author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Hugh Edward Walton, Defendant-Appellant.
    Gen. No. 11,095.
    Fourth District.
    December 30, 1969.

      Donald B. Mackay, Public Defender of McLean County, of Bloomington, for appellant.
    Paul R. Welch, State’s Attorney of McLean County, of Bloomington (Harold M. Jennings, James M. Carr, and David L. Coogan, Assistant State’s Attorneys, of counsel), for appellee.
   TRAPP, J.

Defendant was found guilty of murder following a jury trial. Sentence imposed was for a term of not less than 16 years nor more than 40 years. Defendant’s post-trial motion was denied and he appeals.

It is urged that the court erred, (1) in admitting into evidence certain photographs of the victim to defendant’s prejudice, (2) in admitting into evidence an automatic pistol and cartridge clip which, it is argued, were obtained through unlawful search and seizure, (3) in refusing to permit cross-examination of a prosecution witness to show coercion and intimidation, (4) in refusing to instruct and permit argument upon the prosecution’s burden of proof arising under a bill of particulars, and (5) in that the consecutive sentence imposed is void and should run as concurrent, with a sentence for burglary of not less than 5 years nor more than 10 years.

On October 31, 1967, the body of the victim, Tribbett, was found beside a country road in McLean County. The indictment alleges that the defendant shot the victim on September 22, 1967. A bill of particulars given orally in open court stated that the shooting occurred between 8:00 p. m. on September 22nd and 2:00 p. m. September 23rd.

A witness for the prosecution, Hines, testified that he was driving a car in which defendant was riding in the right front seat while the victim was in the back seat, and that while he was not paying serious attention, he believed that the others were arguing. He testified that defendant pulled out two weapons and shot Tribbett as he sat in the back seat. The body was put out of the car by the side of the country road a short distance from Route 51. Hines was serving a sentence for burglary at the time of trial and testified under immunity granted under this homicide.

Defendant was arrested at a motel in Davenport, Iowa, on October 2, 1967, at about 2:00 a. m. He was then in the company of one Patricia Reynolds and her infant child. This arrest by the Davenport police was pursuant to a warrant issued for defendant by reason of a burglary at Bradley, Illinois, where firearms were taken. Contemporaneous with the arrest an automatic pistol was seized in the motel room and subsequently identified as being the murder weapon, as well as being taken in the burglary at Bradley.

Patricia Reynolds testified for the prosecution that the morning after the murder, she and her child began travelling with the defendant. It appears that this status continued until the date of the arrest on October 2nd, the parties staying at various motels in the area of Rock Island, Davenport and Moline. During a part of this period it appears that Hines was accompanying them. She testified that while she was staying with the defendant at a motel in Moline, defendant had told her how he had gotten angry with Tribbett and shot him as he sat in the back seat of the car.

In arguing the error in admitting the pistol and clip into evidence, the defendant first contends that the arrest was unlawful. A detective of the Davenport police testified concerning the arrest, stating that he had knowledge of a general police bulletin of a burglary at Bradley, Illinois, at which guns were stolen, and that he had a subsequent telephone call from the Bradley police department advising that a warrant had been issued for the arrest of defendant for this burglary and asking that he be picked up. Upon such state of facts an arrest is authorized by the Illinois Statute, chapter 38, § 107-2 (b), Ill Rev Stats 1967. The officer testified that such facts also authorized arrest under Iowa law.

The defendant and Patricia Reynolds were discovered at the motel in Davenport at which time they were using the name Edwards. There is some evidence to the effect that the motel manager had given the police information concerning a long distance telephone call to a motel guest in which there was reference to the effect that a murder was known and that the guest should leave. At about 2:00 a. m. the police went to the room occupied in Edwards’ name and called for Walton who came out. Defendant opened the door and subsequently acknowledged that he was Walton. He was placed under arrest outside the room. Patricia Reynolds came to the door, first saying that her name was Edwards. The testimony is that Reynolds consented that the officers come into the room to search. A weapon, not tendered in evidence, was pointed out by Reynolds to the officers, somewhat concealed on a ledge behind the bathroom door. The testimony is that the pistol at issue was observed on the top of a nightstand between the beds at which time the clip was in a functioning part of the pistol.

No motion to suppress was filed prior to the commencement of trial. The issue was raised by oral motion at the conclusion of the testimony in chief of the Davenport detective. He was then examined further out of the presence of the jury. There is no other evidence upon the issue.

The trial court ruled that the pistol was seized as incident to a lawful arrest at a time when it was in plain view, and that Patricia Reynolds had such status as a cotenant of the room to consent to the search. The motion to suppress was denied.

Defendant argues that there was no search incident to an arrest as the defendant was outside of the room and in custody. He further contends that if the pistol was in plain view, there was no need to go into the room to obtain it. Finally, it is argued that Reynolds had no authority to consent to the search. Defendant cites chapter 38, § 108-1, Ill Rev Stats 1967, but no authorities supporting the point of view. Such statutory section provides that upon lawful arrest the officer may search the person arrested and his “immediate presence” for the purpose of protecting the officer from attack, preventing an escape, discovering the fruits of crime or articles or things which may have been used in the commission of, or constitute evidence of, an offense.

The Supreme Court has held that a search implies a prying into concealed places, but that the seizure of contraband or evidence in plain view is not unreasonable. The People v. Tate, 38 Ill2d 184, 230 NE2d 697; The People v. Pickett, 39 Ill2d 88, 233 NE2d 560. Facts somewhat comparable to defendant’s contention, that since defendant was outside of the room under arrest there was no necessity for the officers to enter the room, are found in The People v. Davis, 33 Ill2d 134, 210 NE2d 530, where the defendant was arrested for a traffic violation. He got out of the car to produce his driver’s license and thereupon the officer saw a tinfoil package on the floor of the car. This proved to contain narcotics. It was held that there was no search, but rather a reasonable seizure of an article in plain view. The record is not precise in describing from what point the officer saw the automatic pistol which he seized and unloaded. In The People v. Wright, 41 Ill2d 170, 242 NE2d 180, an officer standing upon a public right-of-way observed operations incident to policy gambling through the window. It was held that it was not a search to observe that which was in plain view, and that the ensuing arrest was lawful and the seizure of the material was not unreasonable. In Harris v. United States, 390 US 234, 19 L Ed2d 1067, 88 S Ct 933, it is said that where an officer has a right to be in a position to observe, objects in plain view may be seized and introduced into the evidence.

Entering the room is not, in itself, a search. Reynolds was occupying the room with her infant and the record shows that she had been the consort of defendant and lived with him with her infant for some days, staying at various motels. We cannot say that entering the room with her consent produced a trespass. The officer’s seizure of the pistol in plain view on a nightstand was not illegal. The People v. Wright, supra. Since there was no search in fact, we need not discuss the authorities such as People v. Rodriquez, 79 Ill App2d 26, 223 NE2d 414, concerning the authority of a person other than the defendant to consent to search premises.

Defendant urges that the court erred in admitting into evidence two photographs taken by the Coroner at the time and place where the body was found. It is urged that such photographs are prejudicial and inflammatory and were of no probative value. One photograph shows a body in underbrush taken some distance from the feet and little of the upper body can be discerned. Such photograph is no more inflammatory than a view of a normal body. The second photograph shows a head and upper torso in advanced decomposition.

The defendant cites The People v. Lefler, 38 Ill2d 216, 230 NE2d 827 and The People v. Jackson, 9 Ill2d 484, 138 NE2d 528. In each case autopsy procedures had so altered the appearance of the body that the pictures had no relevance to the testimony. In Lefler there was detailed medical testimony and the nature and extent of the injuries were not disputed. In this case defendant’s bill of particulars called upon the prosecution to state the cause of death. Proceeding with its case in chief, the prosecution case is extensive upon the extreme difficulty of conducting an autopsy and in locating and removing two bullets.

In The People v. Nicholls, 42 Ill2d 91, 245 NE2d 771, and The People v. Speck, 41 Ill2d 177, 242 NE2d 208, it is held that photographs are admissible even though defendant is willing to stipulate as to identity and cause of death. Here, as in Speck, the photographs corroborated testimony as to how the body was found and the ballistic expert identified the body from which the bullets were removed by means of the photographs last described. There was no error in the exercise of discretion in admitting the photographs.

The court refused to permit defendant to cross-examine the witness, Reynolds, concerning a purported conversation between the latter and a woman probation officer in a courtroom corridor. It is proposed that as a product of such conversation the witness testified under threat and intimidation. A purported offer of proof was made. Defendant’s counsel stated he believed that the witness was told that her child would be taken away if she testified to what the probation officer believed was perjury. The State’s Attorney advised the court that the probation officer had said that the child of the witness would be taken away if she committed perjury. The court sustained the objection to such cross-examination. He then interrogated the witness before the jury concerning her knowledge of the fact that she must tell the truth and asked whether she would tell the truth.

Prior to cross-examination of the witness, defendant’s counsel was supplied with a tape recording of her statement given to the State’s Attorney. His subsequent cross-examination of the witness did not undertake to impeach her testimony in the light of the recorded statement, or to seriously challenge any detail of her testimony. Stated somewhat summarily, a party is entitled to cross-examine for the purposes assigned here and it is not necessary that such testimony be as to matters upon direct examination. Gard, Illinois Evidence Manual, Rule 474. The court’s examination of the witness before the jury was improper as it was likely that the effect would be to emphasize such testimony, and perhaps cause the jury to give it undue weight. But there is actually no potential impeachment where the testimony of the witness is unchallenged. It cannot be said that the defendant was prejudiced by such ruling.

The defendant urges that the court erred in refusing to give his instructions and to permit his argument concerning the prosecution’s burden of proof as to the time when the shooting occurred arising by reason of the answer to a bill of particulars. Actually, the motion demanded “The specific date on which the offense was committed.” The prosecution evidence in chief did not purport to state an hour.

It appears that defendant seeks to argue the possible impeachment of the witness, Hines, in the comparison of his testimony with details as to the times given in a prior statement to the sheriff and to, thereafter, argue the weight of the evidence. He cites The People v. Westrup, 372 Ill 517, 25 NE2d 16 and People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323. As is stated in those cases, the function of a bill of particulars is to permit the defendant to prepare his defense and to limit the evidence which may be introduced by the prosecution. In Petropoulos it is pointed out that the answer to a bill may limit the State’s evidence as to dates or times if important to a defense of alibi or to some other defense. Here, defendant did not, by objection or otherwise, seek to limit the State’s evidence. The admissibility of evidence is determined by the court and the bill of particulars does not go to the jury. The People v. Parker, 355 111 258, 189 NE 352. See Illinois Pattern Jury Instructions, Criminal, § 2.06.

Defendant contends that the purported consecutive sentence imposed is vague and indefinite, and that we should hold that such sentence should be served concurrently with one or more other sentences. The record shows that defendant was sentenced upon a conviction of armed robbery by the Circuit Court of Kankakee County in case No. 67-26-Y. Such sentence imposed on February 26, 1968, was for the term of not less than 5 nor more than 10 years. The judgment here contains the language, “This sentence to be served consecutively to any other sentence which may have been imposed.” Such language is so broad that it may be said to make this sentence consecutive to other sentences not in the present record. A sentence should be so complete as not to require construction by the court to ascertain its import, and so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning. People v. Combs, 304 Ill App 467, 26 NE2d 668. The statute, chapter 38, § 1-7 (m), Ill Rev Stats 1967, provides that a sentence, “. . . may commence at the expiration of the term. . . .” A sentence to commence in the future must be so certain that the termination of the first term and the commencement of the second may be ascertained from the record without the necessity of construing or supplementing it. Where the judgment order fails to clearly define the limits of the sentence intended to run consecutively, the cause must be remanded for proper sentence. The People v. Dennison, 399 Ill 484, 78 NE2d 232. See also The People v. Chatman, 36 Ill2d 305, 223 NE2d 110.

The judgment of conviction is affirmed, but the judgment of sentence is reversed and the cause remanded with directions to enter proper sentence.

Affirmed in part, reversed in part, and remanded with directions.

CRAVEN, P. J. and CREES, J., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Zane Redfern, Defendant-Appellant.
    Gen. No. 11,108.
    Fourth District.
    December 30, 1969.

      John J. Casey, Public Defender, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield (D. Bradley Blodgett, First Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

The defendant seeks a reduction of a sentence of four to five years in the penitentiary on his plea of guilty to a charge of aggravated battery. Following the sentence, four counts in the indictment for attempted murder were dismissed by the People. The defendant’s principal position is that a four-to-five-year sentence impedes the opportunity for release determination by the Parole Board and that a reduction of the minimum sentence in this case is mandated by our opinion in People v. White, 93 Ill App2d 283, 235 NE2d 393. We do not deal with a first offender as did People v. Jones, 92 Ill App2d 124, 235 NE2d 379, nor do we deal with a sentence imposed after violation of probation as was involved in White and in People v. Land, 112 Ill App2d 345, 251 NE 2d 92. In People v. White, 93 Ill App2d 283, 288, 235 NE2d 393, 396, we stated:

“What should be the spread between a minimum and a maximum sentence cannot be determined with mathematical certainty, nor indeed should the spread be subject to a precise and rigid formula necessarily applicable to all cases.”

Even though this court might prefer a wider spread between the minimum and the maximum, had we been the sentencing judge we cannot say that the spread of years standing alone and by itself is per se an abuse of discretion on the part of a trial judge. It has been observed many times that his opportunity for viewing the witnesses is far greater than ours. In this case we deal with a recidivist.

The victim and three other persons drove up to the curb and the defendant came over to the car. One view of the testimony was that he immediately drew a pistol and shot one Robert Lee Dunn, requiring his hospitalization. Redfern’s testimony was that he was called over to the car, walked over there and leaned on the window sill with the window down, that someone rolled up the window on his arm and the car started to leave. He hung onto the car for two blocks, recalled that he had a revolver in his pocket and drew it and that it caught on the window ledge, and was fired. He further testified that he had been convicted of a violation of the Dyer Act for interstate transportation of stolen vehicles, had been placed on two years’ probation, that he was sentenced to the Federal Correctional Institution at Inglewood, Colorado, for violation of this probation and was discharged some time later. He was convicted of criminal damage to property and served 90 days at the Illinois State Farm, Vandalia. The defendant left the State on the original trial date because he saw, his picture in the paper in connection with an aggravated battery charge different from the one to which he entered a plea of guilty. For that reason he left the State. He was apprehended in Florida, waived extradition and returned to Illinois. In addition, a witness testified that two or three days before the hearing in mitigation and aggravation, Redfern participated in beating up one of the prisoners in his cell at the county jail. The admission of this evidence into the record is also asserted as improper.

The legislative mandate is that one of the purposes outlined by the Criminal Code is to “prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities among individual offenders.” Ill Rev Stats 1967, c 38, § 1-2 (c). In keeping with this purpose, we find a young man twenty-five years of age who was first arrested for illegal transportation of stolen vehicles, who violated probation and was returned, who was sentenced for six months for a misdemeanor, and who became a fugitive from justice and had his bond forfeited. The incidents in the county jail are not objected to, and in any event, the trial court in the matter of sentencing is entitled to a wide latitude and is not confined to evidence showing guilt nor is he bound by the rules of evidence at the trial, but he may look to the facts and search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offense and inquire into the general moral character of the defendant, his mentality, habits, social environment, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, his motivation and his life, family, occupation and record. People v. Adkins, 41 Ill2d 297, 242 NE2d 258. The events just related are admissible within the scope of Adkins.

The three boys riding in the car with the victim testified that Redfern came over to the car and immediately fired the shot. This Redfern denies. Be that as it may, we are in no position to determine whether or not Red-fern is telling the truth, or those three witnesses. The trial court was in a better position to do so than we. We must confess that even on this cold record his story that he was hanging onto the side of the car after the window had been rolled up when he recalled that he had a gun and drew his gun and accidently fired it because someone in the car had a gun is somewhat a bizarre explanation, as the trial court so characterized it. All occupants of the car testified that none of them had a gun. Under the circumstances here related, we cannot say that the trial court abused its discretion in determining an appropriate punishment. We recognize that hopes spring eternal in the human breast and that perhaps this defendant might be rehabilitated with a shorter minimum sentence. We cannot say that the trial court abused its discretion in this sentence or that his conclusion that hope is a rather faded one on the record. Indeed, on one view of the evidence, we deal with an attempted murder and the court could conclude on such facts that a wider spread was unwarranted and rehabilitation in a shorter time more of a dream than a reality. Accordingly, the judgment is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. A. W. Siegmund, Defendant-Appellant.
    Gen. No. 11,131.
    Fourth District.
    December 30, 1969.

      Robert E. Williams, of Bloomington, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington, and David M. Coogan, Assistant State’s Attorney, for appellee.
   SMITH, J.

The defendant here seeks only a reduction of sentence. The statute imposes a penalty of $1,000 fine or one to fourteen years in the penitentiary, or both, on a conviction of forgery. Ill Rev Stats 1967, c 38, § 17-3. The State’s Attorney recommended a sentence of two to ten years. Defense counsel urged a sentence of two to five years. The court imposed a sentence of two to eight years on the defendant’s plea of guilty. The sentence imposed is within the statutory limits and there appears to be considerable unanimity as to the minimum among those who knew the defendant and his record best. There is nothing in this record that suggests we can with propriety tamper with the two-year minimum.

The defendant urges that it is the eight-year maximum that offends against the modem day purpose of penology to rehabilitate an offender. From the hearing in mitigation and aggravation, we note that the defendant is thirty-three years of age, has the equivalent of a two-year college education, served six years and eight months of a two-to-ten-year sentence for burglary in Texas beginning in 1959, that apparently at some time was returned to that institution as a parole violator, that he had a prior conviction in 1958 for burglary and was sentenced for one to three years, that there was a previous conviction for false pretenses with six months served in Vandalia, that he married in 1966 and forged the $157 check involved in this case not because he needed money but “I did it to get away from my wife because I couldn’t just walk away from her.”

These facts do not remotely suggest that a reduction in the maximum sentence would bring about a more speedy rehabilitation of this defendant. The sentence is within the limits prescribed by the Legislature, provides a reasonable spread between the minimum and maximum for timely rehabilitation and does not appear to be a departure from the spirit and the purpose of the law which would justify this court in substituting its judgment for that of the trial court on sentence. People v. Hicks, 35 Ill2d 390, 220 NE2d 461.

The judgment of the trial court is affirmed.

Affirmed.

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


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jesse Williams and Arthur Sawyer, Defendants-Appellants.
    Gen. Nos. 53,473, 53,474.
    First District, Second Division.
    December 30, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Both defendants were found guilty at a bench trial of the crime of burglary; in addition, defendant Sawyer was found guilty of the crimes of aggravated battery and intimidation. Williams was sentenced to a term of one year to three years in the penitentiary and Sawyer to a term of two years to five years in the penitentiary. On appeal they contend that they were not proven guilty beyond a reasonable doubt.

Mrs. Lovina Byrd testified that in the latter part of March 1967 the defendants sold her a television for $40. At approximately 8:00 a. m. on April 8, 1967, she left her basement apartment on South Kenwood Avenue in Chicago to go shopping. When she returned about an hour later she found that the apartment door and a wire-screened window had been broken open and that the television was missing.

Mrs. Byrd testified that she was introduced to the defendants by Mr. Roosevelt Moore, who lived on the third floor of the building in which she resided; the introductian was made for the purpose of effecting the sale of the television. Mrs. Byrd testified that she went to Moore’s apartment after she discovered the television missing and engaged him in conversation. The following day Moore informed Mrs. Byrd that defendant Williams was asleep in Moore’s apartment; the police were called and Williams was arrested.

Mrs. Byrd further testified that on April 24, 1967, after she had sworn out the complaints against the defendants for the burglary of the television, defendant Sawyer came to her apartment about 2:00 a. m., kicked in the apartment door, struck her in the stomach (which aggravated a kidney condition) and warned her not to testify against Williams. This was also reported to the police.

Roosevelt Moore, a witness for the People, testified that he was sixty years of age and had known the defendants for three or four years prior to April 1967. Defendant Sawyer had lived with Moore in the Moore apartment on occasions when he had nowhere else to live.

Moore testified that he was present when the television was sold by the defendants to Mrs. Byrd in “March or April” of 1967 and that Mrs. Byrd gave them part payment for the set. He further testified that at approximately 8:00 a. m. on April 8, 1967, he observed, from his apartment window and rear door, defendant Williams remove a screen from and enter a Byrd apartment window and defendant Sawyer enter the apartment through the rear door. The witness testified that he later observed the defendants emerge from the Byrd apartment carrying the television. Moore stated that Mrs. Byrd came to his apartment after she arrived home and had a conversation with the witness.

Moore further testified that on April 10, 1967, between 8:30 and 9:00 p. m., defendant Sawyer came to his apartment with a pistol, beat him, and warned him not to testify at the trial of Williams. On further examination, the witness stated that he was unable to remember the date of the beating and could not say whether it was on April 24th.

Tienna Marriah testified that she was in the Moore apartment on April 24th when defendant Sawyer kicked open the apartment door, brandished a pistol and told Moore to “take a walk” with him. Miss Marriah testified that defendant Sawyer then kicked and beat Moore, and threatened to kill him if he “went to court.” She further testified that she had seen Sawyer in the Moore apartment on two or three occasions earlier that month.

Chicago Police Detective Minter Bennett testified that defendant Williams was arrested on April 10, 1967, pursuant to a complaint signed by Mrs. Byrd. He further testified that he saw both Mrs. Byrd and Mr. Moore on April 25th. Mrs. Byrd was holding her stomach and related to the officer that defendant Sawyer struck her the day before and warned her not to testify against Williams. The officer further testified that Moore, who also complained that he had been beaten by Sawyer, was bleeding from the mouth, had bruises about the face, and complained of pains in the chest and groin.

Defendant Sawyer testified that he sold the television to Mrs. Byrd in March 1967 for $50, and that she paid $30 on account and promised the balance later. He stated that on April 8th he went to the Byrd apartment to collect the $20 balance, but was informed by Mrs. Byrd that she did not have the money at the time. Sawyer testified that he then left the apartment. He further testified that on April 24th he did not have occasion to see Mrs. Byrd and occupied himself elsewhere that entire day. Sawyer denied taking the television from the Byrd apartment, and denied beating or intimidating Mrs. Byrd or Roosevelt Moore.

Defendant Williams testified that he and Sawyer sold the television to Mrs. Byrd. He denied being in the Byrd apartment on April 8th and denied taking the television from that apartment.

Both defendants were indicted for the burglary of the Byrd apartment. Two additional indictments were returned against defendant Sawyer, one charging him with intimidation of Mrs. Byrd, and the other with the aggravated battery and the intimidation of Roosevelt Moore.

Defendants contend that they were not proven guilty of the crime of burglary beyond a reasonable doubt inasmuch as the evidence fails to establish that they entered the Byrd apartment with the intent to steal anything. They argue that Mrs. Byrd owed them a balance of $20 for the television, and that their entry into her apartment is consistent with the theory that they did so with the impression, albeit erroneous, that they had a right to repossess the television. They further state that their conduct is not consistent with the intent to commit a burglary in that they were known in the neighborhood, entered the apartment at a time of day when it would be likely that they would be noticed, and removed a large, bulky article from the apartment, which was the only thing taken.

The People’s evidence showed that the defendants entered the Byrd apartment without permission and while no one was there by forcing open a window and a door, and removed the television therefrom. Defendants’ evidence consisted of a flat denial of entry into the apartment and removal of the television. The evidence presented a case of credibility for the trier of fact. (People v. Wollenberg, 37 Ill2d 480, 484, 229 NE2d 490.)

Defendants’ new theory, advanced for the first time on appeal, that they did in fact enter the apartment but did so only with the erroneous impression that they had a right to repossess the television, is unavailing.

In People v. Uselding, 107 Ill App2d 305, 247 NE2d 35, the defendant was found guilty of attempted robbery. One of his contentions on appeal was that the intended victim owed him a prior debt of $4, and that the defendant merely intended, with the use of a weapon, to collect that debt and did not demand more money from the alleged debtor. This Court, rejecting, that contention, stated at pages 309-310 of the opinion:

“The argument proceeds from the false premise that use of force to collect a debt is lawful. The law does not permit such self-help. [The crime] is as defined, and had the defendant obtained the money, either by [the intended victim] giving money to him after the use and threat of force, or by forcibly snatching money from the person of [the intended victim,] he would have committed [the crime].”

Defendants attempt to distinguish the Uselding case on the ground that the intended victim there denied owing the defendant the money and that the matter was therefore put into issue, whereas here there is evidence that a balance was due to defendants from Mrs. Byrd on the purchase price. First, the only evidence that there was a balance owing at the time the television was removed from the Byrd apartment comes from the defendants. Mrs. Byrd testified only that she had purchased the set for $40; Mr. Moore testified that Mrs. Byrd made part payment when the set was purchased in March, but did not testify whether she did or did not make any payments thereafter. We think that the quoted pronouncement in Uselding is applicable to the facts of the instant case.

With regard to the circumstances which defendants argue militate against the intent to commit a burglary, it may be said generally that improbabilities or conflicts in the evidence do not require reversal. People v. Ellzey, 96 Ill App2d 356, 358-359, 239 NE2d 304. The assertions that it is unlikely that one would commit a crime in his own neighborhood and that defendants entered the Byrd apartment during the daytime hours and removed only a large television were for evaluation by the trial judge. People v. Hampton, 103 Ill App2d 57, 243 NE2d 371.

The cases of People v. Soznowski, 22 Ill2d 540, 177 NE2d 146, and People v. Hutchinson, 50 Ill App2d 238, 200 NE2d 416, deal with the nature of the intent required in a burglary where nothing has been removed from or disturbed on the premises unlawfully entered. (See People v. Johnson, 28 Ill2d 441, 442-444, 192 NE2d 864.)

It is also claimed that Moore’s conduct is not consistent with that of a person who witnessed a burglary, inasmuch as he knew both defendants prior to the burglary and testified that Sawyer was living with him on the date of the burglary. The witness was somewhat confused as to the various dates involved, as the trial judge noted. The questions propounded with regard to Sawyer’s residency in the Moore apartment were initially general in nature as far as dates were concerned, as were the answers thereto; then, when asked if Sawyer was living with the witness on April 8th, the witness replied, “That is the date it was.” As with the fact that Moore had known the defendants a long time prior to the burglary, these matters were for resolution by the trier of fact.

Moore’s confusion as to dates affects only his credibility as a witness. He clearly testified as to the facts surrounding the burglary, the intimidation and the beating. When his overall testimony is viewed in the light of the testimony of Mrs. Byrd, Miss Marriah and Officer Bennett, there was ample evidence to support the People’s position that Moore was intimidated and beaten on April 24th.

The cases cited by the defendants for the proposition that a conviction will be reversed where it rests upon doubtful, vague and uncertain testimony are inapposite on their facts. (See People v. Fiorita, 339 Ill 78, 170 NE 690; People v. Kidd, 410 Ill 271, 102 NE2d 141.)

The judgments are affirmed.

Judgments affirmed.

LYONS, P. J. and McCORMICK, J., concur.


author: EBERSPACHER, J.

text:
    J. J. Kuehner, Petitioner-Appellant, v. F. E. Melliere, Defendant-Appellee.
    Gen. No. 69-34.
    Fifth District.
    December 30, 1969.

      Conn & Clendenin, of Sparta (Edward W. Clendenin, of counsel), for appellant.
    Paul H. Nehrt, of Red Bud (Earl H. Sachtleben, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal by the Petitioner, J. J. Kuehner, from an order dismissing his petition and from a subsequent order denying his motion to file an amended petition. The Petitioner-Appellant, hereinafter called Petitioner, is seeking relief as provided by chapter 133, Ill Rev Stats 1967, entitled, “An Act To Provide for the Permanent Survey of Lands.”

Briefly stated, the statute provides a method whereby a landowner may have a court appoint a commission of surveyors to establish corners and boundaries which are lost, destroyed, or are in dispute.

The decisive issue for review is whether or not the court below was correct in applying the doctrine of res judicata to this cause.

Since 1944 the Petitioner and the Defendant-Appellee, F. E. Melliere, hereinafter called the Defendant, have owned land with a common boundary. In the year 1960, the Defendant performed work on the boundary line. The work, consisting of grading and clearing, caused a dispute as to the location of the dividing line. This dispute matured into a lawsuit which the present Plaintiff filed against the present Defendant. The cause was filed on April 16, 1962, in the Circuit Court of Randolph County. In seeking relief of both equitable and legal remedies the Plaintiff sought judgment for the return of twelve (12) feet of property which the Defendant allegedly appropriated for his use; the Plaintiff also petitioned the court to quiet and confirm title in the Petitioner and to declare that the Defendant had no interest in the land; Plaintiff also requested damages for the loss of the use of the disputed land and for the possession of the disputed strip and finally for a writ of restitution. The Defendant filed an answer and counterclaim, the Petitioner a reply and answer to the counterclaim.

The cause was heard by the court. Both parties introduced evidence. The court reviewed the premises and examined surveys of both parties. On May 28, 1963, the court entered its order denying relief to the Petitioner and to the Defendant on his counterclaim further decreeing,

“The line between the property owned by F. E. Melliere and J. J. Kuehner is established thusly: Starting at a stone marked on all of the exhibits presented in Court and especially Defendant’s Exhibit 1, said stone being on the line between Survey 365, Claim 2207, and Survey 364, Claim 458, being the southeasterly line of the F. E. Melliere property, from this line we go 10.20 chains in a northwesterly direction, North 57° West to a point which divides said properties, said dividing line set by this decree to run at an angle of North 33° East and South 33° West, from the line mentioned above to establish the boundary line between the J. J. Kuehner property and F. E. Melliere property.”

No appeal was taken from this judgment. Hereinafter that cause shall be referred to as the original suit.

The Petitioner, on May 25,1967, filed his petition in the instant cause. The parties are the same as those of the original suit. The same boundary line is in dispute. On June 26,1967, the Defendant filed a motion to dismiss involving the doctrine of res judicata. The motion was heard on June 7, 1968, at which time the parties stipulated and agreed that the entire record of the proceedings of the original cause be admitted into evidence. On August 1, 1968, the court granted Defendant’s motion to dismiss. On August 26, 1968, Petitioner filed his motion to file an amended Petition which was ordered denied by the court on December 12, 1968. Appeal was taken to this Court.

The petitioner admits that the court settled the questions of title and right to possession and that the court described the boundary line. The Petitioner urges that the instant suit is but an attempt to reestablish the lost boundary line and does not present questions of title and possession.

We cannot accept the Petitioner’s contention that the boundary line is lost. There is a boundary line. We can, however, accept that there is still a dispute by the Petitioner as to the location of the said boundary. This is the issue of this cause as well as that of the original cause. We must accept that there is an adequate legal description of the presently existing boundary line as the order of the court in the original suit described the property line and that order of the trial court has been long since final.

It is not disputed that this cause has identity of parties with the original suit. The issue of the location of the dividing line is identical. The doctrine of res judicata is therefore appropriate. The Defendant has the burden of proving the applicability of the res judicata doctrine by clear, certain and convincing evidence. Setliff v. Reinbold, 73 Ill App2d 208, 218 NE 814. This the Defendant has done.

It is well settled that “In all cases where the second suit is based upon the same issue and between the same parties or their privies, the doctrine of res judicata extends to all grounds of recovery or defenses which might have been presented. Chicago & W. I. R. Co. v. Alquist, 415 Ill 537 at 541, 114 NE2d 713; People v. Kidd, 398 Ill 405, 75 NE2d 851; Leitch v. Hine, 393 Ill 211, 66 NE2d 90.” Setliff v. Reinbold, supra. It is quite obvious that the plaintiff could have sought the relief in the original suit that he is presently seeking. That is when it must have been brought.

“The law affords every man his day in court with the opportunity to present his case, but it likewise requires that he bring forth all grounds of recovery which he may then possess. The rule is long established in public policy considerations.” Garrison v. Community Consol. School Dist. #65, 88 Ill App2d 158, 232 NE2d 148.

For the above reasons, the judgment of the lower court is affirmed.

Judgment affirmed.

MORAN and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Harry J. Myerson, Petitioner-Appellant, v. L. J. Gumpert, Assignee, Evelyn C. Norton, Executor of the Estate of Glenn D. Norton, Deceased, Security First National Bank of Los Angeles, Guardian of Estate of Orabelle R. Norton, Herbert A. Erzinger, Carolyn Erzinger, G. W. Rodway, O. L. Risch, C. S. Cole, W. G. Voliva, and E. E. Berg, Respondents-Appellees.
    Gen. No. 51,876.
    First District, Fourth Division.
    December 31, 1969.

      Arthur Abraham, of Chicago, for appellant.
    Paul C. Ross, John J. Yowell, William R. Yowell, of Chicago (Yowell and Cessna, of counsel), and Stiefel, Burns, Levinson, Komie & Kaplan, of Chicago (Charles W. Stiefel, Jr. and John C. Stiefel, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court,

Harry J. Myerson (referred to throughout this opinion as “plaintiff”), appeals from an order denying his petition for a fee of $12,000 for services alleged to have been rendered in preserving assets of a corporation in receivership and liquidation.

In plaintiff’s brief, he states that the fee is sought as compensation for upwards of 300 hours of time spent in the preparation of abstracts and briefs which were filed in this court in 1939 (Myerson v. Norton, 302 Ill App 176, 23 NE2d 926); that, as a result of these services, a decree of the Superior Court was affirmed, thus bringing into the corporate estate more than $118,000. Plaintiff’s brief also assigns as a basis for allowance of the fee requested that he had been responsible for payment of $118,000 in insurance money into the receivership account, by virtue of his having filed the suit in which the receiver had been appointed.

Answers to plaintiff’s petition were filed by various parties in interest, and the matter was decided on the pleadings, there being no substantial dispute as to facts.

The factual background of this case is set forth rather fully in this court’s opinion referred to above, and we shall not repeat it here except in brief outline.

In 1931, the business of L. J. Bartlett, Inc., was failing and an agreement was reached with its shareholders to undertake liquidation, with plaintiff and three others as trustees who were to serve without compensation. They, in turn, agreed that plaintiff should handle the work involved, including legal services for which the trust agreement provided that plaintiff was to be paid. As liquidator, plaintiff collected about $41,000, and paid out some $37,000 to creditors and for expenses. Apparently the trustees were ready to make final distribution by 1935, but at that point they could not agree on disposition of an insurance policy owned by the corporation on the life of G. D. Norton, its secretary and treasurer. The policy, which had been taken out by the corporation, provided $250 per month for disability and carried a death benefit of $25,000, all payable to the corporation. At the time in question, Norton was 40 years old and was permanently disabled with paresis of the brain. Two of the trustees proposed sale of the policy to Norton for $1,000. Plaintiff and the other trustee, Jacob E. Replogle, thought they should continue to hold the policy. Plaintiff and Replogle therefore filed suit (through attorney William B. Rogan), for resolution of this impasse, for approval of plaintiff’s account as trustee and liquidator covering the period from 1931 to 1935, and for approval of fees to plaintiff in the amount of $5,500.

The court appointed a receiver for the corporation in July, 1935. Plaintiff was not appointed as attorney for the receiver, and we are unable to perceive that he thereafter retained any interest in the litigation except as to approval of his accounting and fees. The report of the Master in Chancery recommended that the account and fees be approved and that the insurance policy be sold by the receiver. Plaintiff objected to the Master’s recommendation concerning the policy, not as to its sale, but only because it did not provide that creditors could bid for the policy and apply their claims against the purchase. Objection to the sale was made, however, by one of the defendants, G. R. Rodway, who was a stockholder and the accountant for the corporation. Rodway appears to have taken part in the litigation through his attorneys, despite having been defaulted.

After hearing before the chancellor, a decree was entered on December 19, 1968. It approved plaintiff’s account and directed the receiver to pay a balance of $1,500 to plaintiff “for his services rendered in the liquidation.” The sum of $4,000 had previously been paid, thus totalling the $5,500 requested. The decree also approved an attorney’s fee of $1,500 to Rogan for representing plaintiff and Replogle throughout the litigation. Finally, the decree provided that the court reserved jurisdiction over the insurance policy in question which was not to be disposed of without further order of court.

Norton (the insured under the policy), appealed, claiming that plaintiff’s fee allowance was excessive because, under the trust agreement, it should have been for legal services only and not for services as liquidator. Plaintiff and Replogle, again through their attorney, Rogan, filed a brief in support of the fees allowed, and this court affirmed. Myerson v. Norton, supra. In his appeal, Norton also sought to set aside the part of the decree which directed the receiver to retain the insurance policy. Rogan’s brief on behalf of plaintiff and Replogle responded on this point simply by calling attention to the fact that this order was interlocutory and therefore not appealable. This court agreed and devoted one paragraph of its opinion to disposing of the point on that ground. Rodway had also appealed to set aside his default. The two appeals were combined and the court held against Rodway because of insufficient information in the record.

Thereafter, the receiver continued to receive a monthly check for $250 from the insurance company. These payments had totalled $93,000 when the insured (Norton) died in 1966. The principal amount of $25,000 was then paid, resulting in overall receipts of $118,000 from the policy. Soon after Norton’s death, plaintiff filed his petition for $12,000 in fees, on the basis of his having been responsible for recovery of this $118,000. Hearings on the petition were conducted by the same chancellor who had heard the original proceedings almost 30 years earlier. Plaintiff’s petition was denied and this appeal followed.

The entire argument in plaintiff’s brief is based upon the proposition that a litigant who has maintained a successful suit for preservation or increase of a common fund, is entitled to a reasonable allowance for attorney’s fees. All the cases which he cites relate to the allowance of fees to the attorney in such litigation: State Life Ins. Co. v. Board of Education of Chicago, 401 Ill 252, 258, 81 NE2d 877; People ex rel. Barrett v. Fond du Lac State Bank, 309 Ill App 139, 143, 33 NE2d 144; First Nat. Bank of Chicago v. La Salle-Wacker Bldg. Corp., 280 Ill App 188, 197; Milliman v. Seed, 206 Ill App 362; Fischer v. Dickinson Industrial Site, Inc., 15 Ill App2d 464, 468, 146 NE2d 698; Trustees v. Greenough, 105 US 527, 532; Sprague v. Ticonic Bank, 307 US 161, 167; In re Hirsch’s Estate, 154 Misc 736, 278 NYS 255, 257; Central Standard Life Ins. Co. v. Gardner, 36 Ill App2d 292, 183 NE2d 881; Mueller v. Sloan, 33 Ill App2d 205, 178 NE2d 135; Orme v. Northern Trust Co., 29 Ill App2d 75, 172 NE2d 413.

Throughout the original litigation in the Appellate Court as well as in the Superior Court, plaintiff and Replogle were represented by counsel, and plaintiff was not an attorney of record in either court. Plaintiff makes no claim to have assisted his attorney in the Superior Court, but expressly states that “he is asking for compensation for assisting in the preparation of abstracts and briefs” in the Appellate Court. The attorney for plaintiff and Replogle (Rogan), filed 46 pages of briefs on that appeal, two of which suggested that the order retaining jurisdiction over the insurance policy was not appealable, and the rest of the briefs argued in support of the allowance to plaintiff of the $5,500 fee and approval of plaintiff’s account by the trial court. The additional abstract which was filed by Rogan consisted of six pages dealing with the fee question. As we have noted, this court did not consider the question of the insurance policy, yet plaintiff now contends that it was his services in assisting his attorney in preparation of briefs and abstracts “which resulted in a decision of the Appellate Court which sustained the Decree of the Superior Court and as a result of which there was brought in to this estate the sum of upwards of $118,000.”

From the outline we have set forth above as to the facts of this litigation, we conclude that plaintiff’s position is both factually and logically a nonsequitur. Plaintiff’s claim cannot be considered as relating simply to his having been a plaintiff in the original action, since Replogle was also a plaintiff and Myerson does not seek a fee on his behalf. Neither does he cite any authority to support a fee to either himself or Replogle as litigants. Nor is it true, as plaintiff argues, that he was required to wait almost thirty years to present his claim after Norton’s death. The insurance payments were reaching the receiver all through the years, and, in fact, plaintiff did, on February 7, 1940, ask for and receive from the Superior Court the sum of $74.90 as reimbursement for Appellate Court costs advanced. His request for this reimbursement made no mention of the fact that he had also performed services for which he expected to be compensated.

Additionally, on presentation of the receiver’s report, the trial court, on due notice, had entered an order on January 17, 1940, finding that “all of the expenses of liquidation and all debts of L. J. Bartlett, Inc., have been paid; that the only persons entitled to share in the assets of L. J. Bartlett, Inc., are the owners of shares of stock of said corporation.” In the same order, the court then ordered certain distributions of the funds on hand in the receiver’s account. The record does not indicate any objection on the part of plaintiff.

The order of the Circuit Court denying plaintiff’s petition for fees is affirmed.

Affirmed.

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


text:
    Village of Midlothian, Plaintiff-Appellee, v. Loren Walling, Defendant-Appellant.
    Gen. No. 52,698.
    First District, Fourth Division.
    December 31, 1969.

      Henry A. Gentile, of Blue Island, for appellant.
    John R. Sullivan, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant’s notice of appeal declares that he is appealing from two orders of the Circuit Court entered July 24, 1967, following a bench trial, wherein the court “denied the motion of the defendant to dismiss” and found defendant “guilty of driving under the influence of alcoholic liquor” in violation of a village ordinance; and from action of the court on August 22, 1967, denying a “hearing to correct the record” and denying a “hearing on a motion in arrest of judgment.”

The facts which form the basis of the charges are not at issue on this appeal, so we will refer to them only briefly. A witness, injured in the occurrence, testified at trial that she was in a car stopped at a railroad crossing in Midlothian at approximately 3:50 a. m., on February 5, 1967. She saw defendant approaching her at a high rate of speed, cross over the center line of the road, smash through the railroad crossing gates, which were down with lights flashing and bells ringing, and crash head-on into the front of her car. Defendant was charged with five traffic ordinance violations.

The first hearing was set for February 24, 1967. Plaintiff was granted a continuance at that time to March 31. On that date, the record shows that “on motion of the defendant” the cause was postponed to May 26. After another continuance, the case was called for trial on June 23, at which time defendant requested a jury, so the case was transferred to jury court for trial on July 24. On that date, defendant waived the jury he had requested at the previous session, and filed a written motion to dismiss the complaints on the ground that “the alleged offense took place on February 5, 1967, which is a date more than 120 days prior to this date and the delay was not occasioned by the defendant,” in violation of Ill Rev Stats 1965, c 38, § 103-5. The motion was denied.

After trial without jury, defendant was found guilty of violation of the ordinance prohibiting driving while under the influence of alcohol, and was fined $200 and costs.

On August 14, 1967, defendant presented a written motion to amend the portion of the record showing that on March 31, 1967, defendant had requested a continuance. Defendant asked the court to enter an order nunc pro tune as of March 31, 1967, to show that the continuance had been granted at the request of the plaintiff. The court denied the motion on August 22, 1967. After several continuances, an oral motion by defendant for a new trial was denied on September 8,1967.

Defendant first contends that the trial court erroneously failed to hear a written “motion in arrest of judgment” on August 22, 1967. The record includes a report of proceedings before the court on that day, and on that day only. It reflects that the only motion argued by defendant’s attorney was the one to “correct the record.” Nor does the common law record indicate that any such written motion in arrest of judgment was ever filed. We must rely upon the record “which imports verity and is unimpeachable evidence of the proceedings in the lower court.” People v. Clark, 30 Ill2d 67, 73, 195 NE2d 157. See, also, People v. Day, 404 Ill 268, 271, 88 NE2d 727; and People v. Berkowski, 385 Ill 392, 393-394, 52 NE2d 710.

Defendant’s next contention is that the “trial court lacked jurisdiction to hear the matter because the ordinance upon which the conviction was based is invalid.” Defendant raises this issue for the first time on appeal. Nowhere in the record is there any indication that the validity of the ordinance was challenged. The validity of a statute or ordinance cannot be raised for the first time on appeal and be considered by the reviewing court. People ex rel. White v. Busenhart, 29 Ill2d 156, 163, 193 NE2d 850; City of Kewanee v. Puskar, 308 Ill 167, 139 NE 60.

Defendant also contends that since more than 120 days had elapsed from the time he was taken into custody until the date of trial, he should be discharged from prosecution pursuant to the pertinent section of the Code of Criminal Procedure. Ill Rev Stats 1965, c 38, § 103-5. There is no question but that 120 days had elapsed, but defendant’s contention is wholly without merit when the statute is applied to the facts of the instant case. The applicable portions of the statute provide as follows:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.

(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.

(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.

The record conclusively shows that defendant is not entitled to discharge under subsection (a), because he was not in custody, having been at large on bail the whole time. Nor was he entitled to discharge under subsection (b), because the record shows that the continuance from March 31 to May 26 was granted on his motion. The cases hold that in this circumstance, the 120-day period then commences to run from the continued date. E. g., People v. Rogers, 26 Ill2d 599, 188 NE2d 22. While it is true that defendant made a motion to correct the record by showing the March 31 continuance to have been granted on motion of the prosecution rather than the defendant, the judge, in denying the motion, recalled the occasion and stated that the record as written was consistent with his recollection. See the Clark, Day, and Berkowski cases cited above, which are applicable here, also, as to the verity of the record.

Further, as to subsection (b), there is nothing in the record to indicate that defendant ever demanded trial. Such demand must be communicated “preferably by written notice, but certainly by a formal motion which is preserved in the record.” See People v. Rockett, 85 Ill App2d 24, 28, 228 NE2d 219.

Subsection (c) permits the court to exercise its discretion in granting a continuance to the prosecution, enlarging the 120-day period by as much as 60 days. While the common-law record contains no order of this nature in connection with the continuances which were granted on motion of the prosecution, the report of proceedings discloses that the judge very definitely had granted such additional time on account of the physical incapacity of the witness who had been injured as a result of defendant’s alleged conduct. We do not consider this to have been an abuse of the court’s discretion. And, in the absence of such an abuse, we will not disturb this action of the trial court. People v. Taylor, 82 Ill App2d 5, 226 NE2d 693.

We also have serious doubt, in any event, as to the applicability of the 120-day statute to cases involving ordinance violations. It will be noted that in subsection (c) the prosecution is referred to only as “the State,” and there is no specific reference in any part of the section to a municipal ordinance prosecution, which, of course, is a civil rather than a criminal procedure. The 1969 legislature made this clear by amending section 102-15 to exclude ordinance violations from the definition of “offense.” Ill Rev Stats 1969, c 38, § 102-15. See Village of Park Forest v. Nicklas, 103 Ill App2d 99, 243 NE2d 421.

Accordingly, the judgment of the Circuit Court is affirmed.

Affirmed.

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


author: GOLDENHERSH, P. J.

text:
    Charles J. Kaspar, Plaintiff-Appellee, v. Clinton-Jackson Corporation, Defendant and Cross-Complainant-Appellant, and C. A. Tharnstrom & Co., Defendant and Cross-Defendant-Appellee.
    Gen. No. 53,014.
    First District.
    December 31, 1969.

      Jerome M. Brooks and Gilbert Gordon, of Chicago (Gilbert Gordon, of counsel), for defendant-appellant and defendant-cross-complainant-appellant.
    Leonard M. Ring and Earl R. Reynolds, of Chicago (Leonard M. Ring, of counsel), for plaintiff-appellee and separate appellant.
    Vogel & Vogel, of Chicago (Leslie H. Vogel and Conrad F. Fleeter, of counsel), for defendant and cross-defendantappellee.
   GOLDENHERSH, P. J.

Plaintiff brought an action for personal injuries against defendants, Clinton-Jackson Corporation, hereafter called Clinton-Jackson, and C. A. Tharnstrom & Co., hereafter called Tharnstrom. Clinton-Jackson cross claimed against Tharnstrom for indemnity. The jury returned a verdict in the amount of $400,000 for plaintiff and against Clinton-Jackson, found in Tharnstrom’s favor and against plaintiff, and for Tharnstrom and against Clinton-Jackson on its cross complaint. The court entered judgments on the verdicts. Clinton-Jackson appeals from the judgments adverse to it, and plaintiff appeals from the judgment entered in favor of Tharnstrom in plaintiff’s action.

On July 14, 1959 Clinton-Jackson, as owner, and Tharnstrom, as contractor, executed a contract in connection with the construction of a building at 550 W. Jackson Boulevard in Chicago. Tharnstrom, as contractor, agreed to supply labor, materials, tools and equipment necessary to complete “the entire Concrete Work -including General Conditions.” On May 6, 1960, Tharnstrom and six subcontractors were engaged in various parts of the construction work, one of whom was plaintiff’s employer, Economy Plumbing & Heating Company.

At this stage of the construction, cement had been poured on the steel deck of the second floor. The west wall of the building backs up to another structure, but the north, east, and south sides of the building were open. The walls were to be of glass and curtain-wall construction. On the east side of the building, for a distance of 24 feet, the second floor was recessed to a depth of 2 feet, 7% inches. Draperies extending from the second floor ceiling to the ground floor were to be hung in the recessed space. There was no recess of this type on any other floor.

Plaintiff was putting pipe hangers on the second floor ceiling. He was working alone. The distance from the second floor to the ceiling is 12 feet, 6 inches, and plaintiff was using a movable scaffold, mounted on wheels. Customarily the scaffold is pushed to the area where work is to be done, and in so doing it is necessary to look at the ceiling in order to position the scaffold under the work. The wheels are then locked by means of a lever. Plaintiff was working from north to south on the east side of the building. He has no recollection of what occurred, but a witness working nearby saw the scaffold flying through the air, and saw plaintiff fall to the ground.

Leonard Tharnstrom, president of Tharnstrom, testified that his company employed only two subcontractors; the other contractors were subs for Clinton-Jackson, which acted as its own general contractor. Donald E. Ruud was superintendent for Clinton-Jackson, and Otto Roos, Tharnstrom’s superintendent, received his orders from Ruud.

Mr. Ruud testified he was Clinton-Jackson’s representative and performed the same functions as would be performed by the representative of an architect. He coordinated the work of the various contractors, and inspected the work being done.

There is a conflict in the testimony as to whether there were ever, at any time, barricades around the outer perimeter of the building. Thomas Tranchita, superintendent for plaintiff’s employer, testified he complained to Roos because no barricades were put up, and thereafter the stairwells were barricaded by Tharnstrom’s employees. Leonard Tharnstrom testified his company did not, at any time, erect barricades at the outer perimeters of the building. Mr. Roos testified there were barricades up “during our part of the work.”

Mr. Ruud testified that from April 13, 1960, the day Tharnstrom “cleaned the second floor” through May 6, 1960, there were no barricades around the outer perimeter of the building on the second floor. During that period he complained to Roos about barricades for the stairways and elevator shafts but no other complaints “relative to safety.” Clinton-Jackson did not build any barricades on the outer perimeter of the building on any floor. Tharnstrom had completed all its work on the second floor except for sweeping out and cleaning up, and a “punch list” about a month before May 6, 1960. A punch list is the list of the items to be corrected.

Clinton-Jackson’s first contention is that it “has a clear legal right to judgment” against Tharnstrom in the amount of plaintiff’s judgment against Clinton-Jackson. It argues that the contract required Tharnstrom to erect and maintain barricades at all openings and at the perimeters of the floors, and Tharnstrom failed so to do. In support of its argument Clinton-Jackson cites paragraph 16 of the Building Contract which provides:

“The parties agree that the work to be done . . . shall be in accordance with the approved plans and specifications . . . and in strict compliance with the rules and regulations, specifications and requirements as may exist at the time of this contract or as may subsequently be required by the City of Chicago, Illinois. ... It is the intention of this contract that all plans, specifications, rules, regulations and requirements heretofore set forth shall be and are a part of this contract and in the event that same should in any way conflict, the most stringent shall apply.”,

the following portion of the “General Conditions”:

“12. LAWS AND ORDINANCES a. ‘. . . All work shall comply with laws, ordinances, rules and regulations of the State of Illinois, the City of Chicago, and other authorities having jurisdiction.’ ”

and the Chicago “Safeguards During Construction” Ordinance (sections 76-1 to 76-6.2, Municipal Code of Chicago) which provides in part:

“Every open sided floor shall be guarded by a standard railing on all open sides. . . .”

Plaintiff’s second amended complaint charges Clinton-Jackson and Tharnstrom with violations of the Structural Work Act (c 48, §§ 60-69, Ill Rev Stats), violation of the Chicago Safeguards During Construction Ordinance, and negligence in failing to provide barricades. Clinton-Jackson’s cross complaint charges Tharnstrom with active acts or omissions imposing liability on Clinton-Jackson because of its “passive acts,” a contractual indemnity, and also alleges that if plaintiff was injured as alleged “it could only have resulted from a failure on the part of Tharnstrom to perform its work under said agreement in a safe workmanlike and careful manner.”

The trial court in its judgment order said:

“This cause having been assigned to this Court for trial, and at the close of all the evidence, the Court having submitted to the jury the issues of the Second Amended Complaint, as amended, and the answers thereto (Count I — Violation of the Structural Work Act; Count II — Violation of the Safeguards During Construction Ordinance; and Count III — Negligence); and the issues of the Cross-Complaint of Clinton-Jackson Corporation against C. A. Tharnstrom & Co. and the answer thereto, except the issue of alleged contractual indemnity of Clinton-Jackson Corp. by C. A. Tharnstrom and Co., which said issue this Court held to be a matter of law; and
“The jury having found the issues in the Second Amended Complaint as amended in favor of the Plaintiff and against the Defendant, Clinton-Jackson Corp., and the jury by the said verdict having found the issues against the Plaintiff and in favor of C. A. Tharnstrom and Co., and the jury having returned a verdict in favor of C. A. Tharnstrom and Co. and against Clinton-Jackson Corp. on the issues of the Cross-Complaint except on the issue of indemnity as aforesaid;
“This matter is now before the Court for adjudication of the indemnity issue (Count I) of the Cross-Complaint of Clinton-Jackson Corp. against C. A. Tharnstrom and Co. And the Court having considered and analyzed the several indemnity provisions of the total contract (Plaintiff’s Exhibits 1, 2 and 3—in evidence) between Clinton-Jackson Corp. and C. A. Tharnstrom and Co., and having heard arguments of counsel and having considered the authorities cited, the Court finds:
“That under the several indemnity provisions within the said contract, C. A. Tharnstrom and Co. did not indemnify Clinton-Jackson Corp. against its own misconduct (knowing violations of the Structural Work Act and/or the Safeguards During Construction Ordinance) or against its own negligence, but rather indemnified Clinton-Jackson Corp. only for its (C. A. Tharnstrom and Co.’s) own knowing misconduct and/or negligence; and
“The jury having found by its verdicts that Clinton-Jackson Corp. was guilty of knowing Violation of the Structural Work Act and/or Safeguards During Construction Ordinance and/or negligence, and that C. A. Tharnstrom and Co. was not guilty of violations of either the Structural Work Act or the Safeguards During Construction Ordinance or negligence.
“Wherefore, the Court finds the issue of indemnity of Clinton-Jackson Corp. by C. A. Tharnstrom and Co. against Clinton-Jackson Corp. and in favor of C. A. Tharnstrom and Co., and accordingly enters judgment in favor of C. A. Tharnstrom and Co. on the said finding.”

In our opinion there is sufficient evidence that Clinton-Jackson was in charge of the work as contemplated by the Structural Work Act, and had “control or supervision” of the building as defined in the Chicago “Safeguards During Construction” Ordinance to support the verdict. The evidence is also sufficient to support the verdict finding Clinton-Jackson negligent.

Clinton-Jackson argues that assuming arguendo the jury verdicts are supported by the evidence, it is entitled to indemnity from Tharnstrom by reason of the provisions of paragraph 17 of the “General Conditions” and paragraph 18 of the “Building Contract.” These paragraphs provide:

“17. DAMAGES, a. The contractor undertakes, promises, and agrees that he will protect, defend and hold the Owner free and harmless from any and all claims or actions for injuries or alleged injuries to workmen and the public generally . . . resulting from and in the course of the doing of the work, if caused by the contractor’s acts or omissions. . .

and

“18. The Contractor hereby assumes the entire responsibility and liability for any and all injury to or death of any and all persons, including the Contractor’s employees, and for any and all damage to property caused by or resulting from or arriving out of any act or omission on the part of the Contractor in connection with this Agreement or for the prosecution of the work hereunder, and the Contractor shall save harmless the Owner from and against any and all loss and/or expense which they or either of them may suffer or pay as a result of claims or suits due to, because of or arising out of any and all such injuries, death, and/or damage, and the Contractor if requested, shall assume and defend, at his own expense, any suit, action or other legal proceeding arising therefrom.”

We have carefully examined these contractual provisions and find them similar to those construed in Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604, and Fields v. Lawter Chemicals, Inc., 113 Ill App2d 320, 252 NE2d 120, in that the indemnity is for damages “resulting from or arriving out of any act or omission on the part of the Contractor.” They are therefore, clearly distinguishable from the agreements considered in Spurr v. LaSalle Const. Co., 385 F2d 322, and Patent Scaffolding Co. v. Standard Oil Co., 68 Ill App2d 29, 215 NE2d 1, upon which Clinton-Jackson relies. The trial court correctly held that Tharnstrom did not agree to indemnify Clinton-Jackson against its own misconduct or negligence, and the agreements provide indemnity only for Tharnstrom’s misconduct or negligence.

Clinton-Jackson next contends the trial court erred in refusing to permit the jury to take to the jury room enlarged, or blownup copies of various portions of the Clinton-Jaekson-Tharnstrom contract. Considerable discretion is given the trial court as to the exhibits which may be taken into the jury room, Fahrforth v. Kwiatkowski, 79 Ill App2d 300, 307, 224 NE2d 641. The contract and “General Conditions” are in evidence and were taken to the jury room. The “blowups” were exhibited to the jury during the trial, and we cannot say the trial court abused its discretion.

Clinton-Jackson contends the damages awarded are excessive. The testimony shows plaintiff was 36 years old at the time of the injury. When first seen by Dr. Muehrcke, an internist, he was comatose, suffering from shock due to loss of blood and acute kidney failure. On two occasions he required the use of a kidney machine. He suffered a heart failure. He developed diabetes as the result of an injury to his pancreas. He suffered a traumatic laceration with a transection and fragmentation of the right lobe of the liver. Three, ribs were fractured. He suffered a partial paralysis of the left lower leg; he required a tracheotomy; there were several operative procedures, among which were the removal of half of the right lobe of the liver, and his spleen. He was confined to the hospital on a number of occasions and suffers from liver insufficiency, kidney insufficiency, diabetes, sexual impotency, and orthostatic hypo-tension. He can stand for only 15 to 20 minutes at a time. He has difficulty in walking and sleeping. His condition is permanent.

His hospital, medical and drug bills to the time of trial totalled almost $30,000. His loss of earnings to the date of trial was $67,348.60. Actuarial testimony shows substantial prospective loss of earnings and the evidence shows a continuing need for medication.

The courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury, and if the jury is properly instructed on the measure of damages, an appellate court should not substitute its judgment as to the sum to be awarded in a given case, for that of the jury.

Clinton-Jackson requested that the following special interrogatory be given:

“Do you find from the evidence and under the instructions of the Court that on and prior to May 6, 1960, it was the obligation of C. A. Tharnstrom & Co. to erect a barricade or railing around the exterior of the second floor of the building in question?”

It contends the court erred in refusing its request.

The rule with respect to special interrogatories is stated in Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717, wherein the Appellate Court, at page 51, said:

“A special interrogatory is not proper unless it relates to one of the ultimate facts upon which the rights of the parties directly depend and unless the answer responsive thereto would be inconsistent with some general verdict which might be returned upon the issues in the case. Interrogatories which ask for a special finding as to evidentiary facts are never proper, even though ultimate facts may be deduced therefrom by reason or argument. Wicks v. Cuneo-Henneberry Co., 319 Ill 344, 349, 350; King v. Ryman, 5 Ill App2d 484, 125 NE2d 840; Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill 132, 141, 148; C. & A. R. R. Co. v. Gore, 202 Ill 188, 193, 194; Packard v. Kennedy, 4 Ill App2d 177, 186; Stevenson v. Byrne, 3 Ill App2d 43, 48.
“A special interrogatory must stand alone unaided by any presumptions or evidence in its favor. The court cannot look to the evidence to determine the propriety of a special interrogatory or whether or not an answer thereto was or would be inconsistent with a general verdict. Wicks v. Cuneo-Henneberry Co., supra; Chicago & N. W. Ry. Co. v. Dunleavy, supra.

An affirmative answer to the special interrogatory would not be inconsistent with the general verdict and the court properly refused the request.

We have considered plaintiff’s cross appeal with respect to the judgment entered in favor of Thamstrom. What we have previously said with respect to the evidence of violation of the Structural Work Act, the “Safeguards During Construction Ordinance” and negligence is here applicable. The evidence is sufficient to support the verdict finding in Tharnstrom’s favor and there is no basis for entry of judgment in favor of plaintiff and against Tharnstrom.

For the reasons set forth the judgments of the Circuit Court of Cook County are affirmed.

Judgments affirmed.

McNAMABA and EBERSPACHER, JJ., concur.


text:
    Theodore A. Allen, Plaintiff-Appellee, v. Board of Appeals of the City of Chicago, a Municipal Corporation, Defendants-Appellants.
    Gen. No. 53,376.
    First District, Fourth Division.
    December 31, 1969.
    Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.
    No brief for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This is an appeal from a judgment in favor of plaintiff, in an administrative review action, reversing a decision of the Board of Appeals which had denied plaintiff’s application for a “special use” permit.

Although plaintiff-appellee has failed to file a brief in this court, we will nevertheless consider the appeal on its merits. See Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill App2d 264, 254 NE2d 814.

Plaintiff originally filed an application for a “special use” permit with the Zoning Administrator. This was denied on March 2, 1967, and he then appealed to the Board of Appeals. After a hearing, the Board of Appeals, oil June 5, 1967, also denied plaintiff’s application.

The application concerns the premises located at 5910-12, 5916-18, and 5922-24 West 63rd Street, Chicago, and requests that plaintiff be allowed to erect one two-story brick, nine-dwelling-unit apartment building and two three-story brick, eight-dwelling-unit apartment buildings. The premises in question are vacant and are zoned under the Chicago Zoning Ordinance as B4-2, restricted service district.

Plaintiff’s complaint for administrative review, filed July 10, 1967, alleged that the decision of the Board of Appeals was insufficient in law and contrary to the zoning laws and “to the law applicable to the evidence received by the Board upon the hearing.” It further alleged that the City’s reliance upon discriminatory ordinances in refusing to allow the proposed use deprived plaintiff of due process and equal protection of the law. Plaintiff asked that the order of the Board be reversed and that a permit be issued in accordance with his application.

Defendants’ answer to plaintiff’s complaint included among the exhibits six letters from residents of the area in which plaintiff proposed to erect the structures. These letters specified the objections of the residents, indicating that the proposed buildings and the consequent influx of more people and more automobiles would result in serious parking problems and conditions inimicable to children. The answer asked that the Board’s findings be affirmed.

The hearing before the Board of Appeals produced the following testimony. Plaintiff testified that his proposed buildings would, in essence, comply with B4 zoning requirements. He stated that he was unable to obtain mortgage loans to provide for stores on the first floor, one of the requirements of the existing B4-2 zoning, and there were few stores in the area and many vacant ones. He has constructed other buildings on the south side of the street. When asked why he didn’t “go in for an amendment to R4 instead of B4-2,” plaintiff replied that “such applications for amendments were denied right and left. In essence we are lining up with R4 pretty closely.”

He testified further that he thought the buildings would help the neighborhood. Except for a dry cleaner, tavern, and beauty shop, the block where the property is located was vacant. A large group of stores is located on the north side of 63rd Street from Central (5600 West) to Menard (5800 West). He further testified that stores are “gone” and that apartments have “taken over” because of the demand.

A resident of the area then testified and presented a petition signed by 45 local residents who objected to the proposed building. He stated that parking for residents in the area was presently very congested and that the recent erection of a drive-in restaurant and the presence of a nearby church had aggravated the problem. An alley behind the property is also heavily used, and the proposed apartments would constitute an additional hazard to the children in the area.

Alderman Kuta testified in favor of the proposal, saying that the buildings would be an asset. He stated that it would have been a better procedure had application been made to the City Council to rezone to R4, but said that these have always been turned down in that Ward, although lately a few such applications have been granted.

A member of the Board of Appeals engaged in a brief dialogue with plaintiff and suggested that plaintiff’s proposal would not be in compliance with zoning requirements even if the property were rezoned R4, and also that, contrary to plaintiff’s assertions, there had been substantial opposition to his plans. Plaintiff agreed that there would be a parking problem, and could point out nothing in his architect’s proposal which was designed to alleviate that problem. Plaintiff’s only suggestion was that he would help combat the traffic hazard in the alley by putting guard rails in back of the parking area.

Plaintiff urged upon the Board that without the additional units which would not be in compliance with present zoning, he could not “come out as well,” and that to “get a good return on our money” the additional units covered by the special use application would be needed. Another board member commented to plaintiff that since plaintiff had developed other property in the area, he had known what the zoning laws were at the time he had purchased this property four months earlier. Plaintiff did not reply.

The Board of Appeals, in denying the application for the special use, found:

“that the use contemplated is not necessary for the public convenience at this location; that the subject property is located in a highly developed area in which there are now many successful business uses in existence; that there are no vacant stores in this block; that the addition of dwelling units on the ground floor at this location will not contribute to the public health, safety and welfare in the community; that the business uses in the block are needed and should not be interrupted with dwelling units on the ground floor, . . . .”

The Circuit Court found that the decision of the Board of Appeals was contrary to the manifest weight of the evidence because the record showed:

a. That the Special Use and zoning variation sought by plaintiff is necessary for the public convenience at the location in question;

b. That the Special Use and zoning variation sought by plaintiff is designed, located and proposed so that the public health, safety, and welfare will be protected;

c. That the Special Use and zoning variation sought by plaintiff will not cause substantial injury to the value of other property in the neighborhood in which it is to be located;

d. That the Special Use and zoning variation sought by plaintiff is within the provisions of “Special Uses” as set forth in said Zoning Ordinance of the City of Chicago; and

e. That the Special Use and zoning variation sought by plaintiff conforms to the' applicable regulations of the zoning district in which it is to be located.

Defendants contend that plaintiff has failed to introduce evidence sufficient to warrant the granting of a “special use.” Specific standards governing the granting of a “special use” are found in section 11.10-4 of the Chicago Zoning Ordinance (Municipal Code of Chicago, c 194A, par 11.10-4), which states that “no special use shall be granted by the Zoning Board of Appeals unless the special use:

“(1) a. Is necessary for'the public convenience at that location;

“b. Is so designed, located and proposed to be operated that the public health, safety and welfare will be protected; and

“(2) Will not cause substantial injury to the value of other property in the neighborhood in which it is to be located; and

“(3) It is within the provisions of ‘Special Uses’ as set forth in rectangular boxes appearing in Articles 7, 8,9, and 10; and

“(4) Such special use shall conform to the applicable regulations of the district in which it is to be located.”

This language being in the conjunctive, an application for a “special use” has the burden of proving that the proposed use will meet all of the standards required by the ordinance. See International Harvester Co. v. Zoning Board of Appeals of City of Chicago, 43 Ill App 2d 440, 450, 193 NE2d 856; Pioneer Trust & Savings Bank v. County of McHenry, 89 Ill App2d 257, 232 NE2d 816; Kotrich v. The County of DuPage, 19 Ill2d 181, 166 NE2d 601; and Audino v. Board of Appeals of City of Chicago, 75 Ill App2d 347, 221 NE2d 34.

Our study of the record and examination of the accompanying exhibits force us to the conclusion that plaintiff’s proof failed to satisfy any of the ordinance requirements, let alone all of them. The decision of the Board of Appeals was clearly dictated by plaintiff’s failure to meet his burden of proof in this regard, and we find nothing in the record to justify the Circuit Court’s conclusion that the Board’s decision was contrary to the manifest weight of the evidence. The judgment of the Circuit Court is therefore reversed and the cause remanded with directions to enter judgment affirming the Board of Appeals’ denial of plaintiff’s application for a special use.

Reversed and remanded with directions.

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


text:
    Chester Sturgeon, Plaintiff-Appellee, v. Paul Powell, Secretary of State, Defendant-Appellant.
    Gen. No. 53,595.
    First District, Fourth Division.
    December 31, 1969.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman R. Tavins, Assistant Attorneys General, of counsel), for appellant.
    Edward M. Platt, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This appeal has been taken by the defendant Secretary of State from an administrative review judgment of the Circuit Court which reversed the action of defendant in revoking plaintiff’s automobile operator’s license and driving privileges.

Defendant filed his appellant’s brief, and plaintiff has now presented to this court a motion to dismiss the appeal on the ground of mootness. Plaintiff’s contention in this regard is based on the fact that, after he had filed his complaint for administrative review in the Circuit Court, he received a letter from the office of defendant which we quote in full:

“OFFICE OF THE SECRETARY OF STATE
Springfield, Illinois 62706
“June 14,1968
“Re: Section 6-206
“Ace. #123168 (1965)
“File #8362-1002-5326
“Mr. Chester Sturgeon
“10601 South 81st Court
“Polos Hills, Illinois
“Dear Mr. Sturgeon:
“This office has been notified by the Driver Control Section that the Order entered October 25, 1967 revoking your license to drive and driving privileges has been rescinded. Our file in that case against you has been closed.
“You remain in full compliance with the law in connection with Accident Case #123168.
“Sincerely yours,
“/S/B.T. Donne
“Drivers License Division B. T. Donne
“Safety Responsibility Section Supervisor
“BTD: JV :ilh”

Defendant opposes the motion to dismiss by referring to a June 5, 1968 order of the Circuit Court which stayed the revocation of plaintiff’s license and restored his driving privileges subject to further order of court. By the same order, the administrative review proceedings were set for hearing on August 26, 1968. Defendant urges upon us the proposition that defendant’s letter, quoted above, was merely his compliance with this order and that it had granted only temporary driving privileges pending final judgment by the Circuit Court. In support of his position, defendant attaches to his answer an affidavit of one William F. Dart, chief hearing officer for defendant, which says that the letter of June 14 was issued on the basis of the June 5 order.

Plaintiff responds to defendant’s contention by directing our attention to an earlier document dated June 12, 1968, which he had received from the same source, and which he suggests was clearly defendant’s response to the stay order. That document reads in full as follows:

“RESCINDING ORDER
“Chester Sturgeon Date: June 12,1968
“10601 South 81st Court
“Polos Hills, Illinois License No.: S362-1002-5326
“YOU ARE HEREBY NOTIFIED that the Order of Revocation, entered by the Drivers License Division, effective October 25, 1967, is RESCINDED.
“This action is based on reports from the Circuit Court of Cook County, Illinois, that the Order of Revocation entered on October 25, 1967, is hereby Stayed. By further order of the court, your driving privileges and drivers license will be restored, and the case has been reset for trial on August 26, 1968.
“Enclosed please find a Temporary Operator’s Permit to be used while your license is in the process of being issued.
“B. T. Donne
“Supervisor
“Driver License Division
“Driver Control Section
“BTD:WFL:er”

One cannot examine this “Rescinding Order” without seeing that plaintiff is correct in his interpretation that it was issued as a direct result of the court order staying the revocation, etc. It specifically so states, and it was employed as a covering letter to forward to plaintiff a “Temporary Operator’s Permit.”

On the other hand, the letter of June 14, which defendant would have us construe as saying the same thing, in fact, says nothing of the kind. It states flatly, “Our file in that case against you has been closed.” There is nothing ambiguous in these words, and we deem it significant that, neither by affidavit nor otherwise, has defendant contended that this letter was written by mistake or without proper authority. Under these circumstances we, too, must consider that the file has been closed so as to justify plaintiff’s argument that the case has become moot. For all that appears from the record, this could have been the basis for the Circuit Court’s judgment, since that court, as well as this, must refrain from making decisions upon moot questions which do not involve actual controversies. Harney v. Cahill, 57 Ill App2d 1, 9-10, 206 NE2d 500; People ex rel. Cairo Turf Club v. Taylor, 2 Ill2d 160, 116 NE2d 880.

Since the letter of June 14, 1968, was never withdrawn or explained away, it still stands so far as concerns the record in this case. And we do not understand that a case, once closed in that fashion, can be reopened on the kind of showing which has been made in response to this motion, or by the simple expedient of filing a brief in this court, as though the letter in question had never been written. Nor do the facts of this case present a question of public policy or public interest which might fall within the recognized exception to the doctrine of mootness. Daley v. License Appeal Commission, 55 Ill App2d 474, 476-477, 205 NE2d 269.

Accordingly, plaintiff’s motion is allowed and the appeal is dismissed.

Appeal dismissed.

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

       That file number concerned a “Safety Responsibility Suspension” which had been cleared through the filing with the Secretary of State of an insurance policy certificate by plaintiff’s insurance company, as proof of financial responsibility.