text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vaughn O. Greenwood, Defendant-Appellant.
    Gen. No. 53,355.
    First District, Fourth Division.
    September 24, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Saul H. Brauner, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, David C. Baylor, and Morton Friedman, Assistant State’s Attorneys, of counsel) , for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was indicted in Indictment No. 67-1377 on two counts of aggravated battery of one Willie Plump. Count 1 of the indictment alleged that defendant committed a battery on Plump causing him great bodily harm; and Count 2 alleged a battery on Plump with the use of a deadly weapon. Defendant was also indicted in Indictment No. 67-1376 on two counts of aggravated battery of one Manee Porter. After a bench trial, defendant was found guilty of both counts of aggravated battery of Manee Porter and guilty of Count 2 of aggravated battery of Willie Plump; he was found not guilty of Count 1 of aggravated battery of Plump. Judgment was entered and defendant was sentenced for a term of four to five years on Count 2 of Indictment No. 67-1377 and for a term of from eight to ten years on Indictment No. 67-1376, the terms to run concurrently.

Defendant raises three points on appeal. First, defendant argues that the indictments are faulty, vague and insufficient, and do not identify the offense, nature of the elements and the statute violated. Secondly, defendant argues that the trial court erred in accepting a jury waiver from him. Thirdly, defendant argues that his sentence was excessive.

EVIDENCE

Defendant met Manee Porter, aged seventy, in Skinner Park at about 10:30 or 11:00 p. m. on May 16, 1966; before that time they had never met. They eventually went to Porter’s apartment where some homosexual activity took place. According to Porter’s testimony, when the homosexual act was completed, defendant put on his shorts and produced a pocket knife. Defendant asked Porter for money; and when Porter explained that he had none and that he was on social security, defendant came at him with the pocket knife. Defendant then went into the closet and came out with a butcher knife and cut Porter. Porter began to scream and defendant cut him again. Defendant then got an instrument that looked like a cake turner and cut him under the neck. Porter then lost consciousness.

Willie Plump testified that he resides in the building next to Porter. At about 3:15 a. m. on May 17 he heard Porter scream for help and he then proceeded to Porter’s apartment. When he arrived at Porter’s door, defendant came running out with a knife in his hand. Plump grappled with defendant and was able to disarm him. Defendant attempted to get dressed while holding Plump off with a chair. Defendant was unable to dress and fled through a window wearing only his shorts. Throughout the struggle, Porter was lying on the floor. The police arrived ten or fifteen minutes after defendant fled.

James Watkins testified that he lives in the same building as Porter and that about 3:15 a. m. on May 17 he heard voices and went to investigate. When he arrived at Porter’s room he observed Porter lying on the floor bleeding; Plump was pushing defendant back. Both Plump and defendant were bleeding.

Officer Jack Johnson testified that he responded to a call and arrived at Porter’s apartment at about 3:30 a. m. on May 17. He observed a man lying in a pool of blood. He had the man transported to the hospital.

Detective Donald Masnjak went to Porter’s room at about 3:15 a. m. on May 17. The room was splattered with blood. He found some papers which had the. name of the victim. He also found a wallet that contained a social security card with defendant’s name on it.

OPINION

Defendant’s first argument is that the indictments are fatally defective. One alleged defect is that the indictments were issued by the April 1967 grand jury but charge defendant with crimes allegedly committed on May 17, 1967. This defect is not fatal, however, because the evidence disclosed that the crimes were actually committed on May 17,1966, and the placing of the “1967” date on the indictment was a mere clerical error and did not, in any way, hamper the preparation of a defense or prejudice defendant. See People v. Bradley, 70 Ill App 2d 281, 287-288, 217 NE2d 434.

Defendant next urges that Count 1 of Indictment No. 67-1376 fails to charge defendant with any offense. That count recites that defendant:

. . . committed the offense of aggravated battery, in that he, intentionally and knowingly, without legal justification, committed a battery upon Manee Porter which caused great bodily harm to said Manee Porter in violation of Chapter 38, Section 12-4, of the Amended Elinois Revised Statutes 1965, contrary to the Statute, and against the peace and dignity of the same People of the State of Elinois.

Defendant’s contention is that this count does not charge defendant with any offense since section 12-4 by itself without any further designation is no crime and does not inform the defendant of any specific charge against him. Defendant goes no further than to simply state this proposition; and we find it without merit. The aggravated battery statute, Ill Rev Stats 1965, c 38, § 12-4(a), defines the crime as follows:

A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.

This statute read together with Count 1 of the indictment clearly indicates the crime with which the defendant is charged. Defendant argues that subsection “(a)” should have been indicated in the indictment after “Section 12-4” but this is not a fatal defect since there can be no mistake about the relevant subsection when the statute is read with the indictment.

Defendant also contends that the second counts in both indictments are fatally defective. The texts of both indictments clearly and unequivocally charge defendant

with aggravated battery by reason of the use of a deadly weapon, and the proof offered at trial conforms to the text of the indictments. However, the indictments allege that the crime was in violation of subsection (b) (2) of section 12-4 of chapter 38, Ill Rev Stats 1965, which provides in pertinent part:

(b) A person who, in committing a battery, either:
(1) Uses a deadly weapon; or
(2) Is hooded, robed or masked, in such a manner as to conceal identity; or . . .

Defendant argues that the reference in the indictments to subsection (b) (2) invalidated the indictments. Defendant makes no allegation or argument that he was prejudiced by this miscitation; he argues only that chapter 38, section 111-3 (a) (2), Ill Rev Stats 1965, requires “[c]iting the statutory provision alleged to be violated,” and that therefore the miscitation is fatal. In People v. Gilmore, 101 Ill App2d 447, 243 NE2d 473, the court held:

It is well established that an indictment must adequately inform the accused of the offense with which he is charged so as to enable him to prepare his defense in order to fulfill the requirements of Article II, section 9 of the Illinois Constitution. People v. Moore, 368 Ill 455,14 NE2d 494; People v. Braun, 375 Ill 284, 31 NE2d 287. Niceties and strictness of pleading are supported only where a defendant would be otherwise surprised at trial or be unable to meet the charge or to prepare his defense. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809.

In People v. Hill, 68 Ill App2d 369, 216 NE2d 212, a complaint charged the defendant with theft in violation of a nonexistent municipal ordinance. Although the conviction was reversed on other grounds the court emphasized that the complaint adequately stated the nature, cause and elements of the charge against the defendant. The court stated at page 375:

Failure to cite the statute or the correct provision thereof is error but, in view of the description of the offense given in the complaint, is not an error which, in itself, vitiates the complaint. . . . The complaint adequately informed the defendant of the nature and cause and the elements of the charge against him so that he knew precisely what he was called upon to meet, and thereby fulfilled the requirements of article II, section 9 of the Constitution and of section 111-3 (a) (3) of the 1963 Code of Criminal Procedure. People v. Burns, 403 Ill 407, 86 NE2d 197 (1949); People v. Brown, 336 Ill 257,168 NE 289 (1929). Failure to cite the proper statutory provision alleged to have been violated is not a ground for dismissal under section 114-1 (a) or for arresting judgment under section 116-2 (b) of chapter 38, and cannot be equated with a failure of the charge to state an offense.

See also People v. Bridges, 67 Ill App2d 236, 214 NE2d 539; People v. Gilmore, supra.

We therefore find that the second counts of the indictments stated an offense and that the incorrect citation of the statutory provision did not invalidate the convictions.

Defendant’s next argument is that he did not understandingly waive a jury. The following colloquy took place between the trial judge and defendant concerning the jury waiver:

The Clerk: People of the State of Illinois versus Vaughn Greenwood.
Mr. Toole: We are answering ready for trial, is that right, Mr. Greenwood?
The Defendant: Yes.
Mr. Toole: And we are going to have a bench trial.
The Defendant: Yes.
The Court: Is the State ready?
Mr. Eisen: Yes, Judge, I believe the State is ready.
The Court: Do you understand that you have a right toa jury trial?
The Defendant: Yes.
The Court: You indicate you wish a bench trial in spite of this right to have a jury trial ?
The Defendant: Yes, sir.
The Court: Would you indicate that by signing a jury waiver, please.

(Jury waiver signed.)

Relying on People v. Bell, 104 Ill App2d 479, 244 NE2d 321, defendant argues that the trial judge should have explained the meaning and significance of a jury trial. Reliance on Bell is misplaced because there the defendant made a positive manifestation that he did not know what a jury trial was. In such a circumstance, as we there held, it is incumbent upon the trial judge to explain precisely a defendant’s right to a jury trial. But in the instant case where defendant indicated his understanding of the nature of a jury trial, where he clearly stated his desire to waive a jury trial, and where he signed the jury waiver, there was no reason for the trial judge to make a further explanation. See People v. Collins, 112 Ill App2d 458, 251 NE2d 325. We thus hold defendant’s waiver of a jury trial was understandingly made as required by statute. Ill Rev Stats 1967, c 38, § 103-6; People v. Richardson, 32 Ill2d 497, 207 NE2d 453.

Defendant’s final contention is that his sentence was excessive. The test for determining whether a sentence is excessive was set forth by the Hlinois Supreme Court in People v. Miller, 33 Ill2d 439, at page 444, 211 NE2d 708:

Where it is contended that the sentence imposed in a particular case is excessive, though within the limits prescribed by the legislature, we will not disturb the sentence unless it clearly appears that the penalty constitutes a substantial departure from the fundamental law and its spirit and purpose, or that it is not proportioned to the nature of the offense. (People v. Smith, 14 Ill2d 95.)

See also People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673.

In the instant case there was an especially brutal attack on the seventy-year-old Manee Porter. In the hearing on mitigation and aggravation it was shown that defendant had received a thirty-day sentence in 1958; a 120-day sentence after attempt escape in Oregon in 1962, and a three-year sentence in Oregon on a burglary charge also in 1962. Defendant testified that the last time he had a job was “last year.” Under these circumstances we find no reason to reduce the sentence.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.

       Count 2 of Indictment No. 67-1376 states that defendant:
      "... committed the offense of aggravated battery, in that he, in committing a battery on Manee Porter, used a deadly weapon, in violation of Chapter 38, Section 12-4(b) (2), of the Amended Illinois Revised Statutes 1965, . . .”

        Count 2 of Indictment No. 67-1377 states that defendant:
      “. . . committed the offense of aggravated battery, in that he, in committing a battery on Willie Plump, used a deadly weapon, in violation of Chapter 38, Section 12-4(b)(2), of the Amended Illinois Revised Statutes 1965, . . .”


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellant, v. Severn Provus and Birdell Provus, His Wife, Defendants-Appellees.
    Gen. No. 52,693.
    First District, Second Division.
    September 30, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.
    Jay Erens, of Chicago, for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

On November 17, 1966, the plaintiff, City of Chicago (hereinafter referred to as the City), filed its verified amended two-count complaint against the defendants, Severn Provus and Birdell Provus, his wife, who were the owners of a three-story income-producing brick building in the City of Chicago. Both counts of the complaint alleged twenty-one building code violations which were prohibited by the Municipal Code of Chicago. In count one, the City prayed for the issuance of a People’s Writ of Injunction against the defendants commanding the demolition of their building or, alternatively, that the court issue a mandatory and permanent injunction directing the defendants to abate their alleged public nuisance by making the necessary repairs themselves after furnishing the satisfactory proof that their structure could be safely repaired within a time certain, that they had the necessary financing to do so, and that they would furnish plans and specifications for such repairs to the Commissioner of Buildings of the City of Chicago. In count two, the City prayed for the entry of a judgment against the defendants in the amount of $2,200 per day or such other daily sum as the Court deemed proper.

In their verified answer, the defendants denied that their building violated any Building Code provisions and pleaded the doctrine of estoppel by verdict as an affirmative defense, which doctrine was allegedly applicable to four of the twenty-one violations. Attached to their answer were certified copies of the “half-sheet” statement of claim and judgment in Case No. 63 MC 44182. These documents showed that the defendant, Severn Provus, in a bench trial and after a full evidentiary hearing on the merits, had been found not guilty in the prior 1963 Municipal Court action which had alleged three Building Code violations apparently identical to four of the twenty-one violations alleged in the complaint at bar. The City had also brought the prior suit, and the same building was involved. In their verified answer, the defendants also alleged that no appeal was taken from the 1963 final judgment adverse to the City, said judgment had not been otherwise vacated, modified, or set aside, and the condition of their building, with respect to the four violations allegedly barred by the estoppel by verdict doctrine, had not changed from the date alleged in the prior complaint, February 14, 1963, to January 6, 1965, the date they filed their answer to the instant complaint.

In its reply to this affirmative defense, the City alleged that the doctrine of estoppel by verdict did not bar the instant litigation because: (1) no specific findings of fact were made in the prior suit upon which an estoppel could apply; and (2) the quantum of proof required in the prior quasi-criminal suit was a clear preponderance of the evidence whereas the instant complaint in chancery only required a mere preponderance of the evidence.

Prior to the trial, the City admitted under oath, in response to the defendants’ written Requests for Admissions of Fact (Ill Rev Stats 1965, c 110, § 101.18), that the factual allegations pertaining to four of the twenty-one Building Code violations involved in the instant complaint were identical to the City’s allegations in the prior 1963 Municipal Court case. At trial, opposing counsel orally stipulated to the same matter. Counsel for the defendants also introduced into evidence the certified report of proceedings pertaining to the 1963 litigation. This transcript is also included in the record before us.

After a full hearing, in which testimony was heard, the trial court entered its final decree and mandatory injunction finding in favor of the City as to some of the violations and requiring the defendants to make certain repairs; dismissing other alleged violations, some with prejudice to the City and others without prejudice; and ruling that the prosecution of the four alleged violations was barred by the estoppel by verdict doctrine. The court made no findings of fact nor entered any judgment as to the money damages sought from the defendants in count II of the instant complaint.

The City appeals only from that portion of the decree which found that the prosecution of four alleged violations was barred by the doctrine of estoppel by verdict. It has abandoned the two contentions once urged in its reply to the answer of the defendants, which latter pleading first raised the affirmative defense of estoppel by verdict. The City now contends that the doctrine of estoppel by verdict, as a matter of public policy, should not be invoked against a municipality when it is exercising its police powers and that the doctrine cannot be applied when a municipal ordinance provides that each day a violation exists constitutes a separate and distinct offense. The defendants have not cross-appealed from any portion of the decree which is adverse to them.

The doctrine of estoppel by verdict, a branch of res judicata, was fully explained by the court in Harding Co. v. Harding, 352 Ill 417, 426, 186 NE 152, 155 (1933):

. . The principle of res judicata applies, however, to cases where, although the cause of action is not the same, some fact or question has been determined and adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the determination in the former suit of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the later suit, regardless of the identity of the cause of action, or the lack of it, in the two suits. When the second action between the same parties is upon a different cause of action, claim or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action, the burden of proof is on him who invokes the estoppel, and extrinsic and parol evidence is admissible to prove that the precise question in the second case was raised and determined in the first. (Citations omitted.) This principle is sometimes called estoppel by verdict, and the estoppel is equally available to either party, the plaintiff in support of his action or the defendant of his defense, when the circumstances warrant it. Whether the adjudication relied on as an estoppel goes to a single question or all the questions involved in the case, the fundamental principle upon which it is allowed is that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated in a court of competent jurisdiction shall be deemed finally and conclusively settled in any subsequent litigation between the same parties where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication. (Citations omitted.)”

In oral argument before this court, the City conceded that the doctrine of estoppel by verdict is applicable to this case. The main thrust of its argument is that this court should relax the application of the doctrine in cases involving the exercise of a municipality’s police power. A question of public policy is thereby presented to this court in which we are called upon to weigh two principles of law, both favored in our system of jurisprudence; namely, regulatory police power and estoppel by verdict.

In support of its contention that the application of estoppel by verdict in the instant case was contrary to judicial opinion and public policy, the City chiefly relies upon People v. Levy Circulating Co., 17 Ill2d 168, 161 NE 2d 112 (1959), in which the court held, as a matter of public policy, that the doctrine of estoppel by verdict did not bar the State when collecting public revenues by way of taxation. It expressly overruled the prior case of People v. Psi Upsilon Fraternity, 324 Ill 540, 155 NE 279 (1927), which had come to a contrary result.

In the Levy case, the court recognized, as clearly erroneous, the prior judgments of the trial court which had held the defendant corporation’s capital stock to be exempt from assessment of a personal property tax. The reviewing court chose not to penalize the State for its failure to directly appeal these patently erroneous judgments, but allowed the People to collaterally attack them, although the prior judgments were not void. Inherent in its ruling was the apparent conviction that in revenue matters, the people of this State, who also pay taxes, will not be barred by the doctrine of estoppel by verdict when its public servants do not directly appeal a clearly erroneous judgment having to do with the collection of revenues. The court, however, expressly limited its holding to matters involving the public revenues.

The instant case does not involve the collection of public revenues. Rather, it has to do with a municipality’s exercise of its regulatory police power. In our opinion, this distinction is determinative of this case. In City of Elmhurst v. Kegerreis, 392 Ill 195, 64 NE2d 450 (1946), a zoning case, the court held a municipality barred by the doctrines of res judicata and estoppel by verdict from relitigating, in an injunction suit, a particular portion of its zoning ordinance which had been passed on by another court, adversely to the City, in a prior mandamus suit. The City had not appealed the prior adverse judgment. The mandamus litigation had been between Kegerreis and the City’s Superintendent of Building Construction whereas the injunction suit was between the City and Kegerreis. The court held the City to be in privity with its Superintendent who, in the prior mandamus case, had been sued only in his official capacity so as to legally compel him to issue a building permit and thereby perform a corporate act of the City. In discussing the doctrines of res judicata and estoppel by verdict, the court stated at p 208 of 392 Ill, p 455 of 64 NE2d, as the apparent rationale for its decision:

“. . . In this suit the appellant (City of Elmhurst) seeks to relitigate the question of the validity of the zoning ordinance. If that issue had been determined adversely to the plaintiff in the mandamus suit, the appellee here, we do not anticipate that anyone would contend that he could relitigate that question against the city in this suit, although it (the city) was not the defendant named in the mandamus suit. For the same reason, if the city had been named as the defendant in the mandamus suit, no one could successfully contend that the superintendent of building construction would be permitted, in a subsequent suit involving corporate action on. his part, under the same ordinance of the city, to relitigate the question of the validity of the zoning ordinance.
“The purpose of the doctrines of res judicata and estoppel by verdict is to prevent the relitigation, in a subsequent proceeding, of questions settled by a court of competent jurisdiction in a prior suit between the same parties or their privies. . . .”

It is a well established principle in Illinois that the zoning ordinances of a municipality involve the exercise of its regulatory police power. (Quilici v. Village of Mt. Prospect, 399 Ill 418, 78 NE2d 240 (1948) ; Trust Co. of Chicago v. City of Chicago, 408 Ill 91, 96 NE2d 499 (1951).) It can hardly be doubted that in prosecutions for building code violations prohibited by municipal ordinances, the municipality is also exercising its regulatory police power. (Chicago v. Washingtonian Home, 289 Ill 206, 124 NE 416 (1919); City of Chicago v. Miller, 27 Ill2d 211, 218, 188 NE2d 694, 698 (1963).) The holding of the court in City of Elmhurst v. Kegerreis, 392 Ill 195, 64 NE2d 450 (1946), therefore controls our resolution of the instant case.

This court recognizes that a structure with numerous building code violations is a threat to the public safety. The public is protected, however, when its public servants vigorously prosecute the owners of such buildings. If an adverse final judgment is entered against the municipality by a court having jurisdiction of the parties and the subject matter and the municipality is of the opinion that the judgment is erroneous, it should and must directly appeal the judgment rather than seek to reverse it in a collateral proceeding. Every presumption will be indulged in favor of the validity of the judgment when it is collaterally attacked. (Dean v. Kellogg, 394 Ill 495, 500-01, 68 NE2d 898, 901-02 (1946); Steffens v. Steffens, 408 Ill 150, 96 NE2d 458 (1951).)

Although the court in the Levy case relaxed the doctrine of estoppel by verdict in cases involving the public revenues, we are not willing to extend that relaxation to cases involving the exercise of a municipality’s police power. The municipality in this case has had its day in court and was unsuccessful. Apparently, it was of the opinion that the prior Municipal Court judgment was correct since it did not directly appeal from it.

The allegations that the defendants’ building violated three specific sections of the building code were litigated in 1963 and a not guilty finding was the result. Approximately two years later, the City sought to re-litigate this matter in another suit which alleged twenty-one Building Code violations, eighteen new violations and three allegations which had been decided against the City in the prior judgment. The City had not appealed from that prior adverse judgment. It is undisputed that the physical condition of the structure, with respect to these three alleged violations, had not changed in the ensuing two years. Litigation must come to an end at some point in time. The prior litigation had resulted in a not guilty judgment. It is manifestly unfair to subject the defendants in the instant case to the financial and emotional stress of another trial on the same issues thereby giving the municipality a second opportunity to prove its case.

Furthermore, after the time to perfect an appeal has passed and no appeal has been taken, the defendant in any litigation and the public at large have a right to rely upon the records of the court which reflect a not guilty judgment. To permit a municipality to collaterally attack such a final judgment, when the governmental unit does not allege lack of jurisdiction or fraud in the procurement of the prior judgment, would not aid in upholding the' permanence and stability of judgments. As was stated by the court in People v. Kidd, 398 Ill 405, 409, 75 NE2d 851, 854 (1947), a quo warranto proceeding:

“. . . If a court has jurisdiction its judgment may be directly attacked for errors or irregularities, but however manifestly erroneous the decision may be, it is binding upon all parties and privies until it is reversed or set aside in a direct proceeding for that purpose. (Citations omitted.) Jurisdiction to hear and decide a cause necessarily includes the right to render an erroneous decision. (Murch v. Epley, 385 Ill 138.) The judgment of a court which had jurisdiction is immune from collateral attack, even though such judgment is erroneous. (Woodward v. Ruel, 355 Ill 163.) . . . The doctrine of res judicata is not dependent upon the correctness of the judgment, or of the verdict or finding on which it is based. (Citations omitted.) Nor is the value of a plea of former adjudication to be determined by the reasons which the court rendering the former judgment may have had for doing so. (City of Elmhurst v. Kegerreis, 392 Ill 195.) . . . Sound public policy requires that different judicial determinations shall not be made of the same cause of action and that a judgment rendered jurisdictionally shall, as to such cause of action, be conclusive upon the parties thereto and their privies. . . .”

The other cases relied upon by the City are distinguishable from the case at bar. City of Girard v. Girard Egg Corp., 87 Ill App2d 74, 230 NE2d 294 (1967), was an injunction suit to enjoin a public nuisance in which the court held that the City was not estopped by a not guilty verdict in a prior criminal proceeding between the same parties for the same violation since the quantum of proof required in the preceding criminal litigation was much greater than in the later injunction suit. In the instant case, the prayer for relief in the 1963 Municipal Court complaint asked for the imposition of a monetary penalty or fine. It is well settled that civil and not criminal rules apply when a municipality sues for an ordinance violation and seeks to recover a monetary penalty. City of Chicago v. Ballinger, 45 Ill App2d 407, 410, 195 NE2d 739, 741 (1964); City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870 (1967). Civil rules also apply when an injunction is sought. The City sought a mandatory injunction in the case at bar. Thus, the cited case is not applicable to the present litigation.

Fleshner v. Kansas City, 348 Mo 978, 156 SW2d 706 (1941), invoked the application of the rule that a municipality is not equitably estopped from denying the authority of its agent when he has performed an ultra vires act. Such conduct is not involved here. State v. Missouri Utilities Co., 339 Mo 385, 96 SW2d 607 (1936), and People by Barrett, Auditor v. Bradford, 372 Ill 63, 22 NE2d 691 (1939), both involved principles of law pertaining to equitable estoppel or estoppel in pais and not estoppel by verdict. Thus, they too are not controlling.

The City also urges that the doctrine of estoppel by verdict cannot be applied when a municipal ordinance provides that each day a violation exists constitutes a separate and distinct offense. No cases are cited in support of this contention. Although such an ordinance providing for a continuing violation effectively removes the bar of the statute of limitations, estoppel by verdict would still apply if one of the parties or their privies sought to relitigate a material and relevant issue which had been adjudicated in a prior suit between them involving a different cause of action. To decide otherwise would be to defeat the very purpose of this doctrine. This contention cannot be sustained.

Approximately one month after oral argument, this court allowed the City’s motion for leave to file instanter a memorandum of additional authority and argument. In its motion, the City asked this court to take judicial notice of § 1-2-7 of the 1961 Illinois Municipal Code (Ill Rev Stats 1961, c 24) which provides in part:

“. . . No prosecution, recovery, conviction, or acquittal, for the violation of any ordinance, shall constitute a defense to any other prosecution of the same party for any other violation of the same or any other ordinance, although the different causes of action existed at the same time, and, if united, would not have exceeded the jurisdiction of the court or magistrate.”

The City contends that this statute is determinative of the issues before this court and justifies a reversal of the decree. The City does not cite any cases which have construed this statute. Our research has failed to disclose any Illinois cases on point. A reading of the statute, however, indicates that it addresses itself, within the factual setting of this case, to the situation wherein a municipality believes that a property owner is concurrently violating either two subsections of one ordinance or two separate ordinances. It elects, however, not to join these concurrent violations in one complaint, preferring instead to try the property owner separately for each alleged violation. Under the terms of the 1961 statute, a final judgment — whether it be a conviction or an acquittal — as to less than all of these violations will not bar a subsequent action for one or more of the remaining violations, even though all such violations existed at the time of the earlier action and could have been joined in that action. Concurrent violations therefore seem to be the basis for the 1961 statute relied upon by the City.

In the case at bar, the then Municipal Court of Chicago entered a judgment in 1963 finding the defendant, Severn Provus, not guilty of specified building code violations from which adverse judgment the City did not appeal. In light of this adjudication, the City cannot now successfully urge, as it appears to in its motion, that concurrent violations, due in part to the earlier 1963 litigation, existed when it filed its later complaint seeking a mandatory injunction against Provus and his wife. Concurrent violations cannot be said to arise in part from earlier litigation resulting in a judgment favorable to one of the defendants from which the City does not appeal. The statute relied upon by the City is not controlling.

We hold that the trial court was correct in ruling that the City, like any other litigant, was bound by the doctrine of estoppel by verdict in matters not involving the collection of public revenues. The decree is affirmed.

Decree affirmed.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Charleston, Defendant-Appellant.
    Gen. No. 52,736.
    First District, First Division.
    September 29, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci, James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a 2-count indictment defendant, Willie Charleston, was charged with the offenses of attempted rape and armed robbery. In a bench trial he was found “guilty as charged in the indictment,” and he was sentenced to the penitentiary for a term of two to ten years. On appeal he contends that the essential elements of the two offenses were not established, and that he was not proved guilty beyond a reasonable doubt.

The prosecuting witness was Mrs. Dena Anderson, married for five years and the mother of three children. On October 13, 1966, at 12:30 a. m., she left work, and as she proceeded home she stopped to pick up food from a take-out service. As she walked east on 47th Street she noticed the defendant, whom she recognized, standing outside a liquor store, dressed in a dark hat and a corduroy coat and wearing tinted glasses. As she walked she became aware that she was being followed, and as she looked around she saw defendant coming behind her. She started to run, but defendant struck her on the neck and knocked her down. She had a ten dollar bill in her hand, which she gave him saying, “here is this money,” and he accepted it. He kept saying, “Get your stuff, get your stuff, you’re going with me.” She was screaming loudly, and defendant “stomped” on her hand. She further said, “So while I was on the ground, his hand and fists went under my dress. And so he said he want me, ‘I’m going to have you for a little while.’ ... I was near the curb, he was trying to push me under the car. I kept screaming and he kept telling me to shut up.” A man came out of a house, and she heard a shot, and the defendant went down the street. The man fired two more shots. Defendant had a knife and cut her leg and smashed her hand, which caused her to be taken to a hospital for treatment.

At the trial the prosecutrix identified defendant as her assailant and said, “I have seen Mr. Charleston before the morning of October 13th. The number of times I have seen him, well, about five years I have seen him in the neighborhood. When I first observed the defendant on the street, the streetlights was on. I was about ten feet from the nearest streetlight where this incident occurred.”

The prosecutrix further testified that for the next few days after the attack she was met by her husband after work. On October 19, 1966, she went to a doctor’s office at 47th and Lake Park Avenue with her sister and saw the defendant in front of a cleaning shop at about 3:00 p. m. She looked at him across the street, and “he saw me, and he turned his back, and the other two fellows kept on looking.” While she was in the doctor’s office she looked out the window and saw the defendant and his companions cross the street and go into a recreation room. She called her husband and the police.

Upon the arrival of the police, defendant was in the recreation room. The prosecutrix pointed defendant out to a police officer and said, “Yes, this is the fellow that attacked me,” and defendant was placed under arrest. She further said that on October 13, 1966, the defendant was wearing a brown corduroy coat, tinted glasses and a dark hat. When he was arrested on the 19th he was wearing a brown corduroy coat, tinted glasses and a dark hat. She did not pay any attention to his trousers.

On cross-examination the prosecutrix said that when she first noticed defendant she recognized him as a friend of her husband, and that she knew his name was Willie Charleston. On the night of the incident she gave the police a description, which included his height, weight, clothing and glasses but not a mustache. She said, “They didn’t ask me about no mustache, and I did not look. I didn’t tell them he had a mustache and I didn’t give any description as to any scars on his face at the time. He did not ever put the knife in my throat, only in the leg.” She told the police that she had seen her assailant before and would recognize him if she saw him again. She did not reveal that she knew his name because she was afraid of his seeking revenge, since he had been bold enough to attack her initially. She denied ever being with her husband and the defendant at a social occasion or otherwise.

Police Officer Dammons testified that he fired the shots which caused the assailant to flee. He was visiting a friend to repair a television set after he was off duty at 11:00 p. m. At about 1:30 a. m. he heard a woman scream and saw a man on the street struggling with a woman. Running out the door he shouted, “Police,” and fired one warning shot. The assailant began running, and he fired two shots at him. Officer Dammons further said, “I did not ever see this man’s face at the time, his back was to me. I noticed his clothing. I noticed his height and build. He had a hat on, which color I couldn’t state. He also had a brown coat, similar to a car coat, corduroy. I saw the defendant in police custody on October 19th, 1966 . . . he was of the same height and build as the man I saw running away on October 13th.” He identified a brown coat as the coat worn by defendant when he fired shots at him. After he fired the two shots he picked the girl up from the curb, and she was taken to a hospital — “She was bleeding, she was crying, she was hysterical .... I know this girl to be Mrs. Dena Anderson.” Officer Dammons also testified he heard defendant swearing at the prosecutrix, “something like, ‘Shut up, bitch, shut up, bitch/ and something to the extent however, T am going take you with me for a little while/ ”

Police Officer McMillan testified that pursuant to a radio call on October 19, 1966, he went to 47th and Lake Park Avenue and met Mrs. Dena Anderson, the prosecutrix. At the Kimbark Community Social Club he arrested defendant after the prosecutrix pointed him out by saying, “That’s the man.” Defendant was wearing a corduroy coat and a pair of brown tinted glasses. Defendant had no weapon on him and denied committing the crime.

Defendant testified he was with certain people on the date in question, accounted for his whereabouts at the time in question, and admitted knowing the prosecutrix and her husband. Two other witnesses placed defendant in their presence during the time in question.

A defense witness, Gerry Marie Evans, testified she had known the prosecutrix since they were children. She was the financee of defendant, and on an occasion in June or July of 1966, the prosecutrix, her husband, the witness and defendant were together in a cocktail lounge and sat at the same table, where they engaged in conversation.

Considered first is defendant’s contention that he was not proved guilty beyond a reasonable doubt because (1) it was incredible for the prosecutrix to give the police a description of a man she knew and not give them his name; and (2) it was unbelievable that she could have positively identified her assailant and not recall whether he had a mustache.

Defendant charges that the statement of the prosecutrix that she did not give his name initially because she was frightened was a paltry explanation and unbelievable. If she were indeed frightened, “having him arrested and put into custody would end her fear. The true reason for her failure to tell the police his name was that she did not know who accosted her. It was simply a figment of her imagination.” Defendant also contends that it is unbelievable that the prosecutrix, who allegedly could positively identify her assailant, did not recall a mustache.

Defendant also notes that the husband of the prosecutrix did not testify and he could have corroborated his wife’s testimony. Defendant contends that the testimony of the prosecutrix is contrary to natural law and to human experience and the kind of testimony that cannot be believed.

Defendant argues that “based on this type of evidence, coupled with the defendant’s strong alibi defense, the defendant’s cause should be reversed.” Defendant’s authorities include People v. Roe, 63 Ill App2d 452, 211 NE 2d 552 (1965), where a conviction based on the testimony of a key witness was reversed because of his failure to initially name his assailants, whom he knew. The court held that this failure created a reasonable doubt of guilt. Also, People v. Marshall, 74 Ill App2d 483, 221 NE2d 133 (1966), in which a conviction was reversed because the victim was not sure whether the robber had a mustache at the time of the robbery.

Defendant also cites People v. Reese, 34 Ill2d 77, 213 NE2d 526 (1966), where the issue was whether the defendant was a participant in an attempted robbery. Although he was present in the room at the time of the robbery, it was not clear whether he was a participant or an innocent bystander. There the court said (p 79):

“Oddly, of the three occurrence witnesses, the People called only the doctor, Dale having been called by the defendant. The prosecution was, of course, under no duty to call Dale, the witness who actually fired the shot that wounded defendant, but it causes one to wonder whether the failure to use such a witness, present in open court, was from a reluctance to vouch for his veracity or fear that he could not stand up under cross-examination.”

The court further said (p 80):

“We attach great weight to the findings of the trier of fact, including his appraisal of the credibility of witnesses, but they are not conclusive and it is our duty to set a conviction aside where the evidence is so unsatisfactory as to raise a reasonable doubt of a defendant’s guilt. ... In our opinion the totality of the circumstances here leaves a reasonable doubt as to the defendant’s guilt and the conviction cannot stand.”

We agree that the failure of a victim to initially name his assailant, where known, and the failure to observe whether the defendant had a mustache are factors to be used by the trier of fact in assessing the credibility of a victim and in the overall appraisement of the circumstances of a case, but we do not agree that they are determinative here. In the instant case the prosecutrix had ample opportunity and lighting to recognize her assailant as being someone she had known for a considerable length of time. She provided the police with a full and accurate description of the defendant and told the officers that she had seen him before and could recognize him again. Precise accuracy in describing facial characteristics is unnecessary where, as here, an identification is positive. The testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though his testimony is contradicted by the accused. People v. Miller, 30 Ill2d 110, 113, 195 NE2d 694 (1964).

We note that in finding defendant guilty the court remarked: “The prosecutrix in this case positively identified the defendant. The testimony of the police officer, although not seeing his face, indicated that he had a similar build. And he did say that the clothes were the same. . . . With regard to the testimony of the defendant and of his witnesses, there were many discrepancies in regard to that evening, and where they were at specific times, and what they were doing. . . . For all these reasons, the Court finds the defendant guilty as charged in the indictment.”

Defendant’s final contention is that the essential elements of armed robbery and attempt rape were not established here. We do not agree. As to the armed robbery, the record shows that the defendant, armed with a knife, hit the prosecutrix in the neck and knocked her down. In fear, she gave him the money, and he accepted it. Robbery is not a specific intent offense, and it is enough that defendant took the victim’s money in the course of a forceful attack. A specific demand for money is not necessary. People v. Nelson, 89 Ill App2d 84, 88, 233 NE2d 64 (1967).

The specific intent for attempted rape was proved. The prosecutrix testified, “I was first laying on my stomach when I was first on the ground, and during the time this incident took place I did not stay on my stomach. I was facing upwards and had occasion to look at the face of this man. I was head down when he took the $10 from me. He had some conversation with me and he put his hand under my dress. He said, ‘Get your stuff, get your stuff, come with me, I’m going to have you for a little while.’ ” Also, the attack was seen and the words of the defendant were heard by Officer Dammons. In People v. Hiller, 7 Ill2d 465, 469-70, 131 NE2d 25 (1955), it is said:

“We agree that an indecent assault, however aggravated, will not warrant a conviction of assault with intent to commit rape, without proof of an intention to have intercourse with a woman by force and against her will. . . . But this intention need not be an expressed one, it may be inferred from the acts of the accused and the circumstances of the assault. . . . The mere fact that the accused is frustrated in his purpose ... or later desists from his purpose, does not relieve him of guilt.”

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 as to defendant’s guilt. (People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963).) Applying that test here, we believe that the trial court was presented with satisfactory and plausible proof on which to find defendant guilty beyond a reasonable doubt of both offenses. People v. Lee, 96 Ill App2d 105, 112, 238 NE2d 63 (1968).

Although neither side has questioned defendant’s sentence, we think the record in this area is somewhat unclear. Defendant was indicted and tried for two separate and distinct offenses, and the finding of the court that he was guilty as charged was equivalent to a finding that he was guilty of both of the offenses, and defendant should have been sentenced for each charge. See People v. Baby, 40 Ill2d 392, 404, 240 NE2d 595 (1968). Therefore, pursuant to powers given to this court by Supreme Court Rule 615, defendant’s sentence is modified so as to show that the defendant stands sentenced to the Illinois penitentiary for a term of two to ten years on his conviction of the offense of attempt rape and for a term of two to ten years on his conviction of the offense of armed robbery, both sentences to be served concurrently.

Subject to the foregoing modification, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed as modified.

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


author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Bibbs, Defendant-Appellant.
    Gen. No. 52,766.
    First District, First Division.
    September 29, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant Walter Bibbs was found guilty in a jury trial upon a charge of robbery and was sentenced to a term of not less than fifteen, nor more than twenty years. The facts supporting the conviction can be summarized as follows:

On the evening of March 4, 1967, Leroy Nix was working in a drugstore located in Chicago when a man (subsequently identified as the defendant) entered the store and asked for a doctor’s office. Fifteen to twenty minutes after this man left, he reappeared accompanied by another man and demanded money from Mr. Nix. Mr. Nix gave the defendant between forty-five and fifty dollars and the man fled the premises. Another witness noticed the men enter the drugstore and subsequently observed them running from the establishment. A squad car was hailed and the defendant, along with Ronald Mc-Ewen, was apprehended by the officers. A search of the defendant revealed that he possessed $47.35 in currency and change, the bills being of the denominations taken from the drugstore. Mr. Nix identified the defendant immediately after his apprehension and at the trial, as did the bystander who summoned the police. The police officers corroborated the identification as well as the arrest and search of the defendant.

In seeking a reversal of his conviction, the defendant contends that the trial judge committed error by excluding certain testimony and the inclusion of the defendant’s prior record for impeachment purposes. Alternatively, the defendant seeks a reduction of the minimum sentence imposed by the trial court.

The first issue raised by the defendant concerns the testimony of Ronald McEwen, a coindictee of the defendant, who had pleaded guilty to a robbery charge prior to defendant’s trial. In testifying for the defendant, this witness disclaimed any knowledge of the crime and denied any association with the defendant. The prosecution successfully impeached McEwen with regard to his previous plea of guilty to the same crime. When defense counsel, on redirect examination, attempted to elicit the witness’ reason for pleading guilty the trial court sustained a general objection to that inquiry. Appellant contends that the denial of the opportunity to rehabilitate the witness after impeachment by prior inconsistent statements was error. We fully agree with appellant’s contention. The rule has long been established that where a witness has been impeached by prior inconsistent statements, the opportunity must be given to rehabilitate that witness by asking “why” the witness made such inconsistent statements. People v. Hicks, 28 Ill2d 457, 192 NE2d 891 (1963); Schusler v. Fletcher, 74 Ill App2d 249, 219 NE2d 588 (1966). Nor was it necessary for defense counsel to make an offer of proof, as the State has argued, since an offer of proof is not required where the question propounded shows the purpose and materiality of the evidence sought. People v. Moretti, 6 Ill2d 494, 129 NE2d 709 (1965), cert den 356 US 947.

However, this court considers such to be harmless error, not warranting a reversal of the conviction. We find McEwen’s testimony could have no reasonable effect upon the jury’s finding the defendant guilty. Where errors complained of could not reasonably affect the outcome of the trial, the judgment will not be disturbed upon appeal. People v. Armstrong, 22 Ill2d 420, 176 NE2d 755 (1961); People v. Doyle, 76 Ill App2d 302, 222 NE2d 205 (1966); Chapman v. California, 386 US 18 (1967).

Next, the appellant attempts to challenge the introduction of defendant’s prior record for impeachment in rebuttal of defendant’s testimony. The argument is that such a procedure, although permitted under two Blinois statutes (c 51, § 1 and c 38, § 155-1, Ill Rev Stats 1967), served as a denial of due process by imposing a penalty upon a defendant who exercises his right to testify in his own defense.

The State has argued that this issue was waived at the trial. We agree with this contention. This court dealt with such a problem in People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965), where it was stated that a court will not consider constitutional issues unless a fairly debatable question was raised at the trial and was preserved in the record. People v. Webb, 80 Ill App2d 445, 225 NE2d 679 (1967). The record in this case is completely devoid of any objection to this procedure and, on the contrary, defense counsel condoned this procedure by pointing out at the trial that such evidence was to be used solely for impeachment, so that the jury should not accept the defendant’s prior record with regard to the guilt or innocence of the accused.

Although the finding of waiver disposes of this issue, even if the question were before this court, the case of People v. Cuttley, 82 Ill App2d 321, 226 NE2d 479 (1967) would dispose of this issue regarding the alleged denial of due process by the introduction of a prior conviction record for impeachment purposes.

Finally, defendant seeks a reduction of the minimum sentence imposed by the trial court claiming it to be excessive. A reviewing court will not disturb a sentence where the punishment is within the statutory limits unless the sentence clearly constitutes a great departure from the spirit and purpose of the law or the penalty is manifestly violative of the requirement that punishment shall be proportioned to the nature of the offense. People v. Hicks, 35 Ill2d 390, 220 NE2d 461 (1966), cert den 386 US 986; People v. Smith, 14 Ill2d 95, 150 NE2d 815 (1958). The trial court’s finding that defendant was incorrigible in view of his prior record of felony convictions justifies the sentence imposed and this court will not disturb that discretion. People v. Hobbs, 56 Ill App2d 93,205 NE2d 503 (1965).

Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


text:
    Peter S. Sarelas, Plaintiff-Appellant, Cross-Appellee, v. The Law Bulletin Publishing Company, a Corporation, Banning MacFarland, Jr., Joseph G. Stadelman, Jr., Defendants-Appellees, Cross-Appellants.
    Gen. No. 52,794.
    First District, First Division.
    September 29, 1969.

      Peter S. Sarelas, pro se, of Chicago, appellant.
    Ashcraft, Olson, Beach, Kimball, Alexander & Edmonds, of Chicago (William H. Alexander and Paul P. Didzerekis, of counsel), for appellees.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a libel action. Plaintiff appeals from a summary judgment entered in favor of defendants. Defendants cross-appeal from the denial of their motion to have an assessment of costs and attorneys’ fees and for relief under sections 41 and 57 (5) of the Civil Practice Act.

Plaintiff’s primary contention is that the publication of a newspaper article by defendants constituted actionable libel. The article appeared in the April 16, 1965, issue of the “Chicago Daily Law Bulletin,” a publication of the defendant Law Bulletin Publishing Company, and consisted of the following:

“JURY TRIAL REPORT
“This department, to cover personal injury trials, has been established on a tentative basis at the request of a number of lawyers. It can only be maintained through the cooperation of the trial lawyers. The editors of The Bulletin would be pleased to receive comments on this venture from its readers.
M
“GENERAL NUMBER AND TITLE:
“58 S 16262 — Peter S. Sarelas v. Constantine D. Chapralis, alias Major C. D. Chapralis and the Greek-American Publishing Co.
“SUMMARY:
“Libel in any language: Plaintiff-attorney brought suit against the defendant C. D. Chapralis, a former major in the Greek Army and publisher of a Greek-American publication for allegedly referring to the plaintiff in a newspaper article as ‘exallos kai allofrom’ (phonetic spelling).
“Plaintiff interpreted this phrase or word to mean in English ‘maniac’ or ‘crazed.’ In his closing argument defendant’s attorney reminded the jury of the old adage: ‘Sticks and stones will break my bones, but names will never hurt me.’
“VERDICT:
“Jury finding April 15 in favor of plaintiff and against defendants for $1.
“Case assigned April 2 to Judge Irving Landesman.
“ATTORNEY FOR PLAINTIFF: Peter S. Sarelas, pro se.
“ATTORNEY FOR DEFENDANTS: Peter J. Tatooles.”

Plaintiff filed his complaint on April 15, 1966. On June 29, 1967, after a hearing in which the court considered pleadings, affidavits, exhibits, plaintiff’s counteraffidavits, and plaintiff’s renewed motion to “transfer venue to another county,” an order was entered by the trial court as follows:

The Court finds:
That there is no genuine issue as to any material fact;
That as a matter of law the publication complained of herein was and is privileged; and
That the defendants herein are entitled to judgment as a matter of law;
WHEREFORE, It Is Hereby Ordered that the plaintiff’s motion to transfer venue to another County and to strike or deny the motion of defendants for summary judgment be and the same are hereby denied;
IT IS FURTHER ORDERED that the motion of the defendants for summary judgment be and the same is hereby granted;
IT IS FURTHER ORDERED that summary judgment be and is hereby entered in favor of the defendants and against plaintiff; and that plaintiff take nothing by his said suit;
IT IS FURTHER ORDERED that the Defendants have and recover their costs of and from the Plaintiff.

This is the order from which plaintiff appeals.

The following issues are presented by plaintiff’s appeal: (1) whether the trial court improperly denied plaintiff’s petition for a change of venue from all of the judges of Cook County; (2) whether the publication in question was privileged; (3) whether plaintiff was improperly “deprived of his constitutional right to jury trial of fact questions by the granting of defendants’ motion for a summary judgment”; and (4) whether defendants complied with Supreme Court Rule 323 in their nonverbatim “Proposed Report of Proceedings.”

Initially considered is plaintiff’s contention that the trial court improperly denied his petition for a change of venue from all the judges of the Circuit Court of Cook County.

Defendants’ motion for summary judgment was filed on August 4, 1966. Later in 1966 it was assigned to Judge Ben Schwartz for hearing. After a number of continuances, during which additional and supplemental pleadings were filed by both sides, plaintiff on May 3, 1967, filed his petition for change of venue from Judge Schwartz and from all of the judges of Cook County. In this petition plaintiff charged that the “defendants through their customs and practices” of distributing gratuitously to the judges of Cook County certain of defendants’ publications “exercise an undue influence” over all of the judges of Cook County. On May 3, 1967, Judge Schwartz entered an order granting a change of venue from himself and ordered that that part of the petition which asked for a change of venue from all of the judges of Cook County be referred to Judge Harold Ward. On May 8, 1967, Judge Ward denied the petition for a change of venue from all of the judges in Cook County and referred the cause to Judge Hallett for a hearing on defendants’ motion for a summary judgment.

On June 28,1967, plaintiff filed “Objections of Plaintiff to the Jurisdiction of the Court,” in which plaintiff alleged that the venue order of May 8, 1967, of Judge Ward was entered without jurisdiction and void, and plaintiff renewed his request for a change of venue from all of the judges of Cook County.

Plaintiff contends that when Judge Schwartz entered his venue order of May 3, 1967, the trial court lost jurisdiction over the case except to make a formal order transferring venue to a judge outside of Cook County. Plaintiff relies on the provisions of section 2 of the Venue Act (Ill Rev Stats, c 146), and his authorities include People v. Scott, 326 Ill 327, 157 NE 247 (1927); Mockler v. David F. Thomas & Co., 273 Ill App 121 (1933); and Talbot v. Stanton, 327 Ill App 491, 64 NE2d 388 (1946). In People v. Scott, supra, the court said (p 342):

“Under the statute no discretion is given to the court where a petition for a change of venue is made on account of the prejudice of the trial judge. . . . The statute gives an absolute right to a change of venue to the petitioner when his petition is duly made and verified and filed in accordance with the statute.”

In Talbot v. Stanton, supra, it is said (p 496):

“A change of venue is a substantial right of a litigant, not merely a matter of practice.”

Defendants contend that plaintiff did not comply with sections 7 and 8 of the Venue Act, which provide:

“§ 7. No change of venue shall be granted more than thirty days after the return day on which the defendant is required to appear unless the party applying shall show that the causes for which the change is asked have arisen or come to his knowledge since the expiration of such thirty days.
“§ 8. Neither party shall have more than one change of venue.”

On the question of an omnibus change of venue, in City of Chicago v. Marquardt, 30 Ill App2d 108,173 NE2d 825 (1961), this court said (p 111):

“A change of venue is a substantial right and if a petition for a change of venue is duly made, verified and filed in accordance with the statute, it should ‘receive a liberal rather than a strict construction and should be construed to promote rather than defeat the right to a change of venue, particularly where the prejudice on the part of the judge is charged’; and the court can look into the record to see whether a litigant is ‘seeking to avoid a trial of the case at all events.’ . . . While there is no direct authority requiring specifications of prejudice as against a single judge, it is extremely unusual that an application be made against a number of judges without any reason being assigned as to why all of them have a personal prejudice. Where six judges of a court were named, our Supreme Court said: ‘It is not a practice that appeals to us.’ . . . .
“It is an abuse of the Venue Act to attempt to use it to avoid an expected adverse ruling . . . and the court may look to see if the defendant is really seeking to have his trial before a judge who is not prejudiced against him or merely seeking to avoid a trial.”

And atp 112:

“In the absence of specifications of prejudice or a reasonable showing of good faith in seeking a change of venue from twenty-six judges, a trial court is justified in determining that the petition is not filed in good faith, is used to abuse the Venue Act, and should be denied.”

In the light of pertinent authorities and after considering the merits of plaintiff’s venue petition, we find that the record shows that plaintiff did not comply with section 7 of the Venue Act. Plaintiff filed his petition more than 30 days after defendants’ return day, but nowhere in the record does he show when defendants’ undue influence over the judges of the Circuit Court of Cook County came to his knowledge. We think the trial court could properly have concluded that the petition was neither timely filed nor filed in good faith, and that it was an attempt to abuse the Venue Act. We find no error in the procedure followed by Judge Schwartz and hold Judge Ward had jurisdiction to enter the order of May 8,1967, which denied plaintiff’s petition for a change of venue from the judges of Cook County.

Next considered is the question of whether the summary judgment was properly granted because the publication in question was privileged as a matter of law. In a summary judgment proceeding the right of the moving party should be free from doubt. If, upon an examination of the pleadings, depositions and affidavits, it can be fairly said that a material dispute exists as to the facts, the motion for summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment should be granted. DiLeo v. United States Fidelity & Guaranty Co., 50 Ill App2d 183,187,200 NE2d 405 (1964).

The summary judgment order states that the court heard the arguments of counsel and “read the pleadings, affidavits in support of defendants’ motion for summary judgment, and all of the Plaintiff’s Objections and Counter-Affidavits.” Defendants’ affidavits filed in support of the summary judgment included the following:

(1) The affidavit of John Sereno, a courthouse reporter for the Law Bulletin Publishing Company, stated that it was his assigned job to gather material for the “Jury Trial Reports” feature. On the date of the verdict in Sarelas v. Chapralis, he first consulted the pleadings in the case to determine the nature of the cause of action therein. Failing to find out much information from the pleadings “in accordance with instructions and the practice,” he attempted to make contact with both counsel. After trying unsuccessfully to reach Peter Sarelas, John Sereno spoke to opposing counsel, Peter Tatooles, and asked what arguments most influenced the jury. Mr. Tatooles replied that he felt his “sticks and stones” argument was “most instrumental in persuading the jury to award Peter S. Sarelas only one dollar in damages.” In addition affiant stated he did not bear any feeling of malice toward Peter S. Sarelas.

(2) The affidavit of James L. Kellett, the Chief Courthouse Reporter for the Law Bulletin Publishing Company, stated that he was the immediate supervisor of John Sereno and that he and his courthouse staff were instructed to gather the reports of all Law Division jury verdicts rendered so that they might be published promptly thereafter; that he and the courthouse staff were further instructed by the publisher to include in such reports, when possible, “a description of the arguments or factors which, in the opinion of counsel involved in the reported litigation, most influenced the jury.” He also stated that he had no malice toward Peter Sarelas.

(3) The affidavits of Joseph Stadelman, Jr., and Panning MacFarland, Jr., both stated that it was the purpose of the “Jury Trial Reports” feature to serve the legal community; that this purpose would not be furthered if material detrimental or damaging to the legal community at large were published. Furthermore, there was no specific intent to injure Mr. Sarelas as four of the five jury verdicts heard the same day as Sarelas v. Chapralis were also published in the “Jury Trial Reports” section on the day in question. They both stated they had no malice toward Mr. Sarelas.

Defendants’ motion was also supported by an evidence deposition of Peter Tatooles, the attorney mentioned in the article, in which he stated that he did make the argument, “Sticks and stones will break my bones, but names will never hurt me.”

As to the summary judgment, plaintiff further contends that under the sham and pretense of summary judgment procedure, he was deprived of his constitutional right to a jury trial of fact questions, as demanded. He asserts the amended complaint, defendants’ answer and plaintiff’s reply to defendants’ answer raised triable issues of fact to be tried by a jury, as demanded, and where a defense raising an issue of fact as to plaintiff’s right to recover is set up, a summary judgment must be denied. Diversey Liquidating Co. v. Neunkirchen, 370 Ill 523, 527, 19 NE2d 363 (1939).

Plaintiff’s authorities include: “Where, as here, it is apparent that a controversy does exist, the entry of a summary judgment is improper,” (Barkhausen v. Naugher, 395 Ill 562, 567, 70 NE2d 565 (1946)); “The duty of the trial judge in summary judgment proceedings is to determine whether an issue of fact exists, not to resolve facts in dispute. Summary judgment procedure may not be used ... to impair the right of trial by jury where there remains a factual issue”; “[T]he right of the moving party must be free from doubt, and accordingly, the supporting affidavits are to be construed most strongly against the movant and the entire record must be considered,” (Zemel v. Chateau Royale Corp., 35 Ill App2d 313, 315-16, 182 NE2d 383 (1962)); “It is elementary that a motion under section 57 of the Civil Practice Act is not intended to be used as a means of trying an issue of fact,” (Soelke v. Chicago Business Men’s Racing Ass’n, 314 Ill App 336, 338,41 NE2d 232 (1942).)

Plaintiff further argues that in the instant case the existence of a controversy is readily apparent, and that “it is plain and obvious that the Court’s Order granting defendants’ Motion for summary judgment, usurped the function of the jury, and is an unconstitutional abuse of power,” (Bass v. Hoagland, 172 F2d 205, 209); “The right of trial by jury as heretofore enjoyed, shall remain inviolate,” (Illinois Constitution, Article II, section 5).

Plaintiff further asserts that, “In the instant case, the summary judgment procedure was used as an instrumentality to deprive the plaintiff of equal access to courts to prevent or redress wrong and to enforce rights; a right which is guaranteed by the Due Process and Equal Protection clause of the Fourteenth Amendment to the Federal Constitution. Hatfield v. Bailleaux, 290 F2d 632, 636 (9th Cir, 1961); In re Ah Fong, CC Cal, 1874, 1 Fed Cas No. 102, 3 Sawy 144; Stitltner v. Rhay, 322 F2d 314, 316 (9th Cir, 1963); Spires v. Bottorf, 317 F2d 273, 274 (7th Cir, 1963).

“ ‘The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.’ (Emphasis added.) Marbury v. Madison, 1 Cranch 137, 163, CJ Marshall. Illinois Constitution, Article II, Section 19.”

Defendants admit the publication but deny that the subject matter is libelous and assert that even if the article was defamatory it was privileged as a report of a judicial proceeding. Defendants contend the privilege to report judicial and other governmental proceedings is protected by the State and Federal constitutional guarantees of free speech and press, and in support cite Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746 (1966), and Segall v. Lindsay-Schaub Newspapers, Inc., 68 Ill App2d 209, 215 NE2d 295 (1966).

In Lulay v. Peoria Journal-Star, supra, the defendant newspaper published an article describing plaintiff’s appearance before the Health Department, in which plaintiff promised to clean up several sanitary code violations which the defendant had listed in the article. The plaintiff claimed that the article was libelous per se, and the court said (p 114):

“The only sustainable conclusion from the record is that the defendant’s publication is an accurate and capsulized summation of the plaintiff’s six weeks of difficulty with the Peoria Health Department. The right to speak and print about such actions of government is well established; denial of this right would be a serious infringement of both State and Federal constitutional guarantees of free speech and press. . . . The trial court accordingly erred in holding that the defendant’s publication was libelous per se; the court should have recognized and applied the defense of privilege as a matter of law.”

In Lulay, the court further stated (p 115):

“Section 611 of the Restatement of Torts definitely expresses the prevailing, if not unanimous, weight of judicial authority. The right to report the activities of ‘a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgment of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.’ The privilege plainly includes the right to report the activities of such agencies as the Peoria Health Department. . . .
“The privilege to report governmental acts or utterances can only be defeated by proving that a particular publication was motivated solely by actual malice. ... As expressed in the Restatement of Torts, section 611, a publication reporting government proceedings is nonactionable unless published ‘solely for the purpose of causing harm to the person defamed.’ The burden of proving actual malice is always upon the plaintiff, and it would not be the ordinary case where a plaintiff could establish that a news report or discussion of governmental activities was only published because of actual malice. . . . Although the plaintiff contends that the defendant here was guilty of actual malice, plaintiff did not offer any evidence remotely creating an issue of fact as to whether defendant’s news article was conceived or inspired solely because of a malicious design to injure the plaintiff or his business. The plaintiff had the obligation both upon the motion for summary judgment and at the trial to adduce all of the evidence he believed would satisfy his burden.”

In Segall v. Lindsay-Schaub Newspapers, supra, the plaintiff contended that the defendant’s newspaper articles were libelous per se and injured or damaged him as a lawyer. The article concerned statements made during an arraignment of plaintiff’s client on an indictment charging the illegal use of weapons. There the court said (p 213):

“If the acts, declarations or records of agencies in the lower levels of government are privileged within the limitations thus stated, it seems almost perfunctory to assert that proceedings in open court in connection with a pending criminal case are likewise privileged.”

And at p 214:

“Where actual malice is the keystone of recovery in the publication of courtroom happenings and rests on extrinsic facts, it would seem that such a charge should not come into the courtroom naked, but should be clothed with factual allegations from which the actual malice might reasonably be said to exist. This is particularly true of courtroom events. The public is interested in them and this is as it should be. The news media should not operate in this area with a sword of Damocles hanging over its head and be subjected to a categorical charge of malice where the contents of the publication are neither libelous per se nor on their face maliciously made.”

Using the guidelines set forth in Lulay and Segall, we conclude that the trial judge was correct in finding that defendants’ article was privileged. Under the standards of Restatement of Torts, section 611, which was adopted in Lulay, the publication of a report of judicial proceedings (p 115) “is privileged, although it contains matter which is false and defamatory, if it is (a) accurate and complete or a fair abridgment of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed.” In the instant publication there is no dispute as to the accuracy of the report other than the statement that the defendant Chapralis was a Major in the Greek army, for the evidence deposition of Peter Tatooles shows that he did make the “sticks and stones” argument. The alleged erroneous calling of Chapralis a Major is not enough here to make the report inaccurate. In Storey v. Wallace, 60 Ill 51, 54 (1871), it was said:

“It has become the settled law, both of England and of this country, that a faithful report of the proceedings of courts of justice is a privileged publication, and shall not be held a cause of action for libel. The courts consider the advantage to the community from such publication so great, that private inconvenience must yield to the general good.”

Plaintiff further argues that even if the report were privileged, defendants have abused that privilege because they acted in bad faith and with malice toward the plaintiff. He contends that this issue should have been decided by a jury. In support plaintiff cites Flannery v. Allyn, 75 Ill App2d 365, 221 NE2d 89 (1966), where the court held (p 384):

“In a case where there is a qualified privilege and malice is therefore not inferred, the burden of proving malice is upon the plaintiff, and this must be proven to the satisfaction of the jury.”

In our opinion it is obvious that the instant publication was not made for the sole purpose of causing harm to plaintiff. The defendants in their affidavits said the purpose of their “Jury trial report” was to assist the bar in showing what the relevant arguments of counsel were, and that they held no malice toward plaintiff. Plaintiff’s counteraffidavit contained nothing to raise an issue of fact as to malice, and it was his burden to do so. As the court said in Lulay (p 116) :

“The plaintiff had the obligation both upon the motion for summary judgment and at the trial to adduce all of the evidence he believed would satisfy his burden.”

We conclude that while a report by a newspaper of a judicial proceeding “is conditionally or qualifiedly privileged” (see 33 ILP, Slander and Libel, § 55), the pleadings and supporting affidavits here show there was no issue of fact as to any false statement or that the article was written maliciously.

For the reasons given, the summary judgment order from which plaintiff appeals is affirmed in its entirety.

Judgment affirmed.

DEFENDANTS’ CROSS-APPEAL

Defendants cross-appeal from that part of the order entered on October 5, 1967, which denied the defendants’ motion (petition) for assessment of costs and attorneys’ fees and further relief under sections 41 and 57 (5) of the Civil Practice Act. The statutes involved are:

“§ 41. Untrue statements. Allegations and denials made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.”
“§ 57. Summary judgments and decrees. . . .
“(5) Affidavits made in bad faith. If it appears to the satisfaction of the court at any time that any affidavit presented pursuant to this section is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing it to pay to the other party the amount of the reasonable expenses which the filing of the affidavit caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.”

The record shows that on June 29, 1967, and upon the granting of defendants’ motion by the court, defendants presented to the court their motion for relief pursuant to sections 41 and 57 (5) of the Civil Practice Act. Upon objection by plaintiff that he had received no notice of the motion, the court refused to accept the motion for that reason and directed that notice be given and the motion presented again.

Subsequently, and on October 5, 1967, Judge Hallett entered the following order:

This cause coming on to be heard upon the motion of plaintiff for rehearing and to reconsider and vacate order entered on June 29,1967, granting defendants’ motion for summary judgment, and on the motion of defendants for leave to file petition for relief under Sections 41 and 57 (5) of the Civil Practice Act, Chapter 110 Illinois Revised Statutes, the Court having heard the arguments of counsel in open court and being fully advised in the premises, IT IS ORDERED :
That the motion of plaintiff is denied.
That leave is granted defendants to file instanter said motion with affidavit and addendum and memorandum of authorities in support thereof.
That plaintiff is granted leave to file instanter objections to defendants’ motion and to file counter-affidavits. The defendants’ petition (motion) for relief under CPA 41 and 57 (5) is hereby denied.

On November 29, 1967, Judge Hallett certified as correct reports of proceedings before him on June 29, 1967, and on October 3, 1967. The October 1967 report covered the hearing on defendants’ motion for attorneys’ fees and shows that the court denied defendants’ motion for the reasons that: (1) the motion was not filed within thirty days, and (2) because there had been no “trial” as that term is used in section 41 of the Civil Practice Act.

Considered first is plaintiff’s contention that Judges Ward and Hallett improperly certified defendants’ “excerpt” of argument as a “report of proceedings” under Supreme Court Rule 323. The record shows that on November 29, 1967, after notice to plaintiff, Judge Hallett certified a “report of proceedings” which defendants presented to him. This report consisted of excerpts of hearings of the above entitled cause before Judge Albert E. Hallett on June 29, and October 3,1967, and contained the arguments of counsel and the reasons for the judge’s denial of defendants’ motion for relief under sections 41 and 57(5) of the Civil Practice Act. On December 12, 1967, Judge Ward certified a nonverbatim report of proceedings that were held before him on his hearing of plaintiff’s motion for a change of venue from all judges in Cook County. This report also contained a summary of arguments and reasons for the court’s decision.

Plaintiff contends that what was said by the court and counsel in the consideration and disposition of a motion is not properly incorporated in a “report of proceedings.” Plaintiff’s authorities include People v. Chytraus, 183 Ill 190, 55 NE 666 (1899); Klikowski v. Ziegler, 16 Ill App2d 583, 149 NE2d 773 (1958); and People v. Psi Upsilon Fraternity, 320 Ill 326, 150 NE 677 (1926).

In People v. Chytraus, supra, the court said (p 192):

“What was said by counsel and the court in the consideration and decision of the motion to set aside the order of dismissal was in no sense proper to be incorporated in the bill of exceptions.”

In Klikowski v. Ziegler, supra, it was held that arguments of counsel on a motion concerning the pleadings are not of themselves a report of the proceedings as the term is used in the Practice Act, since the appeal is from the order entered and not from the reasons advanced therefor.

In People v. Psi Upsilon Fraternity, supra, it was said (p 328):

“The rule is, that in cases where, as here, the error complained of appears on the face of the record there is no necessity to except to the ruling, and it is not necessary, therefore, that there be a bill of exceptions be filed in this court.”

Defendants note that Rule 323(a) provides that a report of proceedings may include “any other proceedings that the party submitting it desires to have incorporated in the record on appeal.” From this defendants assert that a report of proceedings is not limited only to evidence, and it may include oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the party submitting it desires to have incorporated in the record on appeal. Defendants further state, “The intention of these defendants in having the reports of proceedings made a part of the record on appeal and having them certified by the trial judge was so that this court could see what the judge’s oral rulings and his reasons therefor were concerning his denial of the motion (petition) of the defendants pursuant to Sections 41 and 57 (5) of the Elinois Civil Practice Act.”

We agree with defendants and find that under Rule 323 (a) it was proper for both Judges Ward and HalIett to certify defendants’ excerpts from the record, which dealt only with matters pertinent to the cross-appeal and change of venue, which defendants deemed essential for the judges of this court to decide the issues presented. Also, we find that the nonverbatim report approved by Judge Ward met with the requirements of Rule 323(c). In view of the foregoing, plaintiff’s motion to strike these reports, heretofore taken with the case, is denied.

Considered next is whether defendants’ section 41 motion for relief was timely filed and properly denied. On July 29, 1967, and within thirty days of the entry of the summary judgment order, plaintiff filed a motion for a rehearing and reconsideration and vacation of the summary judgment. On August 11, 1967, defendants served notice that on August 15 they would again move for relief under sections 41 and 57(5). On August 15, 1967, the trial court entered an order continuing for hearing to October 3, 1967, plaintiff’s motion for rehearing and defendants’ motion for leave to file their section 41 motion. On October 3, 1967, and after a hearing, the trial court orally granted defendants leave to file their section 41 motion but denied the motion because (1) the motion was not filed within thirty days of the summary judgment order, and (2) there had been no “trial” as that term is used in section 41 of the Civil Practice Act.

The remarks of the court at that time include: “Now there isn’t any trial. In other words in my opinion, where the attack is not on the untruth of the statement, but where the suit is thrown out because, as here, I hold it is the statement is privileged and the complaint does not state a cause of action, I don’t think that’s appropriate for a 41 motion. ... I have had this before, this general problem, and I feel it has to be based on either a jury verdict or on a court finding of facts. . . . All right, I will give you leave to file this and I will do what I said, I will deny your motion on the grounds first it is too late and second it isn’t on a trial by court.” Pursuant to this oral ruling, the court entered the order of October 5, 1967.

Defendants contend that it was error for the trial court to deny the filing of their section 41 motion on June 29, 1967, because no notice was given to plaintiff. Defendants assert that plaintiff was present in open court, and the provisions of sections 41 and 57 (5) do not include or provide for notice to the opposite side. In support defendants cite Eugene Matanky & Associates, Inc. v. Onixt, 74 Ill App2d 53, 219 NE2d 865 (1966), to show that no notice of the filing of a section 41 motion is required but the court must afford a hearing to the party sought to be charged with costs under section 41.

Defendants further contend that the post-trial motion of plaintiff for a rehearing and the vacation of the summary judgment order of June 29, 1967, stayed the jurisdiction of the trial court until October 5,1967, the date of the disposition of plaintiff’s post-trial motion. Defendants also contend that a trial court has jurisdiction until a notice of appeal is filed, and that a section 41 motion should be considered even if it is filed more than thirty days after final judgment, as long as notice of appeal has not yet been filed.

Defendants also assert that in non jury cases section 68.3 of the Civil Practice Act provides that a post-trial motion for a rehearing or to vacate the judgment, filed within thirty days after the entry of the judgment, stays the jurisdiction of the trial court until the court rules upon that motion.

Plaintiff contends that notice of the section 41 motion was required on June 29, 1967, and when defendants for the first time properly filed the motion on October 5, 1967, it was filed past the thirty day limit required, as set forth in People ex rel. Madison Chemical Corp. v. Gurrie, 52 Ill App2d 360, 202 NE2d 123 (1964), where this court said (p 364):

“Since the petition for costs and fees was not filed within thirty days of the entry of the judgment and since jurisdiction was not retained by the court, the trial court correctly held that it was without jurisdiction to modify the judgment and the petition to modify was properly dismissed.”

Plaintiff further cites Lewis Drainage Dist. v. Melville, 388 Ill 526, 58 NE2d 580 (1944), where the court said (p 530):

“At an early date in this State it was held that in statutory proceedings, even where notice is not required by the statute, on general principles notice should be given in every case before the rights of a party can be taken away.”

Also, Schroeder v. City of New York, 371 US 208 (1962), where it is said (p 212):

“As was emphasized in Mullane, the requirement that parties be notified of proceedings affecting their legally protected interests is obviously a vital corollary to one of the most fundamental requirements of due process — the right to be heard. ‘This right . . . has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.’ ”

In our opinion, plaintiff’s motion filed on July 29, 1967, for a rehearing and for the vacation of the summary judgment entered June 29, 1967, stayed the jurisdiction of the court in this, case for the filing of defendants’ section 41 motion until the disposition of plaintiff’s motion on October 5,1967. Therefore, as defendants’ motion was filed on August 15, 1967, and before the disposition of plaintiff’s motion for a rehearing, we find in this case defendants’ section 41 motion was timely filed and the trial court had jurisdiction to hear it.

Considered next is the question of whether the summary judgment proceedings here constitute a “trial” within the provisions of section 41. Defendants cite Ready v. Ready, 33 Ill App2d 145, 178 NE2d 650 (1961), where the court, in construing section 41, said (p 159) :

“The word ‘trial’ is used in many different senses. As used in the statute we think it means a judicial examination of issues between the parties, whether they be issues of law or of fact. . . . The allowance of counsel fees by the court under the statute and the facts before us was discretionary.”

In our opinion, the summary judgment proceeding here came within the pronouncements set forth in Ready v. Ready, supra, and the word “trial,” as used in section 41, does not necessarily mean a jury trial but a judicial examination of the issues, whether they be fact or law issues, and no finding of fact by a jury verdict is necessary for the consideration of the relief requested.. The summary judgment here provided a sufficient basis for the filing by defendants of a section 41 motion, and the defendants were entitled to a hearing upon the merits of their motion.

For the reasons given, we conclude that defendants’ motion for relief under sections 41 and 57 (5) was timely filed because the court still had jurisdiction of the cause pursuant to plaintiff’s post-trial motion for a rehearing. Also, the summary judgment proceeding here was a trial sufficient to bring defendants’ motion within the terms of section 41. Therefore, and because of the foregoing reasons, that part of the order of October 5, 1967, which denied defendants’ motion (petition) for relief under sections 41 and 57 (5) of the Civil Practice Act is reversed and the cause is remanded to the trial court for a hearing on the merits of that motion, consistent with the views expressed herein.

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

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