author: MORAN, J.

text:
    George Spees, Plaintiff-Appellant, v. Elmer Stapleton, Defendant-Appellee.
    Gen. No. 67-141.
    Fifth District.
    June 30,1969.

      Harris, Holbrook & Lambert, of Marion, for appellant.
    William Kent Brandon, Mitchell & Brandon, of Murphysboro, for appellee.
   OPINION AS AMENDED ON REHEARING

MORAN, J.

George Spees filed suit for personal injuries against Elmer Stapleton in the Circuit Court of Williamson County. After the depositions of both Spees and Stapleton were taken, Stapleton filed a motion for summary judgment on the ground that the undisputed facts contained in the depositions attached to his motion barred Spees’s suit because his injuries arose out of and in the course of his employment. Ill Rev Stats (1967), c 48, par 138.5 (a). The trial court granted Stapleton’s motion and entered judgment in favor of Stapleton and against Spees. Spees appeals.

The essential facts testified to in the depositions are undisputed and reveal that Spees and Stapleton were employed by the Central Illinois Public Service Company on February 25, 1965, the time of the accident. Both parties, along with thirteen other employees, assembled for work each day at a gas plant maintained by the Central Illinois Public Service Company on Route 37, north of Marion. From this starting place employees would pick up the company trucks and begin their daily duties.

The accident occurred at about 7:30 a. m., on the company parking lot. A six-inch snowfall had occurred the night before the accident with drifts four and five feet high in places. Spees arrived at work shortly before 7:30 a. m., intending to watch the usual morning game of washers which the employees played. Thirteen of the fifteen employees arrived at the plant about 7:30 a. m., either to engage in or to watch the game of washers. Work did not begin until 8:00 a. m., and this was strictly adhered to.

After parking his pickup truck on the parking lot, Spees started inside the building when he noticed that Stapleton had driven onto the parking lot and became stuck in the snow. At this point he called to Stapleton and offered to pull him out. Stapleton answered, “All right.”

While Stapleton was rocking his car back and forth in an effort to free it, Spees drove his truck behind Staple-ton’s car, leaving eight to ten feet between the two vehicles. Spees got out and started to hitch a chain from his truck to Stapleton’s car in order to pull him out. While Spees was looking toward his truck, Stapleton drove his car back into Spees, pinning him to the front bumper of the truck.

Stapleton testified that after Spees offered to aid him that he did not pay any more attention to him because he thought that if Spees were going to give him a pull, he would first give some kind of notice before tying on. Stapleton further stated that his windows were covered with steam and moisture on the inside and he could only see through the front windshield; that at no time before the impact did he ever apply his brakes, honk his horn, or give a signal of any kind; that he understood that Spees was going to pull him from the rear with a chain; and that it was about three or four minutes from the time he had the conversation with Spees until the accident occurred.

As a result of the accident, Spees sustained a broken leg and was off work for eleven weeks. His leg still builds up pressure and he has pain behind the knee. Spees testified that he did not file for workmen’s compensation because he was not hurt on the job and that he did not make any claim against Central Illinois Public Service Company.

Appellant contends that this accidental injury did not arise out of or in the course of his employment so as to render the provisions of the Workmen’s Compensation Act applicable and bar this common-law action.

The phrases, “arising out of” and “in the course of” the employment, are used conjunctively in our Act ((For original opinion see 104 Ill App2d 385, 244 NE2d 430.) Rev Stats 1967, c 48, § 138.2; Chmelik v. Vana, 31 (For original opinion see 104 Ill App2d 385, 244 NE2d 430.)2d 272, 201 NE2d 434) thus requiring the presence of both elements to make the Workmen’s Compensation Act applicable.

The words, “arising out of” refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury, and in order for an injury to come within the Act it must have had its origin in some risk connected with or incidental to the employment, so that there is a causal connection between the employment and the injury. Chmelik v. Vana, supra.

Before an injury can be said to arise out of the employment, the risk thereof must be one peculiar to the work or must be one to which the employee is exposed to a greater degree than the general public by reason of his employment. Fisher Body Division, General Motors Corp. v. Industrial Commission, 40 (For original opinion see 104 Ill App2d 385, 244 NE2d 430.)2d 514, 240 NE2d 694. Spees’s offer to pull Stapleton out of the snow is in no way connected with his employment. Any danger which might exist from the performance of this good deed was not peculiar to the employment. The employees of Central Illinois Public Service Company, not being compelled to aid anyone stuck in the snow, were exposed to no more risk of injury, such as occurred, than any member of the general public who might have wandered by the parking lot and offered his assistance.

The words, “in the course of the employment,” refer to time, place and circumstances under which the accident occurred and it is stated generally that an accidental injury is received in the course of the employment when it occurs within the period of the employment at a place where the employee may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. Chmelik v. Vana, supra.

The requirement of time has been extended to include a reasonable time before commencing and after concluding actual employment. Chmelik v. Vana, supra. What is a reasonable time is difficult to ascertain and will vary, depending on the facts of each particular case. In the instant case the appellant points to Hiram Walker & Sons, Inc. v. Industrial Commission, 41 Ill2d 429, 244 NE2d 179, to support the view that thirty minutes is a reasonable time. In said case it was decided that claimant’s injuries arose out of and in the course of his employment even though he checked in for work almost one hour early and may have been on his way to a cafe for breakfast at the time he fell on the icy company parking lot. In accordance with this opinion, it would thus appear that Spees’s arrival thirty minutes early would constitute a reasonable time.

Hiram Walker & Sons, Inc. v. Industrial Commission, supra, also reiterates the fact that the requirement of place has been extended to include parking lots provided by the employer for the employees. See also DeHoyos v. Industrial Commission, 26 Ill2d 110, 185 NE2d 885. The reason for the inclusion of company parking lots is that the employee is there subjected to hazards to which the general public is not exposed. Such a conclusion makes it incumbent upon the employer to maintain a safe parking lot. As the court in Hiram Walker & Sons, Inc. v. Industrial Commission, supra, at page 181 stated:

“. . . His presence in the lot was due entirely to his employment, and the risks to which he was there exposed because of the icy surface did not depend upon whether he went directly into the plant or detoured briefly to get breakfast.”

It can then be said that Spees was where he reasonably should have been and that his presence on the company parking lot satisfied the requirement of place. However, it cannot be said in the instant case, as was said in the Hiram Walker case, that it was the condition of the parking lot which caused the injury. The condition of the parking lot caused Stapleton’s car to become stuck in the snow. Spees’s injury was caused by his election to aid Stapleton.

Furthermore, it cannot be said that Spees was “in the course of his employment” because he did not fulfill the third requirement, namely, he was not fulfilling his duties of employment or engaged in something incidental thereto. Rather, Spees was involved in a purely personal venture. And, unless an accident occurs while the claimant is actually performing the duties of his job, a risk is not considered incidental to his employment unless he is exposed to that risk to a greater degree than other members of the public. Revere Paint & Varnish Corp. v. Industrial Commission, 41 Ill2d 59, 242 NE2d 1.

As to whether Spees was engaged in an activity incidental to his employment, the only argument offered is that it was to the benefit of the employer to have a lot with free access and in a safer condition than if stranded vehicles were abandoned on the lot where they stopped. We cannot accept this argument. It does not follow that simply because an activity is beneficial to an employer it is also incidental to the employment. More particularly, it has been held that the risk of injury in repairing or working on one’s personal automobile is not ordinarily related or incidental to the duties for which he is employed, even though the work may be done on the employer’s premises. Fisher Body Division, General Motors Corp. v. Industrial Commission, supra, and cases cited therein.

We therefore conclude that where an employee is injured while assisting a fellow employee in a solely personal matter, such injury does not arise out of or in the course of the employment so as to render the Workmen’s Compensation Act applicable.

Our view of the case makes it unnecessary to consider other arguments raised on appeal.

The summary judgment of the Circuit Court of Williamson County is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    Donald Partney, Plaintiff-Appellant, v. William Dallas, et al., Defendants-Appellees.
    Gen. No. 68-126.
    Fifth District.
    July 1,1969.

      Chapman, Strawn & Kinder, of Granite City (Charles W. Chapman, of counsel), for appellant.
    Law offices of William W. Schooley, of Granite City (Robert P. Hennessey and William W. Schooley, of counsel) , for appellees.
   GREEN, J.

This appeal is from a final order dismissing on motion a complaint for declaratory judgment brought by the Mayor of Granite City against all of the members of its City Council. The complaint alleged that the following created an “actual controversy” within the Illinois provision for declaratory judgments. (Ill Rev Stats 1967, c 110, § 57.1.) Ordinance 2181 of that City authorized the Mayor to appoint the members of Council committees, and pursuant thereto he made such appointments on May 20, 1968, for the 1968-1969 fiscal year; the Council then purported to make its own appointments and then enacted Ordinance 2550 repealing Ordinance 2181 and providing that Council committees should be appointed by the Council itself. They then, on June 24, 1968, approved their previous appointments. A declaration was sought that the Committees appointed by the Mayor were valid for the entire fiscal year.

Various contentions were made by the parties below and in their briefs here but both stated in oral argument that it was highly desirable that a determination be made here as to who the members of the Council committees were during the time in question and requested that this be done. In furtherance of this request the parties have stipulated that the allegations of the complaint are true.

We must first determine if there is anything which precludes us from doing this. One problem is that the fiscal year involved has ended and both sides agree that the Council has power to make appointments thereafter. The question in issue has become moot and under these circumstances an appeal is usually dismissed. In People ex rel. Wallace v. Labrenz (411 Ill 618, 622, 104 NE2d 769), however, the trial court pursuant to dependency petition had appointed a guardian for an eight-day-old child with power to consent to having a blood transfusion administered to the child. The parents objected on religious grounds. The appeal was perfected after the transfusion had been given and the guardian discharged. In refusing to dismiss the appeal although it involved a moot question, the court stated:

“But when the issue presented is of substantial public interest, a well-recognized exception exists to the general rule that a case which has become moot will be dismissed upon appeal. (See cases collected in 132 ALR 1185.) Among the criteria considered in determining the existence of the requisite degree of public interest are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.” (People ex rel. Wallace v. Labrenz, 411 Ill 618, 622, 104 NE2d 769.)

The citation in 132 ALR 1185 lists the foregoing criteria and other reasons why an appeal on a moot question should either be heard or dismissed. At page 1195 it lists as an additional ground for hearing the appeal, the mutual request of the parties for a decision.

The case under consideration involves a dispute between public officials in the conduct of their offices. Ordinances of various municipalities and the practices in relation thereto often follow similar patterns so that this dispute could well arise again in this or some other city. The officials would therefore be in need of guidance. For these reasons and because of the joint request of the parties, we choose to hear the appeal.

No other reason precludes us from proceeding. Appellee has admitted the allegations of the complaint including the statement that “the acts of the defendants have created a case of actual controversy.” As we have stated, the dispute is, in fact, between officers of a public body as to the membership of its Council committees.

“The scope of the declaratory judgment remedy should be kept wide and liberal and not restricted by technicalities.” (Koziol v. Village of Rosemont, 32 Ill App2d 320, 327, 177 NE2d 867.)

The political nature of the question in issue does not preclude intervention. (Progressive Party v. Flynn, 400 Ill 102, 79 NE2d 516; People ex rel. Engle v. Kerner, 33 Ill2d 11, 210 NE2d 165.) The complaint need not be sufficient to entitle plaintiff to the declaration he seeks as long as grounds for a declaration of rights are alleged. (22 Am Jur2d 954, Declaratory Judgments, § 88.)

Ordinance 2181 which gave the mayor power to make the appointments provided in part as follows:

“SECTION 3: The Mayor shall appoint the members of all standing and special committees and shall designate the chairman thereof. Every committee shall consist of three members including the chairman.
“SECTION 4: Members of the Standing Committee shall serve from the time of their appointment as provided herein and until such time as the Mayor shall appoint a new member or members to said committee.”

Ordinance 2550 which was subsequently enacted expressly repealed Ordinance 2181 and invested the authority to appoint committees in the Council. Regardless of what the practice might have been and regardless of the attempt of the Mayor to appoint committees for a term under Ordinance 2181, those whom he appointed under that ordinance served at his pleasure. When that ordinance was repealed, those whom he had appointed served at the pleasure of the new appointing authority, which by Ordinance 2550 became the Council itself. When the appointments by the Council were finally perfected, on June 24, 1968, this action had the effect of terminating the appointments of the Mayor and those appointed by the Council became the members of the various committees of the Council as of that date.

The Mayor contends that the provisions of Ill Rev Stats 1967, c 24, § 3-7-1 providing for the abolition of certain city offices “by ordinance or resolution, to take effect at the end of the current fiscal year” is controlling. The foregoing, however, has reference to city officers who would otherwise be elected by the electorate (Ill Rev Stats 1967, c 24, § 3-4-19). It is not applicable to the internal organization of the Council.

Therefore, pursuant to the power vested in this Court by Ill Const 1870, art VI, § 7, and Supreme Court Rule 366(a) (1), (5), Ill Rev Stats c 110-a, § 366(a) (1), (5), the order of the trial court is modified to declare that the parties defendant whose names appear together with their committee appointments on Exhibit “C” of the complaint herein constituted the members of the committees as set forth thereon of the City Council of Granite City beginning on June 24, 1968. The judgment as modified is affirmed.

Judgment as modified affirmed.

GOLDENHERSH, P. J. and EBERSPACHER, J., concur.


text:
    Robert Chase, et al., Plaintiffs-Appellants, v. Nick Baldassano, et al., Defendants-Appellees.
    Gen. No. 68-185. (Abstract of Decision.)
    Second District.
    June 16,1969.
    Rehearing denied August 20,1969.

      Ditkowsky and Contorer, of Chicago, for appellants; Diver, Ridge, Brydges and Bollman, of Waukegan, for appellees.
   Opinion by JUSTICE ABRAHAMSON. Not to be published in full.


author: ALLOY, J.

text:
    In the Matter of the Estate of Janet Skinner, Deceased. Russell W. Root, Petitioner-Appellant, v. Joseph Dondanville, et al., The Grundy County National Bank, Morris, Illinois, and Willard E. Olson, Its President, The First National Bank of Wilmington, Wilmington, Illinois, and Lawrence A. Bitterman, Jr., Its President, and Illinois Securities Co., Joliet, Illinois, and John F. Ruva, Its Vice President and Secretary, Respondents-Appellees.
    Gen. No. 69-16.
    Third District.
    July 3, 1969.
    Rehearing denied September 8,1969.

      Murphy, Timm & Lennon, of Joliet, for appellant.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees.
   ALLOY, J.

This cause originated as a citation proceeding under the terms of the Probate Act for the purpose of recovering property which was alleged belonged to the estate of Janet Skinner. The property involved consisted of corporate stock worth about $70,000 and of a bank account totaling approximately $10,000. The respondents who held the property contended that they received the stock as a gift. The trial court agreed with such contention and respondents’ contention that the bank account was not the property of the Janet Skinner estate. The estate has appealed.

The decedent Janet Skinner was a spinster who died January 13, 1964 (at the age of 96). She was survived by her brother, David Skinner, who never married and who died in February of 1966. A sister, Lida Dondanville, died in October of 1966 leaving surviving three children, John Dondanville, Joseph Dondanville, and Janet Dondanville Schroeder. Another sister, Isabel Skinner Root, predeceased Janet Skinner and left surviving three children, petitioner Russell Root, David Root, and Gordon Root. Decedent Janet Skinner left no will.

Joseph Dondanville had assisted his Aunt Janet Skinner for many years with her business affairs. He collected all the moneys due her, handled her bank accounts, wrote checks for her, handled her corporate stock purchases and collected dividends for her. It was admitted by all parties that Joseph occupied a fiduciary relationship with his Aunt Janet in connection with her business affairs. Joseph moved to Florida in 1957 but continued to work in the fiduciary capacity for his aunt. He purchased the stock in question in this proceeding and had such stock registered in his name and Janet’s name as joint tenants. He testified, however, that the stock was really Janet’s stock and he held it as trustee for her. He also testified that he purchased the stock with Janet’s money. The certificates were at all times in the possession of Joseph Dondanville prior to the transfer in question in this proceeding. Joseph Dondanville received the dividends, cashed the checks and paid Janet the money from the dividends. He told all parties, including David Root, that the stock held jointly was really Janet’s stock.

In October 1958, Janet Skinner was 91 years old. She did her own housework, cooking and ironing. She read with a magnifying glass and there is testimony that she read with a magnifying glass for five years after that date or up until approximately two months before her death in 1963. In October of 1958, Joseph Dondanville came from Florida to Illinois and brought with him the stock certificates in question. There was no testimony as to why he brought the certificates. Joseph Dondanville testified that he and Janet Skinner and his mother, Lida Dondanville (who died prior to the hearing) and her brother, David Skinner (who died prior to the hearing), were present at such time. Joseph stated that he and his mother, at the request of Janet Skinner, signed Janet’s name to the various stock certificates and that they tried to write Janet’s signature as Janet would write it in her kind of signature. At the hearing, a handwriting expert testified that it was his conclusion that Janet Skinner had not signed any of the stock certificates and that the name “Janet Skinner” was written on all of the certificates by Joseph Dondanville. He stated that Lida Dondanville had not written on any of the certificates. Joseph Dondanville thereafter testified again, after the handwriting expert’s testimony, and stated that, in view of the expert’s testimony, he was willing to admit that he had written Janet’s name on all the certificates. He was the only survivor of the group who was present when the stock certificates were signed in October of 1958.

After the signatures on the stock certificates were written, Joseph Dondanville took them to Illinois Securities Co. in Joliet and directed that there be transferred one-third of the stock to himself, one-third to his brother, John Dondanville, and one-third to his sister, Janet Schroeder. Joseph Dondanville also signed his own name to the stock certificates as a joint tenant at the Illinois Securities Co. A representative of Illinois Securities Co., a Mr. Ruva, who guaranteed the signatures, testified at the hearing. He stated that before Joseph Dondanville brought the stock certificates in, Janet Skinner called him on the phone and she told him she had signed the certificates and that Joseph was bringing them in. He stated he did not examine the signatures thoroughly but he knew that they contained Janet’s signature because she had told him on the phone she had signed them. Janet Skinner had never been in Ruva’s office since Joseph had handled all stock transactions for her. Ruva guaranteed the signatures and the records of Illinois Securities Co. showed that at least part of the certificates were mailed directly to Joseph Dondanville in Sarasota, Florida. Joseph testified, however, that he picked the securities up personally and took them to Wilmington, Illinois. When the witness Ruva was asked about the difference between the sample signature of Janet Skinner and the signatures on the stock certificates, he admitted that it would be perjury on his part to state that Janet Skinner did sign the certificates. He also stated that he had followed Joseph Dondanville’s direction in connection with transfer of the stock. Ruva’s testimony was also that he had called Janet Skinner after Joseph Dondanville brought the stock in and that she told him she had signed such certificates.

Joseph Dondanville had testified directly that he, in fact, had signed Janet’s name to the certificates trying to imitate Janet’s signature. There was evidence also that two weeks prior to the hearing, witness Ruva had talked with the attorneys for the petitioners with respect to the certificates and, when told that they were not the signatures of Janet Skinner, he said nothing whatsoever to the petitioner or attorney and made no mention of having had any telephone calls from or making any telephone calls to Janet Skinner. John Dondanville, brother of Joseph, in whose name one-third of the stock was registered, stated that he knew nothing of the signing of the stock and did not even learn of the gift until the spring of 1959, when Joseph told him that he owed his share of the gift tax on the gift. He testified that the first time he saw the actual certificates was when he and his wife were alone with Janet Skinner. He stated that he learned he was to collect the dividends on the stock transferred to him and send these dividends to Janet but report them on his own income tax. He did not recall who told him to do this. He also stated that his Aunt told him that she did not want the Roots to have any more of her property. There was some contradictory testimony on this subject. The other transferee, Janet Schroeder, testified that she first learned of the transfer from her mother, Lida, around Christmas of 1958. She stated that she received the certificates from Janet Skinner in June 1959 when just she and Janet Skinner were present. She stated that her mother, Lida, explained to her that she was to pay the gift tax on the transfer and return all of the dividends to Janet Skinner. She stated she never discussed the gift tax or dividends with Janet Skinner. She stated she felt that the reason for the stock transfer was because Janet Skinner had not been invited to Russell Root’s wedding in 1924.

After the stock transfer in October 1958, Janet Skinner had paid no gift tax and there was evidence that the gift tax return was filed by Joseph Dondanville after it was prepared by an accountant selected by him. This accountant had also died prior to the hearing. Joseph admitted that he might also have signed the gift tax return for Janet Skinner. The gift tax return showed an outright gift without reservation of income. After the stock transfers in 1958, Janet Skinner continued to receive dividends in cash as John paid his share to Joseph and Joseph put his share with this amount and took Janet Schroeder’s share out of an account which she and Joseph had together. Thus, Janet Skinner received dividends from Joseph in cash after October 1958 in the same manner as she had received them from Joseph prior to October 1958. Joseph actually sold some of this stock but continued to send the dividends to Janet Skinner just as if she still owned the stock. There was evidence that a division of property had been made by David Skinner, a brother of Janet, equally between the Roots and the Dondanvilles. Joseph Dondanville and David Root were Co-Executors of the John Skinner estate, another brother of Janet, and his estate was also left equally to the Roots and the Dondanvilles.

David Root talked with Joseph Dondanville on several occasions about the stock which David knew was at one time in the joint names of Joseph and Janet. While Joseph was evasive in his answers when asked directly if he still had the stock, Joseph Dondanville stated, “Oh yes, if she passes away it will be taken care of.” None of the Roots learned of the 1958 stock transfer until after the death of Janet Skinner in 1964. When no administration was instituted on the Janet Skinner estate for a period of two years, David Root filed for appointment as administrator, and this caused Lida to file, and eventually the Union National Bank was appointed as such administrator. Joseph Dondanville testified that the reason he did not tell the Roots about the 1958 transfer was to keep family harmony as long as Janet was alive, as Janet wished him to do this.

There was some evidence that the Dondanvilles were favored more by Janet than the Roots as the Dondanvilles visited her more often. There was also evidence that Janet Skinner had given the Dondanville children (that is the children of Joseph, John and Janet) $500 government bonds prior to 1958 when no such gifts were made to any of the Root family.

With respect to the bank deposit under consideration, eleven days before Janet Skinner died, John Dondanville deposited $12,000 in cash in a savings account and $2,310 in a checking account and both accounts were set up in the names of “John Dondanville and Joseph D. Dondanville, Agents.” John Dondanville discussed these funds and the ownership of the funds with a Mr. Olson of the bank and, after such conversation, Mr. Olson suggested that the word “Agent” be used so as to distinguish such account from John’s own account, and Olson also testified that John said when he opened the account, “This is money we have gotten for Aunt Jen. It’s too much to be laying around and we will do this with it.” Janet Dondanville Schroeder testified that David Skinner told her that he, David, had given John the money for Aunt Janet and it was to be used for Lida if there was any left after Aunt Janet was gone. In a conversation after Janet died and before she was buried, John Dondanville told Russell Root that he had money of Aunt Jen’s to use to pay her funeral expenses and that it was around $17,000. John further said he would make an accounting of the funds to the whole family including the Roots. About two weeks after Janet died, John withdrew $2,000 in the account and paid this to David Skinner to reimburse him for medical bills of Janet which he had paid. Janet’s funeral bill and other bills were paid out of this account. There was still $10,763.73 in checking and savings accounts when David Skinner died in February of 1966. Four months later, John Dondanville withdrew the balance in both accounts and put the money in the David Skinner Estate. The name of David Skinner had never appeared on any of the accounts. John Dondanville, however, testified that David Skinner had given him this cash to open the accounts and told him to use it to care for Aunt Jen and Lida, if necessary.

The principal issue before us is whether a valid gift of the stock was established by the evidence presented in the trial court. In a citation proceeding of the type before us, the individuals holding the property contending they received the property as a gift, had the burden of proving such gift (Dudley v. Uptown Nat. Bank of Moline, 25 Ill App2d 514, 167 NE2d 257; In re Estate of Hackenbroch, 35 Ill App2d 155, 182 NE2d 375). As stated in the case of In re Estate of Hackenbroch, supra, at page 161:

“The burden of proof of the gift is on the donee to prove all essential facts of a valid gift. The essential facts are the delivery of property by the donor to the donee. . . .”

(To the same effect is Pocius v. Fleck, 13 Ill2d 420, at 427, 150 NE2d 106.) As further outlined in Dudley v. Uptown Nat. Bank of Moline, supra, at page 521:

“To sustain the claimed gift the proof must be clear, satisfactory, unequivocal, and convincing — there should be no uncertainty as to either the claimed intent or the claimed delivery.”

This observation is particularly applicable where the gifts are first asserted after the death of the donor. As pointed out in the Estate of Williams v. Tuch, 313 Ill App 230, at page 240, 39 NE2d 695:

“It is the established law that where gifts are first asserted after the death of the donor, they are regarded with suspicion by the courts and the rule requiring gifts to be established by clear and convincing evidence is especially applicable in such cases, particularly where a confidential relationship existed between the parties.”

Mere possession of the property alone is not sufficient to prove a valid gift. As stated in Pocius v. Fleck, supra, at page 428:

“Mere possession by one claiming a gift, after the death of the donor, is insufficient to prove a valid gift, (In re Estate of Jarmuth, 329 Ill App 619,) and gifts first asserted after the death of the donor are regarded with suspicion. . . .”

Testimony of a donee of property under such circumstances is of doubtful credibility. As outlined specifically in In re Estate of Hackenbroch, supra, at page 162:

“Respondent argues that his testimony as to the gift, properly admitted here, must be considered as true if there is no countervailing evidence. (Chance v. Kinsella, 310 Ill 515, 523, 142 NE 194 (1924).) We do not agree. In a citation proceeding, the sole testimony of a donee as to what was done or said to him by a deceased donor is of questionable credibility and should be carefully scrutinized, as direct disproof of such declarations and conduct of the deceased donor is rarely possible. Such testimony should be considered, but sufficient corroborative evidence is required so as to make the proof of a gift clear and convincing. Rothwell v. Taylor, 303 Ill 226, 230, 135 NE 419 (1922); Keshner v. Keshner, 376 Ill 354, 363, 33 NE2d 877 (1941); People ex rel. Williams v. Wismuth, 2 Ill App2d 109, 117, 118 NE2d 881 (1954).”

In addition to the foregoing requirements, the fact that one of the donees stands in a fiduciary capacity or a confidential relationship to the donor requires that the proof necessary to establish the gift be even more clear, convincing and unequivocal. As stated in In re Estate of Jarmuth, 329 Ill App 619, 629, 70 NE2d 336:

“ ‘Transactions with a fiduciary are presumptively fraudulent, and will be stricken down unless he establishes their fairness by clear and convincing proof. Mors v. Peterson, supra; Kosakowski v. Bag-don, supra,’ (Seely v. Rowe, 370 Ill 336, 342.)
“ ‘. . . Where a confidential or fiduciary relation is established between parties, courts of equity scrutinize very closely any transaction or contract between the parties by which the dominant party secures any profit or advantage at the expense of the person under his influence. All transactions between parties in this relation are presumptively fraudulent and void, and before a court of equity will permit such contract to stand, the proof must be clear and convincing and satisfy the conscience of the chancellor that good faith has been exercised and that the confidence reposed in the beneficiary of the contract has not been betrayed by him. Beach v. Wilton, supra [244 Ill 413], and authorities there cited.’ ’’

Such gifts and transactions made between parties who stand in a fiduciary relationship are examined very carefully by the courts and where a confidential relationship exists between the alleged donor and donee, the burden of proving the gift by clear and convincing evidence is especially imposed upon the donee or donees (In re Estate of Hackenbroch, supra, at page 161; In re Estate of Vercillo v. Gagliardi, 27 Ill App2d 151, 158, 169 NE2d 364).

Relating these principles to the facts in the cause before us, it is clear that Joseph Dondanville was in a fiduciary relationship to the donor. All of the circumstances in the case including the age of the donor make it especially important that the transactions before us be viewed with great care and in the light of the precedents referred to in this opinion. It is notable in the cause before us, that the gifts claimed were not so asserted until after the death of the donor and that the donee who was handling this transaction stood in a fiduciary relationship to the donor. Under such circumstances, to overcome the presumption of fraud arising from the fiduciary relationship, it becomes particularly significant that the gifts must be shown by clear, convincing and unequivocal evidence. We do not believe that the evidence in this cause meets such standard. We note that the evidence indicates that Janet Skinner used a magnifying glass to read which might indicate she had some difficulty in signing her name but there was no evidence that she could not write her name in October of 1958. The evidence showed that she could in fact read with a magnifying glass up until two months before her death.

The only independent evidence of a gift arises from the testimony of witness Ruva. He stated that Janet called him and said that she had signed the stock certificates before Joseph brought the stock certificates into his office. He stated that after Joseph brought in the certificates, he called Janet Skinner to ask her if she had signed the stock and she told him that she had. It is also noted that when witness Ruva talked to the attorney for the estate two weeks prior to the hearing and was told that the signatures on the stock were not the signatures of Janet Skinner, such witness made no mention of the telephone calls. The witness’s testimony on the basis of the record before us appears to be contradictory. When witness Ruva was confronted by evidence that the signatures on the certificates were not those of Janet Skinner he then admitted that it would be perjury on his part to say that Janet had signed the certificates. He indicated that in prior stock transactions for Janet Skinner he worked with Joseph Dondanville and that Joseph Dondanville had told him what he wanted done and he followed such directions. Witness Ruva was under bond for guaranteeing such signatures, so that there was an interest on his part in establishing that the signatures were valid and in the outcome of the case. The strongest evidence, therefore, favoring the theory of a gift, the testimony of witness Ruva, contains certain inherent inconsistencies. The net effect of such testimony is that witness Ruva had talked to Janet Skinner on two occasions about the stock transfer indicating she had some knowledge of the transfers.

The stock in the case before us had been in the joint names of Joseph Dondanville and the decedent before the transfer under consideration. There was no showing as to why Joseph had brought the stock back from Florida. Nothing was offered on this subject by the donees nor was there any interrogation by the petitioners in this cause on such issue at the hearing. We note, also, that all persons who presumably were present when the certificates were signed, other than Joseph Dondanville, had died prior to the hearing. The circumstance, also, that Joseph Dondanville had changed his story in that he first testified that his mother and he had signed Janet’s name to the certificates, and then admitted that he alone had signed the certificates (following the handwriting expert’s testimony) should be considered. There was no clear testimony by the donee, Joseph, or anyone else as to why Janet could not sign her own name to the certificates. There was also no showing as to why Joseph tried to write Janet Skinner’s name as Janet Skinner would write it. Joseph also testified that he picked up the certificates in Joliet after the transfer. There was evidence in the record that showed at least some of the certificates were mailed directly to Joseph Dondanville in Florida. This is another inconsistency in the testimony of Joseph Dondanville shown of record.

The fact that Janet Skinner continued to receive the dividends after the gift claimed, raises questions as to whether a gift was intended or disclosed to Janet. While the retention of dividends in itself would not operate to destroy the validity of the gift, the manner in which the transaction was handled raises basic questions. When Joseph Dondanville held the stock jointly with Janet Skinner, he cashed the dividend checks and sent Janet the money. After the alleged gifts, the three donees all sent the money from the dividends back to Joseph and Joseph continued to send the money to Janet, as he had always done when she owned the stock. This raises doubts as to whether Janet really knew or understood that the stock was being transferred beneficially to the Dondanvilles, particularly since this involved substantially all of Janet’s assets. It is noted, also, that after Joseph Dondanville sold part of the stock he still paid Janet what the dividends would have totaled. All of this raises questions as to whether Janet really knew about or understood the transfers. These are questions which clear and convincing proof on behalf of the donees should have overcome. The fact that Janet did not file or sign the gift tax return or pay the gift tax indicates either that Janet told the Dondanvilles they were to take care of this or that she didn’t know she had made the gift. Clear and convincing evidence should have resolved this question. Such proof was lacking in the cause before us.

The net result of a review of the testimony shows that many questions have been left unanswered. Much of the evidence which was presented could be construed in two ways, pointing first to the fact that there was a gift and pointing, also, to the fact that Janet Skinner had no knowledge that the stock had been transferred. The testimony was consistent with either the pattern of keeping Janet Skinner from learning of the transfer or as supporting the theory of gift. The net result also is that there is very little evidence of the character which is required in a cause of this nature to support the theory of gift in the instant case. As a result, we must conclude that the trial court was in error in determining that the donees discharged the burden of proof imposed on them in this case so as to show there was a valid gift of stock. We must, therefore, conclude that the trial court was in error in finding that a valid gift of the stock had been made to the Dondanvilles.

As to the bank account issue involved in the present case, the record shows nothing specifically that the funds involved were funds of David Skinner, other than the testimony of the Dondanvilles. The evidence, apart from such testimony, is to the effect that the account contained money which belonged to Janet Skinner. The banker who testified as to the discussions at the time the account was opened stated that he suggested that the word “Agent” be added to the account to keep the money separate from John Dondanville’s account. There was testimony that John Dondanville told such banker that it was “Jen’s money.” In a conversation between John Dondanville and Russell Root at the time of Janet Skinner’s funeral, Root testified that John Dondanville had stated that the money was Janet Skinner’s money and that he would use it to pay her bills and funeral expenses and then account for the balance to all of the family. John denied such statement. John did, in fact, pay Janet Skinner’s bills out of the account but four months after David Skinner died, in February of 1966, he transferred the balance in the checking and savings accounts to the David Skinner estate. While several of the Dondanvilles testified that this was David’s money which he gave to John to put in an account for Janet and Lida, such testimony being testimony of interested parties, should not be given great weight. The circumstance that, two weeks after Janet Skinner’s death, John Dondanville withdrew $2,000 from the account and paid said amount to David Skinner to reimburse him for medical bills of Janet Skinner which he had paid, does not seem consistent with the contention that the account was David’s money but is more consistent with a conclusion that it was Janet Skinner’s money and that David Skinner was entitled to reimbursement for certain advances only. Since there was no evidence other than the Dondanville testimony to show that this account belonged to anyone other than Janet Skinner, clear and convincing evidence was also lacking to establish such issue. The bank account should, therefore, have been held to be part of the Janet Skinner estate. Since the person making the deposit had stated to a third party that the money belonged to Janet Skinner, this constituted an admission at a time of making the deposit which should be binding upon the parties, in view of the record in this cause.

The judgment of the Circuit Court of Will County will, therefore, be reversed and this cause will be remanded to such court with directions to find that respondents have failed to prove a valid gift of the stock in question and, also, to find that the $10,527.89 balance in the account in the Grundy National Bank held in the name of John Dondanville and Joseph Dondanville, Agents, is the property of the estate of Janet Skinner. The Circuit Court is directed to order that respondents in this cause account for or turn over to the Janet Skinner estate the stock which has been asserted as being gifts to such respondents and, also, to transfer the bank balance herein referred to, to the estate of Janet Skinner.

Reversed and remanded with directions.

STOUDER, P. J. and CULBERTSON, J., concur.


text:
    People of the State of Illinois, Appellee, v. James Smith and Norman Rich, Defendants-Appellants.
    Gen. No. 68-43.
    Fifth District.
    July 8,1969.

      Robert J. Hillebrand, of East St. Louis, for appellants.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (William R. Poston, Assistant State’s Attorney, of counsel), for appellee.
   MORAN, J.

James Smith and Norman Rich were arrested on May 25, 1967, and later tried in a joint prosecution for burglary. The jury found them guilty on September 15,1967, and on October 9, 1967, the Circuit Court of St. Clair County entered judgment and sentenced defendant Smith to the Penitentiary for ten to twenty years and defendant Rich for five to twenty years. Both defendants appeal from the judgment and the sentences.

At 9:30 a. m. on May 25,1967, Patrolman Harold Moore, while off duty from the East St. Louis Police Department, noticed a black Chevrolet station wagon parked by a vacant house. Such a car had been reported to be involved in several burglaries in the area. Therefore, Patrolman Moore circled the area and put himself in position to see two men in the rear doorway of the vacant house with the door open. He recognized one as Norman Rich whom he had known previously. At the trial he identified James Smith as the second man.

After spotting the defendants, Patrolman Moore re-circled the area. Upon returning to the vacant house, he saw Rich backing the station wagon up to the back porch. He then watched as Rich stopped the car and both defendants entered the house through the back door. Not desiring to approach two suspects by himself, Patrolman Moore left to call for assistance. He returned about twenty minutes later with Lieutenant O’Sullivan. While returning, he saw the. station wagon being driven in another direction. He and Lieutenant O’Sullivan followed in this direction, found defendants with the station wagon and arrested them.

Later Lieutenant O’Sullivan determined from the owner of the vacant house that an air conditioner and an exhaust fan were missing and got their serial numbers. He went to Rich’s house, which was about four blocks away from the burglarized house, and found the stolen items there. Mrs. Rich told him they were not hers and offered no objection to their removal.

It was discovered that the station wagon was owned by Rich’s brother.

The jury found both defendants guilty. The court entered judgment on the verdicts, overruled the post-trial motions of both defendants, and denied probation after a hearing in aggravation and mitigation and for probation.

On appeal, defendants argue that they were not sufficiently identified as a matter of law so as to find them guilty beyond a reasonable doubt; that certain evidence was improperly introduced at the probation hearing; that the remarks of the court at the time of sentencing showed undue prejudice; and that the sentences are excessive.

Defendants’ first contention is based on the fact that James Flannery, one of the owners of the burglarized house, testified that there is no way to see the rear door from the front of the house. They argue that it was, therefore, impossible for Patrolman Moore to identify two men at the rear of the house. However, this argument ignores Patrolman Moore’s testimony that he placed himself in position to see them. It should also be emphasized that even though he had been a member of the Police Department for only four months, Patrolman Moore was a police officer who was trained to observe.

The identification of both defendants and of the station wagon by Patrolman Moore and the recovery of the missing items at Rich’s home by Lieutenant O’Sullivan provide a sufficient basis on which the defendants could be found guilty beyond a reasonable doubt. It is well settled that a conviction of burglary can be sustained upon circumstantial evidence and that the trier of fact need not disregard the inferences that flow normally from the evidence before it. See People v. Brown, 27 Ill2d 23, 187 NE2d 728; People v. Russell, 17 Ill2d 328, 161 NE 2d 309.

Defendants also argue that matters involving previous arrests not followed by convictions should not be placed in the record for consideration by the Court at the hearing on probation and are prejudicial to them. Defendants cite two cases to support this proposition, People v. Jackson, 95 Ill App2d 193, 238 NE2d 196, and People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498. However, neither case is applicable because both involve situations where error was committed due to inadmissible evidence being considered at a hearing in aggravation and mitigation. In the instant case neither side offered evidence in aggravation and mitigation. In fact, counsel for defendants stated that he did not wish to put on any evidence in way of mitigation but only wished to argue for probation on the basis of the probation officer’s report.

It was therefore defendants themselves who directly entered the probation officer’s report into the record.

As to the propriety of a probation officer’s report including arrests, it has been held that such inclusion did not violate the statutory requirements of such an investigative report. People v. Miller, 317 Ill 33, 147 NE 396. Even People v. Jackson, supra, cited by defendants, notes that the ordinary rules of evidence applicable to criminal proceedings are not applicable to a hearing in aggravation and mitigation. Admitting this, it should be apparent that even greater latitude should be granted the court in a hearing for probation. This is true because one convicted of crime has neither an inherent nor a statutory right to probation and the granting or refusing of probation rests in the discretion of the trial court. People v. Smith, 62 Ill App2d 73, 210 NE2d 574. We thus find no error in the admission of any of the evidence at the hearing on probation.

Defendant Rich particularly argues that the State prejudiced his cause by calling direct attention to the fact that he was then under indictment for a different offense and that those charges were pending. However, the record reveals that this statement was made only after defendant Rich verified that he was not under any arrest charges other than those mentioned by his counsel. We see no error in allowing the State to provide the correct information when the only alternative was to allow the court to base its decision on a misstatement of fact.

Defendants also maintain that the remarks of the trial court at the time of sentencing showed undue prejudice towards them. Objection is specifically made to the court’s statement to Rich, “Your attitude in this case in denying your guilt, and putting the State to the inconvenience and the expense of trial, does not indicate, in general, repentance for your acts.” While this statement may be considered “inappropriate” (People v. Capon, 23 Ill2d 254, 178 NE2d 296, cert den 369 US 878), we do not view it as indicating that the trial judge exercised his discretion in an arbitrary manner. Furthermore, the instant case is not analogous to People v. Moriarity, 25 Ill2d 565, 185 NE2d 688, where the cause was remanded because the trial judge clearly indicated to the defendant that his decision to stand trial “will cost you nine years additional.” Rather, the remarks in the present case indicate only that the trial judge was disturbed that the defendants had not displayed a penitent spirit before him. The weighing of such a factor is within the discretion of the trial court.

The final contention of defendants is that their sentences are excessive. While we might not have imposed the same sentences if we had been the trial court, the fact remains that the trial court has a superior opportunity to make a sound determination concerning the punishment to be imposed than does an appellate tribunal and therefore a reviewing court should exercise its power to reduce sentences with considerable caution and circumspection. People v. Taylor, 33 Ill2d 417, 211 NE2d 673. Furthermore, we cannot say that this case represents an instance where the trial court abused its discretion. The facts are that Smith was in violation of parole on another burglary conviction when arrested for this burglary and Rich attempted to mislead the trial court as to his criminal background. Under these facts we cannot say that the sentences imposed were excessive.

For the foregoing reasons, the judgment of the Circuit Court of St. Clair County is affirmed in all respects.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    Wabash Production Credit Association, a Corporation, Plaintiff-Appellee, v. Russell R. Stroup, et al., Defendants-Appellants.
    Gen. No. 68-37.
    Fifth District.
    July 8,1969.

      Frank H. Walker, of Mt. Vernon, for appellant.
    Richard S. Simpson, of Lawrenceville, for appellee.
   MORAN, J.

On the 20th day of June, 1967, appellants filed a petition in the Circuit Court of Marion County alleging:

“1. That Judgment by Confession was taken by Plaintiff vs. Defendants on the 28th day of October, 1965.
“2. That a sale based on said Judgment by Confession and Execution levied thereon was held on the 21st day of June, 1966, the same being designated as the Sheriff’s Judgment and Execution Sale.
“3. That said sale of said premises then and there belonging to these defendants is described as follows, to wit; in so far as said premises effect the homestead rights of these defendants:
“4. That at no time during any of said proceedings concerning the judgment by Confession and Execution thereon, the petition to open up said judgment, etc., or the order for sale of said premises, was any assignment of homestead interest ever made or set off to these defendants.
“5. That the premises sold, or a portion thereof, constituted the homestead of these defendants, W. H. Smith and Nellis Mae Smith, husband and wife, respectively, and on which these said defendants have lived and resided for the past 21 years.
“6. That these defendants are, and each of them is, entitled to a homestead interest in said premises in the principal sum of $5,000.00 each of a total of $10,000.00.
“7. That said homestead interest should be set off to these defendants prior to the making of a Sheriff’s Deed to the purchasers of said premises at said Judgment and Execution Sale.
“Wherefore these defendants pray this honorable Court that the homestead interest, including a house, home, or residence of these defendants together with the outbuildings and some one acre of ground be awarded to and set off to these defendants as and for their homestead right as made and provided.”

After a hearing the trial court found that appellants were entitled to a total homestead interest in the property in question in the amount of $5,000; that the rental value of said property was $50 per month and that “said value of $50.00 per month be and is hereby fixed as a charge against said exemption as and from June 21,1966.” Defendants appeal, contending “that they are entitled to have said $5,000.00 homestead set off unto them out of the forty (40) acre tract on which the homestead stands and has stood for more than 15 years.”

Appellee has filed no brief in this court.

Sections 10, 11 and 12 of the Homestead Act, (Ill Rev Stats 1965, c 52) provide:

“10. Proceedings on execution — Setting off homestead — Sale—Commissioners—Fees—Costs.) § 10. If in the opinion of the creditors, or officer holding an execution against such householders, the premises claimed by him or her as exempt are worth more than $5,000, such officer shall summon three householders, as commissioners, who shall, upon oath, to be administered to them by the officer, appraise the premises; and if, in their opinion, the property may be divided without injury to the interest of the parties, they shall set off so much of the premises, including the dwelling house, as in their opinion shall be worth $5,000, and the residue of the premises may be advertised and sold by such officer. Each commissioner shall receive for his services the sum of $5 per day for each day necessarily engaged in such service. The officer summoning such commissioners shall receive such fees as may be allowed for serving summons, but shall be entitled to charge mileage for only the actual distance traveled from the premises to be appraised, to the residence of the commissioners summoned: Provided, the officer shall not be required to summon commissioners until the plaintiff named in the writ, or some one for him, shall advance to the officer one day’s fees for the commissioners, and unless the plaintiff or creditor shall advance such fees the officer shall not be required to execute such writ. The costs of such appraisement shall not be taxed against the execution debtor unless such appraisement shall show that the debtor has property subject to such execution. As amended by act approved Aug 13, 1965. L 1965, p 2980. Effective Jan 1, 1966.
“11. When premises cannot be divided — notice to pay surplus over $5,000.) § 11. In case the value of the premises shall, in the opinion of the commissioners, be more than $5,000, and cannot be divided as is provided for in this act, they shall make and sign an appraisal of the value thereof, and deliver the same to the officer, who shall deliver a copy thereof to the execution debtor, or to some one of the family of suitable age to understand the nature thereof, with a notice thereto attached that unless the execution debtor shall pay to such officer the surplus over and above $5,000 on the amount due on the execution within 60 days thereafter, that such premises will be sold. As amended by act approved Aug 13,1965. L 1965, p 2980. Effective Jan 1, 1966.
“12. Nonpayment of surplus — Effect.) § 12. In case such surplus, or the amount due on the execution, shall not be paid within the 60 days, the officer may advertise and sell the premises, and out of the proceeds of such sale pay to such execution debtor the sum of $5,000, and apply the balance on the execution. As amended by act approved Aug 13, 1965. L1965, p 2980. Effective Jan 1,1966.”

In Muller v. Inderreiden, 79 Ill 382, the court said at 384-85:

“The court, by the decree, found there was a homestead right in these premises, and whether they were or were not susceptible of division, was a fact the statute requires should be ascertained, not by the court, but by the commissioners to be appointed by the sheriff in pursuance of the statute; . . . .”

This case was quoted with approval in Lindsay v. Richards, 331 Ill 483,163 NE 401.

In Brown v. Nelson, 379 Ill 371, 41 NE2d 499, the Supreme Court held that where a judgment debtor has a homestead, but the property is sold on execution without setting off the homestead or making the sale subject to the homestead rights, a motion filed in the same cause is the proper remedy to set aside the sheriff’s sale where the period of redemption has not expired and no deed has issued, as redress should be had from the court which ordered the execution to issue.

Defendants sought redress in the same cause from the same court before their period of redemption had expired, by asking that their residence be set aside as their homestead. After determining that defendants had a homestead interest of $5,000 in the property, the trial court should have set the sale aside and directed the sheriff to comply with sections 10, 11 and 12 of the Homestead Act, (Ill Rev Stats 1965, c 52).

For the foregoing reasons this case is reversed and remanded to the Circuit Court of Marion County for proceedings not inconsistent with this opinion.

Reversed and remanded.

GOLDENHERSH and EBERSPACHER, JJ„ concur.


author: SMITH, J.

text:
    Linn Farms, Inc., an Illinois Corporation, Plaintiff-Appellant, v. Max Edlen, et al., Defendants-Appellees.
    Gen. No. 11,041.
    Fourth District.
    July 15,1969.
    Rehearing denied and opinion modified September 17, 1969.

      Claudon and Elson, of Canton (James J. Elson, of counsel), for appellant.
    Bellatti, Fay and Bellatti, of Jacksonville, for appellees.
   As Modified on Denial of Petition for Rehearing.

SMITH, J.

This is a suit to quiet title to land in Morgan County and to remove the claim of the defendants to its ownership as a cloud on plaintiff’s title. Defendants filed their affirmative answer asserting that they had acquired title to the precise property in question through accretion. The trial court decided that issue in favor of the defendants and entered an appropriate judgment. The plaintiff contends that it is a well recognized rule that the burden of proving the equitable defense of title by accretion as an affirmative defense is on the defendants. Pascal P. Paddock, Inc. v. Glennon, 32 I112d 51, 203 NE2d 421. Such is the rule. Such was the quantum of proof required. Such was the trial court’s decision.

The defendants were the unquestioned owners of certain lots in Lake View Addition to the Village of Meredosia lying east of Meredosia Lake and in Section 15. The land in controversy lies west of these lots and east of Meredosia Lake as it now exists. The western boundary of Lake View Addition is the section line between Sections 15 and 16. Plaintiff asserts ownership through a 1959 quitclaim deed describing, “All that part of Sec. 16 lying East of the Illinois River.” The original or initial deed from Trustees of Schools to its predecessor in title was a deed recorded in 1893 to all land covered by Meredosia Lake in that part of Section 16 lying east of lots 1, 2 and 3, and west of lots 4-13, inclusive. By way of explanation, these lots are not the Lake View Addition lots owned by defendants. Their lots are in Section 15 to the east of the section line, and coterminous with these lots, as we have said. The controversy centers around a two to five-acre tract which is brush, fill-ground and swampy, and is designated as lot 12 on the plat below.

It should be here noted that the plaintiff claims its title from the Trustees of Schools to Frank H. Ray and that deed conveyed land west of school lot 12 and did not and does not cover the land in controversy. It should also be noted that this general area is back in the courts for its second visit. In Trustees of Schools v. Schroll, 120 Ill 509, 12 NE 243, the record failed to show the size of the lots and whether or not any part of them were in fact the western or the eastern boundary of Meredosia Lake. In that instance, the court held that the evidence offered by the defendants-appellees was insufficient to establish their title either on the theory that they were riparian owners or on the theory that Meredosia Lake was a stream of water and their deeds conveyed title to the center of the stream. It thus appears that Meredosia Lake has been judicially determined to be a lake for more than 80 years with its boundaries as much in doubt then as they are now and the record ownership of its surrounding territory as much in limbo then as it is in this record today. It is clear from this record that

until the plaintiff acquired the property in 1959 defendants’ title was unquestioned. Since that time, each side has built a fence of some description or another whose precise location is not shown in this record and each fence was destroyed by the other or his predecessors in title or by parties unknown.

The original land survey of this area shows the meander line of the east shore of a body of water termed “navigable lake” extending into the southwest quarter of section 15 in the area where Lake View Addition is now platted. This same situation is demonstrated by an old Atlas dating back to 1872. Lake View Addition to Meredosia was platted in 1913. That plat makes no reference to the lake nor does its deeds. Both sides agree that Meredosia Lake has receded from its original occupancy, wherever that may have been, and the basic issue in this case is to relate such recession to such legal descriptions as appear in the record. It is further clear that at the present time the eastern part of Meredosia Lake is a ditch or chute located from 300 to 400 feet west of the section line between Sections 15 and 16. The area between this section line and the water is the area in controversy in this matter. In the late 20’s or early 30’s the Rotary Club of Jacksonville maintained an outing camp in Lake View Addition. The Knights of Pythias also had a similar camp on a lot owned by one of the defendants and activities conducted on these various lots included camping, picnics, recreational activity, swimming, boating and beer parties. At least a part of the area was used for Boy Scout and Girl Scout camps. Concrete walkways ran from the west edge of the Lake View lots several feet beyond their western extremities and apparently joined the lake with laterals running from the sidewalks to boat docks and ready access to boating and swimming was available. Both possession and access to the shores of Meredosia Lake was thus available to the owners of the Lake View lots. There is no evidence that originally or now there was any intervening ownership over which access to the water was obtained.

The trial court in its memorandum opinion found that the defendants were riparian owners, that there had been a gradual withdrawal or recession of the waters adjoining their land, that artificial acts in the changing of locks on the Illinois River and other engineering changes may or may not have affected this recession of the waters, but if so, it does not affect their rights to accretion. In so doing, the court relied upon City of Peoria v. Central Nat. Bank, 224 Ill 43, 56, 79 NE 296, 299, where it is stated:

“The whole doctrine of accretions rests upon the right to access to the water, and it must be convenient access. The right to preserve his contact with the water is one of the most valuable of a riparian owner.”

This same doctrine was respected in a recent decision of the United States Supreme Court in Hughes v. State of Washington, 389 US 290, 19 L Ed2d 530, 88 S Ct 438, in which the court stated in substance that a long and unbroken line of decisions established that the grantee of lands bounded by a body of navigable waters acquires a right to any natural and gradual accretion formed along the shore and that this rule is essential to avoid litigation challenging the location of the original waterlines. In Fuller v. Shedd, 161 Ill 462, 44 NE 286, this same doctrine is applied to lakes and ponds regardless of how large or small they may be. In this connection, it should be observed that the original U. S. Survey meandered the boundary of Meredosia Lake. In the case just cited, the Supreme Court stated at p 494 of the Illinois citation:

“. . . Where accretions come to such riparian proprietors they shall take to the water’s edge, and follow the recession of waters to their edge. Their lines and bounds are thus determined and are certain. This rule recognizes the riparian proprietor’s rights to the fullest extent. The value of his riparian rights are preserved to him. If, as in many such lakes, there is much depth of water on one side and very shallow on the other, and in process of time recession of waters on the shallow side passes beyond the lake’s center, the owner on that side still goes to the water’s edge, and the proprietor on the other side should not come in between the lake and such proprietor after the waters have receded beyond the center. Where there is depth of water the lake still exists, and one proprietor is not deprived of the benefit of his riparian rights.”

Applying these rules, we must conclude that the defendants and their predecessors in title have had access to this lake and used and utilized it since 1913, that the original survey suggests that the borders of the lake were either adjacent to or perhaps covered a part of the Lake View lots, that the use made of the area from the late 20’s until 1959 points to undisputed access to and use by the defendants of the property here in question. The trial court having made its determination, we cannot set it aside unless it is clearly and manifestly against the weight of the evidence or is based on obvious error. Gillespie v. Gillespie, 70 Ill App2d 38, 216 NE2d 462.

In addition, while the trial court did not pass on the question of title by adverse possession, it was pleaded and it is quite evident that for some 30 years or more the owners of the Lake View lots have claimed the right of access to and the use of this lake, have used it and that the record is silent as to any objection to or claim adverse to such right until the plaintiff came into the picture in 1959. The facts in this record, therefore, would have supported a finding by the trial court of title by adverse possession in the defendants. While the appellant will be considered to have waived for the purposes of review a defense not raised in the trial court, an appellee may urge any point in support of the judgment on appeal even though it is not directly ruled on by the trial court so long as the factual basis was before that court. Shaw v. Lorenz, 42 Ill2d 246, 246 NE2d 285. Such is the situation here. Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.

AS MODIFIED ON DENIAL OF PETITION FOR REHEARING

Plaintiff suggests on rehearing that our failure to note various other and prior conveyances in its chain of title somehow affected the result we reached. On the contrary, our opinion assumes, without deciding, that plaintiff had title. We do not decide such because whatever the state of its title, it is as of nothing when placed against the riparian rights of defendants.

Plaintiff suggests further that accretion is inapposite in our context because defendants’ deeds do not include Meredosia Lake as one of its boundaries, and in permitting this doctrine to defeat their claim, we are in effect overruling Bristol v. Carroll County, 95 111 84 (1880). We are doing no such thing. Bristol denies acquisition of title by accretion where the land had been originally separated from the water’s edge. At least we read it that way and for that reason we think our holding is in harmony with that case. There is no requirement that a part of the description of these lots must include this lake for the doctrine to apply.


author: MR. JUSTICE ABRAHAMSON

text:
    Tower Finance Corporation, Plaintiff-Appellant, v. Blowers Knight, Defendant-Appellee.
    Gen. No. 68-157.
    Second District.
    July 22,1969.

      Redman, Shearer and O’Brien, of St. Charles, for appellant.
    Solomon Sachs, of Chicago, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On October 18, 1966, judgment by confession was entered pursuant to a power of attorney included in a note executed by the defendant on January 20, 1966, payable to Tower Finance Corporation. On October 26, 1966, the defendant was served with summons to confirm the confession judgment and in response thereto he filed his petition to vacate the judgment and dismiss the complaint on November 25, 1966. The petition set forth that on July 14, 1966, Knight was discharged in bankruptcy pursuant to his voluntary petition filed May 11, 1966, wherein he included his obligation to Tower Finance in his schedule of creditors.

On November 30, Tower Finance filed its motion to dismiss the defendant’s petition on the grounds that bankruptcy was an affirmative defense that must be pleaded by way of answer. On December 2, the trial court, apparently on the stipulation of the parties, denied the plaintiff’s motion without prejudice and granted the defendant 20 days to file additional pleadings. On December 22, the defendant filed a petition for a permanent stay of execution on the confession judgment that again raised the discharge of the debt in bankruptcy. On June 13, 1967, Tower Finance moved to dismiss that petition again on the grounds that bankruptcy, as an affirmative defense, must be raised by answer. The motion further alleged that the defendant’s bankruptcy did not discharge his obligation to Tower Finance since that obligation was based on a loan Knight had obtained by virtue of a fraudulent financial statement.

The court took the matter under advisement and, on November 24, 1967, forwarded a memorandum to the respective counsel that found, in effect, that the confession clause in the original cognovit was voided by the subsequent discharge in bankruptcy and that the plaintiff’s suit, being founded on fraud, was improperly brought as a contract action. A judgment order was entered July 22, 1968, that vacated the confession judgment and dismissed the complaint but denied the defendant’s petition for a permanent stay of execution. This appeal followed.

Section 35 of the Bankruptcy Act (Title 11, United States Code, section 35) provides, in part, as follows:

“Section 35. Debts Not Affected By A Discharge.
“(a). A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as ... . (2) are liabilities for obtaining money or property by false pretenses or false representations, or for obtaining money or property on credit or obtaining an extension or renewal of credit in reliance upon a materially false statement in writing respecting his financial condition made or published or caused to be made or published in any manner whatsoever with intent to deceive . . . .”

Although this section has previously been interpreted in several Blinois cases to bar the debtor’s discharge in bankruptcy as a defense to an action by a loan company for nonpayment of a loan where it has been shown that the loan was made on the basis of false statements contained in a financial statement, the precise issues involved in this case were not before the court in those decisions.

The defendant cites two cases in support of his position that the power of attorney was voided by his bankruptcy. In the case of Downer v. Warren, 200 111 App 451 (1916), the plaintiff confessed judgment against Warren and his wife in 1911 on a note they had executed in 1903. By answer, the defendant raised his discharge in bankruptcy in 1906 from all “provable” debts. The court found that the bankruptcy operated as a discharge of Warren’s obligation to Downer and rendered the power of attorney to confess judgment “null and void” on the basis that the note sued on was a joint obligation of husband and wife and that Downer’s action was itself a “fraud” since he was aware that Warren’s note was no longer a “subsisting debt.”

In Coan v. Auerbach, 340 Ill App 422, 92 NE2d 211 (1948) an abstract opinion in the printed reports, judgment by confession was entered November 18, 1948, pursuant to a note executed November 16, 1945. The trial court granted the defendant’s petition for a permanent stay of all further proceedings on the judgment on the basis of his discharge in bankruptcy on September 1, 1948. The court of review affirmed and quoted from the case of Morris v. Levin, 302 Ill App 173, 23 NE2d 779 (1939) to the effect that the discharge in bankruptcy invalidated the power of attorney to confess judgment.

There is language in these cases to the effect that a discharge in bankruptcy revokes the provisions authorizing a confession of judgment contained in the obligation and of necessity required that the plaintiff seeking relief must file a complaint in tort bottomed on fraud containing the necessary allegations to effectively show that section 35 of the Bankruptcy Act did not discharge the obligations. There appears to be no controversy on the effect of a discharge in bankruptcy, namely that there is prima facie evidence of a bar to judgment and the burden of proof then falls on the plaintiff to show that the discharge was not affected by the bankruptcy.

The issue then is whether or not the plaintiff, after the discharge in bankruptcy, can utilize the confession of judgment route of procedure or should he be required to file a complaint for fraud. We conclude that the discharge is a defense and that the plaintiff need not anticipate this defense, but can confess the judgment in keeping with the provisions of the Civil Practice Act so that the Act shall be liberally construed to the end that the controversy may be speedily determined in accordance with the substantial rights of the parties. The act also adequately provides for the placing of the issue before the court by subsequent pleadings. This procedure has been followed in Tower Finance Corp. v. McLarning, 83 Ill App2d 250, 227 NE2d 375, and Towers Finance Corp. v. Winemiller, 43 Ill App2d 10,192 NE2d 411.

From the pleadings in this case it appears the issues before the court for determination are whether the plaintiff allowed defendant credit on the basis of the financial statements which he furnished, and if so, whether they were false.

The trial court erred in vacating the judgment and in dismissing the complaint.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Melvin W. Dotson, Defendant-Appellant.
    Gen. No. 67-136.
    Fifth District.
    July 23,1969.

      Harold G. Baker, Jr., of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney of St. Clair County, of Belleville (John M. Earns, Jr., Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, J.

In 1965 the defendant was indicted for burglary, and upon arraignment entered a plea of not guilty. The Public Defender was appointed to represent defendant and upon the case being called for trial, on June 9, 1965, the State requested and was granted leave to reduce the charge from burglary to theft of over $150 in violation of c 38, § 16-1, Ill Rev Stats 1963. To the latter charge the defendant pled guilty and made an oral motion for probation. The State suggested that if defendant would waive any presentence investigation that the State’s Attorney’s office would recommend probation. The defendant thereupon waived a preliminary hearing and presentence investigation. The Court inquired as to the circumstance of the case and whether it was a weak case, which inquiry was answered by the prosecutor stating that it was a weak case. Thereupon the Court advised:

“Then your case will not be referred to the probation officer, and your having waived your right to a hearing on your application for probation, the Court now grants your application for probation and accordingly you are placed on probation for a term of five years from this date. Court costs to be paid within ninety days. That will be all.”

No further proceedings were had and no written order of probation was entered in the cause until approximately 21 months later.

On March 10, 1967, the court signed an order setting a hearing date (April 10, 1967) for revocation proceedings, which ordered the arrest of defendant and set bail. The order was filed on March 29, 1967, and on that date a petition to revoke probation was filed, to which was attached and made a part thereof, a written order of probation, entered on March 29, 1967. The record fails to disclose whether the order of probation was even served on defendant. The grounds for revocation alleged in the petition were that the defendant had on two occasions been convicted for driving without a driver’s license and had failed to pay the costs of the original proceeding. The written probation order entered on March 29,1967, in addition to the conditions set forth in c 38,117-2 (a) (1), (2), and (3), and the payment of costs within 90 days as may be provided under § 117-2 (b) 3, imposed the following conditions, purportedly under (b) 5, prohibition of the use of alcoholic beverages or frequenting places where such beverages are served; prohibition of association with criminals or attendance at places where criminals or persons of ill repute congregate or assemble; and prohibiting absence from defendant’s house from 11:00 p. m. until departure for the place of employment the following morning, without consent of the probation officer.

On May 15, 1967, a hearing was held on the petition for revocation in which the State presented evidence of two convictions for driving without a driver’s license and nonpayment of costs in the original proceedings. Over the Public Defender’s objection, evidence of drinking and frequenting places where drinks were sold and gambling was prevalent. On cross-examination, the Probation Officer who was the State’s sole witness, admitted he had never seen defendant in a tavern. The Probation Officer further testified with reference to defendant’s family, and his employment. Defendant presented evidence of his family, his employment, and his inability to pay the court costs which had been called to the attention of both the Court and the Probation Officer. He testified concerning the emergency nature of the two driver’s license violations and that he had a valid Missouri Driver’s License which he had previously lost at the time of the two convictions for driving without a license.

The Court thereupon found violations of the terms of probation, revoked probation and sentenced defendant for a term of not less than 3 nor more than 10 years on the original theft conviction.

There was never any hearing or determination that probation had been violated prior to March 29, 1967, and as a result the court by the entry of the written order on that date had no authority to alter the conditions of probation. C 38, § 117-3 (d), Ill Rev Stats 1963. As a result, those conditions imposed by that order which were not included in the original oral order of probation were a nullity and defendant should not have been charged with violating them in the petition for revocation.

Under the applicable statute, c 38, § 117-3, supra, and case law, the question of revocation of probation is a matter resting within the discretion of the trial judge. In view of the evidence of violations of the Drivers License Act, c 95%, § 6, Ill Rev Stats 1965, the court did not abuse its discretion in ordering the revocation of probation. We consider People v. Price, 24 Ill App2d 364,164 NE2d 528, the leading case with reference to revocation of probation. From that case and the later decisions of People v. Headrick, 54 Ill App2d 44, 203 NE 2d 157; and People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113, and the provisions of c 38, § 117-3, the guidelines for the revocation procedure are as follows:

(1) The defendant must be notified of the alleged violations of his probation; (2) The defendant must be given an opportunity to defend against, and to refute, the alleged violations; (3) The State, having the burden of proof, must prove the alleged violations by the preponderance of the evidence, by competent evidence; (4) A conscientious judicial determination must be made according to accepted and well recognized procedural methods.

In People v. Castanza, 92 Ill App2d 419, 236 NE2d 251, the question before the Court was the propriety of the admission of evidence of a violation of defendant’s probation not set out in the petition. The Court held while it was error to admit such evidence, it was not reversible error since the specified violation was proved by a preponderance of the evidence. While this record does not show that defendant received a copy of the petition for revocation we do know that he was present with counsel at the hearing, and made no objection to the hearing. Failure to be presented with the charge was not raised before the trial court, and in such circumstances we will presume defendant had knowledge of the charges against him. People v. Headrick, 54 Ill App2d 44, 203 NE 2d 157,159.

As a result of the foregoing, we affirm the revocation of probation.

Defendant next contends that no hearing in aggravation and mitigation was held. Our language in People v. Mitchell, 67 Ill App2d 124, 214 NE2d 124, with that of People v. Lillie, 79 Ill App2d 174, 223 NE2d 716, makes it quite clear that a hearing in aggravation and mitigation is required before sentence is imposed as a result of revocation of probation. Here the State suggests that the hearing on revocation met all the requirements of a hearing on mitigation and revocation, while the defendant contends that the record is absent any showing of a knowingly made waiver of such hearing or such hearing. Due to the circumstances here present, we do not pass on these contentions and for the purpose of determining whether the sentence was excessive, adopt the record as we find it.

No circumstances of aggravation are shown. The record is barren of any showing to the effect that the time defendant has served is not adequate punishment for a first unaggravated offense of theft. The record discloses that defendant has a family and has made an effort to support them. Defendant’s record was sufficient to grant him probation in the first instance, and obviously there was a possibility of rehabilitation. As we said in People v. Lillie, supra:

“Excessive minimum sentences, imposed by the courts, may defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished.”

We believe that, taking into account the guidelines for the proper exercise of our power to reduce sentences, as set forth in People v. Taylor, 33 Ill2d 417, 211 NE2d 673, that this is a proper case for reduction.

Accordingly, the judgment is affirmed and the sentence reduced to a term of not less than 26 months or more than 10 years.

Judgment affirmed and sentence reduced.

GOLDENHERSH and MORAN, JJ„ concur.

       C 38, § 117-2, Ill Rev Stats 1963: Conditions of Probation.
      (a) A person admitted to probation shall be subject to- the following conditions:
      (1) Not violate any penal statute or ordinance of any jurisdiction.
      (2) Not leave the State without the consent of the court.
      (3) Make a report to such person or agency and at such times as the court may direct and shall appear in person before the court at such time as the court may direct.
      (4) Execute a recognizance in accordance with the provisions of Article 110 of this Code.

        (b) A person admitted to probation may be subject to the following conditions:
      (1) Imprisoned in a place of confinement other than a penitentiary for a period not to exceed one year and in no event to exceed the maximum penalty provided for the offense.
      (2) Pay within a period set by the court a fine not to exceed the maximum provided for the offense.
      (3) Pay the cost of the proceedings as set by the court.
      (4) Make restitution or reparation within the period of probation in an amount not to exceed actual loss or damage to property or medical expense resulting from bodily injury to person.
      (5) Perform or refrain from performing such other acts as may be ordered by the court.


author: GOLDENHERSH, P. J.

text:
    John T. Gholson, Deborah Gholson, Clarence Barker, Wilma Barker, Lucille Barker, Glen Sutton, Lena Sutton, Freda Tarlton, Claude Owens, Emma Rae Owens, Committee of Ten and Attorneys in Fact for All Petitioners Residing in Broughton Elementary School District No. 99 of Hamilton and Saline Counties, Illinois, Seeking Detachment of Territory from Eldorado Township High School District Number 102 of Saline and Hamilton Counties and Annexation to McLeansboro Township High School District Number 58 of the Counties of Hamilton and Franklin, Illinois, Plaintiffs-Appellants, v. County Board of School Trustees of Saline County, Illinois, and County Board of School Trustees of Hamilton County, Illinois, Defendants-Appellees.
    Gen. No. 68-110.
    Fifth District.
    July 23, 1969.
    Frank Bonan, of McLeansboro, for appellants.
    Conger & Elliott, of Carmi (Ivan A. Elliott, Jr., of counsel), for amicus curiae.

      James W. Sanders, of Marion, for appellees.
   GOLDENHERSH, P. J.

Plaintiffs appeal from the judgment of the Circuit Court of Saline County affirming the decision of the County Board of School Trustees denying plaintiffs’ petition to detach certain territory from one high school district, and annex it to another.

Plaintiffs, acting as the committee of 10 for themselves and other persons, constituting two-thirds (%) or more of the legal voters residing therein, filed a petition to detach the territory in question from Eldorado Township High School District No. 102, of Saline and Hamilton Counties, and annex it to McLeansboro Township High School District No. 58 of Hamilton and Franklin Counties.

The County Board of School Trustees of Saline County denied the petition, and the County Board of School Trustees of Hamilton County granted the petition.

Plaintiffs sought administrative review, the circuit court affirmed the decision of the County Board of School Trustees of Saline County, and this appeal followed.

While the administrative review action was pending in the circuit court, a petition was filed with the Superintendent of Schools of Saline County requesting an election to organize a Community Unit School District, (c 122, § 11-6, et seq., Ill Rev Stats 1967). The area described in the petition included the territory in controversy here. The Superintendent of Schools conducted a hearing, found that it was to the best interests of the schools of the area and the educational welfare of the pupils that the district be organized. No administrative review was sought, an election was ordered, the proposition carried and the community unit school district was organized.

This court allowed the petition of Broughton Community Consolidated School District No. 99 of Hamilton County, to file an Amicus Curiae brief. It asserts that the area which plaintiffs sought to detach was included in the Broughton District, all of the buildings of the Broughton grade schools are located therein, and are now included within the new community district, leaving Broughton without any buildings. Broughton contends that the filing of the petition, the conducting the hearing and election, and the organization of the new community unit district were all done in violation of the provisions of c 122, § 7-8, Ill Rev Stats, because the administrative review of the order of the County Board of School Trustees serves as a supersedeas and therefore, the subject area cannot be affected by the organization of the new district. It prays reversal of the judgment, and the entry of an order annexing the territory to McLeansboro Township High School District No. 51.

Plaintiffs contend that the judgment is contrary to law and the manifest weight of the evidence.

Defendants argue that the organization of the community unit school district has made the case moot, and alternatively, that the judgment is amply supported by the evidence and should be affirmed.

In Hatfield v. Stilley, 41 Ill App2d 203, 190 NE2d 388, the court specifically rejected the contention that the restrictions contained in Article 7 of the School Code apply to Article 11.

In Community Unit School Dist. No. 2, Marshall County v. Moore, 46 Ill App2d 14, 195 NE2d 833, relying upon Pritchett v. County Board of School Trustees of White County, 5 Ill2d 356, 125 NE2d 476, the court held that a petition to organize a new unit district, whether filed before or after the filing of annexation proceedings involving all or part of the same territory has priority and proceeds independently of the annexation proceedings.

It appears, therefore, that the affirmance or reversal of the judgment cannot affect the status of the territory in question as a part of the new community school district. The issue is, therefore, moot and the appeal must be dismissed.

Appeal dismissed.

MORAN and EBERSPACHER, JJ., concur.