text:
    Alan Kniznik, Plaintiff-Appellant, v. Dr. Harry Quick, Defendant-Appellee.
    Gen. No. 54,398.
    First District, First Division.
    October 13, 1970.

      Soble & Soble, James L. Griffin, of Chicago, for appellant.
    Nathenson & Gussin, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The plaintiff has appealed the trial court’s dismissal of his second amended complaint on defendant’s motion by order dated June 20, 1969. The plaintiff’s original complaint and his first amended complaint had been previously dismissed.

The plaintiff’s second amended complaint alleged a cause of action for alienation of affections. The pleading stated that the defendant had alienated the affections of plaintiff’s wife by specific acts which served to entice the plaintiff’s spouse, with resulting loss of affection and subsequent divorce between plaintiff and his wife; that the defendant engaged in certain unlawful and malicious conduct that occurred on certain dates; that the defendant’s actions were the proximate cause of plaintiff’s losing his wife’s affections; and that the direct and proximate consequence of defendant’s actions was that plaintiff suffered actual monetary damages.

Plaintiff claimed the following damages: (1) loss of “the care, aid, assistance, comfort, society and consortium of his former wife,” (2) $2,000 for attorney’s fees and costs expended by plaintiff for the divorce from his former wife (3) $1,000 for attorney’s fees and costs incurred by plaintiff regarding child custody between plaintiff and his former wife, and more than $5,000 for household services to maintain his home (4) that plaintiff became mentally and physically ill requiring a physician’s care and medication, said illness directly attributable to the defendant’s alienation of his wife’s affections resulting in the expenditure of $1,500 (5) that as a further result of defendant’s actions, the plaintiff was so ill that he was incapable of attending to his customary business duties and occupation, causing a financial loss of earnings and profits in an unascertainable amount but estimated by plaintiff to be in excess of $10,000.

The defendant moved to dismiss the second amended complaint on the grounds “that it fails to state a cause of action and in particular, that it fails to allege any damages lawfully and properly recoverable in the State of Illinois under the laws applicable to such actions.” Both parties filed memoranda of law in support of their respective positions.

The elements for a cause of action in alienation of affections were stated in Farrier v. Farrier, 46 Ill App2d 471, 197 NE2d 163 (1964), at page 474:

“To sustain a cause of action plaintiff must allege and prove (a) love and affection of the spouse for plaintiff, (b) overt acts, conduct or enticement on the part of the defendant causing these affections to depart and (c) actual damages.”

In the instant case, the parties are in dispute as to the damage allegations of the second amended complaint. The litigants have correctly argued that the answer to this appeal must be found in the statutory provisions that have declared this State’s public policy regarding actions for alienation of affections. Sections 34 through 37 of chapter 68 of the Ill Rev Stats 1969, contain the following:

“34. Declaration of public policy.] § 1. It is hereby declared, as a matter of legislative determination, that the remedy heretofore provided by law for the enforcement of the action for alienation of affections has been subjected to grave abuses and has been used us an instrument for blackmail by unscrupulous persons for their unjust enrichment, due to the indefiniteness of the damages recoverable in such actions and the consequent fear of persons threatened with such actions that exorbitant damages might be assessed against them. It is also hereby declared that the award of monetary damages in such actions is ineffective as a recompense for genuine mental or emotional distress. Accordingly, it is hereby declared as the public policy of the state that the best interests of the people of the state will be served by limiting the damages recoverable in such actions and by leaving any punishment of wrong-doers guilty of alienation of affections to proceedings under the criminal laws of the state, rather than to the imposition of punitive, exemplary, vindictive, or aggravated damages in actions for alienation of affections. Consequently, in the public interest, the necessity for the enactment of this chapter is hereby declared as a matter of legislative determination.
“35. Actual damages, only, recoverable.] § 2. The damages to be recovered in any action for alienation of affections shall be limited to the actual damages sustained as a result of the injury complained of.
“36. Punitive, exemplary, vindictive or aggravated damages not recoverable.] § 3. No punitive, exemplary, vindictive or aggravated damages shall be allowed in any action for alienation of affections.
“37. Elements not to be considered in determining damages.] § 4. In determining the damages to be allowed in any action for alienation of affections, none of the following elements shall be considered; the wealth or position of defendant or the defendant’s prospects of wealth or position; mental anguish suffered by plaintiff; any injury to plaintiff’s feelings; shame, humiliation, sorrow or mortification suffered by plaintiff; defamation or injury to the good name or character of plaintiff or his or her spouse resulting from the alienation of affections complained of; or dishonor to plaintiff’s family resulting from the alienation of affections.”

This legislation was enacted to limit damages recoverable in this type of action. The only damages recoverable are actual damages resulting from the injury and certain elements are specifically excluded from consideration.

Plaintiff argues that the enumerated elements of damages that he allegedly sustained because of defendant’s wrongful alienation of his wife’s affections are recoverable within the provisions of the statutes set out above. Plaintiff argues these allegations are for “actual damages” for which he is entitled to compensation and that the elements claimed were not specifically excluded by the statutes.

Defendant argues that the second amended complaint “did not contain allegations of fact sufficient to show that the damages complained of resulted from and were proximately caused by the injury alleged.” He contends that the complaint contains conclusions of the plaintiff and that no facts are alleged to relate the enumerated damages to the alleged wrongful acts of the defendant. Defendant argues that the public policy declared in sections 34-37 of chapter 68 imposes a rigorous burden of pleading damages in alienation of affection actions. Defendant states that in order to give effect to this legislation, a plaintiff should be required to clearly and unequivocally allege facts that tend to show actual damages for such an injury.

In oral argument, plaintiff’s counsel argued that the defendant’s brief and oral argument relied upon a ground not raised in the trial court. Specifically, plaintiff argues that the defendant’s contention that the second amended complaint was subject to dismissal because of conclusions pleaded is being asserted for the first time in this court. The general rule is that the theory relied upon in the trial court cannot be changed on review and that issues not presented or passed upon by the trial court cannot be raised for the first time on review. Woman’s Athletic Club of Chicago v. Hulman, 31 Ill2d 449, 202 NE2d 528 (1964). We are of the opinion that this rule is not applicable. It is well established that an appellee may urge any point in support of the judgment on appeal although not directly ruled upon by the trial court, so long as the factual basis was before that court. Linn Farms, Inc. v. Edlen, 111 Ill App2d 294, 250 NE2d 681 (1969). In the instant case, the record reveals that the defendant challenged the sufficiency of the second amended complaint for failure to state a cause of action. In particular, the defendant’s motion contended that the complaint did not allege any lawful or recoverable damages under the applicable statutes. Defendant’s contention on appeal that the pleading was also defective because of the conclusionary allegations did not change the defendant’s theory that the complaint failed to state a cause of action. Thus, we are of the opinion that there is sufficient basis from the record to consider defendant’s argument on this point.

The public policy declaration in chapter 68 of the Ill Rev Stats, section 34, plainly calls for a careful consideration of damage allegations contained in the second amended complaint. The question of properly pleading damages in a case of alienation of affections has not been considered by a reviewing court of this State. Despite the novelty of the situation, we believe that general pleading rules are applicable to this case.

The defendant has argued that plaintiff has alleged conclusions without stating any ultimate facts to show a relationship between the damages alleged and the wrongful acts of the defendant. The paragraphs dealing with damages in the second amended complaint begin with the following language: “That as a direct and proximate consequence of the actions of defendant . . . the plaintiff suffered actual monetary damages.” The complaint then lists several categories of damages incurred by plaintiff. We agree with the defendant’s contention that these are mere conclusions. Before a party can recover on any cause of action, that party must allege facts that support the allegations of a cause of action. Skolnick v. Nudelman, 95 Ill App2d 293, 237 NE2d 804 (1968). Furthermore, in determining the sufficiency of a complaint, well-pleaded facts must be taken as true, but conclusions need not be accepted. Shlensky v. Wrigley, 95 Ill App2d 173, 237 NE2d 776 (1968). Accordingly, we hold that the trial court properly dismissed the plaintiff’s second amended complaint because of the conclusionary nature of the pleadings.

We are also of the opinion that some of the damages alleged are not compensable under the laws of this State. The plaintiff’s allegations of his mental illness due to the loss of his wife so that he received medical attention, is clearly excluded by section 37 of the Statute, where a plaintiff’s mental anguish, feelings, etc. were barred from consideration. Similarly, the loss of earnings and profits from plaintiff’s occupation are excluded by that section for the same reasons. With regard to the alleged expenditure for household maintenance by the loss of plaintiff’s former wife, this appears to be rather tenuous and remote for causal relation to defendant’s wrongful acts.

Plaintiff also claimed attorney’s fees and expenses from the divorce and child custody proceedings that arose between plaintiff and his former wife. The general rule is “that attorney’s fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance. . . .” Ritter v. Ritter, 381 Ill 549, 553, 46 NE2d 41, 43 (1943). See also People ex rel. Henderson v. Redfern, 104 Ill App2d 132, 243 NE2d 252 (1968). Plaintiff has relied upon the Ritter case, which had reversed an earlier Appellate Court decision in Ritter v. Ritter, 308 Ill App 337, 32 NE2d 185 (1940). Both Ritter decisions had mentioned, by way of dicta, that a plaintiff might recover attorney’s fees and cost of litigation where the defendant’s wrongful conduct had involved the plaintiff in litigation with third parties. See Philpot v. Taylor, 75 Ill 309 (1874) and cases cited therein. These earlier decisions recognized an exception to the general rule where a party was forced to preserve property rights in real estate due to the wrongful acts of another which caused litigation expenses against third parties. We believe that the exception should be limited to the facts of those cases and not extended to alienation of affection cases.

Finally, the plaintiff sought damages for loss of “consortium.” This has been indirectly acknowledged as an element of damage in alienation of affection actions. Tjaden v. Moses, 94 Ill App2d 361, 237 NE2d 562 (1968). However, plaintiff’s allegation in this regard was properly dismissed because of the indefiniteness of the amount of damages (Ill Rev Stats 1969, c 68, § 34), and the conclusionary manner in which the pleadings were expressed. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    Elsie E. Louthan, Plaintiff-Appellant, Counterappellee, v. Clifford W. Louthan, Defendant-Appellee, Counterappellant.
    Gen. No. 54,418.
    First District, Second Division.
    September 29, 1970.
    Charles G. Martin, of Chicago, for appellant.
    Robert E. Grundin, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Elsie E. Louthan filed a petition in the circuit court to modify the alimony provisions of a decree of divorce and a subsequent modification order. The trial court ordered an increase in respondent’s alimony payments from $20 to $35 per week. Plaintiff appeals, contending that the increase allowed does not sufficiently reflect the change in her position as shown by the evidence; respondent has filed a cross-appeal, contending that there was no change in petitioner’s circumstances sufficient to warrant the increase allowed by the court.

The parties were married in 1929 and granted a divorce in December 1948. At the time the decree was entered, plaintiff was allowed: $10 per week in alimony and $15 per week for each of three then minor children of the marriage, a total of $55 per week. Plaintiff was also given title to the family home in which the parties then held an equity of $10,000 to $12,000. The decree further provided that plaintiff was free to secure employment to supplement her maintenance and support.

In 1960, on petition filed by plaintiff, the alimony payment was increased to $20 per week. Prior to the 1960 modification order, plaintiff had undergone spinal surgery for the removal of a disc, and from that time on, she experienced pain in her back and legs. She had been employed as a beauty technician for several months during the period between the decree and the 1960 modification, and worked for several years as a licensed real estate broker in Illinois. At the time of the 1960 modification order, the defendant was employed by the City of Evanston with annual earnings of $8,800.

On May 1, 1969, the instant petition was filed, praying that the amount of alimony be increased to a total of $75 per week. On May 7, 1969, defendant filed an answer to the petition, praying that the relief requested in the petition be denied.

At the hearing on the petition and the answer, plaintiff testified that she was 61 years of age and that her health and physical condition was steadily deteriorating. She testified that subsequent to the 1960 modification of the alimony provisions of the decree she had undergone surgery to correct a poor circulation condition in her legs, that she had no sense of feeling in her legs, and that she was constantly in pain. She stated that she was unable to find gainful employment since 1959 due to a combination of physical ailments and a lack of skilled experience. She testified that she held a valid but inactive Illinois real estate broker’s license, but that she was unable to work as a broker because such activity was too demanding for her physical condition and also affected a gastric condition. She stated that she does not receive Social Security, and that she has no idea whether she had sufficient quarters of employment to qualify therefor. She testified that she spends summers in a Chicago suburb with one of her children, rent free; that she spends part of the year in the Carolinas; that she spends time in Florida, staying with friends; and that she tries to play golf (at her doctor’s recommendation) once or twice a week, as well as attend concerts, visit museums, and the like. Petitioner also stated that she has living expenses of approximately $300 per month.

Defendant, at the time of the hearing, was 61 years of age and employed in a supervisory capacity by the City of Evanston. His income tax returns reflected an income of almost $12,500 for the year 1968 and almost $12,225 for 1967. He had been married to his present wife slightly over two years and had acquired several thousand dollars worth of stock since the marriage. He and his wife own a condominium valued at $24,500, on which there is a mortgage of $12,000. He and his wife also own retirement property in Arkansas valued at $26,000, on which there is a $23,000 mortgage. Defendant further testified that his wife’s income was slightly under $2,000 per year. His expenses and obligations, including the $20 alimony payable to petitioner, amounted to approximately $725 monthly and his take-home pay amounted to $736 per month.

The issues created on the appeal and the cross-appeal are essentially the same, namely, whether the increase in alimony to plaintiff of $15 per week was a proper exercise of the trial court’s discretion under the circumstances of the case.

A decree of divorce is final as to the circumstances and conditions of the parties as of the date of its entry. Upon a subsequent application for a modification, only matters which have occurred subsequent to the entry of the decree may be considered by the court. Before a modification will be allowed it must be shown that the circumstances of the parties have changed materially. See generally Green v. Green, 86 Ill App2d 362, 229 NE2d 565.

The evidence reveals that plaintiff’s condition has changed materially since the modification of the decree in 1960. The surgical removal of the disc prior to the 1960 modification has resulted in complications subsequent to the modification, leaving plaintiff in a physically more disadvantaged position than prior to the modification. There is evidence that this condition requires that she reside in more moderate climates during the winter months and further results in her inability to secure steady employment. Prior to the 1960 modification she had been able to work.

On the other hand, many of the plaintiff’s complaints concerning her physical condition existed prior to the 1960 modification. She made no attempt to determine if she is entitled to Social Security, which could be an additional source of income for her support. There is evidence that she pays no rent when she resides with her children in the Chicago area. She is sufficiently agile to play golf once or twice a week and attend concerts, bridge clubs, and the like, all of which militates against her contention that her present physical condition entitles her to an increase of $55 per week in alimony.

The trial court expressly recognized that it was faced with an extremely difficult set of facts. Under all the circumstances, there was no abuse of discretion in the allowance of the additional $15 per week in alimony to plaintiff and in the refusal to her of a larger amount.

For these reasons the order is affirmed.

Order affirmed.

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


author: MR. JUSTICE ADESKO

text:
    Home Federal Savings & Loan Association of Chicago, a Corporation, Plaintiff-Appellee, v. La Salle National Bank, a Corporation As Trustee Under the Provisions of a Trust Agreement Dated October 15, 1954, Felix B. Castillo and Eva M. Castillo, His Wife, Tony Karsh, et al., Defendants-Appellants. The La Salle National Bank, a Corporation As Trustee Under Provisions of Trust Agreement Dated October 15, 1954, and Known As Trust No. 17115, Felix B. Castillo and Eva M. Castillo, Cross-Plaintiffs-Appellants, v. Home Federal Savings and Loan Association of Chicago, a Corporation, and Donald Jensen, Doing Business As Jensen Builders, Cross-Defendants-Appellees.
    Gen. No. 54,446.
    First District, First Division.
    October 13, 1970.

      Richard Altieri, of Chicago, for appellants.
    Joseph Z. Uhlir and Harold Orlinsky, of Chicago (Harold Orlinsky, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

The defendants appeal from a decree sustaining a mortgage foreclosure and dismissing their amended cross-complaint for damages and from an order denying their petition for change of venue. We affirm the decree of foreclosure and the order denying the petition for change of venue.

The plaintiff-mortgagee, Home Federal Savings and Loan Association of Chicago, filed a complaint in chancery to foreclose a mortgage on October 25, 1968. The defendants, LaSalle National Bank, as trustee of a land trust, and Felix and Eva Castillo, husband and wife, as sole beneficiaries of the land trust, and their son Tony Karsh, denied that they were in default on the mortgage, defending on the grounds that the plaintiff-mortgagee’s Board of Directors did not pass a resolution declaring the entire balance immediately due and payable, and that there was an agreement to extend the time of payment.

The defendants, owners of an apartment building in Chicago, were paying monthly mortgage payments to the plaintiff of $1,700 (which included principal, interest, insurance and taxes) on a mortgage of $115,000. On January 27, 1968, a fire occurred in the apartment building, causing substantial damage. The following Monday, Mrs. Castillo spoke to Mr. Burger, one of the officers of the mortgagee corporation concerning her monthly payments, after which for the months of February through August, 1968, Mrs. Castillo made monthly payments of $1,223.16. On September 12, 1968, the parties and their counsel held a conference to discuss the finances of the building and the progress of the repairs. At the meeting Mrs. Castillo wrote a check for $2,000 and handed it to Mr. Poelling, one of the plaintiff’s officers. Conflicting testimony was offered as to the purpose of this check. Said officer contended that the check was for the fire insurance escrow account to pay the shortage to rehabilitate the building, and not for the September mortgage payment. Mrs. Castillo contends that said $2,000 payment was for the September, 1968 monthly payment of $1,223.16 and the reimbursement of an overdraft of seven hundred and some odd dollars. Defendants made no payments after September 12,1968.

The Chancellor resolved the principal factual dispute in the case, whether there was a binding extension agreement in effect at the time of the filing of the foreclosure complaint, in favor of the plaintiff-mortgagee, thereby establishing its right to foreclosure for the full indebtedness. The only proof of the alleged extension agreement was Mrs. Castillo’s testimony that on the first Monday after the fire, she came to Home Federal and “spoke to Mr. Burger, one of the officers,” and he said “if you are not able to pay $1,700.00” (the regular monthly payment of principal, interest, insurance and taxes), “you should pay $1,223.16 monthly and there would be no foreclosure.” She did not then state that Mr. Burger said anything about how long the payments of only $1,223.16 would be acceptable to Home Federal or that such payments would be acceptable until such time as the building would become fully rented. No writing evidencing such an agreement was ever produced. We will not disturb the Chancellor’s findings of fact since they are not clearly and palpably against the weight of the evidence. Cline v. Cline, 12 Ill App2d 231, 235, 139 NE2d 828 (1956), People ex rel. White v. Underwood, 1 Ill2d 620, 627, 116 NE2d 354 (1954).

Defendants contend on appeal that the plaintiff gave no notice of foreclosure, relying on Clevinger v. Ross, 109 Ill 349, at 352, which requires that “such party (the debtor) shall have personal notice when payment will be required thereafter.” Poelling testified that during the September 12, 1968 meeting between the parties to work out finances he told Mrs. Castillo and her counsel that they “could have thirty days, and the account would have to be brought forward, or we’d have to file a bill of foreclosure” and that “we could not go along with it any longer.” This testimony is substantiated by defendants’ counsel’s letter of September 13, 1968, to one of the subcontractors repairing the damaged apartment building stating: “In the event we are not able to meet our obligation with the mortgage company by October 15, 1968, they intend to foreclose and my clients do not intend to lose this building when all that is needed is the completion of these repairs.” We find that the defendants had actual notice of foreclosure in compliance with the standard set by Clevinger v. Ross, supra.

Defendants also contend that the plaintiff did not establish the right of foreclosure for the full amount of the indebtedness. They specifically contend that the plaintiff failed to prove its allegations that its Board of Directors passed a resolution declaring the unpaid balance of the mortgage indebtedness immediately due since only parol and no written evidence of the resolution was offered at trial. We point out that the filing of a complaint is sufficient to show an election to foreclose for the full indebtedness. Sweeney v. Kaufman, 168 Ill 233, 48 NE 144 (1897). Mason v. Kobliska, 190 Ill App 178. The mortgage in this case provides that “if default be made . . . the mortgagee is hereby authorized and empowered, at its option ... to declare ... all sums secured thereby immediately due and payable.” Plaintiff’s filing of a complaint was sufficient to show an election to foreclosure for the full indebtedness according to the mortgage provisions.

Defendants also claim that the chancellor abused his discretion in dismissing the appellants’ cross-complaint and not awarding damages to the cross-plaintiffs. The record does not sustain cross-plaintiffs’ contention that they suffered damages as a result of the plaintiffs’ foreclosure action. The damage resulted from defendants’ action. The contractor handling the general contracting for the fire damage on the building was Tony Karsh, also known as Norman Castillo, and son of the defendants, Felix B. and Eva M. Castillo.

Defendants also contend that the court committed reversible error in denying their petition for change of venue based on the prejudice and bias of the trial judge. The right of a party to a change of venue on account of the prejudice of the judge is absolute, but may be waived if not asserted in apt time. It is well settled that a petition for change of venue comes too late when it is presented after the judge has ruled on a substantial issue in the case. City of Chicago v. Hamlin, 24 Ill2d 148, 149, 180 NE2d 473 (1962); Stickler v. McCarthy, 64 Ill App2d 1, 19, 212 NE2d 723 (1965). The trial judge’s granting of an order striking the defendants’ cross-complaint was such a substantive ruling, and the petition for change of venue was properly denied. Swanson v. Randall, 30 Ill2d 194, 198, 195 NE2d 656 (1964).

For the reasons given, the decree sustaining the foreclosure, dismissing the amended cross complaint and the order denying the petition for change of venue are affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Tony Tesluk, as Assignee of Donna Piegare, Plaintiff-Appellee, v. Metropolitan Life Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 54,472.
    First District, First Division.
    September 21, 1970.
    Peterson, Lowry, Rall, Barber & Ross, of Chicago (Owen Rail and Michael M. Lane, of counsel), for appellant.

      Knouff & Ley, of Chicago (Anthony J. Pauletto and Gerald J. Smoller, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an action to recover life insurance and accidental death benefits under a plan of group insurance covering Robert A. Tesluk, who died of accidental causes on November 25, 1967. The plaintiff, Tony Tesluk, as assignee of Donna Piegare, the named beneficiary of the policy, filed suit against the insurer, Metropolitan Life Insurance Company. The jury rendered a verdict for the plaintiff upon which the court entered judgment and from which this appeal is taken.

In July, 1967, Tony Tesluk operated a paint and wallpaper store and employed his son, Robert A. Tesluk, who was 21 years of age, and one Joseph Vogenthaler. After a solicitation by a Metropolitan agent, applications for the insurance were executed by the three, and a group insurance policy was issued.

Part C of Robert A. Tesluk’s signed application contained the following pertinent information:

6. Have you (or any other said family member) received treatment, attention, or advice from any physician or other practitioner for, or been told by any physician or other practitioner that you (or said family member) had:
Yes No
(d) Epilepsy, paralysis, dizziness or any mental or nervous disorder? [ ] [x]
7. During the past 5 years, have you (or any other said family member) had any other diseases, ailments, or injuries not revealed elsewhere on this application for which there was treatment, examination, or advice by or under the direction of a physician or other practitioner, or at a clinic, hospital, dispensary or sanitorium?
[x] [ ]
8. If any of questions 3-7 is answered Yes, give full details, including (if applicable)
Question Name Dates Ailment Dura- Name of Physician or Treat- tion or other practiment tioner or name of Clinic or Hospital, etc.
7. Eobert 11-66 Hemor- 4 wks. Ireland Army Hosrhoids pital, Fort Knox, Ky.

Prior to this application, Robert A. Tesluk had a six-year history of mental disorder. On June 19, 1961, he was admitted to the Cook County Hospital Mental Health Clinic on a doctor’s diagnosis that he had acute psychotic reaction. Plaintiff, Tony Tesluk, then signed a petition for his son’s commitment as a person in need of mental treatment. The subsequent order recited that he was a mentally ill person incapable of managing his own estate, and he was committed to his father’s custody. On March 14, 1962, he was restored to the legal status of a sane person. In April, 1962, he was admitted to a hospital for mental treatment and then again admitted in September of that year. In February, 1963, a doctor diagnosed him as a mentally ill person with need of immediate restraint, and he was admitted to a mental health clinic upon his father’s petition for commitment. Upon examination under court order, two doctors found him to be a mentally ill person, and he was committed to a research hospital. On June 2, 1964, his father again petitioned for commitment. The physicians appointed by the court found he was suffering from schizophrenic reaction of the chronic undifferential type, and he was committed to the Elgin State Hospital. This same procedure was followed in April, 1966, when Robert Tesluk was again admitted to the Elgin State Hospital. He was released on a conditional discharge on June 29, 1966. On July 1, 1967, he executed the application to Metropolitan under the group plan being applied for by Tony Tesluk. Elgin State Hospital granted him an absolute discharge on July 11,1967.

Hunter A. Jopes testified that as an insurance consultant for Metropolitan, he visited Tony Tesluk’s shop and solicited a group insurance policy. He returned there on two occasions, and nothing was ever said to him about the ill health of any of the three employees. He said he asked Robert Tesluk the questions appearing on Part C, sections 6, 7 and 8 of the application and put down Robert’s answers before Robert signed the application. Robert told him that he had been recently discharged from the army, where they told him he was in good health. Jopes testified that Tony Tesluk called him in November, 1967, and said that his son had been killed in a car accident.

Tony Tesluk testified that Jopes inquired about Robert’s nervous breakdown and asked if Tony could give him some further information. Tony said that he told Jopes that Robert had had a nervous breakdown, but he had been released from the hospital for about a year and, as far as Tony was concerned, was in perfect health. Tony said that Jopes told him he wouldn’t put anything about Robert’s nervous breakdown on the application because he didn’t want to “confuse it.” Jopes told him that Robert was healthier than the other two applicants and he was anxious to close the deal. Tony said he told Jopes that it was up to him whether he included the nervous breakdown in the application.

Joseph Vogenthaler testified that Jopes said that Robert had told him about his nervous breakdown and he wanted Tony to elaborate on it. Tony told Jopes the breakdown happened some time ago and that Robert was fine now.

Jopes was recalled on rebuttal and testified that he was never informed by anyone that Robert had had a nervous breakdown or any other type of mental disorder.

Among the facts and conclusions stipulated to by the parties during the trial, was the following:

9. The mental disease or disorder suffered by Robert A. Tesluk materially affected both the acceptance of the risk and the hazard assumed by Metropolitan Life Insurance Company; that if Metropolitan Life Insurance Company had known the true facts pertaining to the prior mental or nervous disorder of Robert A. Tesluk, it would not have issued the subject policy.

The principal question before us is whether Metropolitan could be charged with the knowledge, if any, of its agent. If it can be so charged, Metropolitan is es-topped from avoiding the policy. If it is not properly chargeable with the knowledge of Robert’s condition, Metropolitan may avoid the policy because the misrepresentation admittedly materially affected the acceptance of the risk. Ill Rev Stats 1967, c 73, § 766; Campbell v. Prudential Ins. Co., 15 Ill2d 308, 155 NE2d 9.

Plaintiff has presented to us cases which hold that the exercise of good faith by the insured in disclosing to the agent the complete facts which the insurer claims were misrepresented, is notice to the insurer. Metropolitan does not dispute this. This rule is intended to protect those who deal with the agent and the insurance company in good faith. For example, in Oberg v. John Hancock Mut. Life Ins. Co., 114 Ill App2d 152, 251 NE2d 918, the Appellate Court reversed and remanded a summary judgment for the insurer where the application failed to disclose certain prior medical history. In that case, the applicant gave correct oral answers which were incorrectly recorded by the insurer’s authorized agent. The court, however, noted that it was not dealing with a case in which an insured is acquainted with circumstances plainly indicating that the agent will not advise his principal of the true facts.

Similarly, in Carroll v. Preferred Risk Ins. Co., 34 Ill2d 310, 215 NE2d 801, the court stated that the relationship between an applicant and an insurer requires good faith on the part of the applicant because of the peculiar character of the insurance contract. In Jones v. Aetna Ins. Co., 201 Ill App 142, the court noted that there is an exception to the rule that notice to the agent is notice to the principal and that this rule does apply where the facts show collusion between the agent and the one with whom he is dealing to defraud the insurer or where the facts and circumstances are such as to raise a clear presumption that the agent will not perform his duty. In Woodlawn Farm Co. v. Farmers and Breeders Livestock Ins. Co., 227 Ill App 577, 583, the court pointed out, “Notice to the agent is not notice to the principal when the facts are such as to authorize the inference that he will conceal his information from the principal.”

In Mutual Life Ins. Co. v. Hilton-Green, 241 US 613, 36 S Ct 676, the Court noted that the assured, at the least, permitted an application containing material misrepresentations to be presented by subordinate agents to officers of the insurance company under circumstances which he knew precluded the true facts from being revealed. In reversing judgment for the insured, the Supreme Court stated, 241 US at 622, 36 S Ct, at 680:

The general rule which imputes an agent’s knowledge to the principal is well established. The underlying reason for it is that an innocent third party may properly presume the agent will perform his duty and report all facts which affect the principal’s interest. But this general rule does not apply when the third party knows there is no foundation for the ordinary presumption — when he is acquainted with circumstances plainly indicating that the agent will not advise his principal. The rule is intended to protect those who exercise good faith and not as a shield for unfair dealing. (Citing authorities.)

It is clear that good faith was not exercised in procuring the policy in the case at bar. Tony Tesluk testified that he told Jopes about Robert Tesluk’s nervous breakdown and that Jopes told him he would not include that information in the application because it would only “confuse the matter.” Tony said he told Jopes that it was up to him. He thus knew that material information which Metropolitan requested on its application would not be forwarded to it. Metropolitan is, therefore, not chargeable with that knowledge and can avoid the policy. Metropolitan’s motion for a directed verdict or a judgment notwithstanding the verdict should have been granted because the evidence offered by the plaintiff overwhelmingly showed his lack of good faith and his complete failure to make a full and fair disclosure in the application submitted to Metropolitan. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504, 513.

Accordingly, the judgment is reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Application of County Treasurer, etc. Petition of T. P. F. Corporation for Issuance of Tax Deed, Petitioner-Appellant v. James A. Dirst, Respondent-Appellee.
    Gen. No. 54,354.
    First District, Fourth Division.
    October 30, 1970.
    Harvey Melinger, of Chicago, for appellant.
    Malkin and Gottlieb, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Petitioner appeals from an order denying its petition to expunge respondent’s redemption from a real estate tax sale, and dismissing its petition for the issuance of a tax deed.

The following chronology of facts is not in dispute:

February 1, 1966. Quitclaim deed, executed on that date, from the Executor of the Estate of Mary Samuelson, also known as Mary Olson, to Respondent.

February 9, 1966. Petitioner’s assignor purchased the property at a sale for delinquent 1964 taxes.

February 7, 1969. On this, the last day of the extended redemption period, the County Treasurer accepted a deposit for redemption from Respondent in the amount of $167.55. The record title on that date was in Mary Olson.

February 19, 1969. Deed of February 1, 1966, filed for record by Respondent.

February 28, 1969. Petition to expunge redemption filed, alleging that Respondent had not been entitled to redeem on February 7, 1969, because he had no interest of record on that date.

May 2, 1969. Answer of Respondent filed, relying on deed to him dated February 1, 1966, and recorded February 19,1969.

May 14, 1969. Order denying petition to expunge and dismissing petition for the issuance of a tax deed.

As presented by the parties, the sole issue on this appeal is a relatively simple one: Does the decision in Weiner v. Jobst, 22 Ill2d 11, 174 NE2d 561 control this case, or does it not? Petitioner contends that it does, and that Respondent’s attempted redemption was ineffectual because on that date he did not have any interest of record. Respondent argues that Weiner is distinguishable on its facts, and apparently the trial court so held.

In Weiner, the court split four to three, with Chief Justice Schaefer writing the principal dissenting opinion. A close reading of the majority and minority opinions would prompt us to agree with the dissent if such a path were open to us, which, of course, it is not. We do believe, however, that it is required of us to examine the court’s opinion carefully to determine its breadth or narrowness of applicability in the context of the other cases bearing on the subject, and the factual situation in the case now pending before us.

Petitioner would have us hold, in effect, that in the Weiner opinion the court’s use of the term “record title” in statements concerning the right to redeem, had the effect of overruling its previous decisions in People v. Hess, 7 Ill2d 192, 197, 130 NE2d 280, and Franzen v. Donichy, 9 Ill2d 382, 387, 137 NE2d 825. In Hess, the court had held that while the constitutional and statutory right to redeem does not inure to the benefit of “a complete stranger to the property,” there is no requirement of “complete legal title, but only an undefined ‘interest’ in the real estate.” This language was specifically cited with approval in Franzen, which upheld an equitable interest in the property as sufficient basis for redemption even though not recorded until long after foreclosure sale. The court then went on to make the often-repeated comment that redemptions are looked upon with favor, and a liberal construction must therefore be given to redemption laws.

The court’s opinion in Weiner, far from overruling Hess and Franzen, appears either to rely on them or to distinguish them on the facts. The Weiner opinion also cites section 5 of Article IX of the constitution which provides that the right of redemption “shall exist in favor of owners and persons interested” in the real estate. From this citation, too, it becomes obvious that the court could not have been deciding that “persons interested” in the property must be “owners.”

We are required, therefore, to look for some basis for distinction between the Weiner and Franzen decisions, and we think there is such a basis. In Franzen, the redeeming interest was recorded after sale but before a tax deed had been issued to the purchaser. In Weiner, on the other hand, the court’s opinion makes repeated reference to the fact that the interest on which redemption was sought had not been established until after completion of the tax title proceedings. At page 14 the court pointed out that on April 14, 1960, the trial court had ordered the redemption to be expunged. On the same day, a tax deed was directed to be issued and was issued, and it was recorded on April 18. At page 16 the court stated:

The petition to vacate the order of April 14, 1960, shows that completion of the record chain of title in appellant was too late. A duplicate trustee’s deed was issued on April 18 and recorded April 21, 1960. In short, appellant was a stranger in the chain of title and did not have good record title until after the order of April 14,1960, setting aside the redemption by Lyons, the issuance of the tax deed to Smith and its recording. Good title was not established in the bank until after Smith, the purchaser at the foreclosure sale, had completed his title.

At page 17 the court noted that the petitioner “did not have record title until after the conclusion of the proceedings.” Again, on the same page, the court pointed out that the duplicate deed supplying the missing link in petitioner’s title chain was recorded on April 18 so that “its interest was not established until after the final order of April 14, 1960.” And, finally, on page 19, the court referred to petitioner as one who did not “establish any title to the property until after the case (was) concluded.”

There is an additional but related ground for distinction between Weiner and the case now before us. In Weiner, the Supreme Court considered the state of the trial record as it existed at the time the “final order” was entered on April 14; this time was apparently considered as the proper date for review of both the order of that date and of the trial court’s order denying the redeemer’s petition to vacate. As of this critical time, the record showed the redeemer had filed an answer to the tax buyer’s petition to expunge the redemption; the answer disclosed the redeemer’s claim that some 23 years earlier there had been an unrecorded deed which would have supplied the missing link in the chain of title; but the vital deed was not produced and there was no proof of its existence. Thus, the redeemer was unable to “establish” that he was a person interested in the property. Before the execution of a duplicate deed to supply the missing link, the tax deed had been issued and recorded. Then, on the petition to vacate, both the trial and reviewing courts determined the correctness of the April 14th order strictly on the basis of what had been presented by the redeemer at that time, and without reference to later facts or events which were not available as proof when the order was entered, since the deed had been lost and the duplicate was not executed until later.

A very different situation obtained in the present case. The original unrecorded deed was in existence and had been recorded at the time of the hearing on the tax buyer’s petition to expunge the redemption. The redeemer’s interest in the property was therefore “established” before that critical time in the proceedings; as we have mentioned, the tax deed has never been issued or recorded and the proceedings for the issuance of such deed had not been “concluded.” In thus establishing himself as an owner or person interested in the property, the redeemer was not “too late.”

We hold that Respondent’s interest in the property was adequate to support his redemption, and the order of the Circuit Court is, therefore, affirmed.

Affirmed.

STAMOS, P. J. and DRÜCKER, J., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    William Keen, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, and James B. Conlisk, Superintendent of the Chicago Police Department, Defendants-Appellees.
    Gen. No. 54,528.
    First District, Fourth Division.
    October 21, 1970.

      Witt & Witt, of Chicago, for appellant.
    Richard L. Curry, Acting Corporation Counsel of City of Chicago (Marvin E. Aspen and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff brought an action in detinue against defendants for the recovery of the sum of $1,180. The court, sitting without jury, entered judgment against plaintiff, who now appeals. The ABC-Great States, Inc., was allowed to participate in this appeal as amicus curiae.

Plaintiff contends that the court erred in finding the issues in favor of defendant.

EVIDENCE

WILLIAM KEEN, testified on his own behalf:

He lives at 3040 North Parkside in the City of Chicago with his parents and his brother Robert Keen. On August 5. 1968, to the best of his knowledge, there was the sum of $1,422 on the premises. This was money he had earned. He intended to use this money to purchase a motor vehicle. He is in court claiming $1,180. (Leave was granted during the trial to amend the complaint reducing the amount claimed from $1,422 to $1,180.)

On cross-examination plaintiff testified:

He is 21 years of age and filed this lawsuit almost a year after the currency was seized. He earned the money by working for $89 a week. The money was kept in his drawer in his bedroom. His brother Robert had his own bedroom. The money he seeks to recover consisted of ten- and twenty-dollars bills. There were no wrappers around the money nor was the money in any container. It was placed under some clothes in the drawer. He counted the money every week and had accumulated the total amount over a period of about a year.

The foregoing is the only evidence plaintiff adduced in support of his allegations.

DETECTIVE G. WENDELL was called on behalf of defendants and related:

On August 5, 1968, he went to 3040 North Parkside Avenue, with a search warrant and proceeded to the second-floor apartment. Upon announcing his office, he was admitted by plaintiff’s mother who was given a copy of the search warrant which authorized the search of Robert Keen’s premises. She showed them Robert’s bedroom and accompanied them into it. She was present when the search .revealed a First National Bank bag which contained ten- and twenty-dollar bills. This money was found under the only bed in Robert Keen’s bedroom. This bedroom was off the dining room. There was another bedroom to the front which the mother advised was plaintiff’s bedroom. There was a third bedroom off the kitchen. Robert’s bedroom was the middle bedroom. The witness also found another First National Bank bag in a box, also in Robert’s room. The bag contained rolled silver with First National Bank legends on the wrappers. Alongside the north wall of Robert’s bedroom a small leather suitcase was opened and the witness found a third First National Bank bag containing five-dollar bills. They looked into plaintiff’s room, but did not enter it. They were advised by a man on the first floor of the building that he was an attorney and that they could not enter plaintiff’s bedroom. The items sought by the service of the search warrant were camera equipment, but they were not found on the premises.

In the criminal trial of Robert Keen on December 4, 1968, the motion to suppress the money seized was sustained. At the conclusion of the hearing, plaintiff’s brother, who was the defendant in that criminal proceeding, asked for the return of the money that was seized on August 4, 1968 by this witness. Robert said it was his and he wanted it back.

On cross-examination Officer Wendell testified:

The landlord did not admit them into the apartment, but plaintiff’s mother did. She appeared to have difficulty with her leg and could not walk well. She did not appear to be ill or emotionally retarded. She indicated which brother occupied the respective bedrooms. The police were on the premises for approximately half an hour. There were about four or five officers, none of whom had ever been there previously nor subsequently. The First National Bank never made a claim for the money, but Robert Keen, plaintiff’s brother, at the time of trial, asked for its return.

OPINION

Plaintiff contends that since the money was not contraband, defendant had a legal obligation to return it to plaintiff, who established his ownership rights to it.

In his action in detinue, plaintiff must rely on the strength of his own title or right to possession of the funds rather than any alleged wrongful detention by defendant. Germania Club v. City of Chicago, 332 Ill App 112, 114, 74 NE2d 29 (1947). It is the duty of the court to weigh the testimony and reach a finding, and that finding will not be set aside unless it is against the manifest weight of the evidence.

A review of the evidence discloses a woeful lack of evidence to support plaintiff’s cause of action. Plaintiff’s evidence consists wholly of his own testimony. He testified that the money he had saved, consisted of ten- and twenty-dollar bills which were secreted under clothes in a drawer in his room. However, Detective Wendell testified that the money seized by defendants pursuant to the search warrant consisted of silver and five-, ten- and twenty-dollar bills which were found in First National Bank bags secreted in various places in the bedroom of plaintiff’s brother, who after his discharge in the criminal proceeding asserted his right and claim to the money. Detective Wendell further testified that the police officers never entered plaintiff’s room. It is noted that neither plaintiff’s mother nor his brother were called upon by plaintiff to testify in support of his cause of action or to refute Officer Wendell’s testimony.

In Milhahn v. Sapp, 338 Ill App 12, 86 NE2d 667 (1949) this court stated at page 18:

“The trial court saw and heard the witnesses. The court found that the plaintiff was not entitled to the possession of the property in question. There was evidence from which the court has so found and since this finding was not against the manifest weight of the evidence nor manifestly wrong, it will not be reversed upon appeal.”

In view of the foregoing, we affirm the judgment.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    Maryland Casualty Company, a Corporation, Plaintiff-Appellee, v. 222 East Chestnut Street Corporation, a Corporation, Defendant-Appellant.
    Gen. No. 54,548.
    First District, First Division.
    September 21, 1970.

      Edward S. Made, of Chicago, for appellant.
    Rappaport, Clorfene & Rappaport, of Chicago (Hamilton Clorfene, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Maryland Casualty Company (hereinafter referred to as Maryland), sued to recover from 222 East Chestnut Street Corporation (222) bond premiums alleged to be due from 222 for the second and subsequent years on a supersedeas bond. This cause was tried without a jury. Judgment was entered for Maryland in the sum of $6,782.40 for premiums at the rate of $1,200 per year, plus interest. From this judgment, 222 appeals.

The supersedeas bond, in the sum of $60,000, was executed by Maryland as surety and by 222 as principal on September 4, 1956. It was filed in the Supreme Court of Illinois to stay a judgment entered by the Circuit Court affirming an order of the Chicago Zoning Board. 222 paid a premium of $1,200 and deposited shares of American Telephone and Telegraph stock, then with a market value of $90,000, with Maryland as security. The liability on the bond was terminated in 1963.

The main issue is whether 222 is liable to Maryland for annual premiums of $1,200 for the life of the bond or whether the bond was to be a single-premium bond making the $1,200 which 222 paid to Maryland full payment for its execution.

The cause was tried on Maryland’s second amended complaint of April 8, 1964, and upon the amended answer of 222. Maryland alleged that 222 paid the sum of $1,200 in 1956, as the first annual premium on the supersedeas bond, but although the bond remained filed until April 30, 1963, and invoices were sent to 222 after September 4, 1957, no further payments were made. 222 alleged that at the time of the execution of the bond it was orally agreed between its agent, Joseph F. Elward, and Thomas E. Ryan, the duly authorized and acting agent of Maryland, that 222 would cause to be deposited negotiable stocks in excess of $90,000 as security and would pay a total premium of two percent of the $60,000 bond or $1,200, which was paid. Nothing more was due to Maryland.

No application or other writing was ever signed by or on behalf of 222 whereby it agreed to pay an annual premium. Ryan and Elward were the only persons with personal knowledge of the transaction and were the only witnesses at the trial.

Maryland called Joseph F. Elward as plaintiff’s witness under section 60. Elward testified that at the time of the transaction he was secretary and attorney for 222. Ryan had written many bonds for him since 1916. He said he talked to Ryan in Ryan’s usual office in the Probate Court Clerk’s office in early September 1956 about a supersedeas bond for 222. He told Ryan that 222 was the owner of a nineteen-story unfurnished apartment building which was subject to a small mortgage. Ryan told him that under this circumstance he believed collateral would be unnecessary. Elward said that he informed Ryan that he would be willing to put up A. T. & T. stock with a market value of $90,000 as security because he did not know how long the litigation would last, but he wanted a one-premium bond. Ryan told him that he would have to discuss with someone whether this could be a single-premium bond, but he thought there would be no difficulty about it. Elward said that the next time he talked to Ryan he was told that it was all right about the single premium. Ryan did not ask him to sign any application when the bond was executed, nor did Ryan indicate that the A. T. & T. stock was not ample collateral for the bond. Ryan did not tell him that he was without authority to write the bond. When 222 subsequently received an application and collateral agreement in the mail, Elward did not sign the documents. He promptly replied to each of Maryland’s requests for an annual premium that there was no such agreement.

Thomas E. Ryan, called as Maryland’s witness, testified that he was a special agent for Maryland with authority to solicit, write and sign bonds. He said that the handwriting on the bond was his, but he didn’t remember his conversation with Elward because it had happened thirteen years ago, since which time he had written about 15,000 bonds. He said that although he didn’t remember, he must have requested collateral because he wouldn’t sign that kind of a bond without some sort of collateral. He said he took the matter up with Madden who was the manager of Maryland’s bonding office and his direct supervisor. He thought that Madden would also have to seek approval from the company. He didn’t remember if Madden gave him authority to sign the bond, but said that Madden must have given him some kind of authority, because he did sign the bond. Ryan said that he sometimes signed bonds and then obtained the signature of the other party. Ryan didn’t deny that Elward made application with him for a single premium bond and didn’t know whether or not he granted such an application. Ryan said that in order to determine the premium rate for a bond he would refer to Maryland’s manual and in 1956 he did not have authority to write bonds for less than the stated rate.

Joseph F. Elward then testified on direct as defendant’s witness. He said that he told Ryan that while the building owned by 222 was ample security for the bond he would put up additional security if the bond was drawn to require only one premium. After he delivered the collateral, the bond was signed by Ryan. Elward later received a letter from Maryland requesting 222 to execute the collateral agreement. He told Ryan that the document did not state that it was a one-premium bond in accordance with their conversation, and Ryan told him that it was an oversight which he would correct.

In this court Maryland contends that 222 failed to prove the alleged oral agreement for a single-premium bond or that any such agreement was authorized by Maryland, but the issue is whether Maryland, as plaintiff, proved that the agreement was for an annual-premium bond. This it did not do. The record clearly establishes that no document was ever signed by 222 in which it agreed to an annual premium. Ryan, who for many years was the agent for Maryland and had authority to sign bonds on behalf of Maryland without any countersignature, did sign the bond. It is uncontested that Elward told Ryan that he was only interested in a single-premium bond for which he would be willing to put up as collateral $90,000 in A. T. & T. stock. Ryan did not deny this testimony, nor did he deny that he took up the matter with his firm and then told Elward that it was all right. The evidence further shows that when Maryland sent bills for annual premiums to 222, Elward immediately informed Maryland that he had only agreed to a one-premium bond. Elward’s testimony as to such an oral agreement was positive and definite. Ryan wasn’t sure what he had told Elward.

Maryland further contends that its rate schedule filed with the Illinois Department of Insurance as required by Ill Rev Stats 1955, c 73, § 1065.4, provided for annual premiums of $20 per $1,000 on a supersedeas bond. This section also requires adherence by the insurer to the rate schedule. Although the 222 deposited $90,000 of A. T. & T. stock as security for the bond, Maryland alleges that the schedule provided that the premium could be reduced only if cash or government securities were deposited as collateral. Maryland alleges that this schedule was implied in the agreement and thus required 222 to pay an annual premium.

The record does not clearly establish this schedule. We think it would be unjust to permit Maryland to repudiate as illegal the oral agreement for a one-premium bond which it had made with 222 through Ryan, its general agent, and thereby enrich itself. In Watertown Fire Ins. Co. v. Rust, 141 Ill 85, 88, 30 NE 772, an insurance company argued that a policy which it had written after its authority to transact business in the state had ceased was void. It was there stated that:

Our statute was manifestly enacted for the protection of the public against the acts of irresponsible foreign insurance companies. The duties it enjoins and the penalties it imposes are upon the insurance companies, and not upon those who in good faith contract with them. The insurance company knows whether it has complied with the law, but the public do not, and they have the right, in the absence of bad faith and of actual knowledge to the contrary, to presume that a foreign insurance company assuming to act in this State is acting lawfully, and the company, when sued upon a policy issued under such circumstances, is estopped to allege that it had no lawful authority to issue the policy. (Citing authorities.)

There is no evidence that 222 acted in bad faith or with knowledge that the bond agreement was in violation of any law. It deposited sufficient collateral to amply protect the insurer against any possible liability. When Elward objected to the bills for annual premiums, Maryland did not attempt to rescind the agreement as being in violation of law. It cannot now repudiate it.

Maryland relies on Merchant’s Nat. Bank of Peoria v. Nichols & Shepard Co., 223 Ill 41, 79 NE 38, for the proposition that persons dealing with an assumed agent are bound at their peril to ascertain not only the fact of the agency, but also its extent. In that case, the court held that a Peoria sales agent of a nonresident company had no authority to write drafts on his employer’s bank account because that was not implied in the agent’s authority to make sales and collect the proceeds. The court also stated that a principal may be bound to the extent of the apparent authority which it has conferred on its agent.

In the case at bar, unlike the Merchant’s case, Ryan as the plaintiff’s agent did have the authority to write the bond. Attached to the bond was a printed form of authority from Maryland to Ryan which recites, among other things, that Ryan has “. . . full power to act alone . . . (as) its Attorney-in-Fact to make, execute, seal, and deliver on its behalf as Surety, and as its act and deed, any and all bonds . . . .” Ryan thus clearly had authority to execute the bond without any additional signature. When he told Elward that he had checked and it was all right, Elward was not required to verify that fact again. Maryland never tried to rescind the transaction upon Elward’s repeated protestations that the agreement had been for a single-premium bond.

After careful consideration we conclude for the reasons stated that the judgment of the Circuit Court should be reversed.

Reversed.

MURPHY and ADESKO, JJ., concur.


text:
    Southland Corporation, a Texas Corporation, and Bernard Karey, Plaintiffs-Appellees, v. Village of Hoffman Estates, a Body Politic and Corporate, Frederick E. Downey, et al., Defendants-Appellants.
    Gen. No. 54,549.
    First District, First Division.
    September 21, 1970.

      Hofert and Samelson, of Des Plaines (Edward C. Hofert and Harry G. Fins, of counsel), for appellants.
    Edward T. Graham, of Wheaton (Sidney Z. Karasik, of Chicago, of counsel), for appellees.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This case involves a mandamus action instituted by the Southland Corporation, the owner of certain property, and Bernard Karey, the contract purchaser of the same property. Plaintiffs’ real estate is located outside the corporate limits of the Village of Hoffman Estates. The defendants are the Village, certain individuals, who are members of the Village’s Board of Trustees and various other officials of said Village. Plaintiffs’ petition alleged that the Village had the duty of operating and maintaining a water and sewer system “situated within and surrounding the corporate boundaries of the Village of Hoffman Estates”, which included the plaintiffs’ property. The petition stated that the plaintiffs had made application to the Village’s water and sewer system. Plaintiffs averred that the defendants had refused such application without legal justification and that plaintiffs sought a writ of mandamus directing the defendants to permit the plaintiffs to connect into the water and sewer system.

The defendants’ answer denied any duty to operate or maintain a water and sewer system outside the corporate limits of the Village. The Village admitted that on prior occasions, it had voluntarily supplied such services to certain properties located without its corporate limits. The defendants admitted also that the plaintiffs’ application had been tendered and then refused. The defendants stated that the water and sewer system was not for the use and benefit of the public but rather for the use and benefit of the Village and its residents.

Subsequently, the plaintiffs moved for summary judgment and on August 25, 1969, the trial court granted their motion, directing a writ of mandamus to the Village Clerk, a party defendant, to issue permits to the plaintiff Bernard Karey. On August 28, 1969, the defendants filed their notice of appeal from this order. The plaintiffs filed a notice of cross-appeal on September 2, 1969, from the trial judge’s refusal to allow plaintiffs’ recovery of damages. The cross-appeal is not before this court. Then, on October 2, 1969, and 35 days after the defendants’ notice of appeal, the plaintiffs filed a motion requesting the trial court to amend the order of August 25, 1969, nunc pro tunc to include Southland Corporation because that party had been inadvertently omitted from the judgment order. The trial judge granted the motion on October 2, 1969. Defendants have also appealed the nunc pro tunc amendment of the order.

Defendants seek reversal by arguing two main issues. The first is that the trial court was without jurisdiction to enter the order of October 2, 1969, which amended the order of August 25, 1969, to include Southland Corporation and that error was committed in the granting of summary judgment directing the issuance of the writ of mandamus.

The first issue raised by the defendants presents a substantial question of procedural law. The defendants have urged several theories which they contend make the order of October 2, 1969, erroneous. From the record it appears that both plaintiffs had petitioned for a writ of mandamus and that the defendants’ answer denied that plaintiffs were entitled to it. The motion for summary judgment was urged by both plaintiffs but requested that the Village Clerk “issue permits to Bernard Karey.” The judgment order of August 25, 1969, referred to the plaintiffs’ motion and granted the issuance of a writ of mandamus solely to the plaintiff Bernard Karey. Defendants’ notice of appeal was from the order as to the relief granted to the plaintiffs. The writ of mandamus referred only to Karey. Subsequently, plaintiffs’ motion for the nunc pro tunc amendment of the August 25 order alleged the inadvertent omission of the Southland Corporation from the provision commanding the issuance of permits for the connection of water and sewer services. The transcript from the hearing of October 2, 1969, discloses that the trial judge relied upon Supreme Court Rule 329 (Ill Rev Stats, c 110A, § 329, 1969) for amending what the plaintiffs alleged was an inadvertent omission. The trial court granted the motion and issued a new order, nunc pro tunc as of August 25, 1969, which gave relief to both Karey and South-land Corporation.

The first theory asserted by the defendants is that the trial court lacked jurisdiction to enter this nunc pro tunc amendment of the judgment order after a notice of appeal had been filed from that order. Defendants have cited a number of decisions that have discussed the powers of a trial court once a notice of appeal has been filed. These cases use various terms to describe the effect of an appeal on the trial court’s jurisdiction. It has been stated that the trial court is “deprived” of jurisdiction, Brehm v. Piotrowski, 409 Ill 87, 98 NE2d 725 (1951); People v. Dusher, 24 Ill2d 309, 181 NE2d 166 (1962), and that the notice of appeal “restrains the trial court from entering any order which would change or modify the judgment or decree, or the scope thereof, . . . which would have the effect of interfering with the review of the judgment or decree,” Lind v. Spannuth, 8 Ill App2d 442, 453, 131 NE2d 796 (1956). A more recent statement is found in City of Chicago v. Myers, 37 Ill2d 470, 227 NE2d 760 (1967) where the court said, at page 472:

“The jurisdiction of the appellate court attaches upon the proper filing of notice of appeal. Thereafter, excepting certain instances not here concerned, the cause is beyond the jurisdiction of the trial court.” [Emphasis supplied.]

See also O’Donnell v. Woods, 94 Ill App2d 134, 236 NE2d 324 (1968). As can be noted from the words we have emphasized, the rule expressed in the Myers case recognized that certain exceptions exist.

Some of these exceptions were discussed in an article entitled “Jurisdiction of Trial Court after Notice of Appeal”, 53 Ill Bar Journal 30 (1964). Plaintiffs have relied upon that article where, at page 37, it was stated:

“While an appeal is pending the trial court may amend the record to correct matters of inadvertence or mistake, but it is denied the power to remedy-defects of substance which would make it a new case.”

We believe that the above authorities establish that a trial court’s post-appeal jurisdiction is not completely abrogated by the filing of a notice of appeal. Certain of the trial court’s powers have been held to be abrogated. For instance, in Butler v. Palm, 36 Ill App2d 351, 184 NE2d 633 (1962), it was held that the trial court could not grant leave to amend a pleading after notice of appeal was filed by an adverse party. See also First Federal Savings & Loan v. American Nat. Bank, 100 Ill App2d 460, 241 NE2d 615 (1968). Furthermore, a trial court is without jurisdiction to consider post-trial motions after a notice of appeal is filed, People v. Brigham, 47 Ill App2d 444, 198 NE2d 106 (1964). Another example is Dunwoody & Co. v. Washington, 315 Ill App 54, 42 NE2d 113 (1942), where it was error to allow a nunc pro tunc amendment of a judgment, after notice of appeal, in order to justify the issuance of a body execution on that judgment. The above decisions are examples of the type of post-appeal trial court proceedings which result in substantive changes. Reviewing courts should not consider such changes which are in effect making the suit a “new case.”

On the other hand, the case of Arndt v. Arndt, 331 Ill App 85, 72 NE2d 718 (1947), illustrates an exception to the general rule. In Arndt, the trial court was considered the tribunal with jurisdiction to consider a question of fixing attorney’s fees despite an intervening appeal. The Arndt decision states, at pages 93-94:

“The general rule that a case leaves the jurisdiction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over the case taken to the higher court.”

Other recognized exceptions are the setting of appropriate bonds, the supervision of the record and approval thereof, and other supplemental matters. 53 Ill Bar Journal 30 (1964).

Defendants rely heavily upon Brehm v. Piotrowski, 409 Ill 87, 98 NE2d 725 (1951), where a chancellor had denied plaintiffs’ motion to amend the complaint nunc pro tunc, where motion was made after the plaintiffs had filed a notice of appeal from the dismissal of their complaint. In Brehm plaintiffs had relied upon the wrong contract in their suit for specific performance. The amendment was denied. If granted, plaintiffs would have pleaded another contract that apparently was the true agreement of the parties. The reviewing court held that with the filing of the notice of appeal the trial court was without jurisdiction to alter the pleadings. We believe this case comports with the above rationale that prohibits any change of substance by the trial court following a notice of appeal in that case.

Thus, the question is: What type of change are we dealing with in the instant case ? Plaintiffs argue that this is an inadvertent omission and relies upon Supreme Court Rule 329, which provides in part:

“The record in appeal shall be taken as true and correct unless shown to be otherwise and corrected in a manner permitted by this rule. Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth. (Ill Rev Stats, c 110A, § 329 (1969)).”

Clearly, this provision gives the trial court some post-appeal jurisdiction as an exception to the general rule that eliminates trial court jurisdiction after notice of appeal. Generally, an amendment of the record on appeal must be proved by some memorial “from the records or quasi-records of the court, or by the judge’s minutes, or by the papers on file in the cause . . . [Tjhe record must show the basis upon which the amendment or correction is made.” People v. Miller, 365 Ill 56, 58-9, 5 NE2d 458 (1936).

Our analysis of the record in the instant case discloses these salient facts: Suit was commenced and relief was sought by both Southland and Karey; defendants referred to both plaintiffs in answering the mandamus petition; motions for summary judgment were made by both plaintiffs; the argument on the motion shows that neither the trial court nor the litigants differentiated between the two plaintiffs; and other indications of record show that the defendants understood that both plaintiffs sought relief in the suit. This record contains adequate material to prove the necessity for an amendment. We are of the opinion that there was substantial proof which justified the trial court’s amendment of the record. Therefore, we believe the trial court acted properly under Rule 329 and the authorities discussed above. This was not a change of substance that would present a “new case” to this court from the matter that was appealed by defendants.

Defendants have also contended that the trial court’s action violated the principle of section 72 of the Civil Practice Act (Ill Rev Stats, c 110, § 72, 1969), because plaintiffs failed to comply with certain procedural requirements. This argument is not in point. The plaintiffs did not seek post-judgment relief from the order of August 25, 1969; they did not allege that facts existed that would have prevented rendition of the judgment or to show a defense to the order entered. It appears that the trial court granted the amendment to conform the record to the truth. Our agreement with that contention indicates that this argument is without merit.

Further, defendants contend that the nunc pro tunc amendment of October 2, 1969, was “to supply an omission to make an order” whereas, the purpose of a nunc pro tunc order is “to supply some omission in the record of an order which was really made but omitted from the record.” People v. Rosenwald, 266 Ill 548, 554, 107 NE 854 (1915). We are in agreement with that rule of law. However, from our conclusion that the trial court acted properly under Rule 329 and our examination of the record, we are of the opinion that the record was properly amended to include Southland as the order of August 25,1969 was intended to give relief to both plaintiffs.

Finally, defendants contend that the inclusion of Southland was sought only to comply with the Village ordinance involved. Thus, defendants state that plaintiffs should have attached a copy of the ordinance to their complaint, pursuant to Section 36 of the Civil Practice Act (Ill Rev Stats, c 110, § 36, 1969). This contention is not substantiated from the record and was not raised in the trial court. Accordingly, this contention will not be considered by this court.

The defendants remaining contentions deal with the propriety of the trial court’s grant of summary judgment. In view of our decision on the first issue, we will consider this question with regard to both Southland and Karey. With regard to this contention, the case of Lumbermen’s Mut. Cas. Co. v. Poths, 104 Ill App2d 80, 243 NE2d 40 (1968) contains an excellent summary of the nature, purpose and propriety of the summary judgment procedure at page 88:

“Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with affidavits, if any, ‘show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or decree as a matter of law.’
“Courts have construed this section to mean that in determining if there is a genuine issue as to any material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts then a triable issue exists. Ruby v. Wayman, supra, 700, 701; Peirce v. Conant, 47 Ill App2d 294, 300, 198 NE2d 555 (1964).
“In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. ... A summary judgment should then be granted where the moving party’s right thereto is clear and free from doubt.”

With these principles in mind we must first determine if any material issue of facts existed between the litigants.

Plaintiffs have maintained that the only issue formed by the pleadings was whether or not the defendants had a duty under the Village ordinance, to supply water and sewer services to the plaintiffs’ property by means of a connection to ah existing system. In strictly construing the pleadings against the plaintiffs, we are of the opinion that material issues of fact existed between these parties. The petition alleged that Southland was the owner and Bernard Karey the contract purchaser of certain real estate. The defendants’ answer neither admitted nor denied this allegation since they had no direct knowledge of these facts. This assertion by the plaintiffs would require proof of the facts concerning that issue. Furthermore, the plaintiffs’ petition alleged that their application to connect to the water and sewer system had been “duly and properly made.” The defendants’ answer admitted that an application had been made and then stated that they “deny any other inference contained in said paragraph.” Defendants argue correctly that an issue of fact was formed as to whether the plaintiffs made a proper application for the connection of services. It would be incumbent upon plaintiffs to submit proof in that regard. We think this was a material issue of fact. Without proof of a proper application made by the plaintiffs, there could be no argument as to whether the defendants had a duty to supply water and sewer services under the relevant ordinance.

Therefore, we are of the opinion that the trial court improperly granted summary judgment for the plaintiffs due to the material issues of fact that exist from the pleadings. We will not comment on the remaining issues since the matter will be remanded to the trial court for further proceedings.

The judgment of the Circuit Court of Cook County is affirmed in part, reversed in part and remanded to the trial court.

Judgment affirmed in part, reversed in part and remanded with directions.

BUSMAN, P. J. and MUSPHY, J., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Appellant, v. Erma Rivera, Appellee.
    Gen. No. 54,626.
    First District, First Division.
    October 13, 1970.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    Warren D. Wolfson, of Chicago, for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal by the People of the State of Illinois from an order which quashed a search warrant and suppressed evidence. The appeal was filed pursuant to Supreme Court Rule 604. On appeal the State contends: (A) The trial court erred in finding the informant signed a fictitious name to the complaint for search warrant and in quashing the search warrant; and (B) Aside from the search warrant, probable cause was present to arrest the defendant and seize marijuana in open view.

On July 5, 1967, an informer, Walter Hampton, appeared before a magistrate of the court with Officer Augustus Standfield and presented a “Complaint for Search Warrant.” The complaint stated the name of the affiant to be Peter Potts, and it was signed “Peter Potts” and sworn to by Hampton. The complaint requested the issuance of a search warrant to search the “person of Scott (Doe) and 6236 S. Harper Avenue, apartment #201, Chicago, Illinois, and seize ... a quantity of Heroin, a narcotic drug, which have been used in the commission of, or which constitute evidence of the offense of Unlawful Possession of Heroin, an narcotic drug.”

The complaint further stated that “. . . I, Peter Potts, had an occasion to be in the premises located at 6236 S. Harper Avenue, apartment #201, on the 5th day of July 1967, and while in said apartment saw in the immediate possession and under the direct control of one female negro known to me as Scott (Doe) a quantity of narcotics known as heroin. From this quantity of heroin this female negro known to me as Scott (Doe) sold and delivered to me one tinfoil package of heroin for the sum of $25.00 United States Currency. When I left the apartment, the remaining portion of heroin was in the immediate possession and under the direct control of the female negro known to me as Scott (Doe), at 6236 S. Harper Avenue, apartment 201, Chicago, Illinois.”

After finding the complaint stated probable cause, the court issued the requested search warrant for the premises on July 5, 1967. On that same day, Officer Stand-field and his partner, Officer Gary, proceeded to the premises set forth in the warrant. Officer Standfield testified that he knocked on the door and when defendant opened the door he said, “Police officer and I showed my badge and she attempted to close the door and the chain was on it. My partner and I pushed the chain off and entered.” They found marijuana and heroin in the apartment and placed defendant under arrest. Thereafter, defendant was indicted for “unlawful possession of narcotic drug.”

Defendant’s “Motion to Quash Warrant and Suppress Evidence” alleged the search warrant was defective in that “[4.a.] The affidavit for the search warrant does not state probable cause for its issuance. Further, the name ‘Peter Potts’ is false and fictitious.”

At the hearing of the motion on May 27, 1969, the defendant testified she did not know Peter Potts or Walter Hampton, and she did not sell heroin to him or anyone else on July 5,1967.

Officer Standfield and Peter Potts were called as witnesses by defendant. Standfield testified that upon entering the apartment he found a substance subsequently identified as marijuana strewn on the floor from the front door to the bathroom door in large quantities. He also testified at that time that the heroin found was located in a table drawer in the living room. Hampton testified that when he purchased the heroin on July 5, 1967, from the female he knew as Scott, he did not enter the apartment but made the transaction through an open doorway.

Hampton also testified that Walter Hampton was his true name, and he was known in the streets as “Peter Potts.” He stated he had lived under the Peter Potts name on various occasions in 1964, 1965 and 1966; that the name Peter Potts has been on his doorbell in a Chicago apartment. In July of 1967, when the affidavit was signed, he was living under his true name, “Walter Hampton.” Hampton began using the name Peter Potts in 1964 when he was working with the Narcotics Bureau, and he used “Peter Potts” when signing search warrants for the police.

After an extended hearing and argument of counsel on the motion to quash, the trial judge on June 13, 1969, stated: “Now, the Court holds, that under the Pugh case [United States ex rel. Pugh v. Pate, 401 F2d 6 (7th Cir 1968)] . . . that this affidavit is defective. That it is signed by a fictitious person. That the person who signed his name is a fictitious person, did not inform the issuing magistrate of this fact. And I hold that the warrant should be quashed and the evidence should be suppressed. That is the order.”

Initially, the State contends that the defendant failed to sustain its burden in proving that the name appearing on the complaint was fictitious within the meaning of United States ex rel. Pugh v. Pate, and therefore, that case is inapplicable to the facts in the instant case and the instant search warrant was not tainted. There the court said (p 8) :

“While the state prosecution now before us is not subject to the federal rules of procedure, we think the fourth amendment itself, in requiring an oath or affirmation, precludes hiding the identity of an affiant or affirmant by use of a false name.”

The State argues that in Pugh it was not disputed that the affiant signed a fictitious name. The affiant was not produced at the hearing of the motion to quash the search warrant. No one was present to take responsibility for the facts alleged under oath to the magistrate who issued the search warrant, whereas in the instant case the informant, Peter Potts, alias Walter Hampton, appeared on the motion to suppress, testified and accepted full responsibility for the facts previously alleged in the complaint for a search warrant.

. The State further notes that Officer Standfield testified that he had known the informant for at least four years, and that he was known by both names, Peter Potts and Walter Hampton. The State further argues that although substantial evidence was produced to show that the informant had two names, the defense presented nothing to the contrary except a statement in another proceeding by an Officer Gary that Peter Potts was a fictitious name.

As to the use or adoption of an assumed name, whether it is called fake or fictitious or an alias, it is said in 27 ILP, Names:

“A man’s name is the designation by which he is distinctively known in the community. ...” [§ 1, p 628.]
“A person may be designated in legal proceedings by the name by which he is commonly known, although it is not his true name.” [§ 1, p 629.]
“At common law, and in the absence of statutory restrictions, an individual may lawfully change his name without resort to any legal proceedings, and for all purposes the name thus assumed will constitute his legal name just as much as though he had borne it from birth.” [§ 5, p 635.]

And in 65 CJS, Names:

“It is sufficient, in legal proceedings and elsewhere, that a person is designated by a name by which he is commonly known and called even though it is not his true name. It is not necessary that he shall be known as well by the one name as by the other; it is enough if he is commonly so known.” [§ 10, p 24.]
“In the absence of statutory restriction, one may lawfully change his name without resort to any legal proceedings as long as it does not interfere with the rights of others and where it is not done for a fraudulent purpose. The name thus assumed will constitute his legal name for all purposes just as much as though he had borne it from birth or as though it had been provided for by a court order, even though the name taken is the name of another living person.” [§ 11, p 25.]

After examining the various authorities on the question of the use of fake or fictitious names and signatures on affidavits to secure the issuance of search warrants, we note that there is an extended use of fictitious names in a number of criminal areas, such as the fields of narcotics and gambling.

On this question our Supreme Court in People v. Mack, 12 Ill2d 151, 145 NE2d 609 (1957), said (p 163):

“Next to be considered are the issues created by the refusal of officer Sims to disclose the identity of the informer who signed the complaint for the search warrant that provided the authority for the seizure of vital evidence against defendant. The latter does not here contend that the fictitious signature rendered the warrant void, (see: United States v. McKay, 2 F2d 257, holding that a fictitious name signed to the affidavit is no ground for quashing the search warrant), nor does he deny that the allegations of the informer’s complaint and affidavit afforded probable cause for the issuance of the warrant. . . .”

And at page 164:

“In meeting this issue we are benefited by the recent case of Roviaro v. United States, 353 US 53, 1 L Ed 2d 639, wherein the court, after reappraising former decisions, reiterated its recognition of the government’s privilege, commonly called the ‘informer’s privilege,’ to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. The court said: ‘The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.’ ”

And at page 165:

“The Roviaro case also pointed out that the privilege is not absolute and added to the already established exceptions those cases where disclosure is required by fundamental fairness, e. g., where the disclosure of the identity is relevant and helpful to the defense of the accused, or is essential to a fair determination of the cause.”

In a dissent filed in the Pugh case, Circuit Judge Roger J. Kiley said (p 8):

“I dissent. Pugh contends that the use of the fictitious name on the affidavit for the warrant per se voids the warrant under the Fourth Amendment. I cannot agree with this contention because I find nothing in the Constitution which requires such a result absent a showing of some prejudice to petitioner. Here petitioner does not claim that the issuing magistrate was not aware that the affiant was using a false name or that the affiant’s true identity was unknown to the magistrate. Petitioner does not claim that he sought the identity of the affiant from police and was unable to get it or even that he did not know the real identity of the affiant. I agree that the affiant must be named where the defendant wishes to question the existence of probable cause by a motion to suppress, but petitioner here has not, so far as the record before us shows, ever questioned the existence of probable cause. [Emphasis supplied.]
“The Fourth Amendment requires a warrant to be supported by oath or affirmation but does not expressly require the person giving that oath to sign his correct name. No Supreme Court case is cited which supports Pugh’s contention. The case of King v. United States, 282 F2d 398, involved a federal search warrant to seize liquor, and the facts in that case do not warrant its use in supporting Pugh’s contention. There a hearing on a motion to suppress disclosed that the affiant used a quality fictitious name to add reliability to the application, and that the issuing magistrate was deceived. Moreover, the actual affiant could not be located to testify at a hearing on the motion to suppress. But here the motion to suppress was on the ground that the fictitious name itself voided the warrant.
“The Illinois Appellate Court rejected Pugh’s per se contention in People v. Pugh, 69 Ill App2d 312, 217 NE2d 557; and in People v. Mack, 12 Ill2d 151, 145 NE2d 609, at page 615 the Illinois Supreme Court stated that a fictitious name in the affidavit for a warrant is not ground for quashing a warrant. In my view the Illinois Appellate and Supreme Court decisions construing Illinois law with respect to the issuance of search warrants should not be circumvented by a decision of a federal court construing Rule 41(c) Fed R Cr P, where the Illinois court decisions do not offend the requirements of the Fourth Amendment as included in the Fourteenth Amendment.”

Although we do not approve of the use of fictitious names on affidavits for a search warrant, we are not persuaded that the use of a fictitious name in the instant case, absent a showing of prejudice to the defendant or fundamental unfairness, was ground for the quashing of the instant search warrant. Therefore, we find it was error to quash the instant search warrant and suppress the evidence.

Next considered is the question of whether the complaint stated probable cause. Although the determinative issue here was the use of a fictitious name by the complainant, we have examined the complaint to see if probable cause was sufficiently set forth. The complaint states that the affiant personally purchased narcotics at the place identified therein from a woman known to him as Scott, and when he left the apartment heroin was in the immediate possession and direct control of the woman from whom he made the purchase of narcotics. We find the warrant was issued on probable cause within the standards enumerated in People v. Bak, 45 Ill2d 140, 258 NE2d 341 (1970); People v. Mitchell, 45 Ill2d 148, 258 NE2d 345 (1970); and People v. Williams, 45 Ill2d 319, 260 NE2d 1 (1970). Therefore, there is no reason for this court to consider the conflicts in the testimony of Standfield and Potts at a preliminary hearing and at the hearing on the motion to quash, because on the hearing on the motion to quash the question of probable cause should have been limited to the four corners of the complaint.

For the reasons given, the order appealed from is reversed.

Reversed.

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