author: RYAN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee v. Emmett Sanders, Defendant-Appellant.
    Gen. No. 69-5.
    Third District.
    October 9, 1970.
    Rehearing denied December 1, 1970.

      Jack Vieley, of Peoria, for appellant.
    Robert S. Calkins, State’s Attorney of Peoria County, of Peoria, for appellee.
   RYAN, P. J.

In a trial by jury, the defendant was convicted of armed robbery and sentenced to eight to twenty years in the state penitentiary. He contends that he was not afforded a fair and impartial trial as guaranteed by the United States Constitution because his conviction rested solely on the testimony of an alleged accomplice who received lenient treatment and who was impeached; that the conviction cannot be sustained where the only support for it is the uncorroborated testimony of an alleged accomplice which is contradicted by the testimony of other witnesses; and that the evidence does not prove his guilt beyond a reasonable doubt. As to the sentence itself, defendant contends that he received a heavier sentence than his alleged accomplice because he elected to be tried by a jury.

Prior to the trial of the defendant in this case, his alleged accomplice, one Thomas, pleaded guilty to armed robbery and was sentenced to two to four years in the penitentiary. Thomas testified in behalf of the People at defendant’s trial.

There is no dispute about the following facts: On the night of May 31, 1968, Thomas and the defendant were playing in a dance band at a place called the Peppermint Lounge. In the early morning hours of June 1st, Thomas and the defendant left the Peppermint Lounge in the company of two females and the defendant’s brother. Prior to leaving, Thomas took a .38-calibre pistol from behind the bar and took it with him. They left in a 1967 gold Chevrolet automobile which belonged to a person identified as “Big Brother” for the purpose of getting some food for the owner of the establishment. The defendant drove. He drove the car up in an alleyway which was near, but not on the premises of the Martin Service Station. He stopped the car. Thomas got out of the car, went to the service station, showed the attendant the gun and told him it was a stickup. The attendant gave Thomas some money and he returned to the car after making the attendant lie on the floor. After Thomas returned to the car, the defendant drove away. After driving away, Thomas gave the female, Lorraine King, some money which she placed in her brassiere. The defendant then drove the car to a “friend’s house” who was not at home. As they proceeded back to the car, they saw the police coming. One of them hid the gun in a Cadillac which was parked on the premises. They got back in the car and the defendant drove the automobile 10 or 15 yards up an alley before the police stopped them. Previously, however, and shortly after the defendant had driven away from the service station, a policeman noticed the attendant running from the station and stopped to investigate. Another person arrived on the scene and gave the officer certain information concerning the robbery that was transmitted over the police radio. Very shortly thereafter, another officer stopped the car being driven by the defendant which matched the description that had been put out over the police radio. In the stopped car were the defendant, Thomas, the two females and the defendant’s brother. Yet another officer arrived on the scene where the car had been stopped. He observed that Lorraine King, one of the two females in the car, had a bulge in the middle of the front of her blouse. The officer asked her to hand to him anything that she had concealed, and she gave him a roll of money.

All of the above uncontroverted facts were testified to by one or more of either Thomas in behalf of the People or the two females, and the defendant’s brother in behalf of the defendant.

Thomas testified that at about 4:30 a. m. on the morning of the robbery, which was about five or ten minutes before the five persons left the Peppermint Lounge, the defendant asked him, “Did I want to go out and make some money.” Thomas told him, “Yes.” Later, as they proceeded down a street, the defendant asked Thomas, “Did I want to hit this gas station?” Thomas said, “Yes.”

After the robbery, Thomas said to the defendant, “Let’s go across the bridge over into East Peoria.” The defendant stated he “knew a better place we would go, which would be over to his friend’s house.” The friend was not at home, and as they proceeded back to the car, they saw the police coming. The defendant asked Thomas for the gun and he hid it in a Cadillac parked on the premises. Thomas, continuing his testimony, then stated that while he and defendant were being taken to the police station in a police wagon, the defendant asked Thomas, “would I take the rap for him ?”

The defendant did not take the stand to dispute Thomas’ testimony. Defendant’s case consisted of the testimony of the two female occupants of the car along with the defendant’s brother. Their testimony controverted Thomas’ testimony only to the effect that they stopped at the service station solely to purchase cigarettes; that it was Thomas who put the gun in the parked Cadillac; and that at no time was there any discussion in the car of committing any robbery.

Defendant stresses, however, that Thomas had given a written statement to the police taking sole responsibility for the robbery. Thomas later gave a second statement to the police which repudiated his first statement and which differed from his testimony in court to the extent that he had the defendant handing him the gun after they were in the car.

Defendant claims that Thomas was thoroughly impeached, by virtue of these two prior statements; that Thomas’ testimony was uncorroborated; and that it was contradicted by the testimony of other witnesses. The jury and the trial judge felt otherwise and we concur with that finding. The issues raised by the conflict in testimony, such as it is, are factual in nature and properly within the province of the jury. It is the peculiar province of the jury to weigh the evidence and determine the facts, and a reviewing court will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify our entertaining reasonable doubt as to defendant’s guilt. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892; People v. Todaro, 14 Ill2d 594,153 NE2d 563.

It is erroneous to contend that the testimony of Thomas was uncorroborated. Much of what Thomas testified to, including virtually all of the circumstances of the crime, stands corroborated by the testimony of the defense witnesses and the entire factual picture. Thomas’ repudiation of his first statement is explained by his testimony as to the conversation in the police wagon when the defendant asked Thomas, “would I take the rap for him ?” The conflict between that portion of Thomas’ second statement, that the defendant passed him the gun in the car and his actual testimony that Thomas took the gun with him, is one of those discrepancies which the jury had to weigh in considering Thomas’ testimony, along with all of the other testimony and evidence of the case. There is no rule of law in such case that obliterates and renders useless the testimony of Thomas on this and all other matters simply because his testimony is inconsistent in one respect with a signed statement. This is a question for the jury. The jury had a right to weigh the testimony of the other witnesses just as it had a right to weigh the testimony of Thomas.

We find one factual incident particularly impressive and that is that the defendant drove into an alley and parked off the premises of the service station. Thomas testified that the purpose for stopping was to commit a robbery. The defendant’s witnesses would have the jury believe that the purpose for stopping was to purchase cigarettes. The factual scene, however, would cause one to believe Thomas since the reasonable approach to stopping at a service station for cigarettes would be to drive upon the premises and not stop off the premises in an alley, as was done in this case. Furthermore, the fact that Thomas came back with a roll of money and handed it to one of the females who put it in her brassiere rounds out the conclusion that they did not stop at the service station for the purchase of cigarettes.

In no sense, in this case, could it be said that the defendant’s witnesses, either the two females or the defendant’s brother, were disinterested. The decisions cited by the defendant with regard to the testimony of an accomplice being contradicted by disinterested witnesses would accordingly not apply. We believe that the guilt of the defendant was proven beyond a reasonable doubt.

Regarding the sentence, defendant contends that he received a heavier sentence than his accomplice because he elected to be tried by a jury and that Thomas had entered into an agreement with the State prior to the trial of the defendant whereby Thomas received a lenient sentence in exchange for his favorable testimony. There is not a scintilla of evidence in the record to support either of these contentions. Accordingly, the cases cited by the defendant simply have no application here. Defendant has arrived at this conclusion outside the record merely on the basis of the fact that the defendant’s sentence is more severe than Thomas’ sentence. The mere difference in sentences is not sufficient to cause one to reach the conclusion reached by defendant. Other reasonable conclusions are equally supportable. Indeed, the record reveals that previous to the offense in question, Thomas had no criminal record. The defendant, on the other hand, had previously been convicted of armed robbery in 1964 and had been sentenced to a term of five to six years on that occasion.

Chapter 38, Ill Rev Stats, § 18-2 (1967), provides: “A person convicted of armed robbery shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than two years.” The sentence in this case of eight to twenty years was within the limits prescribed by law and proportionate to the offense. Considering defendant’s past record, we cannot say that the trial court abused its discretion in the matter.

The judgment of the Circuit Court of Peoria County is accordingly affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RYAN.

license: Public Domain

text:
    Louie W. Tripod and Vida L. Tripod, Plaintiffs-Appellees, v. Kelce Arrington and Amelia Miller, Conservator of the Estate of Clara K. Thomas, an Incompetent, Defendants-Appellants.
    Gen. No. 70-25.
    Third District.
    October 9, 1970.
    Mathis, Sloan & Littler, and Winget & Winget, of Peoria, for appellants;
    Moehle, Moehle, Reardon, Sincock & Bode, of East Peoria, for appellees.
   Opinion by

PRESIDING JUSTICE RYAN.

Not to be published in full.


author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis R. Schneekloth, Defendant-Appellant.
    Gen. No. 69-122.
    Third District.
    October 20, 1970.
    Rehearing denied November 18, 1970.

      William N. Stone, of Sterling, for appellant.
    James N. DeWulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   STOUDER, J.

Defendant, Dennis Schneekloth, was found guilty by a jury of the unlawful sale of narcotics. The Circuit Court of Rock Island County sentenced defendant therefor to a term of from ten to eleven years in the penitentiary. Defendant has prosecuted this appeal, contending that he was not proved guilty of such offense beyond a reasonable doubt.

Steven Kracham, twenty-two years old and a deputy sheriff of Rock Island County, testified that in August, 1969, he was directed by the sheriff to investigate the adult bookstore in Rock Island regarding obscene books and narcotics. Prior to August 18, 1969, the witness, dressed in street clothes, had been in the bookstore on three separate occasions acquainting himself with the store and an employee, the defendant, whom the witness had known for several years. Late in the afternoon of August 18, 1969, the witness called at the bookstore and asked the defendant if he knew where the witness could get some grass (Marihuana). The defendant told the witness that he could get him some, that he would have to buy two bags at $10 each and that it could not be delivered until the next day, because defendant had to get it from someone in Sterling. On the following evening, August 19, after the store had closed, the witness drove up in front of the store and the defendant came out of the store, at which time the witness gave the defendant $20 in marked bills and was told by defendant that the two packages could be picked up behind a billboard across the street. The witness found two packages behind the billboard, delivered the same to the sheriff, and an analysis by the crime lab revealed that the packages contained marihuana. Defendant was arrested two days later, but no marked bills or narcotics were found in his possession.

Defendant did not testify at his trial and concededly, the only evidence of the offense charged was the testimony of Kracham.

In support of his argument that the evidence is insufficient to establish his guilt beyond a reasonable doubt, defendant argues there was no corroboration of Kracham’s testimony relying on People v. Watkins, 68 Ill App2d 389, 216 NE2d 494, and People v. Bazemore, 25 Ill2d 74, 182 NE2d 649. According to defendant, his conviction rests on the testimony of a single witness, Kracham, and accordingly, the verdict of the jury cannot be sustained.

Notwithstanding defendant’s contention to the contrary, the general rule is that the testimony of a single witness, if positive and credible, is sufficient to establish defendant’s guilt, if believed by the jury. People v. Tribbett, 41 Ill2d 267, 242 NE2d 249. This rule has been applied where the offense charged is the unlawful sale of narcotics and where the only testimony of the violation is offered by a police officer. People v. Guido, 25 Ill2d 204,184 NE2d 858; People v. Wyatt, 62 Ill App2d 434, 210 NE2d 824 and People v. Green, 56 Ill App2d 86, 205 NE2d 507. In the Wyatt case, supra, the court rejected the argument that corroboration was required as would have been the case had the witness been an informer-addict. The Watkins and Bazemore cases supra, relied upon by defendant, involve addict informers and hence, the rule therein announced is not applicable where the witness is a police officer.

Defendant also argues that the testimony of the officer should not be believed because he was a novice and inexperienced. We find no merit to this contention. Nothing in the officer’s testimony is inherently improbable or unbelievable, and we find no reason for disturbing the jury’s resolution of this issue against the defendant.

For the foregoing reasons, the judgment of the Circuit Court of Bock Island County is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis W. Philips, Defendant-Appellant.
    Gen. No. 70-13.
    Third District.
    October 20, 1970.

      John Donald O’Shea, of East Moline, for appellant.

      James N. DeWulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   STOUDER, J.

Defendant Appellant, Dennis Phillips, together with a codefendant not a party to this appeal, was found guilty of robbery by a jury in the Circuit Court of Rock Island County. Defendant Phillips was sentenced to a term of from 1 to 3 years in the penitentiary and has appealed from his conviction and sentence.

According to the testimony of David Groom, lie was walking along the street in Rock Island on his way to work when the incident complained of took place. At about 4:30 a. m., according to Groom, he was accosted by the defendant and his companion, beaten, thrown to the ground and robbed of his wallet containing $3. Two other persons in the area witnessed the incident and testified concerning the actions of the two men, although the witnesses were unable to see whether anything was taken from Groom. According to defendant Phillips, only a fight took place and nothing was taken from Groom.

Only the outlines of the incident are referred to because defendant makes no claim that the evidence was insufficient to support his conviction. Rather, he argues that he was deprived of a fair trial as a consequence of errors committed by the trial court during the course of the trial.

Defendant first argues the trial court committed reversible error by unduly restricting his cross-examination of the principal prosecution witness, Groom.

In his testimony in chief and also on cross-examination, Groom, the robbery victim, testified that he had lived at a particular address for the last eight years. As further cross-examination, the defendant then asked the witness whether he had lived at the address continuously, to which question the State objected, arguing irrelevancy and immateriality. The court sustained the objection and thereupon the defendant, out of the presence of the jury, made an offer of proof, the substance of which was that the witness during such eight-year period had been incarcerated in the county jail for ninety days on a misdemeanor conviction.

Admittedly, the ninety-day incarceration was not a sentence imposed for the conviction of an infamous crime and could not have been considered proper impeachment testimony.

Defendant seeks to justify his assertion of improper restriction of cross-examination by claiming that the rule of Smith v. Illinois, 390 US 129, 19 L Ed2d 956, 88 S Ct 748, followed in People v. Hall, 117 Ill App2d 116, 253 NE2d 890, is applicable. There is no question but that a person accused of a criminal offense has the constitutional right to be confronted by the witnesses against him and that the right of confrontation includes the right to cross-examine such witnesses.

In Smith v. Illinois, supra, a narcotics case, the trial court sustained objections to cross-examination, seeking to elicit the true name and address of the chief complaining witness, an addict informer. The court, in reversing the defendant’s conviction, concluded that the name and address of a witness were basic to any effort to ascertain the credibility of the witness. By refusing to require that such questions be answered, the trial court effectively prevented the defendant from discrediting the testimony of such witness.

The Smith v. Illinois case, supra, itself refers to the very rule applicable to the case at bar, namely, that cross-examination designed to humiliate or harass the witness is irrelevant to the issues of the case and hence, is properly excluded. According to defendant’s argument, because the witness had been serving a sentence in the county jail for ninety days, his testimony that he had lived at a particular address for eight years was not wholly true. Whether a person lived at an address for a particular length of time is not rendered false by defendant’s alleged impeaching evidence and in our view, the trial court acted properly in declining to permit the introduction of irrelevant facts which could have had only an unfair prejudicial effect. See People v. Del Prete, 364 Ill 376, 4 NE2d 484.

Next, defendant argues that the trial court erred in permitting the introduction of testimony of three police officers concerning three one-dollar bills in the possession of defendant at the time of his arrest. Over objection of defendant, the officers were permitted to testify that when defendant was booked at the police station, a total of $8.46 was discovered on his person. Of this amount, the change was in a shirt pocket and three one-dollar bills were found in a crumpled condition in his left rear pocket. Later, $5.46 was returned to defendant but the three one-dollar bills were retained as evidence.

Prior to trial defendant moved for “. . . (a) a right to inspect, photograph and copy, prior to trial any and all physical evidence and records of all kinds intended to be used at the trial in chief by the Prosecution.” The court allowed the foregoing motion, but as the basis for defendant’s objection in the trial court, the prosecution never indicated that the three one-dollar bills were intended to be used as physical evidence in the trial.

The State made no effort to introduce the three one-dollar bills as evidence, but did present the testimony of three officers regarding such bills. In this connection, it should be observed that no claim is made by defendant that the bills were unlawfully seized. Defendant concedes that the bills were discovered as an incident to a lawful arrest and accordingly, no question arises concerning the suppression of such evidence on account of an illegal search or seizure.

In support of the ruling of the trial court permitting such testimony, the State cites only the cases of People v. Guston, 338 Ill 52, 169 NE 822, and People v. York, 29 Ill2d 68, 193 NE2d 773. In each of the foregoing cases, the evidence sought to be suppressed or impounded had been seized pursuant to the terms of a search warrant which search warrant in each case, the court concluded, was a proper search warrant. However, the officers who seized the property under the search warrant neglected and failed to bring such property before the judicial officer issuing the search warrant for a hearing as then required by law. The court concluded that where there had been a lawful search and seizure of property, the subsequent failure of the party in charge of such property to comply with legal requirements did not vitiate or void the search and seizure.

The Guston and York cases offer no support for the present position of the State. If the rule of such cases was applied to the facts of the case at bar, so long as the evidence was legally in the possession of the prosecution, no adverse consequences could follow from the prosecution’s failure to act according to law or in accord with a court order. That the court has the power to enter pretrial discovery orders relating to tangible evidence to be used at the trial and that the prosecution is under a duty to obey such order, are the precise holdings in People v. Endress, 106 Ill App2d 217, 245 NE2d 26. Furthermore, the Endress case indicates that suppression of evidence or contempt citation are appropriate sanctions, depending on the circumstances involved. If the physical evidence itself is inadmissible, it follows that the testimony regarding such evidence is likewise inadmissible. As more fully discussed in People v. Endress, supra, the right of the defendant and the duty of the prosecution relative to physical evidence is intimately related to a fair trial and failure of the prosecution to carry out its duty cannot be viewed lightly.

However, in the case at bar we do not believe the admission of such testimony constitutes reversible error. The defendant could not have been surprised or prejudiced by testimony regarding such bills since they were taken from him at the time of his arrest and not returned to him.

Lastly, defendant argues the trial court erred in refusing his instruction Number 6. Such instruction provided, “The jury are instructed by the Court that if they can reconcile the evidence in this case upon any other reasonable theory or hypothesis than that of the defendant’s guilt, it is your duty to do so and acquit the defendant.” Defendant argues that the refusal to give such instruction constitutes reversible error under the authority of Larrance v. People, 222 Ill 155, 78 NE 50, and People v. Downen, 374 Ill 146,28 NE2d 91.

Since the adoption of Supreme Court Rule 451 (a), (uniform instructions in criminal cases), it is now the rule that the approved uniform instructions shall be used and modified only where the facts make the uniform instruction inadequate. In 2.05 of the Illinois Pattern Jury Instructions, Criminal, regarding definition of reasonable doubt, the drafters thereof recommend that no definition thereof be given. Numerous cases are cited which indicate the inappropriateness of attempting to define the burden of proof in a criminal case in various ways deemed more favorable or unfavorable to one party or the other. The State’s instruction Number 20, (pattern instruction 2.03), were given by the court and adequately covered the burden of proof required by the State. No particular circumstances are revealed by the facts or the argument of the defendant requiring any special need for revising the uniform instructions. Accordingly we hold the instruction was properly refused.

The judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.


author: JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois on the Relation of Fred Stone, Plaintiff-Appellant, v. Francis Whalen, Donald Loucks, Ray B. Burger, Edith Wilson, and Walter E. Dwyer, Trustees of the City of Belvidere, Illinois, Police Pension Fund, Defendants-Appellees.
    Gen. No. 70-12.
    Second District.
    October 22, 1970.
    John A. Strom, of Belvidere, for appellant.

      Nordquist and Anderson, of Rockford, for appellees.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

Plaintiff appeals from an order dismissing his petition for a writ of mandamus.

This is the second appeal which the plaintiff has perfected concerning his right to be reinstated to active duty on the Belvidere police force. The factual background may be found in People ex rel. Stone v. Wilson, 111 Ill App 2d 101, 248 NE2d 826 (1969). In that case, the defendant board, after a hearing, denied the plaintiff’s request for reinstatment. The plaintiff failed to file for a judicial review of the decision within the 35 days as prescribed by the Administrative Review Act (Ill Rev Stats 1967, e 110, § 267). Instead, some six months after the denial of his request, he filed a mandamus action. Therein we held that the trial court was without jurisdiction of the subject matter and that the plaintiff’s exclusive judicial remedy from the final decision of the defendant was as provided in the above referred to Act.

Following our first opinion (rendered June 16, 1969), a second petition for mandamus was filed on October 14, 1969. This petition, after referring to our disposition of the prior action, stated in part:

. . 7. Subsequent thereto and on July 31, 1969, relator did again file a request for reinstatement and return to active duty with the Board of Trustees of the Police Pension Fund, copy of which is hereto attached marked ‘Exhibit A.’ (The record discloses no such exhibit attached.)
“8. Relator has heard nothing further from said Board of Trustees and has been informed that his request has been ‘tabled’ and that no hearing will be held on his request.”

The petition prayed that the court issue its writ of mandamus commanding the defendant board to hold a hearing on the plaintiff’s application for reinstatement.

A motion to dismiss the action was allowed on the basis that our former decision was res judicata, that the Administrative Review Act was the proper method of review and that the petition for mandamus would not lie.

The plaintiff contends that the trial court erred in holding that our former decision operated as res judicata.

Where a former adjudication is relied upon as an absolute bar, there must be, as between the two actions, the same parties, the same subject matter and the same cause of action (Hoffman v. Hoffman, 330 Ill 413, 417, 161 NE 723 (1928)) and where the former action is dismissed for lack of jurisdiction (our former appeal), it will not bar a subsequent action. Weiland Tool & Mfg. Co. v. Whitney, 44 Ill2d 105, 113, 251 NE2d 242 (1969); City of Geneseo v. Illinois Northern Utilities Co., 378 Ill 506, 513-514, 39 NE2d 26 (1941). Where res judicata is claimed, the burden of proof is on the party relying upon it. Kedzierski v. Kedzierski, 86 El App2d 264, 267-268, 229 NE2d 919 (1967). However, for what seems to be a contrary application of this doctrine as applied to administrative agencies, see, Carpentier v. Goers, 23 Ill2d 246, 249, 177 NE2d 858 (1961); Mississippi River Fuel Corp. v. Illinois Commerce Commission, 1 Ill2d 509, 513, 116 NE2d 394 (1953); Citizens Savings & Loan Ass’n v. Knight, 74 Ill App2d 234, 240-243, 219 NE2d 355 (1966); Daley v. License Appeal Commission, 55 Ill App2d 474, 477-478, 205 NE2d 269 (1965).

Res judicata does not apply to the present case for two reasons. First, this Court dismissed the original mandamus action because the trial court was without jurisdiction of the subject matter. Second, the former mandamus action sought to upset the decision of the defendant board as being contrary to the manifest weight of the evidence. This, our opinion indicated, amounted to an attempt to improperly review, judicially, an administrative decision which should properly come under the Administrative Review Act. The subject matter of the instant petition does not seek review of the decision of the defendant board, but instead seeks to have the trial court, by its order, command the defendant board to hold a hearing on plaintiff’s second application for reinstatement.

The defendant argues that to allow the writ to issue in this case would be tantamount to requiring the defendant to conduct a rehearing on its original decision so as to alter or modify that decision and the defendant has no authority to do so under either the statute or case law. See, Pearce Hospital Foundation v. Illinois Public Aid Commission, 15 Ill2d 301, 307, 154 NE2d 691 (1958); Klaren v. Board of Fire and Police Com’rs, 99 Ill App2d 356,240 NE2d 535 (1968).

This argument is based upon the assumption that the plaintiff’s second request for reinstatement is nothing more than a petition for rehearing. The plaintiff counters by claiming that the second application is simply a request for reinstatement to active duty, that paragraphs 3-114, 3-115 and 3-116 of the Illinois Pension Code (Ill Rev Stats 1967, c 108½, §§ 3-114, 3-115 and 3-116) make it mandatory, not directory, upon the defendant to hold a hearing and determine whether or not the plaintiff’s disability has ceased.

Whether the second request is to be considered a petition for rehearing or a new application for reinstatement, we do not and cannot determine. The request, Exhibit A, was.not attached to the petition as alleged (nor is it found in the record) and there is no evidence supporting the defendant’s assumption.

For the reasons stated, the trial court erred in entering its judgment on the basis of res judicata and we must therefore reverse and remand this cause for further proceedings.

Reversed and remanded.

DAVIS, P. J. and ABRAHAMSON, J., concur.


author: JONES, J.

text:
    Dennis Hale and Billie J. Hale, Plaintiffs-Appellants, v. Wilma M. Cravens, Defendant-Appellee. Sharon L. Finkboner, Plaintiff-Appellant, v. Wilma M. Cravens, Defendant-Appellee.
    Gen. No. 11,125.
    Fourth District.
    October 26, 1970.

      Hatch, Corazza, Baker and Jensen, and Hagin Harper, of Champaign (Harold A. Baker, of counsel), for appellants.
    Gillespie, Burke & Gillespie, of Springfield (Robert E. Gillespie, of counsel), for appellee.
   JONES, J.

This is an appeal by plaintiffs from an order of the circuit court denying their post-trial motions for judgment notwithstanding the verdict and for new trial and rendering judgments for defendant on the verdicts of the jury. The two cases involved were consolidated for trial and this appeal.

The cases arose out of an automobile collision on January 30, 1967, at the intersection of U. S. Route 54 and Buffalo Hart Road in Sangamon County. The plaintiffs were riding in a 1962 Chevrolet Impala convertible owned by plaintiff Sharon Finkboner. Plaintiffs were en route from Mahomet, Illinois, to Mount Clair, California, where plaintiffs Dennis Hale and Sharon Finkboner were to be married. Dennis Hale was driving, Sharon Finkboner was in the center of the front seat and plaintiff Billie Hale was on the right side of the front seat. A nonparty witness, Ronnie Shoemaker, was in the back seat. It was stipulated that Dennis Hale and Sharon Finkboner were engaged in a joint venture and any fault on the part of Dennis Hale would be imputed to Sharon Finkboner. The jury rendered verdicts in favor of the defendant and against the plaintiffs. Plaintiffs’ motions for judgment notwithstanding the verdict and for new trial were denied and judgments rendered for defendant on the verdicts. Plaintiffs appeal, contending the trial court was in error in refusing to grant their motions for a judgment notwithstanding the verdict and ordering a new trial as to damages only. Our review of the facts and applicable law have led us to agree with plaintiffs’ contention.

U. S. Route 54 is a two-lane, concrete highway, twenty-four feet wide, which runs in a general northeast-southwest direction at the place of the accident. The Buffalo Hart Road is a blacktop road which intersects U. S. 54, and there is a stop sign for northbound traffic on Buffalo Hart Road. U. S. 54 is the preferential highway with no stop signs and the speed limit through the intersection is 65 miles per hour. There is a crossroad sign for westbound traffic on the north side of U. S. Route 54 at a point approximately 1,000 feet northeast of Buffalo Hart Road. A little less than one-half mile to the east of Buffalo Hart Road there is a curve in U. S. 54. From the curve U. S. 54 is slightly downgrade and as it gets to the Buffalo Hart Road it starts on a slight upgrade. From the intersection there is an unobstructed view to the east of approximately one-half mile. There were two automobiles parked on the south side of the right-of-way of U. S. 54 approximately thirty-six feet east of Buffalo Hart Road and four to seven feet south of the south edge of the paved portion of U. S. Route 54. The windows of these two automobiles were obscured. The two parked automobiles were an obstruction to the view to the east of a motorist entering Route 54.

The accident occurred at approximately 3:55 p. m. It was daylight, but the weather was cloudy. There were snowbanks along the sides of the road created when snowplows had cleared a previous snowfall. The paved portion of the highway was free from snow and ice, but was wet. The plaintiffs were talking and the radio in their automobile was on. The defendant testified that as she approached the intersection of ¡Route 54 and Buffalo Hart Road, she pulled up to the stop sign and observed the highway in both directions. She saw a car approaching from the west signalling a right-hand turn and saw no traffic approaching from the east. The car from the west was two city blocks away when she first saw it and she continued to observe it until it made its right-hand turn on the Buffalo Hart Road. After it had turned, she looked again to the east, saw nothing there and proceeded to cross the intersection when the collision occurred. Plaintiff Dennis Hale testified that he never saw defendant’s automobile until he was between forty-eight and one hundred feet from the intersection when defendant drove her automobile onto Route 54 and into the path of plaintiffs’ automobile. He first saw defendant’s automobile when its front wheels were on the edge of the eastbound lane. He tried to apply the brakes and turn to the left, but didn’t have time. Witness Ronnie Shoemaker testified that he first saw defendant’s automobile when it was in the middle of the eastbound lane and they were three to four-car lengths away and that Dennis didn’t have time to do anything, he started to swerve to the left, but that’s all he could do. The evidence as to the speed of plaintiffs’ car is disputed. Plaintiff Dennis Hale testified that he had been driving at 65 miles per hour before getting to Buffalo Hart, but had slowed to approximately 60 miles per hour as he approached the intersection. Witness Shoemaker, called by plaintiffs, testified that they had driven at 65 miles per hour before Buffalo Hart and slowed as they arrived at Buffalo Hart. Witness Moore, called by defendant, testified over objection that in his opinion, plaintiffs’ car was exceeding the speed limit. Witness Mohn, called by defendant, testified that plaintiffs were “running better than 65 miles an hour.” The latter two witnesses based their opinions on the top of the convertible being “bowed out” and the noise of the engine. The front of the plaintiffs’ car struck the right middle of defendant’s car at a point in the center of the intersection. There were no skid marks or debris on the pavement. Plaintiffs’ vehicle came to rest twenty-five feet west of the intersection, on the north side of the pavement facing the northeast. Defendant’s vehicle came to rest thirty feet west of the intersection, north of the pavement, facing in a westerly direction. It is undisputed that each of the plaintiffs received severe and permanent physical injuries. The defendant’s five-year-old son who was riding with her, was killed in the accident.

Chapter 95%, section 167a(b) and (c), and section 183(c), Ill Rev Stats 1967, imposed upon the defendant a duty to stop at the point nearest the intersecting roadway where she had a view of approaching traffic on the intersecting highway before entering the intersection and to yield the right-of-way to other vehicles which were approaching so closely on said highway as to constitute an immediate hazard. By driving her automobile upon and across U. S. 54 and into the path of plaintiffs’ automobile, she violated this duty by either looking and failing to see what was in plain view (Tucker v. New York, C. & St. L. R., 12 Ill2d 532, 147 NE2d 376, Payne v. Kingsley, 59 Ill App2d 245, 207 NE2d 177), or by failing to account for the obvious possibility that the two automobiles parked on the south side of the highway could obstruct her view of other automobiles moving in a westerly direction along U. S. 54. She failed to continue her lookout as she approached and entered upon the twelve foot wide eastbound lane of U. S. 54 until such time as she had a clear view of approaching traffic unobstructed by the parked automobiles. Whichever of these causative factors pertained, it is clear that defendant did not exercise that degree of care required of her and under the facts, her conduct was negligent.

The only bar to plaintiffs’ recovery would be their own contributory negligence. The only factors in this case which could support a contention that plaintiffs were contributorily negligent are those of excessive speed and lack of proper lookout. There is no evidence that plaintiffs were not keeping a proper lookout. They were on the preferential highway and saw nothing of the defendant until she started across the highway and the front wheels of her automobile were on the edge of the eastbound lane. There is nothing in the evidence to show that plaintiffs saw defendant approach the highway on the Buffalo Hart Road, nor is there anything to suggest that plaintiffs should have been alerted to the presence of defendant’s vehicle or the fact that defendant might be expected to proceed onto the highway and into the path of plaintiffs’ vehicle. A traveler on a preferential highway has a right to expect a car approaching along a secondary road controlled by a stop sign to obey the stop sign and yield the right-of-way as required by law. Rowe v. Frazer, 83 Ill App2d 367, 227 NE2d 781; Pomrenke v. Betzelberger, 41 Ill App2d 307, 190 NE2d 522. As was stated in the case of Hession v. Liberty Asphalt Products, Inc., 93 Ill App2d 65, 235 NE 2d 17:

“Stop signs are erected for the obvious purpose of requiring motorists to yield to vehicles on through highways. If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted. The driver who has the stop sign cannot assume the car on the through highway will stop. It is the other way around.”

Four witnesses testified to the speed of plaintiffs’ automobile. Plaintiff Dennis Hale testified that his speed was 60 miles per hour. Witness Ronnie Shoemaker, called by plaintiffs, testified that plaintiffs’ speed was approximately 65 miles per hour before entering Buffalo Hart, but that they had slowed down as they came into Buffalo Hart. Witness Moore, called by defendant, testified that plaintiffs’ car “was exceeding the speed limit,” and witness Mohn, called by defendant, testified that plaintiffs were “running better than 65 miles an hour.” Both Moore and Mohn based their opinions as to speed upon the top of the convertible being “bowed out” and the noise of the engine. Defendant contends that this testimony creates a question for the jury and that the jury’s verdict against the plaintiffs should not be disturbed, for it is not against the manifest weight of evidence. It is plaintiffs’ contention, with which we are in agreement, that though the evidence in its aspect most favorable to defendant might show plaintiffs were exceeding the speed limit of 65 miles per hour, that excessive speed was not a proximate cause of the occurrence. Whether the speed of plaintiffs’ automobile was 60 miles per hour or 70 miles per hour, the sole cause of the collision was the fact that defendant drove her automobile directly into the path of plaintiffs’ vehicle under circumstances that afforded plaintiffs no opportunity to avoid the collision. As stated in Lerette v. Director General of Railroads, 306 Ill 348,137 NE 811 (1923):

“The mere fact that plaintiff was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. (Star Brewery Co. v. Hauck, 222 Ill 348; Graham v. Hagmann, 270 id. 252; Ensley Mercantile Co. v. Otwell, 142 Ala 575, 4 Ann Cas 512; Munroe v. Hartford Street Railway Co., 76 Conn 201, 56 A 498.) In determining whether the unlawful conduct of plaintiff will bar his right to recover, there must be kept in mind the distinction between that which directly and proximately produces or helps to produce the result as an efficient cause and that which is a necessary condition or attendant circumstance of it. If the illegal act is a mere condition which made it possible for the accident to occur but is in itself no part of the accident it will not bar recovery. It is, of course, an essential condition of most accidents that the injured party be where he was at the time he was in order for the injury to occur, and the fact that he would not have been there if he had not been violating the law is not, in itself, a defense.”

The principle set out in the Lerette case is reiterated in Jeneary v. Chicago & Interurban Traction Co., 306 Ill 392, 395,138 NE 203 (1923):

“Violation of a law at the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact, if it be a fact, that defendant in error was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. If the illegal act is a mere condition which made it possible for the accident to occur but is not itself a part of the accident it will not bar recovery.”

Also see Bonnier v. Chicago, B. & Q. R. Co., 2 Ill2d 606, 613, 119 NE2d 254 (1954); and Streeter v. Humriehouse, 357 Ill 234, 191 NE 684.

We are mindful of the weight that is to be accorded jury verdicts. However, in this case the verdicts of the jury are not justified by the evidence. Whether they were swayed by sympathy for defendant because her minor son was killed in the collision, which plaintiffs claim resulted from the defendant’s improper emphasis at the trial, or by other factors, is immaterial. We think that the evidence in this case,when viewed in its aspects most favorable to the defendant, so overwhelmingly favor the plaintiffs that no verdict against the plaintiffs based on that evidence could ever stand, and the court should have granted plaintiffs’ motions for judgment notwithstanding the verdict. Pedrick v. Peoria & E. R Co., 37 Ill2d 494,229 NE2d 504.

Defendant places emphasis upon a large number of cases arising out of collisions at intersections where one of the parties claimed a preferential way. Typical of these citations is Conner v. McGrew, 32 Ill App2d 214, 177 NE2d 417, where the court stated:

“The rule prescribing the standard of care required of a driver who is proceeding along a preferential highway has been set forth many times. The authorities agree that a driver on a preferential highway does not have an absolute or unqualified right-of-way that can be asserted regardless of circumstances, distances or speed. Such a driver may not plunge blindly ahead in reliance upon an assumption that the other motorist will obey the law and yield the right-of-way, nor may he heedlessly proceed into obvious danger. Rather, there is a duty upon such driver to observe due care in approaching and crossing the intersection and to drive as a prudent person would to avoid a collision when the danger is discovered or, by the exercise of reasonable care, should have been discovered. Pennington v. McLean, 16 Ill2d 577, 158 NE2d 624; Anderson v. Middleton, 850 Ill App 59, 111 NE2d 904; Citizens National Bank of Decatur v. Doran, 3 Ill App2d 383, 122 NE2d 450; Dodds v. Chicago Transit Authority, 9 Ill App2d 388, 132 NE2d 816; Smith v. Ohio Oil Company, 10 Ill App2d 67, 134 NE2d 526; Quigley v. Crawford, 19 v App2d 454, 153 NE2d 867, 164 ALR 8.
“The Illinois decisions, in applying this rule, have consistently held that it is the function of the jury to determine whether the judgment of the driver on the preferential highway conformed to the standards of the reasonable and prudent man. Citizens National Bank of Decatur v. Doran, supra, and Quigley v. Crawford, supra.”

We have examined these cases and find they are distinguishable on the facts. They are, for the most part, situations in which the driver on the preferential highway saw or should have seen the other driver and had some opportunity to stop or otherwise avoid a collision. In this case there were no circumstances of distance or speed which plaintiff driver failed to properly consider, nor was any danger ever discovered until the collision was imminent and unavoidable. In any event, all the cases cited by defendant on the proposition were decided prior to the Pedrick case (supra), when the rule was that if there was “any evidence” of negligence upon the part of the driver on the preferential way, the issues were to be decided by the jury. The Pedrick case expressly disapproved such rule in favor of the one we apply here.

For these reasons this cause will be remanded to the trial court with directions to enter an order granting plaintiffs’ motions for judgment notwithstanding the verdicts of the jury and to conduct a new trial upon the issue of plaintiffs’ damages only.

It is necessary further that we discuss an issue that will arise upon the retrial on the issue of damages only. In this case the defendant offered and the court gave a seat belt instruction. The instruction quoted the provisions of chapter 95%, section 217.1(b) and (c), Ill Rev Stats 1965. The instruction further provided that the jury could consider whether or not a party violated the statute to be a circumstance with reference to the issue of mitigating any injuries and on the issue of whether or not such party exercised due care. It was error to give this instruction. The cited statute prohibits the operation of a 1961 or later model motor vehicle of the first division, unless the front seat of such motor vehicle is equipped with two sets of seat safety belts.

On the then evidentiary situation, such an instruction was not germane to any issue in the case. We discussed this issue in Schomer v. Madigan, 120 Ill App2d 107, 255 NE2d 620 (4th Dist 1970). In this case, as in Schomer, there was no evidentiary basis for the given instruction. In Schomer, we discussed the case of Mount v. McClellan relied upon by the defendant to support the instruction. We adhere to the view expressed in Schomer that neither the existence nor use of seat belts has any relation to the issue of liability, and that an instruction as to the existence or nonexistence, use or non-use of a seat belt would be proper with reference to damages only when the record establishes by competent evidence that the damages may have been mitigated if a seat belt had been in existence and used. It is also to be noted that the seat belt statute imposes a duty upon the automobile operator alone; it has no concern with passengers. Accordingly, any instruction based upon a violation of the duty created by the statute must be limited to the operator. The Mount case holds that, “There is a duty, based on the common law standard of ordinary care, to use available seat belts independent of any statutory mandate.” Mount v. McClellan, 91 Ill App2d 1, 234 NE 329. Since the vehicle in which plaintiffs were riding was not equipped with seat belts, it would be improper to give a seat belt instruction which would pertain to passengers.

For the reasons stated, the judgment of the Circuit Court of Sangamon County is reversed and this case is remanded for a new trial upon the issue of plaintiffs’ damages.

Reversed and remanded for a new trial as to damages only.

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


author: CLARK, J.

text:
    Russell Awe, Plaintiff-Appellant, v. Robert Striker, William Lessley, Al Kunz, Doing Business As Century 21 Shows, and Logan County Fair Association, a Corporation Organized Not for Pecuniary Profit, Under the Laws of the State of Illinois, Defendants-Appellees.
    Gen. No. 11,142.
    Fourth District.
    October 26,1970.
    Rehearing denied November 16,1970.

      Daniel W. Handlin and Thomas F. Walsh, of Lincoln, for appellant.
    Harris & Harris, of Lincoln, and McConnell, Kennedy, McConnell and Morris, of Peoria, for appellees.
   CLARK, J.

Plaintiff filed a three-count suit to recover for personal injuries sustained from an assault and battery committed by the defendants, Striker and Lessley, which resulted in serious injuries and hospitalization. The first count was against the two personal defendants, the second count was against the defendant, Al Kunz, doing business as Century 21 Shows, and the third count was against Logan County Fair Association, the owner and operator of the fair. The trial court dismissed the second amended complaint in Count II and the second amended complaint in Count III for failure to state a cause of action and entered an appropriate judgment in bar against the plaintiff and in favor of the defendants, Al Kunz and Logan County Fair Association. The plaintiff appeals.

The individual defendants were apparently operating what is commonly referred to as a “bottle game” at the Logan County Fair, as employees of the defendant, A1 Kunz. The midway at the fairgounds had been rented by Kunz from the Logan County Fair Association. Plaintiff and his brother had played the bottle game after paying the necessary price and as is so frequently the case, were unhappy with the results. Apparently, as they turned away from this particular concession, plaintiff stated that the game was crooked and they ought to notify the sheriff. At this point, the individual defendants hollered “Hey, Rube,” the universal distress call of the carnival industry, and jumped upon the plaintiff with fists and a hammer breaking his leg in two places. Hospitalization resulted.

Even though a motion to dismiss a complaint admits all facts well pleaded in the complaint, the indispensable requirement of a complaint is that the allegations state a cause of action. McGill v. 830 South Michigan Hotel, 68 Ill App2d 351, 216 NE2d 273. Obviously, this rule also applies to facts appropriately alleged which would defeat a cause of action. While it may be properly stated that neither Count II against Kunz nor Count III against the Logan County Fair Association properly establish facts proving a master and servant relationship of either with the two individual defendants, we do not deem it necessary to either discuss or determine this issue. For our purposes, we assume without deciding that the master-servant relationship exists. Under such circumstances, an employer is liable to a third person on whom an assault and battery is wrongfully committed by his employee while acting within the scope and course of his employment. ILP, Employment, § 254. “In order to render the employer liable, it is necessary that the tort-feasor was an employee, that such relationship existed at the time of the injury, and that such relationship existed with respect to the particular transaction from which the tort arose.” ILP, Employment, § 254; Shannessy v. Walgreen Co., 324 Ill App 590, 59 NE2d 330. An element of controlling significance in determining whether or not an assault was committed by a servant while acting within the scope of his employment is whether the business dealings of a master has been completed by the servant or the parties. “The argument made is that if the master’s business has been terminated, an assault made at such time is ipso facto one made as a result of some matter disconnected with a master’s business, and thus cannot be said to be in pursuance of the master’s interests or in the course or scope of the employment.” 34 ALR2d, p 436. A fair reading of the two counts of the complaint we consider suggests that the transactions leading to the injury were transactions taking place after the plaintiff and his brother had terminated their questionable enjoyment of the bottle game. In Hodson v. Great Atlantic & Pacific Tea Co., 66 F Supp 514 (DC Mo 1946), where an employee committed an assault upon an intoxicated customer who had left the store without giving sufficient ration coupons and without fully paying for the goods, and the store manager had recovered the food items and returned the money and the customer returned to the store and directed verbal abuse at the manager, it was held that the assault by the manager was not in connection with the employer’s business, but after its termination, and was an attempt to avenge a personal insult, and hence the employer was not liable. To the same effect is Wells v. Robinson Bros. Motor Co., 153 Miss 451, 121 So 141 (1929); Johanson v. Pioneer Fuel Co., 72 Minn 405, 75 NW 719 (1898); Greathouse v. Texas Public Utilities Corp. (Tex Civ App), 217 SW2d 190 (1948). It is believed that the authorities in this state are to like effect. In Klugman v. Sanitary Laundry Co., 141 Ill App 422, the court considered the sufficiency of the complaint which sought to allege a master-servant relationship. In that complaint, plaintiff alleged that the defendant company operated a laundry and that the defendant’s driver beat up the plaintiff in person. In commenting upon these allegations, the court stated that they are equally consistent with a charge that the servant beat the plaintiff because he had a quarrel with her and that he was not doing or attempting to do any acts in the prosecution of the business of his employer when he made the assault. Klugman is cited in Shein v. John R. Thompson Co., 225 Ill App 490, with appproval. In Shein, the cause of action was brought against the owner of a lunchroom by a patron for an assault upon the plaintiff alleged to have been committed by a servant of the defendant. The complaint stated that a servant had served the plaintiff when he entered the lunchroom and that while the plaintiff was seated, one of the defendant’s servants threw a plate or dish and struck the plaintiff. At page 495 of its opinion, the court stated: “Much less can it be inferred, we think, from these allegations that the particular servant who threw the dish was acting within the scope of his authority or about his master’s business when he threw it.” Outside of the scope of his employment, the servant is as much a stranger to his master as any third person and acts done outside the scope of his employment or after the services for which he was employed have been terminated, the servant then is on his own. Johanson v. William Johnston Printing Co., 263 Ill 236,104 NE 1046.

Applying these propositions to the complaint at bar, it is quite clear that either the plaintiff or his brother made the observation that the bottle game was crooked. Quite obviously, this observation was made after both of them had played the game and indeed in Count I of the complaint, it is so alleged. Count I of the complaint is before us and a part of this record, for the very simple reason that a part of its paragraphs is incorporated by reference into both Counts II and III. Thus, it seems apparent and indeed in Count III it is stated that the individual defendants acted without any warning or sufficient excuse “except to prevent the Awes from reporting said game to the sheriff.” The bottle game was over. Awe had played it and was ready to depart. There was nothing for the individual defendants to do in the furtherance of their employment. They had performed the services for which they were hired. Thus, the complaint itself contains within its own four corners allegations of facts that defeat a cause of action. It would serve no useful purpose to discuss the cases where an assault and battery was committed while the employee was still engaged in the project for which he was employed or was protecting his employer’s property. The statement by Awe to his brother that the bottle game was crooked and the sheriff should be notified, followed by the willful and malicious attack and the ultimate injuries, were transactions between the plaintiff and the two individual defendants which were well outside the scope of, and not in the furtherance of their employment. At the time of the assault, there are no facts alleged establishing a duty of either defendant to the plaintiff. It is not our province to speculate whether facts existed upon which a duty of either or both defendants to the plaintiff could havs been alleged or molded. Suffice it to say, the facts here stated establish no duty after the game had terminated.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

SMITH, P. J. and TRAPP, J., concur.


author: JUDGE BURKE

text:
    Continental Paper Grading Co., Plaintiff-Appellee, v. Howard T. Fisher & Associates, Inc., Defendant-Appellant, Edwin H. Mittelbusher, Defendant-Appellee.
    Gen. No. 46,955.
    First District, First Division.
    November 19, 1956.
    Rehearing denied March 12,1957.
    Released for publication March 12,1957.

      Thomas H. Fisher, and Norman Crawford, both of Chicago, for appellant.
    C. Lysle Smith, of Chicago, for defendant-appellee; John Alden Powers, of Chicago, of counsel.
   JUDGE BURKE

Appellant maintains that the court erred in refusing to permit the filing of the mandate and in refusing to enter a submitted order in accordance with the mandate. Edwin H. Mittelbusher, the appellee, asserts that the right of appellant to further proceéd in' the cause, including the entry of a new declaratory judgment, has been lost and abandoned by appellant’s failure to file the mandate within one year, that the right claimed by appellant to file the mandate although further proceedings are barred, is a mere abstract right in the nature of a moot question, and that the right to file the mandate is barred by the express language of the statute. Section 88(3) of the Civil Practice Act [Ill. Rev. Stats. 1955, ch. 110, §88, subd. (3)] provides that no new trial or hearing “shall be had by reason of the reversal of any judgment, order or decree, unless the mandate is filed in the trial court within 1 year after the judgment, order or decree of the reviewing court has become final either through the denial of a petition for rehearing or the expiration of the time within which a petition for rehearing might have been filed.” Until the statute was amended effective January 1, 1956, the language after the words “within 1 year” read: “after final determination by the reviewing court.” The failure of appellant to offer the mandate for filing until November 4, 1955, was a delay beyond the permitted statutory period under both the original and amended forms of the statute.

The case out of which the present appeal arises was a proceeding for a declaratory judgment to determine the rights and liabilities of the parties to a contract. Apart from the questions of the violation of the Architects statute, the complaint raises questions concerning the relationships of plaintiff therein to defendant corporation, of plaintiff to Mittelbusher and of defendant corporation to Mittelbusher. There was a question presented as to whether the severance of relationship between the Fisher corporation and Mittelbusher made the contract impossible of performance within the intention of the parties. There were also questions whether plaintiff had performed the contract or breached it and whether the Fisher corporation had pérformed the contract or breached it. Furthermore there were questions whether the services performed under the contract extended beyond the services specified in Paragraph 1 thereof and into the services specified in Paragraph 2 thereof, and whether the amounts paid to the Fisher corporation covered all services rendered to date or whether a balance was owing. All of these issues and others were submitted to the court during the trial. The trial judge did not pass on these issues. He based the judgment on his decision that the Architects statute had been violated, making it unnecessary to decide the other points. In reversing the judgment and remanding the cause we decided that the Architects statute had not been violated. The effect of the reversal and remandment was to require that the trial court in deciding the issues should proceed not inconsistently with the principles announced in the opinion. In Little v. Chicago Woman’s Bowling Ass’n, 344 Ill. App. 65, the words in the statute “no new trial” were treated as synonymous with “no further proceedings.”

We turn to a consideration of the contention that the court erred in refusing to permit the appellant to file the mandate. Section 88(4) of the Civil Practice Act reads: “Other than as provided in subdivisions (2) and (3) of this section, no notice of the filing of the mandate of the reviewing court need be given and lapse of time shall be no bar to the filing of such mandate in the trial court.” Subdivision (2) contains a provision concerning notice but there is no reference to notice in subdivision (3). Therefore the words “other than as provided in subdivisions ... (3) of this section” relate directly to the words “lapse of time shall be no bar to the filing of the mandate in the trial court.” So far as subdivision (3) is concerned, subdivision (4) states that other than as provided in subdivision (3) of that section, lapse of time shall be no bar to the filing of the mandate in the trial court. In effect subdivision (4) is a legislative construction of subdivision (3) to mean that the barring of a new trial or hearing by lapse of time is also a bar to the filing of the mandate in the trial court. The filing of the mandate without reinstatement of the case is not authorized. The failure to file the mandate in the Circuit Court did not affect the validity and binding force of the judgment of this court as to the questions determined. Chicago Theological Seminary v. People, 189 111. 439.

The order of the Circuit Court of Cook County is affirmed.

Order affirmed.

NIEMEYER, P. J. and FRIEND, J., concur.


author: JUDGE CULBERTSON

text:
    George W. Wheatley and Hubert S. Raitt, Doing Business as W. & R. Construction Company, Plaintiffs-Appellants, v. Moredock and Ivy Landing Drainage District No. 1, Monroe County, Illinois, et al., Defendants-Appellees, and Herman Klohr, et al., Intervening Defendants-Appellees.
    Term No. 56-O-12.
    Fourth District.
    February 25, 1957.
    Released for publication March 14, 1957.

      Baker, Kagy & Wagner, of East St. Louis, for appellants; Leigh M. Kagy and John M. Ferguson, of East St. Louis, of counsel.
    John R. Sprague, of Belleville, for appellees.
   JUDGE CULBERTSON

delivered the opinion of the court.

Plaintiffs, George W. Wheatley and Hubert S. Raitt, Doing Business as W. & R. Construction Company, filed an action to recover damages for breach of a written contract, and for a Writ of Mandamus to force the individual defendants to perform official acts required of them which it is alleged they are under a legal duty to perform. The action was instituted as against the drainage district and certain individuals as commissioners of the drainage district, and is in two counts. The first count is brought only as against the drainage district, and the second count is against the individuals as individuals and as commissioners of the drainage district, praying for Writ of Mandamus to require such individuals to perform the duties imposed upon them and in the contract entered into between plaintiffs and the drainage district, which was executed for the drainage district by the individual defendants.

A motion to dismiss was filed to both counts of the second amended complaint which is before us, and the motion substantially sets forth that insufficient statutory steps had been taken prior to the execution of the written contract between plaintiffs and the drainage district to authorize the drainage district to enter into a binding and valid contract such as is presented in this case, and also that there was a variance between the advertisement for bids and the contract, to which we will refer in the course of this opinion.

The Trial Court granted the motion to dismiss by the intervening defendants and determined that insufficient statutory steps were taken prior to the execution of the written contract, and that plaintiffs therefore had no legal right to sue for breach of the written contract or to recover for the work performed by them for the drainage district and the intervening defendants.

It is of value to review specifically what was done to comply with the statutory provisions applicable to drainage districts as shown by the record.

The commissioners of the drainage district, on March 26,1952, filed their verified petition for authority to repair ditches and for an assessment of $37,130 upon the lands benefited thereby. They caused the clerk of the County Court to duly publish notice as provided by law, to all persons interested, that the petition would be heard on April 21, 1952, at which time and place any person interested might appear and show cause why the prayers of the petition should not be granted. The commissioners of the drainage district appeared at the hearing in the County Court and presented the petition and an ample opportunity was given all persons, including intervening defendants, to be heard, and a hearing was, in fact, had at such time. The drainage district defended a motion by landowners for a rehearing and such motion was denied.

On April 21, 1952 the County Court of Monroe County, on the verified petition of the commissioners and after notice duly given by publication, entered a decree ordering that an assessment be spread upon the lands benefited by the ditches to be repaired; that payment of the cost of the work necessary for dredging, dragging and cleaning of dirt and debris from said drainage district; approving said work; ordering the cost to be apportioned and spread against the lands benefited; ordered that the commissioners prepare and file their commissioners’ roll of assessment of benefits and damages; and tbat proceedings be bad tbereon according to law.

Commencing witb April 24, 1952, and continuing once eacb week thereafter for four successive weeks, tbe drainage district caused due legal publication of a notice requesting bids for completion of said work. Tbe drainage district prepared and submitted bidders plans and specifications covering said proposed work. Tbe district and commissioners received sealed bids from contractors, examined tbe bids, and awarded tbe work to tbe plaintiffs upon determination tbat tbe proposal was tbe lowest responsible bid received by tbe drainage district. Tbe commissioners of tbe drainage district and their attorneys negotiated witb tbe plaintiffs, and tbe Judge of tbe County Court of Monroe County, in working out tbe terms of tbe proposed agreement for completion of tbe work and secured tbe approval of tbe written contract by tbe county judge. Tbe drainage district and tbe commissioners entered into tbe written contract witb tbe plaintiffs on June 23, 1952, covering tbe proposed work and tbe spreading of tbe assessment and tbe payment to plaintiffs.

After tbe execution of tbe written contract and following tbe filing of tbis action, defendant drainage district and tbe commissioners, prepared and filed a roll of assessment of benefits and damages, on September 26, 1953.

It is admitted by all parties to tbe action tbat it is well established tbat before a drainage district is authorized and empowered to enter into a contract, an assessment to provide tbe funds must be levied, and tbat assessments cannot be levied for a previously created indebtedness (Schaeffer v. Gerbers, 234 Ill. 468; Winkelman v. Moredock & Ivy Landing Drainage District No. 1, 170 Ill. 37).

Tbe question presented in tbis action, however, has to do with tbe problem of when an assessment is levied. The parties concede that in order for the contract before us to be valid and enforcible there must have been an assessment levied on the lands involved. In the case of O’Neall v. Coon Run Drainage and Levee District, 319 Ill. App. 324, the plaintiff had entered into an agreement with the defendant drainage district to furnish materials to be used in construction and repair of improvements. At the time the contract was entered into and delivery of materials was made by plaintiff, the defendant had not petitioned the County Court to levy the assessment and approve the work and did not do so until eight months after the date of the agreement. A motion to dismiss a complaint filed by the plaintiff in that case was properly sustained on the ground that, no assessment could be levied for a past indebtedness. It is notable in such case that there had been no approval by the County Court of the work planned, nor was there an order authorizing or empowering the commissioners to enter into the contract or to spread the assessment, such as is true in the case before us, and there had been no order directing the commissioners to prepare their assessment roll of benefits. The Appellate Court in that case properly held that the contract was ultra vires and void. The court followed the precedent of Prange v. O’Meara, 368 Ill. 362, -365, and Corcoran v. Mud Creek Drainage District, 336 Ill. 211, 221, in which cases it was clearly established that the action of drainage district commissioners in entering into contracts fixing a liability on the district must be approved by the County Court, and that prior thereto the landowners have a right to be heard.

In Kreitzer, et al., v. Barnes, et al., 331 Ill. 549, the Supreme Court considered an appeal by landowners in a drainage district from an order of the County Court denying the landowners petition to abandon work and to abolish the district. In that case the commissioners had petitioned the County Court and the County Court had entered an order authorizing certain work to be done in the district, and ordered an assessment as against the lands to pay the cost of the proposed work, as is true in the instant case. Thereafter the commissioners prepared and filed their assessment roll of benefits and damages, and entered into two contracts for the work. The date for hearing on the assessment roll was continued thereafter from time to time and prior to hearing the landowners sought to abandon the work and to abolish the district. The County Court denied such petition, and petitioners on appeal contended that the contracts entered into by the commissioners were invalid and void because the assessment roll of benefits and damages had not been confirmed at the time the contracts were executed and that, therefore, at the time the petition to abandon the work there was no contract for construction in the district. In effect, it was the contention in that case that the drainage district commissioners had no authority to enter into contracts for work before confirmation of the assessment roll. The Supreme Court did not agree with this contention and, while requiring that the commissioners had no power to create in advance an indebtedness and then levy an assessment to meet it, held that it was not necessary that the assessment roll of benefits and damages must be confirmed before the commissioners could enter into a valid contract for the work. It was pointed out by the court that after the County Court has determined the amount, by approval of the commissioners’ report of probable total cost of the work, the commissioners are then required to spread an assessment in the amount found by the court to be necessary and proper. It was pointed out that the commissioners had no power to make an assessment for an amount greater than that fixed by the court as the estimate of the cost of the work. The court said, specifically (at page 554), “The spreading of the assessment is hut mathematical, which determines no right and affects no interest.” The court in such case indicated that the order of the court approving the commissioners’ estimate and ordering the making of the assessment roll against the lands in the district constitutes and completes the levy of the commissioners, subject to changes in amount as to specific property on a hearing before a jury. The court indicated that it has never been required or necessary to have an assessment roll confirmed before a contract could be entered into within the amount of the levy where the contract is to be paid out of the proceeds of the levy.

The only basic distinction between the present case and the Kreitzer case arises from the circumstance that the assessment roll of benefits had been prepared and filed by the commissioners, but not yet confirmed in the Kreitzer case, whereas in the instant case such assessment roll of benefits and damages had not yet been prepared and filed. It is our interpretation of the Kreitzer case that this step is not a basis for distinction since the court specifically determined that the spreading of the assessment is simply mathematical and it determines no right and affects no interest. The levy of the assessment involved in the instant case was completed when the County Court entered the decree more than sixty days before the contract was entered into. It is our conclusion that everything necessary had been done prior to the time of the execution of the contract, and since the contract has now been performed by plaintiffs they are entitled to recover if they are able to prove the allegations of the complaint.

Another issue raised on appeal which was considered on the motion to dismiss is that the second amended complaint fails to state a cause of action because the contract sued upon is at variance from the advertisement for bids in that tbe contract covers 48,550 cubic yards of dirt removal in tbe main ditcb, and tbe advertisement for bids covers 49,000 cubic yards. Tbe notice for bids calls for cleaning of dirt and debris from tbe ditcb in tbe amount of “approximately” 49,000 cubic yards. Tbis notice was based upon tbe estimate of tbe commissioners for tbe amount of work necessary. Tbe difference between tbe cubic yardage specified in tbe written contract and tbe cubic yardage estimated is less than 1 per cent of tbe total cubic yardage involved. Tbe bids submitted, including plaintiff’s bid, were based upon a certain amount of money per cubic yard of actual dirt removed. It is therefore apparent that tbe alleged variance is inconsequential and does not come within tbe meaning of tbe words “substantial and material” as used by tbe courts in setting aside sucb contracts on grounds of variance.

It is also contended by defendants that plaintiffs are not entitled to a Writ of Mandamus as prayed for in count two of tbe complaint for tbe reason that there is no clear and legal right in plaintiffs and a corresponding legal duty on part of defendants to pay tbe amount prayed for, to spread tbe assessment, or to prepare plans and make surveys.

Tbe decree of tbe County Court clearly and precisely ordered that an assessment be spread upon tbe lands benefited, in specified amounts. That decree also directed tbe commissioners to prepare and file tbe commissioners’ roll of assessment of benefits and damages in manner and form provided by statute, and that proceedings be bad thereon according to law. Tbis decree of tbe County Court created a clear and legal duty on part of tbe individual defendants and mandamus was tbe proper remedy under sucb circumstances. All material facts showing a legal obligation to perform the acts sought to be commanded are alleged in the second amended complaint, and the legal right to the Writ of Mandamus and the obligation of respondents is clearly shown by the pleadings.

The court below should have overruled the motion to dismiss and this cause will, therefore, be reversed and remanded to the Circuit Court of Monroe County, with directions to require defendants to answer, and to proceed with a hearing of this cause on the merits.

Reversed and remanded with directions.

S CHEINEM AN, P. J. and BARDENS, J., concur.


author: PRESIDING JUSTICE REYNOLDS

text:
    Berkeley Baptist Divinity School, a California Charitable Corporation et al., Plaintiffs-Appellants, v. Allen Campbell, Administrator with Will annexed of the Estate of Annette Ellars Williamson, Deceased, et al., Defendants-Appellees.
    Gen. No. 10,084.
    Third District.
    February 26, 1957.
    Released for publication March 14, 1957.

      Brown, Hay & Stephens, of Springfield, and John A. Rutledge, of Arthur, for plaintiffs-appellants; Paul W. Gordon, of counsel.
    Nichols & Jones, of Tuscola, for defendants-appellees.
   PRESIDING JUSTICE REYNOLDS

delivered the opinion of the court.

This suit arises out of a dispute-over a trust provision of the will of Annette Ellars Williamson, who died on April 19, 1945, a resident of California. Her will was originally admitted to probate in California and because at the time of her death she was the owner of approximately 355 acres of farm land in Douglas county, Illinois, her will was admitted to probate in Douglas county, on November 20, 1945 and letters testamentary were issued by the County Court of Douglas county to Ola R. Fleming, named trustee in the will.

The farm in Illinois was disposed of by the fourth item of her will in the following language :

“(i) My farm in Douglas County, Illinois, consisting of 355 acres more or less, and more particularly described as: (Here follows Legal Description) unto my nephew Ola It. Fleming, in trust, however, for the following uses and purposes: To hold said farm property in trust and to operate same until such time as in the sole judgment and discretion of my said trustee, it can be sold to the best advantage of my estate. During all the time that my said farm property shall be so held, the net income, after deduction of all necessary expenses, including taxes and reasonable fees to my said trustee, shall be divided into sixteen (16) equal parts, and paid in equal instalments as received, to the following persons and institutions:

“To William Campbell, Allen Campbell, Frank Campbell, Glen Campbell and Grace McMullen, children of my deceased brother, Joseph Campbell, each one share, or a total of five shares thereof.

“To Fred Campbell, Jeretta Campbell Nohren, Dora Campbell Nohren and Pearle Campbell, children of my deceased brother, Harvey Campbell, each one share, or a total of four shares thereof.

“To Joseph Stephen Campbell, Leonard Campbell, Harry William Campbell, Frances Campbell McElvine and Nettie May Campbell, children of my deceased brother Stephen Fleming Campbell, each one share, or a total of five shares thereof.

“To Alta Welcome, Nettie Welcome and Percy Welcome, share and share alike, the one share that would have been given to their mother, Susan Campbell Welcome, were she living.

“To the Young Women’s Christian Association of Long Beach, California, and the Young Mens’ Christian Association, of Long Beach, California, one share thereof, to be divided equally between them, this completing the total of sixteen shares.

“Upon the sale of my said farm property, as herein-before provided, it is my will that one-sixteenth (1/16) of the proceeds thereof shall be divided equally between the Young Men’s Christian Association and the Young Women’s Christian Association, both of Long Beach, California. The net income from the remaining fifteen (15) shares shall continue to be distributed by my said trustee to the beneficiaries named herein-before in this section (1), during the term of their natural lives, and upon the death of any beneficiary the proportion of the principal of the share of said beneficiary shall thereupon be paid in equal shares to the Atherton Court, a corporation, 700 Irving St., Alhambra, California, and Berkeley Baptist Divinity School, an Educational Institution, until the death of the last surviving beneficiary, whereupon this trust shall ipso facto terminate and the trustee be discharged.”

Item Six of the will provided as follows:

“Any inheritance taxes assessed against any gift, devise or bequest herein shall be paid out of my Illinois farm.”

Ola R. Fleming, named as trustee by the will, died on December 21, 1945, without having assumed the duties of trustee under the will. Allen Campbell was thereupon appointed as administrator with the will annexed of the estate of the decedent. Mr. Campbell acted as such trustee and managed the farm until the filing of this suit and the appointment of W. R. Kim-ball as “Interim Trustee” by the Circuit Court of Douglas County, Illinois, on October 23, 1950. Kimball acted as such trustee until his death on October 24, 1953, and the Central National Bank of Mattoon, Illinois was appointed Successor Interim Trustee, and that bank is still acting in such capacity.

Of the life beneficiaries named in the will, Grace McMullen died October 6,1941, prior to the date of the death of the testatrix; Pearle Campbell died on October 2, 1945; Glen Campbell died on April 19, 1946; Fred Campbell died on October 22,1949; Frank Campbell died on February 21,1950, and Alta Welcome died on February 21, 1951. Thus six of the named fife beneficiaries are dead.

The original complaint herein was filed by Berkeley Baptist Divinity School and Atherton Court, both California charitable corporations and the ultimate beneficiaries of the trust, on December 30, 1948. In the original complaint it was prayed that the court would take jurisdiction of the trust, and appoint Ervin L. Jurgens as successor trustee, and that the said successor trustee be authorized and directed by the court to sell the real estate involved herein. The court did enter an order assuming jurisdiction, but did not act upon the prayer for the appointment of a successor trustee until the appointment of W. B. Kimball on October 23, 1950. No further action was taken in the matter until plaintiffs filed their separate or supplemental complaints, asking that the trustee be directed to sell the land. Motions to dismiss the petitions and supplemental complaints were filed on behalf of the life beneficiaries. By stipulation certain testimony as to the value of the land, the income from the operation of the farm, the income that would be derived if the land were sold and the money invested in legal securities was put in the record. The materiality or relevancy of this testimony was not admitted by the plaintiffs.

The court found that the fair cash market value of said real estate of the decedent in Douglas County was $174,500; that the net income from the real estate for three years, 1952, 1953 and 1954 had been approximately $10,000 per year; that the average gross income on legal investments of trustees where the trust assets are invested in legal securities, other than real estate, does not exceed 2%% which would average $3,800 per year from said trust if the land was sold and the proceeds invested in such securities; that the discretionary power vested in Ola R. Fleming by the will was personal to the said Ola R. Fleming, and that he, having died without exercising such discretionary power, and the will having failed to provide for such contingency, the matter of the sale of said land became a question of construction by the court; that the power of sale and direction to sell was a power personal to the said Ola R. Fleming and was not such a power as would pass to a successor trustee, and that the successor trustee would have no power to sell such lands, except by authority from a court of competent jurisdiction; that the sale of the real estate was not necessary for the proper management and operation of said trust, and that at that time, it was not to the best interest of the estate that the said real estate be sold. From those findings and the decree of the court, the plaintiffs have prayed an appeal to this court.

The plaintiffs in their appeal contend that the will of Annette Ellars Williamson requires that an immediate sale of the real estate be had. They further contend that the will shows a clear intention on the part of the testatrix that the real estate should be sold with reasonable promptness and in no event later than the death of the first fife beneficiary; that the discretion lodged in Ola R. Fleming was not whether or not the land should be sold, but when, and that the power and direction to sell were not personal to Fleming but passed to the successor trustee.

In passing on the questions raised it will be necessary for this court to determine whether or not there was any discretion lodged in the original trustee as to whether or not a sale should be made. If there was such a discretion vested in Ola R. Fleming, then under the authority of the case of French v. Northern Trust Co., 197 Ill. 30, such authority and discretion would not pass to a successor trustee. In that case the court said: “As a general rule, where a power is discretionary and of a kind that indicates personal confidence in the one selected to exercise it, a court of equity will not assume to exercise the discretion, and the power will not pass to a successor appointed by the court, in the absence of express words to that effect in the instrument creating the trust. The court cannot invest a trustee of its creation with powers which are to be exercised or not, in .the personal judgment and discretion of the one appointed in the creation of the trust, in whom personal confidence is reposed. If the power is ministerial, or given for the purpose of executing a declared trust which the court can enforce, although there may be some measure of discretion involved, the court will compel the performance of the power or execute it in the place of the trustee. If the purposes of a will require the exercise of a power, the duty may be enforced in order that the wishes of the testator may be carried out.”

This view of the court is again stated in the case of Yates v. Yates, 255 Ill. 66, where it was said: “As a general rule, where a power is of a kind that indicates personal confidence in the one selected to exercise it, and may be exercised by him or not, in his personal judgment and discretion, a court of equity will not assume to exercise the discretion, and the power will not ordinarily pass to a successor appointed by the court. (French v. Northern Trust Co., 197 Ill. 30.) If, on the other hand, it clearly and specifically appears from the instrument that this power is annexed to the office of the trustee for the purposes of the trust and to promote its objects, then such power will pass, with the trust, to the successor of the original trustee and can be exercised by him.”

The case of Smith v. Renne, 382 Ill. 26, has facts somewhat analogous to the instant case. There a trust was created in the following language: “All the rest of my estate both Eeal and Personal to Herbert C. Smith and Orval M. Morgan as Trustees under this will, to be held for a period of five years or until such time as in their opinion it could be sold to best advantage.” And the court in that case, said: “Where no time is mentioned in connection with a general direction to sell, the requirement that the trustee sell within a reasonable time, and the power of a court of equity to require a sale within a reasonable time, prevent the rule against perpetuities from operating.” And the court continuing said: “Examination of the will, however, discloses that the testatrix intended the sale to take place as soon as convenient and that the five-year period was fixed more as a limitation within which a sale could be made rather than a prohibition to sell before that time.”

In the case of Teater v. Salander, 305 Ill. 17, the testator gave directions as follows: “It is my will and desire that my executor hereinafter named shall sell at public vendue, or, if he shall deem best, at private sale, all the real estate that I may own at the time of my death, at such times as he may think best for the interest of my estate.”

And the court in that case said: “While the appellee is given the right to exercise his judgment as to when the sale should take place, the direction to sell is positive, and he does not have the right to determine whether or not it shall be sold at all ; nor has he any right, merely under the pretense of exercising the discretion vested in Mm, without a valid reason therefor, to refuse to sell for an indefinite period of time.” And the court continuing, said: “While no time for the sale was fixed by the terms of the will, it was undoubtedly the intention of the testatrix that the sale be made as soon as it could be done consistently with the best interest of the estate.”

In the case of Knight v. Wacaser, 317 Ill. App. 162, the sale and distribution of the estate was left to a son, in tMs language: “The sale and distribution of my estate after my death is to be left entirely to the judgment of my son, Charles A. Gregory, in whom I have the utmost confidence, both as to his ability and integrity.” In that case, the court held that the circuit court was justified in finding that Gregory had delayed selling the real estate for an unreasonable length of time, 12 years, and correctly ordered a sale of the property. And the court in that case further stated that the trial court had properly ordered the removal of Gregory as Trustee and the appointment of a successor.

Here, the directions for sale are not as positive as those in the Teater v. Salander case, but correspond more to the directions in the Smith v. Renne case, and the Knight v. Wacaser case. Yet the court in the Smith v. Renne case held that the directions were sufficiently definite and that the sale should be made within a reásonable time.

A reading of the will in this case seems to clearly indicate the intention of the testatrix that the land be sold. The sale of the real estate and distribution of the proceeds is the objective clearly indicated by the language in the fourth item of the will. It would seem from a reading of the whole will, and especially the burdening of the Illinois land with the payment of the inheritance taxes, that the general plan of the testatrix was, not to provide a certain income for life beneficiaries, but for tbe protection of her property against loss by a basty or imprudent sale, and to prevent such basty or imprudent sale, she gave tbe trustee tbe right to use bis best judgment as to when tbe sale should be made, but not as to whether or not tbe sale should be made. There is nothing in tbe will to indicate a desire on tbe part of tbe testatrix to guarantee an income for tbe named fife beneficiaries.

In any interpretation of a will our courts have sought diligently to carry out tbe will of tbe testator insofar as may be ascertained. Here, there seems to be a definite intention on tbe part of tbe maker that tbe farm be sold, but tbe time of sale is left to tbe discretion of tbe trustee. Tbe named trustee died without having made a sale. If, as we interpret tbe language of tbe will, there was an intention to sell and only tbe time of sale was left to tbe discretion of tbe trustee, then tbe power to sell passed to tbe successor trustees.

It would seem to this court that sufficient time has passed for tbe carrying out of tbe intentions of tbe testatrix. It is tbe opinion of this court that tbe only discretion vested in tbe original trustee was as to tbe time of tbe sale, tbe directions for sale being sufficiently expressed by the will and that a sale should be made at this time. To bold otherwise would be to allow tbe trial court to rewrite tbe will of Annette Ellars Williamson and thus defeat tbe intention of tbe maker. We must bold that tbe power and duty to sell passed to tbe successor trustee.

Tbe judgment and order of tbe Circuit Court of Douglas county is reversed and tbe cause remanded with directions to proceed in accordance with tbe views expressed herein.

Reversed and remanded with directions.