text:
    John M. Keen, Jr., a Minor, and Wanda J. Keen, a Minor, by John M. Keen, Their Father, Next Friend and Natural Guardian, Plaintiffs-Appellants and Cross-Appellees, v. Alva C. Davis, Doing Business as Alva C. Davis Drilling Company, and Willard Tullis, Defendants-Appellees and Cross-Appellants.
    Gen. No. 68-10.
    Fifth District.
    March 18, 1969.
    Rehearing denied April 10, 1969.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    Jack E. Horsley, William E. Larrabee, Richard F. Record, Jr., of Craig & Craig, of Mattoon (Fred H. Kelly, of counsel), and John C. Robison of Marshall, Feiger, Robison & Quindry, of Fairfield, for appellees.
   GOLDENHERSH, P. J.

This is a companion case to Keen v. Davis, 76 Ill App2d 49, 221 NE2d 334, 38 Ill2d 280, 230 NE2d 859. The plaintiffs are John M. Keen, Jr., and Wanda J. Keen, respectively 1 and 2 years of age, the minor children, and John M. Keen, Sr., the surviving husband of Carol June Keen, who died as the result of injuries suffered in the collision out of which this litigation arises.

In this case, prior to selection of the jury, the court allowed plaintiffs’ motion to dismiss as parties defendant, John Davis and Clarence Taylor. The case proceeded to trial and the jury returned verdicts in favor of the minor plaintiffs and against the defendants, Alva C. Davis, and Willard Tullís, awarding damages for personal injuries suffered, and in favor of John M. Keen, their father, for medical expenses.

Defendants filed a post-trial motion, which as amended prayed arrest of judgment, entry of judgment n.o.v. and alternatively, for a new trial. The circuit court denied the motion insofar as it sought arrest of judgment and judgment n.o.v. and granted a new trial on the ground that the verdicts were against the manifest weight of the evidence.

Plaintiffs filed a petition for leave to appeal from the order granting the new trial. Upon allowance of the petition by this court, defendants filed a cross-appeal, contending that the trial court erred in its refusal to arrest judgment or enter judgment n.o.v., and alternatively that the verdict in favor of plaintiff, John M. Keen, Jr., was excessive.

The rule that the propriety of granting a new trial on the ground that the verdict is against the manifest weight of the evidence is within the sound discretion of the circuit court is so firmly established as to require no citation of authorities. The concomitant rule is that if a petition for leave to appeal presents grounds which are reasonably debatable, and fairly challenge the propriety of the order, the reviewing court should permit the appeal to be taken. Klatt v. Commonwealth Edison Co., 55 Ill App2d 120, 204 NE2d 319; Hall v. Chicago & N. W. Ry. Co., 349 Ill App 175, 110 NE2d 654; Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill App 394, 2 NE2d 162.

The testimony adduced at the trial is substantially similar to that summarized in the opinions of the Supreme Court and of this court in the companion case, and only a brief review is necessary to a discussion of the issues.

The testimony of Clyde Robbins, called by plaintiffs, was substantially as reviewed in our prior opinion. In identifying the photograph there referred to, he stated that due to the angle of the picture it presents the truck as being more to the center of the road, and in his observation, he would say they were both equal distance in the road.

Larry Murphy’s testimony was almost identical to that adduced at the prior trial.

Clarence Taylor died prior to the trial of this case.

Defendant, Tullís, called under section 60 of the Civil Practice Act, testified to substantially the same matters as in the previous trial except that he stated that when he saw the Keen vehicle for the first time it was 25 to 30 feet from the point where the collision occurred. He also testified that the photograph did not correctly here portray the position of his vehicle in the road.

Alfred Lane, a state trooper, testified that he was called to the scene and “if you had a center line, the left front and rear wheels of the truck would have been right on it.”

Robert McNeill, coroner of Wayne County, testified that at an inquest conducted following the death of Carol June Keen, defendant Tullís was asked: “When did you first see the Keen car?” He answered: “Not until we hit.”

Jesse Ayers, called by défendants, testified that he was working with Tullis, and as they drove eastward he could not see the truck driven by Taylor. Tullis was driving 10 to 15 miles an hour. The dust was 25 to 30 feet in front of them. The right front wheels of defendants’ truck were approximately 3 feet from the right-hand side of the road. Mrs. Keen’s car came out of the dust and “we hit.” The Keen car was angling toward the south but he could not say whether she was straddling the center-line or over the centerline. After the collision the left front wheel of the truck was “just up to the centerline.”

In defendants’ case, defendant Tullis testified that the truck he was driving, as loaded, weighed 50,000 to 60,000 pounds; as he drove east he could see 25 or 30 feet ahead of him; he could not see Taylor’s truck, and the dust cloud had both lanes covered; he did not drive closer than 20 or 30 feet to Taylor’s truck because to do so “was too dangerous.” When he first saw the Keen car it was about 20 feet from his truck. At that time he was driving on his side of the road, with the right side of his truck about two feet from the ditch; the Keen car seemed to be “some over the center of the road.”

Plaintiffs argue that the evidence in this trial was far stronger and more favorable to them than in the prior trial in that it was here testified by Tullis that his vision was so obscured that he was unable to see how far the right side of the truck was from the south side of the road, he knew before the collision that it was dangerous to drive too close to the cloud of dust, the testimony of defendants’ witness, Donald Hanks, showed that the photograph correctly portrayed the position of the truck following the collision, and the testimony of the coroner proved an admission that Tullis had not seen the Keen car until the collision.

Defendants contend that the testimony is no different from that upon which the Supreme Court, in the earlier case, held the circuit court correctly directed verdicts for the defendants.

The rules governing a trial court in its decision to grant a new trial or enter judgment n.o.v., and our review of its actions, are found in the cases hereafter discussed.

In Freeman v. Chicago Transit Authority, 50 Ill App2d 125, 200 NE2d 128, (affd 33 Ill2d 103, 210 NE2d 191), the Appellate Court, at page 137, said: “Not only does the court have the power, but the duty to vacate a verdict against the manifest weight of the evidence.”

In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504, the Supreme Court said at page 510: “In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” In the same opinion the Court, at page 509 said: “We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial, verdict against the manifest weight of the evidence (Lau v. West Towns Bus Co., 16 Ill2d 442, 451, 158 NE2d 63, cert den 361 US 127), and that justifying direction of a verdict or judgment n.o.v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial. It is not our intention by this opinion to alter this concept.”

In Klatt v. Commonwealth Edison Co., 33 Ill2d 481, 211 NE2d 720, the Supreme Court at page 494 said: “Moreover, it must be remembered that the trial court, in reaching a determination to award a new trial, is vested with discretion, and absent a clear abuse thereof, its decision should not be disturbed on appeal.”

Until Pedriek, the test for deciding whether a motion for judgment n.o.v. should be allowed was stated by the Supreme Court in Finley v. New York Cent. R. Co., 19 Ill2d 428, at page 434, 167 NE2d 212, as follows: “Where, as here, a motion is made for judgment notwithstanding the verdict, a question of law is presented as to whether, when all the evidence is considered together with all reasonable inferences therefrom in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove a necessary element of plaintiff’s case. (Bonnier v. Chicago, Burlington & Quincy Railroad Co., 2 Ill2d 606.) If the evidence is such that without weighing the credibility of the witnesses, and upon considering it in its aspects most favorable to the plaintiff, there can be but one reasonable conclusion as to the verdict, the court should direct a verdict or enter judgment notwithstanding the verdict.”

Since Pedriek contains no directive to the contrary, in determining the propriety of the granting of a motion for judgment n.o.v., a reviewing court is confronted with a question of law, while in reviewing whether the trial court was justified in granting a new trial our inquiry is limited to whether its action in so doing was a clear abuse of discretion. Klatt v. Commonwealth Edison Co. (supra).

The only definition of abuse of discretion in an opinion of a reviewing court of Illinois discovered in our research is found in People ex rel. Ball v. Johnson, 341 Ill App 423, 428, 94 NE2d 444. Since the issue there was whether the school trustees of LaSalle County had abused their discretion, it is perhaps, inapposite to a circuit court. A satisfactory definition is found in Peek v. United States, 321 F2d 934, where quoting from Delno v. Market St. Ry. Co., 124 F2d 965, the United States Court of Appeals for the Ninth Circuit, at page 942, said that discretionary judicial action is abused “. . . when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”

Applying this definition, although we do not agree with the trial court that the evidentiary situation presented required the granting of a new trial, we are governed by Department of Public Works and Buildings v. Russell, 28 Ill2d 491, 192 NE2d 900, wherein the Supreme Court said at page 496: “The issue, as we have suggested, is not whether we would set aside the verdicts upon the record before us. It is rather whether the record shows that the trial judge abused his discretion in granting a new trial,” and we are unable to say that the trial court, in granting defendants a new trial, abused its discretion.

Having reached this conclusion, we are confronted with a question of jurisdiction, which, although not raised by the parties, it is our duty to consider. E. M. S. Co. v. Brandt, 103 Ill App2d 445, 243 NE2d 695. This court has jurisdiction, with certain exceptions, to consider only final judgments. In Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371, the Supreme Court at page 48 said: “To be final and appealable, a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment.”

Following the granting of a new trial there was no final order or judgment appealable by defendants and the effect of our affirmance of that order is that upon remand the case is pending, awaiting trial, and with no final judgment. In Davis v. Childers, 33 Ill2d 297, 211 NE2d 364, and again in Martino v. Barra, 37 Ill2d 588, 229 NE2d 545, the Supreme Court held that judgments entered n.o.v. for plaintiffs on all issues except damages were not final and appealable. Since the effect of our decision is remandment for a trial de novo, the denial of defendants’ post-trial motions in arrest and for judgment n.o.v. are not final or appealable, and we are without jurisdiction to review the trial court’s actions.

For the reasons herein set forth the order granting defendants a new trial is affirmed, and the cause remanded for further proceedings.

Order granting new trial affirmed.

MORAN and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE DAVIS

license: Public Domain

text:
    Forest Preserve District of Du Page County, Illinois, a Body Corporate and Politic, Plaintiff-Appellant, v. Harris Trust and Savings Bank, a Corporation of Illinois, as Trustee Under Trust Agreement Dated May 15, 1963, and Known as Trust No. 31117, Beneficiaries of Said Trust Agreement No. 31117, Ruth Anderson and Stuart J. Anderson, Her Husband, the Federal Land Bank of St. Louis, John Vedock and Spouse, Charles Miller, and Unknown Owners, Defendants-Appellees.
    Gen. No. 68-53.
    Second District.
    March 24, 1969.
    Rehearing denied May 19, 1969.

      Nadelhoffer, Hennessy & Dommermuth, of Naperville, and Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellant.
    Solomon Jesmer, of Chicago, and Morrison and Nemanich, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an eminent domain proceeding brought by the Forest Preserve District of Du Page County, to acquire a 21814-acre farm located in Lisle Township, for forest preserve purposes. The jury returned a verdict of $760,-000 as compensation for the land taken. The trial court entered judgment on the verdict, and the plaintiff appealed.

The plaintiff contends that the trial court committed prejudicial evidentiary errors in not permitting certain of its expert witnesses to testify as to their opinions on valuation in that they were based, in part, on hearsay knowledge of other sales; in excluding evidence of sales of certain other lands deemed by the plaintiff to have been comparable sales; in excluding certain exhibits offered by the plaintiff; and in denying the plaintiff’s motion to dismiss the proceeding during the presentation of its case in chief.

We shall first consider the refusal of the trial court to permit two of the plaintiff’s expert witnesses to render their opinions as to the fair cash market value of the property in question. In its memorandum opinion, the trial court recited that its ruling was predicated upon the fact that the two expert witnesses “based” their opinions of value on sales of which they had no personal knowledge. The court stated that opinion testimony may be admissible if hearsay knowledge of other sales merely constitutes a portion of the background knowledge of the witness, (citing Department of Public Works and Buildings v. Divit, 25 Ill2d 93, 182 NE2d 749 (1962)), but that such testimony must be refused if it is based upon or dependent upon hearsay knowledge of sales (citing Trustees of Schools of Tp. No. 44 v. Kirane, 5 Ill2d 64, 124 NE2d 886 (1955); City of Elmhurst v. Rohmeyer, 297 Ill 430, 130 NE 761 (1921); Chicago & W. I. R. Co. v. Heidenreich, 254 Ill 231, 98 NE 567 (1912)).

The plaintiff’s first valuation witness, Jay T. Fitts, testified that he had been a licensed real estate broker in the State and an appraiser for ten years. He recited the various appraisal and real estate institute boards to which he belonged; stated the requirements for membership thereon and the offices which he had held; and listed the special courses he had taken with reference to appraisal techniques. He testified that in addition to acting as a broker, he had been engaged in buying and selling real estate in Du Page County for the past four years and had appraised property in Du Page County and in Lisle Township; named the numerous clients for whom he had done appraisal work, and stated that he previously had testified as an expert witness in eminent domain proceedings in Du Page County.

Fitts then testified as to his work in connection with his appraisal of the subject property. He stated that he first viewed and examined the premises and then inspected the entire neighborhood, with which he was familiar; and that he considered many factors: including the improvements on the property, its appearance, the topography, trees, road frontage, zoning, size, distance, availability or lack of improvements, contiguous land and its use, real estate activity generated in the entire surrounding areas, and the nearby corporate limits. He also described the character and use of the surrounding area in detail and testified that, in his opinion, the highest and best use of the property on September 8, 1967, was its present use, with potential for residential use.

He further testified that he had an opinion as to the fair cash market value of the property on the date in question, and that in arriving at that opinion, the factors he considered “in addition to the items which I have mentioned previously” were “the highest and best use of the property, the physical attributes of the premises, its location, the neighborhood . . . the fact that there were sales of other property in the area and I also used my general knowledge and experience to estimate the value.”

Counsel for the plaintiff then asked the witness to describe in detail approximately eight other properties. These were properties which the witness, in the course of this examination, indicated he had considered in arriving at his opinion of value, and were all involved in recent sales. The witness testified at length as to the characteristics of each of these properties, but did not state, at the insistence of defense counsel, the dates or amounts involved in their sales.

Counsel for the plaintiff then asked the witness if he had an opinion of the fair cash market value of the subject property for the highest and best use on September 8, 1967, the day the petition was filed. Counsel for the defendants then objected to the statement of any opinion of value by the witness, on the ground that the witness had not demonstrated any qualification to render an opinion of value; that he had not participated personally in any of the sales which he considered in arriving at his opinion; and that to permit Fitts to give his opinion of value would be tantamount to the admission of these other sales into evidence, “because the obvious inference is that all of these sales are at the same price that he is testifying for the subject property, that all of these sales are comparable.” The court sustained the objection and refused to permit Fitts to give his opinion as to value.

The sequence of the testimony of Fitts was properly subject to criticism. He first testified with reference to his qualifications, then described the other surrounding properties which he had considered in arriving at his value opinion of the subject property. His opinion of the value of the subject property should logically have followed his testimony concerning his qualifications. Such sequence would have obviated part of the objections raised by the defendants. Under the court’s ruling, Fitts was never permitted, through cross-examination, or otherwise, to pinpoint the basis for his evaluation testimony.

Also, counsel for the defendants, in effect, encouraged the plaintiff to have the witness Fitts testify concerning the description of the other properties by stating, “As long as the witness is going to just confine his statements to the description of the property and so forth ... I would have no objection.” However, after the eight properties had been completely described by the witness, then the fact that such testimony had been received in evidence was used as a further basis for the defendants’ objection to the witness giving an opinion as to the value of the subject property. Under these circumstances, the defendants cannot properly complain of an error which they induced. Compare: City of Waukegan v. Stanczak, 6 Ill2d 594, 608, 129 NE2d 751 (1955); Weaver v. Bolton, 61 Ill App2d 98, 110, 209 NE2d 5 (1965).

The plaintiff’s next valuation witness, Thomas M. Collins, likewise testified as to his background as a broker and appraiser; his membership in various real estate societies and his special training; his background in buying and selling real estate — including real estate in Du Page County; and his background in making appraisals— including those in Du Page County, Lisle Township.

He testified as to his examination of the subject property and his familiarity with the neighborhood. He described the subject property and the surrounding area; stated that he examined and considered its topography, utilities and zoning; and that he examined its assessed valuation. He gave his opinion of the highest and best use of the property as of the date in question, to be for ultimate development for residential use, and in the interim, for farm purposes.

He then stated that he had an opinion as to the fair cash market value of the property, and that in arriving at such opinion, he had considered all of the factors previously mentioned, in addition to the physical characteristics of the property itself, its ultimate use, and also “one of the finest measures of estimating any value is to consult the market, find out if properties have sold, for what purpose, and how they relate to the subject property.” The court then sustained an objection to the witness giving his opinion of value.

We believe that the court erred in excluding the valuation opinions of these witnesses. It seems apparent to us from the extensive recitation of their background and qualifications and of the numerous factors stated by them to have been examined and considered in arriving at their opinions, that these witnesses were rendering an opinion based upon their background and qualifications, upon the physical characteristics of the subject property and surrounding areas, upon the use being made of surrounding properties, upon other factors affecting value, such as availability of utilities and zoning and upon the market in the area for the highest and best use determined by them. We cannot agree that these witnesses sought to give an opinion as to value based solely upon sales of which they had only hearsay knowledge. This conclusion is particularly inescapable in the case of Mr. Collins, who did not testify with particularity as to sales of other properties considered by him.

Further, the fact that the witnesses were aware of sales in the area in which they did not participate, and that they based their opinions, in part, on this knowledge* does not render their opinions inadmissible. The trial court stated that it is proper for a witness to render an opinion of value if a witness has hearsay knowledge of other sales as a part of his background knowledge, but that it is improper to render an opinion if a witness has hearsay knowledge upon which he bases his opinion. Under this statement of the law, we conclude that the most that can be said with reference to the testimony of Collins and Fitts is that they may have included in their basis for an evaluation opinion, hearsay knowledge of other sales. The evidence certainly does not indicate that hearsay knowledge was the basis of such opinions.

Ah expert valuation witness bases his opinion, in part, upon his knowledge of the market situation in the area in question. To say that his opinion, in part, is not based on this knowledge or information because it merely is a part of his general background and experience, is an exercise of pettifoggery. Even though a witness may have all of the other knowledge essential to his expertise — in that he is well trained and experienced in the factors which are important in arriving at a fair cash market value — he must base his opinion, in part, upon knowledge of the market conditions of the particular area in question. Without the latter knowledge, all of the other knowledge requisite to his expertise would still leave the witness deficient in his worth to a party, to the court, and to the jury.

Our courts have recognized that the knowledge of market conditions in the area does not limit expert valuation witnesses to those engaged in real estate activity in the area in question. Thus, in Department of Public Works and Buildings v. Divit, supra, 97, 99, 100, the court found that the evaluation testimony of a Wisconsin real estate appraiser was competent as to the value of property in Kankakee, Illinois, where the witness and his assistants had thoroughly examined the premises and other local factors, including records of sales in the immediate area. In Department of Public Works and Buildings v. Hufeld, 68 Ill App2d 120, 129, 215 NE2d 312 (1966), the court, while paying homage to use of hearsay as a part of the general knowledge and experience only, recognized that valuation opinions based, in part, on hearsay knowledge of other sales are still proper. Also see: Vol 5, Nichols on Eminent Domain, 3rd ed, §§ 18.4, 18.41 and 18.42.

We do not suggest that a valuation witness can merely be given or obtain a list of other sales — and without independent investigation of the character of the premises, its advantages and disadvantages, as a basis for the exercise of his expertise — render an opinion of value. Trustees of Schools of Tp. No. 44 v. Kirane, supra, 69; Chicago & W. I. R. Co. v. Heidenreich, supra, 239. Nor, do we suggest that a valuation witness may testify without personal knowledge of the premises in question. See: City of Elmhurst v. Rohmeyer, supra, 438, 439. We do suggest that an otherwise competent valuation witness is not rendered incompetent merely because he bases his opinion, in part, on hearsay knowledge of other sales.

Because it is our opinion that we must remand the case for a new trial, we will refer briefly to the other evidentiary points and the remaining point raised by the plaintiff. The plaintiff offered independent evidence of comparable sales, the same sales as those referred to by the witness, Fitts. In offering such evidence as substantive evidence of the value of the subject property, the trial court was faced with the responsibility of first determining whether the other properties were sufficiently similar to the subject property to permit the jury to consider these sales as independent evidence of the value of the land in question. A witness having sufficient qualifications to permit him to render an opinion as to value may consider sales, in arriving at his opinion, which would not be proper for a jury’s consideration, the members of the jury presumably possessing less sophistication in this area. See: 12 ALR3d 1064, 1070.

The trial court excluded all of these sales, on varying grounds, some of which we will not refer to here because of the wide discretion permitted the trial court in ruling on such sales and because the determinations to be made by the trial court upon remand again are to be permitted wide discretion, with an awareness, however, that other properties may provide a meaningful basis for comparison even though each contains various points of difference. City of Evanston v. Piotrowicz, 20 Ill2d 512, 522, 170 NE2d 569 (1960); Illinois Bldg. Authority v. Dembinsky, 101 Ill App2d 59, 63, 242 NE2d 67 (1968).

One point, however, should be mentioned in that it was common to most of the so-called comparable sales; was indicated by the trial court to have been essentially its main objection to all of the sales; and was conceded by the defendants’ counsel in oral argument to have been the real basis for the court’s ruling, absent which the court might have allowed most of the sales in evidence: Most of the allegedly comparable sales involved properties to which there was no immediate, adjoining access to sewer and water services.

The subject property was adjacent to a river; was sufficiently large and drained in the appropriate direction to support its own water and sewer facilities. The trial court indicated that the most significant single factor in the area contributing to the value of land was the availability of storm and sanitary sewer, and the cost of providing these services to the property; and it stated it would not admit evidence of these sales without some evidence of the cost of providing these services to the properties.

We believe the trial court was correct in this respect. The party seeking to introduce evidence of comparable sales has the preliminary burden of establishing sufficient similarity. City of Evanston v. Piotrowicz, supra. While it is not normally the burden of such party to offer the evidence of dissimilarities, but the privilege of the other party, the trial court was within the proper exercise of its discretion in not permitting evidence of the sales in the first place without the accompanying evidence of the cost of compensating for this substantial dissimilarity which existed between certain of the allegedly comparable properties and the subject property. This would not require the plaintiff — as was conceded by the defendants’ counsel in oral argument — to obtain detailed engineering and cost analysis. Rough estimates of these costs could be made with sufficient definiteness for this purpose. The plaintiff should hardly complain of the requirement imposed by the trial court in this case as due to the particular attribute of the subject property; the alternative of showing the differing costs of sewer and water facilities is the exclusion of the other sales as not being sufficiently similar to offer independent evidence of the value of the subject property.

The plaintiff complains, generally, that the exclusion of all but three of its twenty-five exhibits was error. The plaintiff did not lay a proper foundation as to the aerial photograph and plastic overlays. With a proper foundation, these may be admissible on retrial. The admission of a number of the exhibits, relating solely to allegedly comparable sales, will depend on the admissibility of such sales. The contour and floodplain map were properly excluded: possible inaccuracies were noted on their face and no witness could vouch for them.

The plaintiff also contends that the trial court erred in not dismissing the case, pursuant to the provisions of Ill Rev Stats 1967, c 47, par 10(a), upon the plaintiff’s motion to dismiss during the presentation of its case in chief. Our determination renders this point moot. The defendants’ objection to the plaintiff’s motion was that it was not made in good faith but made only because the plaintiff’s evidence was not being admitted as anticipated, and that the plaintiff sought a dismissal only to grant itself a new trial to start anew. As it is the determination of this court that the plaintiff is entitled to a new trial because of the evidentiary rulings referred to herein, the plaintiff’s attempt to dismiss the case during the course of the trial, presumably to award itself a new trial, is no longer of significance.

In view of our determination, we will grant the plaintiff’s motion to amend its notice of appeal, but we do not believe the plaintiff is entitled to the additional relief therein requested. Accordingly, the judgment of the trial court is reversed and the cause is remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


author: GOLDENHERSH, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James R. Garrison, Defendant-Appellant.
    Gen. No. 68-23.
    Fifth District.
    March 28, 1969.
    Ralph G. Meyer, of Flora, for appellant.
    H. Carroll Bayler, State’s Attorney, of Louisville, for appellee.
   GOLDENHERSH, P. J.

Defendant, James R. Garrison, entered a plea of guilty in the Circuit Court of Clay County to an indictment charging Eobbery (c 38, § 18-1, Ill Eev Stats) and was sentenced to the penitentiary for a term of not less than one nor more than twenty years.

As grounds for reversal, defendant contends, inter alia, that the record shows that he was so intoxicated at the time of the alleged offense as to be incapable of forming the specific intent essential to the offense.

The record shows that defendant was arraigned on February 7, 1968, and was represented by appointed counsel. He was admonished by the court with respect to his rights, the range of permissible punishment, and answered in the affirmative when asked by the court whether the proceedings had been explained by his counsel and were fully understood by him.

The court requested the State’s Attorney to make a complete statement of the facts on which the charge was based. Upon completion of the statement, defense counsel advised the court that because of his condition of intoxication at the time, defendant had no recollection of the occurrence. He stated he had investigated the case, had interviewed a number of persons and although he felt the defendant did not know what he was doing at the time, he did not think a successful defense could be made to the charge.

Defendant entered a plea of guilty to Eobbery and a second count based on the same occurrence, and charging Armed Eobbery (§ 18-2) was dismissed.

The court explained to defendant that he was entitled to a hearing in aggravation and mitigation which could be held instanter, or if defendant desired, could be set several weeks later. His counsel stated that he had consulted with defendant and preferred a hearing at that time. Counsel thereupon reviewed defendant’s prior record, and the problems resulting from his alcoholism.

Defendant testified as to his activities on the day of the commission of the offense. He testified that he recalled leaving a tavern at 6:30 p. m. and the next thing he remembered was waking up, lying on the street, at midnight.

The following colloquy ensued:

“THE COUET: I am going to ask you this — both counsel and Mr. Garrison. If your statement here is to the effect that this man had no intent to commit any crime, of course he should not plead guilty in the first place. What causes you to plead guilty here if what you state is completely true? What is there about the case here if you don’t have any recollection of this or don’t feel you had intent to commit it, or why did you enter a plea of guilty?
“ME. TODD: It might be — I might say to the Court, it might be on the advice of counsel.
“THE COUET: Do you know you did do this or have you become convinced you did it?
“THE DEFENDANT: With the evidence they had which they didn’t present to me, actually, I see no reason that the sheriff was lying, and I have come to the conclusion that I had done it.
“THE COUET: You did have the money?
“THE DEFENDANT: Within ten dollars was all I had.
“THE SHEEIFF: I have never questioned the defendant. The evidence was available to his counsel in every way. I had the evidence and I told his counsel that I did have, and that’s the reason for the arrest.”

From our review of the record we conclude that defendant voluntarily and knowingly pleaded guilty after a full explanation and admonition, and the plea of guilty waived the necessity of proof of specific intent. People v. Page, 38 Ill2d 611, 232 NE2d 689.

Defendant contends that he was not adequately represented in that his appointed counsel was a general practitioner with no demonstrated skill or experience in the handling of criminal matters, and further, that his counsel did not, and could not be expected to devote the time and effort necessary to the proper representation of an indigent when his compensation, if any, was far less than the fees customarily charged for comparable services.

We are sympathetic to this argument, but in our opinion it is the Bar, rather than the defendants, who suffer under the present system of providing legal services for indigents. In People ex rel. Conn v. Randolph, 35 Ill2d 24, 219 NE2d 337, the Supreme Court pointed out that an attorney, as an officer of the court, owes the duty to defend indigents charged with crime, and it is the experience of this court, that with rare exception, the Bar has discharged this obligation with steadfast devotion. Counsel here was no exception, and defendant was ably represented.

Defendant’s final contention is that the penalty imposed is too severe. From our review of defendant’s prior record, it is our opinion that the sentence imposed is in accord with our holding in People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, and no modification is warranted.

The court thanks appointed counsel for an excellent presentation of the issues, and a thoughtful and provocative discussion of the problems and inequities accompanying our present method of providing counsel for indigents.

For the reasons stated the judgment of the Circuit Court of Clay County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Johnson, Defendant-Appellant.
    Gen. No. 68-74.
    Third District.
    April 1, 1969.
    Rehearing denied April 29,1969.
    Ronald Coplan, of Morrison, for appellant.
    L. E. Ellison, State’s Attorney of Whiteside County, of Morrison, for appellee.
   ALLOY, J.

This cause involves an appeal from a conviction for murder following a jury trial in the Circuit Court of Rock Island County. As a result, defendant was sentenced to serve 14 to 25 years in the penitentiary.

On appeal in this cause, defendant contends (1) that he was not proven guilty of murder beyond a reasonable doubt; (2) that if he was guilty of any offense it was manslaughter and not murder on the basis of the evidence; (3) that the trial court erred in admitting into evidence a dress shirt and an undershirt allegedly worn by decedent at the time he was shot; and (4) that the cause should be remanded to the trial court for a hearing on the motion to suppress the introduction into evidence of the gun which fired the fatal shot.

The trial record indicates that during the early morning hours of August 6, 1967, a number of people, including the decedent and the defendant, were gathered at a certain home in Rock Falls, Illinois, for a party. The party activities included considerable drinking, some dancing and talking and poker playing. The party terminated at approximately 5:30 a. m. when a Walter Dodd asked everyone to leave. The normal means of access to the house was by a rear entrance which opened into the kitchen. The backyard is small and measures some eight by twelve feet from the porch to the alley. As the people were leaving the party, a fight developed in the backyard between an Ed Davis and a Charles Maddock. Neither defendant nor the decedent, Robert Thompson, were involved in the fight at first. Walter Dodd, who responded to a call from Ed Davis for help, came out of the house and attempted to pull Charles Maddock from Davis. At this point, defendant went up to Dodd and struck him in the head. After Dodd was struck he retreated to an automobile parked along the alley and rested against it. Defendant then moved to the south of the fight and was facing north. He then produced a revolver which witnesses stated he fired once in the general direction of Walter Dodd. Robert Thompson, the decedent, was standing near the southwest corner of the back porch when the first shot was fired, and after that shot was fired he advanced on defendant who fired a second shot which hit Thompson, wounding him fatally. Defendant and his brother, Lee Johnson, and a friend, Charles Maddock, then left the scene.

A pathologist who testified that he had conducted an autopsy on decedent Robert Thompson the following day noted, among other things, the existence of multiple abrasions on Thompson’s upper abdomen. The wound of entrance was in the upper part of the abdomen just to the right of the midline and below the rib cage.

After defendant and his companions had come to the home for the party, they noted decedent Thompson and Dodd take a revolver from under a cushion on a couch in the living room of the premises. The two men looked at the weapon and then placed it back under the cushion. Lee Johnson, brother of defendant, took the weapon and placed it in his right rear pocket, covering it with his shirttail. Lee Johnson spent the remainder of the party in the kitchen playing poker. Sometime during the card game, he had shown the gun to the defendant. After the fight had started, as indicated, at the rear of the premises, defendant and his brother were standing beside each other when Thompson headed in defendant’s direction at a fast walk, announcing that he was going to stop the fight. Testimony on behalf of defendant was to the effect that Thompson appeared to have a knife in his hand. This was denied by evidence presented on the part of the State. Defendant took the gun from his brother’s pocket. Defense testimony indicated that Thompson stated he would take the gun away from defendant; that he grabbed at the defendant’s hand which held the gun; and that a struggle took place and the gun discharged. The weapon fell to the ground and defendant picked it up and left with his brother and their friend. Defendant stated that the first shot had struck him in the left side and exhibited a mark to the jury.

The state, in rebuttal, introduced testimony of Mr. Joseph Nicol of the State Bureau of Criminal Identification and Investigation. Mr. Nicol testified that he received the shirt and the undershirt presumably worn by the decedent at the time of the shooting. The exhibits had been handed to an Officer Knox by a nurse who brought them to him from an emergency room in the hospital immediately after the decedent was taken from the emergency room. Officer Knox testified he did nothing to alter the condition of the shirts and that they were in substantially the same condition as when the nurse gave them to him. He gave the shirts to a Lieutenant Sommers, who retained them in his possession until he turned them over to the Assistant State’s Attorney. He also testified he did nothing to alter the condition of the shirts. The shirts were ultimately introduced into evidence at the first trial and were later withdrawn pursuant to court order and taken to the crime laboratory for testing. Witness Nicol testified he did nothing to alter the condition of the shirts. The witness further testified that 18 to 24 inches would be distance at which he would expect to find powder driven into the fabric, and at 24 to 30 inches he would expect to find metallic particles driven in. He test-fired the gun for the purpose of establishing the conclusion as to the powder residue or metallic shavings. He stated that he had examined the exhibits for the purpose of determining the presence of gunpowder or metallic shavings, and that his examination disclosed no gunpowder residue or metallic shavings on the exhibits. His opinion was that powder residue would be present on shots fired on ranges up to approximately 18 to 24 inches and metallic particles would be present at ranges of 24 to 30 inches.

A Sergeant Moreth testified that he had been informed that warrants were outstanding for the arrest of defendant and his companions. He further testified, on making the arrests, that he found three guns in possession of defendant and his companions, two of which were fully loaded, and the third had four live rounds in it and two expended rounds. This gun was shown by the evidence to be the weapon which shot the decedent.

We consider first, the objection relating to the exhibits consisting of the shirt and undershirt worn by decedent at the time of the shooting. There was evidence that decedent was taken to the emergency room at a hospital for emergency treatment and that immediately thereafter the nurse came out and handed an officer the shirt and undershirt worn by decedent. There was then evidence that the shirt and undershirt were passed from one officer to another and then to the Assistant State’s Attorney and to the court custody and the crime laboratory, and that there was no change in the condition of the shirt and undershirt from the time they were first taken from decedent until they were introduced in evidence. It was apparent that there was no break in the chain of custody of the items as shown by the record. On the record before us, it was clear that the shirts were in substantially the same condition as when they were first removed from decedent and that there was sufficient evidence to negate any probability of tampering.

The sole purpose of the exhibits was to lay a foundation for the testimony of witness Nicol who examined them for the purpose of attempting to determine the probable range at which the fatal shot was fired. The exhibits were positively identified and, on the basis of the record, they were properly admitted into evidence (People v. Cain, 35 Ill2d 184, 220 NE2d 195).

With respect to the request for remandment of the cause for a hearing on the motion to suppress the introduction of the gun which was used in the shooting of the decedent, defendant concedes that the statutory provision (1967 Ill Rev Stats, c 38, par 114-12) requires that a motion to suppress evidence must be made before trial unless (1) the opportunity did not exist, or (2) that defendant was not aware of the grounds for the motion. Defendant contends that there should be an interpretation or realization of the rule in the interest of “fundamental fairness” on the basis of People v. Johnson, 38 Ill 2d 399, 231 NE2d 447. While in the cause now on appeal defendant had been represented by different public defenders in his two trials, after his first trial, the original public defender was’ also appointed to assist the attorney who acted in defense at the second trial and both attorneys actively participated in the trial. The gun was introduced in evidence in the first trial and was later withdrawn and taken to the crime laboratory. The witness who took the exhibit from defendant’s apartment was on the list of witnesses furnished by the People for the first trial so that there was no surprise by the offer of the gun in evidence. No effort was made by defendant, even after cross-examination of the sergeant who took the gun, to have the gun stricken or withdrawn as an exhibit, nor was any evidence developed to indicate an illegal seizure of the gun.

The case of People v. Johnson, supra, relied upon by defendant involved a case where two different defenders had represented the defendant at various stages of the proceeding. Counsel who represented him at the trial had no knowledge of any pretrial proceedings in the case and was not assisted by anyone who did. When defense counsel in that case attempted to go into the circumstances of defendant’s arrest, objection was made “that this had already been gone into” and the court sustained that objection by saying “You have already had a hearing on that.” In fact, in that case, there had been no motion to suppress filed and there had been no hearing. Counsel in that case, therefore, relied on the remarks of the prosecutor and the court and made no further attempt to explore this phase of the case. The court in that case specifically stated that in face of the statement by the prosecutor and the court (which implied that a previous motion to suppress had been filed and denied) it seemed useless for counsel to pursue the line of inquiry or object, either by filing a motion to suppress or making some other specific objection to the admission of the heroin packet. It is, therefore, apparent that we have before us an entirely different situation, and that on the record, defendant was not unfairly deprived of an opportunity to raise the question of the seizure of the gun.

Defendant basically contends in this case that the evidence fails to establish that he was guilty beyond a reasonable doubt, and that also such evidence establishes only that he was guilty of manslaughter as opposed to murder. It is clear from the evidence that decedent, Robert Thompson, died as a result of a gunshot wound which was fired by a gun in the control of defendant immediately before the shooting. Following the shooting, defendant and his two companions left, taking the gun with them. Most of the prosecution witnesses testified that two shots were fired and most of the witnesses agreed that it was the second shot which killed Thompson. There was evidence that defendant fired one shot and then said in substance that he wasn’t fooling around and that he would shoot anybody. There was testimony that Thompson was several feet away from defendant when he was hit by the fatal shot. All prosecution witnesses denied that defendant and decedent were engaged in a struggle over the gun at the time the fatal shot was fired. They also testified that Thompson was unarmed and was at the most merely attempting to prevent further violence. The evidence also disclosed that the gun found in defendant’s possession in Chicago following his flight from the scene had two expended rounds and four live rounds in it. It was identified through ballistics as the murder weapon. On the basis of the record we would not be justified, as a reviewing court, in disturbing the jury verdict in this cause.

On the question as to whether the sentence and conviction of defendant should be reduced from murder to manslaughter, it is notable that the witnesses for the People testified that the gun was in defendant’s hand before Thompson advanced toward him. There was also evidence that defendant brandished the gun and threatened to kill anyone there although this is denied by defendant’s witnesses. The witnesses for the prosecution placed no weapon in the hands of Thompson although defendant’s witnesses stated that Thompson appeared to have a knife in his hands. Nothing of this type was found by the police at the scene when the police arrived a few minutes after the shooting. There was also evidence that the shot which killed Thompson was, in the opinion of the ballistics expert, not fired at close enough range to have been fired in the course of a struggle over the gun. In view of the record, we do not believe that we are justified in asserting that this case is analogous to People v. Walker, 55 Ill App2d 292, 204 NE2d 594, in which case the decedent, not the defendant, was the aggressor. In the Walker case, decedent drew a knife in anger and approached defendant and others. In attempting to disarm decedent, defendant and others were cut with the knife, and in the ensuing struggle, decedent was stabbed in the neck with his own knife. On the basis of the record we do not believe we would be justified in setting aside the finding of the jury in this cause.

The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

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


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Curtis Haley, Defendant-Appellant.
    Gen. No. 51,262. (Abstract of Decision.)
    First District, Second Division.
    April 1, 1969.
    Rehearing denied April 22, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Eljner C. Kissane and Michael Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    Jean Bartolini, Plaintiff-Appellant, v. Edward Popovitz, Defendant-Appellee.
    Gen. No. 52,229.
    First District, Second Division.
    April 1, 1969.

      Gabriel J. Aprati, of Chicago Heights (Sidney Z. Karasik, of Chicago, of counsel), for appellant.
    Gunther & Choka, of Chicago (John M. Janewicz, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Plaintiff appeals from an order entered pursuant to defendant’s amended section 72 petition to vacate a default judgment theretofore entered in favor of plaintiff and against defendant.

In May 1963 plaintiff filed a complaint against defendant Popovitz, a real estate broker, alleging he induced plaintiff to exchange certain real estate by means of fraudulent representations. Also named as defendants in the complaint were the other parties to the real estate transaction, William and Dorothy Schau. The complaint requested that the transaction be rescinded and canceled, and that plaintiff’s property be restored to her.

Schau filed a motion to dismiss the complaint on June 15,1963. Popovitz was served with summons on May 16, 1963, and an appearance was filed in his behalf by his first attorney on June 13, 1963. He apparently filed a motion to dismiss the complaint as well, although the motion does not appear in the record. On March 10, 1964, the Popovitz motion was overruled, said defendant failing to appear at the hearing on the motion. The Schau motion to strike was sustained and plaintiff was given leave to file an amended complaint. The amended complaint was filed on March 31,1964.

On April 23, 1964, Schau again filed a motion to dismiss the amended complaint. On June 30, 1964, Schau moved the trial court to set the matter down for hearing and notice of that motion was served upon Popovitz’s first attorney and upon plaintiff’s attorney. Also on June 30th Popovitz’s first attorney served notice that on that day he would request the court for leave to withdraw as attorney of record for Popovitz. Notice of that motion was addressed to the Schau attorney of record and to defendant Popovitz personally, and a copy thereof was mailed to Popovitz’s home address by certified mail; no notice was addressed to plaintiff’s attorney of the withdrawal of Popovitz’s first attorney. Leave was granted the attorney to withdraw from the case. The trial court also continued the hearing on the pending Schau motion to dismiss the amended complaint.

On October 29, 1964, after several continuances of the matter obtained by plaintiff’s attorney, the trial court sustained the Schau motion to dimiss and also set the trial of the case against Popovitz for November 9, 1964. On November 9th Popovitz failed to appear either personally or by attorney and plaintiff proved up her claim against him. On February 5 or 8, 1965, the trial court entered an ex parte default decree on motion of plaintiff, which recited in part that Popovitz failed to file an answer to the amended complaint and also failed to appear at the hearing. Judgment was entered for plaintiff in the amount of $14,873.28, the defendant being ordered to satisfy the judgment within 90 days from the date of the entry of the decree, “with interest and in default of such payment, execution shall issue.”

On April 12, 1965, a verified petition to vacate the default judgment of February 1965 was filed on behalf of Popovitz by his second attorney, said petition setting forth that his first attorney had withdrawn from the case, which he did not learn until April 2, 1965, at which time he also received notice from plaintiff’s attorney that the default judgment had been entered against him. The balance of the petition recited that Popovitz acted only as a real estate agent for the parties to the transaction and that he has a “good and meritorious defense to the plaintiff’s complaint.” The petition prayed that the default judgment be vacated and that leave be granted to Popovitz to file his answer and have the matter set down for hearing on the merits. Plaintiff filed her verified answer to the petition to vacate, and the matter was set for hearing on May 4,1965.

On May 4, 1965, the matter was continued to June 3rd on motion of Popovitz’s second attorney. On June 3rd, again on motion of Popovitz’s attorney, the court continued the hearing on the petition to vacate and plaintiff’s answer thereto, to July 12th, the order reciting that the matter “must be disposed of on that date.” On July 12th the matter was again continued to October 5th on motion of Popovitz’s attorney.

On October 5, 1965, the Popovitz petition to vacate the amended complaint was dismissed and Popovitz was given leave to file an amended petition within ten days. The order also recited that the hearing on the amended petition to vacate was set for October 29, 1965, “without further notice.”

On October 29th the following order was entered by the trial court:

“On motion of plaintiff to deny defendant’s amended petition to vacate judgment heretofore entered, and the defendant having failed to file said amended petition to vacate, as per order of court on October 5, 1965, and defendant having failed to appear in open court, and plaintiff having appeared this day,
“It Is Hereby Ordered:
“That defendant’s amended petition be and is hereby denied (sic) and judgment heretofore entered be and is hereby made final.”

After separate notices were sent to Popovitz and to his second attorney on April 12, 1966, plaintiff presented a petition before the trial court on April 26th to show cause why Popovitz should not be held in contempt of court for failure to comply with the court’s final decree and judgment. On April 26th neither Popovitz nor his attorney appeared in court and the matter was continued to May 26th. On May 26th Popovitz personally appeared in court in response to a letter from plaintiff’s attorney, but plaintiff’s attorney not being present in court that day and the matter not having been entered in the motion book, the matter was again continued to July 1st.

On July 1, 1966, Popovitz’s third attorney appeared in court and caused an order to be entered allowing Popovitz leave to file a petition to vacate the default judgment within thirty days and that all matters be set for hearing on August 15, 1966 without further notice. On July 18, 1966, Popovitz, by his new attorney, filed a petition to vacate the default judgment of February 1965.

The petition to vacate set forth Popovitz’s defense to plaintiff’s amended complaint, as well as matters such as his engagement of his second attorney “to fully represent him in all matters” with respect to the plaintiff’s action, his examination of the trial record subsequent to the rendition of the default judgment which revealed that his attorney failed to file an answer to plaintiff’s amended complaint, and his second attorney’s withdrawal from the case after the default judgment had been vacated, resulting in a subsequent reentry of the default judgment. The petition again prayed that the default judgment be set aside and that Popovitz be given leave to file his defense to the amended complaint. Plaintiff filed an answer to the newest petition to vacate, and after a hearing was had on the petition and the answer thereto, the default judgment of February 1965 was vacated and Popovitz was given leave to file his answer to the amended complaint. From the order plaintiff prosecutes this appeal.

We are in agreement with plaintiff’s position that Popovitz was not entitled to relief under section 72 of the Civil Practice Act for the reason that, as the record clearly reveals, he failed to act with due diligence in presenting his defense prior to the entry of the default judgment and also in attempting to have that judgment set aside.

Before a final judgment by default may be vacated, the defendant must not only show by petition and affidavit that he has a meritorious defense to the allegations contained in the complaint, but that he also exercised due diligence in presenting his defense. Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294. Section 72 of the Civil Practice Act is not intended to relieve a defendant from the consequences of his own negligence or fault. Piper v. Reder, 70 Ill App2d 141, 144, 217 NE 2d 487; Till v. Kara, 22 Ill App2d 502, 509, 161 NE2d 363. Furthermore, a party is bound by the acts, or inaction, of his attorney. Williams v. Pearson, 23 Ill2d 357, 177 NE2d 856.

Popovitz was represented by three successive attorneys in this action. An appearance was filed in his behalf by his first attorney, as was a motion to dismiss the complaint. (Although defendant’s motion to dismiss does not appear of record, the filing of that motion is implicit from the trial court’s denial of the motion.) That motion was denied due to defendant’s failure to appear at the hearing thereon. His first attorney was thereafter given leave to withdraw as attorney of record. Although defendant alleges in his first petition to vacate, that he did not learn of the withdrawal of his first attorney from the case until nine months after the withdrawal, plaintiff’s verified answer to that allegation was that notice of the withdrawal was sent to defendant at his home address by means of certified mail, return receipt requested. Defendant does not deny this, nor does he make any allegation of any attempted contact with his first attorney during that nine-month period which had elapsed between the withdrawal and the date defendant alleged he “first learned” of the attorney’s withdrawal and of the default judgment.

The first petition to vacate, filed April 12, 1965 by defendant’s second attorney, was dismissed on October 5, 1965, and defendant was given leave to file an amended petition within ten days. The amended petition was never filed, and on October 29, 1965, the date previously set by the trial court for a hearing on the amended petition, the defendant again failed to appear either personally or by attorney; the court ordered a dismissal of the petition to vacate and made the default judgment of February 1965 final. Six months later plaintiff sent separate notices to defendant and to his second attorney of his intention to file a petition for a rule to show cause why defendant should not be held in contempt for failure to comply with the final judgment of the court. Neither defendant nor his attorney appeared at the hearing on April 26, 1966 and the matter was continued to May 26th. On May 26th defendant appeared in person and the matter was again continued to July 1, 1966, when defendant’s third attorney appeared and secured an order allowing defendant to file a second petition to vacate the default judgment.

The second petition to vacate, filed on July 18, 1966, alleged no facts showing due diligence on defendant’s part in either presenting his defense prior to entry of the default judgment, or in securing a vacation of the default judgment. The petition in this regard simply recited that defendant engaged his second attorney to “fully represent him in all matters with respect to the pending action,” that subsequent to the entry of the default judgment, defendant found that his attorney of record did not file an answer to the amended complaint, and that after the second attorney secured a vacation of the default judgment, he withdrew as attorney for Popovitz and a default judgment was again entered against him. It is clear that defendant has not set out sufficient facts to establish that he proceeded with the diligence necessary to an allowance of a petition to vacate a default judgment as required by Section 72 of the Civil Practice Act.

For these reasons the order vacating the default judgment is reversed and the cause is remanded with instructions to reinstate the default judgment entered in February 1965.

Judgment reversed and cause remanded with directions.

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


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nelson L. Bonds, Defendant-Appellant.
    Gen. No. 52,646. (Abstract of Decision.)
    First District, Second Division.
    April 1, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Herron Love, Defendant-Appellant.
    Gen. No. 52,816. (Abstract of Decision.)
    First District, Second Division.
    April 1, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant; Edward Y. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: TRAPP, P. J.

text:
    Christian Hugener, d/b/a Chrijo Enterprises, Plaintiff-Appellant, v. Greider’s Wooden Shoe, Inc., DefendantAppellee.
    Gen. No. 10,989.
    Fourth District.
    April 1, 1969.
    Browder, Anthony & Waaler, of Urbana (David B. Hadley, of counsel), for appellant.

      Webber & Welsh, of Decatur (Michael J. Kehart, of counsel), for appellee.
   TRAPP, P. J.

Plaintiff’s complaint, as amended, was dismissed upon defendant’s motion. Plaintiff elected to stand upon his complaint, judgment in bar was entered and he appeals.

Attached to the complaint was a copy of a written contract for the services of musicians to be supplied by plaintiff, at specified times for specified rates during an indefinite term subject to thirty days’ notice of termination of either party. The contract was executed by plaintiff and as The Wooden Shoe by Joy Toler, designated the “employer.” The allegations at issue include: That the defendant employed Toler as a representative authorized to make contracts; that plaintiff had no knowledge and no reason to believe that Toler was acting as agent for defendant until after judgment had been obtained, it is said by default, against Toler; that defendant has refused performance tendered by plaintiff, although the latter has, at all times, been ready, willing and able to perform; that defendant has given no notice of termination of the contract as provided therein; that the judgment obtained against Toler has not been satisfied, in part or otherwise; that plaintiff has attempted to mitigate damages but has been unable so to do; and the defendant has refused plaintiff’s demands for payment. A sum of damages is alleged for breach of contract.

Defendant’s motion to dismiss asserts that the complaint fails to state a cause of action; that the complaint shows, upon its face, that the contract was not signed by or on behalf of the defendant corporation; that the cause of action was merged into plaintiff’s judgment against Toler so that it is barred by res judicata and eannot now be asserted against defendant.

The record does not show any memorandum by the trial court specifying issues which are the basis of his order and judgment.

The complaint does state a cause of action. Auto Parts Co. v. Roberts, 194 Ill App 417. In that case the trial court found that defendant was an undisclosed principal whose agent had entered into a contract with plaintiff, and that plaintiff had obtained a judgment against the agent while in ignorance of the existence of the principal. This judgment remained unsatisfied. The Appellate Court affirmed the trial court’s conclusion that neither the bringing of the action against the agent, nor the obtaining of an unsatisfied judgment, barred the action against the principal. The rule is stated to be that only where the plaintiff has full knowledge of the facts of the agency is there an election to abandon the claim against the principal, so that the action was not barred. The opinion cites Ferry v. Moore, 18 Ill App 135, and Mussenden v. Raiffe, 131 Ill App 456, among other cases. See cases collected in 119 ALR 1319, 1324. Roberts was cited with approval in Longo v. Lewis, 252 Ill App 401. Such Illinois rule is that adopted in Restatement of The Law, Agency 1933, Ch 6, § 210 (b), and the Comment following the section notes that a party has no opportunity to make an election as between the agent and the undisclosed principal until the latter has been identified. To the same effect, see Restatement of The Law, Judgments, Comments, § 100, concerning alternative claims.

Defendant’s claim that plaintiff’s right of action upon the contract was merged in the judgment against Toler is not appropriate and does not support the dismissal of this action. By such doctrine of merger plaintiff’s rights under the contract would have been merged into the judgment against Toler so that plaintiff could bring no further action upon the contract. Restatement of The Law, Judgments, § 47; 23 ILP, Judgments, § 341. Defendant, however, was not a party to the action wherein plaintiff obtained a judgment against Toler. In re Estate of Costello, 72 Ill App2d 112, 218 NE2d 769. Similarly, there is no bar arising upon the doctrine of res judicata. Although concerning the same contract, the cause of action in this case is distinct and independent from that upon which judgment against Toler was obtained. In this case the cause of action includes the issue as to whether or not Toler executed the contract as agent of defendant, an undisclosed principal. Such issue has not heretofore been determined or passed upon. Cohen v. Schlossberg, 17 Ill App2d 320, 150 NE2d 218; Davis v. Robinson, 374 Ill 553, 30 NE2d 52. Different proof is required in this cause of action than was required in the action against Toler. Renner v. Greathouse, 12 Ill App2d 338, 139 NE2d 825.

Subject to necessary proof, the liability of the defendant upon the contract is alternative to the liability of Toler. Limousine & Carriage Mfg. Co. v. Shadburne, 185 Ill App 403; Heywood Brothers & Wakefield Co. v. Andrews, 89 Ill App 195; Mawer-Gulden-Annis, Inc. v. Brazilian & Columbian Coffee Co., 49 Ill App2d 400, 199 NE2d 222. By the weight of authority, plaintiff, in suing and obtaining a judgment against Toler, has not made such an election to proceed against the agent as would bar this action against defendant as principal. Ferry v. Moore, 18 Ill App 135; Auto Parts Co. v. Roberts, 194 Ill App 417.

A party seeking to invoke a prior judgment as a bar to an action against him must show with reasonable certainty that there was a final adjudication on the merits, that such adjudication could be a bar to a subsequent action against defendant, and that there was an identity of parties and causes of action. Brownell v. Quinn, 47 Ill App2d 206, 197 NE2d 721.

Defendant argues that the complaint shows, upon its face, that the contract was not signed by or on behalf of defendant corporation. Such basis for dismissing this complaint disregards summarily the rights of a party against an undisclosed principal who has had the benefit of a contract made by his agent.

Plaintiff argues that the contract attached to the complaint as an exhibit pursuant to c 110, § 36, 111 Rev Stats 1967, is inconsistent with the allegations of the complaint, that the terms of the contract prevail over the allegations of the complaint and control the proceeding so that no cause of action is stated. Suffice to say it is not alleged that defendant executed the contract in its own behalf. The allegation is that Toler executed the contract as agent for an undisclosed principal and without disclosure of her agency. There is thus no valid claim of discrepancy between the allegations of the complaint and the language of the contract within the rule of Divco-Wayne Sales Financial Corp. v. Martin Vehicle Sales, 45 Ill App2d 192, 195 NE2d 287.

The complaint at issue states a cause of action. The judgment of the court below is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Stout, Defendant-Appellant.
    Gen. No. 11,101.
    Fourth District.
    April 1, 1969.
    Lewis, Blickhan & Garrison, of Quincy, for appellant.
    Doane G. Troné, City Attorney, of Rushville, for appellee.
   SMITH, J.

This is an appeal by the defendant from a conviction for the violation of two sections of the ordinances of the City of Rushville. One was a disorderly conduct charge and the other was a fast driving charge. It appears from the record that there was a third charge for a violation of some State statute which was dismissed on motion of the State’s Attorney and the trial proceeded on violations of the city ordinance.

The proceedings for the violations of the city ordinance were apparently filed on criminal complaint forms in the Circuit Court of Schuyler County. The suit was instituted in the name of “The People of the State of Illinois” and one complaint charged disorderly conduct and disturbance of the peace in violation of a specified section of the revised ordinances of the City of Rushville and the second complaint was similarly drafted and charged the offense of fast driving. Both sides have treated this as if it were a criminal procedure and governed by the rules in criminal cases. In our judgment, this proceedings is civil and not criminal. City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870. On the merits, the case must be determined by People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381, where a violation of the city ordinance of the City of Chicago was brought “in the name and by the authority of the People of the State of Illinois.” It was there held that actions for violations of ordinances must be brought in the corporate name of the municipality as required by Ill Rev Stats 1961, c 24, § 1-2-7, while prosecutions for State offenses were brought in the name of the People of the State of Illinois in accordance with art 6, § 33, of the Illinois State Constitution. Section 1-2-7 is not equivocal. It reads “all action brought to enforce any fine . . . shall be brought in the corporate name of the municipality, as plaintiff.” There was no compliance with this section and in its absence, the judgment of the trial court is a nullity at this stage in the proceedings. The People of the State of Illinois as a party had no interest in the enforcement of city ordinances. Accordingly, the judgment must be and it is hereby reversed.

Reversed.

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


author: EBERSPACHER, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Plaintiff-Appellee, v. Edward C. Gieseking, Sr., et al., Defendants-Appellants.
    Gen. No. 67-108.
    Fifth District.
    April 1, 1969.

      Durr & Durr, of Edwardsville, for appellants.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Harold G. Andrews and Horace L. Calvo, Special Assistant Attorneys General, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from the order denying appellants’ post-trial motion for a new trial in an Eminent Domain proceeding. Prior to the hearing, which resulted in the rendition of the jury’s verdicts, title to the property involved in this appeal was vested in the State of Illinois, pursuant to “quick take” proceedings under the Eminent Domain Act; the landowners had petitioned and received 80% of the monies deposited, and had filed their cross petitions for damages.

The proceedings involved the taking of portions of an approximate 200-acre tract, which we shall refer to as the Hosto tract, and portions of an 80-acre tract, which we shall refer to as the Tegmeyer tract. Both the Hosto tract and the Tegmeyer tract, which were adjacent, were bisected by Federal Aid Interstate Route No. 70. From the Hosto tract the State had taken Tract 168 consisting of 9.01 acres and Tract 169, consisting of 9.77 acres, both in fee; the State also had taken easements for the purpose of channel changes on Tract 168C consisting of 1.92 acres and Tract 169C consisting of 0.46 acres; the State had also taken temporary construction easements on Tract 168T consisting of 3.17 acres and Tract 169T consisting of 0.20 acres. From the Tegmeyer tract the State had taken Tract 167 consisting of 10.03 acres, in fee.

Upon the jury returning their verdicts, each of which was within the range of the evidence, the court entered them verbatim in the Minute Record and there recited that they were signed by all 12 jurors, naming them; entered an order discharging the jury and the following: “Judgments entered on the verdicts per order to be filed herein.” No formal written order of judgment was ever filed. Appellants have pointed to section 68(1) of the Civil Practice Act (c 110, Ill Rev Stats 1963) which provides: “Promptly upon the return of a verdict, the court shall enter judgment thereon,” and contend failure to follow the statute is a fatal error, in effect that there is no valid judgment. Their position, of course, is that in order to comply with the time requirement of a post-trial motion they had to treat the situation as if a judgment had been properly entered, although the post-trial motion raised the matter of the absence of a judgment.

The State points out that the only matter for determination in the hearing was the amount of final just compensation and that the record in this case includes the verdicts followed by the sentence, “Which verdict is signed by all 12 jurors,” followed by, and immediately preceding the certification of the official court reporter to the report of proceedings, the following sentence: “Thereupon the court entered judgment on the verdicts.” This they contend shows that a judgment was pronounced by the court.

In eminent domain, a judgment becomes effective when pronounced by the court and is not dependent upon the signing of an order; it is a law proceeding and not a chancery proceeding. Chicago Great Western R. Co. v. Ashelford, 268 Ill 87, 91-92, 108 NE 761. Here the final order appealed from is properly the order denying the post-trial motion, which is a final appealable order.

The general rule is that a judgment must designate the parties for and against whom it is rendered or it will not be a valid final judgment. Kaley v. Carr, 348 111 App 151, 108 NE2d 512, and cases cited therein. We do not condone entry of a purported judgment which does not meet that requirement; the parties are entitled to know precisely the status of the matter and where they stand, without searching the record, once the issues have been determined. Even assuming the judgments here to be defective, on such bases we would not remand for a new trial, and if the verdict is sufficient to sustain the judgments we could affirm the lower court proceedings, granting leave to the State to move for a proper judgment on the verdicts, Meyer v. Village of Teutopolis, 131 Ill 522, 556, 23 NE 651, or in the alternative could exercise our appellate and supervisory powers, (Supreme Court Rule 366(a)), to correct any technical deficiencies observed in the lower court. While the appellants may have been inconvenienced by the procedure followed, we fail to comprehend how they have in any way been prejudiced.

Appellants contend that the court erred in allowing evidence as to the purchase price of a portion of the Hosto tract; (80 acres which defendant Hosto had purchased from parties named Gusewelle approximately 5 years prior to the filing of the Petition in this cause), over appellants’ objection, and that the owners of both tracts were so prejudiced by the introduction of that evidence that they were all entitled to a new trial.

Mr. Marshall, one of the State’s witnesses, testified that the highest and best use of both the Hosto and Tegmeyer tracts was agricultural with a potential for rural residence. On cross-examination he testified that land in Madison County, in which the tracts are situated, had increased steadily in value in the ten years preceding the taking, faster than the statewide average, and that he was familiar with the elements which had created the upsurge in land values. Mr. Piepergerdes, the other State witness, testified that the highest and best use of both tracts was for agricultural purposes, and on cross-examination stated that he had not taken residential possibilities into consideration in determining values but had only considered the land for agricultural purposes.

Appellants here contend that since the State’s two appraiser witnesses made no comparative estimates to other tracts, were not residents of Madison County, and were not registered brokers or salesmen, and had made no sales or purchases of either agricultural tracts or subdivision tracts in Madison County, that the testimony of Marshall “should have been disregarded and the jury told to ignore it” and that the court should have excluded the testimony of Piepergerdes. Had motions to this effect concerning the testimony of otherwise qualified witnesses been timely made below we would have little difficulty in sustaining the trial court’s denial of them; here we do not consider such contentions since they were never made in the trial court.

Mr. Tegmeyer, a broker and experienced appraiser, and one of the owners of the Tegmeyer tract, testified on behalf of appellants with reference to the Tegmeyer tract. He considered that its highest and best use in April 1964 was country residential and that people want to “have the rural atmosphere” and “are buying tracts of land of 5 acres.” (The hearing was held in December 1966.) He testified the Tegmeyer tract was located 1% miles from Troy and that there was residential construction in the area of the Tegmeyer and Hosto tracts within the 3 years previous to the filing of the petition. He admitted that the land was zoned agricultural and that the owners had never made a request for a zoning change.

Mr. Hosto testified that he had bought and sold five different laundry, linen supply and cleaning businesses in as many states; was an officer in two companies presently engaged in that service; had organized and was an officer in a plastic firm; owned residential properties in approximately 15 towns and a subdivision in an adjoining county from which lots were sold for mobile homes. He testified that he had put together 4 different tracts in Missouri to form a 1,340-acre farm, and that “was strictly farming over there” and continued that the Hosto tract in this proceeding was put together by purchases from 4 different owners and was bought for a certain purpose and was not bought for agricultural purposes. In response to the question as to what use was being made of the tract at the time of the filing of the petition he stated, “we bought it as an investment with the idea of flooding that whole valley without running water on anyone else, but it was used as cattle grazing and farmland as a holding operation.” He testified that he had taken out some of the undesirable trees but had left walnuts and good oaks “which adds to the beauty of the ground when we go to sell it.” He testified that he was president of Modern Courts, Incorporated, O’Fallon, which had a mobile homes park, and had laid out a lot of mobile home sites. He also testified that he had a mobile home site on a 10-acre strip on the Hosto tract on which one of his employees lived, and that the highest and best use of the tract at the time of taking was country residential, and in response to the question “Tell the jury what you mean by that?” referring to country residential, said “Well, I found it was readily saleable in 5-acre tracts. I have had a multitude of inquiries constantly.” He testified that the Hosto tract was a mile and a quarter from the city limits of Troy, and that there had been some building out from Troy toward the tract. On cross-examination he testified that approximately 2 years previous to the hearing 39 acres of the Hosto tract had been rezoned from agricultural to highway business and that he had never asked to have the rest of it rezoned. It was after this testimony that he was asked on cross-examination, after testifying that he purchased it in April 1959, the price he paid for the north 80 acres. Over objection and a denied motion for mistrial, Hosto was directed to answer and was allowed to show that it could only be bought on an installment contract and interest paid over a five-year period.

Another witness for appellants testified that the highest and best use of both the Tegmeyer and Hosto tracts, at the time of taking, was agricultural with a potential for tract subdivision.

The question of whether sales of property are voluntarily made, and therefore admissible, rests largely in the discretion of the trial court, and the degree of similarity required between property to be taken and other tracts of land shown in evidence cannot be governed by fixed rule but the admissibility of such testimony must, in each instance, be determined by the trial judge within the proper limits of his discretion. Forest Preserve Dist. v. Folta, 377 Ill 158, 36 NE2d 264.

Here evidence was presented of the purchase price of a portion of the Hosto tract in a hearing that involved both the Tegmeyer and Hosto tracts. In School Trustees v. LaSalle Nat. Bank, 21 Ill2d 552, 173 NE2d 464, the Court reiterated the rule that no positive rule can be laid down and that the matter rested within the discretion of the trial court. The Court in that case further pointed out, at the end of the opinion:

“We have held in other eminent domain actions that where there are other witnesses and evidence as to value on both sides, even the improper admission, Trustees of Schools v. Kirane, 5 Ill2d 64, or the improper exclusion, Forest Preserve District of Cook County v. Krol, 12 Ill2d 139, of value evidence does not constitute reversible error where the jury has the opportunity of weighing the conflicting evidence admitted on behalf of both sides.”

The rule is generally stated as requiring that the sale be a voluntary one, of land similarly situated, and that the sale was about the time of the transaction in question, or recent, or not too remote. A sale seven years and three months prior to the condemnation was held at not being too remote in Forest Preserve Dist. v. Keen, 298 Ill 37, 131 NE 133. Here no one suggested to the court that value evidence properly admissible as to the Tegmeyer tract might not be admissible as to the Hosto tract, and appellants both below and here contend that the evidence of purchase price was prejudicial to all owners; they made no motion and offered no instruction to limit the evidence of purchase price of a portion of the Hosto tract to the Tegmeyer tract. They rely on the holdings to the effect that the price the owner paid may be considered in determining value provided the sale was recent with no change in conditions or marked fluctuations in values since the sale as stated in Forest Preserve Dist. v. Krol, 12 Ill2d 139, 147, 145 NE2d 599, 603.

It has long been the rule and established practice in condemnation cases in Illinois to permit an owner of property to be examined as to the price which the owner paid for the property. Forest Preserve Dist. v. Folta, supra; Forest Preserve Dist. v. Hahn, 341 Ill 599, 173 NE 763; Brown v. Calumet River Ry. Co., 125 Ill 600, 18 NE 283, providing the price paid will afford a fair indication of its value at the time the petition was filed.

In Department of Public Works and Buildings v. Bloomer, 28 Ill2d 267, 191 NE2d 245, the time between the option for purchase of the land was made 5 years before the filing of the petition, as in the present case was the time between contract and petition. There the Court pointed out that the defendants had been given considerable latitude in their evidence concerning improvements and their efforts to upgrade. They also pointed out that, as here, the whole tract was not taken, and the value of the whole was not the ultimate issue to be decided by the jury, but only one item from which the value of the portion taken and the damage to the remainder might be inferred, and as a result any prejudicial effect was therefore necessarily indirect. Citing the Krol and Hahn cases, supra, the Court said at page 274,191 NE2d 250:

“The price paid by the owner may properly be considered in eminent domain proceedings so long as the figure is not misleading because of marked fluctuations in value, changed conditions, and the passage of time since the acquisition.” (Italics ours.)

and concluded that the jury was not misled by the evidence, and affirmed.

In the present case, only portions of both the Tegmeyer and Hosto tracts were taken, and the appellants were given wide latitude in their evidence of improvements and speculative prospects for the land. Not only was the latitude great in this respect, but Hosto made it quite clear, over objections, that his purchase of the tract was for the purpose of subdivision, although it was admitted that the tracts were used for agricultural purposes since their acquisition, with the exception of approximately 10 acres which was taken and which was a mobile home site, and were being used for and zoned for agricultural purposes at the time of taking. According to Hosto, the agricultural use was only for holding purposes, and he made it clear that his intention at the time of purchase was speculative with subsequent assurance of success. The nature of Hosto’s testimony was described by the trial judge in chambers after hearing the arguments of counsel on the question of whether the purchase price of the 80 acres was admissible and before his denying the motion for mistrial and overruling the objection to the question as “He has put it pretty well before the jury what he bought the land for and what he intended to do with it and particularly with that rezoning situation, he has testified to its highest and best use and that was not for buildings, not for golf courses .... Residential. That is what he says is the highest and best use and I think; that is what that is going to be.”

The defendants argue with great force and logic that once a juror knows what a landowner paid for a piece of land, the landowner’s chance for a fair trial ends because the juror will then see to it that the landowner will not make a profit by condemnation. We sympathize with this argument, and although the trial court is vested with discretion in the situation, care should be taken in admitting the evidence because of its persuasive and possibly prejudicial effect. We, however, are bound by the expressions of our Supreme Court on this matter.

The trial court and the jury had heard the evidence, undenied, that land values in Madison County had increased in value in the recent 5 years, and also that the demand for residential sites had increased. As a result, we cannot say that the jury was misled because of the changed market. They were thoroughly advised of it.

We, therefore, conclude that under the holdings in the most recent Supreme Court cases, Bloomer and School Trustees v. LaSalle Nat. Bank, supra, the trial court did not abuse his discretion in denying the motion for mistrial and holding the evidence of purchase price admissible. Such conclusion leads us to further conclude that the court did not err in refusing defendant’s instruction No. 2 directing the jury not to consider the purchase price of any lands as evidence to be considered, although neither that instruction nor any other instructions are set forth in the abstract.

We, therefore, remand the cause for the entry of proper judgments on the verdicts, and in all other respects affirm.

Affirmed and remanded with directions.

GOLDENHERSH and MORAN, JJ., concur.

       C 47, § 2.1 et seq., Ill Rev Stats 1963.

       “We, the jury, find the just compensation to be paid the Defendants for the taking of Tract 167 as described in the petition to be $3,350.00.
      “We, the jury, find the damages to be paid the defendants for damages to the remainder to be $4,500.00.
      “We, the jury, find the just compensation to be paid the defendants for the taking of Tracts 168 and 169 as described in the petition to be $6,300.00.
      “We, the jury, find the just compensation to be paid the defendants for the taking of Tracts 168-C, 168-T, 169-C and 169-T as described in the petition to be $650.00.
      “We, the jury, find the damages to be paid the defendants for damages to the remainder to be $2,500.00.”