author: PRESIDING JUSTICE MORAN

text:
    Continental Casualty Company, a Corporation, Subrogee of the Wallfill Company, a Corporation, Intervening Petitioner, Plaintiff-Appellant, v. Sophia Sweda, Conservator of the Estate of Bruno Sweda, Incompetent, and Sophia Sweda, Individually, Defendants-Appellees.
    Gen. No. 68-183.
    Second District.
    September 16, 1969.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellant.
    Michael Alan Nemeroff, of Chicago, and Lidschin and Pucin, of Waukegan, for appellees.
   PRESIDING JUSTICE MORAN

delivéred the opinion of the court.

This case involves an interpretation of section 5 (b) of the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, § 138.5 (b)) and appears to be of first impression in our State.

On November 23, 1965, Bruno Sweda suffered a severe head injury during the course of his employment. The injury was caused, not by his employer but, by a third party. His wife was subsequently appointed Conservator of his estate and brought an action against the third party to recover for her husband’s injuries and for her loss of consortium. The plaintiff, who was the workmen’s compensation carrier covering Sweda’s employer, paid out the sum of $35,429.28 for disability and medical payments from the date of the injury to the beginning of this litigation. The plaintiff continues to pay medical expenses and, based upon standard mortality tables, expects to pay an additional sum on account of the injury. It may be further obligated to pay death and pension benefits.

By October, 1967, the conservator determined that the third party had insurance in the amount of $50,000 and settled her cause of action for $48,000. Originally, the conservator petitioned the Probate Division for leave to compromise and settle the ward’s claim for $28,000 having taken the balance of $25,000 on account of her loss of consortium. The plaintiff objected to this division of the money and, finally, the trial court distributed $18,000 on account of the loss of consortium, $15,000 to the conservator on account of the estate, $11,070.45 to the plaintiff in full payment of its subrogation claim, $3,750 to the conservator’s attorneys and $179.55 to reimburse costs.

Plaintiff contends that the entire sum of $30,000, less only statutory fees and costs, should be paid to it as reimbursement since its expenditures to date exceed that amount. The conservator, on the other hand, argues that the trial court had jurisdiction to make an equitable distribution of the settlement proceeds since the compromise was less than full compensation for the actual injury, including pain and suffering of the ward.

There is no conflict in the facts. The ward suffered substantial permanent injuries. It was stipulated by counsel for the plaintiff that in his opinion the value of the ward’s claim was between $175,000 and $250,000, based upon the element of damages. It was further stipulated that the plaintiff, as of April 1, 1968, had paid $27,621.28 toward medical bills along with $7,808 in disability payments, for a total of $35,429.28. It seems to be agreed that the $48,000 received in the compromise settlement was not full compensation for the ward’s injuries. Similarly, there is no doubt that the plaintiff has already paid more than the amount allocated to the estate by the settlement and it will pay, as a probability according to the stipulation of the parties, an additional sum of $110,192 in the future.

Our decision necessarily depends upon the interpretation of section 5(b) of the Workmen’s Compensation Act, supra.

In construing any statute it is proper and, indeed, most helpful to consider the problem intended to be solved. Before the workmen’s compensation laws were enacted in this country, many workmen were injured at their task and left to suffer for the balance of their lives because the injury had been caused, at least in part, by their own act. The purpose of the Workmen’s Compensation Act was to substitute a statutory cause of action in place of the common-law remedy of trespass on the case, negligence, and provide compensation to an injured employee regardless of any contributory negligence. This increased the employer’s cost of doing business but was a small price to pay for the benefits and protections established by the statute. However, in those cases where an injury had been caused by a third party and where recovery could be had from that third party, it is clear that the law contemplated that the employer should be reimbursed out of this recovery, since the employer had not caused the injury. To hold otherwise would be to permit the employee to receive a double recovery, one from the third party and a second from his own employer, Reno v. Maryland Cas. Co., 27 Ill2d 245, 248, 188 NE2d 657 (1962).

No problem is created when the recovery in the third-party suit exceeds the compensation. The problem arises when the recovery is less than the compensation paid and, as in this case, when the recovery is less than full payment for the injury.

An examination of section 5 (b) indicates to us that the plaintiff is entitled to the amount he seeks in this appeal. The section says, among other things, “. . . from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative . . .” and . . the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party . . .” and “No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent shall not be required where said employer has been fully indemnified or protected by Court order.” The statute does not speak of anything less than full indemnification and we have not been directed to any authority granting jurisdiction to the trial court to make an equitable, or other, distribution.

In its original enactment, the section in question here was known as section 29 of the Workmen’s Compensation Act. In discussing that section, the Supreme Court, in the case of O’Brien v. Chicago City Ry. Co., 305 Ill 244, 137 NE 214 (1922) said, at pages 252-253:

“The employee being entitled, in such case, to recover the full amount of his damages from the person causing the injury by his negligence, a complete equitable adjustment of the rights of the employer and employee, as between themselves, would require that out of the amounts so received the employer, who was guiltless of any wrong, should receive indemnification for the compensation which he had advanced. The purpose of section 29 is to require this indemnification of the employer who has not been negligent, out of the recovery against the third person whose negligence caused the injury.”

In the case of Gones v. Fisher, 286 Ill 606, 612, 122 NE 95 (1919), the Supreme Court, in referring to the same section, stated:

“Said Section does not limit the damages which may be recovered in the action at law to the amount of compensation allowed to the employee, but does provide for the indemnification of the employer out of the amount recovered. After the employer is thus completely indemnified the employee is entitled to the entire balance of the judgment recovered, if there is a recovery for more than is sufficient for such indemnification.” (Emphasis added.)

The purpose of the section in question is to provide protection to the non-negligent employer since he had nothing to do with the accident, Arnold Lies Co. v. Legler, 26 Ill App2d 365, 374, 167 NE2d 813 (1960).

Therefore, we conclude that the plaintiff carrier is entitled to reimbursement so far as the fund will allow.

The conservator argues that this result would be inequitable because the ward did not receive sufficient monies out of the third-party action to pay for his injury even if he had been entitled to all of the money and that, therefore, the reimbursement should be reduced. This may well be right as a matter of equity, but we believe the statute is clear and that such argument is more properly addressed to the Legislature. It could have been argued that the compensation awarded was insufficient even though the injury was not caused by a third party, still this would be a decision for the Legislature and not the courts.

Since there appears to be no direct authority in Illinois on the question, the conservator argues that we should follow the law of California and that the law of that state would permit an equitable distribution of an award where it is less than full compensation. Obviously, we would not be bound by the law of California, even if we were to accept the conservator’s interpretation; however, our reading of the California authorities does not lead us to a like conclusion. The Supreme Court of California did, indeed, hold in the case of Jacobsen v. State Industrial Acc. Commission, 212 Cal 440, 299 P 66, 68-69 (1931), that the subrogation rights of an employer did not extend to damages recovered by an employee for pain and suffering. However, the very next year the California Legislature amended their Workmen’s Compensation Act to allow an employer “a first lien against the entire amount of any judgment for any damages recovered by the employee.” (Labor Code, § 3856.) The present state of the California law is set forth in Heaton v. Kerlan, 166 P2d 857, 861 (1946), wherein the Supreme Court said:

“The employer’s lien attaches to the ‘entire amount’ of a judgment ‘for any damages’ . . . after this court held that the lien of the employer under the former statute did not attach to that part of a judgment representing damages for the employee’s pain and suffering, and suggested that the difficulties of segregating the elements of the employee’s recovery ‘might well call for further legislative action on the subject,’ Jacobsen v. Industrial Acc. Comm., supra, 212 Cal 440, 449; 299 P 66, 69. Under the statute as amended, it is clear that the employer’s lien attaches to the entire judgment and that it is no longer necessary to segregate the part thereof that represents damages for pain and suffering.”

So it appears that even under the law of California the compensation carrier is entitled to full reimbursement and that any earlier California cases have either been changed by legislative amendment or considered dicta and overruled by the Supreme Court of that state.

We have been favored by excellent briefs and argument from both sides in this case. The conservator presents a cause containing considerable equity. On the other hand the Legislature is ultimately the one who must determine the law in this field and they have clearly done so.

The case is, therefore, reversed and remanded to the trial court with instructions to distribute the $30,000, after first deducting the statutory attorney fees and costs, to the plaintiff herein.

Reversed and remanded with instructions.

ABRAHAMSON and SEIDENFELD, JJ., concur.

       Ill Rev Stats 1965, c 48, § 138.5(b).
      “(b) Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act.
      “Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.
      “If the injured employee or his personal representative shall agree to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
      “In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action. The employer may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent shall not be required where said employer has been fully indemnified or protected by Court order.
      “In the event the said employee or his personal representative shall fail to institute a proceeding against such third person at any time prior to 3 months before said action would be barred at law said employer may in his own name, or in the name of the employee, or his personal representative, commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee or his personal representatives all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, including amounts paid or to be paid pursuant to the provisions of paragraph (a) of Section 8 of this Act, and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.”


source: Caselaw Access Project

author: RYAN, J.

license: Public Domain

text:
    John E. Hancock, Individually and as Administrator of the Estate of Margaret Sue Hancock, Deceased, Plaintiff-Appellant, v. Michael Pluth and James Miller, Defendants-Appellees.
    Gen. No. 68-73.
    Third District.
    September 17, 1969.
    Kroesch and Davis and L. Park Davis, of Joliet, and Robert G. Johnston, of Chicago, for appellant.
    Robson, Masters, Ryan, Brumund & Belom, and John J. McGarry, of Joliet (Sidney Z. Karasik, of Chicago, for appellees.
   RYAN, J.

This is an appeal for an order granting the defendants’ motion for summary judgment.

John E. Hancock and his wife, Margaret Sue Hancock, were riding on a hayrack pulled by a farm tractor owned by the defendant, Michael Pluth, and operated by the defendant, James Miller, on the night of September 4, 1966. The occasion was a hayride for which no payment was made. During the course of the ride the tractor pulled off the travelled portion of the road onto the shoulder. As it pulled hack onto the travelled portion of the highway the Hancocks and another couple were thrown from, or fell off the hayrack. As a result, John E. Hancock was injured and his wife, Margaret Sue Hancock, was killed. In this action, the plaintiff, John E. Hancock, individually and as Administrator of the estate of Margaret Sue Hancock, deceased, seeks to recover for the personal injuries he sustained and for the wrongful death of his wife. The counts of the Complaint under which the plaintiff seeks to recover charge the defendants with negligence. The trial court in granting the defendant’s motion for summary judgment ruled that the farm tractor pulling the hayrack was a motor vehicle within the meaning of the Illinois Guest Statute which provides:

“No person riding in or upon a motor vehicle . . . as a guest without payment . . . shall have a cause of action for damages against the driver or operator of such motor vehicle ... or its owner . . . for injury, death or loss in case of accident unless such accident shall have been caused by the willful and wanton misconduct of the driver or operator of such motor vehicle ... or its owner . . . .” Ill Rev Stats 1965, c 95½, § 9-201, 1965.

The sole question presented to this court on review is whether or not the farm tractor-hayrack unit as it was being used at the time of the accident in question constituted a “motor vehicle” within the meaning of the above-quoted provisions of the statute. We think that the unit did constitute a motor vehicle within the meaning of the statute and that the trial court properly entered an order granting the defendants’ motion for summary judgment.

The plaintiff contends that the tractor and the hayrack involved in this incident were both implements of husbandry, were not designed for the purpose of carrying passengers or freight and therefore, were not motor vehicles. We do not agree with this contention. In both the Illinois Motor Vehicle Law (Ill Rev Stats 1965, c 95½, § 1-101 et seq.) and the Uniform Act Regulating Traffic on Highways (111 Rev Stats 1965, § 99 et seq.), we find definitions of the words “vehicle, motor vehicle and farm tractor” and in section 1-124 of the Illinois Motor Vehicle Law is contained a definition of “implement of husbandry.” From an examination of these definitions we conclude that the terms “vehicle” and “motor vehicle” as used by the legislature in these acts are generic in nature. They include within their scope the specific categories of farm tractors, trailers and implements of husbandry.

A farm tractor is defined in the Uniform Act Regulating Traffic on Highways (c 95½, § 100 (b)) as “every motor vehicle designed and used primarily as a farm implement . . .” whereas in the Illinois Motor Vehicle Law (c 95%, § 1-117) a farm tractor is defined as “every implement of husbandry designed and used primarily to move and operate other implements of husbandry.” The same act at section 1-124 defines implement of husbandry as “every vehicle designed and adapted exclusively for agriculture, horticulture or livestock raising operations.” At section 1-133 of the same act, a motor vehicle is defined as “every vehicle which is propelled otherwise than by muscular power . . . .” Thus, the legislature in both the Illinois Motor Vehicle Law and in the Uniform Act Regulating Traffic on Highways has defined the term “motor vehicle” in such a manner as to include a farm tractor. As a further indication of this legislative intent the Rlinois Drivers’ License Act (Ill Rev Stats 1965, c 95½, § 6-101) provides that no person shall drive a “motor vehicle” upon a highway without a valid operator’s or chauffeur’s permit or license. Section 6-102 of the Act then specifically exempts from this requirement a person “operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farming operations.” If the legislature had not intended that the term “motor vehicle” include “farm tractor” there would have been no reason for this exception.

Similarly, Ill Rev Stats 1965, c 95½, § 3-101 et seq. specifically excepts an “implement of husbandry” from the requirement that a certificate of title must be obtained by every owner of “a vehicle.” Also section 3-402A(2) specifically excepts any implement of husbandry from the requirement that every motor vehicle, trailer, semitrailer and pull trailer driven or moved upon any highway must be registered.

The conclusion to be drawn from the statutory definitions and the examination of the other sections of the statute is that the legislature has intended that the term “motor vehicle” include within its scope farm tractors. Unless a contrary intention is indicated, we must assume that the legislature intended the term “motor vehicle” to have the same meaning in the Guest statute (§ 9-201, Illinois Motor Vehicle Law).

The Iowa Supreme Court reached a similar conclusion in Hessler v. Ford, 255 Iowa 1055, 125 NW2d 132 (1963). The plaintiff was injured while riding on a draw-bar of a farm tractor. The Iowa court held that the Iowa Guest statute barred the plaintiff from recovery for the negligent acts of the defendant. The court held that by definition “farm tractors” are motor vehicles and that the Iowa Guest statute applied.

As to the status of the hayrack upon which the plaintiff and his wife were riding, under the statutory definition above cited the same would not by itself constitute a motor vehicle. Under these definitions the hayrack would be classified as an implement of husbandry and a vehicle. However, on the evening in question this hayrack was coupled to the farm tractor for the purpose of being used as a single unit to transport people on a hayride. The two vehicles coupled together thus became “one vehicle propelled otherwise than by muscular power” and thus a “motor vehicle” within the definition contained in section 1-133 of the Illinois Motor Vehicle Act.

The fact that these two vehicles were implements of husbandry, one a motor vehicle and the other simply a vehicle, did not change the concept that by joining the two together in one unit they became a single motor vehicle. In Miller v. Berman, 55 Cal App2d 569, 131 P2d 18 (1942), there was involved a truck tractor and a semitrailer. The court held that within the meaning of the statute the truck tractor was a motor vehicle and the semitrailer was a vehicle, but when the two units were joined together for the purpose of being moved over the highway they became one motor vehicle.

In Dennler v. Dodge Transfer Corp., 201 F Supp 431 (DC Conn 1962), the court stated that once a trailer and tractor are attached and pulled over the highway by means of a motor the trailer becomes an integral part of the unit and constitutes one motor vehicle. To the same effect, see State v. Harper, 353 Mo 821, 184 SW2d 601 (1945); Hart v. Stinson, 135 Fla 331, 185 So 139 (1938).

The plaintiff has insisted that since the farm tractor and the hayrack involved were not implements designed for carrying passengers they should not be considered to constitute a motor vehicle within the meaning of the Guest statute. We can find no such distinction indicated in the statute. We are of the opinion that the purpose for which the vehicle is used as well as its construction determines its character.

The plaintiff has attacked the provisions of the Guest statute and has cited numerous articles which have severely criticized the same. We cannot ignore what we consider to be the plain legislative intent as expressed in the act itself. The Guest statute has been created by the legislature and if its demise is to be brought about we consider that to be a legislative function and not a judicial one.

Accordingly the judgment of Will County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


text:
    In the Matter of the Estate of Grace S. McDonough, Deceased. Louise McDonough, Respondent-Appellant, v. Lloyd N. Schertz, Individually and as Executor of the Estate of Grace S. McDonough, Deceased, Petitioner-Appellee, and Eunice S. Howell, Respondent-Appellee.
    Gen. No. 69-10.
    Third District.
    September 17, §969.

      Berry, Leighty & Simshauser, of Macomb, for appellant.

      Harris & Harris, of Macomb, and Rainey & Murphy, of Princeton, for appellee.
   RYAN, J.

On July 1, 1966, Grace S. McDonough and others entered into a contract to sell certain lots to the City of Macomb. The contract provided for a down payment, a payment on July 1, 1967, and the payment of the balance on July 1, 1968. Warranty Deeds were executed and placed in escrow. The down payment was made and the payment due July 1, 1967, was likewise made when due.

On March 3, 1967, Grace S. McDonough executed her will, paragraph 4 of which provided:

“I give and devise to my sister-in-law, Louise Mc-Donough, all of the real estate that I have received through my husband, Robert E. McDonough, by Will or deed, located in McDonough County, Rlinois, and owned by me at the time of my death, excepting my dwelling house located at 823 East Calhoun Street in Macomb, Illinois.”

The interest which Grace S. McDonough owned in the City lots which were the subject matter of the above contract was acquired by her through the will of her husband, Robert E. McDonough, who had died testate on July 2, 1957. In addition to the acquisition of the interest in the City lots involved in this contract, Grace S. McDonough also acquired under the will of her late husband other real estate located in McDonough County valued at approximately $20,000.

Grace S. McDonough died on December 8, 1967, prior to the final payment under the contract by the City of Macomb. Her will was admitted to probate on January 25, 1968. On July 17, 1968, the City made the final payment under the contract. The sum of $4,732 represents the decedent’s share in this final payment. Lloyd N. Schertz individually and as executor of the estate of the decedent filed a petition asking the court whether said sum should be distributed as real property under paragraph 4 of the decedent’s will above set forth or whether said sum should be distributed as personal property under the residuary clause of the will.

The trial court held that the sum of $4,732 was personal property and directed the executor to distribute the same to the residuary legatees under the will. We are of the opinion that the trial court was correct.

The question has been raised as to whether or not the doctrine of equitable conversion applied so as to change the nature of the interest of the decedent in the property conveyed to the City from real estate to personalty so that the proceeds from the sale would pass under the will as personal property. We do not believe that the answer to this question alone is determinative of the issues in this case. Neither do we believe that we are confronted with the problem of applying or not applying this equitable doctrine. Rather we are of the opinion that there are two questions presented for the court’s determination. The first relates to the question of equitable conversion. Did the contract by this equitable doctrine work a conversion of the decedent’s interest in the real estate in question from realty to personalty? The second question relates to the intention of the testator expressed in the will. If the contract did effect a conversion from real property to personalty, who did the testator intend should receive the proceeds of the sale under the terms of her will? Both of these questions must be answered because we feel that if the intent was so indicated in the will, the devisee of the real estate would be entitled to receive the balance due on the contract even though a conversion had been effected.

The doctrine of equitable conversion has been defined to be that change in the nature of property by which, for certain purposes, real estate is considered as personal, and personal estate as real. It is the application of the maxim that equity regards as done that which ought to be done. Rehbein v. Norene, 2 Ill2d 363, 118 NE2d 287; Young v. Sinsabaugh, 342 Ill 82, 173 NE 784. “Nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted; and this, in whatever manner the direction is given, whether by will or by way of contract, marriage articles, settlements or otherwise. . . .” Horner Probate Practice and Estates, § 2260, 1961, Revised Volume 3A, page 410.

In the case now before the court, if a conversion was effected, it was brought about by virtue of the contract dated July 1, 1966, and the conversion would have taken place as of the date of the contract. Shay v. Penrose, 25 Ill2d 447, 185 NE2d 218. The conversion would have been accomplished on July 1, 1966, the date of the contract prior to the execution of the will on March 3,1967.

By the doctrine of equitable conversion, equity has sought to give effect to the intention of the parties involved and not to defeat their intention. The trial judge correctly made this observation in rendering his opinion. If a contrary intention appears, a contrary result must be achieved and equity will not decree a conversion if a contrary intention is evident. Leesman, Resulting Trusts — Equitable Conversion as Applied to Intallment Contracts for the Sale of Real Estate (1934) 29 ILR 97. Whether there was a conversion of land into personalty depends upon the contract. An equitable conversion is implied only when the intent is unequivocal and the implication leaves no substantial doubt. In order to work a conversion the contract must be such that a court of equity can specifically enforce it against an unwilling purchaser. Masters v. Masters, 325 Ill 429, 156 NE 481.

The contract with the City of Macomb, in addition to providing for the down payment and the payment of the balance of the purchase price in two installments, also provided that the buyer was entitled to immediate possession of-the real estate subject to existing leases. It provided that the buyer was entitled to collect all rents which thereafter became due from the tenants, that the buyer could remove any buildings of the sellers which were not under lease and that it could make improvements on the property at any time thereafter, all without the consent of the sellers. The buyer agreed to pay all special assessments levied against the property after the date of the contract. In addition, the sellers had executed deeds and deposited them in escrow. This contract is clearly one that can be specifically enforced against an unwilling purchaser which is a requirement for conversion as announced by the Masters case, supra. The contract expresses the intent to transfer the incidents of ownership of the real estate from the sellers to the buyer as of the date of the instrument. This contract appears to be the typical situation for the application of the doctrine of equitable conversion and the application of this doctrine appears to conform to the intent of the parties as manifested in the contract. We hold that on July 1, 1966, an equitable conversion of the decedent’s interest in the real estate involved in the contract was effected.

In determining who under the decedent’s will is to receive the balance due under the contract, we are not concerned with applying the equitable doctrine or not applying it. As indicated above, the conversion was effected by the contract which was executed prior to the decedent’s death and prior to the execution of her will. We are rather now concerned with the decedent’s intent as to who should receive the balance due on this contract and this intent must be ascertained from the will. Even though there may have been a conversion of the real estate to personalty, if the will indicates that the testator intended that the devisee of real estate should receive the balance due under the contract to sell real estate, this end can be accomplished without holding that the doctrine of equitable conversion will not be applied.

The appellant, Louise McDonough, has cited Heirs of Wright v. Minshall, 72 Ill 584, and Covey v. Dinsmoor, 226 Ill 438, 80 NE 998, in support of her position that the doctrine of equitable conversion does not apply in this case. Both of these cases involve specific devises of real estate for which a contract for sale had previously been executed prior to the execution of the will. The Wright case involved a devise of “all his real estate, land and appurtenances in Clay County.” The Covey case involved a devise of a tract of land specifically described, however, it was stated in the will that the devise was “subject to my contract of sale . . . .” The court in Rhodes v. Meredith, 260 Ill 138, 102 NE 1063, explained the holding in these two cases by saying at page 144: “The doctrine of equitable conversion was not allowed to interfere with the clearly expressed intention of the testators.” It should be noted that in neither the Wright case nor the Covey case did the devise convey only that real estate which the decedent owned at death. Since the contracts were made prior to the execution of the will in both cases and since a determination in each of these cases that the property would pass as personalty would totally defeat the devise in the will executed subsequent to the contract, the court held that the intention of the testator was that the proceeds of the sale were to pass to the devisee of the real estate. A contrary determination would have rendered the devise made after the contract was executed meaningless and would completely defeat the devise.

A contrary situation exists in the will now before this court. Although the contract was executed prior to the execution of the will the contract did not involve all of the real estate in McDonough County which the testator had received through her late husband. In addition to the real estate covered by the contract the testator owned some $20,000 worth of real estate in McDonough County which she had received through her late husband. Therefore, if the balance due on the contract is to pass as personal property under the will the provision of the devise now under consideration is not rendered meaningless as would have been the case in the Wright and Covey cases.

Furthermore, the testator in our case expressed her intent in this devise to transfer to the devisee only so much of the real estate described in paragraph 4 of the will as she owned at the time of her death. This could have been all or none of the real estate so described. This is clearly a different intention than that expressed by the testators in the Wright and Covey cases.

In Adams v. Peabody Coal Co., 230 Ill 469, 82 NE 645, cited by the appellant the testator devised “all the real estate that I shall own at my decease.” Subsequent to the execution of the will the testator executed an option to Peabody to buy the coal and mineral rights. The court recognized the doctrine of equitable conversion but would not apply the same stating that it considered Covey v. Dinsmoor, supra, as controlling without considering the differences in the two cases. In Covey the contract was executed before the execution of the will while in Adams the contract was executed after the will, but the court gave no consideration to the principle of ademption. In Covey the devise was made subject to the contract which manifested a different intent than did the language used in Adams. See James, Illinois Probate Law and Practice, chapter 50, section 46A (Comment).

Since we have found that a different intent has been expressed by the testator in the case now before us than was expressed in the Covey case and since the decision in the Adams case was rendered solely because of the decision in the Covey case, we do not consider the deeision in the Adams case as helpful in the case now under consideration.

In Rhodes v. Meredith, supra, the decedent died intestate. Prior to his death he had executed a contract to convey his farm. The court stated at page 143:

“When a valid, enforcible contract has been entered into for the sale of real estate, as between the vendor and vendee equity regards the vendee as the owner of the land and the vendor as the owner of the purchase money, which is personalty. The vendor is regarded as the trustee of the naked legal title for the benefit of the vendee, and the vendee as the trustee of the purchase money for the benefit of the vendor. (Citing cases.) Where the owner of real estate thus enters into a valid contract for its sale, the nature of his estate under the doctrine of equitable conversion is changed and the real estate will be regarded as converted into personal property, and, in case of the death of the vendor before the contract is performed, it will be treated as assets in the hands of his personal representative.”

There appears to be no reason why the real estate which had been converted to personalty by a contract for sale should pass as personalty in case of intestacy as in the Rhodes case but pass as real estate when a will is involved as the appellant contends in this case, unless the will expresses such an intent. We find no such intent expressed in the will now under consideration.

The decision of the Circuit Court of McDonough County v/ill be affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Mary Esther Mikrut, Plaintiff-Appellant, v. Stephen Mikrut, Defendant-Appellee.
    Gen. No. 69-4.
    Second District.
    September 18, 1969.

      Arthur B. Carlson, of Harvard, for appellant.
    Berry, Simmons & Coplan, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The judgment of the trial court modifying an initial divorce decree, which awarded custody of four small children to their mother, by removing two of the children to their father’s custody is challenged on this appeal.

Custody was originally determined in a contested hearing on August 10th, 1967. The children are Katherine, then age years, Stephen, 2½ years, Carol, 1 year, and Cherryl, age 2 months. The court, in awarding custody in connection with the decree of divorce commented that he was doing so “on the basis of the Probation Officer’s report, and the report from the H. Douglas Singer Psychiatric Center.”

At this hearing the probation officer, who had been directed by the court previously to investigate the homes of the parties, was present in court and gave as his opinion that the mother should have custody. He was precluded from further explanation by the judge who indicated he had read the full report. Neither this report nor that referred to as the one from the Psychiatric Center were filed of record. Other testimony was taken which indicated that the mother was unemployed and living with her parents and planned to seek job training and secure a home of her own.

A decree of divorce was signed on September 15th, 1967, incorporating the award of custody to the mother, the plaintiff here.

On April 19th, 1968, defendant filed a petition alleging that “plaintiff has mistreated said children, kept them ill-clothed, kept them ill-fed, and on numerous occasions has inflicted physical harm to said children,” and further alleging that he had “a suitable home to adequately and properly take care of said children.”

On August 21st, 1968, a full hearing on the petition was held before the trial judge below, who was not the judge who had heard the previous proceedings.

Defendant testified, without objection,

“. . . on February 7th, Carol was taken to Beloit Hospital, and Mary said she fell out of the high chair and she had her arm in a sling for two weeks. And then on March 3rd, we picked the children up and Kathy had a black and blue mark on her butt. She said her mother beat on her with a stick.
“. . . On March 31st when we picked up the children, Stephen’s nose, forehead and chin were bruised. There were no scratches on the rest of his body. Mary said he fell out of a go-cart, but he looked like he was badly beaten, and he said his mother beat on him.”

The father further testified, without objection, that the children told him that at some earlier date plaintiff was sleeping with her boyfriend (now her present husband) in one room, and that the children were two and three in a bed and one had to sleep on the floor.

Small photographs showing a mark on one of Katherine’s buttocks and a mark on Stephen’s face were admitted. These are in the record before us and are inconclusive. Defendant described a “black and blue mark” on Katherine, and as to Stephen, “a bad bruise on his chin and forehead, and his nose was black and blue.”

Defendant described the adequate farm home where he lived with his parents and testified that the children enjoy being there.

Defendant’s brother testified that the children “looked undernourished” when they were with their mother.

Plaintiff testified that she fed, clothed and housed the children properly and did not mistreat them. She testified that Stephen received the bruises described when he fell out of a go-cart and she disclaimed any knowledge of the mark on Katherine.

She testified that she had remarried and that the home in which she lived was a two bedroom house with a double bed in one bedroom and a baby bed added to the second bedroom. The plans would be for the youngest to sleep in her room on a rollaway bed and the other children to sleep in the second bedroom temporarily, but that soon they would trade with her parents and move into a four bedroom home.

A report of a social worker, a Mrs. Floberg, assigned by the court to investigate the respective home life of the parties is referred to in the record, but the report is not made a part of the record, nor is there any indication as to its contents.

Before ruling on the petition for the change of custody, the court indicated that the father’s home was a good one and that it had always been his feeling that the children should be kept together,

“But I think I have one or two problems. They need their mother more than they need their father. For that reason I am going to order that the Petition be granted as to Kathy and Steve, I will grant custody of those two to the father. The Petition is denied as to Cheryl and Carol, who will remain with the mother.”

The plaintiff argues that the mere showing that defendant could give the children a home with better physical facilities is not the showing of a change in circumstances affecting the children sufficient to change a custody order previously entered after a full hearing; and that the custody of small children should not be taken from their mother without a showing of her unfitness.

Defendant maintains that the custody decree is always subject to being changed from time to time as the best interests of the children demand, and that “when the record does not contain the evidence upon which the order was entered, every presumption is in its favor.”

Plaintiff responds that there was no express finding by the court that the mother was unfit or that her home was unsuitable, or that the children had been abandoned, neglected or mistreated, or that the welfare of the children warranted splitting them up, and that the order, therefore, is unsupported in the evidence.

It is not necessary that special findings of fact be made or set out in the decree. Ill Rev Stats 1967, c 110, § 64(3). The burden of preserving the necessary evidence supporting an order or decree in equity by findings of fact in the decree or by a certificate of evidence is no longer upon the person in whose favor the decree or order was entered. Canady v. Canady, 30 Ill2d 440, 446-7, 197 NE2d 42 (1964).

If the record does not contain the evidence upon which the order was entered, every presumption is in its favor. Martinec v. Sharapata, 328 Ill App 339, 344, 66 NE2d 103 (1946); Stern v. Stern, 40 Ill App2d 374, 382, 188 NE2d 97 (1963). But that rule of law does not support defendant’s argument as to the effect of the order changing custody. Unlike the fact situation in Martinec and Stern, supra, the testimony and evidence was preserved here and the issue is whether, on the record, defendant has sustained the burden of proof warranting a change in custody. It is clear that the party seeking to alter the custody provisions of the decree has the burden of proving that the child’s best interests warrant the change. Vysoky v. Vysoky, 85 Ill App2d 306, 310, 230 NE2d 3 (1967).

While the trial court has been given large discretion in ruling on petitions for change of custody, it is a judicial discretion and must be subject to review on the evidence heard in open court and no waiver or agreement between counsel can bind the minor, whose interest is the main question to be considered — without a hearing in conformity with substantial due process. Cohn v. Scott, 231 Ill 556, 559, 83 NE 191 (1907); Walter v. Walter, 61 Ill App2d 476, 479-80, 209 NE2d 691 (1965); Harris v. Spencer, 86 Ill App2d 41, 45-6, 229 NE2d 16 (1967); Williams v. Williams, 8 Ill App2d 1, 5-7, 130 NE2d 291 (1955).

The use of an investigative report of a social worker not appearing in the record, as a basis for the court’s finding, was held to be reversible error in Des Chatelets v. Des Chatelets, 292 Ill App 357, 359, 11 NE2d 13 (1937). See 35 ALR2d Annotated, pp 630, 635.

If we were to assume, contrary to defendant’s argument, that the court gave no consideration to Mrs. Floberg’s report, we find an insufficient basis in the evidence for the change of custody ordered. The showing as to changes of conditions affecting the best interests of the children in this case is insufficient to warrant a change in the prior determination of custody. Nye v. Nye, 411 Ill 408, 416, 105 NE2d 300 (1952).

Defendant argues that the facts upon which the initial determination of custody was made are not clear in the record, in that it appears that a probation report and the report of the Singer Psychiatric Clinic, neither of which were in the record, formed a substantial basis of the initial determination of custody. The initial decree awarding custody has not been directly attacked and cannot be so challenged in these proceedings. The evidence in the record of the original custody hearing is, of course, available for the purpose of determining whether changed circumstances affecting the interests of the children have intervened since the initial custody order. But there was no showing in the record before us for review of any real change in the housing conditions from those outlined by the mother in the original hearing. Nor was there any real proof of other changes in circumstances affecting the welfare of the children. There was purely hearsay testimony of the defendant that the children had told him that the bruises and abrasions were caused by the plaintiff. However, the mother denied that. While there was no objection made to the recital by the father, the court indicated at a later stage in the father’s testimony that he was not giving credence to hearsay.

The testimony did not establish that the mother was unfit and the court did not make such a finding. Although this is not a required showing preliminary to taking custody of small children from their mother, it is a circumstance to be considered. Giacopelli v. Florence Crittenton Home, 16 Ill2d 556, 566, 158 NE2d 613 (1959); People ex rel. Edwards v. Livingston, 42 Ill2d 201, 210, 247 NE2d 17 (1969). Similarly, while there is no prohibition against separating children for the purpose of custody (see Umlauf v. Umlauf, 128 Ill 378, 21 NE 600 (1889)), such procedure is unusual as family ties between children of the same parents are not to be disturbed lightly. (98 ALR2d Annotated, p 926.)

On the record available to us for review, we find that the action of the trial court was against the manifest weight of the evidence and we, therefore, reverse and remand.

Reversed and remanded.

MORAN, P. J. and DAVIS, J., concur.

       Defendant appears to be referring to the report of the social worker, Mrs. Floberg, not in evidence, when he states in his brief and argument:
      It is unfortunate that the record does not disclose in greater detail the stability of the homes of the respective parties here, since it appears by implication that the trial court may have perhaps given great weight to the physical accommodations that each of the parties could provide for the children. Mention was made in the record of a certain report from a Mrs. Floberg, who appears to have made an investigation of the two homes, on order of the court. Neither party made any objection to the court’s use of said report. The report itself has not been set out as a matter of record, which is extremely unfortunate, since it appears that the court may well have placed great reliance on it. It may, in fact, have been the determining factor in the court’s resulting order ....
      The difficulties inherent in the use of an investigative report which is not a part of the record is illustrated in this argument and the equally unsupported argument of the plaintiff that the report was “unchallenged” and was “favorable” to the plaintiff.

       At one stage in the testimony defendant testified that the mother’s house looked small, but admitted that he had not been in the inside of the building, whereupon the court commented,
      You see, you can’t give any testimony as to what the children told you because that is hearsay and it isn’t admissible.


author: TRAPP, P. J.

text:
    Milton Hinkle and Frank Percival, Partners, Doing Business as Hinkle & Percival, Masonry Construction, Plaintiffs-Appellees, v. Donald Creek, Defendant-Appellant, and Mattoon Area Industrial Corporation, an Illinois Corporation, Vernon Green Excavating, Republic Steel Corporation, a Corporation, Farrier Construction, Allen & Pauley, Associates, Albert Teaters, Elder Care, Inc., a Corporation, and Virgil Bader, Harry Diepholz, d/b/a Diepholz Trucking, Defendants-Appellees.
    Gen. No. 11,007.
    Fourth District.
    September 22, 1969.

      Roscoe D. Cunningham, of Lawrenceville, for appellant.
    Brainard & Bower, of Charleston (J. Leeds Bower, of counsel), and Frank H. Schniederjon, of Effingham, for appellees.
   TRAPP, P. J.

The trial court entered a decree for foreclosure of mechanics’ liens, and by subsequent order determined the priorities between the several lien creditors, and entered judgment for deficiencies against Creek, defendant and owner of the premises. C 82, § 19, Ill Rev Stats 1967. Creek appeals from the deficiency judgments entered in favor of the lien creditors. The plaintiffs, who are masonry contractors, cross-appeal from that part of the decree establishing a lien in favor of Republic Steel Corporation, hereinafter designated Republic.

Creek undertook the construction of a nursing home in Mattoon. Plaintiffs brought action to foreclose their mechanic’s lien when the masonry work had not yet been completed. Republic and Farrier Construction Company filed counterclaims in the foreclosure proceedings which set out their respective claims for lien. Republic had fabricated a substantial number of steel beams, steel plates and window lintels to specifications of the owner. At the time of the action to foreclose, all of such steel products had been delivered to the owner, or to the construction site. Most of the lintels had been incorporated into the masonry walls, but the beams and plates were not. It appears that the purchaser at the foreclosure sale subsequently used the steel products to complete the structure.

Creek, the owner, asserts that the several deficiency judgments were entered summarily and without notice in the pleading and that the court was without authority to enter judgments against him “because of insufficient prayers for relief,” and that he was not afforded an opportunity to present alleged defenses.

The record simply does not support such contentions. Plaintiffs’ complaint for foreclosure asked for foreclosure of the lien and such other relief as might be required. The counterclaim of Republic prayed foreclosure of its lien and in specific terms, a deficiency judgment. The counterclaim of Farrier prayed foreclosure of a lien and a money decree in the event that the foreclosure sale did not raise sufficient proceeds. All such pleadings were on file more than a month before the hearing and subsequent decree for foreclosure. His answer to the counterclaim of Republic made no reference to the claim for deficiency. His argument that the relief prayed in the complaint and counterclaims was limited to foreclosure of the real estate fails to achieve credibility.

Creek also argues that he was deprived of an opportunity to present his defenses to the several claims. While docket entries incorporated into the record suggest that he filed answers to the several claims, he did not include them in the record. His answer to the counterclaim of Republic only appears in a supplemental record filed by that party.

C 82, § 13, Ill Rev Stats 1967, provides that the defendant in proceedings to foreclose a mechanic’s lien shall answer as in any other civil proceedings, and may make any defenses and may recover on a counterclaim. Section 9 provides that the plaintiff and all defendants to a complaint in foreclosure may contest each other’s right without any formal issues of record made up between them, both as to the right to the benefit of the lien claim and to the amount due.

The decree finds that Creek had filed answer and had been served with notice of the hearing on foreclosure which was held on October 9, 1967. He did not choose to appear personally or by counsel. Subsequent to the foreclosure sale, a hearing was held to determine the priorities of the several liens. Defendant was present with counsel but made no offer of evidence as to the alleged defenses. Creek’s objections to the “proposed order” fixing priorities and determining the deficiency judgment contains no mention of any defenses. At the hearing to determine priorities between the several liens, Creek was called as a witness by Republic for the purpose of establishing the fact of delivery of Republic’s material. So far as the record shows, he did not testify, or ask to testify, concerning the alleged defenses.

In argument here, Creek contends that there were substantial defects in the steel supplied by Republic. While the record makes clear that Creek has failed to present evidence in the trial court concerning any defense, we glean from the record a contention that the steel beams and plates were too long. Such, however, could in no wise be a defense to a claim of Republic, as the same evidence discloses that the footings were twelve inches narrower than the specifications provided. There is no valid issue preserved on appeal.

Upon the cross-appeal, plaintiffs contend that the court erred in finding that Republic had a mechanic’s lien “for the full amount claimed” and in finding that Republic was entitled to share in the net proceeds of the sale in foreclosure. The contention is bottomed upon the evidence that steel beams and plates had not been placed in the building as partially constructed at the time of foreclosure, but that such items remained stacked on the premises as delivered. It is urged that Republic could have picked up the material and hauled it away for other sales since c 82, § 4, Ill Rev Stats 1967, authorizes a materialman to elect to retake possession of the materials upon breach of the contract. The question is whether such statutory election is to be deemed a duty as to other lien creditors.

The evidence is that Republic fabricated all material to specifications, but maintained no inventory of steel products for sale, and that it was unlikely that the material could be sold. Republic’s lien would be lost if the material was removed from the premises. R. Haas Electric & Manufacturing Co. v. Springfield Amusement Park Co., 236 Ill 452, 86 NE 248. Upon the facts present here such elective relief is singularly ineffectual. No authority is cited that suggests that the materialman’s election under § 4 is to be raised to the status of a duty to another lien creditor.

Plaintiffs also urge that the proof of delivery by Republic is not sufficient under c 82, § 7, Ill Rev Stats 1967, to establish a lien for material since there is no affirmative evidence of use in the construction by defendant, but rather the evidence is that it was not so used at the time of foreclosure. They cite only Builders Material Co. v. Johnson, 158 Ill App 411 (1910), as authority that there is no lien if the material is not actually placed in the building. That case concerned lumber supplied for use in forming concrete but not intended to be incorporated into the structure and such lumber was taken away upon completion. The statute was thereafter amended in 1913 to provide a lien as to material used in the process of construction.

Section 7 provides:

. . nor shall any such lien for material be defeated because of lack of proof that the material after the delivery thereof, actually entered into the construction of such building or improvement, although it be shown that such material was not actually used in the construction of such building or improvement; Provided, it is shown that such material was delivered either to said owner or his agent for such building or improvement, to be used in said building or improvement, or at the place where said building or improvement was being constructed, for the purpose of being used in construction or. . . .” (Emphasis supplied.)

Delivery of material for the “purpose” of being used in construction is sufficient to support a lien for material. D. D. Kennedy, Inc. v. Lake Petersburg Ass’n, 54 Ill App2d 85, 203 NE2d 145. In Burgoyne v. Pyle, 261 Ill App 356, p 366, it is said:

“Under the provisions of this section the claimant is given the alternative of proving either that the material for which the lien is claimed was actually used in the building, or that it was delivered for the purpose of being used. This alternative is important only where the evidence fails to show that the materials were used, or where it affirmatively appears from the evidence that they were not used.”

The record is clear that the steel products of Republic were delivered to the defendant or at the place where the building was being constructed for the purpose of being used in the construction. It was intended that steel become the property of the builder. D. D. Kennedy, Inc. v. Lake Petersburg Ass’n, 54 Ill App2d 85, 203 NE2d 145. The fact that such material was not used by defendant did not result from any conduct of Republic. As stated in Love: Illinois Mechanic’s Liens, 2nd ed 1950, at p 129:

“If the owner then fails to use the material for the purposes for which intended, that is of no effect on the lien right, because it is contrary to the intention of the parties, i. e., it is in disregard of the purpose for which delivery was made.”

Plaintiffs also argue that the steel supplied by Republic did not substantially benefit the improvement and contend that under c 82, § 16, Ill Rev Stats 1967, Republic may have a lien only to the extent that the material enhanced the value. Such section relates to priorities between parties claiming a mechanic’s lien and those claiming under an existing contract, mortgage or judgment as incumbrancers. It is held that between parties to the construction contract, the contract price established is of value of the improvement. Moulding-Brownell Corp. v. Delfosse Const. Co., 304 Ill App 491, 26 NE2d 709. Plaintiffs are a lien-creditor rather than an incumbrancer entitled to claim the benefit of this statutory provision.

The decree of the trial court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Killion, Defendant-Appellant.
    Gen. No. 11,090.
    Fourth District.
    September 22, 1969.
    Raymond Lee, Jr., of Tuscola, for appellant.
    Frank W. Lincoln, State’s Attorney, of Tuscola, for appellee.
   TRAPP, P. J.

Defendant appeals from an order revoking his probation upon findings that he had used intoxicating liquor in violation of the terms of probation, and that he had been guilty of disorderly conduct in another county.

It is urged that there was insufficient competent evidence to support either of these findings, and that the court erred in entering a sentence which did not provide credit for the time defendant was in jail pending the proceedings.

At the hearing on revocation defendant testified upon interrogation by his counsel that he had entered a plea of guilty on the charge of disorderly conduct in Jasper County. He was represented by counsel at the time of such plea. Since there is an admission in open court of the violation of law which is charged, it is unnecessary to examine the arguments upon the sufficiency of the authenticated record of such conviction.

. The evidence upon the use of intoxicating liquor is in conflict in the sense that defendant denies it. The Sheriff of Jasper County testified that he found defendant with an odor of liquor on his breath and with slurred speech. Defendant’s argument that he had passed no place where he might purchase intoxicating liquor as he was travelling is belied by the testimony that most of a carton of beer was found in his truck. Probation may be revoked upon showing violation by a preponderance of the evidence. People v. Carroll, 76 Ill App2d 9, 221 NE2d 528. Defendant seeks to measure the evidence here in the terms of People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113. There the reviewing court found that there was no evidence at all that the defendant was drinking beer, or that he had committed theft. The defendant cites People v. Mundorf, 85 Ill App2d 244, 229 NE2d 313, but the issue there was proof beyond a reasonable doubt that defendant was driving while under the influence of intoxicating liquor. Such is not the issue here.

The court takes judicial notice that the sentence credit stated in c 38, § 119-3, Ill Rev Stats 1967, is determined by the regulations of the Department of Public Safety and is provided administratively. People v. Smith, 90 Ill App2d 310, 234 NE2d 31.

The judgment is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    J. E. Harney, d/b/a Harney Radio Service, Plaintiff-Appellant, v. Edward Spellman, et al., DefendantsAppellees.
    Gen. No. 11,055.
    Fourth District.
    September 25, 1969.
    Ray Moss, Herrick, Rudasill & Moss, of Clinton, for appellant.

      Burke Miller, of Lincoln, for appellee.
   SMITH, J.

The facts are stipulated. The trial court held that a distress warrant levied upon personal property of a tenant was superior in title and possession to a title retention conditional sales contract owned by the seller of the goods delivered to a buyer when such contract was not filed in the county where the purchaser resided. The determination of the trial court and its judgment is correct.

The plaintiff sold a washer, dryer, range, refrigerator and a color-television set to Donald E. Hupp. The sale took place in Clinton, DeWitt County, Illinois. The contract between the plaintiff and Hupp provided, among other things, “Title to the goods is vested in the Seller and shall not pass to Buyer, . . . until the time balance shall have been fully paid.” Hupp lived in Logan County, Illinois, and was a tenant of the defendant Spell-man. The plaintiff did not file a financing statement under the provision of the Uniform Commercial Code in Logan County, Illinois. The Landlord-Tenant Act provides, among other things, that in cases of distress for rent,”. ... [I]n no case shall the property of any other person, although the same may be found on the premises, be liable to seizure for rent due from such tenant.” Ill Rev Stats 1967, c 80, § 16. From this, the plaintiff argues that the title was in him, the property was his, and it was not subject to seizure for rent because of the provision just cited. The Uniform Commercial Code, Ill Rev Stats 1967, c 26, he says, does not apply because he is not a lien-holder, but a titleholder and the Uniform Commercial Code does not destroy this title. On the contrary, he says, the Code states, “Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods. . . .” Ill Rev Stats 1967, c 26, § 2-401 (2). The term “explicit” means that which is so clearly stated or distinctly set forth that there is no doubt as to its meaning. The contract in question explicitly agreed that title to the goods was vested in the seller until full payment was made. The stipulation stated that full payment had not been made. Where a security interest is involved, title is immaterial. Section 9-202 of the Code states: “Title to Collateral Immaterial. Each provision of this Article with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.” [Emphasis supplied.]

It is the defendant’s position that his lien on the property attached when the distress warrant was issued and the property seized, and it was so held in A. N. Kellogg Newspaper Co. v. Peterson, 162 Ill 158, 44 NE 411. Paragraph 1-201(37) of the Uniform Commercial Code states: “ ‘Security interest’ means an interest in personal property or fixtures which secures payment or performance of an obligation. The retention or reservation of title by a seller of goods notwithstanding shipment or delivery to the buyer (§ 2-401) is limited in effect to a reservation of a ‘security interest’ . . . .” Section 9-401 of the Uniform Commercial Code sets forth the requirements and the directions as to the proper place to file a security document in order to perfect a security interest in property. Plaintiff did not comply with this section. The conditional sales contract executed in this case is indubitably and purely a security contract. It is fundametal that contracts are to be construed in the light of the prevailing law. To hold as the plaintiff now contends is to turn back the pages to a time when secret liens in personal property through conditional sales or title retention contracts had some semblance of respectability. That semblance of respectability disappeared many years ago and we do not believe that the Uniform Commercial Code can be fairly construed to have restored it. The conclusion is inescapable, therefore, that when the plaintiff failed to perfect the security interest in the goods in question, as he might very well and very easily have done, his security interest or lien becomes subordinate to a lien validly attaching to the property. Plaintiff, as the trial court held in a lucid and concise memorandum, stood in the position of an unsecured creditor so far as subsequent creditors without notice were concerned. Goods as between seller and buyer, seller’s security interest must yield to lienors whose liens properly attach before he perfects the same by filing.

The judgment of the trial court must be and it is hereby affirmed.

Affirmed.

CRAVEN, P. J. and MILLS, J., concur.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Emanuel Stasin, Defendant-Appellant.
    Gen. No. 68-138.
    Second District.
    September 26, 1969.

      Kevin P. Connelly, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of Du Page County, of Wheaton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

An indictment was returned against the defendant, Emanuel Stasin, and against Frank Lawler, a codefendant, for the burglary of Addison Guido’s, Inc., located at 607 Army Trail Road, Addison, Du Page County, in violation of section 19-1 (a) of the Criminal Code (Ill Rev Stats 1967, c 38, par 19-1 (a)). Stasin entered a plea of not guilty to the charge, waived jury trial, subsequently withdrew the plea of not guilty, and entered a plea of guilty.

Before accepting the plea, the court advised Stasin of the nature of the charge against him and of the consequences of the plea. In the course of the admonishment, Stasin told the court that he was guilty of the burglary charge against him; that he entered Addison Guido’s, Inc., with intent to therein commit a theft; and that he made the guilty plea, freely, voluntarily and understandingly, with no promises of leniency and without any threats against him.

The hearing in aggravation and mitigation of the offense revealed that the defendant had the following criminal record:

February 11, 1954 — Convicted on two counts for burglary — five years probation;
February 7, 1956 — Ex parte judgment involving narcotics arrest — fine $190.00 and $10.00 costs;
June 12, 1956 — Convicted on two counts for burglary — sentenced one to three years in the penitentiary;
February 3, 1960 — Convicted of attempted burglary, burglary, con-game (three counts) — burglary—five to ten years; con-game — four to five years; concurrent sentences;
In 1965, the defendant was arrested as a parole violator and returned to the penitentiary; and
Since 1967, he has had one traffic arrest resulting in a sentence of thirty days in the County Jail.

The evidence also indicated that the defendant, age 33, was a drug addict, and that his difficulties with the law stemmed from his addiction. After the hearing, the court sentenced the defendant to the penitentiary for a minimum of eight and a maximum of fifteen years.

The defendant was represented at the trial by counsel of his choice, who also represented Frank Lawler, a codefendant. Lawler entered a plea of not guilty and was tried after the defendant entered the plea of guilty. The record does not indicate that the defendant testified at Lawler’s trial.

The court appointed the Public Defender as counsel for the defendant on appeal. He has filed a petition for leave to withdraw as appellate counsel, and pursuant to Anders v. California, 386 US 738, 18 L Ed 493, 87 S Ct 1396 (1967), has filed a brief in support of his petition, wherein he alleged that the appeal was wholly frivolous and without any contentions that might arguably support the appeal. Proof of service indicates that a copy of the petition and brief was mailed to the warden of Joliet Penitentiary and to the defendant, on May 13, 1969.

On June 13, 1969, the court, on its own motion, caused its clerk to direct a letter to the defendant whereby he was further notified that the Public Defender had moved to withdraw as his appointed counsel, and that the petition for leave to withdraw contained the conclusions of the Public Defender: that the defendant was not denied proper assistance of counsel at the trial; that the sentence imposed on him was not excessive; and that the alleged trial errors were frivolous. The letter also notified the defendant of the Proof of Notice which was attached to the petition; and that the court, on its own motion, had continued the matter until July 14, 1969, in order to allow him to file any additional matters which he believed to be meritorious on his behalf, or to assert any other reasons why the petition should not be allowed, or why the court, after review of the record, should not affirm the judgment of the trial court.

The defendant did not file any pleading in response to the notice of the Public Defender or the court, and sought no extension of time within which to do so.

The brief and argument of the Public Defender state that only illusory issues are presented in the appeal in the case at bar; that, as in any criminal review, the sentence imposed is subject to limited review; and that the defendant was not denied proper assistance of counsel.

In the case at bar, privately retained counsel represented both the defendant and his codefendant. Prior to the trial of the codefendant, the defendant pled guilty and the matter was continued for hearing in aggravation and mitigation. On June 4, 1969, the same date that had been set for hearing in aggravation and mitigation and for sentencing, the defendant was under subpoena to testify for the People against his codefendant. However, he did not respond to the subpoena, and a capias was issued for his arrest. On July 2, the matter came up for hearing on the return of the capias. At that time the court was notified that the defendant had been lodged in the Cook County Jail, but was presently before the court. An immediate hearing in aggravation and mitigation of the offense was held and the defendant was sentenced. The court was apprised that the Cook County deputy sheriffs had “orders to remand the defendant back to Cook County.”

It seems clear that the defendant, Emanuel Stasin, did not testify against his codefendant, and that he was not denied proper assistance of counsel. This case is distinguished from People v. Ware, 39 Ill2d 66, 233 NE2d 421 (1968). There appointed counsel represented the codefendants, one of whom pled guilty and took the witness stand to testify against his codefendants prior to the time he was sentenced. The court held that this procedure placed defense counsel in a conflicting position with reference to the duty owed to his client, and that because of this, the defendant was denied proper assistance of counsel.

In view of the defendant’s past criminal record, the absence of strong family ties, employment opportunities and other beneficial rehabilitating factors, we would not be warranted in reducing the sentence imposed against him. People v. Miller, 33 Ill2d 439, 444, 445, 211 NE2d 708 (1965); People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815 (1958); People v. Juve, 106 Ill App2d 421, 428, 429, 245 NE2d 293 (1969); People v. McAndrew, 96 Ill App2d 441, 452, 453, 239 NE2d 314 (1968).

We have fully examined all of the proceedings, as required by Anders v. California, supra, and conclude that the appeal lacks merit, and if pursued further, would be frivolous. The Public Defender is, therefore, given leave to withdraw as the defendant’s counsel and the judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    Richard C. Goodrich, an Incompetent, by Harold Anders, His Next Friend, Plaintiff-Appellee, v. City National Bank & Trust Company, a Corporation, as Trustee, and Richard C. Whitney, and J. C. Anderson, Defendants-Appellants. In the Matter of the Application of the County Collector for Judgment and Order of Sale Against Lots and Lots Returned Delinquent for Payment of General Taxes for the Year 1964 and Prior Years.
    Gen. No. 69-18.
    Second District.
    October 3, 1969.

      Canfield, Canfield & Franks, of Rockford, for appellants.
    Smith, Penniman & McGreevy, of Rockford, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

Certain real estate owned by Richard C. Goodrich, the plaintiff, was sold at tax sale on January 31, 1966, for nonpayment of the 1964 real estate taxes. In October of 1967, the plaintiff was served with a notice which recited that J. C. Anderson, defendant and purchaser at the tax sale, had filed a petition in the tax sale proceeding in the Circuit Court where the judgment of sale was entered, praying that the court direct the County Clerk to issue a tax deed to said purchaser if the property were not redeemed by January 31,1968; and that said J. C. Anderson would seek an order directing the issuance of a tax deed. (See: Ill Rev Stats 1967, c 120, par 747.)

Goodrich did not redeem the property within the statutory period, and the court, on February 1, 1968, ordered that a tax deed be issued by the clerk, and tax deed issued on the same date. The title ultimately was transferred to the defendant, City National Bank & Trust Company, a corporation, as Trustee, for the benefit of the defendant, Richard C. Whitney. It was conceded that the latter was not a bona fide purchaser from Anderson.

Goodrich, as an incompetent, by Harold Anders, his next friend, subsequently filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 72) asking that the order entered February 1, 1968, be vacated, and that he be permitted to redeem the property from the tax sale. The defendants answered the petition, and the court, after hearing, entered an order on October 25, 1968, directing that its prior order of February 1, 1968, for the issuance of a deed, be vacated, and that upon payment into the court of the sum necessary to redeem the property from the tax sale, the tax deed then be set aside. On November 8, 1968, the defendants filed a Notice of Appeal from the order entered on October 25, 1968.

On December 19, 1968, Goodrich, by his conservator, deposited with the court the monies necessary to redeem from the tax sale, and thereupon, on that date, the court found that Goodrich had deposited the monies necessary to redeem the premises, and ordered that the tax deed previously issued be set aside and held for naught, and that the tax deed and interest of the defendants in the premises be removed as a cloud on the title of Goodrich. No appeal was taken from this order.

On appeal, the defendants have assigned various alleged errors in the findings of the court and in the trial of the case. However, before reaching these alleged errors, we must consider the threshold contention of Goodrich that the appeal should be dismissed because it is from the order entered on October 25,1968, which was not a final and appealable order.

Paragraphs 5 and 7 of Article 6 of the Illinois Constitution, and Supreme Court Rule 301 (Ill Rev Stats 1967, c 110A, par 301) provide that every final judgment of a circuit court is appealable as a matter of right. Supreme Court Rule 304, which pertains to judgments as to fewer than all parties or issues, provides that an appeal may be taken in such cases only if the trial court has made an express written finding that there is no just reason for delaying the enforcement or appeal. Interlocutory appeals as a matter of right are permitted only in specific situations (Supreme Court Rule 307), or when permitted by the court pursuant to rule (Supreme Court Rule 308). The order appealed from, which was entered October 25, 1968, contained no finding that there was no just reason for delaying the enforcement or appeal. If it was not a final, appealable order, the appeal should be dismissed. Coats v. Coats, 92 Ill App2d 75, 80, 234 NE2d 86 (1968); Smith v. Lewis, 85 Ill App2d 246, 249, 229 NE2d 323 (1967).

The order entered on February 1, 1968, for the issuance of a tax deed was, as stated above, obtained pursuant to Section 266 of the Revenue Act (Ill Rev Stats 1967, c 120, par 747). This section provided, among other things:

“Tax deeds issued pursuant to this Section are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Section 72 of the ‘Civil Practice Act’, approved June 23, 1933, as heretofore or hereafter amended, in the same manner, upon the same grounds and to the same extent as may be had under that Section with respect to final orders, judgments and decrees in other proceedings and the court shall consider defenses relating to questions of the notices required by Section 263 and the proof presented in the hearing required by this Section.”

Section 270 of the Revenue Act (Ill Rev Stats 1967, c 120, par 751), provides in part:

“. . . And any judgment for the sale of real estate for delinquent taxes, except as otherwise provided in this Section, shall estop all parties from raising any objections thereto, or to a tax title based thereon, which existed at or before the rendition of such judgment or decree, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered, and as to all such questions, the judgment itself is conclusive evidence of its regularity and validity in all collateral proceedings, .... Provided, that any judgment or decree of court, in law or equity setting aside any tax deed procured under this Act or restoring the owner of same to possession, shall provide that the claimant shall pay to the party holding such tax deed the following, to be itemized by the county clerk: (Costs to be paid are itemized.) ... No final judgment or decree of court in any case either at law or in equity . . . involving the title to or interest in land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this Act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of such deed or his assignors shall have properly paid or be entitled to in procuring such deed. . . .” (Emphasis ours.)

Section 270 of the Revenue Act, when read in con- ' junction with section 266 confirms that the order entered on October 25, 1968, was not a final, appealable order, and that the only final, appealable orders in this cause were those entered on February 1, 1968 and December 19, 1968. No appeal was taken from either of these orders.

The order of October 25, 1968, made specific findings as to the competency of Goodrich at the time he was served with the petition and notice required under section 266 of the Act. It then decreed that the order of February 1,1968, be vacated, but conditioned the setting aside of the deed upon the payment of the sums ordered to be paid by the clerk of the court. It was not until this was actually done, and the court had so found, that the deed was in fact set aside, and the interest of the parties in the real estate finally determined. The final determination fixing the ultimate rights of the parties in the real estate and ultimately disposing of the issues was not made until the December 1, 1968, order, pursuant to the mandate of section 270 of the Act.

The factual situation is strikingly similar to Coats v. Coats, supra, decided by this court. Coats was a partition suit and we held therein that the decree for partition was not a final, appealable order because it determined fewer than all of the rights and liabilities at issue; and that until such time as the court entered an order approving the accounting of the proceeds of the sale, the prior orders in the action, absent a finding that there was no just reason for appeal, were not appealable.

Orwig v. Conely, 322 Ill 291, 153 NE 371 (1926) was a garnishment action in which the court found that the executor of an estate was indebted as garnishee to a certain creditor of a devisee of the estate. The court entered a conditional judgment in the sum of $2,000 and ordered that no final judgment in the garnishment action should be entered until final distribution was ordered in the estate. The executor appealed from this order. The Garnishment Act specifically provided that no final judgment shall be rendered against an executor until after the order of distribution has been made by the court. In dismissing the appeal, the court, at page 294, noted that the judgment rendered did not purport to be final “and by reason of the statute no final judgment could be rendered in the premises until after the entry of an order of distribution . . . .”

Section 270 of the Revenue Act by clear and unequivocal language directs that a final judgment setting aside the tax deed shall not be entered until the party seeking such relief shall make reimbursement to the deed holder. Tubbs v. Home Builders Inv. Corp., 330 Ill App 473, 483, 71 NE2d 913 (1947).

To constitute a final, appealable order, the order must terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit. Martin v. Masini, 90 Ill App2d 348, 353, 232 NE2d 770 (1967); Peach v. Peach, 73 Ill App2d 72, 78, 218 NE2d 504 (1966).

The order appealed from did not determine and fix the rights of the parties. By its very terms, and by the mandate of the statute, there could not be a final determination of the rights until such time as Goodrich either did, or did not, reimburse the defendants as directed. The order finding that this was in fact done, and determining the interests of the parties in the real estate, was the final, appealable order in the cause.

The order of February 1, 1968, which provided for the issuance of tax deed, was incontestable except by direct appeal, or in an appropriate case, by a proceeding under section 72 of the Civil Practice Act. Freisinger v. Interstate Bond Co., 24 Ill2d 37, 41, 179 NE2d 608 (1962); Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 394, 395, 155 NE2d 308 (1959).

In Glenn v. The People, 9 Ill2d 335, 137 NE2d 336 (1956), at page 340, the court pertinently stated:

“The purpose of a petition or motion under section 72 of the Civil Practice Act is to bring before the court rendering the judgment matters of fact not appearing in the record, which, if known to the court at the time the judgment was entered, would have prevented its rendition. (People v. Quidd, 409 Ill 137.) The error of fact which the writ may be employed to correct includes such matters as . . . insanity at the time of the trial; and a valid defense which existed in the facts of the case but which, without negligence on the part of the defendant, was not made, having been prevented through duress, fraud or by excusable mistake. (People v. Quidd, 409 Ill 137, at page 140; Schroers v. People, 399 Ill 428, at pages 434 and 435.) ”

Also see: McCord v. Briggs & Turivas, 338 Ill 158, 166, 170 NE 320 (1930); Chapman v. North American Life Ins. Co., 292 Ill 179, 185, 126 NE 732 (1920). Thus, we believe that the section 72 petition was properly filed herein.

Since there was no appeal from the order of February 1, 1968, or from the order of December 1, 1968, and since the appeal from the interlocutory order of October 25, 1968, was not pursuant to statute, Supreme Court rules, or existing law, this appeal should be dismissed.

Appeal dismissed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donovan L. Thingvold, Defendant-Appellant.
    Gen. No. 69-25.
    Second District.
    October 3, 1969.

      J. Daniel King, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and William R. Ben, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The petitioner, Donovan L. Thingvold, instituted this proceeding in February, 1968, by filing his petition in the Circuit Court of Winnebago County pursuant to paragraph 105-9, chapter 38, Ill Rev Stats of 1967, wherein he alleged that he had recovered from being a sexually dangerous person. He was adjudged a sexually dangerous person in 1962 and has been confined in the psychiatric division of the Illinois State Penitentiary at Menard since that time. He had filed several previous petitions wherein he had also alleged that he had recovered sufficiently to warrant his release.

After hearing all the evidence in the case, the court, sitting without a jury, denied the petition and recommitted the petitioner to Menard. He brought this appeal from that order.

The court heard the testimony of four psychiatrists— three of whom had previously been appointed by the court, and the fourth, a consulting psychiatrist in the Department of Public Safety. All of the psychiatrists, in one form or another, either stated that the petitioner had made some progress toward recovery and recommended his conditional release, or that it would be impossible to determine whether he had recovered if he remained at Menard, and that some type of conditional supervised release might be called for. The least favorable testimony of the psychiatrists was that of Dr. Robert A. Moore, who stated that the petitioner now appeared to be in the same condition as when he, Dr. Moore, had last examined him, but that if the petitioner were to remain at Menard, it would be impossible to determine whether he had recovered.

The court heard further testimony from laymen, including Vernon Schultz, who operated a farm in Stephenson County, Illinois. Schultz testified on direct examination that he had agreed to hire the petitioner if he were given a conditional release. On cross-examination, he stated that the hiring was conditioned on having some assurance that the petitioner was cured; and on redirect-examination he stated that it was his impression that the court would not be considering the petitioner’s release unless there were reasons to believe that he had recovered.

The court, at the suggestion of defense counsel, continued the hearing to enable counsel to determine whether a controlled environment could be arranged in connection with the defendant’s conditional release. None could be provided. The trial court was thus placed in the anomalous position of having before him a petitioner, who appeared to be no longer sexually dangerous and, who, therefore, was entitled to a conditional release, yet no provision had been made by the state to provide a structured environment for him where he would receive guidance and support during such conditional release. Under this posture of the case, the court denied the petition, and the petitioner was returned to Menard pending his appeal.

Section 105-9 of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, par 105-9) provides:

“An application in writing setting forth facts showing that such sexually dangerous person or criminal sexual psychopathic person has recovered may be filed before the committing court. Upon receipt thereof, the clerk of the court shall cause a copy of the application to be sent to the Director of the Department of Public Safety. The Director shall then cause to be prepared and sent to the court a sociopsychiatric report concerning the applicant. The report shall be prepared by the psychiatrist, sociologist, pyschologist and warden of, or assigned to, the institution wherein such applicant is confined. The court, shall set a date for the hearing upon such application and shall consider the report so prepared under the direction of the Director of the Department of Public Safety and any other relevant information submitted by or on behalf of such applicant. If the patient is found to have recovered the court shall order that he be discharged. If the court finds that the patient appears no longer to be sexually dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the court shall enter an order permitting such person to go at large subject to such conditions and such supervision by the Director as in the opinion of the court will adequately protect the public. In the event the person violates any of the conditions of such order, the court shall revoke such conditional release and recommit the person under the terms of the original commitment. Upon an order of discharge every outstanding information and indictment, the basis of which was the reason for the present detention, shall be quashed.” (Emphasis ours.)

Although proceedings under the statute are civil in nature, the possible loss of individual liberty requires that certain procedural safeguards normal to criminal prosecutions be followed, and that the statute be strictly construed. People v. Turner, 63 Ill App2d 353, 356, 211 NE2d 486 (1965). The language of the statute makes it mandatory upon the court to grant a conditional release when it appears that the petitioner is no longer sexually dangerous and a conditional release is necessary to fully evaluate whether or not there has been a total recovery. To interpret the statute otherwise would be to enable the state to forever hold in confinement, at the sole discretion of the officers of the state, a petitioner who had been previously found to be sexually dangerous. See: The People v. Olmstead, 32 Ill2d 306, 314, 205 NE2d 625 (1965); People v. Abney, 90 Ill App2d 235, 238, 232 NE2d 784 (1967).

In the light of the testimony of the four psychiatrists, we believe that any finding — other than that the petitioner appeared to be no longer sexually dangerous, but that a conditional release would be necessary to fully evaluate this finding — would be contrary to the manifest weight of the evidence. As hereinbefore stated, none of the psychiatrists stated definitely that he was still a sexually dangerous person, and all indicated that some type of release would be feasible.

The record indicates that at the time of the hearing and at the time of the argument on appeal, there were no facilities in this state in the nature of a “Halfway House” where those released under this section of the statute could gradually be reassimilated into society, while still under strict supervision and still receiving further counselling. In this respect, the provisions for release embodied in the statute lack the means for truly effective implementation.

However, since the argument of this case on appeal, a stipulation has been filed herein by the State’s Attorney and counsel for the petitioner, which indicates that the citizens of Rockford and Winnebago County, the Department of Public Safety and the Division of the Criminologist, operate a Community Treatment Center in Rockford at 1246 East State Street, known as “Genesis House Community Center,” which has been staffed to provide community support and guidance for inmates released from the Illinois State Penitentiary System; that Charles L. Young, the Supervisor of Genesis House, has advised that he, and the professional staff, would be willing to accept the petitioner in the program, and work with him through the Genesis House facilities and other community resources, with a view toward making him self-supporting and able to manage his own affairs in a prudent and law-abiding manner.

The language of the statute places the burden of supervision of such released person upon the Director of Public Safety. Therefore, we reverse and remand the cause to the trial court to hear further evidence relative to whether the Genesis House community center is a suitable and proper facility to provide a structured environment for the petitioner during the period of his conditional release. If the trial court finds that such facility is adequate and proper, then the court should enter an order permitting him to go at large, subject to such conditions and supervision by the Director of Public Safety as in the opinion of the court would adequately protect the public during the period of his conditional release; containing such further safeguard provisions as to the trial court may seem proper; and providing that in event the petitioner violates any of the conditions of the order of conditional release, the court will revoke the conditional release and recommit him under the terms of the original commitment.

Reversed and remanded with directions.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Dopak, Defendant-Appellant.
    Gen. No. 69-34. (Abstract of Decision.)
    Second District.
    October 6, 1969.
    Kevin P. Connelly, Public Defender, of Wheaton, for appellant; William V. Hopf, State’s Attorney, of Wheaton, for appellee.
   Opinion by PRESIDING JUSTICE MORAN. Not to be published in full.