would be required to do. At such time defendant had not been arraigned.

In this court, the State’s Attorney argues that the motion by defendant to proceed without counsel on March 17 following his arraignment on that date was a ploy designed to create delay and to embarrass the court, and was not in the expression of a bona fide desire to proceed to trial. Suffice it to say that on that date, appointment of the public defender was vacated by the court, and subsequently on March 27, the court made a further finding of a knowing waiver of counsel.

The Supreme Court has repeatedly stated that the statute at issue is designed to implement and insure rights arising under the Constitution. The People v. Moriarity, 33 Ill2d 606, 213 NE2d 516 (1966); The People v. Bryarly, 23 Ill2d 313, 178 NE2d 326 (1961). The role of the prosecutor as an architect of the proceeding should comport with constitutional and legislative objectives. Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed2d 215, 219 (1963). Practices in prosecution which result in compelling, or seeking to compel, the waiver of constitutional and legislative requirements are unfair in the administration of justice.

It seems clear that on and after March 13 the State was not prepared to proceed to jury trial until March 20 for the reason that the jury had been excused. Our Supreme Court has held that the statutory period is not extended by the fact that the last day of such period falls on a Saturday, as was the fact in this case. The People v. Shaw, 24 Ill2d 219, 181 NE2d 120 (1962).

In The People v. House, 10 Ill2d 556, 141 NE2d 12 (1957), and The People v. Wyatt, 24 Ill2d 151, 180 NE2d 478 (1962), the court at arraignment suggested a continuance or made such continuance on its own motion. These cases hold that such delay in prosecution was not chargeable to the accused. The criterion or test established by the Supreme Court is whether the act of the defendant in fact contributed to cause the delay, or created the necessity for the postponement of the trial. The People v. Fosdick, 36 Ill2d 524, 224 NE2d 242 (1967); The People v. Bagato, 27 Ill2d 165, 188 NE2d 716 (1963); The People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951).

We have examined the facts of this case in the light of the language of the Supreme Court in The People v. Denham, 33 Ill2d 599, 213 NE2d 539 (1966). In that case private counsel failed to appear at trial. The judgment was actually affirmed by reason of the fact that trial was within four months of the date of incarceration as distinguished from the contention that the newer 120-day statute governed. In considering the contention of the defendant that he had been deprived of the effective representation of counsel, it was noted that at arraignment defendant asserted that he had private counsel, and when the public defender was appointed defendant renewed his assertion and did not co-operate with the public defender in the preparation of the case. Private counsel failed to appear for trial which was apparently set for the last day of the four-month period. When the court appointed counsel, defendant refused to permit the attorney’s motion for continuance, and thereafter claimed a constitutional defect, i. e., a denial of effective representation.

The facts in this case are distinguished in that on February 23, 1967 when the case was set for trial, the defendant had made no assertion of private counsel at arraignment, for there had been neither an arraignment nor a waiver thereof. Ill Rev Stats 1965, c 38, § 113-6. While the court appointed counsel on March 16, such appointment was vacated at defendant’s request on March 17 and it does not appear that such appointment did in fact cause delay. The People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951); The People v. Shaw, 24 Ill2d 219, 181 NE2d 120 (1962). Here the case was set to a date beyond the statutory period upon the court’s own motion.

The record discloses no motion by defendant for continuance from the date of the belated arraignment on March 17, 1967, and no acquiescence in the continuance of the case until a date later than the expiration of the statutory period. The State’s Attorney and the court have the means and authority to provide orderly procedure, including arraignment of the accused in apt time for a trial to be held under the provisions of the statute. Such was not done in this case. People v. Hatchett, 82 Ill App2d 40, 226 NE2d 97 (5th Dist 1967).

The petition for rehearing and the brief in support thereof filed by the State’s Attorney relies upon issues not raised in this Court upon the appeal as originally presented by that office. No argument was made, no authority was supplied and we were not asked to consider the effect of a continuance of three days for obtained private counsel prior to the preliminary hearing.

It is noted that a criminal defendant is charged with the waiver of issues which are not presented upon his appeal. Logically, a similar rule is applied to the prosecution. See People v. Kamsler, 39 Ill2d 73, 233 NE2d 415.

The case is reversed and remanded with instructions to discharge the defendant. The People v. Gray, 33 Ill2d 160, 210 NE2d 486 (1965).

Reversed and remanded with directions.

SMITH and CRAVEN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bob G. Forbis, Impleaded, Defendant-Appellant.
    Gen. No. 11,001.
    Fourth District.
    June 3, 1969.

      Harry J. Westfall, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

The defendant was convicted of burglary of a jewelry store in Decatur, Illinois, and on denial of his motion for a new trial was sentenced to a minimum of 5 and a maximum of 15 years in the penitentiary. The only basis for appeal is improper and prejudicial remarks to the jury made by the State’s Attorney in closing arguments. Objection was preserved in the post-trial motion, but the defendant asserts that the trial judge never did actually comment on the precise issue. Nevertheless, he did deny the motion for new trial and in so doing committed no error.

Be he a saint or sinner, a defendant is entitled to a fair trial under the law and where there is a record of prior conviction, the only comment properly permitted in argument is that related to his credibility and where he had admitted on the witness stand a prior penitentiary sentence for a felony, such is the proper subject of comment if restricted to his credibility. This is not only statutory, but decisional law. People v. Donaldson, 8 Ill2d 510, 134 NE2d 776; People v. Nastasio, 30 Ill2d 51, 195 NE2d 144; Ill Rev Stats 1967, c 38, § 155-1. It is but a truism to say that it is the obligation of a prosecutor to prosecute fairly and impartially and this does not imply that he may not prosecute vigorously so long as he stays within the facts in the record and any reasonable and proper inference therefrom. The prosecutor did just that in this case.

The defendant selects two statements of the prosecutor taken wholly out of context and asserts that his statement on the witness stand that he had been previously convicted of a robbery was improperly used by the prosecution to the defendant’s detriment. The additional abstract of the record sets forth the argument on this point in its entirety and in it the prosecutor was discussing the credibility of the witness. In discussing his credibility, he suggests that it is an old story that a man with $10.00 in his pocket and, who stayed at the Salvation Army the night before, had in his possession two of the stolen watches, but states he had purchased them for himself and his girl friend. He first stated that he got the watches from his mother and that one watch belonged to his wife. The State’s Attorney then stated:

“Now why does he tell all these stories about these watches that he had in his possession that were stolen? Does a man who is not guilty tell all these stories about how he got these watches ?
“And then there is. another thing to consider when you are trying to believe—trying to decide whether you should believe his explanation and how much weight you should attach to it, and that is that the defendant has been convicted of this same offense of burglary.”

The court sustained an objection to that statement. The State’s Attorney then said:

“To determine whether to believe the defendant, in determining how much weight to attach to his story, whether you can believe it, you can consider the fact that he has been convicted of an infamous crime, and the Court will instruct you that that is the law.”

The defendant’s Instruction No. 1 so far as here material read:

“The Court instructs the jury that the conviction of a witness of an infamous crime is evidence tending to affect his or her credibility, and in determining the weight you should attach to the testimony of any such witness, you have a right to take into consideration the fact that he was previously convicted of an infamous crime.”

In a murder conviction in People v. Donaldson, 8 Ill2d 510, 134 NE2d 776, the Supreme Court criticized the State’s Attorney for asserting that a self-admitted previous conviction of robbery would warrant the conclusion that such was his “profession” and stated “It is our opinion that error resulted from the bringing of such matters into the record.” Condemnation by the Supreme Court in Donaldson of the State’s Attorney’s remarks is remote from the record before us. Fairly stated, the State’s Attorney was arguing only the credibility of the witness as to the several stories he had told concerning the watches and he was entitled to relate this to the admitted evidence of a prior felony conviction shown in this record. There being no error committed, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TEAPP, P. J. and CEA YEN, J., concur.