text:
    Ben Verson, Trustee Under Trust Deed Dated May 4, 1961, and Recorded as Document No. 948232, and Benson Investment Corporation, an Illinois Corporation, Plaintiffs-Appellees, v. Wiliam C. Hardt and Marian D. Hardt, His Wife, Commercial Construction Corporation, an Illinois Corporation, Chicago Title and Trust Company, Trustee Under Trust Deed Dated November 30, 1961, and Recorded as Document No. 965255, Chicago Title and Trust Company, as Trustee Under Trust No. 35971, All Beneficiaries Under Chicago Title and Trust Company, as Trustee Under Trust No. 35971 and Unknown Owners, Defendants-Appellants.
    Gen. No. 68-132.
    Second District.
    March 28, 1969.

      Charles G. Martin, of Chicago, for appellants.
    Barry A. Pitler, of Chicago, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

William C. Hardt and Marian D. Hardt, his wife, defendants, appeal from a decree of foreclosure of certain real estate held in the name of Commercial Construction Corporation, and pledged by Commercial as collateral on a note to the plaintiff, Benson Investment Corporation, dated May 4th, 1961, in the amount of $109,000. (Commercial has not appealed.)

Part of the proceeds of the collateral note was used to pay off previous loans made by Benson to the Hardts, individually, at admittedly usurious rates of interest. The issue is raised whether a defense of usury may be asserted by the Hardts, which would. prevent the default in the mortgage.

While there was a maze of complicated transactions alluded to in the testimony, between parties and non-parties, we deem the following facts to be those relevant to the case before us.

Prior to May 4th, 1961, Safari Motor Lodge Corporation, a nonparty, applied for a loan from Benson in the amount of $75,000. Benson agreed to make the loan providing that Safari would execute a note in the principal amount of $109,000 which would include precomputed interest on the $75,000 to cover the 36-month term of the loan. Benson required additional collateral from Safari as the latter owned only a beneficial interest in a land trust holding title to the very heavily encumbered motel property.

Commercial was the contractor building the Safari motel, and Safari was indebted to Commercial on the building contract in excess of $200,000. Apparently to safeguard this investment, Commercial agreed to pledge the real estate in controversy, which was owned by Commercial, to further secure the loan from Benson to Safari. This was a precondition to Benson’s loan to Safari, as was a further pledge of certain lots in Cook County owned by the Hardts, individually.

The Hardts were the sole stockholders and officers of Commercial Corporation. Prior to May 4th, 1961, the Hardts, individually, had borrowed various sums of money from Benson. It was not denied that these individual loans included interest at usurious rates. The balance on the individual loans was claimed by the Hardts to amount to $11,500, without interest, as of May 4th, 1961, but the court found from the evidence that the balance due on the prior loans, as of that date, was $26,000.

When the May 4th, 1961, loan was made, Benson furnished $37,500 in “fresh” money, satisfied the $26,000 obligation of the Hardts to Benson, and also satisfied an obligation of Commercial to Benson in the amount of $11,500. The total of these items made up the $75,000 principal of the loan, stated with the prepaid interest, to be in the amount of $109,000.

While the May 4th transaction was essentially one loan to Safari, Safari signed its note and trust deed in the amount of $109,000, pledging its beneficial interest in the motel property trust; Commercial signed its collateral note for $109,000 secured by a trust deed pledging the real estate foreclosed in this action; and in addition the Hardts pledged a parcel of real estate owned by them individually in Cook County, which is not involved in this litigation.

William C. Hardt, as president, and Marian D. Hardt, as secretary, signed the collateral note and trust deed involved in this foreclosure on behalf of Commercial. In addition, the Hardts, in their individual capacity, signed a usual printed form of guaranty on the reverse side of the note, which recited among other statements,

“We . . . jointly and severally guarantee payment of the within note, accepting all its provisions authorizing the maker, without notice to us or either of us, to obtain an extension or extensions in whole or in part and waiving presentment for payment, demand, protest and notice of protest and non-payment; . . . .”

Safari went into bankruptcy subsequently and the Bell Savings and Loan foreclosed against the motel property and eventually acquired ownership for lack of a purchaser at the foreclosure sale. This disposed of the motel security.

In this foreclosure the Hardts were made defendants individually, as persons interested in the real estate, but no relief was sought against them on the alleged guaranty.

In decreeing the foreclosure, the trial court found that the collateral note was in default, and that there was due, at the time of the default, the sum of $51,085.95 in principal and interest, and that the total due, as of the time of the decree, including interest, costs and attorneys’ fees, amounted to $77,948.74.

In their Brief and Argument, defendants have failed to set forth the “issues presented for review.” However, the thrust of their argument is that Equity has the power to look at the parties’ intention and that the form of the transaction is not controlling; that in that view they are co-makers or joint obligors and not guarantors; that as co-makers or joint obligors the corporate exception to the usury law does not apply; and further that the note is usurious because it included the balance due on prior usurious loans.

The same arguments were presented to the trial judge, and rejected by him in a carefully considered memorandum opinion. The trial court found that the Hardts were not co-makers or joint obligors, but guarantors; and pointed out that, in any event, the foreclosure was against property pledged by Commercial, a corporation, and not property of the Hardts as individuals, and that no relief was sought against the Hardts personally on their guaranty; that even if the Hardts were considered as co-makers or co-obligors they could not assert the defense on behalf of the corporation which was precluded from doing so.

We agree.

The guaranty agreement signed by the Hardts, individually, is clear and unambiguous. They signed individually as guarantors of the obligation of Commercial Corporation, a not unusual situation. The evidence fully justified the finding by the court that the Hardts were not, in fact, co-makers or joint obligors, but guarantors.

Commercial, as a corporation, could not plead usury as a defense. Ill Rev Stats 1961, c 32, § 157.5(h); Tennant v. Joerns, 329 Ill 34, 39, 160 NE 160 (1928); Winkle v. Scott, 99 F2d 299, 302 (1938).

The Hardts, as guarantors, could not plead as a defense that usurious interest was charged Commercial, as such defense is personal to the principal, and when it cannot be invoked by the corporate principal, it cannot be invoked by the individual surety. Tennant v. Joerns, (supra, page 41); Winkle v. Scott, (supra, page 302). See also 63 ALR2d 924, 950.

The reason for the rule is that if excessive interest does not render the principal obligation illegal, it should not affect the undertaking of the guarantor which is to assure performance of the principal obligation.

Nor, under the particular circumstances here, do we find persuasive defendant’s argument directed to the equitable principal of looking at the substance rather than the form of the transaction.

There is no evidence that the loan before us was, in fact, made to the Hardts as individuals. Commercial (as well as Safari, the primary obligor) was an established corporation and not one constructed as a sham to avoid the usury laws applicable to loans to individuals. While $26,000 of the $75,000 loan was used to satisfy a prior individual obligation of the Hardts to Benson, $11,500 was used to pay off an obligation of the Hardts’ solely owned corporation, Commercial Construction Corporation, and $37,500 in fresh money was paid to Safari, a sinking debtor of Commercial.

No duress or fraud has been charged. As is apparent from the record, the only basis presented on which Equity should relieve the defendants from an “unconscionable” result is the extremely high rate of interest. Without more, this does not make a case for equitable relief in view of the exemption of loans to corporations at any rate of interest from the usury statute.

The circumstances of this case and the applicable statutes clearly distinguish the case from cases cited by the defendants in this connection. (E. G. Dorothy v. Commonwealth Commercial Co., 278 Ill 629, 116 NE 143 (1917); Higgins v. Lansingh, 154 Ill 301, 40 NE 362 (1895); Greengard v. Katz, 270 Ill App 227 (1933)).

We have taken a motion by plaintiff to dismiss the appeal with the case. The motion alleges that since the decree of foreclosure does not provide for any affirmative relief against the Hardts and Commercial Construction Corporation has not appealed, that, therefore, the Hardts cannot by the appeal secure any relief from the decree of foreclosure and that the appeal thereby became moot.

We hereby deny the motion and have decided the case on the merits because the trial court found that the Hardts were guarantors rather than co-makers as they claimed. Since this finding against them would have been res adjudicata in a subsequent suit against them, we believe they were entitled to appeal.

We do not, however, adjudicate any defense which the Hardts, as guarantors, might or could assert in proceedings brought against them individually.

We, therefore, affirm.

Affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William E. De Groot, Defendant-Appellant.
    Gen. Nos. M-52,076, M-52,077. (Consolidated.)
    First District, Third Division.
    June 27, 1968.
    Rehearing denied March 27, 1969.

      Jerome Feldman and Dennis L. Posen, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial the defendant was found guilty of driving a motor vehicle while under the influence of intoxicating liquor. He was sentenced to ten days in jail, fined $800 and his driver’s license was revoked for one year.

On appeal the defendant contends that he was not proven guilty beyond a reasonable doubt, that he was convicted and sentenced on a void complaint and that he was prejudiced by the filing of a second complaint which included the allegation that he had been previously convicted of drunken driving.

At approximately 12:30 a. m. on July 2, 1966, as the defendant was proceeding northwest on Milwaukee Avenue in the city of Chicago, his auto suddenly veered halfway across the center line. A police car was behind him at the time and the officer signaled him to stop and gave him two tickets — one for changing traffic lanes and the other for violating “section 47 U. A. R. T. State of Illinois.” (Section 47 of the Uniform Act Regulating Traffic: driving a vehicle while under the influence of intoxicating liquor or narcotic drugs; 111 Rev Stats 1965, c 95%, par 144.) At the trial the officer testified that the defendant’s breath smelled of alcohol, that he appeared sleepy, that he staggered and swayed as he walked, that his speech was “mush-mouth” and that his clothes were in a state of disarray. He stated that in his opinion the defendant was under the influence of alcohol. On cross-examination he said that the defendant was not speeding, that he stopped immediately when signaled, that he was polite and appeared tired and relaxed.

The defendant testified that he had an allergy and was required to take antihistamine pills. He related that, at about 4:30 p. m. on the afternoon of July 1, 1966, he had taken two of these pills and had napped from about 8:00 to 11:00 p. m. that evening. He then went for a Walk and stopped at a tavern where he drank a glass of wine. He returned home, got his car and drove a friend home. He was returning to his own home when he was arrested. He denied being under the influence of intoxicating liquor and attributed his condition to the pills he had consumed.

It was for the trial court to determine both the credibility of the witnesses and the weight to be given their testimony. A court of review will not disturb the finding of the trial court unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt. People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966); People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966). The evidence in this case is not of such caliber. The defendant did not contradict the testimony of the police officer but instead assigned another reason for his physical condition: that two antihistamine pills produced the condition described by the officer some eight hours after their consumption. The trial court was under no obligation to believe his unsupported assertion and the evidence was sufficient to prove his guilt beyond a reasonable doubt.

The defendant contends that he was sentenced under a void complaint and that his conviction must be reversed under the authority of People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381 (1962). The traffic ticket issued to the defendant was the form used by the Chicago Police Department and constituted both a complaint and a summons. It contained personal facts about the defendant, his car and its license numbers, and pertinent information concerning the time and place of the offense, the weather and traffic conditions and the name and star number of the officer who made the arrest. It stated the charge against the defendant and informed him of the court where, and the date and hour when, he had to appear.

The officer gave a copy of the ticket to the defendant and retained the original. The copy charged that the defendant, “. . . did then and there violate section 47 U. A. R. T. State of Illinois.” Citing the statute alleged to have been violated without naming the offense in a manner that could be clearly understood by the accused was inadequate in law. A complaint must be sufficiently specific to inform the offender of the accusation against him so that he will be able to prepare his defense and avoid being placed in double jeopardy. People v. Griffin, 36 Ill2d 430, 223 NE2d 158 (1967). It would be an uncommon motorist who would realize what was meant by “section 47 U. A. R. T.” If, perchance, he did know the provisions of the statute he would still not know whether he was being charged with driving while under the influence of narcotic drugs or intoxicating liquor.

However, the ticket retained by the officer was the one upon which the defendant was tried. This ticket-complaint was amended before trial through the addition, by means of a rubber stamp, of the words: “Driving a motor vehicle while under the influence of intoxicating liquor.” The complaint, as amended, shows upon its face that it was subscribed and sworn to by the arresting officer before the clerk of the court. The amended complaint was sufficient to advise the defendant of the precise offense with which he was charged. The other portions of the complaint informed him of the date, time, place and circumstances of the offense, and if he needed further information he could have requested a bill of particulars. But the defendant did not ask for further information; he claimed no surprise and did not request a continuance.

In People v. Stringfield, the charge on the traffic ticket was also insufficient. It was altered to supply the deficiency but the record did not indicate when the amendment was added and it could have been after the trial. In the present case, the amendment was made before trial and was known to the defendant. The complaint upon which the defendant was tried was valid.

At the trial the prosecution was permitted to file an additional complaint — one which is customarily referred to in the traffic court as a “long-form” complaint. This complaint repeated the charge that the defendant drove his auto while under the influence of intoxicating liquor on July 2, 1966, and alleged that he had been convicted of a similar offense in August of 1964. The additional complaint was read to the trial judge. The defendant objected to the inclusion of the prior conviction in the complaint on the ground that it was prejudicial. The court overruled the objection.

The State’s purpose in alleging the prior conviction was to obtain a more severe punishment for the defendant in the event he was found guilty. The penalty for operating a motor vehicle while under the influence of intoxicating liquor is set forth in subsection (c) of section 47:

“ (c) Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than 2 days nor more than 1 year, or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. On a second or subsequent conviction for an offense committed within 5 years after the commission of the first offense he shall be punished by imprisonment for not less than 90 days nor more than 1 year, and, in the discretion of the court, a fine of not more than $1,000.” Ill Rev Stats 1965, c 95%, par 144.

The court ordered the trial to proceed on both the traffic-ticket complaint and the long-form complaint. At the conclusion of the trial the court found the defendant guilty on the ticket-complaint but made no disposition of the long-form complaint. The defendant appealed both cases and they have been consolidated in this court. Inasmuch as no final judgment was entered on the long-form complaint that case is not appealable (People v. Nordstrom, 73 Ill App2d 168, 219 NE2d 151 (1966)) and will be dismissed. City of Moline v. Whimpey, 60 Ill App2d 219, 208 NE2d 78 (1965). However, since the defendant’s prior conviction was made known to the trial judge while he was being tried on the ticket-complaint the contention that such knowledge was prejudicial must be considered.

In People v. Long, 4 Ill2d 598, 123 NE2d 718 (1955) an information charged a defendant with driving a motor vehicle while under the influence of liquor and alleged that he had been previously convicted of a like offense. In approving the information the court noted that the prosecution had followed the procedure authorized under the Habitual Criminal Act and held that it was necessary to allege the prior conviction to subject the defendant to an increased penalty as a repeated offender. The court concluded that, “The prosecution has no alternative under the law as it now exists in this State but to present to the same jury the record of the defendant’s previous conviction as well as proof to sustain the recent charge.”

At the time Long was decided the Habitual Criminal Act provided for increased penalties for recurring convictions of certain crimes. It further provided that the former conviction had to be set forth in apt words in the indictment. Ill Rev Stats 1953, c 38, par 602. Recognizing the unfairness of this latter provision, the legislature, in 1957, amended the Act to provide that a former conviction should not be alleged in the indictment and evidence of it not introduced at the trial unless it would otherwise be permitted by the issues raised in the trial. Ill Rev Stats 1957, c 38, par 603.3. In 1963 the Habitual Criminal Act was repealed in its entirety. Ill Rev Stats 1963, c 38, § 126-1.

Two cases decided after the repeal of the Habitual Criminal Act reached different conclusions on issues analogous to the one now under consideration. In People v. Kelly, 66 Ill App2d 204, 214 NE2d 290 (1965), one of the questions considered was whether prior convictions of theft had to be alleged in the indictment in order to justify the imposition of a more severe penalty for the commission of a subsequent theft. The Criminal Code of 1961 (Ill Rev Stats 1961, c 38, par 16-1) provides for increased punishment for a person convicted of the theft of property valued at less than $150 if he has been convicted previously of theft. Prior to the enactment of the Criminal Code, the criminal statutes had contained the same provision in reference to petty theft. Ill Rev Stats 1953, c 38, par 393. The statutes provided further that the former conviction had to be alleged in the indictment. The 1961 Criminal Code, however, was silent as to whether the existence of prior convictions had to be included in the indictment. HI Rev Stats 1961, c 38, § 16-1.

The indictment in Kelly did not refer to the defendant’s prior convictions. The court refused to follow those cases which held that such convictions must be pleaded in the indictment for a defendant to be convicted and sentenced as a recidivist offender — not only because of the evolution which had taken place in the statutes pertaining to theft and in the Habitual Criminal Act, but because of the intrinsic unfairness of the former procedure.

The second case involved the offense of carrying a concealed weapon. The first count of the indictment charged the defendant with carrying a weapon concealed on his person; the second count repeated this accusation and, in addition, charged that he previously had been convicted of burglary. The State entered a nolle prosequi as to the first count and a jury found him guilty on the second. The defendant argued on appeal that his prior conviction for burglary was not an element of the offense of carrying a concealed weapon but related only to the severity of the sentence which could be imposed. Carrying a concealed weapon is a misdemeanor (111 Rev Stats 1967, c 38, par 24-1 (a) (4)), but it becomes a felony if the offense is committed within five years of a felony conviction or within five years after a defendant has been released from a penitentiary. Chapter 38, paragraph 24-1 (b). The reviewing court stated: “Under such circumstances, it was not only proper to allow the allegation and proof of a prior felony conviction, but it was necessary in order to prove defendant’s commission of the felony of carrying a concealed weapon.” People v. Ostrand, 35 Ill 2d 520, 221 NE2d 499 (1966).

The present case differs from Ostrand in that the increased penalty involves no transition from a misdemeanor to a felony and an indictment is not required to obtain the increased penalty. See 111 Rev Stats 1965, c 38, par 111-2(a). The offense of driving while intoxicated remains a misdemeanor whether it is the first conviction, a second conviction, or a subsequent conviction committed within five years of the first offense.

It cannot be seriously disputed that a defendant in a criminal prosecution is prejudiced when the trier of fact — be it judge or jury — is made aware of his former conviction before arriving at a determination of his guilt or innocence in the case on trial. The legislature’s repeal of the Habitual Criminal Act and its deletion from other statutes of the requirement of pleading and proving prior convictions is evidence of a public policy determination that such practice is not to be continued in any area of the law where it can be avoided. It can be avoided in drunken driving cases. After a defendant has been found guilty of this offense, the question of whether he was convicted of the same charge within the past five years can be submitted to the court or jury as a separate issue. If there is no dispute about his prior conviction this fact can be submitted to the court in the aggravation and mitigation hearing following the trial. The court can consider the prior conviction in imposing sentence on the defendant. Ill Rev Stats 1967, c38, §1-7 (g).

Inadmissible evidence which might be regarded as prejudicial in a jury trial is not so regarded in a non jury case where the court is presumed to consider only admissible evidence in reaching its decision. People v. Robinson, 30 Ill2d 437, 197 NE2d 45 (1964); People v. Armstrong, 80 Ill App2d 77, 224 NE2d 675 (1967). But the rule is otherwise if it affirmatively appears from the record that the evidence was considered by the court. People v. Smith, 55 Ill App2d 480, 204 NE2d 577 (1965). Where an objection has been made to the evidence and overruled, it cannot be presumed that the evidence did not enter into the court’s consideration. The ruling itself indicates that the court thought the evidence proper. People v. Reed, 287 Ill 606, 122 NE 806 (1919). So in this case, by overruling the defendant’s objection the court indicated that it considered the information about the prior conviction competent and relevant.

The defendant’s objection should have been sustained. It was error for the State to have presented the long-form complaint to the court before there was a finding of guilty on the ticket-complaint. The defendant’s prior conviction for a like offense was known to the court as he was being tried on the ticket-complaint. This was prejudicial to the defendant in the trial of that complaint and constituted reversible error.

The judgment of conviction is reversed and the cause is remanded for a new trial. The appeal based on the long-form complaint is dismissed.

Reversed and remanded with directions. Appeal dismissed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


author: MORAN, J.

text:
    James Myrick, Plaintiff-Appellee, v. Eunice Keel, Defendant-Appellant.
    Gen. No. 68-19.
    Fifth District.
    October 22, 1968.
    Cohn, Cohn & Korein, of East St. Louis, for appellant.

      Carr, Raffaelle & Cook, of East St. Louis, for appellee.
   MORAN, J.

Both parties agree that the only issue before this court is “whether or not the plaintiff, James Myrick, has proved anything at all sufficient to justify the trial court directing a verdict on plaintiff’s Count I and to justify the jury’s award of damages on Count II of the plaintiff’s complaint.”

The parties entered into a sales contract on July 30, 1962, whereby the defendant sold plaintiff certain personal property consisting of equipment and fixtures used in the operation of a nursing home for $9,000, payment being guaranteed by the execution of a promissory note in favor of Eunice Keel by the plaintiff. Contained in the Bill of Sale signed by the defendant was the following language:

“And I hereby warrant that I am the true and lawful owner of said goods and property; that I have full right and title hereto and authority to sell and dispose of the same, and that I will warrant and defend the title of same against the lawful claims and demands of any and all persons whomsoever.”

Attached to the Bill of Sale was an affidavit prepared and signed by the defendant which additionally stated:

“3. That the goods and property so sold to James Myrick have no liens, encumbrances, judgments or other claims against them.
“4. Said goods and property are hereby sold free and clear of the claims of any and all creditors whomsoever.”

Defendant had purchased the equipment and fixtures in question from one William R. Weidman on August 11, 1960 for $3,000. The transfer to defendant was secured by execution of a purported chattel mortgage instrument describing the goods sold as the secured property. This instrument, however, was not recorded in the County Recorder’s Office by Mr. Weidman until February of 1962.

On June 9, 1964, William R. Weidman died and on January 8, 1965, a suit was filed by Ralph Douglas Weidman as executor of the estate of William R. Weidman against James Myrick and Eunice Keel, claiming a possessory interest in the fixtures and equipment which are the subject matter of the present case. The executor’s suit was based on the chattel mortgage between Eunice Keel and William Weidman and the note signed by Eunice Keel which was allegedly unsatisfied.

Thereafter, the present action was instituted by plaintiff against Eunice Keel seeking rescission of the sales contract of July 30, 1962, and damages for misrepresentation. Prior to trial of this case, the suit originally filed by the estate of William R. Weidman against Eunice Keel was dismissed and settled by stipulation.

The trial court directed a verdict for plaintiff and against the defendant on Count I of plaintiff’s complaint seeking rescission of the sales contract, and entered judgment for plaintiff on Count II based on the jury’s verdict against the defendant in the amount of $2,500 for fraud. Defendant contends that the trial court erred in failing to direct a verdict in her favor on both counts at the close of all the evidence.

Defendant argues that under the provisions of the Mortgage Act in effect at the time of the sale to plaintiff, chapter 95, sections 1 and 4, 111 Rev Stats 1961, the purported chattel mortgage on the equipment and fixtures in favor of William R. Weidman was null and void as to the interest of plaintiff in the properties, since the mortgagee, Mr. Weidman, did not record his mortgage within the time prescribed for perfection of his lien. She contends that since, as a matter of law, there were no liens, encumbrances, or other claims against the property-sold to plaintiff and therefore since her statements to that effect were true, there is no basis for recovery under a theory of fraudulent misrepresentation.

Plaintiff answers that although Weidman’s chattel mortgage may have been legally defective, nevertheless, his estate had a “claim” against the property, the very existence of which violated the warranties as set out in the Bill of Sale and affidavit signed by defendant and delivered to the plaintiff. In effect, plaintiff admits that the chattel mortgage between William R. Weidman and Eunice Keel constituted no encumbrance or lien on the property sold to him, but argues that defendant’s representations of title were much broader. He urges that the defendant’s representation as to the nonexistence of any “claims” against the property must be construed as false since a suit was in fact instituted to establish the rights of a third party to the property.

We cannot agree with this construction. We believe the word “claim” as used in the particular statement, “(T)he goods and property so sold . . . have no liens, encumbrances, judgments or other claims against them,” is used synonymously with the words “lien” and “encumbrance,” and denotes a charge on property for payment or discharge of a debt. While it is undoubtedly true that “claim” is sometimes used in the broad sense of a demand of some matter as of right by some person upon another, when used, as here, with reference to the state of the title conveyed, the word assumes a more defined and specific meaning. It is only reasonable that the intention of the seller and expectation of the buyer as expressed in the statements found in the affidavit signed by plaintiff, were that the fixtures and equipment would be sold free of charges specifically against such property as security for a debt owed by seller. Further it would be unreasonable to assume that the buyer would be guaranteed by such language, that lawsuits would never be filed in an attempt to establish some right against the property, no matter how frivolous.

Under sections 1 and 4, chapter 95, 111 Rev Stats 1961, which were in force at the time of defendant’s purchase of the goods and fixtures from William R. Weidman, the mortgagee was required to record his mortgage within ten days of its execution for such mortgage to constitute a lien against the property which would be valid against the rights and interests of a third person. Mr. Weidman recorded his mortgage more than seventeen months after its execution, the effect of which being the same as if the mortgage were never recorded. Collateral Finance Co. v. Braud, 298 Ill App 130, 18 NE2d 392.

To substantiate a case of fraud, the party charging the fraud must prove every element necessary to constitute fraud, including the falsity of representation and injury. State Loan Ass’n of Illinois v. Wright, 28 Ill App2d 224, 170 NE2d 791; Nardi v. Schelfhout, 302 Ill App 431, 24 NE2d 214. In the instant case, we believe that as a matter of law, the property conveyed to plaintiff was sold free of the one possible mortgage interest which could have constituted a “lien, encumbrance, judgment, or other claim” against the property. Defendant’s statements, therefore, were true representations as to the state of the title conveyed and our holding on this issue demands a reversal of the judgment of $2,500 entered for the plaintiff on Count II of his complaint.

The basis for the action of the trial court in directing a verdict for plaintiff on Count I of the complaint was the testimony of defendant, Eunice Keel, which, plaintiff asserted, showed her intention to accept a return of the furniture and equipment sold to Myrick. That testimony, in substance, appears on pages 10 and 12 of the record, as follows:

“Q. And when we served upon you a demand for rescission of this sale, Mr. Weidman was dead then, wasn’t he?
“A. Nobody at no time asked me to take back the nursing home or I would have taken it back.
U
“Q. What you just got through saying, is that true now, Mrs. Keel, that you are willing—
“A. I said it could have come, but I would take the nursing home back today.
“Mr. Carr: If Mrs. Keel is in agreement with Mr. Cohn, we have one portion of this lawsuit taken care of, Your Honor.
“A. I said the nursing home. I didn’t say just the fixtures. I said the complete nursing home. I will take it back.”

While plaintiff correctly observes that an agreement to rescind is valid in the eyes of the law, Printing Machinery Maintenance, Inc. v. Carlton, 15 Ill App2d 548, 147 NE2d 443, nevertheless the existence of any contract is contingent upon a meeting of minds of the respective parties. Bartlett v. Lauff, 271 Ill App 551; Euclid Engineering Corp. v. Illinois Power Co., 79 Ill App2d 145, 223 NE2d 409. A statement by the witness that she was willing to resume the operation of the nursing home, not just take back the fixtures, is not, in our opinion, an expression of intention to accept return only of the fixtures and thereby cancel the sales contract. That this is true is patently clear from the excerpts previously quoted.

Failure to establish rescission founded upon agreement relegates plaintiff’s remedy of rescission to a showing of fraud, which we hold as a matter of law to be deficient.

For the foregoing reasons, the judgment of the Circuit Court of St. Clair County is reversed and judgment is entered for defendant on both counts of plaintiff’s complaint.

Judgment reversed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roger O. LaBatt, Defendant-Appellant.
    Gen. No. 51,930.
    First District, Second Division.
    February 11, 1969.
    Rehearing denied March 5, 1969.
    Opinion confirmed on petition for reconsideration April 22, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Suzanne Kohut and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Trais, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Roger O. LaBatt was found guilty, after a bench trial, of the charge of attempt murder, judgment was entered upon the finding, and he was sentenced to a term of not less than ten nor more than twenty years in the penitentiary. Defendant appeals alleging error by the trial court in allowing the prosecution, on rebuttal and over the defendant’s objection, to introduce testimony regarding a conversation which took place between defendant and the arresting officer at the time of the arrest.

Roger LaBatt was arrested on the basis of a description, in the vicinity of and shortly after an occurrence in which a police officer, who had responded, to a call, was fired upon. That officer later identified defendant as the man who fired the shot.

At trial defendant took the stand and testified as follows on direct examination as to the substance of a conversation between defendant and the arresting officer at the time of the arrest:

Q. When the officers pulled you from underneath the truck, what did they say to you, if anything?
A. One of the officers asked me where was the pistol and I told him I have no pistol.

The prosecution, on rebuttal, called the arresting officer who, over defendant’s objection was allowed to testify to another version of the same conversation, to wit:

Q. Calling your attention to the date, time and place, after you had taken the defendant out from underneath the truck, did you have a conversation with the defendant at that time?
A. Yes, sir.
Q. What did you say to him and what did he say to you?
Mr. Ross: Objection.
The Court: Overruled.
The Witness: I gave the defendant a fast frisk and found no weapon and I said to him, “Where is the weapon?” And he said, laughing, “You’ll never find it.”

Defendant was not advised of his constitutional rights as outlined in Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966), prior to this conversation.

The purpose of what has come to be known as the Miranda warning is the protection of an individual’s Fifth Amendment privilege against self-incrimination and the assurance that any statement of an accused which is to be used in evidence against him was voluntary and therefore trustworthy. Once the proposition that one should not be required to testify against himself in a criminal proceeding has been established, it follows that any statement or other evidence of testimonial nature emanating from the individual may not be used in evidence unless the privilege of exclusion of such evidence has somehow been waived.

The question of waiver of the Fifth Amendment privilege has been dealt with by the Supreme Court within the context of the voluntary nature of the statement sought to be used against the accused, and the rule has long been established that unless the statement of the accused is voluntary it cannot be assumed that the privilege against its use has been waived. The import of the decision in Miranda was that unless an accused is fully apprised of his rights with respect to counsel, silence, and the possible consequences of speaking, it could not be demonstrated that any statement elicited from him was voluntary in nature and therefore (a) trustworthy, and (b) constituted a waiver of the privilege.

The particular evil to which the court addressed itself in Miranda was the interrogation process and the possibilities for infringement upon constitutional guarantees inherent therein. After reviewing techniques of interrogation spelled out in what the court termed police manuals and affirming the proposition that the Fifth Amendment privilege is applicable during a period of custodial interrogation, the court stated at page 461:

“We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of a police station may well be greater than in the courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.”

The factual situation in Miranda was that the police emerged with a written confession after two hours of incommunicado interrogation. In California v. Stewart, considered and decided with Miranda, the police held four persons who were at defendant’s house at the time of his arrest for five days, until defendant confessed. These factual situations are vastly different from the present case.

The statement with which we are concerned was not the product of a long and incommunicado interrogation. It was not the product of any interrogation, as that term is commonly understood. The utterance was a direct response to a single question asked by a police officer, concurrently with and pursuant to a frisk, the validity of which has not been questioned. The particular question asked by the officer amounted to no more than a verbalization of the lawful act in which he was engaged, the seeking out of an expected weapon.

That defendant’s response was voluntarily made can hardly be open to question. The character of the answer, is on its face, indicative of a lack of intimidation or coercion, the point of concern in Miranda at page 476:

“. . . the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so.”

Here the response was immediate. It was a purposeful evasion of the question, not characteristic of the utterance of one who has been coerced or intimidated into speech.

Finally, the present case differs from Miranda in that this response to a single question was admitted into evidence only on rebuttal after defendant had, on direct examination, placed his version of the response into evidence. In Miranda the evidence was introduced by the prosecution in its case in chief. By placing his version into evidence the defendant here also placed the truthfulness thereof into controversy and thus the State was entitled to offer its version in rebuttal. The situation here being significantly different from that presented in Miranda, the holding in that case is not controlling here. Thus, there was no error in admitting the testimony of the police officer.

Assuming, arguendo, that this was a situation in which the fourfold warning of Miranda, as urged by defendant, was required in order that the State be allowed to introduce evidence of defendant’s response, it does not necessarily follow that such evidence was also inadmissible for impeachment purposes.

As pointed out above, in Miranda the exclusionary rule was applied to evidence of statements made by the accused which was introduced during the prosecution’s case in chief, not in rebuttal, as is the situation here. There is authority, well established, for the proposition that an exception to the exclusionary rule is applicable where the evidence secured by unlawful means is used for purposes of impeachment only, Walder v. United States, 847 US 62, 86 S Ct 1602 (1954), and Tate v. United States, 283 F2d 377 (1960). These cases, however, do not deal with application of the exclusionary rule or its exception to evidence secured in violation of Miranda as both were decided prior to that case.

While the question has not been presented directly to the Supreme Court, some Federal Circuit Courts of Appeals have decided on the basis of dicta in Miranda that the Walder-Tate exception to the exclusionary rule should not be applied where a Miranda violation is involved. Thus, the Circuit Court of Appeals for the Second Circuit in United States v. Fox, 403 F2d 97 (1968), and the Circuit Court of Appeals for the Ninth Circuit in Groshart v. United States, 392 F2d 172 (1968), have held that evidence obtained in violation of Miranda is not properly admissible even for purposes of impeachment. However, both of these courts recognized that a different situation is involved when it is the defendant who first introduces the evidence not admissible for the prosecution, citing United States v. Armetta, 378 F2d 658 (1967) in which it was stated at page 662:

“While Miranda may enable the defendant to testify generally as to his innocence free from the impeaching effect of a statement taken from him without the required warnings and waiver, this need not go so far as to include testimony concerning the statement itself any more than the type of embroidery at issue in Walder, a decision with which Miranda did not purport to deal.”

Finally, in the case of United States v. Vanterpool, 394 F2d 697 (1967), the majority upheld a narcotics conviction on the basis that there was no error in using defendant’s in-custody statement for impeachment, the majority finding that an adequate warning had been given. The majority pointed out that they did not reach the question of whether the statement would have been admissible had the warning given not been adequate, but stated at page 699: “However, we do not disagree with Judge Waterman’s analysis of that point.”

Judge Waterman did not find the warning given to be adequate under Miranda, but concurred in the result on the basis that the defendant had opened the door to use of the statement by the prosecution for purposes of impeachment where defendant had himself, on direct examination, testified as to the substance of the statement. Such is the case here. In United States v. Vanterpool, 894 F2d 697, at page 701, the court stated:

“. . . it would not be inconsistent with the great purposes behind the Fifth Amendment privilege . . . for a court to hold that the privilege is waived where a person who is represented by trial counsel initially injects into his trial in open court by his testimony under oath the substance of a conversation he had with the government agents when he, likewise, was in custody and was without counsel. . . . The defendant by his own testimony voluntarily and intentionally relinquished his right to have what he said at that interrogation remain hidden from the jury and the trial judge.”

Thus even if the conversation between LaBatt and the arresting officer had been such as to fall within the strictures of the Miranda decision, defendant’s testimony on direct examination, which injected for the first time into the trial the substance of that conversation, “opened the door” to use by the prosecution of its own version thereof for the purposes of impeachment.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.

On Rehearing

On petition for reconsideration of a petition for rehearing, which had been denied on March 5, 1969, we have restudied the petition for rehearing, the petitions for reconsideration and suggestions therewith, the answer to the petition for rehearing and having reconsidered the briefs, arguments, abstracts and record herein, we have decided to adhere to our opinion.


author: JUSTICE MORAN.

text:
    City of Belleville, Plaintiff-Appellee, v. Frank Leonard, Defendant-Appellant.
    Gen. No. 67-132M. (Abstract of Decision.)
    Fifth District.
    February 28, 1969.
    Sam S. Pessin, of Belleville, for appellant; Kenneth J. Juen, of Belleville, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full..


author: EBERSPACHER, J.

text:
    Ludwig Music House, Inc., a Corporation, and Dolors Thompson, Plaintiffs-Appellees, v. State Farm Mutual Automobile Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 68-60.
    Fifth District.
    March 5, 1969.
    Rehearing denied April 7, 1969.
    Brady, Donovan. & Hatch, of Belleville, for appellant.
    McGlynn & McGlynn, of East St. Louis (Charles M. Whealon, of counsel), for appellees.
   EBERSPACHER, J.

This is an appeal from a judgment entered on March 8, 1968, by the Circuit Court of St. Clair County, Illinois, wherein the plaintiff, Ludwig Music House, Inc., and its employee, Dolors Thompson, brought suit against the State Farm Mutual Automobile Insurance Co., hereinafter referred to as State Farm Mutual, wherein the plaintiffs claimed to be entitled to the benefits under an automobile insurance policy issued by State Farm to Dolors Thompson.

There is no disputed fact question and the facts necessary for the disposition of this case are as follows:

In 1958 Dolors Thompson was employed by Ludwig Music House and in this capacity went to the home of Edna Wood to finalize the sale of an organ. In the process she picked up another organ owned by Mrs. Wood which was a trade-in in the sale. Apparently, Mrs. Wood assisted Dolors Thompson in placing the organ in Mrs. Thompson’s private automobile for its transportation to Ludwig Music House.

In the summer months of 1960 Mrs. Wood brought suit against Ludwig and Mrs. Thompson wherein she alleged that she had sustained certain back injuries while assisting Mrs. Thompson in loading the trade-in organ into Mrs. Thompson’s car. In May of 1960 summons was served upon Ludwig but service was refused by Mrs. Thompson because the summons designated that defendant as Loretta Thompson, not Dolors. It was then she learned that Mrs. Wood was making a claim and she told the Ludwig people about it. It was not until July 17, 1961, that Mrs. Thompson was served with a summons with her proper name. She took the papers to her employer, Ludwig Music House, Inc., and was advised that “employees were insured, I didn’t have anything to worry about. Actually the person was suing Ludwig Music House. I didn’t hear a thing for a long time.”

Six months later on January 19, 1962, Mrs. Thompson was questioned by an adjuster from the American Insurance Group which was the insurer for Ludwig Music House. He asked questions concerning her car, so she notified her insurance agent. On either this or a later occasion the adjuster told Mrs. Thompson to contact her automobile insurer, State Farm Mutual. On January 30, 1962, counsel employed by American wrote State Farm Mutual sending them a copy of Mrs. Wood’s complaint, advised of the dates of service on both Ludwig and Mrs. Thompson, that he had filed an answer for Ludwig, tendered the defense of Ludwig and requested that State Farm Mutual have their attorney enter his appearance of record as attorney for Ludwig upon which counsel would withdraw as attorney for Ludwig. In February 1962, American’s counsel advised State Farm’s counsel that Mrs. Thompson’s deposition was being taken on February 24 by Mrs. Wood’s attorney, requesting State Farm’s counsel’s presence, and also requesting State Farm’s counsel to be present at American’s counsel’s office earlier on the 24th at which time he planned to discuss the matter with Mrs. Thompson “prior to presenting her for said deposition,” and requesting the presence of State Farm’s counsel at that time “in order to give the said Dolors Thompson whatever legal services you deem advisable in defending this claim.”

On April 4,1962, State Farm Mutual advised the American Insurance Group, through its attorneys, that it disclaimed all liability, defense or protection to both Ludwig and Mrs. Thompson under Mrs. Thompson’s automobile insurance policy. Thereafter the American Insurance Group compromised and settled Mrs. Wood’s claim for the sum of $8,500, without any consultation of Mrs. Thompson and without her knowledge.

The present suit was initially instituted in the form of a suit for declaratory judgment. After its dismissal upon motion of the defendant, the plaintiffs were permitted to file an amended complaint for money damages. Subsequent pleadings included a motion to dismiss and answer with affirmative defenses by the defendant.

The cause was tried before the Court sitting without a jury. The only oral testimony presented was that of Mrs. Thompson, as defendant’s witness, the rest of the evidence being stipulated by the parties. Mrs. Thompson testified that she had no knowledge of this suit until the Friday before trial. At the conclusion of the case the Court entered judgment for the plaintiffs in the sum of $9,272.50.

This sum is the total of the sum of $8,500 paid to Mrs. Wood in settlement of her claim and $1,072.50 for attorney’s fees and costs involved in the defense of Mrs. Wood’s suit against the plaintiffs. It was stipulated that this total sum was paid by the American Insurance Group.

The defendant in its effort to reverse the judgment argues here, as in the Court below, that the suit has not been brought by the real party in interest, that an employer does not become an additional insured under the “omnibus clause” of an automobile insurance policy, that Mrs. Thompson failed to comply with the policy condition of notice to her insurer “as soon as practicable” after the accident, that under the terms of State Farm’s policy no action lies against the insurer when settlement is made by an insured without consent of the insurer and lastly that if State Farm’s policy is applicable, Ludwig is bound by the “other insurance” clause. The gist of the defendant’s argument is that if the action is brought by the plaintiffs for the benefit of a subrogee, they have failed to allege it, and if brought in their own right, they have failed to allege or prove any damage.

The plaintiffs in their brief quite candidly admit that “the present action is not a subrogation action.” The brief continues: “There has been no showing of any subrogation alleged or complained as to either the plaintiffs, particularly Dolors Thompson. The release in the original law suit released the appellees herein and they, particularly Dolors Thompson, have an interest in enforcing her insurance agreement with the State Farm Mutual.”

The plaintiffs admit that the present action is not a subrogation action but insist that the action is brought upon the contract between Dolors Thompson and the State Farm. However, neither of the plaintiffs have suffered a loss nor proved any damages and as a result we need not determine whether Ludwig was an insured under Mrs. Thompson’s State Farm policy. The settlement made with Mrs. Wood was made and paid for by Ludwig’s insurer, American Insurance Group, without the knowledge of Mrs. Thompson. We further note that paragraph 16 of the plaintiff’s amended complaint states:

“The defendant herein, by and through its insurance policy as is stated aforesaid, is indebted to the plaintiff herein for the amount of the aforesaid settlement paid to Edna Wood, and the attorney’s fees paid by them in the defense of the aforesaid claim, and the monies expended by them in preparation of the defense of the aforesaid claim.”

This allegation was not sustained by the evidence inasmuch as it was stipulated that the plaintiffs did not pay for the settlement or the attorney fees. We also note from the evidence that Mrs. Thompson did not authorize the present suit and in fact had no knowledge of its existence until she was subpoenaed to testify by the defendant. We find this fact to be inconsistent with the plaintiffs’ assertion that the suit is based on the contract and was brought in an effort of enforcing the plaintiffs’ insurance agreement with State Farm.

We have been cited chapter 110, section 22, subsection (3), Ill Rev Stats 1965 and have considered the Historical and Practice Notes, applicable thereto, Osgood v. Chicago & N. W. Ry. Co., 253 Ill App 465, and Brosam v. Employer’s Mut. Cas. Co., 61 Ill App2d 183, 209 NE2d 350; in the latter plaintiff was a judgment debtor of the insured and brought suit for the amount of that judgment which is clearly distinguishable from the present case. Since plaintiff does not rely on subrogation those cited authorities are of no consequence here. The decisive factor here is the necessary element of damages to the plaintiffs; it is wholly missing here. See Childress v. State Farm Mut. Automobile Ins. Co., 97 Ill App2d 112, 289 NE2d 492 at 497.

We find no evidence in the record of any damage incurred by the plaintiffs, nominal or otherwise, and that accordingly, the judgment of the Circuit Court of St. Clair County must be reversed.

Judgment reversed.

GOLDENHERSH and MORAN, JJ., concur.

       “Any action hereafter brought by virtue of the subrogation provision of any contract or by virtue of subrogation by operation of law shall be brought either in the name or for the use of the subrogee; provided, the subrogee shall in his pleading on oath, or by his affidavit if pleading is not required, allege that he is the actual bona fide subrogee and set forth how and when he became subrogee.”


text:
    Mardella Klebba, Plaintiff-Appellant, v. B. A. Klebba, Defendant-Appellee.
    Gen. No. 68-13.
    Fifth District.
    March 11, 1969.

      Dowell & Dowell, of Mt. Vernon, for appellant.
    John E. Jacobsen, Craig & Craig, of Mt. Vernon, for appellee.
   MORAN, J.

Plaintiff appeals from a decree of the Circuit Court of Jefferson County, Illinois, in her favor in a divorce case, claiming that the alimony and support awarded her was unreasonably low and that the trial court erred in depriving her of all interest in her husband’s real property.

Plaintiff, Mardella Klebba, brought an action for separate maintenance against her husband, B. A. Klebba, on February 5, 1962. He filed an answer and counterclaimed for divorce. While this suit was pending, the parties agreed to attempt a reconciliation and thereupon filed a written stipulation under section 21.2 of chapter 40 of Ill Rev Stats 1961, which provides:

"During the pendency of any suit for divorce, the Court shall, upon the written stipulation of both the husband and the wife that they desire to attempt a reconciliation, enter an order suspending any or all orders and proceedings for such time as the Court in its discretion may determine advisable under the circumstances so as to permit the parties to attempt such reconciliation without prejudice to their respective rights. During the period of such suspension the parties may resume living together as husband and wife and their acts and conduct in so doing shall not be deemed a condonation of any prior misconduct. Such suspension shall be revoked upon motion of either party, by order of the Court.”

The trial court suspended the proceedings; however, on May 17, 1967, the defendant, B. A. Klebba, filed a motion under section 21.2, supra, to revoke the suspension and for a hearing upon his counterclaim for divorce. Plaintiff filed an amended complaint for divorce on June 14, 1967, and a hearing was held on August 24, 1967. Upon the motion of defendant, the testimony presented at the 1962 hearing was allowed for consideration without objection of the plaintiff.

The parties were married on September 10, 1950, and resided on a farm from the time of the marriage until their separation in April of 1967. They had also been separated for approximately two months in 1962 when this action was originally commenced. Three children were born of the marriage, namely, Bennie Leroy Klebba, age 12, Billy Boy Klebba, age 10 and Byford Lynn Klebba, age 6. The farm home is located on a 67-acre tract of land of which five acres is taken up by the home and barnyard. The plaintiff has lived in this home since the date of marriage and all three children were raised there. During each separation, the plaintiff has continued to occupy the homestead with the children as their residence.

On September 20, 1967, the trial court entered a decree awarding plaintiff a divorce on the grounds of extreme and repeated cruelty. She was given custody of the two youngest children and support of each child at $50 per month, with $60 per month alimony awarded to the plaintiff. The decree also awarded plaintiff the defendant’s automobile, the household furnishings in the residence, and the use of the homestead until October 30, 1967. Plaintiff was denied any claim or interest against or in the separate property of defendant, including all rights of dower and homestead.

Plaintiff contends that the trial court erred in depriving her of the homestead and requiring that she vacate it not later tji&n October 30, 1967. In Bock Island Bank & Trust Co. v. Lamont, 361 Ill 432, 198 NE 430, the court said that three conditions must exist under the Homestead Exemption Act in order that a homestead estate be created: “(1) The claimant must be a householder; (2) he must have a family; and (3) the premises must be occupied as a residence.” The husband, because he is recognized as the head of the family, is normally treated as owning the homestead. Johnson v. Muntz, 364 Ill 482, 4 NE2d 826. However, where a husband deserts his wife or where she obtains a divorce and the custody of the children, she becomes the head of a family and the homestead right passes to her. Maher v. Goff, 316 Ill 605, 147 NE 427. In the present case plaintiff has been found to be the innocent spouse, she has been awarded custody of the two youngest children, and she has never ceased to occupy the farm as her residence. This set of circumstances entitles plaintiff to the homestead even though title to the property is vested in defendant. Bonnell v. Smith, 53 Ill 375.

Section 5 of the Homestead Act (Ill Rev Stats 1967, c 52, § 5) states: “In case of divorce, the court granting the divorce may dispose of the homestead estate according to the equities of the case.” Under this grant of authority, it has been held that it is within the power of the court to grant the right to occupy the homestead property to either party. Hitchcock v. Hitchcock, 373 Ill 352, 26 NE2d 108, cert den 311 US 651. Thus the court may award the right to occupy the homestead to the party into whose custody the children are given, even though the title thereto is in the name of the other party. Redfern v. Redfern, 38 Ill 509; Jolliff v. Jolliff, 32 Ill 527.

Section 5, supra, can be completely understood only when read with section 16 of chapter 68 of 111 Rev Stats 1967, which provides:

“Neither the husband nor wife can remove the other or their children from their homestead without the consent of the other, unless the owner of the property shall, in good faith, provide another homestead suitable to the condition in life of the family. . . .”

The court in Bailey v. Hamilton, 337 Ill 617, 169 NE 743, declared:

“By her marriage and residence on the premises in question here, appellant Evelyn Bailey acquired the right to occupy them as her homestead. Her husband could not deprive her of that right without her consent. He could not require her to remove from those premises without providing a homestead suitable to her station in life in its stead. The law recognizes the rights of husband and wife in this respect as co-ordinate, and has declared by statute that where a homestead exists neither can change the residence of the other from that homestead without such other’s consent or unless another suitable homestead is provided.”

The discretion authorized by section 5, supra, thus does not allow a court to arbitrarily deprive a wife of her right to the continuity of a home. The purpose of the Homestead Act is to insure to the family the possession and enjoyment of a home. If a court through the adjustment of the equities of a particular case finds it necessary to deprive a wife of homestead even though she is the innocent spouse, is the head of a family, and has always used the homestead as a residence, he must adequately compensate her for such loss so that she may find another home. The trial court in the instant case did not balance the equities involved in such a manner as to compensate plaintiff for her loss of homestead.

The trial court in its decree also denied plaintiff all rights of dower in the separate property of defendant. The party at fault in a divorce case forfeits, while the party not at fault retains the right of dower. Doyle v. Doyle, 268 Ill 96, 108 NE 796; Knapp v. Knapp, 303 Ill 535, 135 NE 732; Classen v. Heath, 389 Ill 183, 58 NE2d 889; Ill Rev Stats 1967, c 3, § 21.

Plaintiff also contends that she has proved that she is entitled to a portion of the real and personal property-acquired during the marriage because her work and effort were largely responsible for the accumulation of this wealth.

The general rule in this state is that in a divorce proceeding the court will not transfer to the wife, who has prevailed in the suit, the fee-simple title to real estate of which the husband is seized, unless the wife shows special circumstances and existing equities which justify it. Ylonen v. Ylonen, 2 Ill2d 111, 117 NE2d 98. Also, where property is held by one of the parties to a divorce proceeding which has been accumulated by the joint efforts of the two, then such property should be divided according to such equity as exists between them. Ylonen v. Ylonen, supra. In the present case, the evidence is clear that much of the real and personal property of which defendant was legally seized was obtained only after his marriage to plaintiff, and the evidence would support an award of a portion of the real estate to plaintiff. However, after a careful examination of the record we are unable to say that the trial court’s finding regarding the property, except for its findings as to dower and homestead, are against the manifest weight of the evidence.

Plaintiff also argues that the trial court erred in awarding an inadequate amount of alimony. She was awarded child support of $100 per month and alimony of $60 per month.

At the time of the marriage, defendant owned the home place of 67 acres, an 80-acre tract, and was buying a 111-acre tract. At the divorce proceedings in 1967, defendant testified that he owned 507 acres of land, the home place consisting of 67 acres and tracts of 111, 100, 80, 80, 40 and 29 acres. Defendant estimated that the home place had a value of between $25,000 and $30,000, and the value of the remaining 440 acres of real property owned by him to be worth about $53,200. He also testified in 1962 that the livestock and personal property consisting of farm machinery was valued at $21,730. In 1967 he appraised the livestock alone to be worth about $9,350. Mortgages of approximately $37,000 encumbered defendant’s land and cattle in 1967. He was also expecting a check for $8,000 from the U. S. Government as further compensation for land which had been taken from him.

The proper measure of alimony is the need of the wife and the ability of the husband to pay. Herrick v. Herrick, 319 111 146, 149 NE 820. The only evidence introduced as to plaintiff’s need was her testimony in 1962 that it would cost between $450 and $500 a month to live in a rented house equivalent to the present homestead. We fail to see how an award of $720 per year in alimony in any way reflects a correlation between plaintiff’s need and defendant’s ability to pay. Under the present factual situation we find the alimony which was awarded grossly inadequate.

Plaintiff further asserts that the trial court erred in not awarding property or money in gross in lieu of alimony. We find nothing in the record to compel us to say. that such a determination was an abuse of discretion. It would have been helpful in this case if there had been better proof of the value of the property.

The decree is affirmed in part and reversed in part and the cause is remanded to the Circuit Court of Jefferson County with directions to proceed in accordance with the views expressed in this opinion.

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

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: GOLDENHERSH, P. J.

text:
    The People of the State of Illinois, on the Relation of Wilma Highsmith, Plaintiff-Appellant, v. County of Jefferson, Leslie R. Sheldon, et al., Defendants-Appellees, and Security Bank and Trust Company of Mt. Vernon, Illinois, Garnishee Defendant-Appellee.
    Gen. No. 68-47.
    Fifth District.
    March 11, 1969.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    Frank H. Walker, State’s Attorney of Jefferson County, of Mt. Vernon (Lawrence J. Starman, Special Assistant State’s Attorney, of counsel), for appellees.
   GOLDENHERSH, P. J.

Plaintiff appeals from the judgment of the Circuit Court of Jefferson County dismissing her garnishment action directed against funds of the defendant, Jefferson County, on deposit with the Security Bank and Trust Company of Mt. Vernon, hereafter called Security.

The prior proceedings are reviewed in our opinion in People ex rel. Highsmith v. County of Jefferson, 87 Ill App2d 145, 230 NE2d 480. The Supreme Court denied leave to appeal, and upon remand the Circuit Court entered judgment ordering a writ of mandamus to issue. The pertinent part of the order reads:

“Wherefore, It Is Ordered that the defendants who are members of the County Board of Supervisors of the County of Jefferson, or their successors, and Leslie Elliott, as successor of Robert Ruddick, Treasurer of the County of Jefferson, shall comply with the Mandate of the Appellate Court and that said defendants shall order to be issued by the Treasurer of said County a draft or drafts to pay said judgment and costs, and that additional interest at 5% per annum be computed and added to such amounts as may be due until the entire amount due has been paid. Execution may issue.”

Following service of the writ of mandamus, plaintiff obtained the issuance of a garnishment summons directed to Security, as garnishee. Security answered that it had in its possession funds in an amount in excess of plaintiff’s demand, on deposit in a checking account in the name of Leslie C. Elliott, County Treasurer, “General Fund.” Plaintiff thereupon moved for the entry of judgment against Security. The Circuit Court denied the motion on the ground “that the County is immune from having a judgment against it collected through garnishment procedure.” Judgment was entered dismissing Security as garnishee and this appeal followed.

Security has made no appearance here, and in oral argument counsel for plaintiff stated, without contradiction, that it is holding funds sufficient to satisfy the judgment pending the decision of this appeal.

Plaintiff contends that insofar as chapter 34, section 604, Ill Rev Stats prohibits a levy on county funds, it is unconstitutional. The defendants argue that county funds are not subject to garnishment.

Section 604 of chapter 34 provides:

“Execution shall not, in any case, issue against the lands or other property of a county; but when judgment is rendered against a county, the county board shall direct an order to be drawn on the county treasurer for the amount of the judgment and costs, which orders shall be paid as other county debts.”

Section 604A provides for the appropriation of funds to pay judgments, and section 604B authorizes the County board to provide for the payment of judgments in equal annual installments, not exceeding ten.

No appeal was taken from the judgment ordering the writ of mandamus to issue, and it cannot be ascertained from the record whether the defendants intended to comply with the writ, or if so, in what manner. On oral argument, counsel stated that it was the defendants’ intent to pay the judgment in 10 annual installments, but upon inquiry by the court stated further that no provision was made therefor in the appropriation and levy adopted subsequent to the issuance of the writ.

The Supreme Court has construed the word “shall” when used in a statute as meaning both “must” and “may” depending upon the legislative intent. Cooper v. Hinrichs, 10 Ill2d 269, 140 NE2d 293.

The Supreme Court has stated the rules of statutory construction as follows:

“The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature in enacting the law.” Electrical Contractors Association of City of Chicago, Inc. v. Illinois Building Authority, 33 Ill 2d 587, 591.
“In determining the intent of the legislature consideration must be given to the entire statute, its nature, objects and the consequences which would result from construing it one way or another.” Carrigan v. Illinois Liquor Control Commission, 19 Ill 2d 230, 233.

Applying these rules we construe section 604 to mean that the county board shall comply with the paragraph above quoted, unless for lack of funds it becomes necessary to invoke the provisions of 604A and 604B.

The judgment ordering the writ of mandamus to issue directs compliance in accordance with section 604. “The only proper return to a peremptory writ of mandamus is a certificate of compliance with its requisitions without further excuse or delay,” People ex rel. Illinois Midland Ry. Co. v. Barnett Supervisor and Town Clerk, 91 Ill 422, 434. The judgment was not appealed from, is final, and no reason for noncompliance is shown.

The record shows that there is sufficient money in the “General Fund” to satisfy the judgment, and there is no evidence of inability to comply with the writ of mandamus.

Disobedience of the mandate of a writ will subject the defendant to punishment for contempt, People ex rel. Bristol v. Pearson, 3 Scam 270 (4 Ill); People ex rel. Euziere v. Rice, 290 Ill App 514, 8 NE2d 683; and this record reflects no excuse for defendants’ disobedience. The availability of this remedy, however, does not preclude use of a simpler and more effective means of enforcing the writ, and we fail to perceive in what manner defendant is prejudiced because plaintiff proceeded in garnishment, rather than a contempt proceeding. Under the circumstances shown the garnishment will lie, and the judgment must be reversed.

Having decided the issue on other grounds, we do not reach the question of the constitutionality of section 604.

For the reasons set forth the judgment is reversed, and the cause remanded, with directions to vacate the order dismissing the garnishee defendant, enter judgment in favor of plaintiff and against the garnishee, and for such further necessary proceedings as are consistent with this opinion.

Judgment reversed and cause remanded with directions.

MORAN and EBERSPACHER, JJ., concur.


text:
    Bluford W. Logsdon, Plaintiff-Appellee, v. Robert S. Nolen, Successor Trustee to Frederick W. Logsdon, Deceased, Defendant-Appellant.
    Gen. No. 68-80.
    Fifth District.
    March 11, 1969.
    Kern and Pearce, of Carmi, for appellant.
    James W. Sanders, of Marion, for appellee.
   GOLDENHERSH, P. J.

Defendant, Robert S. Nolen, Successor Trustee, appeals from the decree of the Circuit Court of Gallatin County ordering termination of a trust, a final accounting, and the conveyance to Bluford W. Logsdon, hereafter called plaintiff, of the corpus of the trust estate.

The record shows that in 1961, plaintiff, and Isabelle Logsdon, conservator of his person, filed an action against Eugene W. Logsdon, conservator of plaintiff’s estate, and Frederick L. Logsdon. In Count I of their complaint the plaintiffs alleged that plaintiff, Bluford W. Logsdon is the owner of real estate, money, and “investments,” which were in the possession and control of defendant, Eugene W. Logsdon, as conservator of his estate, or Isabelle Logsdon as conservator of his person; in order to provide more economical management of his property, plaintiff had executed a conveyance in trust of all his property; because plaintiff was under conservatorship the conveyance was subject to attack until it was established by proper decree that it was valid and effective; although plaintiff had been under conservator-ship, he was competent to make a valid and effective conveyance in trust.

In Count II it was alleged that Eugene W. Logsdon, as conservator of plaintiff’s estate, should be protected by a court order directing him to make a final accounting and deliver the assets to the trustee.

In Count III it was alleged that plaintiff has reached a point of understanding so that he no longer needs a conservator of the person.

The trust deed conveys to Fred L. Logsdon all of plaintiff’s real estate and “All money, Bonds, Savings Accounts, and other investments standing in my name, or in the name of any Conservator for either my estate or person, or in the name of any other person, firm or corporation, on my behalf.” It provides further that it is irrevocable for the life of plaintiff, terminates on his death, designates Frederick L. Logsdon as initial trustee, and makes provision for a successor trustee if required. It provides that the trustee shall manage plaintiff’s property for plaintiff’s benefit, and authorizes the trustee to create and terminate tenancies, execute mineral leases and sell mineral rights. The trustee is also authorized to sell or mortgage real estate, subject to approval of the Circuit Court of Gallatin County.

On July 24, 1962, a decree was entered finding that plaintiff was adjudged an incompetent person in the County Court of Gallatin County in 1925; at the time of the execution of the Trust Conveyance plaintiff “was of sufficient mental ability and capacity to come within the meaning of the phrase ‘lucid moments,’ ” and now has sufficient mental ability and capacity to understand the nature and consequences of the Trust Conveyance.

The decree provides:

“IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED:
“That the Trust Conveyance dated March 7, 1961, and recorded in Gallatin County, Illinois, in Deed Record 136, at page 474, is a good, sufficient and valid conveyance of all of the property therein described, and that BLUFORD W. LOGSDON was com-, petent to execute and deliver the Trust conveyance, and that the same is declared to be in full force and effect.”

The court held in abeyance any ruling on Counts II and III, and on November 3, 1962, entered a supplemental decree ordering the conservators of plaintiff’s estate and person to make final accountings, and upon approval of the accounts by the County Court, to pay over to Frederick L. Logsdon, Trustee, all of the assets of the respective conservatorships, accept the receipt of the trustee therefor, and upon exhibiting the final receipts to the County Court the conservatorships “shall be terminated and ended.” The paragraph ordering termination of the conservatorship of the person concludes: “the said Bluford W. Logsdon having reached a state of understanding so that a Conservator of his Person is no longer required.”

In October 1967, plaintiff represented by other counsel, filed a second amended complaint in which he refers to the decree of November 3,1962, and states:

“That the plaintiff is not under any disability or incapacity and is well able to care for his personal, as well as, real, estate, and since the plaintiff is the sole beneficiary of the Trust, no purpose is to be accomplished by the continuation of said Trust.”

and prays the trust be terminated and the assets turned over to him.

The trustee answered, setting up the decrees of July and November 1962, and stating:

“That Bluford W. Logsdon has been adjudicated an incompetent in the County Court of Gallatin County, Illinois, about the year 1925, and that such adjudication remains in force and effect, and has not been vacated or set aside, and that no proceeding has been brought for his restoration.”

The court heard testimony, and thereupon entered an order finding plaintiff, as settlor and sole beneficiary of the trust, is entitled to terminate it; plaintiff is not under any incapacity, has been fully restored to his civil rights, and has the present ability to manage and care for his own person, property and affairs. The defendant trustee was ordered to convey the real estate, deliver the personal property, and make a final accounting.

As grounds for reversal, defendant contends that plaintiff, having been adjudged incompetent and incapable of managing his property, cannot compel the restoration of his property to himself until he is adjudged competent in a proceeding instituted for that purpose in the court in which he was adjudicated to be incompetent. Defendant also argues the evidence shows plaintiff does not have sufficient mental capacity to transact ordinary business and manage his own property.

Plaintiff argues that under the provisions of chapter 3, §§ 127 and 128, Ill Rev Stats, then in force, but since repealed, the findings and order contained in the decree of November 3, 1962, terminating the conservatorships, served to restore plaintiff to his civil rights and no further proceeding seeking restoration is necessary. He contends further that as settlor and sole beneficiary, he can revoke the trust without the consent of the trustee, and the circuit court correctly ordered its termination.

The jurisdiction of the courts of Illinois over the persons and estates of incompetents is the creature of legislative enactment. In Cowdery v. Northern Trust Co., 321 Ill App 243, 53 NE2d 43, the court, at page 256, said: “By the common law the power of control over the persons and property of lunatics and idiots belonged to the king as parens patriae and was exercised by him through the lord chancellor, not in his character of chancellor or by virtue of the general powers of the chancery court, but under a separate and distinct commission under the sign manual from the crown. The chancellor, upon petition or information, granted a writ to inquire into the party’s mind and, if found non compos, generally committed the care of his person to some friend, called the committee, and the management of his estate to an heir, designated as committee of his estate. Errors in these proceedings were redressed by writ of error in the regular courts of law and not in the House of Lords as on appeal from a court of equity. After adjudication the chancellor acted in the superintendence of the lunatic’s custodians or committee by virtue of his general equity powers. In this country the State succeeded to the power of the king as parens patriae, and under our form of government the power is exercised by the courts only through legislative enactment. (Citing cases.) ” At page 257, the Court continued, “In Illinois the constitution (art 6, § 12) gives the circuit court ‘original jurisdiction of all causes in law and equity. . . .’ . . . This jurisdiction is the jurisdiction ‘held and exercised by the English court of chancery by virtue of its general powers as a court of justice, and it does not include that special authority or jurisdiction delegated to the chancellor, individually, as a representative of the crown in its capacity as parens patriae. This latter authority, so far as it exists at all, is possessed only by the state legislatures.’ ”

In People ex rel. Pauling v. Misevic, 32 Ill2d 11, at page 14, 203 NE2d 393, the Supreme Court said, “The State, as parens patriae, exercises the same control over insane persons as was formerly exercised in England by its king, and under our form of government the power is exercised by the courts only through legislative enactments. (Citing cases.) Stated differently, it is the function of the legislature to pass laws for regulation of the property and person of those who are insane, and the judicial power may be exercised only in conformity with such laws.”

In 1925, when plaintiff was adjudged incompetent, the applicable statutory provisions were found in chapters 85 and 86 of the 111 Rev Stats. Those statutes were repealed, similar legislation became a part of the Probate Act, and in 1962, the pertinent sections were sections 112 through 130 of chapter 3.

As a court of general jurisdiction the Circuit Court of Gallatin County is presumed to have jurisdiction to render any judgment or decree entered by it. Bartunek v. Lastovken, 350 Ill 380, 183 NE 333. However, no such presumption prevails in connection with special statutory jurisdiction. In such cases jurisdiction is never presumed, and whatever the jurisdiction of the court, the proceedings must be in strict conformity with the statute. Brown v. VanKeuren, 340 Ill 118, 172 NE 1.

In our opinion, the sole means of effecting the restoration of plaintiff’s rights is by proceeding in accordance with the provisions of sections 129 and 130 of the Probate Act (c 3, Ill Rev Stats). Neither the decrees of 1962, nor the decree now reviewed, served to so restore him.

Relying upon Hoff v. Meirink, 12 Ill2d 108, 145 NE 2d 58, plaintiff argues that the finding in the decree of November 1962 compels the court to revoke the letters of conservatorship. In that case the court which had adjudged Miss Meirink to be mentally ill had entered an order finding her to be recovered from her mental illness, and she then proceeded under section 128 of the Probate Act, for revocation of letters of conservatorship issued by the County Court of Macoupin County. The opinion does not support plaintiff’s contention.

In the action instituted in 1961, the conservator of plaintiff’s person was a party plaintiff. In the proceedings now reviewed, plaintiff appears as the sole plaintiff, without a conservator, guardian, or guardian ad litem. Having been adjudged incompetent, and in the absence of an adjudication of restoration in accordance with section 129 of the Probate Act, plaintiff was without legal capacity to sue, Pyott v. Pyott, 191 Ill 280, 289, 61 NE 88; Isle v. Cranby, 199 Ill 39, 43, 64 NE 1065; In re Estate of Rankin, 322 Ill App 64, 66, 53 NE2d 747; Kirkland v. Kirkland, 38 Ill App2d 280, 186 NE 2d 794, and the decree, therefore must be reversed. Because of the conclusion reached, we do not consider the remaining contentions of the parties.

Decree reversed.

MORAN and EBERSPACHER, JJ., concur.


author: PER CURIAM:

text:
    People of the State of Illinois, ex rel. Glen E. Totten, Plaintiff-Appellant, v. Honorable Paul Powell, Secretary of State of Illinois, Defendant-Appellee.
    Gen. No. 69-27.
    Fifth District.
    March 14, 1969.
    Glen E. Totten, pro se, of Pontiac, appellant.
    No brief for appellee.
   PER CURIAM:

Petitioner, Glen E. Totten, an inmate of the Illinois State Reformatory at Pontiac, filed, pro se, a petition for writ of mandamus directing Honorable Paul Powell, Secretary of State, to furnish him with certain documents allegedly on file in his office. Upon motion of the State’s Attorney of Wayne County, the circuit court dismissed the petition on the ground that it was without jurisdiction to adjudicate the matter.

Petitioner appealed to the Supreme Court and filed a brief, pro se, arguing a number of constitutional issues. The Supreme Court, on its own motion, on the ground that the circuit court had not ruled on any constitutional question, transferred the cause to this court.

Upon examination of the record this court holds that petitioner is a “poor person” within the contemplation of chapter 33, section 5, Ill Rev Stats 1967, and may proceed without payment of costs. Petitioner has not requested assignment of counsel, and at this stage of the proceedings, assignment of counsel does not appear to be necessary.

The record does not reflect that summons was requested or issued, nor that service was had upon the defendant, Secretary of State, and it cannot be ascertained whether the State’s Attorney appeared solely in that capacity, or as counsel designated to act for the defendant.

In any event, the circuit court erred in holding that it was without jurisdiction. Under the provisions of article VI, section 9 of the Constitution of Illinois, the court has jurisdiction.

The matter of venue presents an entirely different question. The Civil Practice Act (c 110, Ill Rev Stats) applies to actions in mandamus. C 87, § 11, Ill Rev Stats 1967. Venue lies in the county of which the defendant is a resident (c 110, § 5, Ill Rev Stats) and article V, section 1 of the Constitution provides that the Secretary of State shall reside “at the seat of government” which is in Springfield, in Sangamon County. C 123, § 1, Ill Rev Stats 1967.

As to whether the defendant, after proper service of summons, will elect to effect a change of venue under the provisions of section 8 of the Civil Practice Act does not concern us at this time, nor need we speculate as to the merits of petitioner’s action. The sole question before us now, is whether the circuit court was without jurisdiction to hear the case.

For the reasons set forth, the judgment of dismissal is reversed and the cause remanded to the Circuit Court of Wayne County with directions to vacate the order of dismissal, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.