text:
    Muriel G. Filko, Plaintiff-Appellant, v. Vladimir Filko, Defendant-Appellee.
    Gen. No. 54,241.
    First District.
    June 12, 1970.
    Rehearing denied July 21,1970.

      George B. Collins, Alan O. Amos, and Jeffrey Schul-man, of Chicago (Collins & Amos, of counsel), for appellant.
    Benjamin B. Davis and Muller Davis, of Chicago (Davis, Boyden, Jones & Baer, of counsel), for appellee.
   ALLOY, J.

This is an appeal from a decree of the Circuit Court of Cook County in a proceeding filed as an action for separate maintenance and, in the alternative, for divorce by plaintiff Muriel G. Filko as against defendant Vladimir Filko.

The record discloses that the parties to this cause through their attorneys negotiated for about two years and finally reached an oral agreement for settlement which was agreed to by both parties and confirmed by testimony in open court before the trial judge. Before the written decree was entered, the plaintiff Muriel G. Filko retained a new attorney who appeared at the time the decree was to be entered. He objected, on behalf of plaintiff, to the entry of the decree. The trial court did not allow the plaintiff’s new attorney to enter an appearance as plaintiff’s counsel at that time. Thereupon, the decree was entered. Plaintiff’s new attorney, within a period of 30 days, later moved to vacate the decree. Such motion was denied.

Plaintiff’s action for separate maintenance or, in the alternative, for a divorce, was filed in June 1967. Negotiations with respect to this domestic conflict were carried on for approximately two years on questions of property settlement, alimony and support payments. When the cause came to trial on April 14, 1969, plaintiff was represented by attorney Salita. Plaintiff had been represented previously by two different attorneys in the proceeding. Following nearly six hours of conferences on April 14, 1969, in which the parties, their attorneys and the trial judge participated in some manner, an agreement was reached by the parties. Plaintiff and her attorneys acquiesced in the terms of the agreement. The cause then proceeded as a divorce case, and proof was made by plaintiff of the physical cruelty by defendant. Each provision of the agreed property settlement and the proposed provisions of the decree for support, alimony, and other provisions were verified in testimony given by plaintiff in open court on April 14, 1969.

By reason of the fact that the agreement was reached on April 14, 1969 (the day of the hearing) the decree had not been prepared so that the parties met again on April 25, 1969, before the trial court, for the purpose of having the written decree entered. At this time, plaintiff appeared in open court with the new attorney, a Mr. Collins, and attorney Collins requested that he be substituted as attorney for plaintiff in place of Mr. Salita. Mr. Salita refused to withdraw and the trial judge refused to substitute Mr. Collins as an attorney for plaintiff at this time. The divorce decree, which had been prepared by the attorney for defendant and examined by Mr. Salita, was presented, and plaintiff’s new attorney, although not her attorney of record, objected to the entry of the decree. This attorney, Mr. Collins, offered to present proof that plaintiff was emotionally imbalanced when she orally consented to the decree and that she did not understand the provisions of the decree. The court permitted the new attorney to make this offer of proof. The attorney also offered to show that the 18-year-old son of the parties to the divorce action was suffering from a permanent mental illness as a result of taking LSD and that this son was inadequately provided for in the decree. At this hearing, attorney Collins also offered to prove that defendant was worth more financially than the facts previously presented disclosed and that, as a result, the plaintiff’s property settlement was inadequate. The attorney stated that he had information to show that defendant owned 37%% of a company that made one million dollars in the prior year. The attorney also stated that plaintiff withdrew her consent to the decree. The trial judge stated several times that he would permit Mr. Collins to make his record, but would not permit him to introduce any testimony in the state of the record. The petition which was prepared and later filed by attorney Collins set forth the objections to the entry of the decree and was made a part of the transcript of the hearing of April 25, 1969. The decree was entered by the Judge on April 25, 1969, following the discussion between the attorneys and the trial judge. Thereafter, on April 29, 1969, there was a hearing fixing fees for plaintiff’s attorney, Mr. Salita.

On May 7, 1969, attorney Collins filed a motion to vacate the decree for divorce alleging that the written decree varied from the oral agreement of the parties in several respects such as the alimony provisions, insurance policies for the two children’s education, and provisions as to defendant leaving a portion of his estate to the two children of the marriage. This petition also repeated the matters relating to the 18-year-old son of the parties and the alleged understatement of the financial condition of the defendant. A hearing on the motion to vacate was held on May 15, 1969, with attorney Collins, attorney Salita, and defendant’s attorney all present. While no testimony was permitted, attorney Collins made an offer of proof as to his allegations in the motion to vacate the decree. The motion to vacate the decree was denied.

The first question before this Court is whether the trial judge committed reversible error in not permitting plaintiff’s new attorney, Mr. Collins, to file his appear-anee on April 25, 1969, at the time the hearing was held to have the written decree entered. Plaintiff contends, in this connection, that she had a right to be represented by an attorney of her own choosing and that she could substitute attorneys at any time. It was the contention of plaintiff that when the court continued to recognize Mr. Salita as attorney for the plaintiff, the court committed reversible error. On appeal in this Court, plaintiff cites a number of Illinois cases in support of the contention that plaintiff had the unlimited right to retain new counsel. In Price v. Seator, 337 Ill App 248, 85 NE2d 848, at 258, the court indicated that a litigant has the unquestioned right to discharge an attorney at any time, with or without cause, subject only to his obligation to compensate an attorney without fault for services theretofore rendered. This case, however, does not deal specifically with the right to substitute attorneys but rather the question of whether an attorney had a right to compensation after being discharged by the client. There were similar considerations in Pressney v. Pressney, 339 Ill App 371, 90 NE2d 119, and Miller v. Solomon, 49 Ill App2d 156, 199 NE2d 660.

The cases in this State, however, do indicate that the right to substitute counsel is not an absolute right. As pointed out in the case of People v. Franklin, 415 Ill 514, 114 NE2d 661, where the court denied the motion for substitution of a new attorney for defendant and proceeded to trial (at pages 516-17):

“The right of a client to discharge his attorney at any time, or to substitute attorneys at any stage of a proceeding either with, or without cause, is well established. (See: 7 CJS, Attorney & Client, sec 119.) It is not, however, a right so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice. To hold otherwise would enable a defendant in a criminal proceeding such as this, to delay his trial until he had exhausted his capabilities of hiring different counsel and to thus harass and delay the effective prosecution of crime.”

In the case of People v. Franklin, supra, the court concluded that defendant’s case was not prejudiced and that there was no abuse of discretion in the refusal of the trial court to allow the substitution of attorneys before proceeding with the trial. To the same effect is People v. Mueller, 2 Ill2d 311, 118 NE2d 1. We consider it significant that both the Franklin and Mueller cases were criminal cases and that in such cases the right of the accused to the attorney of his choice is guarded even more closely than in civil matters. A trial judge has discretion in allowing substitution, and if substitution of counsel would unduly prejudice the other party or interfere with the administration of justice, the decision of the trial judge in refusing to allow such substitution should foe upheld unless there is an abuse of such discretion. The court should also give consideration to whether the party seeking the substitution would suffer by reason of the prosecution of the lawsuit through a refusal to allow the substitution.

In applying these tests to the case before us, it is clear that the trial judge did not abuse his discretion in refusing to allow plaintiff to substitute counsel on April 25, 1969, the time when the decree was to be entered. An agreement involving the divorce decree had been agreed upon orally by the plaintiff while she was represented by Mr. Salita. There was no showing that Mr. Salita was at fault in any way at the time in his representation of the plaintiff. Everything which was required to be done had been completed in the divorce action and if a decree had been ready it would have been entered at such time. All that was required to con-elude the proceeding, which had been orally agreed upon and stipulated to in open court by the parties, was the entry of the written decree. To permit a new attorney to step in and represent the plaintiff at this stage of the litigation and thereby attempt to withdraw plaintiff’s consent, would obviously interfere with the administration of justice and would be unfair to the defendant. "Unless a plaintiff could show some valid reason for substitution of attorney at this stage of the proceedings, there would be no basis for setting aside the determination of the trial judge in refusing the request for substitution of attorneys.

In Savich v. Savich, 12 Ill2d 454, 147 NE2d 85, a request for substitution of attorney had been made before the hearing began and the old attorney agreed to withdraw. Plaintiff in that case stated that she did not trust her present attorney but the court made her proceed with the old attorney even though the old attorney offered to withdraw. In that case the trial judge was properly reversed for failing to allow the substitution. In the cause before us, there is no showing of any prejudice to plaintiff by refusal of the court to allow her new attorney to file his appearance and proceed as counsel for plaintiff. There was no showing of any misconduct on the part of plaintiff’s attorney, Mr. Salita. Plaintiff’s new attorney did not show where he could have presented anything new which would have aided plaintiff’s case at the stage of the litigation when he sought to be substituted. Plaintiff had already consented to the terms of the decree in open court and she could not change her consent merely by changing attorneys (In re Estate of Moss, 109 Ill App2d 185, 248 NE2d 513). The trial judge allowed Mr. Collins to make a record at the time the decree was entered and to make an offer of proof. He was also permitted to appear later at a hearing on fees and eventually he was substituted as plaintiff’s attorney when he filed a motion to vacate the decree. The attorney she desired, therefore, participated as attorney for plaintiff and did virtually anything he could have done if he had been subsituted as plaintiff’s attorney of record on April 25, 1969. In view of the record and on the basis of the Franklin case we do not feel that this Court would be justified in interfering with the discretion exercised by the trial court since there was no showing of prejudice to plaintiff in this cause.

We also feel that there was no error in the entry of the decree in this cause in light of the objections made by Mr. Collins as counsel for plaintiff. Plaintiff offered to prove that, at the time she orally assented to the decree while testifying in open court, she was in the state of emotional imbalance and did not understand the settlement. This contention was general in nature and was not sufficient cause to require the trial judge to refuse to enter the decree. The trial judge personally talked for several hours to plaintiff on the day she testified and gave her verbal agreement to the proposed decree. The trial judge stated for the record, “I want the record to show that I talked at great length with Mr. Filko, that I talked at great length with Mrs. Filko, prior to the hearing.” Based upon the extended conversations which the trial judge had with the plaintiff on the day of the hearing and his observation of Mrs. Filko, we do not believe that the objection of plaintiff that she was emotionally imbalanced at the time she testified could be an appropriate basis for a contention that the trial judge had abused his discretion in entering the decree. The record of her testimony shows no indication of any emotional imbalance and the trial judge had the opportunity to observe her conduct and talk with her at length (prior to her testimony) and the determination of the trial judge that plaintiff was of sufficient state of mind to understand the matters to which she testified should not be disturbed.

As we indicated in the course of this opinion, plaintiff also contended that it was error to enter the decree of April 25, 1969, since it did not properly provide for the future support of the 18-year-old son who was permanently ill as a result of the use of LSD. The statements by the trial judge, which appear in the record, show that the trial judge was familiar with the problems involving the 18-year-old son of the parties and had discussed them with plaintiff and her attorney prior to the hearing. The trial judge had stated for the record that Mrs. Filko had given him this information in confidence on April 25, 1969, and that she did not wish it to appear in the record. The provisions for the 18-year-old son appear to be fair and the testimony of Mrs. Filko that such provisions were agreeable to her and the fact that the trial judge stated that he was familiar with the problem in talking with Mrs. Filko, make it clear that there should be no basis for setting aside the decree on the issue of the question of support for the 18-year-old son. An important consideration in this respect is the fact that the court retains jurisdiction over the boy while he is a minor and that the divorce decree does not alter the fact that the boy is defendant’s son and that defendant has a responsibility to care for him. If more money is needed for support of the son, plaintiff can come back into court and request such additional sum on a proper showing.

At the April 25 hearing, Mr. Collins the new attorney for plaintiff offered to prove that defendant owned 37%% of a company which made over a million dollars in 1968. The financial status of defendant was one of the major concerns of plaintiff over the nearly two years of pretrial proceedings in connection with the divorce. Pretrial discovery was extensive by each of the three attorneys who previously represented plaintiff. Defendant’s deposition was taken four times, and the depositions covered questions about defendant’s assets, defendant’s income from 1955 through 1968, and included an examination of his income tax returns. There was inquiry into defendant’s bank accounts and his expenses for business and travel. Defendant was employed by and involved in the ownership of two closely held corporations. Defendant’s involvement in these two corporations was gone over thoroughly prior to trial and pretrial discovery covered such matters as a stock-purchase agreement, insurance on defendant’s life, retirement funds and defendant’s salary. The deposition of the comptroller of one of the corporations was taken and the court allowed discovery of virtually every aspect of defendant’s contact with such corporation. The only discovery which was denied to the plaintiff concerned salaries of employees of the corporation, other than defendant’s salary and other affairs of the corporation which did not involve the defendant. Defendant submitted a financial statement under oath showing his assets as of December 31, 1968. The statement appears to be in line with facts elicited by various discovery procedures. There were no facts specified as to what attorney Collins could show and there was only a general statement that he had learned of an increase in defendant’s net worth. If there were any such facts which could have been directed to the court, they should have been presented in detail in his pleading. Since there were no such facts alleged, the trial judge committed no error in refusing to defer the signing of the decree because of this offer of proof.

There is a contention by plaintiff that the facts in the instant case are similar to those in James v. James, 14 Ill2d 295, 152 NE2d 582, where a property settlement which had been worked out at a conference between the parties, their attorneys and the trial judge was set aside by the Supreme Court. In that case, the settlement was hastily contrived and the appellant manifested her dissatisfaction with the offer which was made to her. In that case, there was a misrepresentation made (by the defendant) as to the status of assets and also as to her position with respect to a home (which was owned in joint tenancy) where it was represented she would have no equity unless she had worked and contributed to the purchase price. In the cause before us there was no showing of any misconduct or misrepresentation on the part of attorneys or anyone of the type found in the James case. In the cause before us, neither plaintiff’s own attorney nor the trial judge coerced the plaintiff in any manner into making settlement.

The cause before us is more in line with the case of Browning v. Browning, 350 Ill App 502, 113 NE2d 182. While that case is published only in abstract form, an examination of the full opinion discloses that the wife attempted to set aside a decree alleging many of the same contentions that plaintiff has alleged in the instant case, including impairment of her ability to comprehend what was transpiring when she testified at the hearing and dissimilarities between the written decree and her understanding of the terms. The Appellate Court, on appeal in the Browning case, stated that the wife argued that when new counsel was retained by her and appeared on January 21, 1952 hearing, the court was without authority to enter the decree even though other counsel had consented to it. The court rejected this contention and stated specifically:

“There is no public interest involved in setting aside this decree in order that the wife may continue to exact her efforts to obtain more than was agreed to at the time of the divorce hearing.”

On the basis of the record in the cause before us, we believe that this should be the conclusion of this court on review. We would not be justified in reaching a contrary conclusion on the basis of the record.

We should note that the offer of proof by plaintiff’s new attorney sufficiently informed the court of what plaintiff’s witnesses would testify to, so that it was not necessary for the court to hear evidence on the motion to vacate the divorce decree. Since the trial judge was familiar with all the matters that plaintiff wished to present in support of his motion it could hardly be said that the court was in error in refusing to allow the plaintiff to present witnesses to establish such facts as were referred to by the attorney in the petition (Heldt v. Watts, 329 Ill App 408, 415, 69 NE2d 97). There was no showing that the witnesses would testify as to anything more than was specified in the offer of proof.

The motion to vacate the decree referred to “misstatement” of defendant’s net worth, which plaintiff’s attorney had learned from information as to increased sales of the corporation and changes in inventory. No fraud was specifically alleged and there was no basis for allowance of the motion to vacate on the strength of such general allegation (Horan v. Blowitz, 13 Ill2d 126, 133, 148 NE2d 445). Most of the matters raised in the motion to vacate involved nothing new as to such issues. There was no showing of any newly discovered evidence and there was no showing that evidence which would have been presented could not have been obtained prior to the April 14 hearing. On such basis, the refusal of the court to vacate the decree was proper (Van Dam v. Van Dam, 21 Ill2d 212,171 NE2d 594).

Any discrepancies which might have existed between the understanding of the parties as to a settlement and to testimony of plaintiff at the hearing at which the decree was entered were of such minor character as not to constitute grounds for vacating the decree. At the hearing plaintiff testified that she understood the alimony would terminate if she died. The decree, in Paragraph 4, provided that if either plaintiff or defendant died, alimony ceased. In Paragraph 15, the decree provided for life insurance to pay the alimony if defendant died so that, in effect, there was no actual discrepancy. The circumstance, also, that the decree provides that the husband may claim the two sons as income tax deductions, even though not covered in the testimony at the hearing, is customary and is a matter which would not justify setting aside the decree. Only a few years would remain before the older boy was out of college and the deduction would not be substantial. The deduction for income tax purposes of $600 annually would be rather inconsequential and should not be a ground for reversal, particularly since plaintiff’s testimony did not cover this point at the hearing.

On appeal, an issue is raised as to whether there was an understanding that the children were to be protected as against defendant’s disposing of his property before his death by gifts or trusts. Plaintiff’s testimony at the hearing had indicated nothing with respect to setting aside at this time of a portion of defendant’s property for the benefit of the children. There was, therefore, no real variance between the testimony and the decree. There was also a contention that there was a variance between the decree and plaintiff’s testimony with respect to payment of college expenses for the two boys. There was a question of whether plaintiff could use life insurance policies that his father had purchased for the boys’ education in order to pay such college expenses. The point was covered at the hearing and the decree embodied the terms of such agreement. Plaintiff argued that it was wrong to provide in the decree that defendant had the right to approve the college attended as the defendant might designate a college which the child could not attend. This, however, is not a valid objection, since defendant would be required to be reasonable in his approval of a college.

On the basis of our examination of the record, we do not believe the plaintiff has shown any substantial variance between the terms of the decree and her oral agreement and testimony. The trial court in the instant case based the decree on the oral agreement and stipulation and testimony by parties in open court. The parties are bound by such stipulations unless it can be shown that the stipulations were unreasonable or resulted from fraud. The court will uphold such agreement. As indicated in In re Estate of Moss, 109 Ill App2d 185, 248 NE2d 513, before a written agreement was signed by the parties in the Moss case, one of the parties to the stipulation appeared in the cotirt with a new attorney and requested the court to reconsider the oral stipulation since she did not understand the stipulation and had not given her former attorney the authority to make such agreement. The court in that case said (at 192-193):

“The reviewing courts of this state have consistently held that stipulations by parties or their attorneys affecting the conduct of suits will be enforced, unless there is proper showing that any stipulation is unreasonable, violative of public morals or the result of fraud. . . . ‘Thus, a party to a pending litigation may waive, by stipulation, his statutory or constitutional rights and the court will hold him bound by such stipulation.’ People v. Spring Lake Dist., 253 Ill 479, 492, 97 NE 1042. . . Stipule tions are looked upon with favor by the courts, since they tend to promote disposition of cases, simplification of issues and the saving of expense to litigants. The ends of justice are furthered by stipulations of settlement and the reluctance of courts to vitiate such agreements is well founded in fundamental logic. ‘Parties will not be relieved from a stipulation in absence of a clear showing that the matter stipulated is untrue, and then only when the application is seasonably made.' Brink v. Industrial Commission, 368 Ill 607, 15 NE2d 491, 492.”

The stipulation in the present case was fair and there was no showing of any fraud. In absence of a showing that her previous attorney was not properly representing her, it is certainly clear from the record that such representation was proper in all respects and that the decree of the trial judge should be affirmed. The stipulation was voluntary, valid, binding and enforceable. In the words expressed in the Moss case, supra, “There must be a point of no return — a moment of finality— in all litigations. This case is no exception.”

The decree of the Circuit Court of Cook County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Amy Sarro, Plaintiff-Appellant, v. Thomas Maupin, Avis Rent-A-Car, Paul Groke and The National Education Association of the United States, Defendants-Appellees.
    Gen. No. 54,245.
    First District.
    June 12, 1970.

      Davis, Dietch & Ryan, of Chicago (Arthur F. Cichorski, of counsel), for appellant.
    P. Sveinbjorn Johnson, Richard C. Bleloch, and Thomas E. Cusick, of Chicago, and Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (William M. Goebel, of counsel), for appellees.
   STOUDER, J.

Plaintiff-Appellant, Amy Sarro, commenced this action in the Circuit Court of Cook County seeking damages on account of personal injury against Defendants, Thomas Maupin, Paul Groke, National Education Association, hereafter referred to as NEA and Avis Rent-A-Car. Motions for summary judgment in favor of all defendants except Avis Rent-A-Car were granted by the trial court from which judgment the plaintiff has appealed, the trial court having certified that no just reason existed for delaying appeal.

The facts are undisputed. Plaintiff was injured in an automobile collision which occurred on August 14, 1964, in Ontario, Canada. The plaintiff, a resident of New Jersey, was a member of a student tour organized by NBA which traveled in cars leased from Avis Rent-A-Car. Plaintiff was a passenger in the car which at the time of the collision was operated by defendant Maupin. Defendant Groke had some connection with the tour but his status is not clear from the record.

This action was filed in the Circuit Court of Cook County on August 12, 1966. At the time of the collision and at all times subsequent thereto plaintiff was a resident of New Jersey, defendants Maupin and Groke were residents of Illinois and NBA was alleged to be a resident of Illinois, although it filed a limited appearance asserting the contrary, which motion was never ruled upon. By appropriate motions the defendants alleged that the action was not commenced within one year as required by the Statutes of the Province of Ontario, Canada. Furthermore, according to defendants, Ill Rev Stats 1963, c 83, § 21, makes the one year Ontario limitation statute applicable rather than the two year Illinois limitations statute. The trial court agreed with such assertion and dismissed the complaint.

On appeal plaintiff argues the trial court erred in its interpretation and application of Ill Rev Stats 1963, c 83, § 21, and argues that such Section is not applicable to the undisputed facts.

Ill Rev Stats 1963, c 83, § 21, provides, “When a cause of action has arisen in a state or territory out of this state, or in the foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this state.” All parties agree that the Ontario Statute of Limitations requires that the action be brought within twelve months and further that neither the extra-territorial service of process statute of Ontario nor any possible tolling of the Ontario statute is involved in the instant case.

The general rule is that the law of the forum governs the procedure in a case. Wetzel v. Hart, 41 Ill App2d 371, 190 NE2d 619. Chapter 83, Ill Rev Stats 1963, declares the law of the forum regarding the limitation of time in which actions may be commenced. Ill Rev Stats 1963, c 83, § 15, provides that actions for personal injuries must be commenced within two years. Section 21 quoted above, precludes actions in this State where the action arose in another state and where the action could not be brought in such state because of the lapse of time. Plaintiff argues that Sec 21 is inapplicable and therefore the action was properly brought since within the time specified by Sec 15.

Plaintiff argues that Sec 21 can only be applicable when both of the parties were nonresidents of this state at the time the cause of action arose or accrued. Such a limitation does not appear in Sec 21 itself and as authority for the proposition plaintiff relies almost entirely on Delta Bag Co. v. Leyland & Co., 173 Ill App 38. She also cites Chicago Mill & Lumber Co. v. Townsend, 203 Ill App 457, Davis v. Munie, 235 Ill 620, 85 NE 943 and Wooley v. Yarnell, 142 Ill 442, 32 NE 891.

The Delta Bag case in its operative facts is quite similar to the case at bar. Plaintiff claimed that its personal property sustained damages on account of the negligence of the defendant while such property was on a steamship of the defendant. Defendant contended that the claim arose in Louisiana which had a one year statute of limitations while plaintiff insisted that the five year limitation period of Illinois was applicable. Defendant was, at the time of the injury to the property and at the time of filing suit, a resident of Illinois, the action having been brought more than one year but less than five years from the date of injury. The court held section 20 (now section 21), c 83, Ill Rev Stats 1872, inapplicable because the parties (at least the defendant) were not nonresidents of Illinois at the time the action arose.

The Delta Bag case is clear in its reason for rejecting the applicability of Sec 21. Nevertheless the question remains whether the rule announced is supported either by the authorities relied upon or other applicable rules. The trial court declined to follow the rule announced in the Delta Bag case and held that See 21 was applicable and that plaintiff’s claim was barred as a consequence thereof. We believe the trial court was correct in its determination.

Several basic rules can be deduced from a review of the cases cited in Delta Bag, namely Davis v. Munie, 235 Ill 620, 85 NE 943, Hyman v. Bayne, 83 Ill 256, McGuigan v. Rolfe, 80 Ill App 256, Wooley v. Yarnell, 142 Ill 442, 32 NE 891 and Humphrey v. Cole, 14 Ill App 56. If the cause of action' arises in Illinois and the defendant removes his residence to another state, Section 20 (now 21) is inapplicable because the Illinois tolling statute comes into effect. Wooley v. Yarnell, supra and Humphrey v. Cole, supra. If the cause of action arises outside the State of Illinois two consequences are possible. First, Section 20 may be applicable and if the limitation period in such foreign jurisdiction is shorter than the applicable Illinois limitation the action may be barred if sufficient time has elapsed in the jurisdiction where the action arose. Hyman v. Bayne, supra. Second, if the cause of action arises outside the State of Illinois but action is not barred in such state the Illinois limitation period begins to run from the date the cause of action accrued rather than the date when the defendant comes within the jurisdiction of Illinois. McGuigan v. Rolfe, supra and Davis v. Munie, supra. See Bemis v. Stanley, 93 Ill 230. Combining the foregoing rules it may be said that if the only cause of action arises in a foreign jurisdiction Section 20 (now 21) will operate as a bar to an action in this State if the action is barred in such foreign jurisdiction.

All of the cases cited in the Delta Bag case involve causes of action based on contract. Where actions are based on contract the cause of action may arise or accrue in several states at the same time depending upon the facts and the relation of the parties to such states. For instance, with respect to a note the cause of action may arise in the state of the maker’s residence at the time of maturity of the note, (Wooley v. Yarnell, 142 Ill 442, 32 NE 891) or in the state of the payee’s residence at the time of maturity or in the state where the obligation is payable, (Story v. Thompson, 36 Ill App 370). Thus the likelihood is great that where neither party resides in Illinois the cause of action will not have accrued in Illinois. The residency of the parties is only material in the determination as to where the cause of action accrued and it is this latter fact rather than the residency of the parties which determines the applicable limitation period.

Chicago Mill & Lumber Co. v. Townsend, 203 Ill App 457, cited by plaintiff, illustrates how confusion may arise. In this case the action was brought for breach of warranty contained in a warranty deed executed and delivered in Illinois conveying land in Arkansas. It appears that the defendant was a resident of Illinois at the time of the execution of the deed and thereafter until the action was filed. Defendant urged that the five year Arkansas statute of limitations operating through Section 20 (now 21), barred the action while plaintiff claimed that the Illinois ten year statute was applicable. The court rejected the application of Section 20 with the observation that the parties were not nonresidents at the time the action arose. With equal justification the court could have rejected the application of Section 20 for the reason that the plaintiff’s cause of action accrued in Illinois.

In summarizing the authorities cited, it is our opinion that they do not lay down any general proposition that both parties must be nonresidents of this State at the time of the accrual of the cause of action before Section 21 may be applicable. The observations of the courts concerning nonresidency are made primarily for the purpose of aiding in the determination of whether the cause of action arose in Illinois. If so then by virtue of the tolling statute, neither nonresidency nor the period of limitations of some other state could bar the action in Illinois. If on the other hand the court determines that the cause of action did not arise in Illinois then Section 21 may be applicable.

In the case at bar there is no contention that plaintiff’s cause of action arose in Illinois but on the contrary it is undisputed that her cause of action arose in Ontario, Canada. Therefore as required by Section 21, plaintiff’s cause of action arose in another jurisdiction and the effect of the Ontario limitation statute operates to bar this action because the action could not have been brought in Ontario.

For the foregoing reasons we find no error in the judgment of the Circuit Court of Cook County and therefore such judgment is affirmed.

Judgment affirmed.

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


author: ALLOY, J.

text:
    Van Der Molen Disposal Company, a Corporation, Plaintiff-Appellee, v. Western Bearings Corporation, a Corporation, Defendant-Appellant.
    Gen. No. 54,344.
    First District.
    June 12, 1970.

      Anthony S. Ras, of River Forest, for appellant.
    Frank Cosentino, of Chicago, for appellee.
   ALLOY, J.

Plaintiff Van Der Molen Disposal Company, a corporation, filed an action against Western Bearings Corporation, a corporation, to recover payment for certain services. The complaint alleged that defendant was obligated to plaintiff in the sum of $581.25. It was also alleged that defendant was a corporation having its principal office at 1654 N. Mannheim Road, Melrose Park, Illinois. The summons was directed to the deputy sheriff to serve “G. M. Sorgel, 1654 N. Mannheim Rd., Melrose Park, Illinois.” G. M. Sorgel was not named as a defendant in the action. Although the record does not disclose the circumstance, Gertrude M. Sorgel was in fact secretary of the corporation and her personal residence was in DuPage County, Illinois, not in Cook County.

The return of the deputy sheriff in the cause before us was in the following language:

“Served this writ on the within named defendant G. M. Sorgel at his usual place of abode by delivering a copy thereof to Jane Doe a person of his family of the age of ten years or upwards and informing her of the contents thereof this 19th day of Jan. 1969.”

The service of such summons was at the corporate address at Mannheim Road. A copy of the writ was mailed “to the said defendant at such usual place of abode.”

An order of default was entered on February 21, 1969, followed by a judgment for $581.25 and costs on May 10, 1969. On June 12, 1969, the defendant corporation filed a motion appearing especially for the purpose of setting aside the service as shown of record and stated that the defendant was not served a summons as required by the statute and rules of the court as affirmatively disclosed by the return. The defendant asked that the order against it be vacated and set aside and that the return of service be set aside and quashed. No affidavits were filed by either party to supplement the record and no evidence was presented, so that we are confined to the record of service as made in the trial court. The trial court refused to vacate the judgment, and thereby, in effect, held that the service was properly made on the corporation.

An issue before the court, in considering the return and the service in the cause before us, is whether so-called “substituted service” could be had on corporations similar to substituted service on individuals under Ill Rev Stats 1967, c 110, § 13.2. That section provides that service of summons upon an individual defendant could be made by (1) leaving a copy thereof with defendant personally, or (2) by leaving a copy at his usual place of abode with some person of the family, of the age of 10 years or upward, informing that person of the contents thereof. It is further provided that the officer making the service should send a copy of the summons in a sealed envelope with postage fully prepaid addressed to the defendant at his usual place of abode. In the following section, 13.3, which provides for service on private corporations, it is specifically provided that a private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of said corporation found anywhere in the State; or (2) in any other manner “now or hereafter permitted by law.” There is a further provision that a private corporation may be notified by publication by mail in like manner and with like effect as individuals.

Plaintiff contends that the provisions of § 13.3, which provide for service on a corporation, in referring to “any other manner now or hereafter permitted by law” allows the service on a corporation to be made by substituted service under the provisions of § 13.2 (2). In the Joint Committee Comments at page 119 of SmithHurd Illinois Annotated Statutes, it is stated:

“Clause (2) is designed to eliminate possible conflicts with other statutes providing for service of process, such as the Business Corporation Act and the Insurance Code.”

It appears on the basis of the contents of the provisions, that the legislative intent in Section 13.3 was to provide for potential conflicts as indicated in the Joint Committee Comments. The circumstance that § 13.3 also includes a provision that a corporation may be notified by publication to the same effect as an individual can, shows that the legislature did not intend that corporations could be served in every instance in the same manner as private individuals or the legislature would have said so. If the general language of the preceding section, in which it is provided that the corporation may be served “in any other manner now or hereafter permitted by law,” was intended to mean that a corporation was to be treated like an individual for the purpose of service, it would be inconsistent for the legislature, in the very next sentence, to state that the corporation could be served by publication “with like effect as individuals.” Since the enumeration of one thing presumptively excludes other modes or methods not expressly mentioned in the statute, normal statutory construction would require us to conclude that there was no intent on the part of the legislature to provide for substituted service under § 13.2 for corporations. The general language used in § 13.3 referred to was apparently intended to mean service under other statutes such as the Corporation Act and the Insurance Code or similar legislation, and was not intended to allow service on the corporation under § 13.2 providing for substituted service on individuals.

Another reason for concluding that this was not intended lies in the nature of § 13.2 which provides for “leaving a copy at his usual place of abode, with some person of the family of the age of 10 years or upwards.” The corporation will not have a “usual place of abode” in the sense contemplated by § 13.2 nor does the corporation have a “family” or normally have someone living at its abode of the age of 10 years or upwards. If this construction were pursued then any child of the age of 10 years or upwards in the corporate premises might be deemed an appropriate agent for service on the corporation. This construction is neither necessary nor desirable. Section 13.3 provides for an orderly method of serving a corporation by leaving a copy with the registered agent or any officer or agent of the corporation. This authority is very broad and apparently has not handicapped litigants in obtaining service on corporations.

It is notable that the service in the particular cause before us was directed to be made upon “defendant G. M. Sorgel.” The return of the deputy sheriff shows service upon the “defendant G. M. Sorgel at his usual place of abode by delivering a copy thereof to Jane Doe a person of his family of ten years or upward and informing her of the contents thereof.” The record, therefore, fails to show service upon the corporation.

We believe that provisions relating to service on a corporation and also service upon other litigants, under Illinois practice should be liberally construed, but we find no basis for supporting the determination of the lower court that the service in the instant case was an appropriate or proper service under the Illinois statute upon defendant Western Bearings Corporation. We, therefore, conclude that the trial court erred in denying the motion to vacate the judgment and to set aside and quash the return of service.

This cause will, therefore, be reversed and remanded to the Circuit Court of Cook County with directions to vacate the judgment and set aside and quash the return of service in this cause.

Reversed and remanded with directions.

RYAN, P. J. and STOUDER, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roderick Coleman, Defendant-Appellant.
    Gen. No. 54,343.
    First District, First Division.
    June 15, 1970.

      Braden, Hall, Barnes & Moss, of Chicago (Houston H. Hall, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Reil-ley, Assistant State’s Attorneys, of counsel), for ap-pellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was convicted of the offense of criminal damage to property (Ill Rev Stats 1967, c 38, § 21-1 (a)) and placed on probation for one year, the first sixty days to be served at the Vandalia State Farm. During the trial the court heard and denied defendant’s motion to suppress. On appeal, defendant contends that (1) his arrest and a subsequent search and seizure were unlawful; (2) the trial judge erred in admitting certain evidence; and (3) he was not proved guilty beyond a reasonable doubt.

On March 22, 1969, Police Officer Chester Tomaszaw-ski and his squad answered a silent alarm (ADT) burglary call to a men’s store at 1716 East 87th Street in Chicago owned by Bert Simmons. Upon arrival he noticed some damage to a door at that location. The squad then returned to their usual duties and at approximately 12:33 a. m. a second ADT alarm was sounded for the same location. The officers returned to the location and entered the alley which was in back of 1716 East 87th Street. They saw a light blue Chevrolet backing up, and the occupants ignored a call from the police to halt. The officers gave chase and stopped the car in back of 8647 Stoney Island Avenue. One of the occupants (later identified as Kenneth Rufus) got out of the automobile and jumped behind a retaining wall. He, along with the other two occupants of the car (later identified as Donald Williams and defendant Coleman) were placed under arrest. While they were waiting for a patrol wagon to transport the defendants to the police station, Officer Tomaszawski, without a warrant, looked into defendant’s automobile and saw a tire iron on the floor of the automobile and left of the driver’s seat. He said, “. . . yes, it was right there where I could see it.” Screwdrivers and a pair of pliers were found in the glove compartment.

Officer Tomaszawski further testified that after the defendants were transported to the station, the officers went back to the store and met the ADT man. The owner of the store came up, and they notified a technician to take pictures of the door. The outside panel of the overhead door had been worked on and pulled away from the inside panel. Over objection, the court received in evidence People’s exhibits, a photograph which represented the condition of the door, and the tire iron, screwdrivers and pliers. The officer also identified paint chips on the tire iron as matching the color of paint on the rear door of the store.

Bert Simmons, the owner of the store, testified that when he closed the store, the door was not damaged. On the first alarm call, about half the damage had been done. Also, about one hour elapsed between calls.

Defendant Coleman, along with Rufus and Williams, all denied their guilt. They stated that they had been parked in the parking lot for a short period of time while defendant and Rufus went to a pizza restaurant to see a friend who had been working there. The friend wasn’t there, and when defendant and Rufus returned to the automobile and defendant was driving out of the parking lot, they were stopped by the police. Williams testified that he saw the tire iron for the first time in the police station and never saw a screwdriver or pliers in the car. Rufus testified that he did not see the tire iron in the automobile and that it was shown to them for the first time in the police station. Defendant Coleman testified that he saw the iron on the ground by the door. It was not found in the front seat of the car, but the police came in with it later.

Defendant Coleman initially contends that “the arrest in this cause was without a warrant, and without probable cause; that said arrest was based upon mere suspicion because no unlawful act was committed in the presence of the arresting officer, who had no information in reference to defendants.” Defendant asserts that he had parked his car in a parking lot which had been provided for customers of many merchants whose places of business were located in the area. Also, the neighborhood surrounding the store was a thickly populated place, and many persons walk the street day and night there. Authorities cited include People v. DeLuca, 343 Ill 269, 175 NE 370 (1931); People v. Chatman, 322 Ill App 519, 54 NE2d 631 (1944); and Kindred v. Stitt, 51 Ill 401 (1869).

In People v. DeLuca, in reversing the trial court, the Illinois Supreme Court stated (p 271):

“Undoubtedly the law is that where an arrest is made by an officer who has reasonable ground for believing that the person arrested is implicated in the commission of a crime, such officer has a right to arrest without a warrant and to search the arrested person without a search warrant . . . but where there is no probable cause and the person is searched without a search warrant in an effort to discover evidence, and an arrest is afterwards made solely on the strength of the discovery, the evidence thus obtained is violative of his constitutional right and should be suppressed, on motion duly made for that purpose.”

Defendant also contends that the search of defendant’s automobile was made without authority and without specific purpose and was, therefore, unreasonable and unconstitutional. Defendant argues that as the arresting officer possessed no warrant for defendant Coleman’s arrest and did not observe the commission of any offense, the search of the defendant’s automobile was exploratory and made solely for the purpose of finding or procuring evidence of the defendant’s guilt of the crime charged, or some other crime. Cited is United States v. Lefkowitz, 285 US 452, where the court said, “an arrest may not be used as a pretext to search for evidence.”

The State argues that the existence of probable cause was sufficient to make the arrest, and the ensuing search and seizure was lawful in that the arresting officer had reasonable grounds to believe that the defendant was committing or had committed an offense. The State notes, “on the second alarm the officer and his partner entered an alley in back of the location of the alarm where they observed a light blue Chevrolet back out from directly behind the location of the alarm. When the police squadrol was three feet from the defendant’s (subsequently identified) automobile the officer hollered for the occupants of the vehicle to stop.” The occupants fled and the officers gave chase. After they stopped the car, the defendant remained in the car and was placed under arrest. The officers saw a tire iron laying on the left-hand side of the driver’s seat in open view, and it was later established that paint chips on the tire iron matched the paint on the damaged rear door of the premises in question.

The authorities which we think furnish the guidelines to be used here include People v. Jones, 31 Ill2d 42, 198 NE2d 821 (1964), where it is stated (p 47):

“ [The] existence of reasonable cause which will justify an arrest without a warrant depends upon ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ . . . police officers ‘often must act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and to catch criminals.’ ”

And People v. McCracken, 30 Ill2d 425, 197 NE2d 35 (1964), where it is stated (p 429):

“Where, as here, the articles are in plain and open view and are observed by police officers under suspicious circumstances, it is not a ‘search’ nor an unreasonable seizure for the officers to make a reasonable investigation hereof.”

We conclude the totality of the facts and circumstances known to the officers at the time of the arrest was reasonable ground to justify the arrest of defendant and the search that followed. See People v. Maleck, 83 Ill App2d 380, 383, 227 NE2d 770 (1967).

Considered next is defendant’s contention that “the trial judge erred in admitting in evidence improper oral and documentary evidence together with articles procured by unlawful means.” This contention is primarily based on a photograph (State’s Exhibit 1) taken of the door alleged to have been damaged by defendants, and State’s Exhibit 2, the tire iron. We find no merit in this contention. In Foster v. Bilbruck, 20 Ill App 2d 173, 155 NE2d 366 (1959), it is stated (p 183):

“Photographs have long been used in courts of Illinois for better presentation of evidence, and are not evidence in themselves, but are allowed for the purpose of enabling the jury to understand and apply the testimony. . . . Photographs stand on the same footing as a diagram, map, plan or model, and a photograph is a legitimate mode of proving conditions which can be shown by representation of that sort . . . .”

Officer Tomaszawski was shown the photograph and asked if it duly represented the condition of the door at the time he personally saw it, and he responded, “Yes, it does.” We think this was sufficient for the court to rule that the photograph was admissible here.

As to Exhibit 2 (the tire iron), we find that it was properly admitted into evidence on the basis of our foregoing rulings concerning it.

Next considered is defendant’s contention that “the evidence adduced by the People was circumstantial evidence and was insufficient to establish the guilt of the accused, and the same failed to exclude every reasonable hypothesis of his innocence.” Defendant’s authorities on this point include People v. Grizzel, 382 Ill 11, 46 NE2d 78 (1943), where it is stated (p 19):

“In order to warrant a conviction of crime on circumstantial evidence, the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. . . .
“It is true that direct evidence is not necessary, but to warrant a conviction on circumstantial evidence the facts proved must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of his innocence.”

We find no merit in this contention. We agree with the State that the testimony of Officer Tomaszawski shows that the overwhelming weight of the evidence proved the guilt of the defendant beyond a reasonable doubt. The statements made in People v. Mills, 98 Ill App2d 248, 240 NE2d 302 (1968), apply here. There it is stated (p 256):

“Circumstantial evidence is legal evidence, and a conviction may be sustained on it alone if the character of said evidence convinces the trier of fact of the defendant’s guilt beyond a reasonable doubt.”

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt of defendant’s guilt. People v. Pena, 72 Ill App2d 305, 314, 219 NE2d 667 (1966).

After examining this record, we think the circumstantial evidence and the testimony of the police officer were sufficient to support a guilty verdict beyond a reasonable doubt, and for the reasons given the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Pines Trailer Corporation, a Corporation, Plaintiff-Ap-pellee, v. Roaring Express Co., Inc., a Corporation, and J. DeVries, Defendants-Appellees, and Evergreen Plaza Bank, Garnishee Defendant-Appellant.
    Gen. No. 54,416.
    First District, First Division.
    June 15, 1970.

      Carroll, Connelly & Hartigan, of Chicago, for appellant.
    Shaffer, Seelig, Mandel & Shapiro, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by the defendant garnishee, Evergreen Plaza Bank, from an order striking the answer of the garnishee and entering judgment in favor of the plaintiff, Pines Trailer Corporation, in the amount of $1,556.57 plus costs.

There is no factual dispute. On September 8, 1967, Roaring Express Co., Inc., by Gerrit DeVries, its President, executed a promissory note in the amount of $12,-600 payable to the order of Evergreen Plaza Bank, together with a chattel mortgage security agreement whereby it granted to the Bank a security interest in certain vehicles. On March 30, 1968, Roaring Express in consideration of several loans executed an additional promissory note in the amount of $1,208.40 payable to the Bank. Both notes provided that the Bank could at any time thereafter, without notice, appropriate and- apply toward payment of the notes, whether due or not, any indebtedness of the Bank, including but not limited to, any and all balances, credit deposits, accounts or money of Roaring Express or Gerrit DeVries.

On January 27, 1969, the Bank was served with a garnishment summons by Pines Trailer Corporation. At that time the two loans made to Roaring Express were in default, the last payment having been made on October 11, 1968. There were unpaid balances on the two respective notes in the amounts of $9,197.50 and $604.20. Upon being served with the garnishment summons on January 27th, the Bank applied a balance of $2,371.20 in a checking account in the name of Roaring Express and a balance in the checking account in the name of Gerrit DeVries of $346.89 to offset the unpaid balances on the loans made to Roaring Express. On February 3, 1969, an additional deposit of $1,529.32 was made to the account of Roaring Express, and the Bank elected to also offset this amount against the unpaid balances, leaving a balance due to the Bank of $5,559.29.

The issues presented are whether upon service of the garnishment summons the Bank was entitled to set off its liabilities to Roaring Express and Gerrit DeVries against the liabilities they owed to the Bank and whether the Bank could again set off the subsequent deposit made by Roaring Express.

Section 8 of the Garnishment Act (Ill Rev Stats, 1967, c 62, § 40) provides in part:

The garnishee is entitled to assert against indebtedness due to the judgment debtor offsetting demands against either or both the judgment creditor and the judgment debtor, whether (1) due at the time of service of the garnishment summons or thereafter to become due. . . .

Section 9-501 (1) of the Uniform Commercial Code (Ill Rev Stats 1967, c 26, § 9-501 (1)) in specifying the remedies available to the secured party states as follows:

When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this Part and . . . those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. . . . The rights and remedies referred to in this subsection are cumulative.

Both of the notes provided for the right of the Bank to set off any accounts of Roaring Express and De Vries. It has also been held that a bank need not proceed first against collateral security before exercising its right of setoff. Olsen v. Valley Nat. Bank of Aurora, 91 Ill App2d 365, 234 NE2d 547. In that case, the Appellate Court held that the bank was not deprived of its right of setoff simply because it had the foresight to obtain collateral for the obligations owed to it. The court noted that under the Uniform Commercial Code a creditor is able to proceed with a number of remedies until the debt is satisfied. We are not persuaded that the fact that the judgment debtor had been in default to the Bank for a period of at least three months before service of the garnishment summons should change this result. We hold that the Bank clearly had the right to offset the funds of Roaring Express and Gerrit DeVries against their liabilities to the Bank upon being served with the garnishment summons.

Plaintiff has also urged that by using the setoff upon being served with the garnishment summons, the Bank thereafter had no right to also apply the subsequent deposit made by the judgment debtor. We cannot agree. As stated in the Olsen case, the garnishee may proceed with any of a number of remedies until the debt is paid. We find no merit to the argument that the garnishee had the obligation of adjusting all demands and accounts between itself and the judgment debtor when served with the garnishment summons. The cases cited in support of this theory are clearly inapplicable on the facts. The judgment debtors still owed the Bank a considerable sum of money, and it was therefore proper for the Bank to exercise its right of setoff against the subsequent deposit.

The orders and judgment of the Circuit Court are therefore reversed, and the cause is remanded to the Circuit Court with directions to vacate the judgment entered against the garnishee bank and to grant the motion to dismiss the garnishment proceedings against the Evergreen Plaza Bank.

Judgment reversed and cause remanded with directions.

MURPHY and ADESKO, JJ., concur.