author: MR. JUSTICE DAVIS

text:
    Marcella Stanard, Plaintiff-Appellee, v. Rhymon Stanard, Defendant-Appellant.
    Gen. No. 68-102.
    Third District.
    April 25, 1969.

      Roger V. Pierson, of Princeton, for appellant.
    Rainey and Murphy, of Princeton, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Marcella Stanard, brought this suit for divorce against the defendant, Rhymon Stanard, on grounds of desertion and mental cruelty. The matter was heard by the trial court, which denied the divorce on grounds of desertion, but granted it on the charge of mental cruelty. The defendant appealed from the decree for divorce.

He contends that the complaint was not sufficient to state a cause of action on the grounds of mental cruelty, and that the decree granting the divorce on such grounds was contrary to the manifest weight of the evidence.

An answer was filed by the defendant, which denied the material allegations of Count I of the complaint which charged desertion; and he filed a motion to dismiss Count II of the complaint which alleged mental cruelty. Subsequently, he filed an amended motion to dismiss this count. These motions set forth as grounds for dismissal: (1) that this count was insufficient at law; (2) that it did not state a cause of action; (3) that the allegations contained therein were vague and uncertain with respect to dates and did not constitute grounds for divorce; and (4) that the matters raised therein were res adjudicata. The motions were denied and the defendant did not file an answer to Count II of the amended complaint.

In this court, the defendant charges that the complaint was defective in that it did not allege the effect of the acts of which the plaintiff complained, and that the acts of the defendant were without provocation.

Under the provisions of section 45 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 45(2)), the defendant’s motion to dismiss Count II of the complaint should have specified the manner in which the complaint was insufficient. Markovits v. Markovits, 2 Ill2d 303, 308, 309, 118 NE2d 255 (1954); Danville Producers Dairy v. Preferred Risk Mut. Ins. Co., 33 Ill App2d 359, 361, 362, 179 NE2d 439 (1961).

The defendant did not allege in his motion that the complaint was defective in failing to allege either the effect of the acts of the defendant or the absence of provocation. These issues were not presented to the trial court by motion because of the defendant’s failure to specifically point out the defects complained of.

Count II of the complaint sets forth seventeen specific incidents purporting to represent extreme and repeated mental cruelty towards the plaintiff by the defendant. The complaint neither specifically sets forth the absence of provocation, nor the cumulative effect upon the plaintiff of these various alleged acts. Absent a total failure to state a cause of action, the defects, of which the defendant complained with reference to the plaintiff’s complaint for divorce on the grounds of mental cruelty, were waived by him because he did not properly object to the sufficiency of these allegations in his motions. Bremer v. Bremer, 4 Ill2d 190, 192, 122 NE2d 794 (1954); Wilson v. Wilson, 56 Ill App2d 187, 192, 193, 205 NE2d 636 (1965); Grizzard v. Matthew Chevrolet, 39 Ill App2d 9, 17, 188 NE2d 59 (1963).

This is not the first divorce action between the parties. The plaintiff sought, but was denied, a divorce from the defendant in February, 1965. The parties have not lived together since that date.

The plaintiff was the only witness on the issue of mental cruelty. She testified on both direct and cross-examination. The defendant did not present any evidence. On direct examination, the plaintiff testified to the following incidents:

On Memorial Day, 1966, one of the children had measles and she told the defendant he could not have the children on that occasion; that he became angry, swore at her and talked to her in a “very, very, dirty manner”;
On an occasion at the Elks Club when she was having dinner with two ladies, the defendant came over and asked in a loud tone if she was not out kind of late; started talking about the children, and then started using vile language, cussing and swearing;
The defendant would drink to excess, and when he came home he would talk loud, cause fights and swear, and on these occasions he would also bring home a steak for himself, prepare it, and then go to bed;
In 1964 and 1965, the defendant played poker, went to the golf course and to the races — enjoyed all recreational activities alone; that shortly after this, the mortgage on the house was foreclosed;
When the plaintiff’s mother died, the defendant used the occasion as an excuse to borrow money purportedly to pay for certain travel and funeral expenses, but, apparently, the money was not so used;
When one of their daughters was graduating from high school, the defendant took the money which she was saving for a prom dress; however, he gave the money back to the daughter;
The defendant would not invite company to the house;
He refused to give the plaintiff her military records (she had been a WAC), and threatened to burn them;
On an occasion when the defendant and one of their daughters were in the hospital, he hollered and raved at the plaintiff because she took an electric fan from his room to that of their daughter; and
During the last year, the defendant would tell the plaintiff of his other women.

On cross-examination, the plaintiff testified that after they had separated, from time to time, she denied the defendant the right to visit his own children; that the altercation at the Elks Club related to the fact that the defendant had been denied the right to visit his children ; that during the eighteen years that they had been married, he had not missed any time from work because of drinking; that when the defendant prepared his own steak, she had refused to fix it for him, and, at that time, the freezer in the basement was full of meat; that when he took money from his daughter’s dresser drawer, which she had been saving for a prom dress, there were at least one hundred fifty silver dollars in the drawer that were not taken, and the plaintiff had control over this money.

She further testified on cross-examination, that the mortgage foreclosure proceedings were not started until after the defendant had been sick and had been hospitalized for some time — apparently, severely ill; that the reason that he threatened to burn her military papers was that she was holding some checks which had been mailed to him from the race track for the purchase price of a horse; that when both the defendant and their daughter were in the hospital, they visited back and forth and had breakfast together; and that the daughter was visibly upset when he was taken from the local hospital to Hines hospital.

The plaintiff’s evidence appears noticeably lacking in its failure to show an absence of provocation. Prior to 1967, the Divorce Act permitted a divorce on the grounds of cruelty — only, in the event of physical cruelty. As amended in 1967, the Act added as a ground that a divorce may be obtained from one who has been “guilty of extreme and repeated physical or mental cruelty.”

It has long been held that one may not provoke physical retaliation on the part of his or her spouse and complain of such retaliation unless it is out of all proportion to the provocation. Trenchard v. Trenchard, 245 Ill 313, 315, 92 NE 243 (1910); De La Hay v. De La Hay, 21 Ill 251, 254 (1859). See also: 24 Am Jur2d, Divorce and Separation, § 174. It should be apparent from the manner in which the statute was amended that the “physical” and “mental” cruelty are alternative grounds for divorce. Thus, the Divorce Act recognizes that varying types of conduct of the offending party may constitute different types of cruelty. This manner in which the statute was amended, as well as legal precedent and common sense, dictates that a party must show lack of provocation when a right to a divorce is based upon mental cruelty as well as when based upon physical cruelty: this is an essential element of the complaining party’s case.

There is insufficient evidence in the record to establish a lack of provocation for the acts of which the plaintiff complains. Indeed, the evidence suggests at least some provocation for the acts alluded to. The plaintiff’s failure to prove lack of provocation may be due to her interpretation of section 8 (a) of the Divorce Act (111 Rev Stats 1967, c 40, par 9(a)), which provides that in every action for divorce commenced after its effective date, “the fault or conduct of the plaintiff, unless raised by the pleadings, is not a bar to the action nor a proper basis for the refusal of a decree of divorce.” The plaintiff’s brief indicates that she interpreted this section to mean she did not have to show a lack of provocation.

Generally, a recriminatory offense must be of the same statutory character as the ground for divorce (Levy v. Levy, 388 Ill 179, 186, 57 NE2d 366 (1944)); and a divorce on the ground of adultery is not barred by a defense of cruelty (Peck v. Peck, 16 Ill2d 268, 278, 279, 157 NE2d 249 (1959)); habitual drunkenness (Zimmerman v. Zimmerman, 242 Ill 552, 558, 90 NE 192 (1909)); desertion (Nesheim v. Nesheim, 293 Ill App 257, 260, 12 NE2d 222 (1938)); or other statutory grounds (Decker v. Decker, 193 Ill 285, 294, 61 NE 1108 (1901)). However, adultery is a good defense to any other statutory ground for divorce, including the charge of adultery. Decker v. Decker, supra; Kovac v. Kovac, 26 Ill App2d 29, 54, 167 NE2d 281 (1960). In Zimmerman, the plaintiff sought a divorce on the grounds of cruelty, and upon trial it appeared that she had been guilty of adultery. At page 558, the court held that where this fact was established, “whether set up by pleadings or not” the divorce will not be granted. See also: Nesheim v. Nesheim, supra, 259.

We believe that section 8(a) of the Divorce Act requires that recrimination must be raised in the pleadings if it is to be raised as a defense. Its purpose was to place the defense of adultery on the same footing as any other recriminatory conduct. Consequently, adultery may not now be raised as a defense to the divorce action, unless pleaded by the party.

This particular section of the Act has no application to her action. First, her action was commenced before its effective date, and second, the section was not intended to alter what might, or might not, constitute physical or mental cruelty. Whether certain acts will constitute physical or mental cruelty still depends upon the total factual background surrounding the conduct under question. This includes the particular emotional and personal makeup of the parties, and the varying circumstances under which any of the incidents occurred that may have given rise to the acts. An act which may constitute either physical or mental cruelty, when committed without any provoking force, may not be a sufficient basis for divorce when committed in certain provoking situations. It was the plaintiff’s burden to prove that the acts complained of — committed in a particular setting —were sufficient to justify a divorce.

We believe that Count II of the complaint, which charged mental cruelty, failed to state a cause of action. This defect may be raised on review. Trenchard v. Trenchard, supra, 315; Chatterton v. Chatterton, 132 Ill App 31, 37 (1907); Curlett v. Curlett, 106 Ill App 81, 85 (1903).

Under the facts set forth in the record, it appears that the plaintiff neither alleged nor proved lack of provocation, and even though the defendant failed to answer Count II, the decree concluded him only as to all matters of fact alleged in the complaint. The sufficiency of the complaint itself, and its averments, may be attacked as not justifying the decree. Dillman v. Dillman, 409 Ill 494, 499, 100 NE2d 567 (1951); Curlett v. Curlett, supra, 85. The decree is, therefore, subject to attack upon review with reference to lack of provocation.

The plaintiff’s cause of action falls somewhat short in another regard: the effect, if any, of the defendant’s acts upon her. She did testify that on the one occasion in the hospital, the conduct of the defendant caused her to cry. There are no allegations in the complaint and there is no other evidence in the record which suggests that the conduct of the defendant was such as to cause the plaintiff’s life, person or health to be endangered. We do not conclude from the evidence that the unprovoked conduct of the defendant was sufficient to render her life miserable and unendurable, and to cause her intense embarrassment, humiliation and anguish. The trial court apparently took a contrary view in that it found that such conduct would render her life intolerable.

Apparently, the trial court was moved by the fact that this marriage was obviously dead; that the parties had not lived together for some time, and would not now do so; and that to permit the marriage to continue would “simply be continuing an existence of a status which is a constant source of friction.” The observations of the trial court are patently correct.

However, as has been reiterated time and again, the law favors the preservation of the estate of marriage and will dissolve a marriage only upon sufficient proof of the grounds set forth under the statute. People ex rel. Doty v. Connell, 9 Ill2d 390, 394, 137 NE2d 849 (1956); Kinsley v. Kinsley, 388 Ill 194, 197, 57 NE2d 449 (1944).

We believe that the lack of allegations and proof with reference to the want of provocation of the defendant’s acts by the plaintiff’s conduct, and of the effect of his conduct on her life, person or health, resulted in a decree of the trial court which was unwarranted and contrary to the manifest weight of the evidence; and that the cause should be remanded to the trial court for a new trial. Accordingly, the cause is reversed and remanded to the trial court for a new trial.

Reversed and remanded.

ABRAHAMSON, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: JUSTICE ABRAHAMSON.

license: Public Domain

text:
    Broadway Electric Co., Inc., an Illinois Corporation, Plaintiff-Appellee, v. William Zeigler & Son, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 68-159. (Abstract of Decision.)
    Second District.
    April 17, 1969.
    Runyard, Behanna, Conzelman & Schultz, of Waukegan, for appellant; Reno, Zahm, Polgate & Skolrood, of Rockford, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


text:
    Kenneth A. Cooper and Beverly Ann Cooper, Plaintiffs-Appellees, v. Village of Lincolnshire, a Municipal Corporation, and Miles L. Abel, Building Commissioner, Defendants-Appellants.
    Gen. No. 68-125.
    Second District.
    April 14, 1969.

      Klein, Thorpe, Kasson and Jenkins, of Chicago (Robert F. Peck, of counsel), for appellants.
    Eugene M. Snarski, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

On May 1, 1967, the plaintiffs-appellees, Kenneth A. Cooper and Beverly Ann Cooper, presented building plans and specifications for the construction of a single-family residence in the Village of Lincolnshire to its building commissioner and requested a permit to construct a single-family dwelling, which permit issued on May 31, 1967. By its terms, the permit was expressly conditioned on the agreement of the plaintiffs that the construction of the building would conform to all ordinances of the Village relating to the construction of buildings; and was granted by the Village upon the express condition that, whether or not the plans had been approved, the plaintiffs were not relieved from constructing the work in any manner other than according to the Village ordinances.

Thereafter, the plaintiffs proceeded to clear the real estate preparatory to construction, and to excavate for the installation of footings and a concrete basement. The plans and specifications submitted to the building commissioner neither indicated the elevation at which the basement floor of the proposed residence was to be constructed, nor the size of the service pipe to be used to supply water to the proposed residence from the Village water system — there being no requirement for such a showing in the Building Code.

On August 3, 1967, the plaintiffs applied for a permit to connect a one and one-half inch water service pipe to the water system of the Village, and submitted the tap-in fee of $100. The Village, by letter dated August 12,1967, returned the $100 to the plaintiffs and advised them that their request for a permit for a one and one-half inch water tap was refused on the ground that the Building Code required that a house service pipe to a single-family residence shall be one inch; that an on-site inspection revealed that the excavation for the foundation of the basement of the residence was in the flood plain and, therefore, in violation of the Zoning Ordinance of the Village, which required that any new building shall have a minimum elevation, including the basement floor, of 646 feet above mean sea level; and that before further work was done, such violations should be corrected.

The plaintiffs then filed a petition for a writ of mandamus giving rise to this proceeding. In summary, they alleged that they owned the subject property in the Village which had issued a building permit to them for the construction of a residence; that they had begun to clear the premises and excavate, and had expended large sums of money in reliance on the issuance of the building permit; and that they had discontinued work on the property after receiving notice from the Village that their request for a one and one-half inch water tap had been denied and that their excavation was below 646 feet above the mean sea level, in violation of its Zoning Ordinance.

The petition prayed that the building commissioner be commanded to approve the plans and specifications previously submitted by the plaintiffs, and to reissue to them a building permit for the construction of the building in accordance with such plans and specifications at a depth two feet lower than the existing excavation.

On the trial of the case, the defendants withdrew their answer and admitted all allegations of fact contained in the petition; and moved that the relief prayed for in the petition be denied on the theory that the petition neither specifically nor by inference set forth a clear, legal right for a writ of mandamus on the part of the plaintiffs, or a clear, legal duty on the part of the defendants to perform the acts prayed for.

The trial court denied the defendants’ motion, and ruled that the relief prayed for in the petition be granted. An order was then entered by the trial court directing that the writ of mandamus be issued commanding the building commissioner to rescind the stop-work order issued by the Village and to permit the plaintiffs and their agents to construct a building in accordance with plans and specifications submitted to the Village. The order further directed that the defendants permit a connection to the water main in front of the plaintiffs’ property for a service pipe of one and one-half inches from the street main to the water meter located on the plaintiffs’ property, upon payment of the fee of $100.

The defendants filed a motion to vacate the order of the court, which motion was denied, and this appeal followed.

There appears to be no dispute as to the above stated facts except that the plaintiffs contend that various provisions of the municipal ordinances of the Village concerning standards, applicable to new construction, which are relied on in the defendants’ arguments — hut which are not contained in the abstract — cannot properly be considered by this court on appeal. We find no merit to this contention.

Section 1 of an Act in relation to Judicial Notice (HI Rev Stats 1967, c 51, par 48a) provides:

“Every court of original jurisdiction, . . . shall take judicial notice of the following:
“First. All general ordinances of every municipal corporation within the city, county, judicial circuit or other territory for which such court has been established, or within the city, county or judicial circuit from which a case has been brought to such court by change of venue or otherwise.”

And, section 2 thereof (111 Rev Stats 1967, c 51, par 48b) provides:

“Upon the review by any court of appellate jurisdiction of a judgment, order or decree of an inferior court the court of appellate jurisdiction shall take judicial notice of all matters of which the inferior court was required to take judicial notice, . . . .”

It is clear to this court that the various municipal ordinances of the Village are proper subjects for judicial notice by this court. City of Countryside v. Oak Park Nat. Bank, 78 Ill App2d 313, 315, 223 NE2d 293 (1966); Liberty Nat. Bank of Chicago v. Vance, 3 Ill App2d 1, 5, 120 NE2d 349 (1954).

Mandamus is an extraordinary legal remedy and will not lie until a clear and legal right to the writ becomes apparent. People v. County of LaSalle, 378 Ill Ill 578, 580, 39 NE2d 25 (1942). In the case at bar, the plaintiffs’ petition is fatally deficient in several respects. Facts were not alleged in the petition which showed a clear, legal right to the relief granted, or a clear, legal duty on the part of the defendants to perform any act under a municipal ordinance of the Village, and the writ of mandamus will be awarded only where there is such a showing. People v. City of Chicago, 280 Ill 576, 580, 117 NE 779 (1917); People v. Busse, 248 Ill 11,16, 93 NE 237 (1910).

Instead, the plaintiffs alleged general facts which the defendants admitted by withdrawing their answer to the petition, but which established no right of the plaintiffs or duty on the part of the defendants. However, in order for the plaintiffs to be entitled to a writ of mandamus, there must necessarily be a showing that they were in compliance with the applicable ordinances governing issuance of building permits. People v. City of Chicago, supra, 580; People v. Busse, supra, 18, 19. Furthermore, the petition did not allege that the defendants refused the plaintiffs the right to construct a residence according to their plans and specifications. The record, in fact, showed a willingness on the part of the defendants to permit the construction if the applicable building ordinances were complied with.

The writ of mandamus will not issue to compel an act which the person sought to be coerced is willing to do. The purpose of the writ is to compel action by the unwilling. People v. Circuit Court of Pulaski County, 393 Ill 520, 528, 66 NE2d 420 (1946); People v. Dunne, 258 Ill 441, 447, 101 NE 560 (1913); People ex rel. Cobine v. Angsten, 274 Ill App 5, 9 (1933).

The plaintiffs urged the rule that no pleading is bad in substance which contains such information as reasonably informs the opposite party of the claim he is called upon to meet. We have no quarrel with this rule in that the general policy of the Civil Practice Act has been toward a liberal construction of pleadings. However, acceptance of this rule does not do away with the necessity of stating a cause of action in any case including one asking for a writ of mandamus.

In Daniels v. Cavner, 404 Ill 372, 88 NE2d 823 (1949), at pages 375 and 376, the court stated:

“Mandamus is an extraordinary remedy, and one seeking the writ must show a clear right to it. (Wilson v. Board of Education, 394 Ill 197; Friedman v. City of Chicago, 374 Ill 545; People ex rel. Davidson v. Bradley, 382 Ill 383.) A petition for mandamus must set forth every material fact necessary to show that it is the duty of the person against whom the writ is sought to perform the acts sought to be compelled. (People ex rel. City of Chicago v. Board of Review, 326 Ill 124; People ex rel. Parker v. Board of Appeals, 367 Ill 559.) The burden rests on the relator to show every material fact necessary to establish the existence of such right and duty. (People ex rel. Callahan v. Whealan, 356 Ill 328.)”

Even though we accept the allegations of the plaintiffs’ petition as true, it still fails to state a cause of action. Consequently, the judgment awarding the writ of mandamus is reversed and the cause remanded to the Circuit Court with directions to cancel the writ and dismiss the petition.

Reversed and remanded with directions.

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


author: MR. JUSTICE ABRAHAMSON

text:
    Charles Butts, Plaintiff-Appellant, v. The Civil Service Commission of the City of Aurora, County of Kane, George C. Trumper, Chairman, Nick Womack, Secretary, Carl F. King, Jr., William Kleckner, Burton Reynolds, and Michael Sestack, Members, Defendants-Appellees.
    Gen. No. 68-167.
    Second District.
    April 17, 1969.
    Redman, Shearer & O’Brien, of St. Charles, for appellant.
    David P. Peskind, of Aurora, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

On March 3, 1967, the plaintiff, a member of the Aurora City Fire Department, filed his complaint for mandamus against the Civil Service Commission of the City of Aurora and the individual members thereof. The complaint alleged that on November 26, 1963, the plaintiff took a competitive promotional test conducted by the Commission for the purpose of establishing an. eligibility list for promotion to the rank of lieutenant within the Department. On December 4, 1963, the secretary of the Commission forwarded the results of the test to the City with a certified eligibility register. As a result of his score on the test, the plaintiff ranked 11th on the list for promotion.

On January 18, 1966, the Commission posted a new promotion register in all fire stations that furnished the results of another competitive test, apparently given in November, 1965. The notice included the following statement:

“The above scores and positions are subject to change with military preference points added. Those who have qualified military preference points and wish to apply them to their score must request this in writing, and must furnish the Commission a copy of their military discharge papers along with their written request before 5:00 p. m., January 31, 1966.”

The plaintiff alleged that this notice informed him for the first time of his right to preference as a military veteran and that he then made numerous demands that the Commission add his preference points to the results of the 1963 test but that they “failed and refused” to do so. On April 14, 1966, the Commission certified the new eligibility list to the City that included the plaintiff with preference points added to his final grade.

The complaint further alleged that the Commission had the mandatory duty to apply the military preference points to the 1963 list under the provisions of section 10-1-16 of Article 10 (EMPLOYEES AND EMPLOYMENT) of chapter 24 of the HI Eev Stats and asked the trial court to “enter its Order of Mandamus directing the Civil Service Commission of the City of Aurora, Hlinois, to amend the eligibility list as filed on December 3, 1963, and promote him to the grade of lieutenant retroactively as of the date of which his appointment would have been made had the Commission carried out the mandate of the statutes provided herein.”

On July 26, 1968, the day set for trial, the court, on its own motion, dismissed the complaint on the grounds that the 1963 eligibility list had been superseded by the 1966 list and that therefore the question was moot.

Section 10-1-13 of article 10 (Ill Eev Stats, c 24, § 10-1-13) provides that vacancies in certain classified municipal services shall be filled by promotion, where practicable, and that the civil service commission shall conduct competitive examinations to determine the qualifications ' of those who seek promotion. The results of those examinations are to be certified by the commission and submitted to the proper appointing power of the municipality in the form of registers listing all applicants who attained the minimal grade required in order of relative excellence.

Section 10-1-16 provides that “The civil service commission shall give preference for promotional appointment . „ .” to those persons who were engaged in the military or naval service of the United States during certain designated periods of time “. . . whose names appear on existing promotional eligible registers or promotional eligible registers that may be created . . .” by adding points based on the length of such military or naval service to the examination grades. The section also states that “The numerical result thus attained shall be applied by the civil service commission in determining the position of such persons or any eligible list which may have been created or will be created as the result of any promotional examination held hereunder for purposes of preference in certification and appointment from such eligible list.” It further provides that “Such preference shall be given after the posting or publication of any eligible list or register resulting from said examination and before any certifications or appointments are made from such list or register.”

The plaintiff contends that under the provisions of section 10-1-16 the commission had the mandatory duty to add his military preference points to the grade attained on the November 3, 1963, examination before it certified the results. He contends further that the failure of the commission to carry out this mandate was culpable negligence and deprived him of the vested right given him by the State to a preferred position on the eligible list.

The language contained in those sections of the statute that we have quoted make it apparent that the legislature intended to confer certain benefits to veterans in civil service employment, benefits that are not subject to the discretionary control of a civil service commission. The person entitled to such benefits is entitled as a matter of right granted to him by the General Assembly of the State of Illinois and not as a privilege extended by a local community or commission. It does not necessarily follow, however, that the commission must automatically credit any applicant for appointment or promotion with his military preference points. It would rather appear that the person entitled to the right of preference as a veteran must affirmatively assert it to the commission. Another portion of section 10-1-16 states:

“No person shall receive the preference for a promotional appointment granted by this section after he has received one promotion from an eligible list on which he was allowed such preference and which was prepared as a result of an examination held on or after September 1,1949.”

Since the right to preference can be used to advantage only once, the person entitled to the right should retain the power to choose when it should be used. A career employee would naturally choose to utilize his right only when it would be crucial for his advancement. If he had scored so high in a competitive examination that the addition of preference points would be superfluous, he would obviously defer the exercise of his right for some future, more crucial, use. If the commission were to automatically add the preference points to the examination score, it could deprive the veteran of this critical power of choice. The logic of this interpretation is reinforced by consideration of the provision that the preference is to be given only after the examination results have been posted or published. It is clear that the purpose of this requirement is to permit the veteran the opportunity to decide whether or not he should exercise his right. If the preference was to be automatically given by the commission, there would be no need for a publication of the examination results without the addition of preference points. We, therefore, conclude that it would have been improper for the commission to give preference to Butts on his 1963 test without his prior request.

The plaintiff also asserts that the commission had the duty to at least inform him of his right to preference prior to the certification of earlier register. There is nothing in the statutes to indicate that the commission had such a duty. Section 10-1-16 was added to Article 10 by amendment on June 17, 1963, and it would appear that the commission, in November, 1963, was as ignorant of its enactment as was the plaintiff.

As we have seen, the prayer in the plaintiff’s complaint asked that the eligibility list filed on December 3, 1963, be “amended” to reflect his standing with preference points included, and also that the commission “promote him to the grade of lieutenant.” The commission has no authority to appoint, but only to conduct competitive examinations and certify the results to the body possessing the power of appointment. In any event, section 10-1-16 gave Butts, and other qualified veterans, the right to preferred positions on eligibility registers if requested, but certainly does not grant to anyone a vested right to a civil service appointment. A civil service position is in the nature of a public office, not a property right. People ex rel. Baker v. Wilson, 39 Ill App2d 443, 189 NE2d 1; People ex rel. Carter v. Hurley, 4 Ill App2d 24, 123 NE2d 341.

It is axiomatic that the remedy of mandamus is an extraordinary one and should be used only where the defendant has a clear duty to perform some act which he has failed or refused to do. People ex rel. Iasello v. McKinlay, 409 Ill 120, 98 NE2d 728; People v. City of Chicago, 382 Ill 500, 48 NE2d 329. Here, the defendant civil service commission not only had no duty to promote the plaintiff to the rank of lieutenant but clearly no power to do so. Likewise, the commission had no authority to grant preference to the plaintiff on the eligibility registers without his prior request. Since the plaintiff did not so request until the 1963 register was superseded by the 1965 list, the commission obviously could not carry out his request. Under the circumstances, the action of the trial court was entirely proper and should be affirmed.

Affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: SMITH, J.

text:
    Wayne Windmiller, as Conservator of the Estate of William C. Yokem, Incompetent, and Kathryn Yokem, Petitioners-Appellees-Cross Appellants, v. Frank McCartney, Isabel McCartney, Connecticut General Life Insurance Company, a Corporation, General Telephone Company of Illinois, a Corporation, Northern Illinois Gas Company, a Corporation, Kenneth Stark and William C. Yokem, Defendants, Frank McCartney, Defendant-Appellant-Cross Appellee.
    Gen. No. 11,005.
    Fourth District.
    April 24, 1969.
    Grigsby & Irving, and Cecil J. Burrows, of Pittsfield (Brice Irving, of counsel), for appellant.

      Drach, Terrell & Deffenbaugh, of Springfield (Raymond L. Terrell, of counsel), for appellees.
   SMITH, J.

This is an appeal by a creditor from a decree of the Circuit Court of Pike County granting a petition of a conservator for the sale of his ward’s estate. The wife of the incompetent joined in the petition, an accounting was had, and a decree of sale entered. The defendant-McCartney appeals because the trial court refused admission into evidence of a red memorandum book showing cash loans to the incompetent and refused to allow interest on loans advanced subsequent to a written agreement. The conservator cross-appeals because the defendant-McCartney purchased other properties of the incompetent at tax sales and the trial court permitted him to be reimbursed out of the proceeds of this sale.

Yokem owned 315 acres of farmland and from time to time McCartney bailed him out on various items of indebtedness. These items of indebtedness were kept in a regular journal and were finally consolidated into a single amount. Yokem tried to obtain a loan and couldn’t. He deeded his land to McCartney and McCartney obtained the loan from the defendant-life insurance company. McCartney then entered into a contract for a deed with Yokem. All of these transactions were prior to the time that Yokem was adjudicated incompetent. Allegedly from time to time McCartney made cash loans to Yokem and these items were entered in a little book that McCartney carried on his person. The trial court refused to admit this book into evidence and the defendant-McCartney contends this is error. McCartney sought to establish cash loans of $3,000, on the strength of this little red book.

McCartney testified that the book was a book of original entries, that the entries were made by him and that they were just and true, and made at approximately the same time of the transaction. Thus so far as this testimony is concerned, he complied with the rules laid down in Rude v. Seibert, 22 Ill App2d 477, 161 NE2d 39, and Higgins v. Higgins, 72 Ill App2d 179, 219 NE2d 88. The petitioners concede that a book of account as to which a proper foundation has been thus made may be introduced as against a conservator if the book of account relates to a transaction other than a cash loan. Both parties discussed § 3 of the Evidence Act, Ill Rev Stats 1967, c 51, § 3, on the admissibility of this book. If it is admissible at all, it is admissible under Supreme Court Rule 236, Ill Rev Stats 1967, c 110a, § 236. This section in effect holds that any writing or record whether in the form of a book entry or otherwise made as a memorandum of record of any act, transaction, occurrence or event shall be admissible as evidence of such act, transaction, occurrence or event if made in the regular course of any business and if in the regular course of such business it was a practice to make such a memorandum of record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. The term “business” as defined in this Rule includes “business, profession, occupation and calling of every kind.”

It is clear from the Committee’s comments and from its citation of Secco v. Chicago Transit Authority, 6 Ill App2d 266, 127 NE2d 266, that the Committee intended to unlock the technical shackles of former years and to provide for the admissibility of a written record, document or book where ordinary business practice, the experience of mankind and the accepted custom of the marketplace would establish that there was a satisfactory likelihood that the entry made or the record made spoke the truth rather than otherwise. It appears to be the majority rule that unless there is a statute providing otherwise, books of account are inadmissible to show the payment or loan of money on the ground that as the person paying or loaning money has it in his power to perpetuate evidence of that fact by taking a receipt or note, the reason for admitting a party’s books of account as evidence in his own behalf does not then exist. 84 ALR 148. Unless Supreme Court Rule 236 has obviated this rule, it is still the rule in Illinois. White v. Parish, 302 Ill App 172, 23 NE2d 939; Tucker v. Tucker, 316 Ill App 671, 45 NE2d 558; In re Estate of Martine, 233 Ill App 94. In this last cited case, the court held that a desk pad containing a memorandum was not admissible in evidence and in addition held that the memorandum itself had no probative value in view of the wording contained on the memorandum. The red book of Mr. McCartney’s was subject to both infirmities. To permit a memorandum of this character to be admitted without further or additional corroborative proof is, we think, to open the sluice gates to much difficulty. MacKenzie v. Barrett, 148 Ill App 414, held that the check stubs were insufficient to show that loans had been made to a decedent. In addition, the red book contained these notations: “December 23,1958, $250.00; 1959, June 13, $700.00; August 16, $400.00; December 21, $500.00.” These items are in no way identified with William C. Yokem except that they do appear on a page where some reference as to other items is made as to him. In our judgment, this type of record is far . removed from a business record which can be or should be admitted into evidence under Rule 236. Its probative value is relatively nil. It would seem to come in the category of diaries and small memorandum books or casual records whose admissibility is generally condemned. 17 ALR2d 269, § 27. It was properly refused admission into evidence.

McCartney also claims interest on advances made after the contract to reconvey on the theory that since that contract, plus its amendment increasing the amount due, called for interest, then all like sums should draw interest. One of the difficulties with this position is that the petitioners’ suit asked for an accounting between the parties, stated that one had been requested but never made, and that the accounting involved not alone amounts paid by McCartney for the use of Yokem to others, but also the cash loans to which reference has been made and in addition the adjustment between the parties on a lease of part of the farmland to McCartney. Under these circumstances, it is our judgment that the statute permits interest to be charged at the statutory rate of 5% only from the time that the account was stated by the court. The contract rate of interest applies to the contract obligation. The statutory rate of 5% applies both from the day of liquidating accounts between the parties and ascertaining the balance. Ill Rev Stats 1967, c 74, § 2.23, ILP, Interest, § 19.

The trial court permitted McCartney to include as a part of the money owed the sum of $1,112.42, for the purchase of tax sale certificates on various properties of the incompetent. For the reasons heretofore stated, the trial court correctly refused to allow interest on these items. The conservator urges that McCartney became a pure volunteer; that there is no evidence of any request on the part of the petitioners for him to buy the property for taxes for their benefit or to refrain from taking such a tax deed, and therefore he became either a pure volunteer or was attempting to acquire a right to a deed of conveyance to these properties which negatives any thought that it was being done for the interest or benefit of the Yokems. McCartney does not bring himself within the provisions of 111 Rev Stats 1967, c 120, § 741 and § 742, where it is provided that where there has been an erroneous sale of property the certificate purchaser may recover his money on the theory that it has been paid for the owner’s use, together with 10% interest. The petitioners state that none of the certificates were exchanged for deeds as contemplated by the statutory requirements. If the time limit for procuring such a deed has not expired, then it is, of course, the duty and the obligation of the conservator to take the necessary steps to redeem from the tax sales. He would not, in our judgment, be performing his obligation to the estate if he failed to do so. Accordingly, we see no impropriety in the action taken by the trial court in permitting a recovery of the principal amount so advanced for the payment of taxes and his inclusion of this amount without interest is accordingly affirmed. If the time has expired for obtaining a tax deed, then it is appropriate to discharge the tax certificates upon their surrender and payment to McCartney of their face-dollar amount. If any such certificates are not surrendered, then payment for such unsurrendered certificates shall be denied.

The decree of the trial court should be and the same is hereby affirmed.

Affirmed.

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


text:
    Phil McIntosh, Plaintiff-Appellant, v. State of Illinois Fair Employment Practices Commission and Union Local No. 539 of the Cement Masons, O. P. C. M. I. A., Defendants, State of Illinois Fair Employment Practices Commission, Defendant-Appellee.
    Gen. No. 11,024.
    Fourth District.
    April 24, 1969.

      Sorling, Catron, and Hardin, of Springfield (Philip E. Hanna, of counsel), for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (John J. George and John J. O’Toole, Assistant Attorneys General), for appellee.
   SMITH, J.

The plaintiff filed his suit against the State of Illinois Fair Employment Practices Commission and the defendant-labor union seeking an administrative review of an order of that Commission dismissing a complaint filed by the plaintiff against the union. The order of which review is sought reads:

“You are hereby notified that, by vote taken on April 28, 1967, the Commission dismissed the above-captioned charge on the grounds that matters brought forth in the conciliation conference established that the Respondent has eliminated or offered in good faith to eliminate the effects of the charge of unfair employment practice with respect to the Complainant in such manner as to effectuate the purposes of the Act.”

The trial court dismissed the suit on the grounds that there was no final decision by the Commission subject to review and that there was nothing in the record to show that the conciliation conference conducted by the Commission did not properly resolve the issue of discrimination against the plaintiff which had been charged. We agree.

The plaintiff filed his complaint before the Commission charging that the union was engaged in unfair employment practice in its refusal of a membership card to him because of color. The Commission found that there existed substantial evidence that the alleged unfair employment practice had been committed and ordered a conciliation conference. The conciliation conference was held which resulted in the order set forth verbatim above. Such procedure conforms to Ill Rev Stats 1967, c 48, §858.

What took place at the conciliation conference is not before us. Under Article II, § 2.2 (5) of the Rules and Regulations of the Commission, there is the following provision:

“The members of the Commission and its staff shall not disclose what has occurred in any conciliation conference unless the respondent requests in writing that such disclosure be made. No stenographic report or recording shall be taken of the proceedings of any conciliation conference.”

Both counsel apparently filed in the trial court and include in the record in this court what is denominated as summary of conciliation conferences in which they set forth what purports to be the evidence, testimony and agreements reached during the conciliatory conferences. We know of no rule or statute giving any weight or probative value to such documents nor upon what theory either summary could be properly considered by the trial court or become part of the record in this court as to the events in the conciliation conferences. Its unreliability as an evidentiary basis for either the trial court or us becomes apparent when we observe that each summary differs from the other in several substantial and important factual statements.

HI Rev Stats 1967, c 48, § 858(a), provides that where there is a conciliation conference and a settlement is effectuated “then the Commission may prepare written terms of settlement and adjustment and have the complainant and respondent agree to them in writing. . . .” The record does not nor does the order attached to the complaint in the circuit court set forth any settlement agreement. There is neither a charge that an agreement was not made nor is there a charge that an agreement was made, an order entered and that order violated. If no agreement was reached, then a motion before the Commission to make such a finding should have been made and an appropriate complaint filed. If an agreement was reached and has been subsequently violated, that likewise should have been called to the attention of the Commission and an appropriate complaint filed by it against the union. It is apparent that the Commission thought the matter was settled and the language of its order so indicates. If this finding was not correct, the place to correct it was before the Commission and not before the court.

It should be noted that in § 858 (a), it is provided that “the Commission shall notify the complainant and the respondent of the disposition of every charge filed and the terms of any settlement, adjustment or dismissal thereof. . . .” In the case at bar, the Commission followed this statute and dismissed on the ground that the matters brought forth in the conciliation conference established that the respondent had “eliminated or offered in good faith to eliminate the effects of the charge of unfair employment practice with respect to the Complainant.” It is clear that this order of the Commission was in accordance with its regulations, article II, §2.2(6), which authorizes such a dismissal when, in its opinion, the matters brought forth in the conciliation conference establish that the respondent has eliminated or offered in good faith to eliminate the effects of the charged unfair employment practice with respect to the complainant in such manner as to effectuate the purposes of the Act. We have already noted that there is nothing in this record upon which a trial court or a reviewing court can determine whether or not the alleged unfair practices have been eliminated or whether there has been a compliance in good faith in an effort to eliminate such practices. In the trial court, the only attack made upon the finding of the Commission was that its “decision set forth in Exhibit ‘A’ attached hereto is not in accordance with law.” How and in what manner such is the case was not stated. The order of dismissal was based on matters brought forth in the conciliation conference and § 858(a), provides “what occurs in the conference or conciliation meeting shall not be disclosed by the Commission unless the respondent requests in writing that such disclosure be made.”

In the court complaint, the Commission is requested to file an answer consisting of the record of the proceedings had before it pertaining to the entry of the decision of which the claimant seeks judicial review. Claimant then requests that the record be judicially reviewed and the decision above-quoted reversed. Under the General Administrative Review Act, HI Rev Stats 1967, c 110, § 264, the term “decision” means any decision, order or determination of an administrative agency rendered in a particular case, which affects the legal rights, duties or privileges of parties and which terminates the proceedings before the administrative agency. Assuming without deciding that the decision to dismiss is reviewable judicially under the General Administrative Review Act, we wonder just what there is to review. The statute prohibits a revelation of what took place in the conciliation conference unless the respondent requests that its proceedings be reduced to writing. There is no claim that there was any such request. It seems apparent that the matter was not settled by agreement, otherwise it would have been charged and shown that there was an agreement in writing between the parties and each would have been requested to sign the agreement. On a violation of such an agreement, then a complaint would have been filed before the Commission. On the other hand, in the case of a failure to settle or adjust any charges by conference and conciliation, the Commission would cause a complaint to be prepared, verified and served on the respondent. In either of these events, there would have been a hearing, testimony taken, rules of evidence applied and something to review. On the record before us, there is nothing to show or to indicate that the order of the Commission was not well founded. If the respondent had not corrected the alleged violation or if the respondent was not taking steps to correct such violation, those facts should have been brought to the attention of the Commission where an appropriate hearing and an appropriate record could be made. In an absence of such a record, we necessarily conclude that an order of the Commission which is appealable is presumably correct and well founded. We must assume that the recital in the decision is truthful and a fact. It would be so held were it a judgment of a court. 2 ILP, Appeal and Error, § 469, and cases cited therein. We see no reason why an appealable order of a Commission should not rest on the same foundation. The petitioner has not exhausted his remedies before the Commission. The judgment of the trial court is correct. Accordingly it must he and is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Marion Slifer, Defendant-Appellant.
    Gen. No. 11,044.
    Fourth District.
    April 24, 1969.
    Hurt and Fuller, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Frederick P. Erickson, Assistant State’s Attorney, of counsel), for appellee.
   SMITH, J.

The defendant was found guilty by a jury of armed robbery and sentenced to the penitentiary. He appeals from that conviction and that sentence on the sole ground that the evidence is not sufficient to establish his guilt beyond a reasonable doubt. The evidence must therefore be examined in the light of the frequently stated rule “. . . that the testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Cox, 22 Ill2d 534; People v. Tunstall, 17 Ill2d 160; People v. Pride, 16 Ill2d 82.” People v. Johnson, 24 Ill2d 195, 198, 181 NE2d 164, 165.

The defendant testified that he was in the Minit Meal Cafe at about 6:30 on the evening in question, had a cup of coffee, went to the cash register and paid his bill to Velma Rossini. He gave her a $20 bill and waited for the change. One Gallagher walked up and since he had the correct change, the defendant stepped back and Gallagher paid his bill and left. The defendant followed him out, they stood by their cars and chatted a little bit and then he went his way and Gallagher went his. He testified that he had no gun and did not rob anyone or attempt to rob anyone in the cafe nor did he threaten anyone or demand any money. He did not see another waitress, Virginia Lewis, at the cash register after he had paid Velma, did not remember talking to her other than to say hello in passing. He had known Virginia for some eight to ten years. The defendant also testified that he had been convicted of the crime of burglary in the State of Nebraska in 1956.

Gallagher testified for the defendant and confirmed the defendant’s version of these occurrence events, stated that he did not at any time see a weapon in the defendant’s hands or see him commit a robbery. He further testified that “Velma Rossini took my money, I think.”

Velma Rossini testified that she was a waitress at the cafe, that the cafe was crowded on this particular evening, that the cash register sits at the south end on a counter about six feet from the front door and that the defendant had taken the third seat from the north end of the counter. One Swigert was seated next to him. She further testified that she had known the defendant for about seven years, had never seen him in the cafe before, that he came to the cash register to pay, fumbled for change and she asked him to hurry. She rang up the sale and had the drawer open when he demanded money. He pulled a gun from his pocket with his right hand, pointed it at her, and told her to give him the money. He had a handkerchief over the handle of the gun. She could see the barrel and it was small and black. She shut the cash register door and ran into the kitchen, had a conversation with one David Tolle, and then came back out to the counter. She chatted with Arthur Swigert as they stood together at the north end of the counter. At that time, the defendant was at the cash register talking to the other waitress, Virginia Lewis. Rossini saw Lewis give the defendant the money in the form of bills. He was calm, did not speak loudly and was facing towards the southeast when he asked for the money. The police arrived some ten or fifteen minutes later, and the owner of the cafe arrived some little time thereafter. The stools next to the cash register were filled when this happened and there were no other customers at the cash register ready to pay. As she stood at the north end of the counter talking with Swigert, she saw Virginia Lewis give the defendant a handfull of bills lying flat and saw the defendent talking to Gallagher and they left together. He did not run out. She did not see the gun again at the time Virginia Lewis gave him the money nor did she see the money or the gun in the defendant’s hands as he left.

One Swigert testified for the People that he was in the cafe, that he was seated on the second stool from the north end of the counter with one stool open to his right. The defendant came in, occupied that stool and was staggering. He ordered coffee from Velma and then left. Later Swigert had a conversation with Velma and looked toward the cash register, saw the defendant standing there and saw him reach over and take bills in his hand and then walk out the door. Virginia Lewis was the waitress who gave him the bills. There was a man standing behind him when this took place. The witness saw no gun or weapon at any time and the defendant did not run as he left the cafe. He didn’t know which hand the defendant used to get the money and did not see the other hand at that time.

David Tolle was an eighteen-year-old high school student working at the cafe. He testified that Velma Rossini came to the kitchen where he was working at the grill. As a result of that visit, he made a call to his mother and then to the police and the police arrived about fifteen minutes later. After the call, he looked towards the area of the cash register and saw Virginia Lewis and a man standing there. He could not identify the person he saw.

Virginia Lewis testified that she had known the defendant previous to the evening, saw him at the cash register and he told her he wanted the money out of the cash register and was going to rob her. He pulled out a handkerchief and laid it on the counter, then pulled it back and revealed the barrel of a gun and said, “This . . . here says I’m not kidding you.” She then handed him the money and told him he wouldn’t get very far because everyone in town knew him. She gave him all of the bills, but no change. He stuck the gun back in his pocket and left. He was standing at the south end of the cash register, was facing southeast with his back partly towards the counter. He could not be seen from the dining area. She further testified on cross-examination that there was a customer seated on the stool two or three feet away. She further testified that he took the money in his right hand and had the gun in his left hand. She also stated that she had been convicted of forgery in Macon County some ten or fifteen years ago. The cash register was not between the gun and the people sitting at the counter. She further stated that the people standing near the defendant could not have seen his front from where they were standing.

The owner of the cafe testified that he arrived about 7:00 to 7:30 and checked out the cash and arrived at a total of $231 loss. There were no bills in the cash register when he examined it. The evidence further shows that the defendant was arrested later that evening.

In People v. Lacey, 24 Ill2d 607, 182 NE2d 730, the court stated that the real issue was the credibility of witnesses. Under such circumstances, the weight to be given the testimony is primarily one for the trier of fact and the reviewing court will not set aside a conviction which depends upon such matters unless it is necessary to prevent apparent injustice. People v. Lucky, 21 Ill2d 501, 173 NE2d 432; People v. Franceschini, 20 Ill2d 126, 169 NE2d 244. This rule must govern here. One of the waitresses and the defendant are tainted with a previous felony conviction. The testimony of Rossini, Lewis and Swigert that the defendant paid his money to Lewis is contradicted by the testimony of the defendant and Gallagher that it was paid to Rossini. If Rossini and Tolle are to be believed, the police were called after the threat to Rossini and before Lewis was accosted and paid over the money. It is, of course, true that no one other than the two waitresses saw the handkerchief or the gun, and this may appear strange in a crowded restaurant. It is apparently the theory of the defense that the defendant was framed or that the waitresses themselves conspired to steal the money and blame the defendant. As was stated in People v. Bailey, 90 Ill App2d 121, 126, 234 NE2d 332, 334, “No reason whatever is assigned for any desire on the part of the State’s witnesses to accuse the defendant falsely. The jury saw and heard them, as did the trial court. This is an advantage which a reviewing court cannot derive from the cold record.” It may seem strange that no one saw the actual robbery in a crowded restaurant, the gun and the handkerchief other than the two waitresses. Equally strange if this was a frameup is the undisputed fact that Tolle called the police after the incident with Rossini and before the incident with Lewis. If Rossini, Swigert and Lewis are to be believed, as well as the defendant himself, there was money in the cash register when he paid his bill and he was handed some or all of it. While the actual robbery weighs the testimony only of the defendant and Lewis as to the actual presence of a gun at the time of the robbery, the testimony of Rossini, Swigert and Tolle is unexplainable except on the theory that they told the truth or perjured themselves. In People v. Pelegri, 39 Ill2d 568, 574, 237 NE2d 453, 457, it is stated:

“When the trier of fact renders a decision based upon credible and substantial evidence which is sufficient to convict, that verdict is not subject to question on review merely because the judge or jury chose to believe the consistent testimony presented by the State.”

In the face of the authorities cited herein, we conclude that the innocence or guilt of this defendant was characteristically one for the jury and not for this court.

The judgment is accordingly affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Moses Alexander Simms, Defendant-Appellant.
    Gen. No. 11,047.
    Fourth District.
    April 24, 1969.
    Glenn O. Fuller, of Decatur, for appellant.
    No brief filed for appellee.
   SMITH, J.

This is an appeal by the defendant from an order revoking probation and sentencing him to the penitentiary for possession of narcotic drugs. His appeal is based on the proposition that no hearing was held on the petition to revoke within 120 days after it was filed and the warrant issued. Probation was initially granted on a plea of guilty to possession of narcotics.

The petition was filed and the warrant issued on January 25, 1968. He was then in the custody of the sheriff of Sangamon County and during all pertinent times herein was either in such custody or in the penitentiary. On June 21, 1968, a hearing on the probation violation was conducted, the defendant was returned from the penitentiary for such hearing, a motion to dismiss the petition for violation because not heard within 120 days was denied, a supplemental report was filed showing that the defendant had violated his probation by pleading guilty to the unlawful possession of narcotic drugs in Sangamon County on the 18th day of April, 1968. His violation of probation was thus established.

The appellant’s attorney states that the notice of appeal was given prior to the decision of this court in People v. White, 98 Ill App2d 1, 239 NE2d 854, in which we held that the 120-day rule does not apply under the circumstances there related. Counsel also states that this is the only issue on the appeal, that on September 23, 1968, he advised the defendant of the results in the case of People v. White and invited him to suggest any other or additional grounds which he might think were proper on appeal. He received no answer. Under these circumstances, our opinion in White controls and the judgment of the circuit court is affirmed.

Affirmed.

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


author: STOUDER, P. J.

text:
    People of the State of Illinois, ex rel. James V. Cunningham, State’s Attorney of Peoria County, Illinois, Plaintiff-Appellee, v. James Lewis, et al., Defendant-Appellant.
    Gen. No. 68-36.
    Third District.
    April 25, 1969.

      Robert E. Manning, Jr., Acting State’s Attorney, of Peoria, for appellant.
    Daniel D. Glasser, of Chicago, for appellee.
   STOUDER, P. J.

This is an appeal from an order of the Circuit Court of Peoria County which found the Respondent-Appellant James Lewis, guilty of civil contempt for violation of a permanent injunction and sentenced the respondent to serve one year in the county jail.

On September 6,1961, on the relation of the State’s Attorney, a permanent injunction was issued by default by the Circuit Court of Peoria County against the respondent James Lewis. The permanent injunction restrained Lewis from owning or operating any premises within the jurisdiction of the court for the purposes of prostitution, etc., including specifically, the premises at 610 South West Jefferson, Peoria, Illinois. On October 22, 1967, the State’s Attorney filed a petition for a rule on respondent to show cause why he should not be held in contempt of court for violation of the permanent injunction. The petition alleged that the respondent Lewis had an equitable interest in a house of assignation, being the premises at 610 South West Jefferson Street, Peoria, Illinois. The petition also alleged that the respondent Lewis was present in such house of assignation on January 11, 1967, and October 20, 1967, while said premises were being used as a house of prostitution.

Hearing on the rule was set for 10 o’clock a. m., January 29, 1968. Lewis did not appear personally at that time although his attorney indicated that Lewis had been notified of the hearing by certified mail. The hearing was recessed until the afternoon but again Lewis did not personally appear. The hearing however commenced in Lewis’s absence and he did not personally attend the hearing until the last witness for the State had nearly finished his testimony.

After hearing, the respondent Lewis was found guilty of violating the permanent injunction and sentenced to serve one year in the county jail, from which order he has appealed. Eespondent has made several assignments of error. However, the only alleged error which we believe we need consider is his contention that the State failed to sustain its burden of proof in that it failed to produce any evidence in support of an essential element of its case. This was respondent’s argument in the trial court and it is again renewed here, both parties conceding that it is the principal issue of the case.

The State presented the testimony of seven witnesses and certain documentary exhibits, the respondent making no objection to any of the evidence so presented. The respondent introduced no evidence. Although it may be said that the facts are undisputed, the reasonable inferences to be drawn therefrom are disputed and constitute the central issue of this case.

Since the sufficiency of the evidence is the principal issue in this case a summary of the significant evidence relied upon by the State to support its position is required.

Seven persons testified at the hearing, namely an attorney, four police officers, the Clerk of the Court and a patron.

Two police officers testified that on January 11, 1967, they executed a search warrant (unrelated to prostitution) for the premises in question. One officer testified that in searching the upstairs he observed a couple having sexual intercourse. Each officer saw respondent Lewis in the kitchen drinking coffee with other persons. Neither officer testified to any conversations with Lewis or as to any conduct of Lewis except his presence.

One Robert Angel, a tugboat employee, testified that on October 19, 1967, he went to the premises for the purpose of prostitution, was solicited for that purpose by one Pam Miller, and that the intended services were rendered for which he paid $20. Angel’s testimony is devoid of any reference to respondent Lewis. After he left the premises he was apparently questioned by the police, no reason therefor appearing from the record, and as a consequence a search warrant was issued based on prostitution.

The next two police officers testified that they executed the search warrant heretofore referred to, and conducted a search of the premises on October 20, 1967. So far as Lewis is concerned they testified that he again was present in the kitchen with other persons but no conversations or other conduct are described. Apparently some men in the living room were arrested as “frequenters.”

The Clerk of the Court testified concerning certain records in his office namely injunction orders concerning the premises in question and two other premises, and also identified the search warrant served on October 20, 1967.

In summarizing the evidence presented by the testimony of the six witnesses it can be said that Lewis was on the premises on January 11 and October 20,1967, and that prostitution did take place on the premises with Lewis’s knowledge thereof. However, there is nothing in such evidence from which it can be inferred that Lewis exercised any control or ownership of the premises, was responsible for the prostitution which occurred or that his presence was other than that of a friend, guest or customer. The State appears to concede that this evidence standing alone would be insufficient to justify a finding that respondent violated the injunction, lacking as it does any indication that Lewis owned, operated or controlled the premises.

This brings us to a consideration of the testimony of Walter Winget, an attorney. Although he testified first we are considering his testimony last since it is the evidence principally relied upon by the State to support its contention that Lewis had an equitable interest in the property. He testified that prior to 1958 the premises were owned by a Dr. Dixon. In 1958 the Dixons entered into an agreement for warranty deed with respondent Lewis for the purchase of the property. The agreement contemplated monthly payments and included a provision that the interest of the purchaser Lewis could not be transferred without the consent of the sellers. Dr. Dixon died in 1965, his widow was appointed executor of his estate, and the witness thereafter represented such executor. In November, 1967, preparatory to instituting proceedings to forfeit the contract for nonpayment, the witness, in searching the real estate records of Peoria County, discovered a quitclaim deed from Lewis to Clarence Short of Farmington, Illinois. The quitclaim deed indicated that it had been executed and acknowledged in 1962 but was not recorded until January, 1967.

In addition to the foregoing competent evidence the witness also testified to some hearsay facts (without objection) . Such testimony was to the effect that the Dixons had no knowledge that the Jefferson Street premises were used for the purpose of prostitution, that they had not consented to such transfer, that payments on the contract had been made by or in behalf of Lewis prior to 1965 and that no payments had been made thereafter. It is obvious that these are facts of which the witness had no personal knowledge but in any event such facts are immaterial since they have no tendency to prove or warrant any inference of respondent’s interest in the property in 1967.

The State’s Attorney, in his closing argument, contended, “Mr. Lewis is the record owner of this title under an agreement for a Warranty Deed and, does have an interest in it, which as one of the witnesses testified yesterday; which at the present time is being foreclosed and the agreement for the purchase of the property was signed by Mr. Lewis and he had no right under the contract to sub-assign it and therefore, the contract is still binding upon him and he therefore is the equitable owner of the title to the premises at 610 S. W. Jefferson Street.” The State, in its comments on Winget’s testimony in its brief, states, “The State offered evidence in the person of Attorney Winget that James Lewis bought the concerned premises in 1958. Also, that one of the terms of the agreement was that the property was not assignable by Lewis until paid for. Lewis did tender a Quit Claim Deed to Clarence Short, which was not recorded until January 1967. But Lewis is the only person who ever made any payments to Mr. Dixon on the property. These circumstances are some evidence of the fact that, on the dates of January 11, 1967, and October 20, 1967, when James Lewis was seen in the house at 610 Southwest Jefferson, that he exerted some actual, equitable control over that property.”

From the brief of the State it would appear that the claim made in final argument that Lewis was “the record owner” or the “equitable owner,” has been reduced to a claim that Lewis “had some actual, equitable control.” This latter conclusion appears to be based on their assertion that Lewis was the only person who ever made any payments to Dr. Dixon on the property. However, there is no testimony supporting such assertion. Not even Mr. Winget in his hearsay testimony regarding payments, made any such statement. It is our conclusion that there is nothing in the testimony of Winget tending to prove or from which it can be inferred that Lewis had any interest in the property in 1967. Since Winget’s testimony was the only evidence bearing on this point, it is also our opinion that the State failed to introduce any evidence concerning an essential element of its case namely that the respondent Lewis owned, operated or controlled the premises in question.

It appears to us that the trial court may have been unduly influenced by the reputation of the premises, the reputation of Lewis, as well as Lewis’s somewhat cavalier attitude toward the contempt proceedings. However, such factors are not a substitute for evidence and the State, having failed to introduce evidence in support of an essential element of its case, we have no alternative except to reverse the order of the trial court.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is reversed.

Judgment reversed.

ALLOY and RYAN, JJ., concur.


author: RYAN, J.

text:
    Dale E. Kaster, Plaintiff-Appellee, v. Donald Wildermuth, Defendant-Appellant.
    Gen. No. 68-91.
    Third District.
    April 25, 1969.

      Theodore Jackson, of East Moline, for appellant.
    Winstein and Kavensky, of Rock Island, for appellee.
   RYAN, J.

This is a property damage action which arose as a result of an attack by the defendant’s dog on the plaintiff’s racing dog. Plaintiff’s dog died. This action followed.

The plaintiff’s wife was training two of plaintiff’s dogs by driving up and down a road near the defendant’s residence in a pick-up truck with the dogs’ leashes attached to the right door handle of the truck. As the truck with the dogs attached thereto passed the defendant’s residence, one of the defendant’s dogs came out and attacked the plaintiff’s two dogs. As a result of this attack, plaintiff’s dog, Jim, died. At the trial, there was testimony which indicated that the defendant knowingly kept vicious dogs. Plaintiff testified that Jim was one of the best dogs he had ever owned and that he had paid $400 plus a trade-in dog worth $200 for the dog, Jim. Another witness testified that he had offered the plaintiff $1,000 for the dog. The plaintiff testified that he had raced the dog four times and had won $78 per race for three races and $65 for the fourth race. The jury returned a verdict in favor of the plaintiff for $800.

Defendant moved for a new trial alleging that plaintiff had testified falsely at the trial on the following matters:

(a) That he had taken the dead dog to the veterinarian on the 28th day of February when, in fact, the date was March 3.
(b) That the dog had won certain prize money between January 31, 1967, and February 27, 1967, when, in fact, no dog races were held during that period of time.
(c) That he had paid $400 plus a trade-in dog worth $200 for the dog, Jim, when in fact, he had only paid $200 for the dog.

At the hearing on defendant’s motion for new trial, the defendant offered witnesses to substantiate his allegations of false testimony. The veterinarian who had examined the dog testified the plaintiff brought the dog to him on March 3 and not February 28. A witness qualified as having raced dogs for twenty-five years testified no races were held during the period that plaintiff testified he had won money with the dog. The person who had sold the dog to the plaintiff testified the sale price of the dog was $200. Plaintiff by affidavit admitted he had been mistaken with regard to the amount he had paid for the dog. His affidavit stated this mistake was a result of confusion caused by the fact that he had owned some three hundred dogs and had purchased numerous dogs from the party who had sold him Jim. Plaintiff’s affidavit disputed defendant’s allegation that no dog races were run during the period plaintiff testified he had raced the dog, Jim. Plaintiff did not counter , defendant’s allegation with regard to the date on which he had taken the dead dog to the veterinarian.

The Circuit Court denied defendant’s motion for a new trial and defendant has appealed from that ruling. We believe that the decision of the Circuit Court was correct.

In Powers v. Browning, 2 Ill App2d 479, at page 486, 119 NE2d 795, the court stated that newly discovered evidence in support of a motion for a new trial must fulfill the following requirements:

“First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence; fourth, it must be material to the issue; and fifth, it must not be merely cumulative to the evidence offered on the trial.”

In applying these requirements to the instant case, it is apparent that the newly discovered evidence does not conform to the first requirement stated above. It is not so conclusive that it would probably change the result if a new trial were granted. The newly discovered evidence does not relate to the question of liability. If the entire testimony of the plaintiff were to be disregarded there still remains testimony of other witnesses on the question of liability to support a verdict against the defendant.

The newly discovered evidence relates to the question of the value of the dog, Jim, and to contradictions which might tend to impeach witnesses. Although such evidence tends to mitigate damages or to impeach a witness, it does not thereby meet the requirement that it be conclusive in character. Graham v. Hagmann, 270 Ill 252, 110 NE 337; People v. McCullough, 210 Ill 488, 71 NE 602; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 Ill 9, 61 NE 1095; Powers v. Browning, supra. This principle has been firmly established in this state for many years as evidenced by a statement of the court in an early case:

“This evidence undoubtedly might have been of essential importance ... , in mitigation of damages, but a new trial is never granted for that reason. . . .” Schlencker v. Risley, 4 111 483, at 487.

On the question of value alone, newly discovered evidence will not support a motion for a new trial unless it is practically conclusive that only nominal or slight damages should have been allowed where heavy damages have been recovered. Graham v. Hagmann, supra; Powers v. Browning, supra. As to the value of the dog, Jim, the price the plaintiff paid for the dog is not conclusive. There is testimony besides that of the plaintiff as to the value of the dog. Another witness testified without objection that he offered plaintiff $1,000 for the dog. The new evidence is not so conclusive on the question of value as to require that only nominal or slight damages be awarded.

The overriding reason for not granting a new trial is that the third requirement quoted above from the Powers case has been seriously violated by the defendant. Nothing has been presented as new evidence discovered since the trial that could not have been obtained before trial by the diligent use of pretrial discovery procedures or even by the use of adequate pretrial investigation. As a protection against false or perjured testimony and as an aid generally in the search for truth in the trial of cases, the legislature and the court have provided broad and liberal avenues of discovery in civil cases. A litigant may elect to use these tools that have been provided. If instead he chooses to use the trial itself as a pretrial deposition to discover the testimony of a witness, he should not be rewarded with a new trial wherein he may present contradictory evidence discovered after trial which could have been discovered before trial by diligent preparation. It is a primary requisite to the allowance of a motion for a new trial on the grounds of newly discovered evidence that such evidence was not discoverable prior to trial by the exercise of ordinary diligence. Pritchett v. Steinker Trucking Co., 40 Ill2d 510, 240 NE2d 684.

While this court can never condone by implication or otherwise the giving of false testimony, we cannot hold that the giving of false testimony in and of itself, constitutes a basis for granting a new trial. Galena & S. W. R. Co. v. Ennor, 116 Ill 55, 4 NE 762; Cohen v. Sparberg, 316 Ill App 140, 44 NE2d 335. The cases cited by the defendant do not dispute this holding. In fact, each of the cases concerning false testimony cited by the defendant recognizes the general rules stated herein concerning the granting of new trials on account of newly discovered evidence. In each of the cases which defendant cited the new trial was not based on the fact that false testimony had been given. It was based on the fact that the newly discovered evidence would probably change the result in a retrial of the case. People v. Heinen, 300 Ill 498, 133 NE 232; People v. Cotell, 298 Ill 207, 131 NE 659; Swiney v. Miller, 253 Ill App 81; Briske v. Village of Burnham, 308 Ill App 531, 32 NE2d 349.

Finally, as was pointed out in the case of Stocker v. Scherer, 1 Ill2d 405, 409, 115 NE2d 614, 616:

“The disposition of motions of this nature is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in a case of manifest abuse.”

No abuse of discretion was shown in the case at hand. The judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

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


text:
    Gulf, Mobile & Ohio Railroad Company, a Corporation, Plaintiff-Appellant, v. Marion Edwards, Defendant-Appellee.
    Gen. No. 68-96.
    Third District.
    April 25, 1969.

      Gillespie, Burke and Gillespie, of Springfield, for appellant.
    Kavanagh, Scully, Sudow, White and Frederick, of Peoria, for appellee.
   STOUDER, P. J.

. Plaintiff-Appellant, Gulf, Mobile & Ohio Railroad, brought this action in the Circuit Court of Tazewell County for damage to its property caused by the alleged negligence of Defendant-Appellee, Marion Edwards. At the close of plaintiff’s evidence in a trial before the court without a jury, defendant moved for judgment in his favor which motion was granted resulting in this appeal by plaintiff.

This action was commenced and heard pursuant to the Small Claims Statute. As a consequence no reporter was present and there is no transcript of the proceedings. The case is before us on an agreed statement of facts and there is no dispute concerning such agreed statement.

The plaintiff railroad sought to recover for the damage to its flasher signals caused when defendant’s automobile ran into them. Damages to the signals were stipulated to be $294 and the only issue to be resolved by the trial court was the liability of defendant, if any, therefor. Plaintiff presented the testimony of two witnesses. The first, the railroad local superintendent, testified concerning repair of the signals. Damages having been stipulated the reason for his testimony is not apparent. No claim is made by plaintiff that the testimony of its superintendent has any bearing on the issue of liability. The plaintiff then called defendant, Marion Edwards, to testify as an adverse witness. From his testimony it appears that defendant was operating his automobile in the early morning hours of November 28, 1967, near the corner of 14th and Royal Streets in the City of Pekin, Dlinois. His car collided with plaintiff’s flasher signals at the railroad crossing at this corner causing damage to the flasher signals.

Plaintiff then rested and defendant moved to dismiss contending that no evidence of defendant’s negligence had been presented. The court granted such motion and entered judgment in favor of defendant.

Plaintiff’s sole assignment of error is that the trial court erred in failing to apply the doctrine of res ipsa loquitur to the evidence presented. If, as plaintiff insists, res ipsa loquitur was applicable, a prima facie case was made out requiring defendant to rebut the effect of such case. There appears to be some difference of opinion as to the basis of the trial court’s ruling. Plaintiff argues that the only issue presented to the trial court was the general applicability of res ipsa loquitur to that class of cases where an automobile runs off the traveled portion of the highway and strikes a motionless object. Defendant argues the doctrine is neither generally applicable to this type of case nor specifically applicable to the instant case and in particular points to the absence of any evidence tending to prove due care on the part of plaintiff.

Such difference of opinion is we believe immaterial. The two principal cases relied upon by plaintiff, Krump v. Highlander Ice Cream Co., 30 Ill App2d 103, 173 NE2d 822 and Sinclair v. Thomas, 90 Ill App2d 114, 234 NE2d 368, do not support its contention that res ipsa loquitur is applicable either to automobile cases generally or to that type of case exemplified by the instant case. In Krump, an agreed statement of facts was presented from which it appeared that the automobiles operated by each of two defendants, collided at an intersection and thereafter one of the automobiles struck and damaged the building - of plaintiff. In reversing a directed verdict in favor of defendants, the court concluded that such facts although meager, were sufficient to require the defendants or one of them, to explain the occurrence of the incident in terms inconsistent with the presumption of negligence inferable from the facts. In Sinclair, the plaintiff passenger (not a guest) sued the driver for negligence when the latter operated the car in which they were riding in such a manner that it collided with a pillar supporting an overhead crossing. The court reversed a directed verdict for defendant indicating that the evidence of collision with the pillar was sufficient evidence of negligence to require defendant’s explanation to the contrary.

Neither of the foregoing cases applied the doctrine of res ipsa loquitur in order to raise or create a presumption or inference of negligence. Where the presumption of negligence arises from the application of res ipsa loquitur it is true that a duty of explanation is imposed upon the defendant. However this does not mean that wherever there is a duty to rebut or explain one’s conduct in a nonnegligent manner such duty arises from the application of the doctrine. Rather this is an expression of the rule that where evidence is presented from which negligence may be inferred, evidence must be presented or exist supporting contrary inferences in order to avoid the bar of a directed verdict or judgment. This is not, however, the application of the doctrine of res ipsa loquitur.

In any event a plaintiff is required to prove his due care as a part of a prima facie case based on negligence. Plaintiff argues that this issue was not argued in the trial court and has been presented for the first time on appeal. The proceedings were informal and it is impossible to tell from the record what issues were raised in the trial court. Plaintiff’s assignment of error is based on its contention that the evidence which it presented was sufficient to make out a prima facie case. Such prima facie case necessarily includes evidence of plaintiff’s due care. Since the precise issue before the trial court was the sufficiency of the evidence it can not be said that there was any waiver of required proof. The authorities relied upon by plaintiff to the effect that defects in pleadings may be waived are not applicable, since no such claim is made in the instant case.

Nor do we believe that due care may be implied from the facts presented. Evidence is entirely lacking concerning the location of the signal lights, their size or their visibility. In Linneen v. City of Chicago, 310 Ill App 274, 34 NE2d 100, the court affirmed a judgment against the defendant bridge owner based on its negligence in the location and inadequate visibility of the defendant’s bridge. The facts in the instant case are the reverse of those in the Linneen case. However if the negligent location or maintenance of a bridge (an off the traveled roadway structure) may be the proximate cause of an injury as in the Linneen case, the location and maintenance of the flasher signals in the instant case may have also been the proximate cause of the damage resulting to them. Although due care might be implied where the structure damaged is unrelated to the use of a highway, the reason for such implication does not exist where the property damaged is designed to facilitate the use of the highway. The location and maintenance of highway appurtenances are directly related to the use of the highway and the duties of the owners of such appurtenances and those using the highway are mutually related. Due care with respect to highway appurtenances may not be implied merely because such appurtenances are not located on the usually traveled portion of the highway.

Finding no error in the judgment of the Circuit Court of Tazewell County the judgment of such court is affirmed.

Judgment affirmed.

ALLOY and RYAN, JJ., concur.