text:
    (No. 33710.
    Elma Warner, Appellant, vs. Frank Gosnell et al., Appellees.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      James G. Linder, of Georgetown, for appellant.
    Gosnell & Fitzpatrick, of Lawrenceville, (Maurice E. GosnELL, of counsel,) for appellees.
   Mr. Justice Maxwell

delivered the opinion of the court:

Plaintiff, Elma Warner, filed her complaint in the circuit court of Lawrence County, which complaint was twice amended, the allegations being made up in two counts in the second amended complaint. The defendants in count I were Erank Gosnell, Dessie Crichfield, and Lee Crichfield. The prayer for relief as it appears in count I of plaintiff’s second amended complaint asks that a warranty deed, dated February 15, 1946, from plaintiff, her son and his wife, to the defendant Frank Gosnell, to a certain 26-acre tract in Lawrence County, be set aside, the plaintiff be declared to be the sole owner of the 26-acre tract and an accounting be had of farm operations, leasing and royalties by defendant Frank Gosnell, and payment by him to plaintiff of monies received in excess of the sum due for principal and interest on a certain note and other charges that defendant Frank Gosnell may have had to pay on the land.

In count II of plaintiff’s second amended complaint the sole defendants were Ohio Oil Company and Calvan American Company. Plaintiff alleged that on June 22, 1953, defendant Frank Gosnell had leased the land in question for oil and gas to one Davidson, who in turn had assigned the lease to Calvan American Company. Thereafter, Calvan American Company pooled said tract of land with adjoining land leased by defendants Dessie and Lee Crichfield, which Crichfield land had a producing oil well on it. The oil from said producing well was sold by Calvan American Company to the Ohio Oil Company. Under the pooling arrangement between the parties, a percentage of the oil and gas royalty from the Crichfield well was the property of the owner of the land in question. The prayer for relief as set forth in count II asks that these two defendants be ordered to immediately pay any monies in their hands due the Crichfields.

The two Crichfields, Dessie and Lee, entered their appearances but did not contest plaintiff’s claim. Defendant Ohio Oil Company answered that it was a mere stakeholder and prayed the court to determine those entitled to payment •for oil. Defendant Calvan American Company, by answer, asked the court to rule that its lease be binding on whichever party prevails. The answer of defendant Frank Gosnell and the affirmative defenses therein were based upon three theories: (1) that the transaction was not a loan and security transaction but a sale with an agreement to re-convey upon payment of $1,000, and, alternatively, (2) that even if it should be found that the original transaction was a loan and security arrangement, plaintiff abandoned the security and defendant Frank Gosnell destroyed the note, took possession of the land without any claim or demand from plaintiff until the premises increased in value by reason of the discovery of oil on adjacent premises, after which plaintiff filed this suit without warning, notice or demand, and, alternately, (3) that plaintiff was guilty of laches.

A hearing was had before the chancellor on the issues made up on the complaint and several answers. He dismissed the complaint for want of equity.

The interest of defendants Dessie Crichfield, Lee Crichfield, Ohio Oil Company, and Calvan American Company are not being contested in this proceeding and no appeal is taken from that portion of the decree relating to the oil and gas lease of Calvan American Company, which is recognized as being in full force and effect. The issues in this case are confined entirely to the rights of the plaintiff Warner and the defendant Gosnell.

The issues before the trial court upon the basis of the pleadings were three, to-wit: (1) Was the deed from plaintiff Warner to defendant Gosnell an absolute conveyance coupled with an agreement to reconvey upon payment of a sum certain within a specified time or was it in the nature of a mortgage to secure repayment of a loan, (2) if the deed was in the nature of a mortgage, was there an abandonment of the security by grantor after the loan became due and grantor was not able to pay, and (3) was grantor guilty of laches in not asserting her right to redeem until after the premises conveyed had increased considerably in value?

In her statement as to how the issues were decided, plaintiff states that this appeal is taken from that part of the decree which held that (1) the transaction between plaintiff and defendant Gosnell was a sale and not a mortgage, (2) that defendant Frank Gosnell is the owner in fee of the 26 acres, (3) that defendant Frank Gosnell is the lessor in oil and gas lease with Calvan American, Inc., (4) that of }i of oil produced belongs to defendant Frank Gosnell instead of plaintiff and (5) that no accounting should be rendered plaintiff. An examination of the decree entered by the circuit court of Lawrence County shows the following among other findings:

“* * * that the equities in this cause are with the defendants, Frank Gosnell, * * * that Plaintiff’s Complaint, as amended, should be dismissed for want of equity, and that the issues of this cause shall be and the same are hereby resolved and determined in favor of Defendant Frank Gosnell, upon his Answer, * * * and against Plaintiff, Elma Warner, upon her Complaint.

“2. That the allegations contained in the Answer of Defendant, Frank Gosnell, to Plaintiff’s Second Amended Complaint, * * * shall be and they are hereby found and declared to be true and correct.

“3. That Defendant, Frank Gosnell, is entitled to the relief prayed for in his Answer. * * *

“4. That Defendant, Frank Gosnell, is the owner in fee simple of the premises situated in the County of Lawrence, State of Illinois, described as * * * subject only to that certain oil and gas lease * *

Further, said decree ordered, adjudged and decreed as follows:

“1. That Plaintiff’s Complaint herein, as amended, shall be and the same is hereby dismissed for want of equity as to each and every one of the Defendants herein named.

“2. That the title in fee simple in and to the premises described in Plaintiff’s Complaint, as follows: * * *

shall be and the same is hereby found and declared to be in Defendant Frank B. Gosnell and is hereby quieted and confirmed in Defendant, Frank Gosnell, free and clear of any and all claims of every kind or character of Plaintiff, Elma Warner.”

From the foregoing it is apparent that the trial court did not decide that this “was a sale and not a mortgage,” exclusively, but could have found (1) the transaction was a sale and not a mortgage or (2) the transaction was a mortgage but plaintiff abandoned the security, or (3) plaintiff was guilty of laches.

Plaintiff sets forth seven errors relied upon for reversal but only four are argued. As this court has consistently held in numerous cases, assignments of error not argued are waived.

Plaintiff complains that the trial court erred in not applying the law to the evidence. The conveyance from plaintiff to defendant Gosnell was by warranty deed, which on its face purported to convey a fee simple title. Section 12 of the Mortgage Act (Ill. Rev. Stat. 1953, chap. 95, par. 13,) provides that every deed conveying real estate, which shall appear to have been intended only as a security in the nature of a mortgage, though it be an absolute conveyance in terms, shall be considered as a mortgage. The burden of proof rests upon the one asserting a deed absolute in form to be a mortgage to show that fact by clear, satisfactory and convincing proof. Deadman v. Yantis, 230 Ill. 243; Rankin v. Rankin, 216 Ill. 132; Novak v. Kruse, 288 Ill. 363.

There can be no question that a deed takes effect from its delivery and that its character at the time of such delivery becomes fixed as of that time. The question whether a deed which is absolute in form is to be taken as a mortgage depends upon the intention of the parties in that regard at the time of its execution. The intention may be found from the papers themselves or by aid of extraneous evidence, which, when ascertained, will govern the decision.

The law is well settled that the true character of the transaction may be shown by parol, and if, upon consideration of the facts, it clearly appears that the deed, though absolute in its form, was taken as security for the payment of money, it will in equity be held a mortgage. “Whether any particular transaction does * * * amount to a mortgage or a sale with a contract of repurchase must to a large extent depend upon its own special circumstances, for the question finally turns, in all cases, upon the real intention of the parties, as shown by the writings or as disclosed by extrinsic evidence * * *. If there is an indebtedness or a liability between the parties, either a debt existing prior to the conveyance or from any other cause, and this debt is still left subsisting, not being discharged or satisfied by the conveyance, but the grantor is regarded still owing and bound to pay it at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment for this existing debt, then the whole transaction amounts to a mortgage, whatever language the parties may have used and whatever stipulations they may have inserted in the instrument.” (3 Pomeroy’s Eq. Jur. 3d ed. sec. 1195.) The test or criterion, as was stated in the case of Illinois Trust Co. v. Bibo, 328 Ill. 252, at page 259, “is the continued existence of a debt or liability intended as a security for the debt or indemnity against the liability.” If that liability is left as subsisting, and if “the grantor is regarded as still owing and bound to pay it at some future time, * * * then the whole transaction amounts to a mortgage, whatever language the parties may have used and whatever stipulations they may have inserted in the instruments.”

The gist of the inquiry in cases of this class is what was the purpose for which the deed was executed; and it will be found, by reference to the cases, that every fact or circumstance tending to illustrate the purpose and intent •of the parties is admissible. The fact of an existing indebtedness in respect to which the deed was executed ; the retention of the evidence of such indebtedness by the grantee in the deed; that the deed was procured by fraud or oppression or undue advantage; that there was a loan of money; the subsequent conduct of the parties in respect to the land, and, indeed, almost every conceivable .state of facts legitimately illustrative of the transaction has been held competent evidence. In some cases, as in Brown v. Gaffney, 28 Ill. 149, oppression and undue advantage, •in connection with the peculiar facts of that case, is made prominent and controlling, and in that and other cases, as in Miller v. Thomas, 14 Ill. 428, the inadequacy of price paid is made, under the circumstances there proved, a prominent element in the solution of the question involved.

The first question presented by this record is whether the deed of February 15, 1946, from plaintiff to Frank Gosnell was intended as a security for money advanced by Gosnell or was intended to be an absolute conveyance.

The evidence shows that in February, 1946, Wayman Warner, son and only child of plaintiff, was constructing a building at Birds, Illinois. He needed $1,000 to complete the project. He went to see defendant Gosnell about borrowing such sum, offering the 26 acres of ground belonging to his mother as security. Gosnell refused to loan $1,000 but said he would advance $800. Several days later Way-man again contacted Gosnell. At that time a warranty deed was prepared together with a note for $1,000 due in one year. Wayman Warner and his wife executed both documents while in Gosnell’s office. Thereafter Wayman and his wife took both documents to plaintiff’s place of employment. After both were executed by her, Wayman and wife delivered them to defendant Gosnell, who gave the $1,000 to Wayman Warner. Shortly thereafter Gosnell recorded the warranty deed, and both plaintiff and her son testified that they had notice of the recording.

The testimony is clear, cogent and convincing that Gosnell never discussed the transaction with plaintiff prior to or at the time of making the loan. Whatever negotiations were had were between Wayman Warner and Gosnell. There is no doubt that Gosnell knew that Wayman Warner needed the money for a business venture and that $1,000 was the sum requested. There is no showing-of any discussion of any kind between Gosnell and plaintiff regarding a purchase price for the land or the terms of the loan at the time the loan was completed.

Gosnell testified, “I told him tO' bring his mother in and give me a warranty deed for the twenty-six acres and that I’d make a note and at the end of the year if the note was paid off then I’d deed the land back to her.” The testimony of Gosnell shows conclusively that he considered the $1,000 still due from the Warners even though the deed had been made, executed, delivered and recorded, thus bringing the transaction clearly within the rule allowing proof to show that the instrument was a mortgage rather than a deed, as set forth in 3 Pomeroy’s Eq. Jur. 3d ed. sec. 1195, and Illinois Trust Company v. Bibo, heretofore quoted.

After considering all of the evidence in the record, we are of the opinion that the weight of the evidence tends more reasonably to uphold the conclusion that at the time the deed was executed the instrument was intended by the parties to be a mortgage to secure the loan of $1,000 rather than a deed conveying a fee simple title on a purchase and sale of the property in question. While there is some conflict in the testimony bearing on this point, we are of the opinion that the proof supporting this conclusion is clear, satisfactory and convincing. The deed given was an equitable mortgage and the relationship created was that of equitable mortgagor and mortgagee. (Caraway v. Sly, 222 Ill. 203; Fitch v. Miller, 200 Ill. 170; Green v. Capps, 142 Ill. 286; Guffey v. Washburn, 382 Ill. 376.) The legal title was conveyed to defendant Gosnell with an equity of redemption in plaintiff.

Counsel for Gosnell argue that even if the court should find the original transaction was a loan and security arrangement, that plaintiff abandoned the security, defendant Gosnell accepted the abandonment, destroyed the note, took possession of the land without any claim or demand from plaintiff, continued in possession for a long period of time until the premises increased in value by reason of the discovery of oil on adjacent premises, after which plaintiff filed suit without any warning, notice or demand.

The deed took effect from delivery and its character as a mortgage was then established, and it would continue to be a mortgage until the right of redemption should be barred in some of the modes recognized by law. (Bearss v. Ford, 108 Ill. 16.) It is unquestionably the law in the State of Illinois that even though land has been transferred by a deed absolute in form, but intended as security for the payment of a debt, the payment of the debt may be abandoned and the deed treated as an absolute conveyance and that such arrangement may be made by parol and be binding. Hutchison v. Page, 246 Ill. 71; Cramer v. Wilson, 202 Ill. 83, and cases there cited.

The note fell due February 15, 1947, and was not paid. On February 20, 1947, the business building, in which the borrowed $1,000 had been invested, was destroyed by fire. Only a small part of the loss was covered by the $6,000 insurance on the premises. The record indicates that in April of 1947 defendant Gosnell went to visit plaintiff at her place of employment. There is some conflict as to the conversation had between plaintiff and defendant Gosnell. On direct examination, plaintiff stated that Gosnell said that “Wayman had to pay the note and it was past due, and, of course, I had put what money I had in the building and had not got anything off my land for a year and I just didn’t have the money, and I told him I didn’t have the money to pay it. He said he wanted to talk to Wayman and he said he might have to take the land.” Gosnell, testifying as to what occurred at the meeting, said “I waited until the latter part of April, 1947, and no one came to pay the note off and I went out to the Old Folks Home and saw the matron and asked for Mrs. Elma Warner and she found Mrs. Warner, and she invited me into a room and to sit down and I asked her if she knew the note was due the 15th of February and that it was past due, and she said yes, she knew about it but did not have the money and didn’t know where she could get the money and said you will have to take the land, and I said that was more than it was worth, that I didn’t want the land, and she said that is the best that I can do, all I can do. She said you will have to take the land; that is the best I can do.” The evidence further indicates that in a week or ten days after the conversation with the plaintiff, in April, 1947, Gosnell destroyed the note, went into possession of the premises, engaged a tenant, paid the taxes, collected the rents and exercised full ownership of the premises. Plaintiff made no suggesttion to Gosnell that she desired additional time to pay the $1,000. Wayman Warner testified that although he received $6,000 in the settlement of the fire loss he did not attempt to pay the $1,000 to Frank Gosnell and have him deed the land back to plaintiff, but paid some outstanding bills and a balance of $1,000 which he owed to the Lawrenceville Savings and Loan Company.

The record is clear that both plaintiff and her son gave no further attention to the 26 acres, received no rents or profits therefrom subsequent to April, 1947, paid no taxes, never visited the land, and allowed the recorded deed to remain unquestioned until oil was discovered some seven years later on the adjoining Crichfield property, when this suit was filed. All of this, in spite of the fact that plaintiff’s sister, Bessie Crichfield, and her husband, Lee Crichfield, defendants herein, plaintiff’s brother, Carl Stoltz, and other near relatives lived within a very short distance of the land in question, knew Frank Gosnell was claiming to own it, and farming same through tenants.

It further appears from the record that in 1949 Wayman Warner sold his business at Birds. At the time of the sale plaintiff was paid the sum of $1,000 by Wayman in the form of a promissory note which was given her by the purchasers of the business.

We think it clear, from a consideration of all the testimony, that the parties intended the equitable encumbrance of $1,000 to be satisfied by the deed of February 15, 1946. The conduct of the parties since the conversation of April, I947> has been wholly inconsistent with any other understanding. Under the circumstances the chancellor was justified in concluding that the defendant Gosnell had clearly sustained the burden of showing the degree of fairness which the law requires. We find nothing in the record to justify the claim that fraud, undue and oppressive influences were used by Frank Gosnell.

On the third issue, that plaintiff has been guilty of laches, we have carefully reviewed the pleadings of plaintiff but no facts are presented therein which tend in any way to excuse the delay in commencing the proceedings to redeem. As Frank Gosnell set up laches in his answer as an affirmative defense to the right to- redeem, it then devolved upon the plaintiff to allege a reason or excuse for her laches. From the record before us, the trial court could have reasonably and fairly found that plaintiff was guilty of laches.

The courts of this State have many times repeated that where a chancellor receives the evidence in open court and sees the witnesses and hears them testify, his findings will not be disturbed unless palpably wrong or manifestly erroneous. (Hall v. Pittenger, 365 Ill. 135; Page v. Keeves, 362 Ill. 64; Greer v. Carter Oil Company, 373 Ill. 168.) Considering all the facts in the record, the disputed testimony as to the purpose and intention of the parties regarding the nature of the transaction at the time the deed was taken, and the conduct of the parties subsequent to maturity of the note, we are unable to say that the trial court committed any manifest error. We must, therefore, conclude that the court below did not err in dismissing the complaint for want of equity.

The decree of the circuit court of Lawrence County is affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Schaeeer

license: Public Domain

text:
    (No. 33624.
    Betty Jane Krupp, Appellant, vs. Chicago Transit Authority, Appellee.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

    Licastro & Wisowaty, (Peter Fitzpatrick, Aebert E. JennEr, Jr., and John A. DoyeE, all of Chicago,) for appellant.
    Thomas C. Strachan, Jr., Werner W. Schroeder, and James E. Hastings, all of Chicago, for appellee.
   Mr. Justice Schaeeer

delivered the opinion of the court:

The circuit court of Cook County held the defendant, Chicago Transit Authority, in contempt for its refusal to comply with an order directing it to answer certain interrogatories before trial, and imposed a fine of $100 as punishment. The Appellate Court reversed the judgment and we allowed leave to appeal because the case presents an important question of practice.

Plaintiff, Betty Jane Krupp, sued the Chicago Transit Authority to recover damages for personal injuries alleged to have been caused by the defendant’s negligence in operating one of its street cars. The defendant answered, denying negligence and alleging contributory negligence. Plaintiff then submitted eleven written interrogatories of which defendant answered nine but refused to answer the following two: No. 10: “What are the names and addresses of all witnesses in possession of the defendant who were occurrence witnesses to plaintiff’s injury as alleged in plaintiff’s complaint.” No. 11: “What are the names and addresses of all persons in possession of the defendant who witnessed plaintiff’s injured condition subsequent to the accident until she was removed from defendant’s streetcar.”

Because the parties have disagreed as to the meaning of these interrogatories, it is important to determine at the outset just what information was sought. The defendant refers to the interrogatories in question as calling for “the names of the other party’s witnesses,” and the Appellate Court in its opinion adopted this interpretation. We think it is incorrect. While interrogatory No. 10 refers to “witnesses,” and interrogatory No. 11 to persons who “witnessed,” neither inquiry seeks the names of those persons whom the defendant intends to call as witnesses at the trial of the case. Interrogatory No. 10 requests the names of “occurrence witnesses” and interrogatory No. 11 the names of “persons * * * who witnessed plaintiff’s injured condition * * Fairly read, the interrogatories use the term “witness” in the primary sense of those who have personal knowledge of the event and not in the technical sense of those who are to be called to testify at the trial. The distinction is that which was drawn by this court in drafting the present Rule 19 — 4. (Compare Ill. Rev. Stat. 1955, chap, no, par. 58, with par. 101.19 — 4.) Questions which might arise if there was an attempt to obtain by discovery the “work product of the lawyer” (cf. Hickman v. Taylor, 329 U.S. 495,) are therefore not involved.

The defendant first justifies its refusal to answer on the ground that there is no provision in the Civil Practice Act or in the Rules of Court which specifically authorizes these interrogatories. It contends, therefore, that the discovery sought was not authorized by statute or rule. It argues that the limitations which historically governed the allowance of discovery in equity are controlling in the absence of a specific provision to the contrary like that contained in Rule 26 of the Federal Rules of Civil Procedure, which provides for discovery by interrogatories of the “identity and location of persons having knowledge of relevant facts.” 28 U.S.C.A. Rule 26(b).

Section 58 of the Civil Practice Act of 1933 as originally enacted contained two paragraphs. (Smith-Hurd Stat. 1933, chap, no, par. 182.) The first paragraph dealt with the discovery formerly available in equity by bill for discovery or by interrogatories in a bill for relief. As to that kind of discovery it did away with the requirement of a separate suit and of interrogatories in the bill, and it provided that discovery of that kind could thereafter be had by motion filed in the cause in which the matter sought to be discovered would be used. The second paragraph dealt with discovery not theretofore available. When these interrogatories were filed it read: “Discovery of documents which are or have been in the possession of any other party to the action may be had, admissions as to any fact may be requested and answers to written interrogatories may be required of any other party, and the deposition of any other party or of any person may be taken at such times and under such terms and conditions as may be prescribed by rules.” (Ill. Rev. Stat. 1953, chap, no, par. 182.) The italicized clause was added by amendment in 1941.

In our opinion the scope of the discovery authorized by section 58(2) was not confined to that which was historically available in equity. The legislature treated separately the old discovery and the new. (See Smith-Hurd Ill. Ann. Stat., Historical and Practice Notes following chap, no, par. 182.) Moreover, the discovery rules which the court adopted after the act became effective are almost identical with those which had been enacted by the General Assembly as a schedule of rules which formed a part of the original statute. (Ill. Rev. Stat. 1953, chap, no, pars. 259.17-259.19.) .In substance and in a host of particulars those rules went far beyond the limits of classical discovery in equity, and they show that there was no intention that the discovery contemplated should be restricted to those limits. It could hardly have been intended, we think, that when discovery by interrogatories addressed to the other party was authorized by the 1941 amendment to section 58(2), it was to be circumscribed by limitations not applicable to the other forms of discovery previously authorized by the same subsection.

We see no overriding significance in the fact that no rule relating to discovery by interrogatories was adopted by this court after the 1941 amendment. Discovery by deposition may affect persons other than the parties to the action, and so it was necessary that the mechanics of taking depositions be fixed by rule. For that reason, Rule 19 was adopted. (Ill. Rev. Stat. 1953, chap, no, par. 259.19.) Discovery by written interrogatories involves only the parties ; its mechanics can readily be regulated by ad hoc orders or by local rule of court, and so no provision comparable to Rule 19 was necessary. The interrogatories in this case were submitted and answered in accordance with the applicable rule of the circuit court of Cook County. With respect to depositions, Rule 19 contained no provision indicating specific matters that might or might not be inquired into. No such provision was necessary. Similarly, none was necessary when permissible discovery was broadened to include discovery by interrogatories by the amendment of section 58(2) in 1941.

It is true, of course, that there would be no question of the propriety of these interrogatories if they were authorized by a specific provision of statute or rule. But it does not follow that they are improper in the absence of a specific provision. By its enactment of section 58(2) the General Assembly showed its purpose to broaden substantially the scope of available discovery. It acted in response to prevailing dissatisfaction with procedural doctrines which had exalted the role of a trial as a battle of wits and subordinated its function as a means of ascertaining the truth. The doctrines which thus unduly emphasized the adversary quality of litigation originated in judicial decisions, some of which, indeed, are pressed upon us by the defendant and were relied upon by the Appellate Court. The hostile attitude toward discovery which sired those decisions was rejected by the General Assembly in the Civil Practice Act. “Discovery before trial” presupposes a range of relevance and materiality which includes not only what is admissible at the trial, but also that which leads to what is admissible at the trial. We need not now fix ultimate boundaries. It is enough for this case that the names of those persons who have first hand knowledge of the occurrence which gave rise to the action are unquestionably relevant and material.

The defendant also argues that the information sought is privileged because obtained in preparation for trial. The claim of privilege is based upon the assertion that “Insofar as the names or addresses of such witnesses may be in any memorandum, report or document, such memorandum, report or document was prepared by the defendant or its agents or attorneys for trial * * The privilege thus sought to be asserted appears to be that expressed in Rule 17 with respect to “memoranda, reports, or documents prepared by or for either party in preparation for trial.” (Ill. Rev. Stat. 1953, chap, no, par. 259.17.) But in this case it is unnecessary to consider the source of the asserted privilege or its precise scope. For one who claims to be exempt by reason of privilege from the general rule which compels all persons to disclose the truth has the burden of showing the facts which give rise to the privilege. “His mere assertion that the matter is confidential and privileged will not suffice.” (Robertson v. Commonwealth, 181 Va. 520, 540, 25 S.E. 2d 352, 360; Ann. Cas. 1913A, p. 9; 58 Am. Jur. (Witnesses), sec. 370.) Here there was no indication of the circumstances under which the report, if there was one, came into existence. And in any event the plaintiff did not in this case seek to examine any report, but rather to ascertain the identity of the occurrence witnesses known to the other party.

Defendant also asserts a statutory privilege based upon section 23 of the Metropolitan Transit Authority Act which provides: “All ordinances, resolutions and all proceedings of the Authority and all documents and records in its possession shall be public records, and open to public inspection, except such documents and records as shall be kept or prepared by the Board for use in negotiations, action or proceedings to which the Authority is a party.” (Ill. Rev. Stat. 1955, chap. iii^5, par. 323.) We think that the exception contained in this provision does not create a special privilege for the Authority. Its purpose was not to place the Authority upon a different plane than other litigants with respect to documents and records prepared for use in negotiations or on a trial, but rather to insure that the provision for public inspection of its records would not operate to place it on a different plane.

The judgment of the Appellate Court is reversed and the judgment of the circuit court of Cook County is affirmed.

Appellate Court reversed; circuit court affirmed.


author: Mr. Chief Justice HershEy Mr. Justice Davis,

text:
    (No. 33693.
    The People ex rel. Latham Castle, Attorney General, Petitioner, vs. Harry C. Daniels et al., Judges, Respondents.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      Klingbiel, J., took no part.
    Davis, J., dissenting.
    Latham Castle, Attorney General, of Springfield, (Fred G. Leach, Murray F. Milne, and Albert E. JennER, Jr., of counsel,) for petitioner.
    Sears and Soleisburg, of Aurora, for respondents.
   Mr. Chief Justice HershEy

delivered the opinion of the court:

By leave of this court, the Attorney General has filed an original petition for mandamus asking us to direct the respondents (judges of the circuit court of Kane County) to vacate an order of May 9, 1955, denying the motion of the Attorney General for a nolle prosequi in a certain criminal prosecution pending in that court. (People v. Lloyd C. Moody, No. 54-757.) The Attorney General further asks that we direct them to enter nunc pro tunc, as of May 9, I955> 3X1 order of nolle prosequi on said motion, and to vacate all proceedings and orders (including the verdict and judgment) subsequently entered in the cause.

The undisputed facts disclose the following: On July 26, 1954, a Kane County grand jury returned four embezzlement indictments against Lloyd C. Moody. (Nos. 54-754 through 54~757-) Each of the first three indictments charged the embezzlement of a particular sum of money from a certain individual, but the fourth (No. 54-757) was a consolidated indictment encompassing the elements of the other three.

On July 30, 1954, the indictments were set for trial as the first case of the September, 1954, petit jury, but on motion of the court were continued to September 13, 1954. On the latter date, there was a continuance (the record not showing at whose request) to the November term. A hearing was held on November 5, 1954, at which time certain motions made on behalf of defendant Moody were denied. Three days later, on November 8, 1954, counsel agreed to a setting on November 29, 1954, and at the request of the court the assistant State’s Attorney made an election to proceed on No. 54-757.

Defendant Moody’s present counsel entered the case on November 26, 1954, and the trial date was changed to January 11, 1955. By agreement, this was extended to February 14, 1955. Then, on motion of the State’s Attorney, the court continued the case to March 21, 1955. At that time the State’s Attorney sought to proceed on No. 54-756, but the court insisted that because of the previous election he had to prosecute No. 54-757. Whereupon, the latter moved to enter a nolle prosequi in No. 54-757, stating in argument that “there is a possibility in the proof that there would be a variance as to the proof of ownership.” (This was predicated upon a belief that there would be a variance as to the embezzlement alleged in No. 54-755, and since No. 54-757 was a consolidated indictment the variance would arise in the latter case also.) The court denied this motion on April 21, 1955.

The State’s Attorney then requested the Attorney General to enter his appearance on behalf of the People of the State of Illinois, and shortly thereafter, with consent of the State’s Attorney, the Attorney General moved to nolpros No. 54-757. The Attorney General alleged in this motion that there would be a fatal variance between the proof and the allegation of the ownership of the money as charged in the indictment, so that it was not in the best interest of the administration of justice in the State of Illinois to proceed with the prosecution.

The trial court (Judge Harry C. Daniels, presiding) denied the Attorney General’s motion, and both the Attorney General and the State’s Attorney refused to- participate further in the proceedings. On the following day, May io, I9S5, circuit judge Mel Abrahamson impanelled a jury to try indictment No-. 54-757, and on motion of counsel for defendant Moody directed a verdict of not guilty. After the not guilty verdict was returned, the court entered judgment thereon and discharged the defendant.

On May 16, 1955, the Attorney General requested leave of this court to file a petition for an original writ of mandamus, which we granted. Judge Harry C. Daniels, who died during the pendency of these proceedings, has been dismissed as a respondent.

To decide the issue, we must consider the following: (1) Was the Attorney General properly in the case? (2) If so, did the court err in refusing to allow his motion to nol-pros the indictment?

First, was the Attorney General properly in the case?

Apart from authority which is vested in the Attorney General by the Illinois constitution, he has by statute the right to assist a State’s Attorney in the prosecution of a case. (Ill. Rev. Stat. 1953, chap. 14, par. 4.) A portion of this statute makes it the duty of the Attorney General to do the following: “Fourth — To consult with and advise the several state’s attorneys in matters relating to- the duties of their office; and when, in his judgment, the interest of the people of the state requires it, he shall attend the trial of any party accused of crime, and assist in the prosecution.”

In construing the foregoing, we have held that the Attorney General is authorized to appear not only for consultation and advice but also for whatever assistance may be desirable and beneficial to the prosecution, both during the trial and in all preliminary and subsequent proceedings arising in the progress of the case. (People v. Looney, 314 Ill. 150; People v. Billburg, 314 Ill. 182.) Indeed, as expressed in the Looney case, it is the statutory duty of the Attorney General to appear in a prosecution when in his judgment the interest of the people of the State requires it. We have never viewed the powers vested in the State’s Attorney as exclusive of those vested in the Attorney General. See Lawless, “The Relationship Between the Attorney-General and the State’s Attorney in Illinois,” 1949 Law Rorum 507.

There is no conflict between the two officers as to the authority residing in each, since the Attorney General intervened at the request of the State’s Attorney and acted in aid of the latter. Therefore, it is clear that the Attorney General was properly in the case.

Second, did the court err in refusing to allow the motion to nol-pros the indictment?

The Attorney General, whose office is created by the Illinois constitution (art. V, sec. 1), is the chief law officer of the State and has those powers which resided in the Attorney General at common law. His office is a part of the executive department, and neither the legislature nor the courts can deprive him of his constitutionally granted authority. See People ex rel. Elliott v. Covelli, 415 Ill. 79.

Among the powers of the Attorney General at common law was the right to nol-pros an indictment at all stages of a criminal prosecution before the jury was impanelled or before the trial of the case, except that the action could not be capriciously or vexatiously repetitious. In the Covelli case, the Attorney General’s conduct was not repetitious at all, since the motion considered was the first nolle prosequi filed in the matter. Accordingly, by mandamus we compelled the trial court to enter an order of nolle prosequi as of the date of filing and expunged a subsequent order discharging the defendant.

We consider the Covelli case controlling here. As in that case, there has not been here any such capricious or vexatious repetition as to bring the case within the recognized exception to the Attorney General’s right to terminate a criminal prosecution. Rather, it is shown that the Attorney General acted in this one instance alone.

Moreover, it is shown that the Attorney General, after investigating the matter, concluded there would be a fatal variance between the charge and the proof with a resulting miscarriage of justice. For, as noted, it was believed there would be a fatal variance in No. 54-755, one of the separate indictments, and because No. 54-757 was a consolidated indictment, a fatal variance would arise in that prosecution also. Hence, he was faced with a practical problem. If there was an acquittal on the consolidated indictment, prosecution of the other three would be barred. To prevent this, and to save the two indictments where no variance was thought to exist (Nos. 54-754 and 54-756), he had no alternative but to nol-pros No. 54-757. In so acting, the Attorney General clearly did not abuse the discretion vested in him.

There is no record of harassment here, as suggested by respondent’s counsel in oral argument. There was no repetition, only one continuance was secured on motion of the State’s Attorney, and there is nothing to indicate that either the State’s Attorney or the Attorney General did not act in good faith with a desire to prevent an injustice. Despite the previous election to prosecute the indictment, had they gone to trial under these circumstances they certainly would not have acted as the people of this State have a right to expect law officers to- act in the enforcement of the criminal law.

There is nothing to demonstrate any abuse of discretion on the part of the Attorney General; therefore, the respondents were under a mandatory duty to enter the order of nolle prosequi.

The writ of mandamus is hereby awarded directing Mel Abrahamson, as judge of the circuit court of Kane County, Illinois, to enter nunc pro tunc as of May 9, 1955, an order of nolle prosequi on the motion filed by the petitioner. The respondent is also directed to expunge all orders and judgments entered in said cause subsequent to the filing of said motion.

Writ awarded.

Mr. Justice Keingbiee took no part in the consideration or decision of this case.

Mr. Justice Davis,

dissenting:

I am forced to disagree with what the majority have said about the relationship between the State’s Attorney and the Attorney General and with their conclusion that this case is controlled by People ex rel. Elliott v. Covelli, 415 Ill. 79.

The Attorney General relied on his common-law powers to sustain his position in this case. He earnestly maintains that his power to nol-pros is absolute, in the absence of capricious and vexatious repetition; that it is not affected by the consent or lack of consent of the State’s Attorney, and that the exercise of the power is not subject to review. I believe the majority’s decision accepts the logic of the Attorney General in its entirety, but I do not believe this acceptance is justified by law nor commended to us by any practical considerations.

The majority reasons syllogistically that the Attorney General was properly in the case by reason of his statutory authority to “consult,” “advise,” and “assist” the State’s Attorney. (Ill. Rev. Stat. 1953, chap. 14, par. 4.) As chief law officer of the State, he has the common-law power to enter a nolle prosequi in a case where he is prosecuting officer and this power is not ordinarly subject to review by either the trial or Appellate courts. (People ex rel. Blliott v. Covelli, 415 Ill. 79.) Therefore, the majority reasons, the Attorney General here could exercise the same broad common-law powers to nol-pros without the consent of the trial court.

I believe the majority’s error lies in the failure to distinguish the Attorney General’s common-law role as chief legal advisor to the Crown, and his statutory role of assisting another constitutional officer, the State’s Attorney. To understand this distinction requires a consideration of the development of the doctrine of the common-law powers of the Attorney General. The leading Illinois case on the subject is Fergus v. Russel, 270 Ill. 304. This court there held in a four-to-three decision that the English common law was a part of the law of this State, and that by the constitution the Attorney General was vested with the common-law powers of the chief law officer of the Crown. It should be carefully noted that the question there involved the right of the Attorney General to represent State officers. There was no conflict or overlapping of the Attorney General’s function and that of any other constitutional officer. It was there pointed out that these common-law powers existed “except where the constitution or a constitutional statute may provide otherwise.”

In the Covelli case we relied on the doctrine of Fergus v. Russel in considering the common-law right of the Attorney General to enter a nolle prosequi in a case in which he was the statutory prosecuting officer. Again the case involved no conflict with any other constitutional officer with regard to his powers or duties. The Attorney General was there the only one entitled to handle the prosecution. (People ex rel. Elliott v. Covelli, 415 Ill. 79.) There we specifically noted that we were not dealing with a case in which the State’s Attorney was the ordinary public prosecutor.

I conceive this to be a vital distinction. We have clearly held that a State’s Attorney can nol-pros only with the consent of the court, and that the court’s discretion in this regard will not be reviewed by mandamus. (People ex rel. Hoyne v. Newcomer, 284 Ill. 315.) We have repeatedly noted that the State’s Attorney is also a constitutional officer, and the one to represent the people in matters affected with a public interest. (People ex rel. Kunstman v. Nagano, 389 Ill. 231.) The office of State’s Attorney was unknown to the English common law but was created by our constitution of 1848. On the other hand the constitution of 1848 did not provide for the election or appointment of an Attorney General, and from 1818 to 1870 every Attorney General of this State was an officer provided for by the legislature and regulated by it. However, in 1870, by the adoption of our present Illinois constitution, the office of Attorney General was created as a division of the executive department, and was given such duties as may be prescribed by law. From this history it is clear that the office of State’s Attorney in Illinois has been carved out of the common-law office of Attorney General and made an independent office. The two offices are separate and distinct, and the State’s Attorney has certain powers and certain duties which can neither be increased nor decreased by the Attorney General. (5 Am. Jur. p. 232.) Among the especial duties of the State’s Attorney is the prosecution of all criminal cases within his county. (Ill. Rev. Stat. 1953, chap. 14, par. 5.) In the exercise of this duty he cannot be supplanted by the Attorney General. (People v. Flynn, 375 Ill. 366.) In attempting to appraise the common-law powers of the Attorney General, the majority has overlooked the fact that we have two constitutional officers with a division of duties, pursuant to legislative enactment. While they are not necessarily mutually exclusive, the Attorney General and the State’s Attorney cannot be vested with equal authority in determining the course of criminal prosecutions within a county. The majority finds no conflict between the State’s Attorney and the Attorney General in the case at bar. I do not believe the record entirely bears this out. While the State’s Attorney made no objection to the attempted nolle prosequi of indictment 757, he ignored the attempted nolle prosequi of 755 and made a motion to remand defendant Moody to the sheriff on that indictment even after the filing of the nolle prosequi. If the majority ground their opinion on the common law, logically, they should hold that only the Attorney General has the power to determine if a nolle prosequi should be entered in any case. (See Regina v. Comptroller, 1 Q.B. 909 — C.A., cited by the Attorney General.) But this conclusion totally disregards the independent position of the State’s Attorney under our constitutional enactments. The majority’s willingness to accept the common-law powers of the Attorney General in a totally different constitutional and statutory setting creates a dilemma. But it can be easily resolved by accepting the Attorney General’s common-law powers when he occupies a traditional common-law role, and rejecting them when he occupies a distinct statutory role as one “assisting” the State’s Attorney. In Denham v. Robinson, 72 W. Va. 243, 77 S.E. 970, the Supreme Court of West Virginia was faced with an identical question. There, the prosecuting attorney, with the advice and consent of the Attorney General, had filed a nolle prosequi. It had been denied by the court. Recognizing the argument that the Attorney General had the common-law power to nol-pros, the court there denied the power of the prosecuting attorney and the Attorney General to nol-pros without the consent of the court, saying in language appropriate here: “So far as the Attorney General may undertake to exercise or control the powers and duties of the prosecuting attorneys we think that he is limited by the same rules of practice that control them. * * * We are of the opinion therefore, that the nolle prosequi attempted in this case derived no additional force, because concurred in or assented to by the Attorney General.”

I think that the conclusion reached by the West Virginia Court is especially sound here. The rights of the Attorney General, as one assisting the State’s Attorney, arise not under the common law, but by the acts of the legislature, pursuant to the constitution. In such a case, our attention ought to be directed to legislative intention rather than to the English common law. I regard as significant the legislature’s action in tabling the latest proposal of the Attorney General to permit him to conduct local criminal prosecutions. Senate Bill 108, 69th General Assembly; Tabled June 28, 1955.

Considering that this case involves a local criminal prosecution instituted and conducted by the State’s Attorney, and that the Attorney General first appeared in the case nine months after indictment and on the day set for trial, I cannot see why this case should not be governed by our decision in People ex rel. Hoyne v. Newcomer, 284 Ill. 315. In that case, at page 325, we said: “If a State’s Attorney has absolute and uncontrolled power to enter a nolle prosequi upon his official responsibility in one case, of course, he has the same power in two, three or four hundred, as in this instance; but we regard it as essential to the due administration of justice and the protection of the people by the enforcement of criminal laws that he should not have such power but the consent and approval of the court should be required.” I believe the same result should obtain here. In the case before us, the trial court and the State’s Attorney were in a much better position to determine the requirements of justice than either the Attorney General or this court. I consider it most unwise to permit either the State’s Attorney, or the Attorney General when he enters the case at the eleventh hour tq assist the State’s Attorney, to have the untrammeled power to dismiss a public prosecution. Even the limited record before us shows that the considerations of justice that motivated the late Judge Daniels to deny the motion to nol-pros arose long before the entry of the Attorney General’s appearance and could best be considered by the trial judge. There is greater danger to the public welfare in permitting the Attorney General’s executive fiat to completely control all criminal prosecutions in this State than would exist if such action was subject to the consent or approval of the court.


author: Mr. Justice Davis

text:
    (No. 33725.
    Frank E. Sweeting et al., Appellees, vs. Ruth Campbell et al.—(Ruth Campbell, Appellant.)

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      Berry & O’Conor, of Streator, for appellant.
    William Zwanzig, of Ottawa, trustee, Ernest A. Pool, guardian ad litem, and Costigan, Wollrab & Yoder, of Bloomington, for appellees Lelia S. Adams et al., and Chester Thomson and Joseph A. DePEw, both of Bloomington, for appellee Ruth T. Sweeting.
   Mr. Justice Davis

delivered the opinion of the court:

This is an appeal from a decree of the circuit court of La Salle County, dismissing the amended complaint to quiet title of plaintiff Ruth T. Sweeting, and dismissing the cross complaint of Ruth Campbell, defendant and cross plaintiff, for specific performance of a real-estate contract, and granting certain relief prayed for by defendants and cross plaintiffs Lelia S. Adams et al. The case was before this court on a prior appeal and the essential facts are stated in our decision whereby the cause was reversed and remanded with directions. Sweeting v. Campbell, 2 Ill. 2d 491.

After the remandment and redocketing of the cause, the circuit court permitted amendments to the pleadings. Lelia S. Adams et al. amended their answer and cross complaint by alleging that the original contract between the Sweetings and Ruth Campbell, “is null, void and incomplete and unenforceable in law or equity because it does not clearly and definitely provide the terms, maturities or the material conditions of a complete real estate sale and is therefore not enforceable.” The answer of Ruth Campbell was also amended by denying that the contract is in any way indefinite or uncertain. The answer of Ruth T. Sweeting to the cross complaint of Ruth Campbell, alleging that “the contracts are valid and binding” between the parties, denied those allegations and stated that she and her husband had the power to execute such contracts so far as the trust instrument was concerned. In the pleadings as amended, Ruth Campbell, the purchaser, contended that the contract of sale was a valid and binding contract, and the seller and beneficiaries of the trust took the position that the contract was unenforceable because not sufficiently definite and certain in material matters. The parties maintain the same position in their briefs and arguments presented on this appeal.

After remandment further evidence was presented by all of the parties and reported by the master to the court. The court found in substance that the original contract of sale was void and unenforceable because it was uncertain and incomplete in material elements and that the trust of May y, 1949, was valid, vesting title in Ruth T. Sweeting, as trustee, for purposes only of carrying out its provisions, which prevented her from entering into a valid contract of sale with the defendant Ruth Campbell; that said defendant was not entitled to specific performance of the real-estate contract but was entitled under a supplemental contract to cancellation of the original contract because of inability on the part of the vendor to give title.

Specific performance is not a matter of right, even where the contract is clear and unambiguous, but the remedy in each instance rests in the sound discretion of the court to be determined from all facts and circumstances. (Neuberg v. Clute, 6 Ill. 2d 58; Holsz v. Stephen, 362 Ill. 527; Tryce v. Dittus, 199 Ill. 189.) Such discretion, however, must not be arbitrary or capricious, and should be exercised after consideration of all circumstances of the case with the view of serving justice. Smith v. Farmers’ State Bank, 390 Ill. 374; Bennett v. Burkhalter, 257 Ill. 572; 49 Am. Jur. 13.

An examination of the provisions of the original contract reveals that only $500 is to be paid in cash. The entire balance of $69,500 is to be financed by obtaining a first mortgage for $39,500 and the giving of a second mortgage in the nature of a trust deed for $30,000 in favor of the seller. The contract does not specify a maturity date of either the first or the second mortgage. It provides only that the note secured by the second mortgage shall be due and payable on or before one year prior to the maturity date of the indebtedness secured by the first mortgage. The plaintiff and the defendants Lelia S. Adams et al. contend that the failure of the contract to provide for the maturity dates of the mortgages renders it void and unenforceable in equity. Cross plaintiff Ruth Campbell contends that this court disposed of that question adversely to said parties in its prior opinion.

The rule of law, pertaining to the certainty required in contracts where specific performance is sought, is well stated in 49 Am. Jur., pages 45 and 46: “The rules requiring certainty in a contract, in order to obtain relief by way of specific performance, are fully applicable where one seeks a decree of specific performance of a contract for the sale of land containing uncertain or indefinite provisions relating to a mortgage or note to be given as part of the transaction. Specific performance of a contract for the sale of real property will be refused when the provisions relating to the terms of a mortgage to be given in connection with the transaction are so uncertain or equivocal in their meaning that the intention of the parties in regard thereto cannot be determined. Failure to specify the amount of the mortgage has been held to render the contract too indefinite for specific performance, and in some cases the indefiniteness of the time for which the mortgage is to run has likewise rendered the contract unenforceable.” This court has held that where the amounts or maturities of the mortgages in such cases are uncertain or left to the future determination of the parties themselves, specific performance will be denied. (Daytona Gables Development Co. v. Glen Flora Investment Co. 345 Ill. 371; Sluka v. Bielicki, 335 Ill. 202; London v. Doering, 325 Ill. 589; Westphal v. Buenger, 324 Ill. 77; Zakrzewski v. Fisher, 278 Ill. 557.) This is true even though the party in question is prepared to make payment in cash, as the court will not make a new contract for the parties. (Westphal v. Buenger, 324 Ill. 77.) The contract must be enforced according to its terms or not at all. A court has no authority to compel a party to do something different from what he has agreed to do in his contract. Olson v. Forsberg, 332 Ill. 266; Westphal v. Buenger, 324 Ill. 77.

We are aware of decisions in other jurisdictions, and particularly in the courts of New Jersey, which hold that where a mortgage is to be given as part of the purchase price and the maturity date is not specified, it will be presumed to be payable on demand and specific performance will be decreed. (Annotation: 37 A.L.R. 365.) These cases represent a minority view, and the terms of the contract here involved repel such a conclusion since it is not logical to presume that both mortgages shall be payable on demand when the contract clearly states that one shall be due on or before one year prior to the other. The language of this court in Daytona Gables Co. v. Glen Flora Co. 345 Ill. 371, at page 399, pertinently applies to this case: “Though a contract in writing to convey real estate may clearly and definitely describe the property agreed to be conveyed, it cannot be specifically enforced if it does not give an absolute right to a conveyance without further negotiation thereon. In case of the failure of the contract to provide for the dates of maturity and the terms of the mortgages required to be given by the purchaser he will not be entitled to a specific performance though he offer to pay the entire purchase price in cash, as the contract provides for the taking of mortgages, and the court will not make a new contract for the parties though a cash payment may be considered more beneficial to the vendor.”

Cross plaintiff Ruth Campbell has contended that this issue was disposed of upon the prior hearing before this court. In discussing this point in our prior opinion we said: “Since neither party to the contract regarded this omission as an impediment to its performance, we believe that it was not such an objection as should have been raised by the court of its own volition.” (Sweeting v. Campbell, 2 Ill. 2d 491, 499.) Now, however, the question has been squarely raised by the pleadings of the parties and the issue was decided by the trial court upon the pleadings and the evidence produced. Upon this appeal, plaintiff Ruth T. Sweeting, the surviving seller, takes the position that the contract is void and unenforceable because of the material omissions. It can no longer be said that the parties to the contract did not regard the omission as an impediment to its performance.

We have considered the incompleteness and uncertainty of the contract sought to be specifically enforced, as well as other points raised by the pleadings and argued before us. Under the evidence in this case, we feel that the lower court in the exercise of sound legal discretion, was justified in denying specific performance of the contract.

Since we are of the opinion that the trial court properly denied specific performance for the reasons given, it is unnecessary to consider the questions raised pertaining to the validity of the trust. As between Ruth T. Sweeting and Lelia S. Adams et al., their rights under the trust were settled by a decree of the circuit court of McLean County and that decree is now final. (Sweeting v. Campbell, 2 Ill. 2d 491, 498.) Cross plaintiff Ruth Campbell has no interest in the trust property except as may arise under the real-estate contract in question. A denial of specific performance to Ruth Campbell disposes of her interest in the cause and concludes this litigation since she was the only party appealing from the decree entered by the trial court.

The decree of the circuit court of La Salle County is affirmed.

Decree affirmed.


text:
    (No. 33733.
    The People of The State of Illinois, Defendant in Error, vs. Rocco Maurantonio, Plaintiff in Error.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      Frank A. McDonnell, of Chicago, (Louis A. Rosenthal, of counsel,) for plaintiff in error.
    LaTham CastlE, Attorney General, of Springfield, and John Gutknecht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. JanEga, and Francis X. RilEy, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

This case comes to us by writ of error to the criminal court of Cook County. Rocco Maurantonio, defendant, was indicted on December 4, 1953, for the murder of one Francisco Campanelli. He was tried by a jury, found guilty of murder, and sentenced to 18 years in the State penitentiary.

It is conceded that the defendant shot and killed Campanelli, but defendant contends here, as in the trial court, that in the heat of a fight, believing himself to be endangered of life and limb, he shot the deceased in defense of his father and in self-defense. The occurrence witnesses were all of Italian descent, and some spoke broken English. An interpreter was used for part of the testimony.

From the evidence it is undisputed that defendant and deceased had a fight; that deceased was running away to a car; that defendant shot three times with a 45-calibre pistol, the last two shots being from a distance of 35 feet and hitting deceased in the back of the head and causing his death.

The evidence of other facts surrounding the shooting is in dispute. One De Beilis owned a fish store adjacent to a liquor store owned by the father of the defendant. De Beilis testified that the defendant met the deceased in the fish" store about 6:30 P.M. on November 12, 1953. He stated that they started to fight over an argument concerning water in the basement of the liquor store and remarks deceased had allegedly made to the father of defendant. De Beilis, one La Bellarte, and deceased were associated in a plumbing business. De Beilis further testified that he broke up the fight and told deceased to leave. He then saw defendant coming from his father’s liquor store with a gun. He grabbed his arm; the first shot went into the sidewalk, while the others hit deceased as he was entering La Bellarte’s car about 35 feet away.

La Bellarte, a friend of deceased, testified to substantially the same facts as De Beilis. There was also testimony that defendant admitted that he shot deceased as he was running away from him.

The father of defendant testified that the fight was started by deceased in the liquor store; that only La Bellarte, the defendant, the witness and the deceased were present; that the deceased called the witness names, started to fight with defendant, and then went away with La Bellarte; that the deceased then came back alone, grabbed a beer bottle, threatened to kill defendant, and reached over the counter and hit defendant in the mouth with the bottle; that the defendant then got the gun from a desk and shot once; and that the deceased walked away, and defendant followed him to the door and fired two more shots.

Defendant, testifying in his own behalf, stated the story essentially as related by his father. He further testified that he drew the gun and started shooting because he saw deceased put his hand in his pocket; that he shot the second time because the deceased said he was going to get his gun from the car, and the defendant knew of the decedent’s bad reputation.

Evidence was also adduced to the effect that deceased’s general reputation was bad, and that of the defendant was good.

Defendant’s first contention is that he was denied a fair trial because the broken English of the State’s witnesses was incomprehensible; that the failure to provide a proper interpreter was a denial of due process. Because of defendant’s insistence that the testimony was so incomprehensible as to make abstracting difficult, we have gone to the original record. Upon a review of the entire record we feel that this contention is without substance. While some of the facts are in dispute, there is no question of the meaning of the individual witnesses on all material points. We further find no error in the decision of the trial court to dispense with the services of the interpreter. Defendant conceded in his brief that such a decision is generally within the discretion of the trial judge, and we think it clear that there was no abuse of discretion in the instant case. It further appears that counsel for defendant in the trial court was extremely well versed in the Italian language, and made no objection to either the translation of the interpreter nor to the action of the court in dispensing with his services. Cf. People v. Vitale, 3 Ill. 2d 99.

Defendant next contends that he was not proved guilty beyond a reasonable doubt. Since the fact of homicide is not disputed, the contention is that the evidence shows defendant to have shot and killed in self-defense. Our Criminal Code provides “If a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order. to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.” Ill. Rev. Stat. 1953, chap. 38, par. 367.

Here the evidence is clear and undisputed that defendant shot decedent in the back from a distance of 35 feet, while decedent was attempting to enter the car of La Bellarte. The only issues in dispute are whether the fight was in the fish store or the liquor store; whether the defendant or the deceased was the aggressor in the original fight; and the exact nature of the dispute that sparked the tragic brawl. While we believe that the jury was justified in believing the State’s witnesses that the fight was started by defendant in the De Beilis fish store, we regard these issues as obscuring rather than illuminating the case. As we view the evidence, the only determinative question is whether or not defendant was at the time he shot and killed deceased under a reasonable apprehension of losing his life or of suffering great bodily harm. (People v. Johnson, 2 Ill. 2d 165.) Whether a killing is justified under the law of self-defense is always a question of fact to be determined by the jury under proper instructions. People v. McClain, 410 Ill. 280; People v. Smith, 404 Ill. 125; People v. Jones, 312 Ill. 190.

If we assume the deceased to be the aggressor, then the facts of the case would be similar to those in People v. Jersky, 377 Ill. 261, where the deceased was admittedly the aggressor in a fight, but where he left and was returning to his home when he was shot and killed. At page 269 we said: “It is probably true that the deceased provoked the original altercation, but that does not help the defendant any because pursuit and killing after the deceased had abandoned the quarrel could not be self-defense.”

After reading the entire record, we feel that the jury was justified in finding that the defendant shot the deceased as he was leaving the scene of the original altercation, and that the killing was not necessary in order to save the defendant’s life, or to prevent the defendant from receiving great bodily harm. Under the law of this State, a person with reasonable apprehension of danger of losing his life or suffering great bodily harm has the right, in self-defense, to take the life of his aggressor. (People v. Johnson, 2 Ill. 2d 165.) In this case there was no evidence of any fact that could reasonably have been a foundation for defendant’s fear of immediate harm to justify the killing.

The only case cited by defendant for the proposition that the proof here is insufficient to sustain the verdict is Pilippo v. People, 224 Ill. 212. There we reversed for erroneous instructions and errors in the admission of evidence, pointing out that the evidence was close on the question of whether defendant shot as deceased was attacking him with a knife. We did not question the right of the jury to determine the fact of self-defense, but pointed out that, because of the disputed questions of fact, “the case was one which called for care and accuracy in directing the jury as to the law as well as in the admission of evidence.” We think that case is clearly inapposite here. In the instant case the record is clear that defendant shot the deceased in the back while in flight. No such close question arises.

Defendant also complains of an undue restriction of cross-examination and erroneous refusal to give certain instructions on behalf of the defense. We have carefully examined the rulings complained of on cross-examination, and find that the rulings were either proper or involved matters entirely immaterial to the issues in the case. We have also reviewed the entire body of instructions given the jury and find that the jury was accurately and adequately instructed as to the law of the case. The instruction offered by defendant on the character of deceased was misleading and improper. The jury was also sufficiently instructed on the hypothesis of innocence. We find no reversible error in the instructions taken as a whole. To justify a reversal of the verdict of a jury which has heard all the evidence, the error relied upon must either deny the defendant his substantial rights or materially prejudice his case before the jury. (People v. Jersky, 377 Ill. 261; People v. O’Brien, 277 Ill. 305.) Such is not the case here. Our comment in the Jersky case is equally applicable here. “On the record before us, nothing short of a miscarriage of justice could produce any other judgment, or any lighter punishment than this defendant has already secured.”

We find the conclusion inescapable that the defendant was guilty of murder and that he received a fair trial, free of prejudicial error. The judgment of the trial court is accordingly affirmed.

Judgment affirmed.


author: Mr. Justice Daily Chief Justice Hershey,

text:
    (No. 33634.
    The People ex rel. James T. Callahan, County Collector, Appellee, vs. Gulf, Mobile and Ohio Railroad Company, Appellant.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

      Hershey, C.J., dissenting.
    Gillespie, Burke & Gillespie, Louis F. Gillespie, and Hugh J. Dobbs, all of Springfield, (J. N. Ogden, of Mobile, Alabama, and W. H. Thomas, of Alton, of counsel,) for appellant.
    Fred P. Schuman, State’s Attorney, of Edwardsville, (Kenneth F. Kelly, of Edwardsville, of counsel,) for appellee.
   Mr. Justice Daily

delivered the opinion of the court:

Appellant, the Gulf, Mobile and Ohio Railroad Company, filed objections in the county court of Madison County to the county collector’s application for judgment and order of sale of real estate, delinquent for nonpayment of taxes for the year 1951. A motion by the collector to strike the objections was sustained and, thereafter, the court entered judgment against appellant for $18,578.38, the amount of tax paid under protest and embraced by the objections. The revenue being involved, appellant has perfected a direct appeal to review both the order striking its objections and the subsequent judgment.

The parties agree, as indeed they must, that the Revenue Act requires all valuations upon which tax rates are developed and extended to be at full, fair cash value. (Ill. Rev. Stat. 1951, chap. 120, pars. 501, 502.) By its stricken objections, appellant, whose property was assessed at State level along with other railroads, alleged that its own property has been assessed at full, fair cash value but that it had been excessively and illegally taxed when locally assessed property in the county was fraudulently and intentionally undervalued at less than full, fair cash value. The objections further alleged that the fraud was brought about when the county assessor knowingly assessed local property “upon a valuation not to exceed 10.2 per cent of the full, fair cash value;” when the county board of review knowingly closed and certified the tax lists and books without revising the general level of assessments; and when the Department of Revenue, which section 146 of the Revenue Act charges with the duty of lowering or raising the total assessed value of property certified by any county so that property will be assessed at its full, fair cash value, knowingly and intentionally fixed an equalization rate, or multiplier, at “a percent which would produce a debased equalized and assessed valuation of not to exceed 60% of the full, fair cash value of locally assessed property.” Appellant objected against paying taxes on rates higher than would have been developed if locally assessed property had been at one hundred percent full, fair cash value in the taxing formula by which rates were computed. Translated into figures, it is appellant’s contention that because locally assessed property was fraudulently and intentionally valued at less than full, fair cash value, the resulting increase in rates caused its tax bill of $45,017.81 to be excessive by $18,578.38.

Some question is raised as to whether appellant, who admits that its own property was correctly assessed, has pursued the proper remedy. We find, however, that this court has observed on several occasions that since valuations must be the result of honest judgment and not of mere will, it follows that an assessment may be impeached both when fraudulently made at too high a rate, and when fraudulently made at too low a rate. (People’s Gas Light and Coke Co. v. Stuckart, 286 Ill. 164, 174; Chicago, Burlington & Quincy Railroad Co. v. Cole, 75 Ill. 591, 594.) Further, in a long line of cases, it has been held that the question of discrimination in assessments may properly be raised on an application for judgment for delinquent taxes. (See: People ex rel. Ross v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co. 381 Ill. 58, 61, and cases there cited.) Here the essence of appellant’s objections is that there was a fraudulent discrimination resulting from the undervaluation of locally assessed property which had the effect of denying appellant equal protection of the Revenue Act, and of subjecting it to taxation lacking in both constitutional and statutory uniformity. We conclude that a proper remedy has been pursued.

Under section 1 of article IX of the Illinois constitution, the courts, in the absence of fraud, have no power to review or determine the value of property fixed for purposes of taxation by the administrative officers to whom such function has been delegated. (People ex rel. Tedrick v. Allied Oil Corporation, 388 Ill. 219; Keokuk & Hamilton Bridge Co. v. People, 145 Ill. 596; Spencer & Gardner v. People, 68 Ill. 510.) It is only when the valuation has been fraudulently made that it is subject to judicial review. (Kinderman v. Harding, 345 Ill. 237; People’s Gas Light and Coke Co. v. Stuckart, 286 Ill. 164.) In the latter regard, we have held that error in the exercise of honest judgment will not invalidate the tax, that fraud is never presumed, and that mere overvaluation is not sufficient to establish fraud. (People ex rel. Miller v. Chicago, Burlington and Quincy Railroad Co. 300 Ill. 399; Keokuk and Hamilton Bridge Co. v. People, 161 Ill. 514.) On the other hand, it is held that overvaluation may be so excessive, under some circumstances, as to justify the conclusion that it was not honestly made and that it was known to be excessive. In such cases courts will intervene to prevent a constructive fraud. (People ex rel. Rhodes v. Turk, 391 Ill. 424; Pacific Hotel Co. v. Lieb, 83 Ill. 602.) Where an assessment is sought to be impeached for fraud, the burden is on the objector to show either actual fraud by clear and sufficient evidence, or to show that an assessment is SO' grossly excessive as to amount to evidence of fraud and an indication that the taxing authorities, in making the same, wilfully and intentionally discriminated against the said objector. (People ex rel. Tedrick v. Allied Oil Corporation, 388 Ill. 219; People ex rel. Johnson v. Robison, 406 Ill. 280.) Although the foregoing cases speak only in terms of fraudulent overvaluation of property, we are of the opinion that logic and justice require that the same established principles apply where an assessment is sought to be impeached on the grounds of fraudulent undervaluation. Cf. Coulter v. Louisville & Nashville Railroad Co. 196 U.S. 599, 49 L. ed. 615; Sundry Lake Iron Co. v. Township of Wakefield, 247 U.S. 350, 62 L. ed. 1154; Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 67 L. ed 340.

The first question which presents itself is whether, in light of the principles enunciated in the cited cases, appellant’s objections sufficiently charged either actual or constructive fraud. Insofar as actual fraud is concerned it is elementary that it devolves upon the party claiming it to state the facts relied upon as constituting it. (Sterling Gas Co. v. Higby, 134 Ill. 557; Sanitary District v. Gifford, 257 Ill. 424; Anderson v. Anderson, 339 Ill. 400.) In the objections before us the various steps taken by the taxing authorities are set forth and, in general terms, are alleged to have been fraudulent, wrongful and illegal. Bearing in mind, first, that mere overvaluation or undervaluation is not sufficient to establish fraud and, second, that the presumption obtains that the transactions assailed by appellant were done in good faith and with honest motives, it is apparent that such general charges, unaccompanied by any facts showing fraudulent or dishonest actions or motives, are mere expletives and conclusions of the pleader and are not good pleading. As such, the charges were not admitted by the collector’s motion to strike and the trial court properly held that the objections failed to sufficiently charge actual fraud. Owens v. Green, 400 Ill. 380; People ex rel. Parker v. Board of Appeals, 367 Ill. 559; Sanitary District v. Gifford, 257 Ill. 424; Fogg v. Blair, 139 U.S. 118, 35 L. ed. 104.

Considering next the question of whether appellant’s final pleading is sufficient to make a showing of constructive fraud, we find it alleged generally that locally assessed property was valued, assessed and equalized at not exceeding sixty percent of its full, fair cash value, whereas appellant’s property was assessed and equalized at the full, fair cash value thereof. By means of a schedule, drawn by appellant and incorporated into the objections, it is specifically alleged that the full, fair cash value of all locally assessed property amounted to $827,453,141 for the year 1951, but that all of such property had been placed on the Madison County tax rolls for that year in an amount totalling only $496,471,885. The same schedule bears the allegation that the full, fair cash value of appellant’s property was $2,302,180. It is appellant’s contention that the 330 million dollar discrepancy in the reckoning of locálly assessed property values is so gross as to' demonstrate that the taxing authorities could not have been honest in their valuation, thus entitling appellant to relief from a constructive fraud. We are of the opinion, however, that the rule of law contended for cannot be applied to the case made out by the bare allegations of value relied upon.

It is alleged that “locally assessed property was not assessed at its full, fair cash value.” Standing alone this is but a conclusion of the pleader. We have the further allegation, however, by means of appellant’s schedule, that the full, fair cash value of locally assessed property was $827,452,131. For all that appears in the objections, the figure alleged by appellant has been arrived at by the mechanical process of recomputing values on the basis of the bare conclusion that the equalized assessed valuation arrived at by the taxing authorities represented but sixty per cent of the full, fair cash value of locally assessed property. In the absence of facts showing a basis, such a mechanical increase in the values fixed by the taxing authorities is itself merely a conclusion of the pleader. There are no facts alleged which either afford a basis for accepting the allegation that local property was assessed at other than its full, fair cash value, or which would permit a court to make the comparison in values the appellant seeks to draw.

It is our conclusion, therefore, that the objections do not state sufficient facts to make out a case of constructive fraud, within the meaning of the authorities relied upon by appellant, and we hold that the county court was justified in sustaining the motion to strike them. Accordingly, its judgment is affirmed.

Judgment affirmed.

Chief Justice Hershey,

dissenting:

To deny a hearing on the merits because of a pleading defect seems to me violative of both the letter and spirit of modern procedural statutes and rules of practice. As a result of both legislative enactment and prior judicial opinion, this court is committed to the position that pleadings are to be liberally construed with a view of doing substantial justice between the parties.

Section 235 of the Revenue Act of 1939 requires a taxpayer to specify “the particular cause of objection” and directs the court to “determine the matter in a summary manner, without pleadings, and * * * pronounce judgment as the right of the case may be.” To determine the sufficiency of a tax objection from a “pleading” standpoint, one must consider whether it adequately informs the court and opposing counsel of the defense relied upon. (People v. Chicago, Burlington and Quincy Railroad Co. 281 Ill. 500, 503; People v. Shortall, 287 Ill. 150, 151.) In the instant case I do not understand how there could have been the slightest doubt as to the nature of the defense. If the objection were more explicit it doubtless would be subject to the criticism of alleging evidentiary facts.

A case directly in point is People v. K. and H. Bridge Co. 287 Ill. 246, where this court stated at pages 250-1: “There was a legal objection to the amount of the tax, which the appellant had a right to prove, and the court erred in striking it from the files. That objection was that the property was arbitrarily, knowingly and fraudulently assessed at its full market or cash value while all other property was arbitrarily and knowingly assessed at about forty per cent of such value in accordance with an established rule and long custom for assessing property. * * * It is sufficient for an objector to show such willful and intentional violation of the constitutional provision, and where an assessment shows a very great disparity and discrimination, which could not reasonably have arisen from an error of judgment, the courts will give relief. * * * The objection showed such alleged disparity and discrimination between the full cash value of appellant’s property and the valuation of forty per cent of such cash value of all other property, and the appellant had a right to prove the objection.” I say the same in this case — the appellant had a right to prove the objection.


author: Mr. Justice Maxwell

text:
    (No. 33739.
    Russell E. Smith et al., Exrs., Appellants, vs. John B. Carlson et al., Appellees.

      Opinion filed January 19, 1956
    Rehearing denied March 19, 1956.

    Hoover & Scheele, of Chicago, (John E. Hoover, of counsel,) for appellants.
    Lawrence S. Adler, of Chicago, for appellees.
   Mr. Justice Maxwell

delivered the opinion of the court:

Petition for leave to appeal from a judgment of the Appellate Court affirming the order of the circuit court of Cook County dismissing a scire facias proceeding to revive a judgment has been granted. The issue presented here on appeal is whether a judgment may be revived in a scire facias proceeding where the affidavit for revival of the judgment by scire facias has been filed and the original scire facias writ has been issued before the expiration of the twenty-year limitation period but an alias scire facias writ, with a return date after said limitation period, has been issued after the expiration of the twenty-year period.

The statutory provision in question is to be found in section 25 of the Limitations Act (Ill. Rev. Stat. 1953, chap. 83, par. 24b,) which follows:

“Judgments in any court of record in this State may be revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, and all existing and future amendments thereto, or a civil action may be brought thereon within twenty years next after the date of such judgment and not after; and the provisions of the foregoing section shall apply also to this section:

Provided, however, that actions to revive judgments in any court of record in this State by scire facias shall be commenced by affidavit of the judgment creditor or creditors, his or their agents, attorneys or assigns, setting forth a description of the original judgment by title of the action, date and amount thereof, together with a statement of any partial satisfaction of such original judgment that may appear of record at the time of making such affidavit, also setting forth a written designation of the return day for the writ.

“The Clerk of such Court shall file such affidavit as a separate action which shall be ancillary to the action in which the original judgment was entered. Upon the entry of a judgment of revivor execution may be issued in the scire facias action. Upon the commencement of any action to revive a judgment by scire facias in a court of record in this State the clerk of such court shall enter upon the Judgment Docket record of the original judgment, a notation of the commencement of such scire facias action, setting forth the date and number of such scire facias action, and, upon the entry by the court of a judgment of revivor in any scire facias action such clerk shall enter upon the judgment docket record of the original judgment, a notation of the entering of such judgment of revivor setting forth the amount, date and general number thereof.”

The appellant contends that this statute makes no distinction between scire facias and an action on the judgment in permitting the revival of a judgment if the action is “brought” within twenty years next after the date of the original judgment, and the new judgment, in either proceeding, may be entered before or after the expiration of the twenty-year limitation period. The appellee argues that a scire facias proceeding to revive a judgment is merely a continuation of the old action to revive the judgment just as it formerly existed and the revivor must be before the judgment expires, that is, within 20 years next after the date of the judgment. The Appellate Court adopted the latter view.

We cannot agree with this interpretation of this statute. In Vol. 34 of Corpus Juris, sec. 1023b of Judgments it is stated: “The limitation of the time of bringing proceedings for the revival of a judgment begins to run from the rendition of the judgment, or other time specified by statute, and unless the statute is interrupted by some sufficient cause the right to institute the proceeding will expire on the last day of the statutory period, or, if that day is dies non, on the next succeeding business day. But, except in some jurisdictions where the statutes expressly limit the time for making or rendering the order or judgment of revivor, as distinguished from the commencement of the proceedings, the statute is saved by beginning the proceedings within the limited time, although the judgment of revivor does not follow until after its expiration.” Among the cases cited there was Thomas v. Towns, 66 Ga. 78, which is based on a statute similar to ours. The court there stated: “Code Sec. 2914 provides that ‘dormant judgments may be revived by scire facias or be sued on within three years from the time they become dormant.’ Two remedies are thus provided — one by scire facias and one by suit on the judgment. The latter remedy may be commenced within three years from the dormancy of the judgment. This is the limitation expressly fixed, and we can see no reason why, if instead of bringing suit the plaintiff elects to proceed by scire facias he has not the same limit in which to commence his suit thus to revive. To hold that a judgment of revival must be had within the period of three years from the dormancy of the original judgment would, we think, be a construction unprecedented in all limitation laws.”

We see no reason why there should be any distinction between the two concurrent remedies for the revival of a judgment provided by our statute and we do not believe the legislature intended any such distinction. Our statute provides “Judgments * * * may revived by scire facias, or by ordinary civil action in lieu of scire facias as provided by the Civil Practice Act, * * *.” Section 55 of the Civil Practice Act, provides: “It shall not be necessary to use a writ of scire facias, but any relief which heretofore might have been obtained by scire facias may be had by employing an ordinary civil action at law.” (Ill. Rev. Stat. 1953, chap, no, par. 179.) The legislature apparently regarded a scire facias proceeding and the civil action in lieu thereof as concurrent and identical remedies.

The second paragraph of our statute, (Ill. Rev. Stat. 1953, chap. 83, par. 24b,) also seems to negate the contention that the scire facias revival must be made before the expiration of the limitation period. It is noted that it is provided therein that “Upon the commencement of any action to revive a judgment by scire facias * * * The clerk of such court shall enter upon the Judgment Docket record of the original judgment, a notation of the commencement of such scire facias action,” [emphasis ours,] and further provides for the subsequent entry of a notation of the entry of the judgment of revivor. If, as contended .by appellee, the commencement of the scire facias proceeding has no effect upon the running of the statute, its entry upon the judgment docket of the original judgment would be a useless act. It would seem rather that the legislature intended this entry to be made as notice that the revival proceeding has been commenced and the running of the statute of limitations was suspended.

Neither of the two decisions of this court cited in the Appellate Court opinion, Smith v. Stevens, 133 Ill. 183, and Bank of Edwardsville v. Raffaelle, 381 Ill. 486, concern the question now before us and nothing in our opinion here is inconsistent with those decisions.

The judgment of the Appellate Court of the First District is reversed and this cause is remanded to the circuit court of Cook County for further proceedings in accord with this decision.

Reversed and remanded, with directions.