author: Mr. JUSTICE McNAMARA

text:
    Kathryn Weiner, Plaintiff-Appellee, v. Checker Taxi Company, Inc., Defendant-Appellant.
    Gen. No. 53,263.
    First District, Third Division.
    May 21, 1970.

      Peter Fitzpatrick and George Kaye, of Chicago (Fitzpatrick & Kaye, Jesmer & Harris, of counsel), for appellant.
    Howard W. Minn and Jack Krause, of Chicago (Melvin B. Lewis, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant Checker Taxi Co., Inc. appeals from an order of the Circuit Court entered on April 15, 1968, which vacated an order entered on July 28, 1964, dismissing plaintiff’s complaint.

On May 7, 1964, plaintiff, a resident of Wisconsin, filed a complaint for personal injuries against defendant. The complaint designated Donald R. Hunter and Reuben J. Liffshin as plaintiff’s counsel, and the only address listed for them was 111 West Washington Street, Chicago. That was Liffshin’s address. Donald R. Hunter was a Wisconsin attorney practicing in Milwaukee, and he did not have an office or mailing address in Chicago. On June 9, 1964, defendant filed a written motion to dismiss the complaint because plaintiff, a nonresident of Illinois, had not posted a security for costs bond as required by statute. Ill Rev Stats, c 33, § 1 (1963). The supporting affidavit filed by counsel for defendant stated that he had full and complete knowledge of the pleadings and documents in the cause, that plaintiff was a resident of Wisconsin and had not filed a security for costs bond. Notice of this motion was sent to Hunter and Liffshin at the Washington Street address and the notice indicated that the motion would be heard on June 23, 1964. The motion was actually presented to the trial court on June 24. When plaintiff’s counsel did not appear, the trial judge telephoned Liffshin and then set the hearing for June 25. Meanwhile Liffshin had moved the court for leave to withdraw his appearance “as associate counsel for the plaintiff.” Notice of that motion was served upon counsel for defendant on June 18, but notice was not served upon Hunter or plaintiff. The motion to withdraw was also set for June 25, and on that day the court entered an order granting leave to the firm of Immenhausen and Liffshin to withdraw as counsel for plaintiff. The court did not rule on defendant’s motion to dismiss, but ordered plaintiff to file security for costs within ten days. On July 17, 1964, counsel for defendant again moved for dismissal of the complaint for plaintiff’s failure to file the security of costs bond as ordered by the court. Notice of that motion was given by mailing a copy to “Donald R. Hunter, 111 West Washington Street, Chicago, Illinois.” On July 28, 1964, the court struck plaintiff’s complaint and dismissed the cause of action.

On July 20, 1964, Howard W. Minn, a Chicago attorney, filed a security for costs on behalf of plaintiff. Although this bond was filed more than 10 days after the order was entered, Minn did not obtain leave of court nor did he give defendant any notice of the filing of the security for costs.

In February 1968, some three and one-half years after the complaint had been dismissed, plaintiff moved to vacate the order of dismissal and to place the case on the trial calendar. In the motion, plaintiff stated that she was unaware that her complaint had been dismissed until February 1, 1968. The sworn petition went on to state that Hunter was licensed to practice law in Wisconsin; that Hunter never had a mailing address in Chicago, but that he had engaged Liffshin as local counsel in the case; that all medical reports and bills incurred by plaintiff had been forwarded by the writers to Hunter at his address in Milwaukee, and that he had forwarded copies to defendant from Milwaukee prior to the order of dismissal; that all notices of motion were sent to plaintiff at 111 West Washington Street in Chicago; that as a result, it was impossible for Hunter to receive any notice at that address. On April 15, 1968, the court vacated the order of dismissal and placed the cause back on the trial calendar.

Defendant on this appeal contends that the trial court erred in vacating the order of dismissal because plaintiff’s motion was not filed within the two years allowed by law and because plaintiff did not show diligence.

The time to apply for relief after judgment is limited to two years under section 72 of the Civil Practice Act. Ill Rev Stats 1967, c 110, § 72 (3). However section 72(7) provides as follows:

“Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.”

Thus it is well settled that a void judgment may be set aside at any time. Reynolds v. Burns, 20 Ill2d 179, 170 NE2d 122 (1960); Martin v. Schillo, 389 Ill 607, 60 NE2d 392 (1945). In Parker v. Board of Trustees of Southern Illinois University, 74 Ill App2d 467, 220 NE2d 258 (1966), the court stated at p 469:

“It is the established law in Illinois that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to impeachment in any collateral action, except for fraud in its procurement; and, even if the judgment is voidable and so illegal or defective that it would be set aside on a proper direct application, it is not subject to collateral attack so long as it stands in force.”

Thus if the order in the instant case was not obtained fraudulently, it was merely voidable, and the court would have had no right to vacate it after a lapse of over two years from its entry. The issue to be determined in the instant case is whether the order of dismissal was void as having been obtained fraudulently. This court, In re Estate of Stith, 105 Ill App2d 429, 244 NE2d 834 (1969), stated at p 437 that:

“To constitute fraud it must be shown not only that the party asserting such fraud had a right which he failed to assert in the former proceedings, but that he was deprived of an opportunity to present such right or defense by improper conduct of the party securing such judgment.”

We believe that careful scrutiny of the record lends scant support to defendant’s contention that its notice of motion was meant to reach plaintiff or her attorney. We find that under the facts and circumstances of the case at bar the order of dismissal was void.

On June 25, 1964, defendant knew that Liffshin was asking leave to withdraw “as associate counsel for plaintiff.” Since on the same day defendant obtained an order directing plaintiff to file a security for costs within ten days, its counsel must have been present when the court entered an order allowing Liffshin to withdraw. Defendant also knew that Hunter was a Wisconsin attorney, and that he had no mailing address in the Chicago area. It had received medical reports and bills from Hunter which revealed that his office was located in Milwaukee. Moreover, in filing the original motion to dismiss the complaint, one of the attorneys for defendant stated in the affidavit that he was familiar with all of the documents in the case, and that he knew plaintiff was a resident of Wisconsin. Yet notwithstanding all of this information, on July 17, 1964, defendant served notice of its motion to dismiss the complaint by mailing a copy only to “Donald R. Hunter, 111 West Washington Street, Chicago, Illinois.” Under these circumstances, it is difficult to understand how defendant expected notice of its motion to reach plaintiff or her counsel. If the notice had been mailed to that address in care of Liffshin or even mentioning his suite number, he may have, as a matter of courtesy, forwarded it to Hunter. The record is silent as to what happened to that notice, but as stated in plaintiff’s petition to vacate the dismissal, it was impossible for Hunter to have received it. Consequently, under the circumstances of this case, we find no merit in defendant’s contention that, since it mailed a copy of the notice to the only address listed in the record, it fulfilled the requirements of mailing notice and therefore acted properly. We believe that the only conclusion which can be reached from these facts is that defendant did not intend to give notice to plaintiff of its motion for dismissal, and that the trial court correctly vacated the order of dismissal.

Defendant also argues that the belated filing of the security for costs by Attorney Minn reveals that its notice of motion was received by plaintiff. The record does not support that contention. The filing of the security for costs indicates at most that plaintiff’s attorney knew that one should be filed. It should also be noted that the security for costs had in fact been filed prior to the entry of the order of dismissal.

Since we find that the order of dismissal was void, we deem it unnecessary to consider whether plaintiff exercised due diligence. In Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill App2d 385, 197 NE2d 73 (1964), the court stated, at p 396, that:

. . the judgment originally entered was void, and hence, even though the petition was designated as having been brought under section 72, it is neither necessary nor appropriate to consider the negligence of the plaintiff as a determinative factor in whether or not the judgment should be vacated.”

Plaintiff has also filed a motion in this court to quash the appeal. In view of the result we have reached, it is unnecessary to consider that motion.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE McNAMARA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. David Ramirez, Defendant-Appellant.
    Gen. No. 53,747.
    First District, Third Division.
    May 21, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Reilley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, David Ramirez, was charged with the sale of a.narcotic drug, marijuana. After a bench trial he was found guilty of that charge and sentenced to the penitentiary for a term of ten to twelve years. Defendant appeals, contending that the trial court erred in denying his motion to suppress certain evidence; that he was not proved guilty beyond a reasonable doubt; and that the trial court improperly restricted his examination of witnesses during the hearing on his motion to suppress the evidence. The evidence presented at the hearing on the motion consisted of the testimony of two police officers and a police informer, and is as follows.

Ronald Yates, who testified that he had known defendant for about six weeks, went to a restaurant in Chicago with defendant and the latter’s girl friend Leona Mamach. Two detectives of the Chicago Police Department entered the restaurant, and Yates left the restaurant to inform one of the officers that he could make a purchase of marijuana from defendant, and that he had made similar purchases from persons for other policemen. The officer searched Yates by going through all his pockets and having him take off his shoes. The officer then gave Yates a prerecorded five dollar bill. Defendant and the girl came out of the restaurant, rejoined Yates and the trio walked together for several blocks. The police officers followed in their squad car. Yates testified that during this walk he purchased the marijuana from defendant. Yates entered a building while defendant and the girl waited outside. Yates called police headquarters to state that the transaction had been completed, and the two officers received a radio call to that effect. One of the officers entered the building and received an envelope containing marijuana from Yates, who stated that defendant’s girl friend had the five dollar bill. The officer placed defendant and Leona Mamach under arrest, and found the prerecorded five dollar bill in a cigarette package in the possession of the girl. Both officers testified that they did not witness any transaction between Yates and the couple, and also that they had not seen any of the three persons prior to the date of arrest.

Defendant’s motion to suppress was denied, and the trial followed.

At trial, in addition to the testimony of the two police officers, Bonald Yates testified that on the date in question he met defendant and Leona Mamach, and asked defendant about the marijuana he was to purchase. Defendant replied that he had it, and Yates then called the police department to make arrangements to meet some detectives. Yates testified that the officer searched him, going through his pockets, the linings of his suit and under his arms, and had him remove his shoes. After he was searched and received the prerecorded money from the police, Yates walked with defendant and Leona. Defendant obtained the envelope containing the marijuana from Leona who had it in her brassiere, and she gave it to Yates. Defendant gave Leona the five dollar bill which she folded and put in her cigarette package. The arrest and search followed. Yates also testified that he knew defendant for about six months. Yates stated that he did not use narcotics. He had smoked marijuana once. He had previously purchased one or two sticks of marijuana from defendant.

Leona Mamach testified for the defense that she had known Yates for some time, had seen him smoking marijuana on numerous occasions, and twice she had seen him use heroin. She was with Yates and defendant on the date in question, but at no time did she see a package of marijuana pass between them. Yates gave defendant a five dollar bill which he owed him as a result of a pool game, and defendant in turn gave the money to her. She did not have a package of marijuana on her person. She also testified that while she had pleaded guilty to the charge of possession of marijuana as a result of the arrest in question, she was not in fact guilty of the charge.

Defendant first contends that the trial court erred in denying his motion to suppress the evidence, arguing that there were insufficient grounds for the arrest and subsequent search of himself and Leona Mamach.

The Criminal Code, Ill Rev Stats 1967, c 38 § 107-2 (c) provides that an officer may arrest a person if:

“He has reasonable grounds to believe that the person is committing or had committed an offense.”

It is well settled that a warrantless arrest may be made on the basis of probable cause and that a warrantless search may be made incidental to a valid arrest. Whether probable cause existed must be governed by the totality of the facts and circumstances in each case. The People v. Hanna, 42 Ill2d 323, 247 NE2d 610 (1969); The People v. Bambulas, 42 Ill2d 419, 247 NE2d 873 (1969). In Bambulas, the court stated at p 422:

“The test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime.”

It seems clear to us in the instant case that the police officers had probable cause to arrest defendant and Leona Mamach without a warrant, and thereafter make a search of both of them as part of that arrest. The police were informed by Yates that he could make a purchase of marijuana from defendant. Thereafter two police officers observed Yates and defendant together. Yates again told one of the officers that he could make a purchase from defendant. He was searched sufficiently to ascertain that he did not have any narcotics on his person, and one of the police officers gave Yates a prerecorded five dollar bill. The two officers then watched Yates, defendant and the latter’s girl friend walk down the street. While neither officer witnessed the actual exchange of narcotics and money, they were subsequently advised by radio that Yates had notified police headquarters that the sale had been completed. One of the officers then recovered the marijuana from Yates, who stated that the girl had the prerecorded money in her cigarette package. Under these facts and circumstances, the police officers had the right to make the arrests and the subsequent searches.

Cases cited by defendant are inapplicable or distinguishable from the case at bar. Aguilar v. Texas, 378 US 108 (1964), and The People v. Parker, 42 Ill2d 42, 245 NE2d 487 (1968), are cases dealing with the reliability of an anonymous informant in connection with an affidavit made for the issuance of a search warrant, and are not concerned with reasonable grounds for arrest without a warrant and an incidental search. In the People v. McClellan, 34 Ill2d 572, 218 NE2d 97 (1966), the arrest and the subsequent search were made by the police solely on the basis of a tip by an admitted narcotics addict without any independent corroboration. In the instant case the police officers not only observed defendant and the informant together, but also recovered the marijuana from the informant prior to making the arrest.

Defendant next argues that he was not proved guilty beyond a reasonable doubt, citing cases holding that the uncorroborated testimony of an addict informer is insufficient for a conviction on a charge of sale of narcotics.

This argument overlooks the fact that the only-testimony in the instant case that Yates was a narcotics addict came from Leona Mamach, who had pleaded guilty to the charge of possession of marijuana as a result of the instant arrest. While Mamach testified that she had seen Yates smoke marijuana many times and had seen him take heroin twice, Yates denied that he used narcotics, and stated that he had smoked marijuana only once. Even if such testimony was sufficient to prove that Yates was an addict informer, it is well settled that while the testimony of a narcotics addict must be scrutinized with caution, his testimony may be sufficient to sustain a conviction if credible under the surrounding circumstances. The People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963). Moreover Yates’ testimony was independently corroborated by the arresting officers. After giving Yates prerecorded money and searching him, the police officers observed him in company with defendant and Mamach. After they were notified that the sale of narcotics had been completed, one of the officers received the envelope containing marijuana from Yates plus the information from him that Mamach had the money. After the arrests and search the officers recovered the prerecorded money from Mamach. These facts constituted ample corroboration of Yates’ testimony that a sale of narcotics had taken place.

Defendant also argues that there were discrepancies in Yates’ testimony as to how long he had known defendant prior to the arrest; that he testified at trial as to a more complete search of his person by the police than he had at the motion to suppress; and that after testifying that he never used narcotics, he stated that he had smoked marijuana once.

Minor discrepancies, such as these, do not, as a matter of law, destroy the credibility of a witness. See People v. Clay, 27 Ill2d 27, 187 NE2d 719 (1963). Such discrepancies or inconsistencies go only to the credibility of the witness and are matters to be taken into consideration by the trier of fact. In the instant case, the trial judge had the opportunity to determine the credibility of the witnesses and to observe their conduct and demeanor. He chose to believe Yates and the corroborating testimony of the police officers rather than that of Leona Mamach. We see no reason to disturb the conclusions of the trial judge, and we find that defendant was proved guilty beyond a reasonable doubt.

We find no merit in defendant’s final contention that he was improperly restricted in his examination of one of the police officers at the hearing on the motion to suppress the evidence. At one point the trial court did sustain an objection to a question as to whether the police officer had ever seen Yates prior to the date of arrest. The court also sustained an objection to a question as to whether the officer witnessed the exchange of money and narcotics between defendant and Yates. However, the record clearly indicates that at the hearing the police officer in question testified more than once that he had never seen Yates prior to the date of arrest. The record is equally clear that the officer also testified that he did not witness the transaction between defendant and Yates. There was no improper restriction in the examination of witnesses at the hearing on the motion to suppress the evidence.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MORAN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Hopkins and Marvin Martin, Defendants-Appellants.
    Gen. No. 69-151.
    Fifth District.
    May 22, 1970.

      Russell H. Classen, of Belleville, for appellants.
    Don P. Koeneman, State’s Attorney of Randolph County, of Chester, and D. McMeekin Conn, Assistant State’s Attorney, for appellee.
   MORAN, P. J.

Defendants, Ronald Hopkins and Marvin Martin, were jointly tried and convicted of theft from the person (Ill Rev Stats 1969, c 38, § 16-1) in a jury trial in the Circuit Court of Randolph County and were sentenced to terms of three to seven years in the State Penitentiary. They appeal.

Mrs. Fern Deterding testified that about twelve, noon, on October 6, 1967, she was shopping in the Voss Grocery Store in Red Bud, Illinois. She had just left the bank across the street and was carrying two bank envelopes in her purse, one containing $1,000 and the other containing $822. As she approached the check-out counter, there were three Negro boys behind her. As she walked toward the doorway, one of the boys ran ahead of her. He dropped some change in the doorway and she had to stop and wait for him to pick it up. While she was waiting, the other two stepped behind her and began nudging her on both sides. She thought they were “only getting fresh.” She identified the defendants as the two boys who had been standing behind her in the doorway. After they let her through the door, she walked straight to the post office where she discovered that the bank envelope which had contained $822 was missing. She still had the envelope containing the $1,000. She did not see any one of them or anyone else actually take the bank envelope from her purse. She remembers seeing the envelope in her purse while standing at the check-out counter and she knows that the money was missing when she arrived at the post office immediately after she left the grocery store. The money in the envelope allegedly stolen consisted of one, five, ten and twenty dollar bills.

The defendants and a third boy were arrested in the afternoon of October 6 near Columbia, Illinois, in Monroe County, and taken to the Columbia Police Station, where their car was impounded. A subsequent search of the car pursuant to a search warrant disclosed $924 under the front seat of their car. On October 7, 1967, defendant Martin signed a written statement admitting that on October 6 he, the defendant, Hopkins, and one Michael Johnson were in Red Bud, Illinois. They drove to a grocery store, but only Hopkins and Johnson went inside. They returned in about five minutes and had a brown paper bag containing a small purchase and a large sum of money in fives, tens and twenties. Martin inquired where they got the money and they answered that they had found it. Martin stated that at no time did he enter the grocery store. His statement was admitted into evidence against both defendants.

Hopkins contends that it was reversible error to admit Martin’s statement as evidence against him. Hopkins was not present when Martin gave the statement, nor did he assent to it. Not only does this statement constitute inadmissible hearsay, but where the defendant giving the statement does not take the stand and admit giving the statement, its admission violates the other defendant’s right to cross-examination secured by the confrontation clause of the Sixth Amendment. Bruton v. United States, 391 US 123. The prosecution argues that defendant, Hopkins failed to object to its admission against him at the trial and therefore is precluded from raising this question in this court. This is plain error of which we take notice. (Ill Rev Stats 1967, c 110A, § 615 (a), People v. Scott, 100 Ill App2d 473, 241 NE2d 579.)

At several points during the closing argument, the former prosecutor made several remarks of such a prejudicial nature that we also recognize, even though they were not objected to by defense counsel. At one point the prosecutor stated:

“The State’s Attorney has a larger responsibility to the people than merely to prosecute those people who may have run afoul of the law. He has a duty to protect the innocent. He has a duty to dismiss cases when they are not properly based and founded and we have dismissed cases here that have not been properly brought against the defendant and this is one, however, against these two comparatively young men that I could not have in good conscience dismissed, that I could not in good conscience let go without prosecution.”

There was no reference to any evidence on which his opinion was based. We believe that this was an improper reference to the prosecutor’s personal belief that the defendants were guilty. As was stated in People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330 at 456:

“The Illinois Supreme Court has repeatedly held that it is improper for the prosecuting attorney to state his own individual opinion or belief of the defendant’s guilt. People v. Provo, 409 Ill 62, 97 NE2d 802; People v. Hoffman, 399 Ill 57, 77 NE2d 195. It also violates the Canons of Ethics (Canon 15 of the Cannons of Professional Ethics of the ISBA and CBA)

And in response to defense counsel’s opening statement in the present case:

“Ladies and Gentlemen, now it’s my opportunity to say something to you. This is the court procedure and I think these clients can’t get up here and tell you what is on their minds and what the evidence is and so, of course, under American jurisprudence the people have to hire someone to be their spokesman. So that’s what we are. Mr. Starnes is spokesman for the State and I happen to be spokesman for these folks here,”

the State’s Attorney opened his rebuttal statement as follows:

“Ladies and Gentlemen, I wanted that read to you so I would make no mistake about what opposing counsel said when he told you that these defendants cannot get up here and tell you their version of the facts. That’s an absolute misstatement of the law. I wanted you to be clear on that. Any defendant in any case has the right to take the witness stand.”

This reference cannot be justified as a proper rebuttal to the defense counsel’s opening comment and was made only to direct the attention of the jury to defendants’ failure to avail themselves of their legal right to testify, thus violating the defendants’ right to remain silent under Ill Rev Stats 1969, c 38, § 155-1 and the Fifth Amendment of the United States Constitution. (People v. Mills, 40 Ill2d 4, 237 NE2d 697; People v. Wollenburg, 37 Ill2d 480, 229 NE2d 490.)

At another point the prosecution responded to the arguments made by defense counsel that no one saw the money actually being taken from Mrs. Deterding’s purse and that the amount found in the defendant’s car was greater than the amount allegedly stolen, as follows:

“We offered that evidence to show by another independent, unbiased witness that these two defendants were in Red Bud, Illinois, and they live in St. Louis, Missouri, they were in a grocery store casing the joint. Where did they get the other $102, the difference between $822 and $924? Maybe in the small town that Marvin Martin says they went to in Illinois when they left East St. Louis. We reached the outskirts in a small town in Illinois. Who knows how they acquired the money at that location.”

And at another point he stated:

“It would be criminal, it would be terrible to let these defendants walk out this door to continue their wayward life of crime and take away somebody else’s money, property or lives.”

These comments improperly suggested that the defendants had been engaged in other criminal conduct for which they were not on trial and certainly were prejudicial. People v. Cage, 34 Ill2d 530, 216 NE2d 805; People v. Brown, 83 Ill App2d 457, 228 NE2d 505.

Substantial errors in this case have prevented the defendants from receiving the fair trial to which they were entitled.

The court thanks appointed counsel for an excellent brief and argument.

For the foregoing reasons this case is reversed and remanded to the Circuit Court of Randolph County for a new trial.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Marilyn Maddox, Plaintiff-Appellant, v. Leland Grisham, Defendant-Appellee.
    Gen. No. 69-31.
    Fifth District.
    May 27, 1970.

      Leonard J. Dunn, of West Frankfort, for appellant.
    Bill F. Green, of Carbondale, for appellee.
   MORAN, P. J.

This action was brought to recover damages for personal injuries arising out of an automobile collision based on the alleged negligence of the defendant and was tried before a jury in the Circuit Court of Perry County. The jury returned a verdict of $3,000 for the plaintiff, but also answered a special interrogatory submitted by defendant, that the plaintiff was guilty of contributory negligence. The trial judge then entered judgment for the defendant on this special finding. The plaintiff appeals.

On February 13, 1966, at about 4:45 p. m., the defendant was driving his automobile in an easterly direction on Route 13 at a point about five miles west of Pinckneyville, Illinois, when he attempted to pass a car being driven by the plaintiff. Just as the front end of his car got about even with the middle of plaintiff’s car, the defendant’s wife, who was sitting in the front seat of defendant’s car, told him that there was a car approaching from the opposite direction. Defendant then slowed down and attempted to turn back into his own lane of traffic. When he did this, the right front end of his car clipped the left rear end of plaintiff’s car which then spun around and into the oncoming lane of traffic, where it was hit by a car coming from the opposite direction.

At the close of all the evidence, plaintiff made a motion for a directed verdict which was denied by the trial court. Also, over the strenuous objection of the plaintiff the trial court submitted a special interrogatory to the jury on the issue of plaintiff’s contributory negligence. The jury rendered a verdict in favor of the plaintiff but answered the special interrogatory in the affirmative. The trial court then entered a judgment in favor of the defendant based upon the jury’s answer to the special interrogatory.

Plaintiff contends that the trial court committed reversible error in failing to enter a verdict on all the issues in favor of the plaintiff at the end of all the evidence and in submitting the special interrogatory to the jury on the issue of plaintiff’s contributory negligence.

PLAINTIFF’S EVIDENCE:

The defendant, Leland Grisham, testified under section 60 of the Civil Practice Act that on February 13, 1966, just prior to the accident, he was driving east along Route 13 when he came upon the plaintiff’s Rambler and started to pass. So far as he knew, the road ahead was clear. When he got to the side of the Rambler, there was a grey car approaching “way on up the road” which he had not noticed. His wife said, “There is a car way up there.” He testified, “I started slowing up . . . but apparently she slowed up, too, and I didn’t get back as far as I thought I was and I just clipped her bumper.” He did not recall whether he sounded his horn before passing her. He was approximately halfway around her when he started to put on his brakes to pull back into the eastbound lane. Again he testified, “When I got back far enough that I thought that I was in the clear, I cut my car back and I clipped her bumper.” He testified that after he hit her car, “it spun, turned around there in the road, headed back west . . . just flipped around there in the road.” When he was passing her, he was going 40 to 45 miles per hour. He did not feel the impact when his car struck hers, nor did he see the impact between plaintiff’s car and the westbound car which struck her, although he heard the westbound car burning rubber trying to stop. He was given a traffic ticket for improper passing by the investigating officer and he pleaded guilty to that charge.

Plaintiff, Marilyn Maddox, testified that on February 13, 1966, at about 4:45 p. m., she was driving her 1966 Rambler in an easterly direction on Route 13 which is a paved two-lane highway, at a point about five miles west of Pinckneyville, Illinois. The road was generally level but with a few small hills. It was a clear day. She was driving at approximately fifty miles per hour on her own side of the road. She then testified, “I was driving along and all of a sudden I heard these brakes squealing. I just glanced in the rearview mirror and there wasn’t anyone behind me. I couldn’t figure what in the world it was. A light car was coming down the road and then all of a sudden this car hit me in the rear. It spun my car around, facing the opposite direction in the westbound lane. This westbound car hit me.”

On cross-examination she testified that there were a series of small hills just before the place of the accident. Just prior to the accident she had been traveling about fifty miles per hour and for the last one-half mile before the accident she did not see any cars following her. The first time she realized that defendant’s car was approaching was when she heard brakes squealing. At that time she glanced in her rearview mirror and saw a little bit of his car approximately halfway up to her car in the left-hand lane of traffic with the front near the middle of her car. At that time, the car approaching from the east was approximately eight car lengths away. She estimated its speed at approximately sixty miles per hour. She thought there was going to be a head-on collision. The defendant’s car had not clipped her yet. She does not know if she pressed on the accelerator, but she is sure she did not press on the brake. She stated at her deposition that she pressed on the accelerator and thought she could clear a way. She did not see the defendant’s car hit her car at any time. She assumed his front bumper clipped hers because she felt the defendant’s car come into contact with hers. After defendant’s car struck her, she spun around in the road. It moved her forward, to the right. She went off the road on the south side and back across two lanes of traffic to the north side of the road and spun around, facing west.

State Patrolman Carlos Tolbert testified that he investigated this accident on February 13, 1966. He determined that three cars were involved in this incident. Defendant told him at the scene that when he attempted to pass plaintiff’s car, he noticed the oncoming car and upon returning to the eastbound lane of traffic, he “ran into the rear of the Maddox car. He pushed it or it went out of control into the other lane of traffic in front of the (oncoming car) who collided with the rear of the Maddox car at that time.” He observed the defendant’s car and noted that the right front fender was dented.

DEFENDANT'S EVIDENCE:

The defendant testified that prior to the accident he had been traveling 30 to 35 miles per hour and had been following in a line of cars. The car at the front of this line was the plaintiff’s Rambler, traveling approximately 30 to 35 miles per hour in an easterly direction. He followed for approximately two or three miles before attempting to pass. When he got approximately halfway around the plaintiff he saw the approaching vehicle approximately six hundred steps away, and it appeared to be traveling fast, in his opinion. He started slowing down to get behind the Rambler. He thought the Rambler slowed as he slowed. He did not feel any jolt or hear any crash between her car and his own. He did get back on his own side of the road and safely stopped his car. As he returned to his own lane, “the Rambler just turned around, right square in the road and headed back west.” He testified that at no time did he run into the rear of this Rambler. After the accident, he and the investigating state patrolman looked at the front fender of his car. There was a slight mark, but there was no dent right in the front on the right side, near the headlight. Until the Rambler went out of control, he thought he had actually gotten safely back into his own line of traffic and thought he had actually cleared.

On cross-examination he testified that “I said I might have clipped it with a bumper. I said I don’t know, I said I could have. I don’t say I did. I don’t recall.” At his deposition he had stated that he presumed that he had hit the bumper of the Rambler but that he could not see what part he hit at the time of the impact, nor could he see it after the collision because the other car had damaged the rear of the Rambler, but whatever part he hit, the Rambler just flipped around in the road and never left the road, and the impact of his car hitting hers just turned it around facing the other direction. He testified that he had also told the investigating state patrolman that he might have clipped the bumper.

The defendant’s wife, Mrs. Hallie Grisham, testified that she was riding in the automobile with her husband at the time of the accident. They had come upon a string of cars traveling 40 to 45 miles per hour. Eventually they came upon the plaintiff’s Rambler traveling 30 to 35 miles per hour. They followed this Rambler for a period of time before the defendant attempted to pass. When he pulled out to pass, she estimated he was traveling about 45 miles per hour. When he was halfway around the Rambler, she saw the westbound automobile about 600 steps ahead of them, and she pointed this out to her husband. The westbound automobile appeared to be coming fast. He then slowed his automobile. She thinks that the Rambler automobile slowed, also. In getting behind the Rambler, she did not feel any jolt or hear any crash at any time. She saw the Rambler flip around in the road and end up headed west. Nothing happened to their automobile. To her knowledge, the defendant’s car did not come into contact with the rear end of the Rambler. She had observed their car and to her knowledge there is no damage and their car has not been repaired.

DISCUSSION:

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. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. This rule governs both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law. Pedrick v. Peoria & Eastern R. Co., supra, at 503.

Clearly the evidence establishes that the sole cause of the accident was defendant’s conduct and that he was guilty of negligence as a matter of law. His attempt to pass when the road ahead was not clearly visible and his turning back to his own lane when it was not safe to do so, causing his automobile to clip the rear of the plaintiff’s automobile, precipitated the events leading to the collision. Although defendant points to the testimony of defendant and his wife that they did not feel the jolt or hear any impact between their car and plaintiff’s, the evidence is overwhelming that the defendant’s car struck the plaintiff’s car when he attempted to return to his own lane and caused it to go out of control.

Defendant contends, however, that notwithstanding the defendant’s conduct, there are inferences to be drawn from the evidence from which the jury could conclude that the plaintiff was contributorily negligent. Defendant argues that there is evidence from which a jury could find (1) that if defendant’s car did strike plaintiff’s car, the impact was too slight to cause it to go out of control, (2) that if defendant’s car struck plaintiff’s car, it was due to the fact that she slowed down as defendant was trying to return to the right lane of traffic, (3) the plaintiff attempted to accelerate and lost control of her vehicle, and (4) that plaintiff merely failed to maintain control of her automobile.

We do not believe that any of the foregoing contentions are tenable. It is difficult to believe that the impact between defendant’s and plaintiff’s cars was too slight to cause plaintiff’s car to go out of control, when the uncontroverted evidence is that immediately upon contact between the two cars, plaintiff’s car spun around in the highway and was struck in the rear by a car coming from the opposite direction. Assuming plaintiff did accelerate or slow down during the emergency created by the defendant, this would still be no evidence of negligence on her part. Either action may have seemed to her the safest thing to do at the time.

The record does not reflect anything that the plaintiff, acting as a prudent person, did do or could have done to avoid the accident in question. Thus, it was error for the trial court to submit the issue of plaintiff’s contributory negligence to the jury.

We think it can fairly be said that all of the evidence viewed most favorably to defendant so overwhelmingly favors plaintiff that no contrary verdict based on this evidence could ever stand. Plaintiff’s motion for directed verdict at the close of all the evidence on the issue of defendant’s liability should have been allowed and only the issue of damages should have been submitted to the jury.

Plaintiff also contends that the jury verdict of $3,000 is so grossly inadequate that she is entitled to a new trial on the issue of damages. She points out that the plaintiff suffered special damages in excess of $4,400, and that the jury award does not even equal that amount. Under the facts in this case, the only issue that should have been submitted to the jury was the damages, and the erroneous submission of the liability issue could have been reflected in the damage award of the jury.

The judgment of the Circuit Court of Perry County is reversed and remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    William Hunter, Plaintiff and Counterdefendant-Appellee, v. Thomas DeMay, Defendant-Counterplaintiff and Third-Party Plaintiff-Appellant, v. Paul F. Blackwell, Third-Party Defendant-Appellee.
    Gen. No. 69-74.
    Second District.
    May 28, 1970.

      Gordon and Brustin, of Chicago, for appellant.
    David G. Mountcastle, of Wheaton, and Hinshaw, Culbertson, Moelmann, Hoban and Fuller, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This action for specific performance of a real estate sales contract was commenced by William Hunter, the buyer, against Thomas DeMay, the seller, to compel De May to convey approximately ll1/^ acres of land to him. DeMay filed an answer and counterclaim against Hunter, which alleged that he had been fraudulently induced to sign the contract by Paul F. Blackwell, a real estate agent, who, DeMay alleged, was acting as agent for Hunter in the transaction. DeMay, in the capacity of a third-party plaintiff, also sued Blackwell and alleged that the contract provided that DeMay was to pay Blackwell a commission for the sale; that by virtue of said provision, Blackwell was DeMay’s agent, and that, therefore, Blackwell should be required to indemnify DeMay for any monetary loss he would suffer were specific performance to be decreed.

Hunter filed a reply denying the affirmative allegations of the plaintiff’s answer, and an answer to the counterclaim which denied the allegations therein made. Blackwell filed a counterclaim against DeMay for real estate commissions, the allegations of which DeMay denied.

After hearing the cause, the trial court entered an order decreeing specific performance of the contract, granting judgment for Blackwell on his counterclaim, and further, granting judgment for Hunter and Blackwell on DeMay’s counterclaim and third-party complaint, respectively. Subsequently, the will of Marie DeMay, the deceased wife of the defendant, was admitted to probate; and DeMay was enjoined from filing a renunciation of the will. DeMay appealed to this court, and asked that we reverse the order of the trial court and enter judgment in his favor on all issues.

In 1963, DeMay and his wife executed an exclusive sales contract for ninety days for the land which is the subject of this lawsuit. Blackwell was their agent under this agreement. The contract set forth the purchase price as $77,000. No sale was made and the agreement expired by its terms.

Marie DeMay died in 1965, and at that time she held the fee title to the real estate. She left a will which devised said real estate to her husband, Thomas DeMay; and the remainder of her estate to their seven children.

In August of 1967, Blackwell approached DeMay with an offer to purchase the property for $50,000. This offer contained no reference to the acreage of the property, but described it by metes and bounds. At that time De May had personally been trying to sell 8% acres of this property and, according to his testimony, he had a “for sale” sign to this effect at the entrance of the property. DeMay indicated that he understood Blackwell’s offer to be for 8y% acres. The offer was rejected in the form of a counteroffer which DeMay made by making certain changes on the face of the offer. The counteroffer was rejected by Hunter, who had made the original offer.

Blackwell presented another offer to purchase to De May, wherein the sale price was $65,000. According to Blackwell, the sale price was changed to $74,000, at De May’s request. This price was accepted by Hunter. Blackwell was present when DeMay executed the agreement, which included a rider, wherein the property was legally described without any reference to its acreage. Blackwell testified that DeMay looked over the offer for forty-five minutes before signing it, although Blackwell could not testify that DeMay was then reading it. Later, Hunter signed the agreement.

DeMay, on the other hand, testified that he always intended and understood that the sale was to be for 8% acres, and that he intended to retain the 2%-acre tract of the property upon which his home was located. He further testified that he did not read the contract because he could not read, and that he signed only because he thought he was signing an offer for 81/2 acres. There was a great deal of conflicting testimony in the record as to DeMay’s ability or inability to read and to handle his own affairs. By his own testimony, however, it does appear that he could read, with some difficulty, and that he had managed his own affairs fairly well since his wife’s death.

Specific performance of a contract to convey real estate is not a matter of absolute right, but rests in the sound discretion of the trial court. But the court has no arbitrary discretion to deny relief. Miller v. Shea, 300 Ill 180, 184, 133 NE 183 (1921). The remedy may not be denied where it has been proved with a reasonable degree of certainty that there is a fair and valid contract and that the party seeking performance has offered to perform all the terms and conditions required of him. Greengard v. Bernstein, 343 Ill 416, 419, 175 NE 424 (1931). However, where a contract for the sale of real estate has been entered into without misunderstanding on the part of the vendee and without misrepresentation on the part of the vendor, specific performance will be granted as a matter of right and not as a matter of discretion. Hotze v. Schlanser, 410 Ill 265, 269, 270, 102 NE2d 131 (1951).

The relief of specific performance will not be granted where a contract was entered into unfairly because of the circumstances of one or more of the parties, such as where unfair advantage has been taken of the ignorance, the confidence, the friendship, the inexperience or the mental deterioration of one of the parties to a contract. (Wrobel v. Wojtasiek, 341 Ill 330, 338, 339, 173 NE 348 (1930)); and where the relief would be inequitable or unconscionable, or where misrepresentations, unfairness, or superior advantage were responsible for the agreement, the relief will be denied, (Schiff v. Breitenbach, 14 Ill2d 611, 616, 153 NE2d 549 (1958)).

The evidence regarding DeMay’s capacity to contract indicates that he was not an astute individual. It appears, however, that he was able to read, although with difficulty, and that on other occasions he had the presence of mind to ask for assistance in the handling of his business affairs. The evidence in this regard, and with reference to the circumstances surrounding the actual signing of the agreement, is conflicting. It seems rather obvious from the decision of the trial court, that it gave more credence to the evidence of the plaintiff. As to these issues, we may not disturb the findings of the trial court unless they are manifestly against the weight of the evidence. Brown v. Zimmerman, 18 Ill2d 94, 102, 163 NE2d 518 (1959); First Nat. Bank of Elgin v. Dierking, 87 Ill App2d 4, 13, 14, 230 NE2d 520 (1967). This is particularly true in close cases where the findings must have been dictated to a large extent by the impressions of credibility received by the trial court from the observation of witnesses.

DeMay contends that the trial court made evidentiary errors in excluding and in admitting certain evidence. The first allegation is that the trial court excluded relevant evidence of the dual agency of Blackwell for both the seller and buyer in this transaction. Our courts have long held that specific performance will not be granted in connection with a contract for the sale of real estate where the real estate broker acted on behalf of both the buyer and seller, without a full and complete disclosure of his dual agency. Wloczewski v. Kozlowski, 395 Ill 402, 406-408 incl., 70 NE2d 560 (1947); Fish v. Leser, 69 Ill 394, 400 (1873).

Upon a review of the entire record, however, we are satisfied that the trial court was fully advised on this issue. A number of questions propounded by counsel on this issue were of questionable relevancy. The trial court acted within its discretion in its evidentiary rulings on this matter when it permitted counsel to travel only so far afield and no further. At one point or another throughout the record of this proceeding, the relevant evidence on this issue was admitted by the court, and we find that such evidence was sufficient to sustain its findings.

Closely akin to the foregoing is the contention that the trial court did not permit evidence of DeMay’s limited formal education. The trial court properly struck the testimony of DeMay’s son with reference to the extent of his father’s education when his testimony indicated that his answers were pure conjecture. DeMay, himself, was competent to testify to these facts and the court so advised counsel. However, counsel did not seek to elicit this information from DeMay when he was on the stand, and he may not now complain of this deficiency in the evidence.

The remaining areas of evidentiary complaint relate to the testimony of David C. Auble, a real estate broker, concerning the value of the property in question; and the testimony of the secretary of the County Zoning Board— in rebuttal to evidence that there was a very high possibility of rezoning the property to multiple family use — • as to the general policy of the Board with reference to granting multiple-family zoning.

With regard to the testimony of Auble, his opinion as to value was based upon a cursory examination of DeMay’s property and on his knowledge of a comparable sale of property located about five miles from the property in question. The trial court is permitted wide discretion in its evidentiary rulings under such circumstances. Illinois Bldg. Authority v. Dembinsky, 101 Ill App2d 59, 63, 242 NE2d 67 (1968). Auble’s testimony indicated that he was qualified to testify as an expert; it further suggests that the court probably gave no extraordinary weight to his conclusions. We find no reversible error in this respect. The complaints go to the weight and value of the testimony of this witness, not his competency. Kankakee Park Dist. v. Heidenreich, 328 Ill 198, 202, 159 NE 289 (1927).

The secretary of the zoning board did not testify as to the likelihood or probability of rezoning this particular property. His testimony was offered to rebut the testimony of one of DeMay’s appraisers to the effect that there was a strong possibility of having the property rezoned for multiple housing. The testimony of the Zoning Board secretary was in reference to the factors considered by the Board in determining whether multiple-zoning classification might be granted to any property. It was proper, particularly in view of the fact that it was testimony in rebuttal of one of DeMay’s witnesses. See: Lombard Park Dist. v. Chicago Title & Trust Co., 103 Ill App2d 1, 7-9 inch, 242 NE2d 440 (1968).

In a case tried before the court without a jury, it will be presumed, unless the contrary is manifest, that all incompetent evidence in the record before the court was rejected and all competent evidence was considered on the final hearing. If there is sufficient competent evidence in the record to sustain the findings and the judgment, it will then be affirmed. Oswald v. Nehls, 233 Ill 438, 444, 84 NE 619 (1908); Head v. Wood, 20 Ill App2d 97, 110, 155 NE2d 348 (1959). In the case at bar, an examination of the entire record is persuasive that the weight of the evidence is sufficient to sustain the decree of the trial court.

We also believe that the trial court was correct in its ruling that DeMay should be enjoined from renouncing his wife’s will. DeMay had lived on the property for a considerable period of time, after his wife’s death, in a manner consistent with an intent to accept the provisions of the will, and his conduct should be deemed an election to accept the terms of the will. Remillard v. Remillard, 6 Ill2d 567, 570, 571, 129 NE2d 744 (1955); Burns v. First Nat. Bank of Joliet, 304 Ill 292, 295, 296, 136 NE 695 (1922).

In the light of these pronouncements, the decree of the trial court is affirmed.

Decree affirmed.

MORAN and SEIDENFELD, JJ., concur.


text:
    In the Matter of the Estate of James Douglas Lockwood, Deceased.
    Gen. No. 69-83.
    Fifth District.
    June 2, 1970.
    Conger & Elliott, of Carmi, for appellant.
    Robert S. Hill, of Benton, for appellee.
   MORAN, P. J.

This is an appeal from an order of the Circuit Court of Hamilton County denying probate to a will of James D. Lockwood, deceased, dated December 9, 1967, and a will dated August 3, 1968 with two codicils thereto dated October 2, 1968, and October 30, 1968. The court admitted to probate the will of James D. Lockwood, deceased, dated October 26, 1966, and appointed Anna L. Nunley as Administratrix with will annexed.

Jewell E. Lockwood filed a verified petition to probate the will of James D. Lockwood dated August 3, 1968, expressly revoking all prior wills and two codicils thereto dated October 2, 1968, and October 30, 1968. In the same proceeding Anna L. Nunley filed a verified petition to probate a will of James D. Lockwood, deceased, dated December 9, 1967, and at the same time filed an alternative petition to probate another will dated October 26, 1966, which was a joint will of James D. Lockwood and Daisy L. Lockwood, husband and wife, both deceased. She also filed a motion to deny probate of the will dated August 3, 1968, and the codicils thereto, claiming that the joint and mutual will dated October 26, 1966, showed on its face a contract for the disposition of the entire estate proved by the will itself which could not be revoked by the later will and codicils.

At the probate hearing the execution of each will and each codicil was established by competent evidence sufficient to admit each to probate insofar as the testimony of the attesting witnesses is concerned. The court denied probate to the will dated December 9, 1967, without comment and then found that when James D. Lockwood and Daisy L. Lockwood executed their will of October 26, 1966, it was their intention to make a joint will and that the existence of a contract not to revoke that will was in the terms of the will itself. The court also found that after the death of Daisy L. Lockwood, the joint will was admitted to probate in her estate and became binding upon James D. Lockwood and could not be revoked by him, citing In re Estate of Weaver, 71 Ill App 2d 232, 217 NE2d 326. The court then admitted the joint will dated October 26, 1966, to probate and appointed Anna L. Nunley as administratrix with will annexed, since the appointed executor under that will was deceased.

The issue presented for review is whether probate can be denied the last will of a testator in a probate proceeding on the grounds that there is a prior joint and mutual will, or whether the rights sought to be established under that instrument must be asserted in another proceeding. The trial court correctly noted that prior to the new Judicial Article effective January 1, 1964, the Probate Court did not have jurisdiction to determine the validity or construction of a prior revoked joint will as a contract not to revoke, but that under section 69 of the Probate Act (Ill Rev Stats 1959, c 3, par 221), the jurisdiction to be exercised and the issue to be decided as to which of the proffered instruments was the last will of the testator executed in compliance with the statutory requirements, and the question of whether such a joint will was made pursuant to a contract not to revoke and whether such contract was breached, was a question solely within the jurisdiction of the Circuit Court in an action on the contract or a suit in Chancery to establish a constructive trust, citing In re Estate of Baughman, 20 Ill 2d 593, 170 NE2d 557. The trial court then went on to note that since the Judicial Article, there is now only one Circuit Court of general jurisdiction which eliminates the jurisdictional problems raised in Baughman.

In In re Estate of Weaver, supra, the Appellate Court permitted the consideration of the same factual situation on the merits. That court noted:

“. . . The new article, however, did away with the Probative Court and many of these jurisdictional problems. Neither party here argues that the Probate Division of the Circuit Court is not the proper place for a determination of the issues presented. That being so, we feel that the Probate Division had the power to rule on the issues presented in this case.” 71 Ill App2d 232, 217 NE2d 326 at 239.

However, in the present case the proponent of the will dated August 3, 1968, and codicils thereto, raised a sufficient objection at trial and has argued this point on appeal.

Prior to the new Judicial Article it had been held that in a proceeding under section 69 of the Probate Act to admit a will to probate “the inquiry in a probate court is limited to whether a proffered instrument is the last will of the decedent and executed in accordance with the statutory requirements, free of fraud, forgery, compulsion and improper conduct.” In re Will of Lortz, 23 Ill2d 344, 178 NE2d 298, at 346. See also Berndtson v. Heuberger, 21 Ill2d 557, 173 NE2d 460; Shepherd v. Yokum, 323 Ill 328, 154 NE 156. Several decisions rendered since the new Judicial Article indicate that the scope of inquiry at a probate hearing is still appropriately limited to the issues set forth in section 69, notwithstanding the result in the Weaver case.

In In re Pickens Estate, 104 Ill App2d 446, 244 NE2d 642, it was held that the issue of undue influence which is not one of the defenses enumerated in section 69 is not within the realm of inquiry under section 69 and should be raised in an appropriate proceeding brought under section 90 of the Probate Act. And in Estate of Meskimen, 84 Ill App2d 471, 228 NE2d 255, the court held that the admission of a trust agreement is not part of the procedure for the admission of a “pour over” will to probate and quoted Shepherd v. Yokum, supra, with approval that “when a will is offered for probate in the Probate Court the only testimony to be heard in that court as to the due execution of the will and the competency of the testator to execute it is that of the attesting witnesses.”

Finally, in Ruffing v. Glissendorf, 41 Ill2d 412, 243 NE2d 236, the Supreme Court rejected the argument that the new Judicial Article abolished the limitations on the character of evidence that may be introduced by a contestant at a hearing to admit a will to probate. The court reaffirmed the former cases construing the purpose and intent of section 69 and the rule that the probate hearing is to determine whether the will has been executed with the formalities required by statute and that contestants may only introduce competent evidence for the purpose of showing fraud, forgery, compulsion or other improper conduct, stating at 422:

“. . . It is not apparent to us why the ‘original jurisdiction of all probate matters’ formerly possessed by the probate court and now possessed by the circuit court would change the manner of proving a will under section 69.”

Our holding that the issue of whether a prior joint will was executed pursuant to a contract not to revoke is not within the realm of inquiry under section 69 of the Probate Act does not preclude this contention being made in a subsequent appropriate action.

Accordingly, the order of the Circuit Court of Hamilton County admitting the joint will and denying the last will of James D. Lockwood to probate is reversed and remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: STOUDER, J.

text:
    Rose Marie Aldridge, a Minor, by Aaron Aldridge, Her Father and Next Friend, Plaintiff-Appellant, v. Warren Jensen and Eddie Jensen, Defendants-Appellees.
    Gen. No. 69-79.
    Third District.
    June 4, 1970.
    McNeilly & Olivero, of Peru, for appellant.
    Herbolsheimer & Lannon, of LaSalle, for appellee.
   STOUDER, J.

Plaintiff-Appellant, Rose Marie Aldridge, a minor, by her father and next friend Aaron Aldridge, brought this action in the Circuit Court of Bureau County seeking damages for personal injury allegedly caused by dogs owned by Defendants-Appellees, Warren and Eddie Jensen. The jury found defendants not guilty and judgment was entered on such verdict. In her post-trial motion plaintiff moved for judgment notwithstanding the verdict on the issue of liability and for a new trial on the issue of damages only. This is an appeal from the trial court’s denial of such post-trial motion.

On August 27, 1966, after completing the chores on their farm near Princeton, Illinois, thirteen-year-old Rose Marie Aldridge and her brother Richard decided to take a bicycle ride. They bicycled on a gravel township road which led past the farm of the defendants. There was a fence in front of the Jensen house but none across the driveway. As the Aldridge children approached the area, three dogs came out of the driveway and began chasing the Aldridge children. Rose Marie fell from her bicycle injuring her knee. A permanent scar resulted, together with pain and limited use of her leg.

In seeking to reverse the judgment of the trial court, plaintiff argues that such judgment was contrary to the law and the facts. According to plaintiff the trial court should have found the issue of liability against the defendant as a matter of law.

Plaintiff’s action was brought under Ill Rev Stats 1965, c 8, § 12d which provides, “If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the ‘owner’ of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term owner includes any person harboring or keeping a dog . . . .”

Since plaintiff argues that the trial court erred in denying her motion for judgment notwithstanding the verdict on the issue of liability the rule of Pedrick (Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504) is applicable.

From the record and arguments of the parties, the only dispute is whether plaintiff’s injury was caused by a dog. The existence of the other essential elements of the statute is undisputed. Messa v. Sullivan, 61 Ill App2d 386, 209 NE2d 872. The plaintiff was peaceably traveling on a township road upon which she had a right to be, and her conduct was not provocatory.

Even though the statute may be considered one of strict liability not requiring proof of any knowledge, intent or negligence of a dog owner the question of causation remains.

In our view of this case, we are not required to decide whether the liability contemplated by the statute requires that the dog come in contact with the person injured. Concerning the cause of plaintiff’s injury we are of the opinion that differing inferences may be drawn from the evidence.

At one point in her testimony, plaintiff indicated that because the dogs were chasing her she accelerated her bicycle and lost control of it. At another point in her testimony, she indicated that she must have hit a stone and flipped. No claim is made and the evidence would not support a claim that the dogs attacked or bit plaintiff. Thus, we believe it can be said that the evidence presented the question of whether the injury was caused by the conduct of the dogs or by some act or omission of plaintiff. See Bailey v. Bly, 87 Ill App2d 259, 231 NE2d 8. We find no reason to disturb the jury’s resolution of this issue in favor of defendants.

For the foregoing reasons the judgment of the Circuit Court of Bureau County is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward O. Rose, Defendant-Appellant.
    Gen. No. 69-126.
    Second District.
    June 4, 1970.

      Meyer Z. Grant, of Chicago, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and A. E. Botti, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Edward 0. Rose, was found guilty by a jury, of attempted burglary, and was sentenced to from three to six years in a penitentiary. He has appealed to this court, urging reversal of his conviction on the grounds that he was not proven guilty beyond all reasonable doubt; that the trial court erred in allowing the prosecution to impeach the defendant by introduction and improper use of a prior conviction; and that the trial court erred in not allowing the defense to impeach Lucille R Smith, a prosecution witness, by use of statements which she made at a preliminary hearing in this cause.

On December 7, 1967, in the early morning hours, Lucille R Smith, who lived adjacent to a Coast to Coast Hardware Store in Lisle, Illinois, was awakened by a noise at the rear door of the store. She looked out of her bedroom window on the west side of her home and saw a car parked in a parking lot near a rear garage door of the store. She then aroused her husband and while so doing, heard the sound of breaking glass. Upon returning to the window, she saw the same car that had been parked in the lot by the rear door of the store, at the front of the store, and saw a man run from the store to the car, which then proceeded west on Ogden Avenue. No other cars were in the parking lot at the time.

Within a few seconds, she saw a police car which was proceeding east on Ogden Avenue pull into the parking lot of the Coast to Coast Hardware Store, turn around, and proceed west after the car that had left the lot. This police car, driven by Sergeant Schultz of the Lisle Police Department, radioed to another police patrol car, and the car seen leaving the Coast to Coast Hardware Store was stopped. The defendant was one of its occupants.

Sergeant Schultz then returned to the store. He noticed that the panel was knocked out of the rear overhead door of the store and the glass in the front door was shattered. The owner, Floyd Zettel, was called to the store. Zettel testified that he found the glass in the small entrance door broken, and a panel in the rear overhead door knocked out; that they were not in that condition when the store was closed earlier in the evening; that the overhead door track was jammed so that even if one broke through a panel, the door could not be opened; and that a cast-iron pipe which had been left outside near the overhead door, earlier in the evening, was at a different spot when he returned.

The police officers found a sledgehammer, a pair of night binoculars, and three pairs of gloves in the car in which the defendant and his two companions were riding. The defendant testified that they had been drinking at a bar that evening, and had not stopped at, nor attempted to break into the Coast to Coast Hardware Store.

The defendant was charged with, and found guilty of, an attempt to commit a burglary; not with the offense of burglary itself. An “attempt” is defined:

“. . . A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill Rev Stats 1969, c 38, par 8-4(a).)

Thus, two elements are necessary in order for an “attempt” to be committed: (1), an intent to commit a specific offense, and (2), some act which is a substantial step toward the commission of the offense.

The breaking of the panel in the rear door and of the glass in the other door were acts under the surrounding facts of this case which constituted substantial steps leading to the commission of a burglary. These were direct, but ineffectual acts toward its commission. It appears from the testimony of Lucille R. Smith that the would-be burglars quite likely were frightened away from the scene by the approaching police car. She testified that a man ran from the small entrance door, from which the glass was broken, to the car, just seconds before the police car arrived. Thus, if it had not been for the approaching police car, it seems probable in view of the acts already committed, that the crime of burglary would have been completed. There was a near proximity to success in carrying out the burglary; the evidence was sufficient to establish acts constituting substantial steps toward its accomplishment, as required by the statute. The People v. Woods, 24 Ill2d 154, 158, 159, 180 NE2d 475 (1962); People v. Paluch, 78 Ill App2d 356, 358-360 incl., 222 NE2d 508 (1966).

We believe that these facts indicate an intent to commit a burglary. The defendant did not admit his guilt, and consequently, there was no direct evidence of his intent to commit a burglary. However, the combined evidence of the breaking of the panel in the rear door and of the glass in another door at the hour of 1:00 a. m., the departure of the car upon the approach of the police, the presence of tools and other suspect items in the car when stopped by the police, and the fact that the defendant was an occupant of the car, warrant the inference of the requisite intent. People v. Gooch, 70 Ill App2d 124, 181, 217 NE2d 523 (1966); People v. Powell, 61 Ill App2d 238, 245, 246, 209 NE2d 345 (1965).

The defendant suggests that the evidence of his intoxication negates any possibility of his possessing the requisite intent to commit burglary. For voluntary intoxication to be a legal excuse and render the specific intent impossible, the condition of intoxication must be so extreme as to suspend all reason. People v. Hansen, 32 Ill App2d 448, 452, 178 NE2d 206 (1961). The evidence in this case falls short of this requirement.

There is no controlling fact or circumstance which would indicate that the jury’s verdict was improper. The close proximity in time of the breaking of the panel in the overhead door and the glass in the small entrance door at the store, the observation of the car, the police action in following and stopping the car, the identification of the defendant and the absence of other vehicles in the area, all reasonably sustain the jury’s verdiet. It is the function of the jury to weigh the evidence and determine the credibility of the witnesses, and this court will not reverse a judgment of conviction on the ground that the evidence is insufficient to sustain the finding of guilt unless there is reasonable and well-founded doubt of the guilt of the accused and the verdict is found to be palpably contrary to the weight of the evidence. We are unable to say that the record in this case indicates a reasonable doubt of the defendant’s guilt. The People v. Robinson, 14 Ill2d 325, 333, 153 NE2d 65 (1958); The People v. Susanec, 398 Ill 507, 513, 76 NE2d 33 (1947); People v. Lofton, 64 Ill App2d 238, 243, 212 NE2d 705 (1965).

The defendant contends that the method used by the prosecution to impeach him was improper and prejudicial. The trial court permitted the prosecution to reopen its rebuttal evidence to introduce authenticated copies of the defendant’s three prior convictions. It is within the discretion of the trial court to permit a case to be reopened for additional evidence. Unless there is a clear abuse of this discretion, we will not interfere with the discretion exercised by the trial court. The People v. Cross, 40 Ill2d 85, 90, 237 NE2d 437 (1968); People v. Parker, 98 Ill App2d 146, 150, 151, 240 NE2d 475 (1968); People v. Simpson, 76 Ill App2d 441, 446, 222 NE2d 102 (1966).

Contrary to the contention of the defendant, the method used by the prosecution to prove the prior convictions was proper. The People v. Bey, 42 Ill2d 139, 146-148 inch, 246 NE2d 287 (1969); People v. Smith, 63 Ill App2d 369, 381, 382, 211 NE2d 456 (1965).

As to the defendant’s contention that the trial court improperly denied him the right to impeach Lucille R. Smith by the use of her prior testimony at the preliminary hearing, it appears to us from an examination of the record that: (1), her prior testimony was not inconsistent; (2), the trial court did not deny the defendant the opportunity to impeach her testimony; and (3), there was no attempt by the defendant to introduce into evidence the transcript of her testimony at the preliminary hearing. Thus, we find no merit in the defendant’s contention in this respect. The judgment of the trial court is, therefore, affirmed.

Judgment affirmed.

ABRAHAMSON and MORAN, JJ., concur.


text:
    West Lands Construction Co., Ltd., Plaintiff-Appellee, v. Leo D. Calhan and Joan E. Calhan, Defendants-Appellants.
    Gen. No. 69-149.
    Second District.
    June 4, 1970.

      Lewis, Overbeck & Furman, of Chicago, for appellants.
    Paul T. Kalinich, of Glen Ellyn, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, West Lands Construction Co., Ltd., a home builder, entered into a building and real estate sales contract with the defendants, Leo D. Calhan and Joan E. Calhan, on November 20, 1964. Under the terms of the contract, the plaintiff was to complete a home it was then building, and convey the premises to the defendants, for the sum of $39,500. The construction was to be completed on or about January 31,1965.

The payments for the construction were to be made pursuant to the terms of an escrow agreement, dated December 1, 1964, wherein the Chicago Title and Trust Company was escrowee. Disbursement was not to be made to the plaintiff until the home was completed and the defendants, the purchasers, had given notice of satisfactory completion.

A number of changes were made in the specifications and the house was not completed sufficiently for occupancy by the defendants until June of 1965. The escrow was not closed, and on August 9, 1965, the escrow agreement was supplemented by an agreement which provided that the escrowee was to disburse all of the remaining sums, except for the sum of $3,240, which it was directed to hold for 30 days or “until all of the original conditions of the escrow have been met, except as amended” by the August 9, 1965 supplement. This supplement provided that the plaintiff was to deposit a current general contractor’s affidavit covering the additional work done within the past 30 days, together with appropriate waivers. The defendants, and the mortgage company, were to give the escrowee notice of the completion of the work, and the escrowee was then to distribute the $3,240 to four named subcontractors.

The supplement also provided that the plaintiff was to complete the installation of the chimney flashing on the house and the shingles on the barn on or before August 14, 1965, and such work, if completed, should be approved by the defendants before August 16, 1965; and that in event such work was not so completed and the escrowee was so notified, the defendants were to have it done and the amounts paid out for this purpose were then to be withheld from the $3,240.

.The plaintiff apparently provided the contractor’s affidavit and lien waivers for the work done after the date of the August 9 supplement. The chimney flashing and shingle work were completed. The defendants, however, did not give the notice of satisfactory completion because certain of the other work called for in the original contract had not been completed, which was admitted by the plaintiff.

The plaintiff sued the defendants for the $3,240, alleging an account stated. The defendants asserted that payment of the balance due to the plaintiff was contingent upon all of the conditions of the original contract being completed; that it was admitted these conditions — ■ the completion of the work as provided in the original contract — were not complied with; and that under these facts there was not an account stated. The trial court found for the plaintiff and the defendants appealed.

As we view the contracts, we must concur with the defendants that the plaintiff did not have a cause of action for an account stated. While we believe that the contractual relationship created by a construction contract may give rise to an account stated (e. g., McMahon v. Nielsen, 49 Ill App2d 70, (1964); Brown v. Gill, 343 Ill App 460, 99 NE2d 393 (1951)), the facts in this case do not warrant such a conclusion.

An account stated presupposes an absolute acknowledgment or admission of a certain sum due; if the assent to the amount due is qualified there is not an account stated. 1 Am Jur2d, Accounts and Accounting, § 28. Plaintiff interprets the August 9 supplemental agreement as stating that if it furnished the contractor’s affidavit for all work done thereafter by it, and if it did the chimney flashing and shingle work by August 14, then it was entitled to the $3,240, to be paid in the manner directed. In other words, the plaintiff argues that it was agreed that this amount was to be retained and then paid to it contingent only upon the performance of the above-specified items; and there being no dispute that these items were completed, there is, then, an account stated for this sum. Even if this were so, there apparently is a division of authority as to whether a contingent claim can be the basis for an account stated. 1 Am Jur2d, Accounts and Accounting, § 26; 1 CJS, Account Stated, § 15b; 6 ALR2d 122, § 7. However, in deciding this case, we need not determine this point of law.

The August 9 supplement to the escrow agreement provides that the $3,240 retained is to be held for 30 days “or until all of the original conditions of the escrow have been met.” It is apparent from a reading of the entire supplement that the sums were to be held beyond the 30-day period or until such time as all of the original conditions of the escrow were met — if they had not been met within the 30-day period. The supplement does not state what is to happen in event the work is not completed within 30 days, or in event the conditions of the escrow, as amended, are not fulfilled. The original escrow provided for a return of the deposits in such event. Thus, the escrow agreement, as supplemented, is not without ambiguity. In a proper case, the law will imply a contractual obligation as a necessary implication of the provisions of an agreement. 17 Am Jur2d, Contracts, §255.

Elsewhere, the August 9 supplement stated that the retained sum was not to be paid out until the escrowee received notice from the purchasers that the construction had been completed. Thus, viewed in its entirety, the contract manifests an intention that the construction was to be completed before the funds were to be paid out. Gay v. S. N. Nielsen Co., 18 Ill App2d 368, 374, 152 NE2d 468 (1958). Further, the August 9 agreement specifically refers to the original escrow and purports to be an amendment or supplement to it. Both documents must be considered if there is any doubt in the interpretation of either. MacAndrews & Forbes Co. v. Mechanical Mfg. Co., 367 Ill 288, 300, 11 NE2d 382 (1937); 12 ILP, Contracts, § 228. When so considered, both contracts indicate that the construction was to be completed, and notice thereof given by the purchasers, before the final payout was to be made.

The specific amendment to the original agreement, referred to in the supplemental contract, was that if the flashing and shingle work were not completed within a relatively short period of time, the defendants were authorized to have the work done by others, and to have any resulting expense to them deducted from the $3,240. As stated in the supplement, except for this amendment, the original escrow was still applicable, and the final payout was not to be made until the plaintiff had fully performed under its construction contract.

The plaintiff admitted at the trial of this cause that it did not fully perform under its contract. The supplemental escrow agreement did not relieve it of this obligation as provided for in its construction contract. There was not an absolute acknowledgment in the August supplement that the defendants, still owed the plaintiff $3,240. The obligation to pay was conditioned upon the plaintiff’s performance of its construction contract. Under the circumstances, it was error to hold that the supplemental agreement constituted an account stated.

Under our view of the case — that the supplemental agreement did not constitute an account stated — we do not reach other alleged errors urged by the defendants. The judgment of the trial court is therefore reversed.

Judgment reversed.

ABRAHAMSON and MORAN, JJ., concur.


author: EBERSPACHER, J.

text:
    Skyview Development Company, a Corporation, Petitioner-Appellee, v. Raymond Ripplemeyer, Richard Ruff, and Glenn Esker, Board of County Commissioners of Monroe County, Illinois, Richard A. Trost, County Clerk, Monroe County, Illinois, and Joseph J. Volkert, Jr., City Clerk, and Wilbert H. Kremmel, Mayor, Columbia, Illinois, Defendants-Appellants.
    Gen. No. 68-91.
    Fifth District.
    June 5, 1970.

      Floyd E. Crowder, of Columbia, Sam S. Pessin, of Belleville, and C. Glennon Rau, State’s Attorney of Monroe County, of Waterloo, for appellants.
    Walker & Williams, of East St. Louis (David B. Stutsman, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal perfected by the County Commissioners and County Clerk of Monroe County and the Mayor and City Clerk of the City of Columbia in Monroe County, from orders entered directing the issuance of writs of Mandamus against the appellants mandating them to issue their respective licenses to construct and operate a trailer court, pursuant to applications filed with them requesting permits for the construction of “a new mobile home court” by the Plaintiff-Appellee corporation, Skyview Development Company.

On September 3, 1964, the County Commissioners of Monroe County entered into a contract with a Planning and Research Consultant firm for a proposed zoning plan of the entire county including the six incorporated cities in Monroe County which included the City of Columbia. Since that time the City Planning Commission of the City of Columbia has worked in conjunction with the Monroe County Planning Commission for the planning of Monroe County. On April 1, 1965 Monroe County received federal funds for this proposed planning project. The membership of both the City and County Planning Commissions were intertwined. In conjunction with County, State and Federal authorities, public hearings and meetings were held after receipt of federal funds and although the final zoning ordinances were not passed at the time of trial, they had been virtually completed by that time.

Plaintiff, on September 28,1965, entered into a 99-year lease with an option to purchase for a tract of approximately 157 acres lying in Monroe County, of which 33 acres lay within the City. The lease authorized the lessee to build any buildings or structures desired, make improvement of any kind including, but not limited to, the installation of streets, roads, sewers, gas, oil, water, electric and other utilities. Lessee also had the right to mortgage the land or any part thereof, and the right to mortgage any improvements, structures, and buildings existing or thereafter placed upon the land, and the lease was by its own terms subordinated to the lien of any such mortgage or mortgages. The lease was assignable and authorized subletting of the premises or any part thereof.

Plaintiff’s agent testified that before entering into the lease it had caused an examination to be made to determine whether or not mobile home courts were prohibited in either the city or county, and their attorney reported there was no prohibition and that, in fact, both the city and county had trailer court ordinances providing for the issuance of permits with certain specified conditions; although zoning plans had been initiated by various official actions and public hearings held during the preceding year, that plaintiff knew of no plans for zoning or impending zoning plans, and finding no zoning ordinances entered into the lease for the sole purpose of constructing and operating a mobile home court thereon. Plaintiff testified that it was only in January of 1968, more than 3 years after a proposed zoning plan for both the county and city was initiated, that plaintiff learned through the attendance at a meeting of either the Planning Commission or Council by its representative, that the County and City had been working on a general county plan and zoning ordinances and that the Plaintiff’s plan of development of the leased tract was in violation of the plans.

On March 5, 1968, Plaintiff filed with the County authorities its “Application for Permit to Construct a New Mobile Home Court.” In the application it was stated that the area of the proposed court was approximately 20 acres, that for initial construction 67 spaces were proposed, and that the entire mobile home court would not be constructed at one time and after completion, the court would be operated 12 months of the year. The application pointed out that Section A would be constructed first and referred the reader to a landscape design attached as Exhibit A. For the legal description the application referred to Exhibit B. The legal description did not describe the 20-acre tract, but the entire 157-acre tract. By reference to both, one is still unable to determine what part, if any, of the 20-acre tract referred to as Section A lies within the city, in fact, the landscape design indicates that the City of Columbia lies somewhere in the distance to the South of the entire 157 acres, and that the portion designated as Section A lies at the North end of the tract. No one of the calls, monuments, or points of reference contained in Exhibit B are shown in Exhibit A. The application further stated that the “mobile home spaces will be independent as defined in chapter 111% Illinois Revised Statutes 1967” and that “since all mobile home courts will be independent units, no sanitary community building will be provided” explaining that under section 172.5 of chapter 111% 111 Rev Stats 1967, a community service building is required only for dependent trailer coaches.

Later in the month a similar application was filed with the City Clerk. It differed from the county application in that it made no mention of fire fighting facilities, fire protection or refuse hauling. On April 3 it was returned with the application fee “for the reason that we are not in a position to accept the same.”

At the time petitioner filed the application with the County there were in force numerous ordinances and resolutions relating to the licensing, regulation and control of trailer courts and trailer parks, as well as provisions for land subdivision in the unincorporated areas of the County. The City of Columbia at the time of filing the application with it, had a Municipal Code providing for licensing of businesses, provisions relating to Trailer Coach Parks, a city plan and the Plan Commission and its powers and duties.

The trial court entered judgment in favor of Plaintiff ordering writs to issue and specifically found “the petitioner has complied with the applicable ordinances and statute.” We are of the opinion that such finding is not supported by the evidence. As a result the further finding “that the respective duties of the defendants to issue said licenses or permits are clear, unequivocal and nondiscretionary” is likewise not supported by the evidence, particularly when petitioner failed in its application to state whether it sought a license for a “trailer court” or “trailer park” so that the authorities could determine which of the various ordinances were applicable, let alone definitely locate the actual tract for which licenses were being applied. Under such circumstances, the fact that the issue of licenses constitutes mere ministerial rather than discretionary acts is of no consequence. As a result, People ex rel. Simpkins v. Village of Kincaid, 26 Skyview Development Co. v. Ripplemeyer App2d 68, 167 NE2d 698, is not applicable.

The record is confusing and contradictory as to whether the permits were requested for a “trailer court” or a “trailer park.” The applications referred to a “mobile home court” and with reference to sanitary facilities referred to the provisions of chapter 111½, Ill Rev Stats 1967; and letters, one addressed to the County Clerk by petitioner’s attorney, the other from the Department of Public Health, referred to a proposed “trailer park.” Both were submitted for attachment to the application to the County, and were presented in evidence. The complaint prayed for authority to construct and operate a “trailer court” and the order compelled the issuance of licenses to construct and operate a “trailer court.” The applications recited that the spaces would be independent as defined in chapter 111½, Ill Rev Stats 1967, that the smallest space would be 5,000 square feet, that sewer and water services would be provided, gas and electric post lamps would be furnished and operated, telephone and electric wiring below the ground for each unit would be installed, that all State requirements would be met and State permit issued as per this letter from the Department of Public Health which referred to a trailer park and the “Illinois Trailer Coach Park Control Law.” Obviously, this reference was to “An Act in relation to the licensing and regulation of trailer coach parks,” approved July 13, 1953, c 111½, §§ 158-185, Ill Rev Stats 1967, Section 159 of that Act provides that any portable structure “resting in whole on a permanent foundation with wheels, tongue and hitch permanently removed shall not be construed as a “trailer court” or “mobile home.” It is to be noted that chapter 111%, 111 Rev Stats 1967 does not provide for legislative control over a “trailer court,” only a “trailer park,” although the provisions of that legislation are referred to in the application and Exhibit A indicates a “trailer park” within the definition of the County Ordinance, petitioner contended below that it was entitled to a license for a “trailer court.”

County Ordinance 68-1 defined a trailer park or park as “an area of land upon which two or more trailers are harbored either free of charge or for revenue purposes and shall include any building, structure, tent, vehicle or enclosure used or intended for use as a part of the equipment on said park.” From the petition with Exhibit A it could reasonably be considered that structures were anticipated.

Ordinance 68-1 likewise defined a trailer court as “an area of land divided into two or more lots plotted and laid out to provide sites for trailers permanently affixed to the land.” It makes no mention of any structures such as shown on Exhibit A, but by paragraph 16 provided:

“Before any area within the county, or its jurisdiction limits, is established as a trailer court, the same shall be surveyed and platted and the plat thereof submitted to the Board, together with the application for permission to establish such a trailer court, for approval by the Board. Said plat should clearly show and describe all recreational facilities provided for said court, if any, the type of road construction to be used, all utility services and the proposed draining plan. . . .”

Petitioner’s Exhibit A clearly does not show and describe the type of road construction to be used, all utility services and the proposed drainage plan.

Whether the County authorities determined that the application was for a license for a “trailer court” or a “trailer park,” we find the application to be inadequate and the tendered “Landscape Design” attached as Exhibit A to be so inadequate that the application was not sufficient under the applicable Ordinances, and failure to act upon it was justified, and could not be the basis for the issuance of the writ. People ex rel. State Bank & Trust Co. v. Moore, 322 Ill App 500, 76 NE2d 201. We consider it was incumbent upon petitioner to make it clear to the authorities under which sections of the Ordinance it requested a license, and failing in that regard, as well as failing to make clear in the application the location and an adequate legal description, the County authorities were relieved of any obligation in the matter.

Petitioner contends that since the County Clerk did not advise the reason for declining the license in writing and giving petitioner a chance to correct the application and resubmit it, that it must be assumed that the application contained no defects and the County has waived any objections to its insufficiency. In support of that position, petitioner points to section 7 of Ordinance 68-1 which deals with licensing of trailer parks and which, in part, provides:

“If the application for a permit to construct or license is declined, the County Clerk shall give the reasons therefor in writing to the applicant; and if the objections can be corrected the applicant may amend his application and resubmit same.”

No similar provision is cited with reference to a “Mobile Home Court” application nor for an application for a “trailer court.” Petitioner contended below that it was denied a license for a “trailer court” and on that basis, sought the writ. As a result, we will not hear it to say that the County waived any objections to its “trailer park” application, or was under duty to advise it of the numerous deficiencies of its application. Its application showed a disregard of the provisions made for licensing either a “trailer park” or a “trailer court” and appears to be designed to procure some kind of license before the Planning Commission’s recommendations could be implemented.

Much that we have said is applicable to the position of the City, which was presented a similar application. The applicable City Ordinance required a sketch “showing the size and location of the trailer park including all buildings, structures, and enclosures.” (Italics ours.) Petitioners contend their application met all the city requirements, including this one, again losing sight of the fact that below they contended they were denied an application for a trailer court, and the City officials could not, in view of the confusing application, determine what, if any, ordinances were required to be complied with. From the language of the application and Exhibit A they would have been justified in contemplating “structures,” but the application did not meet the requirement of the City Ordinance. Even though Exhibit A might reasonably be termed a “sketch,” it did not adequately show size and location, nor did it furnish adequate information concerning structures, such as the location or description or size of the roadways, the lake, or lights, or sanitary facilities. A City Ordinance required separate sanitary facilities for men and women in “trailer parks.”

In a mandamus proceeding the petitioner has the burden of showing a clear and undoubted right to the writ, People ex rel. Latimer v. Board of Education, 394 Ill 228, 68 NE2d 305, and must establish every material fact essential to show the plain duty of the respondents; People ex rel. Pignatelli v. Ward, 404 Ill 240, 88 NE2d 461; Daniels v. Conner, 404 Ill 327, 88 NE2d 372. Here petitioner clearly failed to show compliance with ordinances (see People ex rel. Slutzkin v. Village of Lincolnwood, 346 Ill App 469, 105 NE2d 331; People ex rel. Delgado v. Morris, 334 Ill App 557, 79 NE2d 839; People ex rel. State Bank & Trust Co. v. Moore, 332 Ill App 500, 76 NE2d 201); and the writs were improvidently issued.

As a result, we do not reach the further question posed by the briefs of all parties, i. e., whether issuance of licenses may be delayed when there is under consideration or pending proposed ordinances or planning commission recommendations for ordinance amendments. See Chicago Title & Trust Co. v. Village of Palatine, 22 Ill App2d 264, 160 NE2d 697, and First Nat. Bank of Skokie v. Village of Skokie, 85 Ill App2d 326, 229 NE2d 378. Neither do we pass upon the question of whether petitioner had changed its position substantially in reliance on the probability of the issuance of licenses pursuant to existing ordinances, nor if so, whether such change was justified in view of the public meetings concerning the development of planning for the County and City both before and after petitioners’ acquisition of the 157-acre tract.

For the reasons herein stated, we reverse the judgment ordering the writs to issue.

Judgment reversed.

GOLDENHERSH and MORAN, JJ., concur.