author: MR. JUSTICE McNAMARA

text:
    Richard J. Daley, Local Liquor Control Commissioner of the City of Chicago, Plaintiff-Appellant, v. Andrew Richardson, Licensee, and the License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 51,734.
    First District, Second Division.
    December 17, 1968.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant.
    No appearance made or brief filed in behalf of appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

The City of Chicago appeals from a judgment of the Circuit Court of Cook County. The Mayor of the City of Chicago, in his capacity as Local Liquor Control Commissioner, on March 7, 1966, revoked the local liquor license of the licensee Andrew Richardson for the premises located at 3608 S. Wentworth Avenue, Chicago. On April 22, 1966, the Mayor’s order was reversed by the License Appeal Commission of the City of Chicago. The Mayor then filed an administrative review action in the Circuit Court of Cook County. The court entered judgment sustaining the order of the License Appeal Commission, and this appeal follows.

The City contends that the finding made by the Mayor upon which he based his order of revocation, was supported by substantial evidence in the record, and that neither the finding nor the order can be considered as being against the manifest weight of the evidence. Consequently, the City urges that the License Appeal Commission erred by reweighing the evidence and passing upon the credibility of the witnesses who appeared before the Mayor, and that the Circuit Court erred in sustaining the order of the Commission.

The appellees have failed to file an appearance or answering brief in this court. Although the reviewing court may reverse the judgment without further explanation where the appellees fail to submit the answering brief, Matyskiel v. Bernat, 85 Ill App2d 175, 228 NE2d 746 (1967), we have examined the record to determine the merits of the appeal.

At a revocation hearing before the deputy local liquor commissioner on March 1, 1966, Havord Evans testified that he and Bernice Lewis entered the tavern in question on the evening of August 28, 1965. While there, they quarrelled with each other. When he tried to get her out from behind the bar, the licensee Andrew Richardson started tussling with him. During the tussle, Richardson directed the bartender to shoot him. He heard a gun fire, was shot and was hospitalized. Evans also testified that he was unarmed. Bernice Lewis corroborated the testimony of Evans. She also testified that both the licensee and the bartender had guns, and that she asked Richardson not to shoot Evans.

Andrew Richardson, his wife, Jevy Mae Richardson, and the bartender Frank Huggins, all testified that Huggins shot Evans twice after Evans attacked Richardson, fired four shots into the ceiling and advanced on Huggins, threatening to kill him.

The only gun recovered by the police on the premises was one owned by Richardson, and Richardson stated that it was this gun which was used by the bartender.

After this hearing, the Mayor revoked the liquor license issued to Andrew Richardson. The revocation order contained a finding that on August 28, 1965, Frank Huggins, bartender, assaulted a patron with a revolver in violation of the ordinances of the City of Chicago and statutes of the State of Illinois.

The Illinois Liquor Control Act expressly gives the Mayor as Local Liquor Control Commissioner the power to revoke for cause any local liquor license (Ill Rev Stats 1965, c 43, § 112(1)). And the courts consistently have upheld the right of the Mayor to reasonably exercise his discretion to determine whether cause for revocation of a local liquor license exists. Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 73 (1956) ; Day v. Illinois Liquor Commission, 39 Ill App 2d 281, 188 NE2d 883 (1963).

The Administrative Review Act (Ill Rev Stats 1965, c 110, § 274) provides that the factual conclusions of the administrative agency shall be held to be prima facie true and correct, and the function of the courts is limited to assert if the findings and decision of the administrative agency are against the manifest weight of evidence. DeGrazio v. Civil Service Commission of the City of Chicago, 31 Ill2d 482, 202 NE2d 522 (1964).

The Liquor Control Act (Ill Rev Stats 1965, c 43, § 153) authorizes the License Appeal Commission to act solely as an administrative reviewing agency after revocation by the Local Liquor Commissioner and provides in part as follows:

“The State Commission shall review the propriety of the order or action of the local liquor control commissioner and shall consider the following questions:
“ (a) whether the local liquor commissioner has proceeded in the manner provided by law;
“(b) whether the order is supported by the findings;
“(c) whether the findings are supported by substantial evidence in the light of the whole record.
“The only evidence which may be considered in the review, shall be the evidence found in the certified official record of the proceedings of the local liquor control commissioner. No new or additional evidence shall be admitted or considered.”

The right of the License Appeal Commission to review the findings and orders made by the local liquor commissioner after revocation is comparable to the scope of review of the courts in administrative review matters. The License Appeal Commission may not receive new evidence, is limited in its review to the record presented to the Local Liquor Control Commissioner and to a determination of whether there was substantial evidence to support the findings of the Local Commissioner. Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 211 NE2d 778 (1965). Because of the limited nature of the authority of the License Appeal Commission, the sole issue presented to this court is whether the Mayor’s findings and order of revocation were supported by substantial evidence in light of the entire record made before him.

In the instant case, the findings and order of the Mayor were supported by substantial evidence. The Mayor saw fit to accept the testimony of Havord Evans and Bernice Lewis and to reject that of the licensee, his wife and the bartender. Such action was proper on the part of the Mayor because as trier of fact he had all the witnesses before him and was able to observe them and to judge by their bearing and demeanor the credibility of their testimony. There was sufficient evidence to show that the licensee Andrew Richardson, through the acts of his employee, assaulted and wounded a patron while on the licensed premises. There was also testimony that this assault by the bartender was at the direction of the licensee. However, even if it were determined that the licensee had not given such instructions, the Liquor Control Act (Ill Rev Stats 1965, c 43, § 185) holds the licensee strictly accountable for all violations committed by his employees on the premises. This assault was in contravention of the law, and constituted sufficient cause for the revocation of the defendant’s liquor license.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is reversed and the cause is remanded with directions to the court to affirm the order of the Local Liquor Control Commissioner.

Judgment reversed and cause remanded with directions.

BURKE, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    Eugene H. Garofalo and Emma V. Garofalo, His Wife, Plaintiffs-Appellants, v. General Motors Corporation, a Delaware Corporation, Authorized t/d/b in the State of Illinois, and Larry Faul Oldsmobile Company, an Illinois Corporation, Defendants-Appellees, Rossetti Contracting Company, Inc., an Illinois Corporation, Defendant.
    Gen. No. 52,411.
    First District, Second Division.
    December 17, 1968.

      Salvatore E. Oddo, of Chicago, for appellants.
    McKenna, Storer, Rowe, White & Haskell, of Chicago (Donald M. Haskell, of counsel), and Baker & McKenzie, of Chicago (Francis D. Morrissey, Thomas R. Nelson, and William Joseph Linklater, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This was an action to recover damages for personal injuries sustained by Eugene Garofalo when the automobile he was operating left the highway after he was allegedly rendered unconscious due to a defect in the exhaust system or the fuel intake system of the vehicle. On motion of defendants-appellees the trial court struck the answers to certain interrogatories propounded by one of the defendants-appellees, struck the amended complaint, and dismissed the action as to both defendantsappellees. Plaintiffs maintain that the answers to the interrogatories in question and the information contained in the amended complaint sufficiently and reasonably informed defendants-appellees of the matters they were called upon to meet.

The original complaint, consisting of seven counts, was filed on September 27, 1963, and alleged that on August 19, 1961, Eugene Garofalo purchased a new Oldsmobile automobile from Larry Faul Oldsmobile Company, the same having been manufactured by the General Motors Corporation. The complaint further alleged that Eugene Garofalo was operating the vehicle at approximately 3:00 a. m. on the morning of October 7, 1961, when he was rendered unconscious by carbon monoxide or gasoline fumes caused by a defect in the automobile. The vehicle left the road, struck a ditch and overturned, causing the injuries complained of. It was further alleged that Eugene Garofalo had made complaint on several occasions prior to the mishap to representatives of Faul Oldsmobile of the presence of the fumes inside the vehicle and that employees of Faul Oldsmobile were instructed to locate the source of the fumes. Garofalo’s wife, Emma, joined in the complaint for loss of consortium.

The original complaint named as defendants the General Motors Corporation and Larry Faul Oldsmobile Company (hereinafter referred to as “defendants”), and a construction firm which was in the process of making highway repairs at the place where the mishap occurred. On motions of General Motors and Faul Oldsmobile, several of the counts of the original complaint were stricken on February 19, 1964, and plaintiffs were given 45 days within which to file an amended complaint. No amended complaint was filed within the time prescribed in the order and on August 25, 1964, the trial court entered an order requiring plaintiffs to file an amended complaint within 30 days. On November 23,1964, on motion of General Motors, the action was dismissed as to that defendant for plaintiffs’ failure to comply with the order of August 25th. It should also be noted that interrogatories served upon plaintiffs in January 1964 by Faul Oldsmobile went unanswered.

On December 7, 1964, General Motors filed a motion that the order of dismissal of November 23rd be vacated. Four days later, by leave of court, plaintiffs filed their amended complaint, consisting of three counts, against the three defendants named in the original complaint, to which all three defendants filed answers. The construction firm filed a motion for summary judgment, accompanied by affidavits, in March 1965 and plaintiffs were ordered to file counteraffidavits within 30 days. Hearing on the motion for summary judgment was continued from time to time and plaintiffs were again ordered to file counteraffidavits within 30 days from date, which they again failed to do. On September 9, 1965, the trial court granted the construction firm’s motion for summary judgment after plaintiffs failed to file any pleadings, affidavits, or other matters in connection therewith.

A notice to admit facts, among which was that plaintiffs had no knowledge of the specific defect which caused the condition in the Garofalo automobile complained of, was served upon plaintiffs by General Motors on February 16,1965; plaintiffs filed no response thereto.

In addition to the aforementioned notice to admit facts, plaintiffs were also served with the interrogatories in question requesting, among other information, the specific defect in the Garofalo automobile which was the cause of the condition complained of. Ten months later, in December 1965, a motion was filed by General Motors, which was later joined in by Faul Oidsmobile, to strike the amended complaint for failure of plaintiffs to answer the interrogatories. The trial court, however, entered an order requiring, inter alia, plaintiffs to file answers to the interrogatories within 30 days from date. On March 14, 1966, on motion of General Motors, the trial court struck the amended complaint and dismissed the action as to General Motors for the reason that plaintiffs failed to answer the interrogatories as previously ordered. The trial court vacated the March 14th order on April 12, 1966, on motion of plaintiffs, and allowed plaintiffs to file their answers to the interrogatories instanter.

In response to the interrogatories relating to the specific defect in the Garofalo vehicle which caused the condition complained of, plaintiffs submitted such answers as: “gasoline—gasoline fumes smell in the inside of vehicle,” “seepage of gasoline fumes in the inside of vehicle,” “res ipsa loquitur—smell and fumes of gasoline in the inside of vehicle,” and the like. General Motors filed a motion to strike such answers to the interrogatories on the ground that they were unresponsive and evasive. Hearing on the motion to strike was continued from time to time and on August 1, 1966, plaintiffs were allowed 60 days within which to file supplemental answers to the interrogatories in question, which were filed on October 25,1966.

The supplemental answers were again objected to by defendants as unresponsive and providing no more information than did the answers originally filed. The defendants’ accompanying motion to strike the supplemental answers and to dismiss the action was denied and defendants were given leave to file additional interrogatories. Plaintiffs were ordered to file answers to the additional interrogatories within 30 days of service of them on plaintiffs.

The additional interrogatories were served upon plaintiffs on January 10, 1967, again requesting plaintiffs to state the specific defect in the Garofalo automobile which was the cause of the condition of which they complained. The additional interrogatories went unanswered, and defendants filed a motion on March 27, 1967, requesting the trial court to dismiss the amended complaint for plaintiffs’ failure to file answers to the additional interrogatories as ordered by the court. Although not appearing in the common-law record, plaintiffs apparently thereafter filed answers to the additional interrogatories. Defendants again filed a motion to strike certain of the answers to the additional interrogatories, among which were again the answers pertaining to the specific defect, as being unresponsive and as giving no more information than did the prior answers which were objected to. Defendants also moved for a dismissal of the action. The trial court allowed the motion, struck the answers to the designated interrogatories, struck the amended complaint and dismissed the action as to all parties.

The unreasonable failure to comply with the rules and orders regarding pretrial discovery may result in the imposition of sanctions by the trial court against the party at fault. Illinois Supreme Court Rule 219. The sanction imposed rests largely within the sound discretion of the trial court; the court may enter such orders as are just, including the striking of any portion of the pleadings of the party at fault relating to matters at which the discovery is directed with which the party has failed to comply, and a consequent dismissal of the action. Payne v. Payne, 31 Ill App2d 141, 175 NE2d 614; Granger v. Turley, 20 Ill App2d 488; Illinois Supreme Court Rule 219(c). A review of the record reveals no abuse of discretion by the trial court in striking answers in question and the amended complaint, and in dismissing the action.

Plaintiffs’ answers to the interrogatories in question were unresponsive and evasive. An automobile may leave a highway for any number of reasons, such as drowsiness or intoxication on the part of the driver, a defect in the roadway, excessive speed, and the like. The facts in this case do not permit the application of the doctrine of res ipsa loquitur in that a defect in the vehicle is not the sole circumstance which could have rendered Eugene Garof alo unconscious, nor is it the sole reason the vehicle could have left the highway. (See Shramek v. General Motors Corp., 69 Ill App2d 72, 216 NE2d 244.) It was therefore incumbent upon plaintiffs to designate the specific defect in the automobile which caused the condition, rather than describing the defect in terms of the condition it allegedly created, namely, gasoline fumes inside the vehicle.

The complaint was filed nearly two years after the mishap, and the first interrogatories pertaining to the specific defect were filed over three years after the mishap. What became of the automobile after the accident does not appear of record; whether plaintiffs are able to designate a specific defect in the vehicle is open to conjecture. It should be noted that, for purposes of this appeal, plaintiffs admitted they knew of no such specific defect by their failure to respond to the notice to admit facts filed by one of the defendants, which included the admission that plaintiffs had no such knowledge. Illinois Supreme Court Eule 216(c). The unresponsive answers to the interrogatories in question bear this out.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMAEA and SCHWAETZ, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellant, v. Raymond J. Kuhn, Defendant-Appellee.
    Gen. No. 52,634.
    First District, Second Division.
    December 17, 1968.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas M. Burnham, Assistant State’s Attorneys, of counsel), for appellant.
    No appearance made or brief filed in behalf of appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

On September 20, 1966, Raymond J. Kuhn was arrested and charged with driving a motor vehicle with a load 6,660 pounds in excess of the maximum allowable under the provisions of Ill Rev Stats 1965, c 95%, § 228. On that day he executed a bail bond and was released from custody. The case was postponed from time to time by judges hearing nonjury cases. On March 1, 1967, the defendant said he wanted a trial by jury. The case was set for March 7, 1967. Thereafter the case was continued by

order of court or on motion of the People until July 26, 1967, when the defendant moved for discharge under the provisions of Ill Rev Stats 1965, c 38, § 103-5. Defendant asserted that 120 days or more had elapsed since he filed his “demand for trial.” On July 26, 1967, the court sustained defendant’s motion to dismiss and discharged him. The People appealed. The defendant has not appeared or filed a brief.

We are of the opinion that the People are right in their position that the defendant’s indication that he would not waive a jury trial did not constitute a demand for an immediate trial and that as he was at liberty on bond at all times subsequent to his arrest, he was not entitled to be discharged. The State’s Attorney relies on People v. Baskin, 38 Ill2d 141, 230 NE2d 208. In Baskin the defendant appealed, complaining that his constitutional right to a speedy trial had been violated. The court said at page 145, “In the present case the defendant was at liberty on bond at all times subsequent to the filing of the complaint. The original request for a jury trial cannot be considered as a demand for immediate trial, but only a demand that when trial was held it would be before a jury.” It was incumbent upon the defendant to make a demand for trial in order to avail himself of his statutory right to a speedy trial. No such demand appears in the record. Therefore the order dismissing the complaint and discharging the defendant is reversed and the cause is remanded with directions that it be reinstated and for further proceedings.

Order reversed and cause remanded with directions.

MCNAMARA and LYONS, JJ., concur.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Douglas C. Miezio, Defendant-Appellee.
    Gen. No. 68-78.
    Second District.
    December 18, 1968.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and J. Michael Fitzsimmons, Jr., Assistant State’s Attorney, for appellant.
    No brief filed or appearance made in behalf of appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from the Circuit Court of DuPage County. Defendant was charged with driving an automobile while his license was suspended, a violation of section 6-308, chapter 95%, Ill Rev Stats. At the time of the trial, the defendant moved to suppress the evidence and dismiss the complaint on the authority of the recent decision of this court in People v. Harr, 93 Ill App2d 146, 235 NE2d 1. This motion was granted and the State prosecutes this appeal.

On the night of March 4, 1968, at approximately 11:00 p. m. the defendant, Douglas C. Miezio, was operating his automobile on Main Street in the Village of Glen Ellyn in DuPage County. A police officer of that village noticed that the car bore no license plates and stopped the car for that apparent traffic violation. Defendant had just purchased the car and had applied for license plates. Defendant, however, could not produce his driver’s license and a check with the Secretary of State’s office revealed that his driver’s license had been suspended effective December 6, 1964, under the provisions of the Financial Responsibility Law, chapter 95%, section 7A-101, et seq. (Ill Rev Stats). Defendant did not have a license or a permit to operate a motor vehicle in the State of Illinois.

On this appeal no appearance or brief has been filed by the appellee. When a party who prevails in the trial court does not appear or file a brief, the court is authorized to reverse and remand the case without further consideration or discussion. Latronica v. Latronica, 97 Ill App2d 332, 333, 240 NE2d 458. Such result, however, is not required.

As we mentioned, the trial court dismissed this action based on our recent decision in People v. Harr, supra. In that case the police officer had observed the defendant’s motor vehicle coming out of an area adjacent to a gas station that had been closed for the night. The arresting officer stated the vehicle and driver appeared suspicious, and, since he had not seen the vehicle in the vicinity before, he made a routine stop to determine who the defendant was, where he was going and where he had been. He arrested the defendant for failure to have a driver’s license when the license produced by the defendant proved to be an expired license. The State on appeal relied upon the provisions of chapter 95%, section 6-118 (Ill Rev Stats 1965), which provisions in substance provide that every licensee shall have his license in his immediate possession at all times and shall display it upon request. In attempting to justify requiring defendant to produce his license based on that statutory provision, it was apparent, however, that the police officer had not stopped the defendant for the purpose of enforcing that section of the motor vehicle law or for any other section of the motor vehicle law.

That case, as the one before us, involves the question of reasonable search and seizure and the constitutional protection from unreasonable search and seizure which every citizen has the right to enjoy under the Fourth Amendment to the U. S. Constitution. In the Harr case there had been no violation of either Federal, State or local law. In the case before us, the defendant was driving a motor vehicle without license plates, a violation of the Illinois motor vehicle law. While the charges against him were only that he was driving without an operator’s license, we should note that not only had his operator’s license been suspended, the State had also suspended his right to own license plates for an automobile and the right to have an automobile registered in his name. The suspension of these rights was still in effect at the time of the arrest.

We believe that the distinguishing feature between the instant case and the Harr case is one that was drawn very clearly in Terry v. Ohio, 392 US 1, 20 L Ed2d 889, 907, 88 S Ct 1868. In that case it was pointed out that the crux of the case was not the propriety of the arresting officer to investigate petitioner’s suspicious behavior, but rather whether there was justification for the invasion of petitioner’s personal security by conducting a search. In the Harr case we held that the demand to produce a driver’s license was in effect an invasion of petitioner’s personal security and that the suspicions of the officer were based on an unparticularized suspicion or a hunch that the defendant may have been up to no good. The officer’s conduct must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures. In short, the question in applying the test of reasonableness is whether the facts available to the officer at the moment of seizure or search were such as to warrant a man of reasonable caution to believe that the action taken was appropriate.

In People v. Galloway, 7 Ill2d 527, 535, 131 NE2d 474, the test was stated as follows:

“The belief induced in the mind of an officer must be a reasonable belief and must appear on subsequent inquiry to have been founded on such facts as would, in the mind of a reasonable man, give rise to a suspicion that the prisoner is guilty of or implicated in a crime. A mere suspicion in the mind of an officer not so supported will not justify a search.”

Therein lies the distinction between the Harr case and the case before us. In the Harr case, there was at most a “mere suspicion in the mind of an officer.” The officer in the case before us had what appeared to be and was in fact a clear violation of the law.

In People v. Brown, 38 Ill2d 353, 358, 231 NE2d 577, the arresting officer stopped the driver of an automobile for lack of license plates. He further discovered that the driver had neither a driver’s license nor a certificate of registration for the automobile. In the back seat the officer discovered merchandise which the driver could not readily explain. A search of the trunk of the car revealed stolen merchandise and the defendants were found guilty of theft. On appeal to our Supreme Court, the sole issue was whether defendant’s motion to suppress the evidence, that is, the stolen merchandise, should have been allowed. In that case the Court concluded after examining the record that the arresting officer had valid reason to suspect at the very least that the automobile driven by defendant had been stolen and it was the duty of the officer when confronted with such circumstances to investigate to determine whether criminal activity in fact existed.

To sustain the lower court on the facts before us would go directly contrary to People v. Brown, supra, and Terry v. Ohio, supra. The decision of the lower court to suppress the evidence and dismiss the charge is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

MORAN and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Cletus Ward, Sammy Gene Baker, and Le Grand Hatfield (LeGrand Hatfield, Impleaded), Defendants-Appellants.
    Gen. No. 68-86.
    Second Judicial District.
    December 18, 1968.

      Miller, Hickey, Collins, Gilbert & Powers, John P. Graves, Jr., and Gilbert, Powers & Graves, of Rockford, for appellants.
    William R. Nash, State’s Attorney, of Rockford, and Keith S. Morse, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, LeGrand Hatfield, was sentenced to the Illinois State Penitentiary at Joliet for a period of not less than two nor more than seven years, having been found guilty of Armed Robbery by the Circuit Court of Winnebago County. The case had been submitted to the court on a plea of not guilty with a trial by jury waived.

The questions presented for review are whether the verdict was a result of the consideration by the court of incompetent evidence, prejudicial to defendant, and whether there was sufficient evidence to sustain the conviction.

LeGrand Hatfield was a licensed pharmacist in the State of Illinois. In 1961 he had been committed by his subsequently estranged wife to the East Moline Hospital as an alcoholic. Within two weeks after his discharge, he apparently returned to excessive use of alcoholic beverages.

On August 17, 1962, defendant purchased a gun. This gun was introduced as an exhibit by the People in the trial below. On August 22, 1962, a tavern known as the Tenstopet, located in Winnebago County, was robbed at gunpoint by one Sammy Gene Baker. The evidence shows that the defendant, LeGrand Hatfield, had met Sammy Gene Baker earlier on the evening of August 22 at a tavern known as the Huddle Inn. A considerable amount of alcohol was consumed by defendant at that tavern. Defendant and Baker went from there to the Rockford Tap, where additional alcoholic beverages were consumed by both parties. At some point during the evening Robert Cletus Ward joined the defendant and Baker. From the Rockford Tap the three went to the Tenstopet in defendant’s car which defendant drove. He parked the car about a half block away. When they arrived, Baker left the car, entered the tavern and, at gunpoint, demanded and received the money in the cash register. The defendant and Ward stayed in the car. Baker returned to the car and told the defendant to start moving. A police vehicle in the vicinity of the Tenstopet at the time of the robbery shortly thereafter stopped defendant’s automobile. Ward was found to have a large amount of money in his possession. The police also found in the car the gun which defendant had purchased several days prior. The gun was loaded.

Defendant signed a statement on August 28, 1962, while in the custody of the police in the City of Rockford. The substance of the statement was that he, Ward and Baker had been drinking together on the night of August 22, that:

“. . . We got to talking and decided to go out to the Tenstopet tavern and hold up the place. I had a gun that I had bought at Stern’s Pawn Shop on West State Street. It is a .32 cal. automatic with serial number 89161. I bought this gun last week. We were going to use this gun to hold up the Tenstopet. I had a clip full of shells and the gun was loaded

The statement further indicated the defendant drove his car to the tavern; that Baker took the gun, went into the tavern and, some 20 minutes later, returned and said, “Let’s go.”

After a bench trial, the court rendered judgment finding defendant guilty of having participated in this armed robbery. A petition for probation was denied, and at the time of sentencing, the court asked the defendant if he had anything to say before the sentence was passed. The defendant replied that he didn’t know anything about the crime until after it had been committed. The court responded that it felt from the evidence that he had been a party to the robbery; that it was his car and his gun. The court further stated:

“. . . I think there was another robbery . . . committed by the same parties under the same circumstances, but which I am not considering here.”

Sentence was then pronounced.

The written statement signed by defendant on August 23,1962, was admitted into evidence without objection by defendant’s counsel. The defendant takes the position that without the statement there is insufficient evidence to find him guilty and that because of his intoxicated condition, little or no weight should be given to this statement. It appears from the record that within a day or two after giving this statement and after being transferred to the County Jail, defendant became unconscious and remained so for four days, suffering from delirium tremens.

An employee of the tavern testified that Baker came in and at gunpoint demanded and received the available money. The evidence further discloses that defendant and Ward stayed in the car and that when Baker returned, he told defendant to start moving. The robbery took approximately 20 minutes. A police officer testified that he was cruising in a squad car in the vicinity of the Tenstopet tavern when he received a call that a robbery was in progress. He said that as he approached the tavern he saw someone come out and get into a parked and waiting car. The car drove off and was stopped by the police within three blocks of the tavern.

Defendant first contends that the statement signed by him is a statement and does not constitute a “confession,” as it does not contain all of the necessary elements of the crime. Defendant urges that the statement does not explicitly state that while Baker was in the tavern he committed the offense charged. We agree that a confession must admit all the necessary elements of the crime. People v. Sowell, 56 Ill App2d 110, 117, 205 NE2d 487. We do not deem it necessary, however, to determine whether the statement made by the defendant constitutes a confession, for we cannot agree with defendant’s next contention, that since it is only a statement and since defendant is a known alcoholic who had been drinking heavily on the day of the crime, the trial court should have disregarded this statement. The evidence before the trial court was that the defendant purchased a gun several days before the robbery, that on the day of the robbery he and two companions, after considerable drinking, decided to rob the Tenstopet tavern and that Baker, using the defendant’s gun, went in and committed the robbery. We do not find that defendant’s admissions stand alone as evidence against him in this case. The Supreme Court in People v. Mowry, 6 Ill2d 182, 138, 126 NE2d 683, stated:

“They are, rather, supported and augmented by evidence both direct and circumstantial, as previously related. Evidence of either quality, being competent to prove the essential elements constituting the crime of receiving stolen goods, (citation omitted) must also be deemed competent to support the admissions of one so charged. The same may be said of defendant’s argument that proof of the corpus delicti is based solely upon his admissions. While a mere naked confession or admission is not sufficient to convict, it is not essential that the corpus delicti should be established by evidence independent of that which tends to connect the accused with its perpetration. The same evidence which tends to prove the one may also tend to prove the other, thus permitting the existence of the crime and the defendant’s guilt to stand inseparably on one foundation of evidence. (Citation omitted.) It matters not that such a foundation is composed of circumstantial evidence. (Citation omitted.) When the proof in the record, previously discussed, is evaluated in these terms, it is apparent that all the evidence is sufficient to establish each and every element of the corpus delicti.”

A reviewing court should not reverse a conviction founded on the decision of the trial court unless the evidence is

“so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt of the defendant’s guilt.” People v. Uselding, 85 Ill App2d 323, 326, 230 NE2d 1. We are of the opinion that the evidence in the case at bar is sufficient to sustain the determination of the trial court.

Secondly, the defendant urges that the conviction be set aside because the trial judge considered improper evidence. At one point the trial judge asked the State’s Attorney if the defendant had a prior record. The reply was, “Yes, but not involving a felony.” Next, just prior to sentencing, the court made the statement concerning the question of a prior robbery, which the court specifically stated it was not considering in the sentence it was about to impose. Defendant relies heavily upon the case of People v. Smith, 38 Ill2d 237, 240, 231 NE2d 185. In that case the question was whether it was prejudicial to admit testimony that the defendant was a user of narcotics. The trial court held that this evidence was admissible as it went to the credibility of the defendant. The Supreme Court in reversing held that obviously the trial court had considered the evidence. In that case the court stated at page 240:

“But we are unable to agree with the appellate court’s statement that ‘We have reviewed the record and found that the trial judge did not give weight to the evidence relating to the defendant’s use of narcotics in arriving at his judgment . . . .’ The trial judge admitted the evidence on the ground that it ‘goes to the credibility of the witness,’ and we have found nothing in the record to suggest that he did not consider it for that purpose.”

From our review of the record before us, it is our conclusion that there was no prejudicial error and that the proof was sufficient, if believed by the trier of the fact, to support the conviction. Where a jury trial is waived, the determination as to where the truth lies is the obligation of the trial judge. It often has been held that the finding of the trial court must stand unless the reviewing court can say that the proof is so unsatisfactory as to justify the reviewing court to entertain a reasonable doubt of defendant’s guilt. We, therefore, will not disturb the decision of the trial judge. People v. Perkins, 26 Ill2d 230, 235, 186 NE2d 330.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Eleanor K. Genung and Eleanor K. Genung, as Administrator of the Estate of Gilbert M. Genung, Deceased, Plaintiff-Appellant v. Phyllis Hagemann, Richard W. Gilson, William Gilson and Richard W. Gilson, as Administrator of the Estate of Irene Gilson, Deceased, Defendants-Appellees.
    Gen. No. 68-106.
    Second District.
    December 18, 1968.

      Berry & O’Conor, of Streator, for appellant.

      C. Robert Ohse and Dallas C. Ingemunson, of York-ville, and Schreiber, Mack & Pieper, of Chicago, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from a declaratory judgment involving the interpretation of an antenuptial agreement. The trial court, ruling on a motion to strike the complaint, entered its decree and judgment on the merits, interpreting the contract, and holding that the plaintiff was entitled to a life estate in the real estate owned by the decedent and to the proceeds of an insurance policy, but was barred by the antenuptial agreement from inheriting an intestate’s share of decedent’s estate.

The ruling by the trial court admitted the pleaded facts that the decedent and his wife, the plaintiff, had entered into an antenuptial agreement before their marriage and that each had been married before and each had children by the previous marriage. It was also admitted that the decedent died intestate and that he did not make the plaintiff the beneficiary of the insurance policy.

The Agreement provided:

“ANTENUPTIAL CONTRACT

“This antenuptial contract entered into this 14th day of December, A. D., 1960, between Gilbert M. Genung, hereinafter for convenience referred to as husband, and Eleanor K. Kauth, hereinafter for convenience referred to as wife, witnesseth:
“1. Husband and wife intend to marry each other soon, and it is agreed that after such marriage, all the properties of any name or nature, real, personal or mixed, wherever they may be found, belonging to the husband before marriage shall be and remain forever, his personal estate, and that this shall in-
elude all interest, rents and profits which may in time accrue or result in any manner from increase in value, or be collected for the use of the same in any way.
“2. All properties of any name or nature, real, personal or mixed, wherever the same may be found which belong to wife before marriage shall be and remain forever her personal estate, and this shall include all interest, rents and profits which may in time accrue or result in any manner from increase in value, or be collected for the use of the same in any way.
“3. Each party agrees to sign with the other all title papers, deeds or other papers, necessary to transfer property when sold to a purchaser, as such title papers are usually executed by a man and wife in the State of Illinois.
“4. Husband agrees to, from his own personal estate, assume necessary expense of support and maintenance of wife.
“5. Nothing herein shall be construed to be a bar to either party to this agreement, giving any property of which they may be possessed to the other party by Will or otherwise. Each party to this agreement shall control their personal estate, as described herein, and do with the properties thereof whatsoever they wish and will, by his or her orders or directions, or by Will, the same as either party could or would do if no marriage relation existed between them, except that the husband agrees that he will devise to the wife, a life interest for and during the period of her natural life only, in his twenty-six acre farm located approximately three (3) miles West of Yorkville on North River Road.
“6. It is also agreed that the husband has a policy of insurance in the amount of Two Thousand ($2,000.00) Dollars in the Modern Woodman of America, policy # E 245 202. He will make the wife beneficiary of this policy of insurance and the proceeds of said insurance are to be used, first for the payment of the husband’s burial expenses, and any balance is to go to the wife as beneficiary of the policy as her own property. The husband also has a policy of insurance in the amount of Six Thousand ($6,000.00) Dollars, which was taken out through the Public Service Company when he was employed by that company. The husband will make the wife beneficiary of this Six Thousand ($6,000.00) Dollar insurance policy with Group 2025—Certificate E 61, Policy #_and the proceeds of said policy shall belong to the wife as her separate property in the event of the death of the husband. All other insurance and other property of the husband, may be left by him to his own children.
“IN WITNESS WHEREOF the parties hereto have set their hands and seals the day and year first above written.
GILBERT M. GENUNG (s) (SEAL)
HUSBAND
ELEANOR KAUTH (s) (SEAL)
WIFE”

It was further admitted that the decedent married the plaintiff some days after the execution of the agreement and that they thereafter lived together as husband and wife until the death of decedent on August 16th, 1964; and that a certain twenty-six acre farm was inventoried in the decedent’s estate, being the same farm which he had owned at the time of the marriage.

Plaintiff’s position is that the right of the wife to inherit from her husband will not be taken away by an antenuptial contract unless the intention to do so is clearly apparent, and that it is not clearly apparent from the agreement. She also contends that the beneficiaries of the insurance policy hold the proceeds in trust for her rather than it being an obligation of the estate.

Rules governing construction and interpretation of contracts generally apply to the construction of an antenuptial agreement, and the contract should be considered in its entirety to ascertain its general scope or purpose in order to determine the real intention of the parties. Guhl v. Guhl, 376 Ill 100, 109-110, 33 NE2d 185 (1941); VanCura v. Drangelis, 43 Ill App2d 205, 210, 193 NE2d 201 (1963). The marital rights of a husband and a wife will not be taken away by an ante-nuptial agreement unless the intention to do is clearly apparent. Baughman v. Baughman, 283 Ill 55, 68, 119 NE 49 (1918); Seuss v. Schukat, 358 Ill 27, 35, 192 NE 668 (1934). Inheritance is not barred where there is no language in the agreement which recites that the provisions therein are to be in satisfaction of inheritance as an heir. Christy v. Marmon, 163 Ill 225, 231, 45 NE 150 (1896). A right in the estate of a spouse can be relinquished without the use of precise words to that effect, providing the contract contains language sufficiently comprehensive to show that it was the intention of the parties to release such a right in an antenuptial agreement. Collins v. Phillips, 259 Ill 405, 411, 412, 102 NE 796 (1913); Guhl v. Guhl, supra, at page 110.

The agreement before us contains no provision expressly releasing the marital rights or rights of inheritance of Eleanor K. Genung, the widow. The defendant claims, however, that certain language in the agreement clearly shows an intention to release the statutory right to inherit from the other spouse. Particular reference is made to the provisions of paragraph 1 that the property belonging to the husband before the marriage “shall be and remain forever his personal estate”; that either may do with the properties thereof “whatsoever they wish and will, by his or her orders or directions, or by Will, the same as either party could or would do if no marriage relation existed between them,” in paragraph 5 of the agreement; and finally the language in paragraph 6 of the agreement, “all other insurance and other property of the husband, may be left by him to his own children.”

The plaintiff argues that the agreement contains no provision that is broad enough to be interpreted as an implied release or waiver of the marital rights or rights of inheritance of the widow. She argues that the express provisions of paragraph 5 of the agreement that “nothing herein shall be construed to be a bar to either party to this agreement, giving any property of which they may be possessed to the other party by Will or otherwise” is sufficiently broad to include the case of expressly refraining from making a will and thereby giving property according to the Statute of Descent. Plaintiff further argues that the fact that the agreement purports to operate only on the property of the parties owned or acquired prior to the marriage and not on all of the property owned at the time of death further indicates that a broad waiver of the right of inheritance was not intended.

Since no evidence was taken we are, in effect, limited to the language used in the agreement without attendant circumstances which might have aided in construing the intention of the parties to the agreement. However, from the agreement it is clear that, in paragraphs 1 and 2, the parties were contracting to segregate their respective properties owned at the time of the intended marriage and to free them “forever” from the legal rights which would otherwise belong to the other spouse as an incident of the marriage relationship. This is further made clear by the second sentence of paragraph 5 of the agreement providing that each party “shall control” their separate properties as if no marriage relationship existed; and by the last sentence of the agreement that “other property” of the husband “may be left by him to his own children.”

In Luttrell v. Boggs, 168 Ill 361, 362, 48 NE 171 (1897), a separation agreement expressly released all interest each party had in the property possessed by the other at the time of the marriage. Although there was no express waiver of the right of dower or the right to take as an heir, the court held such rights were effectively released by the agreement. While it might be argued that there is a different intendment in the execution of a separation agreement than there is in the execution of an antenuptial agreement, we perceive that fact to be but one of the attendant circumstances to an interpretation of an agreement, and the essential rules of construction remain the same.

In Wetsel v. Firebaugh, 258 Ill 404, 407, 101 NE 602 (1913), an antenuptial agreement provided that “neither party shall, by reason of said marriage, have any right, title or interest in the property of the other during their joint lives or thereafter” (emphasis added). The court held that the language used in the agreement was broad enough to exclude any right or interest of the spouse in the property.

We cannot find a meaningful distinction between the word “forever” found in paragraphs 1 and 2 of the agreement before us, and “or thereafter” as used in the agreement before the court in Wetsel. “Forever” is defined as “throughout eternity; endlessly; for always . . . .” Webster’s New Twentieth Century Dictionary, 2nd Ed, Unabridged.

In Collins v. Phillips (supra), the court (at page 411) considered language that provided that neither party would claim any interest in the other’s property either during “lifetime or upon her death,” and the further language “just as though such marriage should not take place,” as releasing the right to inherit although the agreement did not specifically bar such right, citing Wetsel v. Firebaugh, supra.

We, therefore, find that the agreement in this case contains provisions broad enough to be interpreted as an implied release or waiver of the marital rights of the widow, Eleanor K. Genung, including the right to inherit.

Plaintiff also claims, however, that the widow is entitled to take by intestacy under the express terms of paragraph 5 of the agreement. This provides that “nothing herein shall be construed to be a bar to either party to this agreement giving any property of which they may be possessed to the other party by will or otherwise” (emphasis added). Defendants argue that the latter clause is intended to mean that an affirmative act of either making a will or inter vivos gift is required, and the trial court so found.

We believe that the trial court was correct in its interpretation. The first sentence of paragraph 5 must be read together with the sentence which follows it and construed with the entire agreement. The statement that either party may give property to the other is followed by the statement that each shall “control” their personal estate and do with it “whatsoever they wish and will, by his or her orders or directions, or by will . . . .” (Emphasis added.) We believe this indicates an intention that an affirmative act of ordering, or directing, or making a will, is intended if the other is to take property over which he or she has by the agreement given up all rights. We do not construe the agreement to mean that a failure to act, such as intestacy, is the “giving” or the “doing with the properties” specified in the agreement.

We, therefore, hold that the plaintiff is barred by the antenuptial agreement from taking under the Statute of Descent. The life estate and the insurance proceeds specified in the agreement are in full satisfaction of all of plaintiff’s rights in the estate of her husband pursuant to the agreement.

Finally, we hold that the trial court properly ordered that the estate pay the plaintiff the proceeds of the Two Thousand ($2,000) Dollar insurance policy issued by the Modern Woodman of America. This obligation to change the beneficiary on the policy was created in and by the antenuptial agreement. The failure of decedent to perform the obligation was a breach of his contract for which his estate is liable. It is not an obligation of the beneficiaries whose interests vested at the death of the insured under the separate insurance contract, absent, as here, any evidence that the beneficiary took with knowledge of a prior equity of the wife. 41 Am Jur 2nd, Husband and Wife, § 308, page 252.

We, therefore, affirm the judgment of the trial court.

Affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Davis, Defendant-Appellant.
    Gen. No. 52,113.
    First District, Second Division.
    December 30, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Richard Trais, and Oliver D. Ferguson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of robbery for which he received a term of five years’ probation. Defendant maintains that the trial court erred in denying his motion to produce a transcript of the prosecuting witness’ grand jury testimony made during the witness’ cross-examination at trial, and that he was not proven guilty beyond a reasonable doubt.

On December 4, 1965, approximately 8:00 a. m., defendant and the complaining witness, John Green, were in the custody of the Sheriff of Cook County in the Holiday Court lockup at 26th Street and California Avenue in Chicago. John Green testified at trial that in addition to him and defendant, there were 75 or 80 other men in the lockup awaiting trial that morning. Green stated that defendant approached him and said, “Oh man, I want to start on you first; give me your wallet, whatever property you have.” Behind defendant stood four or five other men, and when the witness attempted to fight back, he was knocked against the bars of the lockup. Green was forced to turn over to defendant his wallet and wristwatch. Over objection of the defendant, Green was allowed to testify to other acts of robbery committed by defendant on several other men in the lockup at that time.

Green testified that he and several other men were thereafter removed from the lockup by the bailiffs in charge and were taken to another part of the floor to an interrogation room. Green stated he witnessed his wallet and wristwatch being removed from the defendant’s possession, and further testified that he at no time gave defendant permission to take either item from him.

George Gould, supervising bailiff of the lockup on the morning in question, testified that he heard scuffling inside the lockup, investigated, and observed Green on the floor. Green and several other men were removed from the lockup, and Green informed the witness that he had been beaten and robbed by the defendant. Defendant was later removed from the lockup at which time he turned over to the bailiffs the wallet and wristwatch allegedly belonging to Green. The witness testified that he did not see defendant take the items from Green.

Carlos McNeil, a second bailiff assigned to the lockup, testified that he heard noises inside the lockup and observed several men surrounded by a group of other men, including defendant. He was told by Green that defendant had taken his wallet and wristwatch.

Alonzo Armstrong, one of the persons in custody in the lockup with Green and defendant on the morning in question, testified that he observed defendant and Green playing a game of dice in the lockup, that Green was losing money in the game, that Green pawned his wallet and wristwatch with defendant in return for a loan of money, and that an argument later arose between defendant and Green over the wallet and wristwatch.

Defendant testified in his own behalf and stated he was engaged in a game of dice in the lockup on the morning in question and that Green was also participating in the game, which was denied by Green at trial. Defendant stated that Green lost a considerable amount of money and requested from defendant, and received, money on several occasions during the course of the game with the wallet and wristwatch serving as security. (Both bailiffs who testified at trial stated they were unaware of any game of dice in the lockup prior to the alleged robbery.) Defendant denied he struck Green, or in any way intimidated him into parting with his possessions.

Defendant testified that he had approximately $100 in his possession, the proceeds from a sale of stock, at the time he was accused of the robbery. Police Officer William Struke testified that he investigated the robbery and was given an envelope containing two wallets and two wristwatches, as well as some currency totaling not over $10, which were taken from the defendant. Bailiff Gould also testified in rebuttal that defendant told him he had over $64 in his possession at the time he was accused of the robbery.

During cross-examination of John Green, defense counsel moved that the state produce a transcript of Green’s grand jury testimony. The court denied the motion on the ground that it was not timely made since no such request had been made prior to trial. Defendant first maintains that the trial court committed error in denying this motion. We disagree.

When defendant moved for the production by the state of the police reports and a transcript of Green’s grand jury testimony, the assistant state’s attorney objected on the ground that the defendant failed to move for, or otherwise request prior to trial, the grand jury minutes. The assistant state’s attorney also indicated that he was uncertain of the length of time it would take to produce the transcript, but that it could not be produced that same day.

The Supreme Court in People v. Aughinbaugh, 36 Ill2d 320, 223 NE2d 117, was confronted with a problem identical to the one we face here, namely, whether a defendant has an absolute right to a transcript of the testimony of a grand jury witness, who later testifies as prosecuting witness at the trial, where the transcript is not available at the trial and where defendant, prior to the time the witness is called at the trial, gives no indication of his intention to request its production at trial. As the Court points out at page 324 of that opinion, the statute governing the taking of testimony before a grand jury permits, but does not compel, that the testimony be recorded. (See Ill Rev Stats 1967, c 38 par 112-6.) In cases where no record has been made of the grand jury witness’ testimony, the defendant quite obviously has no right to a transcript of the testimony. But, as the Court states at page 325,

“. . . [T]here are also those cases, as the instant one appears to be (although the record contains no clear proof as to this), where the testimony was recorded but not transcribed, so that, even though reported, no grand jury minutes thereof actually exist. A rule which requires production under such circumstances would present several practical problems. The person actually reporting the testimony may have moved, be otherwise unavailable or even dead, particularly in those instances where a substantial interval intervenes between indictment and trial. And, even though the reporter be available, production of a transcript in response to defendant’s request made midway in a jury trial might cause substantial delay in proceeding therewith. We therefore believe a fair and workable rule to be one that requires, as in [People v. Johnson, 31 Ill2d 602], production of grand jury minutes relating to prosecution witnesses who testify at trial where such grand jury testimony has been recorded and previously transcribed, and a proper demand therefore (sic) is made by defendant. Accordingly, the ruling of the trial judge was correct in the absence of a showing that the testimony of [the prosecuting witnesses] had been recorded and transcribed at the time of the request for production.”

See also 49 Chi Bar Rec 386, at 389; 20 ALR3d 105.

The case of People v. Johnson, 31 Ill2d 602, 203 NE2d 399, relied upon by defendant in support of his position, and alluded to by the Aughinbaugh Court in the above quoted portion of its opinion, is distinguishable on its facts. The primary concern in the Johnson case was whether a transcript of the grand jury minutes of a prosecuting witness’ testimony should be made available to a defendant in accordance with the general rule that statements of a witness, in possession and control of the State, must be made available to the defendant. Here, on the other hand, we are not concerned with the right of defendant to access to the minutes of Green’s grand jury-testimony as such; rather the question is whether defendant was diligent and proceeded properly in exercising that right. As the Court stated in Aughinbaugh, at page 324, “Johnson does not deal with this aspect of the question.”

Here, as in Aughinbaugh, there was no showing that the testimony of Green before the grand jury was recorded, or, if recorded, if it was transcribed. Defendant likewise failed to make “a proper demand” therefor. Finally, there is no showing that defendant was in any way surprised by Green being called as a witness at the trial so that he could not give notice to the State that the transcript of Green’s grand jury testimony might be requested at the trial. While it is true that the Court in Aughinbaugh was concerned with a case involving a jury, there appears no valid reason why the rule should not be made applicable to bench trials. The “practical problems” foreseen by the Court in Aughinbaugh would, for the most part, present themselves in bench trials as well.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt is likewise unavailing. Although there were conflicts in the evidence, such as whether Green pawned his property or whether it was forcibly taken from him by defendant, the amount of money in defendant’s possession which he turned over to the bailiffs, the existence or nonexistence of the dice game in the lockup, and the like, all of these were matters of credibility to be determined by the trier of fact. People v. Styles, 75 Ill App2d 481, 220 NE2d 885. The testimony of a single witness, if positive and credible, and although contradicted by the accused, is sufficient to sustain a conviction. People v. Stewart, 62 Ill App2d 428, 211 NE2d 154.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    Nicholas L. Barnes, Plaintiff-Appellant, v. The Peoples Gas Light and Coke Company, a Corporation, Defendant-Appellee.
    Gen. No. 51,762.
    First District, Fourth Division.
    December 18, 1968.
    Rehearing denied February 4, 1969.

      Harry R. Booth, of Chicago, for appellant.
    Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (George J. O’Grady and William J. Winger, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff appeals from various orders of the Circuit Court, the effect of which was to strike and dismiss his complaint, to deny leave to amend, and to deny a change of venue. The appeal was taken to the Supreme Court which transferred it to this court without comment, thus disposing of a claim by plaintiff that the orders referred to had deprived him of constitutional rights because of his color. Sarelas v. Illinois Bell Tel. Co., 42 Ill App2d 372, 374, 192 NE2d 451.

On February 4, 1966, plaintiff filed his complaint, alleging that defendant wrongfully discontinued gas service to him. On March 14, defendant moved to strike the complaint on the ground that plaintiff had failed to plead facts which demonstrated any legal duty upon defendant to furnish service to plaintiff. The motion was allowed and leave to amend was denied on April 12. On May 4, plaintiff petitioned for a change of venue and moved to vacate the order of April 12. Both requests were denied.

Plaintiff contends it was error to deny his petition for a change of venue. We cannot agree. On March 11, plaintiff learned that his case was to be heard by Magistrate Jorzak, rather than by Judge Jones. (The record does not disclose why he would have expected it to be heard by Judge Jones.) On April 12, after a hearing, the orders were entered by Magistrate Jorzak as recited above. Then, 22 days after dismissal, and 54 days after learning of the assignment, plaintiff presented his petition for a change of venue. This was unquestionably too late.

The statutory right to a change of venue (Ill Rev Stats (1965), c 146, § 1 et seq.) does not extend beyond the time at which the judge has indicated a position or made a ruling upon a substantive issue in the cause. City of Chicago v. Hamlin, 24 Ill2d 148, 150, 180 NE2d 473; Swanson v. Randall, 30 Ill2d 194, 198, 195 NE2d 656. Any other construction would make it possible for a litigant to wait until ascertaining a judge’s adverse view of the case before deciding to request a change of venue—a situation which would subvert the whole trial system.

Next, plaintiff contends that the complaint states a cause of action and should not have been stricken. Again, we cannot agree. The complaint alleges that defendant had a contractual obligation to provide uninterrupted service, and that defendant breached this contractual duty. However, the existence of a contract is a legal conclusion and, therefore, not admitted by a motion to strike. The pleader must allege facts sufficient to indicate offer, acceptance, and consideration. This, plaintiff has failed to do. No cause of action for the breach of a contractual obligation is stated. The complaint does not purport to be based on a written instrument such as a tariff. If it were, then, of course, the relevant portions of that instrument would have to be recited in, or attached to, the pleading, and, as indicated, they were not. Ill Rev Stats (1965), c 110, § 36. We can only conclude, therefore, that the contract to which plaintiff alludes must have been oral. Yet, plaintiff alleges no other facts from which a duty not to discontinue his service would arise. Moreover, while section 49a of the Public Utilities Act (Ill Rev Stats (1965), c 111%, § 49a) proscribes discontinuing an individual’s service, it is expressly provided that the statute does not thereby limit the right of a public utility to discontinue service in accordance with the effective rules, regulations and practices of such public utility. Accordingly, we conclude that the mere fact of a wilful discontinuance of service does not give rise to a cause of action.

Finally, plaintiff contends that the trial court abused its discretion in not allowing him to amend his complaint. As to the order of April 12, it does not appear whether or not plaintiff had asked for leave to amend his complaint at that time, nor does the record disclose what reason the court may have had for including in its order a denial of leave to amend. In plaintiff’s written motion to vacate that order, filed three weeks later, plaintiff complained of having been denied leave to amend, but still made no request for such relief, and failed to attach to his motion or incorporate in the record any proposed amendment or amended complaint. Under these circumstances we cannot find error in the court’s refusal to vacate its prior order, as neither that court nor this has been afforded any way of determining whether a second attempt to state a cause of action would have been any more successful than the first; or, for that matter, whether on the facts of the case, it would have been legally possible for him to have stated a cause of action. We therefore must assume that plaintiff suffered no prejudice. Lowrey v. Malkowski, 20 Ill2d 280, 285, 170 NE2d 147.

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       Plaintiff’s Petition for Change of Venue alleges that the facts upon which he sought the change came to his knowledge more than 30 days after the date (February 4, 1966) on which defendant was required to appear. The significance of this allegation escapes us.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Appellee, v. Peter Ross, Appellant.
    Gen. No. 51,997.
    First District, Fourth Division.
    December 18, 1968.
    Rehearing denied January 28, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from a judgment in a bench trial finding defendant guilty of voluntary manslaughter of his wife, Mary Ann Ross, and of attempt to commit the murder of Martin O’Donnell. Defendant was sentenced to concurrent terms of not less than two nor more than fourteen years in the Illinois State Penitentiary.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt.

2. The judgments on the two indictments were inconsistent and must be reversed.

Evidence

Testimony of Martin O’Donnell, for the State

He is a pharmacist and part owner of Renneckars, Inc., a drugstore. Mary Ann Ross was working for him on June 9, 1965, and had been in his employ for about six months. On June 9, 1965, she worked a nine-to-six day; she returned to the store at about 9:30 that evening and then went to a tavern across the street. At about 11:00 o’clock he went to the tavern and saw her sitting with Walter Bauer and Bob Anderson. They all remained in the tavern for about another forty-five minutes at which point Mary Ann Ross asked if someone would follow her home, and he volunteered.

He had never been to Mary Ann Ross’ home before and found it only by following her there. She arrived at home and parked her car in the rear of the apartment building, and he pulled his car in front of hers. She got out of her car and came over to the passenger side of his car. He is not sure if she got into the car. At that time defendant, Mary Ann Ross’ husband, came up to the witness’ car, grabbed Mary Ann Ross by the left hand and started to stab her. Defendant said something to the effect that so this is the guy, and Mary Ann said, “No, this is Marty.”

He did not see a knife in defendant’s hand immediately; he saw it only after defendant had hit Mary Ann several times. When he realized what was happening he tried to reach over and grab the knife. There were sample boxes in the middle of the front seat but he was able to reach over and take the knife from the defendant. Defendant had the knife in his right hand and tried to strike the witness as witness reached for it. Witness was hit with the knife on the right side of the chest. He was able to pull the knife from the defendant’s grasp by prying open his fingers. Witness then opened the car door and threw the knife across the road. Defendant struck Mary Ann at least three or four times.

After witness got rid of the knife he started to walk around the car, and defendant started to walk away very fast. A young man came up and helped lift Mary Ann into his car, and then drove her to the hospital.

Testimony of Edward Cooper, for the State

He is a soldier in the United States Army and lives at 1728 Greenwood Avenue in a rear corner apartment on the second floor. He returned home early in the morning of June 10, 1965, and was attracted to his window by the sound of a car door slamming outside. Looking out of his window he saw two people sitting in a car and also saw defendant creeping toward the car. Defendant came around the corner of the building, walked up to the car, jerked the door open, yelled something about his wife and lunged into the car. There was a scuffle in the car and then a man got out of the driver’s side of the car and threw something across the street into the field. Defendant then got out of the passenger side of the car “dragging the woman and dropped her.” As the woman lay on the ground, defendant walked away. After O’Donnell threw the object, “he said to call the police.” He did not see a knife nor did he ever see defendant strike a blow.

Stipulation of Testimony of Dr. E. Tapia

The parties stipulated that Dr. E. Tapia is a pathologist employed by the Coroner of Cook County and that if he were called as a witness he would testify that he conducted an internal and external examination on the body of Mary Ann Ross and that he would further testify that the cause of death of this person was a stab wound of the heart.

Testimony of Wayne Kendall, for the State

He is a detective on the Cook County Sheriff’s Police. At about 1:15 a. m., in response to a call, he arrived at the rear of an apartment building in the 1700 block of Greenwood in an unincorporated area of Northfield Township. After speaking to Edward Cooper he searched the field just west of the apartment building. He found a knife in the field about twenty-five yards west of the driveway of the apartment building. He did not test the knife for fingerprints nor did anybody else because the handle of the knife was of a grained wood which, he was taught at the Police Academy, does not retain fingerprints; he did not check the blade because it was stuck into the ground with only one-half inch showing.

Testimony of Peter Ross, defendant

He is fifty-three years old, has never been before a judge except for traffic violations and has been in the dairy business for some thirty years as a driver. Mary Ann Ross, the deceased, was his second wife. They had been living separately since the previous May, when Mary Ann Ross moved to 1728 Greenwood with her three children by a previous marriage. He had seen her every day since the separation, save about three, and he frequently brought milk and water for her and the children.

He had lunch with his wife on June 9, 1965. He then went to his wife’s home and stayed with the children until 5:00 p. m. before going to his home. His wife called him that evening and they made arrangements to go shopping the next day. At ten that evening he returned to his wife’s apartment with some water, milk and a pie. She was not home when he arrived, so he waited for her, expecting that she would return momentarily. He did not go into the apartment at first because he expected her to return momentarily; he waited in his car. Later he went back upstairs but the lights were out and he did not go in because he did not want to waken the children.

At about 1:05 a. m. he was sitting almost at the top of the stairs waiting. She drove up at that time and another car pulled in right behind her. She walked up to the other car and said: “I told you, hon, not tonight,” and he said: “Oh, come on, get in here.” He then walked toward the car and saw his wife and the other man in a huddle, making love. He watched for a minute and then opened the door on the passenger side and said: “Come on, this is my wife.” She tried to kick him and said: “Marty, please, get him away from me.” She kept kicking at him and hanging onto the other man.

As his wife was kicking at him, O’Donnell (the other man) picked himself up and had something in his hand. Defendant did not realize that it was a knife at first but grabbed O’Donnell’s hand and pinned it to the steering wheel. Defendant was slipping on the asphalt but regained his balance and got into the car where he was able to brace himself against the door and shove O’Donnell’s hand backward so that the knife went out of his hand off his left shoulder and out of the car some fifteen to twenty feet. Defendant realized that O’Donnell had a knife during the struggle. The knife did not belong to defendant and he had never seen it before the night his wife was killed. During the fight he received cuts on his hands requiring fourteen stitches to close.

After the knife was out of the car defendant asked his wife if she was hurt and she said no; she was swearing at him. He asked her to drive him to the hospital because his hands were bleeding and she refused. He pulled her away from O’Donnell towards the right side of the car; O’Donnell started to get out of the car at about this time. Defendant got out of the car and began to plead with his wife to either let him drive her to the hospital or for her to drive him there. He decided not to go upstairs because he did not want to alarm the children. He finally turned back to his wife and asked her if she was coming and then said that he was going to have her declared an unfit mother. He then walked towards his car. About twenty feet away he turned back because his wife might have changed her mind but she was sitting in the car staring at him. He then drove to his home in Highland Park. At 5:00 a. m. he was taken to the hospital for treatment.

He did not see his wife or O’Donnell get stabbed. If either got hurt it was accidentally in the course of the struggle.

Opinion

Defendant first contends that he was not proven guilty beyond a reasonable doubt because the evidence of the prosecution is improbable, unconvincing and contrary to human experience (People v. Ware, 23 Ill2d 59, 62, 177 NE2d 362). He rests his argument on two basic facts: (a) the fact that O’Donnell threw the knife away; and (b) the fact that defendant received cuts on his hands requiring fourteen stitches.

Defendant argues that O’Donnell threw away valuable evidence when he threw the knife from the car and reasons that this is puzzling conduct at best but is generally the action of a guilty individual. We find the conduct of O’Donnell to be quite natural in the circumstances. Mary Ann Ross had already been seriously injured with the knife, and O’Donnell had been nicked close to the heart; it is highly reasonable action to put the dangerous instrument out of reach of the aggressor. Thus, once O’Donnell had taken the knife from the defendant the logical thing to do was to throw it completely out of his reach and prevent any further injury. O’Donnell said he threw the knife; Cooper saw him throw it; defendant testified that he shoved O’Donnell’s hand backwards “so the knife went out of his hand off his left shoulder” and that the knife went not more than fifteen or twenty feet. The police officer, minutes after the struggle, found the knife twenty-five yards away buried in the ground with one-half inch of the blade above the ground. The trier of fact could find that it was the defendant’s evidence not the State’s that was improbable.

Defendant also argues that since he received a fourteen-stitch cut while O’Donnell received only a slight nick, it shows that O’Donnell must have been wielding the knife in the first instance. This is not necessarily true. O’Donnell could well have received his cut when defendant lunged at him and defendant could have been cut when O’Donnell took the knife from him. Indeed, O’Donnell’s testimony is consistent with just such an interpretation. O’Donnell testified that he grabbed the knife by the handle and ripped it out of defendant’s grasp; in the process of so doing, with the defendant still trying to clutch the knife, defendant could easily have gotten his hand badly cut. Furthermore, Cooper testified that O’Donnell told him to call the police and that defendant drove away.

In determining the credibility of O’Donnell and defendant the court placed great reliance on the testimony of Cooper. Although he did not see the stabbings which occurred inside the automobile, Cooper’s testimony sharply contradicts defendant’s account of the incident. Defendant testified that he was sitting at the top of the stairs when the cars drove up; that he walked down a couple of steps and noticed that the occupants of the car were in a huddle; that he walked over to the car and watched them for about a minute and then opened the door. Cooper testified that he saw defendant “creeping around the corner of the building directly under my window ... [h]e came around the corner and walked up to the car and jerked the door of the car open . . . .”

Next defendant testified that after the knife was out of the car he asked his wife if she was all right, that he asked her to drive him to the hospital, that she refused and swore at him, that as he was returning to his car he looked back and saw her sitting in O’Donnell’s car staring at him. Cooper, however, testified that defendant dragged Mary Ann Ross out of the car and that she lay on the sidewalk as defendant walked away. O’Donnell also testified that when he got around the car Mary Ann Ross was lying on the ground.

The court could also find it unbelievable that an estranged husband who had lunch with his wife and who thereafter received a phone call from her “because we were supposed to go shopping again” waited in front of her apartment from 10:00 p. m. to 1:05 a. m., although he had seen her car parked in front of the drugstore. These actions were more consonant with jealousy than with shopping.

In People v. Clemons, 26 Ill2d 481, 484, 187 NE2d 260, the court stated:

[W]here a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. (People v. West, 15 Ill2d 171.)

The record in this case compels agreement with the conclusion of the trial court that defendant was guilty of the voluntary manslaughter of his wife.

Defendant secondly contends that the judgments on the two charges are inconsistent and must be reversed or in the alternative, that the conviction of attempted murder must be reversed. He argues that voluntary manslaughter is devoid of intent while attempted murder specifically requires intent; and since the voluntary manslaughter of his wife and the attempted murder of O’Donnell arose from the same acts committed at virtually the same time, there is a logical inconsistency between the judgments.

The definition of Voluntary Manslaughter in the Criminal Code, Ill Rev Stats, c 38, § 9-2, in pertinent part shows it to be a crime without any element of intent:

(a) A person who kills an individual without lawful justification if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed, or
(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

The definition of Attempt, however, shows it to be a specific intent crime, Ill Rev Stats, c 38, § 8-4:

(a) Elements of the Offense.
A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Emphasis added.)

The exclusion of an intent element from the definition of Voluntary Manslaughter and the specific inclusion of it in the definition of Attempt negates the possibility of the same acts supporting convictions for

both crimes. See People v. Weeks, 86 Ill App2d 480, 230 NE2d 12. However, the People contend that the stabbings of Mary Ann Ross and O’Donnell were separate acts; that there was a time interval between the voluntary manslaughter of Mary Ann Ross and the attempted murder of O’Donnell; and that during this interval the sudden and intense passion which led to the slaying of Mary Ann Ross ceased and the intent to kill O’Donnell was formed.

In People v. Washington, 27 Ill2d 104, 109, 187 NE2d 739, the court in distinguishing voluntary manslaughter from murder stated:

[F]or if there should appear to have been an interval between the assault or provocation given, and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder.

In the instant case the People’s only witness to the actual stabbing, O’Donnell, testified: From this evidence we cannot find that the People proved that there was sufficient time “for the voice of reason and humanity to be heard” nor that defendant was proven guilty beyond a reasonable doubt of a specific intent crime—attempt to commit murder. (People v. Coolidge, 26 Ill2d 533, 187 NE2d 694.) The conviction for attempt to commit murder is reversed.

I did not immediately see a knife in defendant’s hand. I saw one after he had hit the victim several times. I did not realize just what was happening and when I did I tried to reach over and grab the knife.
After he hit her he tried to strike me while I was reaching for the knife and he hit me on the right breast.
When the defendant reached, he grabbed her right hand with his left hand and started to pull her when I realized that he did have a knife. I reached over and tried to grab it from him.

The conviction of defendant for voluntary manslaughter is affirmed and the conviction for attempt to commit murder is reversed.

Affirmed in part, reversed in part.

MCCORMICK, P. J. and ENGLISH, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Will Ammons, Jr., Defendant-Appellant.
    Gen. No. 52,808.
    First District, Fourth Division.
    December 18, 1968.

      McCoy, Ming & Black, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charges

(1) Driving while under the influence of intoxicating liquor. Ill Rev Stats (1965), c 95%, § 144.

(2) Failure to have driver’s license in possession when operating a motor vehicle. Ill Rev Stats (1965), c 95%, § 6-118.

Defense at Trial

Defendant was not driving the car at the time in question.

Judgment

After a bench trial, defendant was found guilty of both offenses, and was sentenced to 60 days in jail on the first charge, and fined $25 and costs on the second charge.

Contentions on Appeal

(1) Defendant was not driving.

(2) Defendant was not under the influence of intoxicating liquor.

Evidence

The State’s case was presented through the testimony of only one witness, the arresting police officer, Joseph Dier.

On March 26, 1967, at 3:15 p. m., Dier was driving his patrol car north on California Avenue at Adams Street when he saw a car “a block and a half” ahead veer to the extreme left lane of the street for about 55 feet while passing a car which was parking. He engaged his blue light and gave chase. He could see that there were two male negroes in the front seat of the car, but beyond that he could not identify either of the men, or the clothing they were wearing, because he was too far away. The car passed the first intersection on the green light, and then made a left turn into the alley beyond. The witness followed, and when he arrived at the alley he saw the car parked there with apparently no one in it, and the motor running. Upon opening the door of the car, he saw defendant “prostrate on the floor” of the front seat, with his body on the passenger side and his head toward the driver’s side. Nobody else was there.

Upon request, defendant got out of the car, and the witness detected the odor of alcohol. Defendant appeared very sleepy, and did not answer questions as to whether or not he had been driving. He was then taken to the police station where, according to the officer, he failed to pass various inebriation tests. The car was registered in the name of defendant’s wife. The police officer had not known that the defendant suffered a speech impediment from birth. Defendant did not produce a driver’s license.

When the trial court overruled defendant’s motion for a finding at the close of the State’s case, defendant and another witness named Wright gave consistent testimony that Wright had been driving the car at the time; that they had stopped in the alley behind the home of Wright’s mother; that Wright had gone into the house, leaving defendant sitting on the passenger side of the front seat. Defendant testified that he was still sitting there when the police arrived; he denied having been on the floor of the car; denied having driven the car that day; and claimed to have passed the sobriety tests at the police station.

Opinion

The State’s brief contends that a judgment will be left undisturbed unless it is clearly erroneous on the evidence (People v. Buzinski, 64 Ill App2d 194, 212 NE2d 270); that the act of driving may be established by circumstantial evidence (People v. Garnier, 20 Ill App2d 492, 156 NE2d 613); that the court must consider logical inferences from the evidence presented (People v.

Haehnel, 78 Ill App2d 71, 228 NE2d 464); and that the credibility of the witnesses is a matter for the trier of fact (People v. Neukom, 16 Ill2d 340, 158 NE2d 53). We need not dispute any of these principles in concluding that they cannot afford any assistance to the State’s case in the appeal now before us.

The sine qua non for a conviction on either charge is proof beyond a reasonable doubt that defendant had been driving the car at the time in question. The evidence failed utterly to establish this fact, so both convictions must be reversed without consideration of the intoxication evidence.

Decision

The judgments of the Circuit Court are reversed.

Reversed.

DRUCKER, P. J. and McNAMARA, J., concur.


text:
    E. M. S. Co., an Illinois Corporation, Plaintiff-Appellant, v. Donald Brandt, Individually, and 560 Tool Co., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 52,840.
    First District, Fourth Division.
    December 18, 1968.

      Echt & Getzoff, of Chicago, for appellant.
    Aplon, Bennett, Alexander & Levine, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This cause comes up for disposition on defendant’s motion to dismiss the appeal, which motion was filed in this court on November 19,1968.

There are two defendants. On September 12, 1967, judgment by default was entered against one defendant only. The judgment was vacated by an order entered September 28, 1967. Plaintiff seeks to appeal from that order.

Defendants contend that the order of September 28 was not appealable because (1) there were multiple parties, and the order did not affect plaintiff’s claim against the other defendant, and (2) the court did not enter the finding necessary to make the order appealable under Supreme Court Eule 304, that there was “no just reason for delaying enforcement or appeal.” El Eev Stats (1967), c 110A, § 304.

Plaintiff has responded to defendant’s motion by reciting that, at the time the order was entered, the judge had been requested to find that there was no reason to delay appeal, but had refused to do so. Plaintiff then argues that this refusal, under the circumstances of the case, constituted an abuse of the court’s discretion, thus rendering the order appealable without the finding prescribed by the rule.

Plaintiff further points out that when the order was entered, the trial court assured counsel that the order was final and appealable as entered. In this the court was wrong. Plaintiff is also wrong in the position it takes in opposing the pending motion. And defendants are wrong in the grounds they suggest in support of the motion.

Assuming a final judgment as to only one of two defendants, there could be no appeal without the express finding called for by the rule. The making of such a find-mg is discretionary with the trial court, but there is no provision for review of an abuse of that discretion when a finding is refused. The absence of the finding in such a judgment—for whatever reason—leaves the judgment final but unenforceable and unappealable.

The position of plaintiff in this case is incorrect, however, since the special finding of Rule 304 could not render appealable the order of September 28. An order vacating a prior judgment, under the circumstances of this case, simply leaves the case pending. It is “an order which is not final in its character.” (See Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 14-19, 211 NE2d 32, which was decided under section 50(2) of the Practice Act, then containing the essential provisions now found in Rule 304.) Therefore, it is not a “final judgment” even as to the one defendant, and cannot be made appealable by the rule’s prescription. Martino v. Barra, 37 Ill2d 588, 593-594, 229 NE2d 545.

While this contention was not made on defendants’ motion, when we are without jurisdiction to determine an appeal, it is our duty to dismiss it, however the matter may have come to our attention. Village of Niles v. Szczesny, 13 Ill2d 45, 49, 147 NE2d 371; Harlem Sav. Ass’n v. Lesniak, 91 Ill App2d 194, 195, 234 NE2d 160.

This appeal is dismissed.

Appeal dismissed.

DRUCKER, P. J. and STAMOS, J., concur.

       Rule 304 provides:
      Judgments as to Fewer Than All Parties or Issues
      If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing the notice of appeal shall run from the entry of the required finding. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.

       We do not, for example, refer to a proceeding under section 72 of the Civil Practice Act. Ill Rev Stats (1967), c 110, § 72.