text:
    People ex rel. Board of Education of Community Unit School District No. 5 of Livingston County, Illinois, Plaintiff-Appellant, v. Lucile Goodrich, County Superintendent of Schools of Livingston County, Illinois, Defendant-Appellee.
    Gen. No. 10,939.
    Second District.
    June 27, 1956.
    Released for publication July 14, 1956.

      McNeilly, Ryan & Olivero, of Pern, for plaintiff-appellant.
    John A. Taylor, of Pontiac, State’s Attorney for Livingston county, for defendant-appellee.
   PRESIDING JUSTICE DOVE

delivered the opinion of the court.

On July 11, 1955, relator filed its verified petition in the Circuit Court of Livingston county alleging that it is the duly elected Board of Education of Community Unit School District No. 5 of Livingston county and that the defendant is County Superintendent of Schools of that county. The petition then alleges that from June 12, 1952, until July 1, 1952, Article 8-14 of the School Code of Illinois [Ill. Rev. Stats. 1951, ch. 122, § 8 — 14] was in effect which provided that when a petition is filed with the County Superintendent of Schools signed by at least fifty legal voters or 20% of the legal voters residing in any territory contiguous and adjacent to a community unit school district and also signed by at least fifty legal voters or 20% of the legal voters residing in the community unit school district asking that the territory described be detached from the district or districts of which it is a part and annexed to the community unit school district, the County Superintendent of Schools shall call an election to be held as provided in Article 5A [Ill. Rev. Stats. 1951, ch. 122, §§ 5A — 1-5A—20] of the School Code within thirty days after the filing of the petition; that if a majority of the votes cast at the election, both in the territory described and in the annexing community unit district, shall each be in favor of the boundary change, then the County Superintendent of Schools shall within ten days after the election file a map with the county clerk showing the boundaries of the districts as determined by the election and that thereupon the county clerk shall extend taxes against the territory in the school district in accordance with such determination.

The instant petition then alleged that on June 12, 1952, a petition was filed with defendant asking that an election be called pursuant to said Article 8-14 of the School Code seeking to detach the territory therein described from Community Unit District No. 4 of Livingston County and annex it to Community Unit District No. 5 of that county; that an election was duly called by defendant for June 28, 1952, and held that day and the proposition submitted to the voters carried and, under the provision of the School Code, it then became the duty of defendant to file a map with the county clerk showing the boundaries of relator as determined by the election. The petition then alleges the failure and refusal of defendant to file such a map and prays for a writ of mandamus to compel her to do so.

Defendant filed her verified motion to strike this petition in which she averred: (a) that the sections of the School Code set forth in the petition and relied upon by relator had been repealed effective July 1,1952, and by reason thereof defendant, on and after July 1, 1952, had no duty to file said map; (b) that relator is barred by laches from obtaining the relief sought, first, because it had delayed more than three years after the legislative act, upon which it relies, had been repealed before it instituted the present proceeding and, second, because the attorney for relator, in January 1953, requested defendant not to file the map which it now seeks to compel defendant to file in order that relator could issue School Building Bonds in the amount of $900,000; that said attorney also requested defendant to furnish relator, as late as January 1953, a list of the annexations and detachments from the relator district; that defendant did so furnish relator with such list at that time and that relator accepted said list which did not include the territory described in the instant petition and involved herein and in its issuance of $900,000 bonds relator relied upon said list of annexations and detachments so furnished it by defendant.

The motion to dismiss also challenged the sufficiency of the allegations of the instant petition in that the instant petition failed to show that the original petition signed by the voters and filed with defendant asking for a change of boundaries met the statutory jurisdictional requirements and also that the instant petition did not aver that said petition for boundary change stated that the described territory was adjacent and contiguous to the relator district.

Upon a hearing the trial court sustained the motion of defendant to dismiss and from a final order that plaintiff take nothing by this action and that the defendant go hence without day, the petitioner appeals.

The applicable part of Article 8-14 of the School Code, under which the election of June 28, 1952, was held, is as follows: (Ill. Rev. Stat. 1951, Chap. 122, Art. 8 — 14) “When a petition is filed with the county superintendent of schools under whose direction a community unit school district has been established, signed by at least fifty (50) legal voters or twenty per cent (20%) of the legal voters residing in any territory contiguous and adjacent to said community unit school district and also signed by at least (50) legal voters or twenty per cent (20%) of the legal voters residing in such community unit school district, asking that said territory described in the petition be detached from the school district or school districts of which it is a part and annexed to the community unit school district, or in case the territory consists of a whole school district that it be dissolved and the territory annexed to the community unit school district, the county superintendent of schools shall call an election to be held in the manner provided in Article 5A of this Act within thirty (30) days after the filing of the petition, at which the voters of the territory described in the petition and of the community unit school district to which the territory is to be annexed shall vote upon the proposition.

“If a majority of the votes cast at any such election in the territory to be detached and in the community unit school district to which the territory is to be annexed shall each be in favor of the boundary changes, the county superintendent of schools shall within ten (10) days after the election file a map with the county clerk or clerks showing the boundaries of the districts as determined by the election, whereupon the county clerk or clerks shall extend taxes against the territory in the school districts in accordance with such determination.”

On July 24, 1951, the Governor signed House Bill 1189, which repealed this Article. House Bill 1189 became effective July 1, 1952. (Laws of Illinois, 1951, pp. 1806-7.) The duty and authority to file maps reflecting boundaries of school districts was thereby changed from Article 8-14 to Article 4B-9 of the School Code. (Ill. Rev. Stat. 1953, Chap. 122 [§ 4B— 9].)

Counsel for appellant argue that the election held two days before the effective date of the repeal of Sec-lion 8-14 of the School Code changed the boundaries of this district and relator thereby gained the right to have the assessed valuation of this annexed territory taken into consideration in computing tax rates; that its right to do so became vested on June 28, 1952, and the repeal of this Article did not in any way affect its rights. In support of this contention, counsel cite and rely upon People ex rel. Bodecker v. Community Unit School Dist. No. 316, 409 Ill. 526, and People ex rel. Small v. Board of Education of Community Unit School Dist. No. 202 of Fayette County, 343 Ill. App. 362. What the court held in the Bodecker case was that the school district was established by the election of February 28, 1948, and began its legal existence at that time regardless of the time the board of education was organized. To the same effect is the Small case.

It was held in People v. Deatherage, 401 Ill. 25, at page 32, that a school district is subject to the will of the legislature, its area may be contracted or expanded, divided, united in whole or in part with another district or may be entirely abolished. (Dolan v. Whitney, 413 Ill. 274, 279; Board of Education of Waverly Community Unit School Dist. No. 6 v. Nickell, 410 Ill. 98.) School property is owned by the state and neither taxpayers nor voters have any vested rights in school property, taxes or school proceedings. In Lincoln Community High School Dist. No. 404 v. Elkhart Community High School Dist. No. 406, 414 Ill. 466, it is said (p. 468): “It is settled law in this state that the unconditional repeal of a special remedial statute without any saving clause stops all pending actions where the repeal finds them. If final relief has not been granted before the repeal goes into effect, it cannot be granted afterwards, even if a judgment has been entered and the cause is pending on appeal. The reviewing court must dispose of the case under the law in force when this decision is rendered.”

Counsel for appellant argue that defendant deliberately called the election for June 28,1952, when it could have been had as early as June 23,1952, and that after a successful election had been held, defendant could have filed the map on June 29th or 30th as she knew the statute under which she was proceeding would be ineffective on and after July 1,1952. Counsel insist that it was just as much her duty to file the map on the first or second day following the election as it was to file it on the ninth or tenth day thereafter. What she did, conclude counsel, was to wait and now seeks to take advantage of her delay by insisting that the statute, under which she had a duty to perform, is no longer in effect.

This argument merits no consideration. Defendant was required, under the statute, to file the map not later than ten days after the date of the election. She could have filed it on any day within that period. She was not obliged to file it on June 29th or June 30th. After June 30th there was no law under which she could act. We are not concerned with the reasons which prompted her not to call the election at an earlier date or the motive which prompted her not to file the map on either June 29th or 30th. The record, as made, is what this court reviews and it shows that the map was not filed prior to the effective date of the repeal of the statute. On that date her duty and obligation ceased. The act of the legislature which repealed the act upon which the instant action is based contained no savings clause. The circuit court and this court must, therefore, dispose of the action under the law in force when its decision is rendered. The circuit court did so and thereby committed no error.

Furthermore the record shows, and it is undenied, that in January 1953, more than six months after the election held on June 28, 1952, relator, by its attorney and agent, requested defendant not to file this map. It was not until July 11, 1955, more than three years after the time provided by the repealed act for the map to be filed, that the instant proceeding was instituted. This attitude on the part of appellant and this unexplained delay do not commend to this court appellant’s demand for relief. Laches is available to a defendant in a mandamus proceeding. (Schultheis v. City of Chicago, 240 Ill. 167, 169; Kenneally v. City of Chicago, 220 Ill. 485, 503; People v. City of Chicago, 292 Ill. App. 589.)

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

Judgment affirmed.

CROW and EOVALDI, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SCHEINEMAN

license: Public Domain

text:
    Vernon Quade et al., Plaintiffs-Appellees, v. George Zicos, Defendant-Appellant, Max P. Rudolph et al., Defendants.
    Term No. 56-M-11.
    Fourth District.
    June 27, 1956.
    Released for publication July 13, 1956.
    Howard W. Campbell, and Craig & Craig, all of Mt. Vernon, for defendant-appellant.
    J. A. Gochenour, of St. Louis, Missouri, and Joseph R. Bartylak, of Collinsville, for plaintiffs-appellees; James 0. Monroe, Jr., of Collinsville, of counsel.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of- the court. .

This is an appeal from an order appointing a temporary receiver to operate a certain oil leasehold and authorizing the receiver to employ attorneys, agents and necessary personnel.

The plaintiffs, as owners of one-eighth of the working interest filed this suit in June of 1953, naming George Zicos as sole defendant, and he answered admitting he was operating the leasehold under an agreement with the owners but denying all other allegations of the complaint. Nothing was done in the case for more than a year. Then in November of 1954 an amended complaint - was filed purporting to add as defendants the other persons then owning the remaining'interests. The amended complaint charged Zicos with various acts of negligence, waste and mismanagement of the property, and prayed for an accounting, that the agreement be cancelled, set aside and declared null and void so far as it allows Zicos to' operate the lease, and for a receiver during pendency of the actions.

Thereafter, in March of 1955 plaintiffs moved for appointment of a receiver. Only Zicos was notified of the hearing; the other defendants were not yet in court. The report of proceedings of this “hearing” shows only that Zicos then swore to his answer and produced the original of the agreement. No evidence was offered by plaintiff, and no order was entered by the court..

In the ensuing months service was obtained on the other defendants and 11 of them filed sworn answers denying the allegations of the complaint and asserting that the leasehold is operated satisfactorily and there is no reason to change the terms of the agreement. These persons represent approximately 50 per cent of the total-working interest. The last of these answers was filed in August of 1955.

More than 6 months later, on February 24, 1956 (2 years and 8 months after suit was filed), without hearing or notice to anyone, and without requiring plaintiffs to file a bond, the court entered the order appointing the receiver, from which Zicos has perfected this interlocutory appeal.

In thus appointing a receiver, the court has, in effect, taken over the custody and management of an operating property, saddling the expense thereof on the property, and depriving Zicos of his contractual rights; basing this action on the charges of a small minority of the owners without a shred of evidence to support them.

The plaintiffs seek to support this order on the ground of an emergency, although the chronology above set forth fails to indicate that plaintiffs, their counsel, or the court were convinced of any emergency.

This court has previously considered the use of emergency powers of the court in designating a receiver to operate oil production. Simpson v. Adkins, 311 Ill. App. 543, 550.

We there recognized the power of a court of chancery to appoint a receiver to prevent injury and to do complete justice. But we observed that this should not be done, without notice unless absolutely necessary. Particular attention was directed to the statute which restricts the power of the court to take such emergency action without requiring a plaintiff’s bond. That statute is Sec. 54, Ch. 22, Ill. Rev. Stat. and reads as follows:

“That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages including reasonable attorneys fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.”

We have considered the cases cited by the plaintiffs in support of the action taken by the court, but in each instance we believe situations of a different character were involved. A clear emergency existed or the defendant consented, or there was some other legal basis supporting the appointment. Thus, in McDougall Co. v. Woods, 247 Ill. App. 170, the last part of the opinion shows that bonds had.been filed. In Roberts v. American Bonding & Trust Co., 83 Ill. App. 463 evidence had been heard by the trial judge.

As to the effect of acting upon grounds fully denied, we think the holding in Klass v. Yavitch, 302 Ill. App. 229, based on 53 Corpus Juris, Sec. 66, that in such case the plaintiff should be required to produce proof, is sound, and departure therefrom should be discouraged.

Plaintiffs also cite the case of Russell v. Chicago Trust & Savings Bank, 40 Ill. App. 385, 388 to the effect that a person brought into the case after the appointment of a receiver should move for his discharge if he desired to complain. Of course, that would be the rule as to a prior valid appointment, but has no application in this case. There are no new parties hereto who were brought in after the appointment appealed from.

In our opinion the action taken in this case does not remotely resemble the notice and full hearing contemplated by the statute. Accordingly, the order appointing a receiver is reversed, and the cause remanded.

Reversed and remanded.

BARDENS and CULBERTSON, JJ., concur.


author: JUSTICE CROW.

text:
    Fannie G. Burkholder, Jesse W. Johnson, and George W. Gerdes, Individually and as Administrator, c.t.a. of Estate of Fannie G. Burkholder, Deceased, Plaintiffs-Appellants, v. Harry E. Burkholder, Arlene C. Danreiter, Individually and as Executrix of Will of Charles P. Danreiter, Deceased, Charles Le Roy Danreiter, Minor, Socony-Vacuum Oil Co., Inc., Louise A. Connor et al., Defendants-Appellees.
    Gen. No. 10,897. (Abstract of Decision.)
    Second District.
    June 23, 1956.
    Rehearing denied July 16, 1956.
    Released for publication July 17, 1956.
    Jesse W. Johnson, pro se, plaintiff-appellant; Ward & Ward, for George W. Gerdes, plaintiff-appellant; Jacob Cantlin and Samuel Rubin, for Harry E. Burkholder, appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: PRESIDING JUSTICE DOVE.

text:
    Florence Fritsch, Plaintiff-Appellee, v. Velda Swanson, Defendant-Appellant.
    Gen. No. 10,926. (Abstract of Decision.)
    Second District.
    June 27, 1956.
    Released for publication July 14, 1956.
    Shaw & Chamberlain, for appellant; no brief filed for appellee.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Alex P. Peters, Plaintiff in Error.
    Gen. No. 10,931. (Abstract of Decision.)
    Second District.
    July 9, 1956.
    Rehearing denied July 30, 1956.
    Released for publication July 30, 1956.
    John R. Snively, for plaintiff in error; Robert R. Canfield, State’s Attorney, and Rosario A. Gaziano, Assistant State’s Attorney, for defendant in error.
   Opinion by

PRESIDING JUSTICE DOVE.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Defendant in Error, v. Joseph Morrow and James P. Taylor, Plaintiffs in Error.
    Gen. Nos. 52,367, 52,368.
    First District, Fourth Division.
    September 25, 1968.

      Harold Turner and Sheldon Golding, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Alan Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Defendant Joseph Morrow was tried and convicted for the crime of soliciting for a prostitute, and sentenced to 20 days in the County Jail. Defendant James P. Taylor was tried and convicted for the crime of keeping a place of prostitution, and sentenced to 30 days in the County Jail. The complaint was filed on September 7, 1966, and defendants appeared when their cases were called until a request for a jury trial was made on January 13, 1967, at which time the cases were transferred to the chief justice and were reassigned to Branch 46, and set for trial on January 27, 1967. On February 7, 1967, the defendants’ attorney filed a verified petition for change of venue (substitution of judge), which was denied without a hearing, and the case was continued to March 2, at which time the defendants, after waiving a jury, were tried in a bench trial and found guilty. From that finding this appeal is taken and an appeal bond filed.

The point raised by the defendants is that the magistrate erred in summarily denying the petition for change of venue without a hearing. The statute here under consideration is the following:

Ill Rev Stats 1965, c 38, § 114-5. Substitution of Judge.)
(a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of judge or any 2 judges on the ground that such judge or judges are so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another court or judge not named in the motion.
(b) Within 24 hours after a motion is made for substitution of judge in a cause with multiple defendants each defendant shall have the right to move in accordance with subsection (a) of ;this Section for a substitution of one judge. The total number of judges named as prejudiced by all defendants shall not exceed the total number of defendants. The first motion for substitution of judge in a cause with multiple defendants shall be made within 10 days after the cause has been placed on the trial call of a judge.
(c) In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.

When the magistrate summarily denied the petition without a hearing and notified the defendants they must stand trial, the magistrate stated: “Substitution is denied, not timely. ... I don’t grant substitutions.”

This case falls within the rule laid down in People v. Ethridge, 78 Ill App2d 299, 223 NE2d 437, where the defendant was indicted for armed robbery. He made a motion before his trial for substitution of judge, alleging that he could not receive an impartial trial because of the prejudice of the trial judge. The motion was denied and the defendant was found guilty in a jury trial. He argued in the Appellate Court that he was entitled to a new trial because his motion was improperly denied.

The defendant in the Ethridge case was arraigned on May 7, 1964, after his case had been assigned on May 1, to the trial judge by the presiding judge of the Criminal Court. The case was continued to May 21, and defendant’s motion for substitution of judge was filed and denied on that date. The court found that the case had been placed on trial call on May 1, the date the presiding judge assigned it to the trial judge, and it became part of that judge’s trial call upon assignment. Since the defendant’s motion was filed more than 10 days after his case was placed on the trial call, the procedure concerning it was not controlled by subsection (a), but by subsection (c) of section 114-5. The court said at page 302:

“The distinctions between subsections (a) and (c) are these: a motion filed within the 10-day period may name two judges, it does not have to be verified, and the defendant has an absolute right to a substitution of judge; if a motion is filed at any other time it may name only one judge, it must be supported by affidavit, and the defendant is not entitled to an automatic substitution but the court must conduct a hearing to determine the merits of the motion.”

As in the case before us, the defendant’s motion in Ethridge was not supported by a separate affidavit but the motion was verified. The court said at page 303: “This was a sufficient compliance with the statute.” The motion did not contain detailed allegations of prejudice, it merely stated that prejudice existed. However, it is not necessary that a defendant enumerate facts to support a general allegation of prejudice. People v. Arnold, 76 Ill App2d 269, 222 NE2d 160.

As in the instant case, the trail court in Ethridge did not conduct a hearing as contemplated by the statute, and the reviewing court concluded from the order that no testimony was heard or evidence received, and that the denial of the motion was based on arguments of counsel. The court stated at page 304:

“If the defendant was unwilling or unable to support his charge of prejudice the order or the record should so indicate. Since the defendant was not accorded a hearing within the meaning of the statute, the defendant’s sworn allegation that he could not receive a fair and impartial trial must be taken as true.”

The court held that the petition for substitution of judges was improperly denied and all the actions of the court subsequent thereto were void. The case was reversed and remanded for a new trial.

The same “situation exists in the case before us, and the judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    Carol J. Miller, Plaintiff-Appellee, v. Isidor Simon, Doing Business as I. Simon & Son, Mundelein Realty Corporation, and Ned B. Simon, Defendants-Appellants.
    Gen. No. 52,425.
    First District, Third Division.
    September 26, 1968.

      Rubenstein & Gelfman, of Chicago (Michael Levin and Harry G. Fins, of counsel), for appellants.
    Arvey, Hodes & Mantynband, of Chicago (Ralph A. Mantynband, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Defendants appeal from a judgment entered in favor of the plaintiff in an action for damages for trespass to the plaintiff’s realty. The case was tried before the court without a jury and the court assessed compensatory damages in the sum of $2,765 and punitive damages in the sum of $1,500.

The plaintiff is the owner of two adjacent vacant lots which were surrounded on three sides by approximately 300 lots owned by the defendant, Mundelein Realty Corporation, in the village of Mundelein, Illinois. These lots owned by Mundelein Realty Corporation were being developed as part of the Bel-Aire subdivision by Isidor Simon, doing business as I. Simon & Son, a co-defendant. Isidor Simon and his son, codefendant Ned B. Simon, were officers of the Mundelein Realty Corporation.

In order to prepare its land for development and ultimate occupancy, Mundelein Realty Corporation balanced its land by removing topsoil and trees so that sewers, streets, water mains, curbs, fire hydrants and gutters could be installed. It is undisputed that in the course of this activity the defendant corporation balanced the plaintiff’s property and removed topsoil and trees therefrom.

Plaintiff testified that in the fall of 1963 she went upon her property, whereupon she discovered that one of her two lots had been stripped of topsoil and that some of the trees had been removed. She immediately went to the office of the Bel-Aire concern managed by the defendant, I. Simon & Son. After informing a representative of the office that her property had been damaged, the plaintiff was told that she could “help herself” to the pile of black dirt which had been gathered from the stripping of the lots. Subsequent to this conversation, the plaintiff testified that gravel was placed upon her property, that parking signs had been erected on it, and that the remainder of topsoil on her other lot had been removed. Plaintiff’s attorney sent a letter to Mundelein Realty Corporation and demanded that the signs and gravel be removed and demanded reimbursement for the removal of the topsoil and the severance of the trees. Ned B. Simon responded on behalf of the corporation that the gravel and signs would be removed but also defiantly informed the plaintiff that she would be held to pay for the improvements that the defendant had made on adjacent properties to the extent those improvements enhanced the value of the two lots. The defendant made no offer to reimburse the plaintiff for the existing damage or to replace the removed topsoil and trees.

The defendants offered testimony of several real estate experts that the plaintiff’s lots were in fact enhanced in value due to the surrounding improvements of the defendants. The plaintiff offered the opinion of her own real estate expert that the land was not so enhanced. There was evidence that Mundelein Realty Corporation had purchased the surrounding lots for approximately $600 per lot in December 1958, and that some of these lots were sold by them for $3,750 per lot after the spring of 1963, at which time the improvements had been installed.

It is argued by the defendants that the record is barren of any evidence with which to impose individual liability upon Isidor Simon and Ned B. Simon. The trial judge, as the trier of fact, was warranted in finding that these defendants were personally liable for the trespass. One who orders, aids, directs, abets, or assists the commission of a trespass is liable for the resultant damages, even if such an individual did not benefit from the trespass. Ferriman v. Fields, 3 Ill App 252; Northern Trust Co. v. Palmer, 171 Ill 383, 49 NE 553; Donovan v. Consolidated Coal Co. of St. Louis, 187 Ill 28, 58 NE 290. The two officers are not insulated from liability for the tortious acts of the defendant, Mundelein Realty Corporation, since it has been well established that an officer of a private corporation is liable for any tort of the corporation in which he participates or authorizes, even though he was acting for the corporation in the commission of the tortious activity. Peck v. Cooper, 112 Ill 192 (see: 3 Fletcher Cyc Corp, 849). There was ample evidence that Isidor Simon, doing business as I. Simon & Son, a sole proprietorship at the time of the trespass, directed some or all of the improvements for the Bel-Aire development. He admitted that he personally instructed the engineers in the removal of trees in the area. Ned Simon testified that he knew that the topsoil had been removed and that he even knew where the plaintiff’s removed topsoil was stockpiled.

There was sufficient evidence to establish that the defendants had placed a parking sign on the plaintiff’s property. However, the defendants argue that since there was no evidence that customers’ cars were in fact seen parked on the property the award of $375 for the reasonable rental value of the property was erroneous. Mesne profits can be recovered when there is a trespass and a tortious holding of the property and that such damages can be ascertained by the reasonable rental' value which represents the worth of use of the premises. Falejczyk v. Meo, 31 Ill App2d 372, 176 NE2d 10; Western Book & Stationery Co. v. Jevne, 179 Ill 71, 53 NE 565. The trial judge in the instant case could reasonably conclude that the placing of a “park here” sign on the plaintiff’s lot was the defendants’ assertion of dominion and right to use that lot for parking. This court is not willing to disturb that conclusion simply because of the fortuitous fact that either no witness saw cars parked on the premises or that no customers availed themselves of the opportunity to park on the property in question.

Another argument advanced by the defendants is that there was no basis for the assessment of punitive damages. There is no evidence that any of the defendants possessed a mistaken belief in good faith that they had title to the two lots at issue. The defendants, experienced realtors, never made any attempt to ascertain the ownership of these lots or the precise boundaries of their properties. After the plaintiff had orally notified the defendants of the damage, she was told defiantly that “We will build you a house. . . .” and the defendants subsequently removed even more of the plaintiff’s topsoil and placed gravel upon her land. Ned B. Simon’s response to the letter written by the plaintiff’s attorney was appropriately termed “smart alec” by the trial judge. It also appears that defendants have made no attempt to replace the topsoil and trees.

Malice is a question of fact to be determined by the trier of fact and it can be inferred when one acts with a wanton, wilful, or reckless disregard for the rights of another. Madison v. Wigal, 18 Ill App2d 564, 153 NE2d 90; Chicago Consol. Traction Co. v. Mahoney, 230 Ill 562, 82 NE 868; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill 288, 43 NE 393. The defiant, irresponsible, and aggravating conduct of the defendants in the case at bar amply supports an award of punitive damages.

The defendants also argue that the trial court erred in awarding compensatory damages in excess of nominal damages because the Mundelein Realty Corporation actually enhanced the value of plaintiff’s property due to the improvements made upon the surrounding property. It is apparent from the record that the trial judge did not accept the plaintiff’s or her expert’s testimony that the value of the two lots was not so enhanced, yet he still awarded damages for the severed trees and topsoil and for the rental value of the parking lot.

The court finds no error in such an award since the trial judge properly treated the enhancement evidence as irrelevant. In Conklin v. Newman 278 Ill 30, 115 NE 849, it was held that the trial court properly excluded the defendant’s evidence which attempted to show that his act of trespass in cutting down the plaintiff’s hedge fence was beneficial to the property. On page 36 the court said:

“Even though the removal of the hedge might be beneficial to appellee’s farm as a whole, still the hedge contained material of value which was appropriated by appellants, and if she was the owner of the south half of the hedge she is entitled to recover for it. Appellee has the right to manage her own farm as she sees fit, and appellants do not have the right to interfere with that management and dictate what will or will not be beneficial to her land. If they committed a trespass and appropriated property of value she is entitled to recover for that without regard to what effect, if amy, the result of the trespass has upon her farm as a whole" (Emphasis supplied.)

The argument of the defendants in the case at bar is even more tenuous than that of the appellants in the cited case since here the defendants are contending not that the particular act of trespass directly benefitted the plaintiff’s lots but rather that the independent and unrelated acts of improvement to the surrounding properties inured to the benefit of the plaintiff thereby negating her damage sustained by their trespass. To sustain this line of argument is to give license to reckless trespassers to enter another’s property, appropriate things of value therefrom and then absolve themselves of all liability by making surrounding improvements.

Where one wrongfully severs valuable property from the land of another the latter can recover the value of the appropriated property in its severed condition. Citizens Nat. Bank v. Joseph Kesl & Sons Co., 378 Ill 428, 38 NE2d 734; Sikes v. Moline Consumers Co., 293 Ill 112, 127 NE 342. Therefore we find no error in the award of $1,890 for the removed topsoil. The award of $500 in damages for the severance of the plaintiff’s fruit and ornamental trees is also supported by the instant facts and applicable authority.

For the reasons expressed above, the judgment is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gordon Johnson, Defendant-Appellant.
    Gen. No. 51,678.
    First District, Third Division.
    September 26, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis J. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, Gordon Johnson, was indicted for murder. He was tried by a jury, found guilty of voluntary manslaughter and was sentenced to a term of not less than five nor more than ten years in the penitentiary.

Johnson and the deceased, George Young, were friends. On the evening of April 3, 1965, Johnson, Young and James Lee, Jr., were at the apartment of Lee’s sister. Also present was Catherine Johnson (no relation to the defendant). Johnson and Young, both of whom had been drinking heavily, began to quarrel. The quarrel grew loud and Young punched Johnson. Johnson grabbed a butcher knife from a table and Young backed away. Lee took Johnson into another room and urged him to make up with his friend. Johnson agreed to do so and a few minutes later he asked Young to step outside in the hallway to talk.

A few minutes after this, Lee and Catherine Johnson heard a “thumping” or “banging” noise. They looked out the window and saw Johnson kicking Young who was lying near the bottom of the concrete front steps. They ran outside. Young was on the walk and Johnson was kicking him in the head. Young’s face was bleeding and he appeared to be unconscious. Lee tried to stop Johnson but each time he did Johnson threw him off, saying that he was going to kill Young. Johnson dragged Young a short distance and kicked him two more times in the head. Johnson then returned to the apartment and exchanged his trousers, which had been torn in the fight, for a pair furnished by Lee. The police were called. Young was taken to a hospital where he was pronounced dead.

At his trial, Johnson explained that he apologized to Young in the hallway but that Young responded by striking him twice, pushing him against a wall and knocking him down. They struggled and Johnson pushed Young out the door onto the front porch. There he struck Young in the stomach, making him crouch over, then struck him again and knocked him off the porch. Young fell down the steps and hit his head on the sidewalk below. Johnson testified that the struggle continued when he came down the stairs and Young grabbed him about the legs and tried to pull him down. He said he may have kicked Young but claimed that any kick about the head was unintentional as he was merely kicking his legs to get free. After a while Young got up and they continued to fight. Johnson broke away and saw Young’s head strike the rail of a fence. Johnson then placed him against the fence, figuring, he said, that Young would eventually get up and go home. At this time James Lee grabbed Johnson and urged him to return to the apartment, which he did.

A physician, who testified for the defendant, said that in his opinion Young’s death and the injuries he received could have resulted from his falling down the stone steps and striking his head against a hard surface. He also said that the death and injuries could not have been produced by kicking. On the other hand, the coroner’s pathologist, testifying for the State, said the death was caused by violence and could not have come from just a fall. He added that only a fall down three or four hundred steps could have produced Young’s injuries. These he described as multiple head lacerations that extended to the bone; part of the scalp had been torn away from both the left and right sides of his head; his face had many bruises and contusions; his eyes were swollen and blackened and an examination of his scalp, skull and brain disclosed extensive hemorrhages.

The only issue to be determined in this appeal is the propriety of the following instruction which was refused by the court:

“The court instructs the jury that if you believe from the evidence in this case that the defendant was engaged in a lawful act without any intention of killing anyone but unfortunately, killed the deceased, at the time and place charged in the indictment, the killing would be excusable homicide and your verdict should be not guilty.”

Johnson argues that he was entitled to this instruction because it was the only one tendered which embodied his theory of the case — death by misadventure. He quotes this definition of misadventure: “Homicide ‘by misadventure’ occurs where a man, doing a lawful act, without any intention of hurt, unfortunately kills another.” Black, Law Dictionary (4th ed 1951). He also quotes the following passage from People v. Lefler, 38 Ill2d 216, 230 NE2d 827 (1967) :

“[T]he court refused an instruction to the effect that if the deceased met her death by misadventure without any conscious disregard by the defendant for her safety, the jury should find the defendant not guilty. . . . The defendant was entitled to an instruction on his theory of the case and the court should have given this instruction.”

In equating the above quotations with the refused instruction the defendant overlooks the words “without any intention of hurt” in the first quotation and the words “without conscious disregard . . . for her safety” in the second. These words differ greatly in degree from those in the instruction: “without any intention of killing anyone.” The instruction stated that if Johnson’s act was lawful and if he had no intention of killing Young he should be acquitted. This is not the law in Illinois. Young’s death may have been unintended, under Johnson’s version of what took place, but the blows which caused his death were not struck “without any intention of hurt” or “without conscious disregard” for his safety. And even if they were, the fact that a lawful act unintentionally results in death does not excuse one of culpability if the act which caused the death was performed recklessly and was likely to cause death or great bodily harm.

Death resulting from a blow with a fist may be involuntary manslaughter. People v. Hunter, 365 Ill 618, 7 NE2d 444 (1937) ; People v. Lurie, 276 Ill 630, 115 NE 130 (1917); People v. Mighell, 254 Ill 53, 98 NE 236 (1912); Koser v. People, 224 Ill 201, 79 NE 615 (1906). In People v. Crenshaw, 298 Ill 412, 131 NE 576 (1921) the indictment charged that the defendant committed murder by striking the deceased with his fist. The reviewing court said :

“The striking of a blow with a fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences. . . . The act of the defendant in striking the deceased was unlawful, but it is clear from the evidence that it was not delivered with the intent of causing death. . . . The defendant is presumed to have intended the reasonable and probable consequences of his act, but death not being a reasonable or probable consequence of a blow with the bare fist, he is not presumed to have intended it to produce that result, and if he did not, the crime would be manslaughter and not murder.”

If Young died as a result of striking his head on the steps or sidewalk, Johnson was responsible for the result unless he had lawful justification for striking the blows he did. Lawful justification would have been self-defense (Ill Rev Stats 1963, c 38, § 7-1) but he did not claim that he acted in self-defense. One who kills without lawful justification commits involuntary manslaughter if his acts, whether lawful or unlawful, are performed recklessly and are such as are likely to cause death or great bodily harm. Ill Rev Stats 1963, c 38, § 9-3. One acts recklessly when he consciously disregards a substantial risk that death or great bodily injury will follow his acts, and if his disregard for the risk constitutes a gross deviation from the standard of care which a reasonable person would exercise in a like situation. Ill Rev Stats 1963, c 38, § 4-6.

According to his own testimony, Johnson pushed Young onto the porch. He then struck him in the stomach causing him to double up; while he was in this position Johnson struck him a second time and with such force that he knocked him from the porch to the sidewalk. Young did not hit Johnson while they were on the porch. Johnson struck the last few blows; these blows were the proximate cause of Young’s striking his head. Hitting Young with the force that propelled him from the porch was a reckless act which was likely to cause him great bodily harm.

A defendant has the right to have the jury instructed on his theory of the case and on the law applicable to any state of facts which the jury might properly find to have been proved. People v. Laczny, 63 Ill App2d 324, 211 NE2d 438 (1965). This is so even if the facts upon which the defense is based are contrary to the defendant’s own testimony. People v. Izzo, 14 Ill2d 203, 151 NE2d 329, cert den, 362 US 403. In the present case, however, neither the defendant’s testimony nor any other testimony supports the tendered instruction. Even if the testimony of Johnson and the doctor who testified in his behalf is accepted, the homicide was not misadventure or accident — it was involuntary manslaughter. The court correctly refused the instruction.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ruth Young, Defendant-Appellant.
    Gen. No. 51,797.
    First District, Third Division.
    September 26, 1968.
    Rehearing denied October 24,1968.

      Steven L. Larson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald Eisen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

On June 15, 1966, at approximately 1:30 p. m., three police officers attempted to execute a search warrant for the person of “Aubrey Young” and the premises of “4401 W. West End St., 3rd Floor, Chicago, Illinois.” They went to a six-apartment building which contained a common entrance to 4401 and 4403 W. West End Street. The officers saw the name “Young” on a mailbox and proceeded to the third floor and sought admittance, thinking that they were at the right apartment. In fact, they were at the third-floor apartment of Willard Young, 4403 W. West End St., Chicago.

The officers were admitted by Willard Young’s four-year-old daughter. The defendant, Ruth Young, the wife of Willard Young, age 31 and eight months pregnant, was in the kitchen. The defendant had sent her child to open the door because she thought it was another daughter who was knocking.

One of the officers testified that upon entering the apartment he told the defendant that he had a search warrant for Aubrey Young. He stated that he showed her a copy of the warrant and read it to her, but that she started screaming, struck him in the chest with her closed fist and said, “You and nobody else will search my apartment.” He said that she then turned around and picked up a ketchup bottle and attempted to strike the officers but they subdued her and placed handcuffs on her. Other officers were called, including a policewoman, and the defendant and her apartment were searched. Two bottles containing capsules were taken. The substance in the capsules is not identified in the record nor does the record reveal whether the capsules were a prescriptive drug or proprietary medicine.

Mrs. Young testified that the officers came into the kitchen and she asked them how they got in and what they were doing there. One of them replied that her daughter let them in and that they had a search warrant. He asked if it was the Young residence. She said it was and he showed her the warrant. She told him, “Wilbur Young lives here. You have the wrong name.” He said all that mattered was that the name was Young. She protested that Aubrey Young did not live there and never had and that they could not search her home. She chided him for tricking her little daughter and said he should be ashamed of himself. The officers seized her and handcuffed her hands behind her back. She told them that she did not mind them arresting her and putting handcuffs on her, but she did not want them to search her home. When the policewoman came and started to search her, she protested again saying, “You are not going to search me; you don’t have a right to search me.” One of the officers then struck her in the face and forced her to submit. She admitted that she had screamed, pushed an officer in the back and picked up a bottle.

Mrs. Young was charged with resisting a police officer and with battery. She was tried and convicted in a non-jury trial and placed on six months’ probation. She contends that in her effort to prevent an unlawful search she did not commit either offense, but that if pushing the officer was a battery, it was legally justified.

Section 31-1 of the Criminal Code defines the offense of resisting a peace officer as follows:

“A person who knowingly resists or obstructs the performance by one known to the person to be a peace officer of any authorized act within his official capacity shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed one year, or both.” Ill Rev Stats 1965, c 38, § 31-1.

There is no question that the defendant resisted the police officers. The issue is whether she resisted an “authorized” act.

The Committee Comments to section 31-1 (SHA, c 38, § 31-1) note that the provision "covers only resistance or obstruction to ‘authorized’ acts of the officer.” What constitutes an authorized act is not indicated either in the Code or the Comments, nor have the words been defined by our Illinois courts. However, some decisions, under prior statutes and ordinances prohibiting resistance to an officer, have permitted forceful resistance to the illegal acts of an officer. Wentworth v. People, 4 Scam (5 Ill) 550 (1843) ; Ryan v. City of Chicago, 124 Ill App 188 (1906). See also Bowers v. People, 17 Ill 373 (1856) and McQuoid v. People, 3 Gilm (8 Ill) 76 (1846). Other cases have disapproved of forceful resistance to illegal acts. People v. Rauschenberg, 29 Ill App2d 293, 173 NE2d 6 (1961), affd 23 Ill2d 511, 179 NE2d 13 (1962); Smith v. People, 99 Ill 445 (1881).

In construing the language of a statute, we must presume the legislature intended to give the words their ordinary and usual meaning in the absence of a statutory definition or other indication of a contrary intent. People v. LaPorte, 28 Ill App2d 139, 171 NE2d 95 (1963). The common definition of the word “authorized” is “endowed with authority.” “Authorize” means “to endow with authority or effective legal power, warrant, or right.” Webster’s New International Dictionary (3rd ed 1967).

The State would place the execution of an illegal search warrant in the same category as the making of an illegal arrest. In the latter instance forceful resistance is prohibited by law:

“A person is not authorized to use force to resist an arrest which he knows is being made either by a peace officer or by a private person summoned and directed by a peace officer to make the arrest, even if he believes that the arrest is unlawful and the arrest in fact is unlawful.” Ill Rev Stats, 1965, c 38, § 7-7.

According to the Committee Comments to this section, “The public interest in discouraging violence and insisting upon the use of peaceable methods of obtaining release from unlawful arrest clearly outweighs the recognition of the feeling of the individual.” SHA, c 38, § 7-7. The State urges that the same rationale — that of preserving the peace — should apply to the service of a search warrant.

By its terms, section 7-7 applies only to an arrest. Section 31-1 of the Criminal Code, therefore, still determines the legality of the defendant’s resistance in this case. A Federal case, Landry v. Daley, 280 F Supp 938 (1968), upheld the constitutionality of section 31-1. In the course of its opinion, the court stated that this section does not proscribe resistance to an illegal search. We are of the same opinion. In enacting section 31-1 the legislature has balanced the maintenance of order with the freedom to resist an invasion of one’s privacy by prohibiting resistance only to the authorized acts of a police officer. The mere fact that the legislature has struck a different balance in the case of an arrest does not change this.

The State also argues that an “authorized” act is an act which the officer reasonably believes is authorized. The search warrant for Aubrey Young and 4401 W. West End St., clearly gave no express right to search the apartment of Willard Young, 4403 W. West End St., nor could it give an implied right because of the constitutional requirement that the person and place to be searched must be described with particularity. US Const, amend IV; Ill Const, art II, § 6. Therefore, whether the officer’s belief as to his authority was reasonable or unreasonable, he was not authorized to search the defendant’s apartment and the act of the defendant in resisting him did not violate the statute.

The defendant next contends that she did not commit a battery when she struck or pushed the officer. The statute states:

“(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” ... Ill Rev Stats 1965, c 38, § 12-3.

She maintains that she is innocent of this charge because she did not cause bodily harm to the officer or make contact of a provoking or insulting nature. There was no evidence of bodily harm but a blow to the chest or a shove in the back must be considered provoking to an officer who is prepared to conduct what he thinks is an authorized search. However, even though the defendant made contact with the officer in this manner, she is not guilty of a battery. Her use of force is permitted under section 7-2 of the Criminal Code as a defense of her dwelling.

Section 7-2 reads in part as follows:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon a dwelling.”

When the policemen barged into the defendant’s home the situation became tense. Three officers, ready for trouble, claimed the right to search her apartment. An officer read the warrant and the error of the policemen in coming to the wrong place immediately was clear to her. She attempted to point out the mistake, but one of the officers asked if her name was Young and her affirmative answer confirmed the officers’ belief that they were in the right apartment and they proceeded with the search. The defendant again objected and as she did so she struck or pushed one of them.

The officers were convinced that they had the right apartment; they were determined to accomplish their objective; the defendant was frightened and angry at the illegal intrusion; she was frustrated at her inability to communicate that her husband’s name was Willard and that Aubrey Young did not live there. The officers refused to listen to her or believe her. Under these circumstances, we conclude that the defendant acted from a reasonable belief that her conduct was necessary to terminate the officer’s unlawful entry into her dwelling and that her use of limited force was justified.

The convictions for resisting arrest and battery are reversed.

Reversed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: EBERSPACHER, P. J.

text:
    Jessie Greer, Skelly Oil Co., Suzanne Laforce Baber, et al., Plaintiffs-Appellees, v. Florian Ludwick, et al., Defendants-Appellants, and Virgil I. Helgen, Petromin Corp., et al., Defendants.
    Gen. No. 67-60.
    Fifth District.
    September 27, 1968.

      Zimmerly & Johnson, and Walter R. Stewart, of Champaign, for appellants.
    Joseph R. Hale, of Shawneetown, and Loy & Cochran, of Fairfield, for appellees.
   EBERSPACHER, P. J.

Plaintiffs filed their unverified complaint in February 1965, alleging that in 1961 certain of them had executed and delivered certain leases for oil and gas to defendant Petromin Corporation, and that by assignment some of the defendants, including the five (5) appellants herein, owned or claimed to be owners of record of the working interests and overriding royalty interests in the leases. The complaint further alleged that the primary terms of the leases had expired, that neither oil nor gas was being produced from the leased premises, and that no operations had been carried on since January 1964, and that the lessees and their successors, including appellants, had abandoned the leases and neglected to cause the same to be released of record. The complaint was based on the provisions of the statutes although no reference is made to the statute in either the complaint or decree. Plaintiffs prayed for an order declaring the leases forfeited and ordered to be released of record and that certain of defendants including appellants be assessed all costs including reasonable attorney fees.

On the date of filing the complaint, an affidavit of non-residence of numerous defendants, including appellants, each of whom are nonresidents, was filed; publication was made and a certificate of mailing notice by publication was filed. Each of appellants received a copy of the published notice and each wrote to the clerk of the court. In substance each of the letters admitted ownership of fractional working interests in the leases and each letter expressed the writer’s concern and denial of any intention to abandon such interests; certain of the letters refer to an “operator’s agreement” and none of the letters mention defendants Helgen or Petromin Corporation by name. Each of the letters was filed by the clerk, before the default date, stated in the notice as being March 29, 1965. After the default date, on March 30,1965, the clerk wrote each of appellants acknowledging receipt of his or her letter and informed each:

“. . . that this is not sufficient as an answer in the above case. If you want to be represented in this matter you must get an attorney of record and file an answer to the same. The filing fee is $5.00 which must be paid when the answer is filed.”

Defendants Helgen and Petromin Corporation were personally served with summons. On March 24, 1965, an answer was filed on their behalf which asserted among other things:

“said Petromin Corporation being the operator of the leases described in said complaint, and under the operating agreement between defendant, Petromin Corporation and the other defendants named herein, Petromin Corporation being duly authorized to answer this suit on behalf of all of the defendants named herein who own working interests in the leases described in said complaint, this answer being on behalf of all of said working interests owners through Petromin Corporation.”

None of the appellants, whom the complaint alleged to be owners of the working interests and overriding royalty interests in the leases, are designated by name in the answer. The answer is signed “Virgil I. Helgen, Petromin Corporation, as operator of said leases and Representative of all of the owners of working interests in said leases” by “Their Attorney.”

Pursuant to notice given the attorney of record of Helgen and Petromin Corporation, the cause was set for trial and heard on July 6. None of these defendants-appellants received any notice of the setting and none of them were present in person or by attorney at the trial; neither was Helgen nor any other representative of Petromin Corporation. The record is barren of any rule on defendants-appellants to answer or otherwise plead to the complaint, nor is there any showing the defendants-appellants were defaulted, although certain other defendants were defaulted for want of answer. On the same day the complaint was amended by interlineation; the amendment does not appear on the face of the complaint in the record, and the record is barren of any showing that defendants-appellants had notice of any proposal to amend or amendment. On the same day the court entered its decree on the amended complaint, in which are recited words to the effect that these defendants-appellants had answered, granting plaintiffs the relief prayed, declaring a pumping unit, casing, rods and tubing, and tanks used in connection with a formerly producing oil well on the premises, abandoned by the defendants, to be the sole property of one of plaintiffs, and decreeing judgment against the defendants jointly and severally, in the amount of $1,043 and costs.

A post-trial motion was filed by defendants Helgen, individually, and Petromin Corporation, and “defendants herein who are working interest owners” with certain defendants other than defendants-appellants, excepted, which recited “said Petromin Corporation being duly authorized to file this motion on behalf of the defendant working interest owners herein except those named.” Again, the record is barren of any proof of service with respect to notice of the hearing on the post-trial motion, to anyone other than plaintiffs. Plaintiffs’ attorney filed his personal counteraffidavit to the post-trial motion, serving a copy by mail on the law firm who had filed the post-trial motion. On September 21 the post-trial motion was heard, and a docket entry “Decree amended as to last paragraph. Otherwise, Post-trial motion denied” was made on that day. The last page of the decree shows a modification by interlineation excepting defendant Helgen personally, as a judgment debtor with respect to money judgment of $1,043 and costs.

Within two years of the entry of the decree, appellants filed their petition to vacate the decree verified by their attorney on information and belief and supported by the affirmative affidavit of Helgen. Appellants alleged therein that each of them had entered their appearance in their own proper person by their letters which had been filed by the clerk of the court and admitted receiving the letter of the clerk; that the answer of Helgen and Petromin purported to represent that by virtue of an operating agreement between the corporation and certain defendants, Petromin Corporation was authorized to answer the complaint on their behalf and that no copy of such operating agreement was annexed to the answer; that the law does not permit a corporation to engage in the practice of law, nor to act in any representative capacity as an attorney at law; that appellants had neither authorized nor ratified Petromin’s attorney to enter their appearance or plead on their behalf; that appellants received no notice of the trial and were not represented by any attorney authorized to represent them; and that their property rights were disposed of without due process of law. In addition, their petition alleged that the decree, subsequent to its entry had been amended by interlineation which purported to be a correction or modification nunc pro tunc, and that the clerk had certified such decree which showed no such correction by modification or interlineation as was reflected on the decree on file with the court; that the docket entries did not support the correction or interlineation now reflected on the decree; and that the decree was not properly amended nunc pro tunc, and the decree was a nullity by reason of the interlineation.

Plaintiff then filed an unverified motion to strike the petition to vacate the decree and the affirmative affidavit in support thereof, in which it was alleged that the petition was insufficient, that petitioners were guilty of laches, alleged no valid or meritorious defense to the original complaint, and the inadequacy of the verification and affidavit to support the petition. Hearing was had on the motion to strike the petition to vacate; the trial judge allowed the motion to strike and entered his order dismissing the petition to vacate the decree, from which said order, appellants appeal.

Appellants’ theories on appeal are: (1) That because they had been served by publication and had filed their respective appearances pro se, and no rule to plead had been entered against them nor was any default taken against them, they were entitled to answer the complaint and to notice and an opportunity to be heard on the merits. Since they received no notice of the hearing on the complaint or on the post-trial motion, and since they had no opportunity to be heard on the merits of either, the decree and order entered by the trial court effectively deprived them of their property and property interests without procedural due process; and (2) That because the decree of July 6th, 1965, was amended on its face by interlineation at some time after it was entered, and because the docket minutes in support thereof do not describe with certainty the nature of the amendment, and because they had no notice of the hearing on the post-trial motion, and because the attempted modification prejudices them, the decree is, in these premises, a nullity.

Appellees in answer contend that the trial court properly dismissed the petition to vacate because although filed within two years it fails to comply with the other requirements of section 72 of the Civil Practice Act; urging the insufficiency of the verification on information and belief, and certain inconsistencies between the affirmative affidavit of Helgen and the record, and the failure to allege a meritorious defense to plaintiffs’ complaint, and that appellants are guilty of laches.

Appellants contend in their briefs that the issue here on appeal (and the only appeal is that taken by defendants-appellants) is that the decree of July 6, 1955, is void for want of procedural due process. Appellees have ignored the want of procedural due process argument. Proceeding on the void judgment theory, appellants point to section 72 of the Civil Practice Act (c 110, § 72, Ill Rev Stats) and particularly (7) thereof which states:

“Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief,”

as well as to cases holding that an attack on a void judgment need not necessarily be brought under section 72, and can be brought at any time, even though theirs was brought within the 2 years prescribed by section 72.

No one contends that the court lacked jurisdiction of appellants or of the subject matter, or that it had no power to grant the relief prayed in the complaint; the court undertook to modify the decree within the 30-day period in which it had jurisdiction. Under such circumstances we reject the theory that the decree was void in the first instance and was rendered void by its modification without notice to the prejudice of appellants, and without adequate docket minutes to support such modification.

We are therefore of the opinion that appellants’ relief, can only be granted under a section 72 motion, as that section has been interpreted by our Supreme Court in Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, and Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350. Both those cases involved the question of granting a section 72 motion to vacate default judgments; in Ellman the entry of which resulted from an error of fact and excusable mistake; in Elfman the entry of which resulted from admitted neglect and excusable mistake. Both cases point out in the language of Justice Solfisburg in Elfman, that a section 72 petition “invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.” There, too, it was pointed out that while litigants have a duty to follow the record, “it is essential to the proper administration of justice that proper notice shall be given of steps proposed to be taken.” Those cases, the statute itself, and the development and scope of the procedure are remarkably analyzed and discussed by Judge Charles H. Davis, of the 2nd District Appellate Court, in his article entitled “The Scope of Section 72 of the Civil Practice Act” appearing in 55 Ill BJ 820 (June 1967). At page 830 he points out:

“There is no apparent reason why the philosophy of Ellman should necessarily be limited to default judgments or the other circumstances herein enumerated. The trial court has the power in a proper case — where it is necessary to prevent injustice — to set aside its judgment pursuant to the provisions of Section 72.
“It is well that the limits under which relief may be granted pursuant to Section 72 are not precisely defined and have not yet been plumbed. Such boundaries should be flexible to afford growth and development under the philosophy that the desire to achieve substantial justice, viewed in the perspective of the importance of the finality and stability of judgments, will indicate when relief from judgments may be granted.”

Equivalent motions have been used as a procedural device to prevent injustice by making possible the vacation of a judgment entered without notice to a party where the circumstances were such as to require specific notice or where mistake has the effect of preventing a litigant from making his defense. Ellman v. De Ruiter, supra.

Appellants contend that they appeared in their own proper person by their letters which were filed by the clerk before the default date and that they were not on any occasion represented by attorney and that any suggestion that Petromin Corporation was entitled by contract to represent them is prohibited by positive law. The record is barren of any showing of Petromin’s authority to either retain counsel for or represent these appellants, other than the recital in Petromin’s pleadings.

We note that the attorney who drafted the answer of Petromin was careful to not represent to the court that he represented these appellants, only representing that he represented Helgen and Petromin and that the latter was authorized to answer on behalf of other defendants. We have no doubt that appellants’ letters, although they were part of the files in the cases and were inconsistent with the representations of Petromin’s answer, and the allegations of the unverified complaint, were not called to the attention of the trial judge, at either the trial or the hearing on the post-trial motion, and thus lead the trial judge to fail to enter a rule on appellants to answer and to approve a decree which did not default them, but which provided that they had answered, and to conclude that they were thus subject to in personam jurisdiction. We also note that the decree did not grant the relief prayed in the complaint “order same to be released of record” nor that granted by the statute “to compel said party to release the same of record” by “directing the release.”

The assertion of authority suggested by Petromin is contrary to the public policy of this State:

“It shall be unlawful for a corporation to . . . furnish attorneys or counsel or to render legal services of any kind in actions ... of any nature or in any other way or manner as to convey the impression that it is entitled to . . . furnish attorneys or counsel .. . that either alone or together with, or by or through, any person; whether a duly and regularly admitted attorney at law or not, it has, owns, conducts or maintains ... an office . . . for furnishing legal advice, services or counsel.” Illinois Rev Stats, c 32, § 411.

The attorney-client relationship does not admit to intermediaries between the attorney and the client. It is obvious from the record that Petromin Corporation was at all times represented by counsel. The corporation, itself, cannot appear for another. Indeed, it may not even appear at all, except by attorney. Remole Soil Service, Inc. v. Benson, 68 Ill App2d 234, 215 NE2d 678. To hold that these defendants-appellants were represented by counsel of record for Petromin Corporation is to say that such counsel, with respect to these defendants, occupied the role of subagent; or, alternatively, it is to say that these defendants were represented by their agents Petromin Corporation and its attorneys, which is unlawful as it classifies a corporation as an attorney-associate. The former result permits a corporation to supervene an attorney-client relationship. Either result is condemned.

Absent any evidence of ratification of the acts of counsel of record for Petromin Corporation and other unnamed defendants, these defendants-appellants cannot be bound by the acts of such counsel. Moreover, the affirmative affidavit of Helgen deposes unequivocally that none of the defendants-appellants was represented by any of the attorneys of record representing affiant or Petromin Corporation, and that they had no knowledge that said attorneys represented Helgen and Petromin Corporation. The record clearly supports these averments. Agency cannot be proved by the words of the purported agent, but there must be corroborative evidence of the agent’s authority.

We are of the opinion that the letters of appellants to the Clerk, filed before, on and after the date of the answer of Petromin was filed, and all filed before the default date, constituted appearances pro se on the part of each appellant, as was stated in the motion to vacate. “Any action taken by a litigant which recognizes the case as being in court will amount to a general appearance unless such action was solely to object to the jurisdiction.” Widicus v. Southwestern Elec. Coop., 26 Ill App2d 102, at 110, 167 NE2d 799, at 804. The record shows that appellants did not treat the command of the publication notice with indifference. Proceeding without a rule upon them to answer was not necessary to secure justice for the plaintiff. See Sentry Royalty Co. v. Craft, 79 Ill App2d 410, 226 NE2d 282. Filing appellants’ respective letters by the clerk, together with his letters to each of appellants expressly demonstrated his intention to waive collection of the required appearance fee until the time answers were filed by appellants. See Oil Well Supply Co. v. Wickwire (DCED Ill) 52 F Supp 921. Such irregularity can vest no right or advantage in plaintiffs. Fundamental fairness requires that notice of trial be sent to nonresident parties appearing in their own proper person.

The record is void of any notice of hearing either on the trial of July 6, 1965, or on the hearing on the post-trial motion, or on any amendment to the complaint. Appellants were prejudiced by the modification of the decree because Helgen was individually excepted as a judgment debtor and such result inhibits appellants’ right of subrogation against Helgen in the event any of them is required to satisfy the money judgment entered against them, jointly or severally. Even a defaulted defendant, when the action is for an unliquidated claim or amount, has the right to be heard on the matter of damages. Elfman v. Evanston Bus Co., supra.

Plaintiffs contend in support of their motion to dismiss the petition to vacate that appellants were guilty of laches and that no meritorious defense was alleged in their motion. Appellants were within the 2-year limitation provided by (3) of Section 72; by its enactment the General Assembly has indicated that laches is not applicable to parties who file their motion thereunder within the statutory period. Our Courts have so held. Lingerman v. Elgin, J. & E. Ry. Co., 24 Ill App2d 1, 163 NE2d 854; and cases and authority cited therein. The petition to vacate does not conclusively state that appellants have a meritorious defense; it does, however, specifically call the Court’s attention to the letters of appellants which specifically denied abandonment and intention to abandon, and by their content negated forfeiture, the elements on which the complaint was based. We have previously noted that the relief granted plaintiffs was neither the relief provided by statute or that prayed. From the record before us it would appear that the existence of a meritorious defense or defenses was sufficiently called to the court’s attention. As was said in Elfman; “But what is more important are those allegations which suggest that an unfair advantage, to say the least, was worked upon the defendant and the court.”

While we would agree that the verification of the motion to vacate, on information and belief by counsel was inadequate to sustain the motion, the matters set forth in the Helgen affidavit, even though in conflict with the unverified answer and preface to the verified post-trial motion, were not to be ignored in view of the fact that the record supported the averments. The court below erred in allowing the motion to strike the petition to vacate the decree and in dismissing that petition. The operative facts as reflected by the affidavit and record show facts and circumstances presenting a situation which addressed itself to the equitable powers of the trial court and in justice and fairness appellants should be given an opportunity to answer and defend.

Plaintiffs urge that in no event are appellants entitled to the relief sought, that is vacation of the decree of July 6, 1965, and urge that if the appeal is well taken this Court should only reverse the order dismissing the petition to vacate, thus giving appellees an opportunity to answer the petition to vacate. Our review of the propriety of the dismissal of the petition to vacate has necessarily involved a review of the decree itself as well as the procedural steps involved in its entry and modification. From such review we have determined that appellants were entitled to notice and to plead and be heard. We have found the petition to vacate adequate in view of the operative facts revealed by the record. The interests of neither expediency nor justice could be served by further litigation involving the decree. We, therefore, reverse the order dismissing the petition to vacate and remand the cause with directions to vacate the decree of July 6, 1965, as to appellants, and for such further proceedings as are consistent herewith.

Reversed and remanded with directions.

GOLDENHERSH and MORAN, JJ., concur.

       An Act for the purpose of compelling oil or gas leases, when forfeited, to be released of record and providing a penalty therefore. Ill Rev Stats, c 80, § 40.

       Defendant Helgen was the president of Petromin Corporation.

       In a post-trial motion Helgen swore that the attorney who filed the Answer of Helgen and Petromin was retained only to file pleadings and not to try the cause.

       Although not shown in the record, appellants have represented to this Court, by both their brief and oral argument, that appellant Betts was present at the hearing and offered to testify as to the matters set forth in the petition to vacate, but the trial court declined to hear him; this is not denied by appellees.

       In re Petition of Stern, 2 Ill App2d 311, 313, 120 NE2d 62; Barnard v. Michael, 392 Ill 130,135, 63 ,NE2d 858.

       c 80, § 40, Ill Rev Stats.


author: MR. PRESIDING JUSTICE SMITH

text:
    Standard Bank & Trust Company, a Banking Corporation, Plaintiff-Appellee, v. Marion F. Cooper, Defendant-Appellant.
    Gen. No. 51,479.
    First District.
    September 30, 1968.

      George Kaye, of Chicago, for appellant.
    Roland Towle, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

Plaintiff confessed judgment against the defendant. This appeal is from post-judgment motions and orders attacking that judgment.

Defendant first contends that the judgment is void and the trial court erred in not so finding for the reason that the complaint and warrant of attorney was verified by an attorney-at-law who was not an agent of the corporation-plaintiff “having knowledge of the facts” as required by CPA 35, Ill Rev Stats 1965, c 110, § 35, and for the further reason that the complaint as filed did not set forth in the body of the pleadings the name of the defendant as a party against whom relief was sought as required by CPA 21(4), Ill Rev Stats c 110, § 21 (4). During arguments on the motion, the plaintiff moved to amend his complaint on its face by adding the name of the defendant in the body thereof and the court granted this request. Defendant contends that the complaint is thus fatally defective and that the amendment violated the provisions of CPA 46(3), “which in effect limits the right to amend the pleadings after judgment to instances where the amendment is made to conform the pleadings to the proof.” Klein v. Ickovitz, 72 Ill App2d 59, 219 NE2d 73, 75. In Klein, the court held it was error to permit the amendment because its effect was to add a new party to the suit after judgment. In the instant case, a copy of the installment note was attached to the complaint. Defendant has never denied his signature on the note, but in subsequent pleadings denies the note was executed by him as an individual but, as an employee, representative and nominee of his employer. Not only does the note bear his purported signature, but the confession also names him as a defendant. Both are part of the complaint and pleadings. In our judgment, this is sufficient compliance with the statute requiring that the party against whom relief is sought be set forth in the body of plaintiff’s pleadings. Defendant’s position is without merit.

The affidavit to the complaint is signed by plaintiff’s attorney of record and states “that the allegations in this complaint are true.” The complaint alleges the ownership of the note, its execution and delivery for value received, that the defendant resides in the county and the amount due on the note. The deposition of the attorney indicates that his verification is based on information obtained from officers of the bank, an examination of the note, an examination of the security agreement executed by the defendant, an examination of a verified alleged novation agreement which was subscribed and sworn to by the defendant before a notary public, an examination of the bank records, a comparison of signatures, and communications with the defendant’s attorney. The execution of none of these documents by the defendant nor that they bear his genuine signature is denied by him. Under these circumstances, it is our judgment that the complaint is properly verified and the motion to vacate is properly denied.

Defendant further contends that the trial court was in error in refusing to open up the judgment and granting leave to plead under the provisions of Supreme Court Rule 276 (Ill Rev Stats c 110A, §276, 1965). The motion was supported by affidavits and verified answer and counterclaims. Plaintiff filed counter-affidavits. In substance, the answer charges that as to five of the trailers covered by the agreement securing the note in question, they were sold by the defendant to a third party and delivered and the titles to such equipment were signed by the defendant and delivered to the bank. Defendant’s insurance upon them was canceled and they were reinsured by the third party with the bank as named beneficiary under the policy, that the defendant made such deliveries and signed over such titles on the promise by the bank that they would accept the third party in lieu of the defendant and such action on his part would discharge him from further responsibility for liability and that he fully performed his part of such oral agreement. The answer further alleges that this amounts to a novation or a satisfaction in discharge of defendant’s obligation to the bank. The answer further charges that even if the defendant may only be said to be a guarantor, he is relieved of liability on his guarantee for the reason that (1) he was never notified of any default by the third party, (2) plaintiff-bank could have protected itself by charging deposits of the third party as a credit on the note and (3) that the plaintiff failed to exercise diligence in collecting from the third party and permitted it to remove the trailers from the state and to become insolvent.

In Larsh v. Green Gold Farms, Inc., 68 Ill App2d 113, 117, 214 NE2d 924, 926, it is stated:

“As stated in Sucher v. Nabenkoegl, 13 Ill App2d 248,141 NE2d 648, the requirements of the Supreme Court Rules were intended to clarify established practice with regard to opening judgments by confession and were not designed to permit the trial of the case by affidavit. See also Walrus Mfg. Co. v. Wilcox, 303 Ill App 286, 25 NE2d 132. In determining whether or not the motion to open the judgment presents a defense which entitles the defendant to a trial upon the merits, the trial court should not inquire into controverted issues of fact to determine whether the defense is proven. Barrick v. Barnes, 46 Ill App2d 172,196 NE2d 526; Freudenthal v. Lipman, 320 Ill App 681, 51 NE2d 794. In Walrus Mfg. Co. v. Wilcox, 303 Ill App 286, 25 NE2d 132, it is said that the reason for the rule stated is that otherwise a party may be deprived of his right to trial by jury, or that, in any event, there would be no opportunity to see, hear or cross-examine the witnesses if the merits of the defense were to be considered at the hearing upon the motion.”

In our judgment, these rules apply to the case at bar, that there are issues of fact as to whether or not there was a novation, a satisfaction of the judgment or an oral agreement to discharge the defendant upon signing over the titles as he did. Accordingly, the trial court erred in denying the motion to open up the judgment and for leave to answer and defend on the merits.

The defendant also contends that the trial court erred in denying him the right to file counterclaims involving other parties to the transaction. The plaintiff contends that the denial was a final order and then appealable by notice within 30 days and since no notice of appeal was given within such time, it is too late to appeal now. Plaintiff’s position is not well taken. The counterclaims involve multiple parties. Each of the counterclaims involve the plaintiff. The first four counterclaims involve some of the trailers underlying the instrument sued on and one involves interference with the counterplaintiff in his relationship to his employer causing his discharge and loss of salary and pension rights. Rule 276 of the Supreme Court permits counterclaims. In Fulton St. Wholesale Market Co. v. Guggenheim, 50 Ill App2d 217, 200 NE2d 388, the court upheld the joinder of the third-party defendant where judgment had been confessed on a lease. The defendant made no claim against the plaintiff, but merely asserted a claim against a codefendant who was not an original party. This procedure was approved and the action of the trial court was affirmed. It would logically follow that if a party may be added by a defendant even though the claim to be litigated against him is not also asserted against the plaintiff, then a like procedure would be approved if the party or parties to be added are joined with the plaintiff as counterdefendants. In so doing, then we have multiple parties and multiple claims involved in the suit and under the provisions of CPA 50 (2), the order denying the defendant permission to file the counterclaims even if final was not appealable as a piecemeal appeal unless there was an express finding by the trial court that “there is no just reason for delaying enforcement or appeal.” There was no such finding in the instant case and it is therefore not barred and is now reviewable as a part of the principal case. In Peterson v. Gwin, 17 Ill2d 261, 161 NE2d 123, the Supreme Court dismissed as premature an appeal from a denial to file a counterclaim before the remainder of the case had been disposed of on the merits. We think this rule applies here and that it is now reviewable, and that the trial court erred in denying leave to file the counterclaims.

Accordingly, the judgment in this case must be reversed and remanded to the trial court with directions to open up the judgment and permit the defendant to answer and to file counterclaims. We do not determine the sufficiency of the counterclaims tendered with the defendant’s motion.

Affirmed in part; reversed in part with directions.

TRAPP and CRAVEN, JJ., concur.


author: MR. PRESIDING JUSTICE BURMAN

text:
    Anthony J. Broncata and Janice A. Broncata, Plaintiffs-Appellees, v. Timbercrest Estates, Inc., a Corporation Defendant-Appellant.
    Gen. No. 52,628.
    First District, First Division.
    September 30, 1968.

      Shaffer, Seelig, Mandel & Shapiro, of Chicago (Robert S. Atkins, of counsel), for appellant.
    Equi, Farwell & Murray, of Oak Park (William F. Rickelman, of counsel), for appellees.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an action brought by Anthony Broncata and Janice A. Broncata, his wife, to recover damages from Timbercrest Estates, Inc., for breach of a construction contract. The plaintiffs allege that the defendant failed to perform in connection with the construction of plaintiffs’ home. The case was submitted to the Court without a jury, and after a trial, judgment was entered for the plaintiffs and against the defendant in the amount of $1,145. Defendant appeals.

On August 4, 1965, the plaintiffs entered into a contract with the defendant for the purchase of a home to be built by the defendant, on a lot located at 105 Cedar Court, Schaumburg, Illinois. The price of the home was to be $24,015. The home purchased by plaintiffs was in a project of 140 homes constructed by defendant in Schaumburg. A home was constructed by the defendant on the property and plaintiffs moved in on December 13, 1965. The contract provided that the house was to be constructed “in a good, substantial and workmanlike manner . . . according to specifications attached and included as part of the purchase contract and to be similar to Model #18 located at 17 Treebark Court, Schaumburg, Illinois.”

In their complaint, plaintiffs alleged that the defendant breached its contract with plaintiffs, specifying seventeen items, and prayed for $5,000 in damages. The defendant denied in its answer any failure on its part to comply with the contract and further alleged that the plaintiffs having moved into their home and accepting it without complaint, waived any and all objections relative to patent defects.

After a trial, the court found that plaintiffs were entitled to recover in the amounts specified for the following defects which correspond to the letters designated in the complaint:

(a) A precast cement fireplace hearthstone was defective and has completely cracked through. $225.00
(d) The bedroom hardwood floors were improperly sanded, leaving unsightly marks and grooves. $70.00
(e) The dry wall taping was improperly performed leaving numerous unsightly marks and seams. $300.00
(i) Four feet of concrete foundation is exposed and unsightly and not covered by face brick. $400.00
(k) The crawl space was not vented. $24.00
(q) The concrete driveway from garage to street was not installed. $126.00
Totalling $1,145.00

Initially, the defendant contends that the evidence was clearly insufficient to support the judgment for the plaintiffs on items (a), (d), (e), and (i). The defendant argues that in building contracts a literal compliance with the provisions of the particular contract is not necessary to a recovery by the contractor. “It is sufficient that there is a substantial performance in good faith or that there is an honest and faithful performance of the contract in its material and substantial parts, with no willful departure from, or omission of, the essential points of the contract.” 12 Illinois Law & Practice, Contracts, § 402; Bloomington Hotel Co. v. Garthwait, 227 Ill 613, 81 NE 714; Surety Development Corp. v. Grevas, 42 Ill App2d 268, 192 NE2d 145. This argument is without merit as applied to the case at bar. Even where the contractor shows substantial performance, the homeowner must be allowed a credit as compensation for the deficiencies existing in what he got as compared to what strict performance would have given him. Watson Lumber Co. v. Guennewig, 79 Ill App2d 377, 226 NE2d 270. Thus, while substantial performance by the contractor will prevent the homeowner from avoiding his contract, the doctrine is irrelevant in a case where the homqowner has already paid the full purchase price and is suing for damages resulting from deficiencies in defendant contractor’s performance.

The evidence shows that the plaintiff, Mrs. Broncata, made numerous complaints to the defendant about defective workmanship during the one-year guarantee period. The defendant sent tradesmen to the house on numerous occasions in an effort to remedy the defects and satisfy the plaintiff. For example, the defendant had the hearthstone, item (a), in the fireplace replaced after receiving a complaint that it was cracked. Three weeks later Mrs. Broncata said it cracked again. There was conflicting testimony as to whether the cracks were caused by the alleged faulty construction of the fireplace, by excessive heat on the stone or by a heavy weight falling on the stone.

When Mrs. Broncata complained of gouges and scratches in the bedroom hardwood floors, the defendant sent a floor sander to her house. The floor sander got rid of the gouges, but the sanding left spots of slight discoloration, item (d).

There was conflicting testimony as to item (e), involving dry wall taping and nail pop marks. The defendant’s architect testified that the number of nail pops in the plaintiffs’ house was less than normal for a house of that age and that nail popping is an inherent problem when dry wall construction is used. He said “most people would live with it.” The architect also testified that a person walking above the ceiling or the presence of excessive moisture could have caused the dry wall tape to fall in the living room and the kitchen and that poor workmanship was not the only possible cause of the defect.

Item (i), four feet of exposed concrete foundation, was the subject of another conflict in testimony. The contract provided that the plaintiffs’ house would be similar to the “Spencer” model erected in the subdivision. The “Spencer” model had its lower windows at grade level. Due to the steep elevation of the plaintiffs’ lot, a change in the front elevation of the house was necessary, resulting in the exposed four feet of foundation. These changes were discussed with and accepted by the plaintiffs. Mrs. Broncata testified that the defendant’s supervisor said he would put brick under the front windows and that their home would look like the model. The builder put in an additional four feet of brick work below the windows of the family room, but refused to do anything insofar as the right side of the stairs was concerned and suggested that the Broncatas cover it up with shrubs.

The defendant insists that the acceptance of the house without complaint by the buyers constitutes a waiver of all patent defects such as the exposed four feet of foundation and scratched and unsightly bedroom floors. Beck Coal Co. v. Peterson Mfg. Co., 237 Ill 250, 86 NE 715; Van Buskirk v. Murden, 22 Ill 446; but see Ma-Girl v. Hastings, 120 Ill App 276. The same contention was made in Brownell Improvement Co. v. Critchfield, 96 Ill App 84, affd 197 Ill 61, 64 NE 332. The Court did not agree that the acceptance by the appellees in that case barred a subsequent claim for defects because “[t]here was no absolute and unconditional acceptance of the work by appellees.” 96 Ill App 84, 89. Thus, in order for an acceptance to constitute a waiver, the acceptance must be absolute and unconditional. In the instant case there was no waiver of the finishing work to be done on the premises because the acceptance by occupancy was made conditional by the fact that both parties had agreed that the exterior work would be finished later.

As to all the foregoing items we cannot say, as we must to reverse, that the judgment was clearly and palpably against the weight of the evidence. Ward v. Illiopolis Food Lockers, Inc., 9 Ill App2d 129, 132 NE2d 591. Where an appeal is taken on the ground that the judgment is against the manifest weight of the evidence, it is not enough to show that there is sufficient evidence to support a contrary judgment. To be successful, the evidence in behalf of the party prosecuting the appeal must be so strong and convincing as to completely overcome the evidence and presumptions, if any, existing in favor of the opposing party. People v. Wilmington Coal Co., 402 Ill 161, 83 NE2d 741. We have reviewed the record and conclude that the findings of the Court are within the range of the testimony and are not against the manifest weight of the evidence.

Objections to item (k) have been withdrawn. As to item (q), regarding the driveway, the defendant urges that they were prevented from completing the driveway by the plaintiffs’ conduct and thus, are excused from liability. The trial judge made a reasonable allowance for the driveway and in our opinion the matter was fairly concluded. We find no merit to the contention that it was necessary for the plaintiffs to file a reply to the affirmative defense. Under section 32 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 32), no reply is necessary where an affirmative defense only raises a question of law. We believe the issues were clearly established by the complaint and answer.

The judgment appealed from must therefore be affirmed.

Affirmed.

ADESKO and MURPHY, JJ., concur.