author: ALLOY, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Hicks, Defendant-Appellant.
    Gen. No. 69-117.
    Third District.
    June 15,1970.
    Rehearing denied July 22,1970.

      Ronald F. Coplan, of Morrison, for appellant.
    L. E. Ellison, State’s Attorney, of Sterling, for appellee.
   ALLOY, J.

Defendant Robert Hicks, who pleaded guilty to a burglary charge on February 9, 1968, was placed on three-year probation with the first 60 days to be served in the Whiteside County Jail. The terms of his probation required that he not violate any penal statute or ordinance and that he report to his probation officer monthly. On February 7, 1969, a hearing was held involving a probation violation by defendant. It was shown at that hearing that defendant had violated his probation by a traffic violation and by failing to report to his probation officer as required by the terms of his probation. As a result of such hearing, defendant’s probation was continued, but the terms of his probation were modified to require that defendant reside with his parents, and that he be in his place of residence by 11:00 p. m. at night and not leave before 6:00 a. m. Thereafter, on September 2, 1969, defendant was found in contempt of court for leaving the State of Illinois without permission, in violation of one of the terms of his probation. He was placed in the Whiteside County Jail for 30 days as a result, but his probation was continued.

On October 21, 1969, a petition was filed by the White-side County probation officer alleging that defendant violated his probation by failing to reside with his parents and obey the curfew hours and by contributing to the delinquency of three minors, two girls (17 years of age), and one boy, age 16. A hearing was held on such petition on October 27, 1969, and following such hearing defendant’s probation was terminated and he was sentenced to the Illinois State Penitentiary for a term of not less than one year or not more than seven years on the burglary charge, to which he had pleaded guilty on February 9,1968.

At the hearing with respect to the probation violation, defendant was represented by an attorney and testimony was submitted by witnesses for both State and defendant. The evidence disclosed that police officers of White-side County went to a cottage east of Rock Falls at about 4:00 a. m. on October 15, 1969, on a report that several missing persons were at a party in certain cottages at such location. When the officers approached the cabin they saw no lights and observed no activity. One of the officers knocked on the door of the cottage and when there was no response, the officers shined their flashlights in the windows. Shortly, defendant came to the door and admitted the officers into the cabin. In the bedroom the officers found the two 17-year-old girls and another man. The 16-year-old boy was found standing in the bedroom closet. Defendant and the 16-year-old boy were dressed except for shoes and stockings. The girls were wearing T-shirts and jeans. A brassiere was found on the floor. Empty wine bottles and cough medicine bottles were in the room and on the floor, but no glasses were found and there was no evidence that there was any' liquor remaining in the bottles. The officers testified that they did not know if any of the occupants in the cottages had been drinking. The occupants had testified that they had not been drinking.

The cottage was rented by a Terry Herrin, who was not present when the officers arrived. Michael Whiels, the 16-year-old boy, had been gone from home about two weeks. Whiels testified that Terry Herrin had permitted him to stay in the cottage, where he had been for two days. Defendant arrived at the cottage about 2:00 p. m. on the afternoon of October 14, 1969. He stated that he was looking for a job, and since he had no ride back to Rock Falls, he was going to stay in the cabin. Whiels testified that he asked defendant to go home about 5:00 in the afternoon. One of the girls arrived at the cottage about 8:30 in the evening and another arrived the same evening about 10:30. There was no showing that defendant did anything to cause the girls to come to the cabin. At about 11:00 in the evening, defendant asked the girls to go home. They testified they had no way home and since it was cold, they decided to stay all night. The testimony of those who were in the cabin that night showed that the group played cards until about midnight and the girls then went to sleep in the living room and the boys in the bedroom. Around 3:00 in the morning the girls went to the bedroom to get more blankets as they were cold. Since there were no extra blankets, they got into bed with defendant and another man, ostensibly to keep warm.

At the close of the evidence, defendant’s attorney moved to dismiss the petition for revocation of probation, which the court denied. The court then stated that probation would be revoked. Attorney for defendant then orally moved that the cause be continued “to have a proper hearing on mitigation and aggravation.” The trial court answered, “No, you are proceeding now.” Attorney for defendant then answered, “Very well, Your Honor.” There was a short statement by the Assistant State’s Attorney handling the case in which he suggested that defendant be sentenced from two to five years. The trial judge than asked if there was anything further to offer in aggravation, to which the Assistant State’s Attorney replied, “No, Sir.” The Court then asked, “Have you anything to offer in mitigation?” The attorney for defendant said, “I don’t at this time, Your Honor, care to offer anything further.” The court then sentenced the defendant to be imprisoned in the penitentiary not less than one nor more than seven years.

On appeal in this Court, the questions before us involve (a) whether or not the State proved that defendant had violated the terms of his probation, (b) whether the trial judge abused his discretion in revoking the probation of defendant, (c) whether defendant was given the hearing in mitigation, (d) whether the trial judge abused his discretion in not allowing a continuance as requested by defendant’s attorney, and (e) whether there was any error in connection with the hearing in mitigation and, incidentally, whether defendant waived the right to present evidence in mitigation.

The courts of this State have indicated that the State has the burden of proof of violation of probation by a defendant. In a revocation proceeding defendant is required to be notified of the alleged violation of his probation and be given an opportunity to defend against, and refute the alleged violations. It is also the duty of the court to make a conscientious judicial determination according to accepted and well recognized procedural methods (People v. Dotson, 111 Ill App2d 306, 250 NE2d 174). In People v. Carroll, 76 Ill App2d 9, 221 NE2d 528, an issue was being considered as to whether the State had proved a violation of probation. In that case, defendant was out later than 11:00 p. m., in the company of a certain individual, and had beer in his car. All three of these acts were violations of his probation. The court found that the evidence sustained the trial judge’s finding that there was a violation of probation. The court stated that a violation of the terms and conditions of probation, when found to have been made by the trial court, should not be disturbed on appeal simply because there is conflicting evidence. Similarly, in the cause before us, it is clear that defendant violated the terms of his probation by not being home at 11:00, as required.

Defendant contends that there was no proof that he contributed to the delinquency of three minors and that, therefore, this could not be held to be a probation violation. Irrespective of whether or not there was such violation involving contributing to the delinquency of minors, there was obviously evidence in the record which showed a violation of the curfew requirement that defendant be home at 11:00 p. m. In People v. Price, 24 Ill App2d 364, 164 NE2d 528, where defendant was charged with committing the crime of rape while he was on probation following a charge of grand larceny, defendant contended that, since he had never been convicted of the rape charge, he had not violated his probation. The court stated in this connection (at page 379):

“No conclusion other than the one arrived at by the trial court would have been justified upon the evidence found in this record and no authority has been submitted and we have found none which precludes the circuit court in a proceeding of this character from proceeding under the petition to revoke the order admitting this defendant to probation until after the termination of any criminal case growing out of the rape charge against plaintiff in error.
“This is a statutory proceeding. The statute makes no provision for a jury trial. The defendant in this proceeding was not on trial for the crime of rape for which he had been indicted. He was in the court that had previously granted him probation to answer the allegations of the petition which charged he had breached the order admitting him to probation. At the hearing the state was required to prove by a preponderance of the evidence that the defendant had violated the provisions of that order. The trial court found he had and the record fully sustains its judgment.”

The circumstance, therefore, that defendant may not have been guilty of contributing to the delinquency of the minors would be no reason for continuing probation as to defendant, since he violated the curfew provision of his probation. The fact that the evidence also showed two minor girls and a minor boy were in the cabin with the defendant, and in fact spent the night in the same cabin and that the girls were in the same bed with defendant and another man at 4:00 in the morning, were facts which were properly directed to the attention of the court.

We had stated in People v. Dwyer, 57 Ill App2d 343, 206 NE2d 113, that where the vital question in a proceeding for revocation of a defendant’s probation is whether he violated the terms of probation by participating in a crime, nothing less than the most convincing proof on the issue of whether defendant participated in such a crime will satisfy the requirements of justice. We did not (and the courts of this State have not) conclude that a revocation of probation could not be predicated upon a curfew violation, even though an incidental crime may not have been proven by virtue of the evidence presented in connection with acts relating to such curfew violation.-

On the basis of the record at the hearing, we do not believe that the trial judge abused his discretion in revoking the probation of defendant. The granting or denial of probation rests within the discretion of the court, and the question of revocation has frequently been determined on the basis of violations of certain conditions of probation. In State v. Headrick, 54 Ill App2d 44, 203 NE2d 157, and People ex rel. Holsapple v. Ragen, 2 Ill2d 124, at 128, 117 NE2d 390, the revocation was sustained when defendant left the State of Illinois without permission. In People v. Freeman, 49 Ill App2d 464, 200 NE2d 146, revocation was based on failure to report to the probation officer. In People v. Dotson, 111 Ill App2d 306, 250 NE2d 174, a revocation of probation was affirmed, which was based upon defendant receiving two driver’s license violations. In many of the cases referred to, there were relatively minor probation violations, but in most cases there was other questionable conduct by defendant which was referred to by the court in reviewing such cases. While the other conduct might not amount to a technical probation violation, it is appropriate that such conduct be directed to the attention of the court so that an intelligent determination of whether or not to revoke probation could be made by the trial court.

In determining whether probation should be granted or revoked, such factors as public interest, the likelihood of commission of another crime, and possible rehabilitation must be considered by the trial court. In the instant case, defendant had been guilty of two previous probation violations and had even served 30 days in jail for one violation. The conduct of the defendant in spending a night in bed with two minor girls in the cabin, was obviously appropriate to be considered by the court even though the conduct might not technically constitute the crime of contributing to delinquency of minors. In view of the record, it is clear that the revocation of probation by the trial judge did not amount to an abuse of discretion.

Similarly, the sentence imposed by the trial judge from one to seven years was not so excessive as to require that a reviewing court act to reduce such sentence. There is nothing to show that the trial judge was influenced by improper matters or that the sentence was so excessive as to constitute a clear abuse of discretion. Defendant had cited the case of People v. Sims, 32 Ill2d 591, 208 NE2d 569, where defendant had been found guilty of a narcotics crime. The act which he was found to have violated was later held to be invalid. The probation revocation in that case was remanded to the trial court to “pass upon the question of revocation on grounds other than the narcotics addiction.” The Sims case, therefore, is not a precedent which would justify reversal in the case before us.

Another issue to be considered on appeal is whether the trial judge erred in connection with the proceedings relating to the hearing in aggravation and mitigation. It is clear that defendant was entitled to a hearing in aggravation and mitigation before he was sentenced following revocation of his probation (People v. Dotson, 111 Ill App2d 306, 250 NE2d 174). We have indicated in the statement of facts, that after the attorney for defendant had moved orally for a continuance, the trial judge told him that he was proceeding at that time, and defendant’s attorney thereafter answered, “Very well, Your Honor.” Thereafter, when questioned as to whether defendant had anything to offer in mitigation, the attorney answered, “I don’t at this time, Your Honor, care to offer anything further.” It is apparent that the defendant was given an opportunity to testify himself at such time had he chosen to testify, and, also, so far as the record is concerned, nothing was offered in mitigation nor was there any offer or statement that, if given the opportunity, anything specific which would be of aid to the court would be offered in mitigation. This issue also relates to the question as to whether or not the court properly denied the motion for continuance requested by defendant’s attorney. As we have frequently stated, all motions for continuances are addressed to the discretion of the trial court and considered in light of the diligence shown on the part of the movant. In the case before us, the attorney for defendant made no statement of what he intended to prove in mitigation if the continuance were granted. It is vital that attorneys for defendants make a statement as to what, if anything, would be presented in mitigation so as to give the trial court the opportunity of determining whether or not a continuance should be granted. In such case, the trial judge could determine why a continuance was necessary. Without such statement it could not be said that the action of the trial court in refusing the request for continuance was reversible error (People v. Kees, 32 Ill2d 299, 205 NE2d 729).

An incidental issue which arises by reason of the proceedings in this cause was whether defendant waived the right to present evidence in mitigation. In People v. Nelson, 41 Ill2d 364, at 368, 243 NE2d 225, the Supreme Court stated:

“When defendant’s counsel was asked if he had any witnesses he replied that he did not and when asked if he had any comments he replied T have no comments, your honor.’ A hearing in mitigation and aggravation was had, defendant was given ample opportunity to be heard and his failure to take advantage of it constituted a waiver.”

The court in the Nelson case, therefore, in concluding that the court could consider the evidence “if any” which was presented in mitigation obviously concluded that such hearing in mitigation could be waived and that the action of counsel in the case constituted a waiver. It is obvious that defendant in the instant case was aware of the right to a hearing in mitigation, since he was represented by counsel (People v. Tompkins, 112 Ill App2d 251, 251 NE2d 75). As indicated in People v. Nelson, 41 Ill2d 364, at 369, 243 NE2d 225, defendant is considered to have waived his right to be further heard in mitigation and it is neither necessary nor appropriate to remand the cause on such basis. To hold otherwise would permit a defendant to stand silent and, if not pleased with his sentence, he could later invoke the aid of the appellate tribunal to secure a reversal, without having given the trial court the benefit of whatever defendant might have presented in mitigation.

On the basis of the record before us, therefore, there appears to be no reversible error and the order of the Circuit Court of Whiteside County will, therefore, be affirmed.

Affirmed.

EYAN, P. J. and STOUDEE, J., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Dr. James C. Parsons, Plaintiff-Appellant, v. Guild Grain Company, Inc., Defendant-Appellee.
    Gen. No. 69-120.
    Third District.
    June 15,1970.
    Wilbur S. Johnson, of Geneseo, for appellant.

      Herbert M. Specter, of Rock Island, for appellee.
   STOUDER, J.

James C. Parsons, Plaintiff-Appellant, sought to enjoin Guild Grain Company, Inc., Defendant-Appellee, from constructing a grain storage bin on its premises. The Circuit Court of Henry County granted a preliminary injunction but after full hearing such preliminary injunction was dissolved and the court refused to enter a permanent injunction. It is from such action that this appeal follows.

The facts are largely undisputed. During and prior to July, 1967, the plaintiff and defendant owned adjacent lots in Geneseo, Illinois. On the lot of plaintiff, a medical doctor, was located a two-story building. The first floor was devoted to plaintiff’s medical practice and the second floor was an apartment. In July, 1967, the defendant’s lot was unimproved, a residence previously located thereon having been removed in 1964.

Across the street from the lots involved, the defendant operates a general grain and elevator business with facilities for storage, processing, drying, etc. On July 28, 1967, pursuant to application therefore, the defendant was issued a building permit by the Building Inspector of Geneseo to construct a new grain storage bin on its property adjacent to that of plaintiff. The proposed structure was 24 feet in diameter, 48 feet high and included an elevator leg extending above the storage bin with a pit at the bottom of the elevator leg.

Construction of the storage bin commenced in August, 1967. By early September concrete foundations had been constructed, the metal bin had been erected and the elevator leg had been partly erected. Early in September on account of high wind, the elevator leg collapsed and construction was suspended until the defendant and his contractor could decide what to do.

In February, 1968, plaintiff commenced this action seeking to enjoin the construction of the storage bin because such building violated the zoning ordinance of Geneseo. In the zoning ordinance the property of plaintiff and that of defendant upon which the storage bin was to be constructed are both within the area designated as “General Business/’ The property of defendant across the street is designated “Railway & Industrial/’ With respect to the general business classification, the ordinance describes specific types of use, concluding that unless permitted all other uses are prohibited. The railway and industrial classification permits all uses permitted in other districts unless prohibited and in addition, specifies particular uses including “grain elevators and grinding mills.” According to plaintiff as alleged in his complaint, a grain storage bin is not a permitted use within the general business classification.

According to the testimony of John Guild, President of Defendant Corporation, prior to applying for a building permit, he showed plans for the proposed grain storage bin to the plaintiff indicating that the structure would be built rather close to the common lot line. Guild inquired of plaintiff as to whether the latter had any objections and the plaintiff indicated that he had none. The plan was thereafter presented to the Building Inspector and an application for a building permit made.

According to the testimony of the Building Inspector, he examined the defendant’s plan, made an inspection of the area of the proposed construction, and considered the provisions of the zoning ordinance. He did not consult with the City Attorney. The Building Inspector after examining the zoning ordinance, found that grain storage was not a specified use under any classification. Because the general business classification permitted the storage of automobiles, machinery and also earth moving equipment he concluded that the storage of grain was a similar use and issued the building permit for the grain storage bin.

Plaintiff, in addition to testifying to the ownership and improvements on his property, admitted that the plan had been shown to him and that he was aware of the construction which was taking place next to his office. Plaintiff also testified that at the time the plan was presented to him he did not realize what the proposed structure would look like.

Guild testified that a contract for the construction of the storage bin had been entered into for total consideration of $26,000, that $14,000 had already been paid to the contractor and the defendant was obligated for the balance. The structure was nearly 80 % completed.

In seeking to reverse the trial court’s action, the plaintiff argues that defendant’s grain storage bin violated the Geneseo zoning ordinance and, therefore, plaintiff was entitled to have such violation abated by injunctive relief.

Notwithstanding plaintiff’s insistence to the contrary, we believe the doctrine of equitable estoppel is applicable and supports the action of the trial court in denying the relief sought. If, as we believe, the plaintiff may be estopped from seeking injunctive relief for a violation of the ordinance, it is not necessary to determine whether the ordinance was, in fact, violated.

Plaintiff brought this action under 111 Rev Stats 1967, c 24, § 11-13-15, which authorizes a property owner within a certain prescribed distance of property with respect to which a violation of the zoning ordinance is involved, to seek injunctive relief to abate the violation. According to plaintiff, the right to enjoin the violation of the zoning ordinance as provided in such statute is not limited by equitable defenses or equitable considerations.

The statute above referred to does provide a procedure for permitting some property owners to enforce violations of zoning ordinances where the municipality has not elected to do so. The statute described in broad language the violations of zoning ordinances for which relief may be sought, but the specific language contemplates injunctive relief which necessarily includes the application of equitable principles. Since no time is specified in the statute for a property owner to bring the action, it follows according to plaintiff, that he may bring the action at any time and Ms lack of diligence or bad faith would be immaterial. Merely stating the proposition demonstrates its absurdity and contradiction of equitable maxims.

As observed in Johnson v. City of Chicago, 107 Ill App2d 182, 246 NE2d 115, Paulus v. Smith, 70 Ill App 2d 97, 217 NE2d 527 and City of Chicago v. Zellers, 64 Ill App2d 24, 212 NE2d 737, the general rule is that the doctrine of equitable estoppel is not usually applied against a municipality where its agent may have exceeded his authority.

In Johnson v. City of Chicago, supra, the City revoked the building permit eight days after it was issued because the area of the lot was too small for the house to be constructed, The court declined to restrain the revocation of the building permit and indicated that the general rule precluding estoppel against the City was applicable where the City had acted promptly and the change of position or hardship on the property owner were minimal.

In Paulus v. Smith, supra, which involved the location of a sign within 400 feet of the center line of an expressway contrary to a billboard ordinance, the court declined to apply the doctrine of estoppel against the City. The court concluded that the City’s paramount concern for the safety of those using the expressway was in effect superior to any other equitable consideration.

City of Chicago v. Zellers, supra, is a case where the party seeking to assert equitable estoppel against the municipality was guilty of fraud or inequitable conduct which would have prevented the application of the doctrine in any event.

From the foregoing cases it may foe observed that in each the court recognizes the general rule that equitable estoppel may not be urged against a municipality but, nevertheless, equitable considerations are discussed. Furthermore, the court in declining to bar the municipality on account of estoppel, does so by describing and holding that the equities do not favor the property owner.

Cities Service Oil Co. v. City of DesPlaines, 21 Ill2d 157, 171 NE2d 605, is a case which declines to apply the general rule because of the equities which existed. The City had issued a building permit even though the filling station and its underground tanks were to be constructed closer to a church property than the zoning ordinance permitted. More than seven months later and after the construction had substantially progressed, the City sought to vacate the building permit and prevent the unlawful use of the property. The court declined to prevent the construction and use of the filling station and held that under the existing equities the City was es-topped from enforcing the violation of the ordinance.

Several observations in conclusion may be drawn from the above cases pertinent to the case at bar. First of all, it should be observed that each of the cases involves an action directly between the municipality and the alleged zoning violator and in each case, estoppel was asserted directly against the municipality. The reluctance of the courts to estop a municipality from enforcing a violation of its zoning ordinances is rather directly related to the nature of the relationship of the corporate authority to its various officers and agents and the public nature of a municipality. The same reasons for declining to apply equitable estoppel against an individual property owner do not exist and indeed the equitable considerations are quite different.

In the case at bar the defendant applied for a building permit in good faith. The evidence is undisputed that fraud, deceit or misrepresentation are absent. The Building Inspector also issued the building permit in good faith and even in retrospect, it cannot be said that his decision was clearly wrong. In reliance upon the building permit, the defendant spent a substantial sum of money and incurred an obligation for a further substantial amount. On the precedential authority of Cities Service Oil Co. v. City of DesPlaines, supra, and the cases cited and discussed therein, we believe the City of Geneseo would have been estopped from preventing construction of the grain storage bin had it taken action therefor at the time plaintiff commenced this action.

Additionally, we have undisputed evidence that plans were shown to plaintiff by defendant prior to the application for a building permit and that plaintiff, although well aware of the construction, delayed more than six months before objecting thereto by filing this action. Under such circumstances, there is ample evidence for the trial court’s conclusion that the equities were against plaintiff and in favor of defendant.

For the foregoing reasons the decree of the Circuit Court of Henry County is affirmed.

Decree affirmed.

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


author: PER CURIAM.

text:
    Raymond Westefer, Jr., by His Next Friend, Mary Westefer, Plaintiff-Appellant, v. Philip Rybacki, Defendant-Appellee.
    Gen. No. 69-136.
    Third District.
    June 16,1970.
    Rehearing denied July 22,1970.
    Rumley & Reese, of Toulon, for appellant.
    Welch & Blachinsky, of Kewanee, for appellee.
   PER CURIAM.

Plaintiff Raymond Westefer, Jr. instituted an action for damages for injury sustained by him as a result of a collision between the motorcycle which he was driving and the automobile operated by defendant, Philip Rybacki, on Route 17 near Wyoming, Illinois. As a result of a trial before a jury, a verdict was returned in favor of defendant, and judgment was entered thereon.

The record discloses that plaintiff was driving Ms motorcycle in a westerly direction on Route 17, about four miles east of Wyoming, Illinois. He was 15 years of age and had no driver’s license. The motorcycle was a small one with a top speed of 15 miles per hour. The weather on July 10, 1966, at the time of the accident, was sunny and warm and the pavement was dry. The motorcycle was equipped so that there was room for two persons riding on it. A friend, Larry Tossel, was riding on the cycle behind plaintiff. Plaintiff had driven the motorcycle several times prior to the date of the accident. There was some evidence that just prior to the accident plaintiff and his passenger had “a couple of sips” from a bottle of wine.

The road upon which the accident occurred is a two-lane primary road sufficiently wide for two automobiles to pass. As plaintiff’s motorcycle was driven west along Route 17 at the time of the accident, plaintiff apparently approached the crest of the hill, while defendant in Ms automobile was approaching the same hill traveling east. They collided at the top of the hill. Both plaintiff and Ms passenger testified that they did not see defendant’s car prior to the collision and that all they remember is <sa flash of red” (which was the color of defendant’s car). Plaintiff testified that during all the time he was on Route 17 he was in his own lane of traffic. Plaintiff’s passenger testified that while he was looking to the rear at the time of the accident he could see that the motorcycle was in the proper lane and did not feel that the cycle swerved after he turned to look forward.

John Durbin, a Stark County Deputy Sheriff, who had served in that capacity from 1962 to 1966, investigated the accident. When Durbin arrived to make his routine investigation, the only persons present were defendant and an unidentified motorist. Plaintiff and his passenger had been taken to the hospital. Mr. Durbin testified that by looking at the marks on the road he determined that the motorcycle was in the eastbound lane and that the automobile was on the south side of the road. Objections were made that this amounted to a reconstruction of an accident by a man who was not there, and that it takes an expert to do that. Objection was also made that the witness was drawing a conclusion which was highly prejudicial to plaintiff. The objections were overruled by the court, with the observation that the witness was entitled to give an opinion. The witness then testified that the skid marks were going east and they made a curve to the south. The same witness, in testifying as to a picture he had taken of the accident scene, was asked whether he could place the location of the scene in reference to the center line. He stated that “two feet south of the center line” was where he thought was the point of impact. He testified as to marks and debris on the highway and stated that he talked with defendant at the accident scene.

Defendant testified that as he approached the hill he saw a motorcycle coming at him and he veered to the right, being at all times in his proper lane of traffic. The evidence showed that defendant’s car was struck by the motorcycle just in front of the left front door of the car. As a result of the accident the plaintiff had a good part of his left arm amputated.

On appeal in this Court, plaintiff contends that the trial court was guilty of reversible error in admitting certain evidence of the witness John Durbin, and, also, in instructing the jury that absence of a valid operator’s license could be considered (as plaintiff infers) as evidence of contributory negligence.

The Instruction No. 4 to which objection is made was in the following form:

“There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that: ‘No person shall drive any motor vehicle upon a highway in this State unless such person has a valid license as an operator. The Secretary of State shall not issue any license to any person, as an operator, who is under the age of 16 years/
“The fact that the plaintiff violated this statute on the occasion in question may be considered by you together with all the other facts and circumstances in evidence in determining whether or not the plaintiff was contributorily negligent before and at the time of the occurrence/’

Such Instruction was clearly erroneous since the failure of plaintiff to have a driver’s license could not have been a proximate cause of the collision and consequently should not be a basis for a finding of contributory negligence on part of plaintiff.

In view of our determination of this cause it is unnecessary that we discuss the issue relating to testimony of witness Durbin since it is unlikely that similar problems would arise on retrial of this cause.

Since there was error in the giving of Instruction No. 4, this cause will be reversed and remanded to the Circuit Court of Stark County for a new trial.

Reversed and remanded.


author: MR. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Troy Barnett, Defendant-Appellant.
    Gen. No. 69-186.
    Second District.
    June 16,1970.
    Rehearing denied July 30,1970.

      Wayne B. Flanigan, Assistant Public Defender, of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, Nello P. Gamberdino and Thomas M. P. Hannigan, Assistant State’s Attorneys, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Troy Barnett, was prosecuted in the Circuit Court of Lake County on an indictment for murder and voluntary manslaughter. The jury returned a verdict finding him guilty of voluntary manslaughter and he was sentenced by the court to a term of two to five years imprisonment. Defendant moved for a new trial alleging, among other things, that the issue of voluntary manslaughter was not properly raised, and that he was either guilty of murder or was innocent under the law of self-defense. This motion was denied and defendant appeals to this court.

Defendant and the decedent, his wife Lola, lived together with her 15-year-old daughter, Patricia Grier, in an apartment in North Chicago. Their domestic life was far from tranquil. In fact, decedent had filed a complaint for separate maintenance, or, in the alternative, divorce, on November 29, 1968. However, they had become reconciled. According to the testimony of Patricia, they argued and disagreed a good bit of the time, but never exchanged physical blows. On the evening of February 19, 1969, they were arguing when decedent threatened to throw defendant out of the home and said she “didn’t have to have a man beat on her.” Patricia said defendant appeared to have been drinking that evening. Decedent went into the bedroom and threw defendant’s ties on the floor in his presence and pushed a portable TV toward him, and then went into the dining room. Shortly afterward, Patricia said, she heard three shots, whereupon she left the home and went to a relative’s home. She did not witness the shooting.

Defendant testified that he had purchased a .38 Smith & Wesson revolver in November of 1968, and had given it to decedent. It was a five-shot revolver. The cylinder revolves when the trigger is pulled. The hammer has to be cocked each time it is fired, or the trigger has to be pulled all the way back so that the hammer will come back and fall on the cartridge to fire the shot. The empty casings remain in the revolver. Defendant testified that he had not been drinking that evening. During the disagreement between them, he went into the dining room where decedent continued to upbraid him; she said she was not joking and threatened to throw him out; that “she came out of her bosom with a pistol” and that he was too close to her to get out of the door, so he rushed at her, and grabbed her hand. The gun was in her right hand and it went off, the bullet hitting the wall behind him. They continued scuffling and the gun discharged two more times. He was holding on to her hand, her finger was on the trigger, when the gun was discharged. After the third shot, she weakened ; he took the gun from her and fled. He surrendered to the police on March 3, 1969. He stated that he did not attempt to kill his wife.

A qualified pathologist, who performed the autopsy on decedent, testified that powder burns indicated one shot was fired at close range, 12 to 18 inches, from decedent’s face entering the left cheek and ultimately lodging in the carotid sheath, which is composed of connective tissue enclosing large vascular structures, different portions of which are essential to life. The other bullet entered the right chest piercing the upper and lower lobes of the right lung. In his opinion either wound could have been fatal.

The superintendent of the Bureau of Criminal Investigation for the State of Illinois identified the spent bullets introduced in evidence as being from the same .38 Smith & Wesson revolver. The clothing worn by decedent when she was shot was badly decomposed, but he estimated from an examination of the clothing, that the gun was at a “distance greater than contact” when the shot was fired that entered her chest.

The issue here is whether the facts adduced at the trial pertaining to “sudden and intense passion resulting from serious provocation” warrant the submission to the jury of an instruction and verdict form of voluntary manslaughter. Defendant argues that as a matter of law the evidence did not warrant the submission of such an instruction and verdict form. To the contrary, the State submits that the totality of the evidence presented must be considered, and where the evidence would permit the jury to find the defendant guilty of manslaughter, it is not error for the trial court to give instructions and verdict forms on manslaughter.

Voluntary manslaughter is committed by a person “if at the time of the killing, he is acting under a sudden and intense passion resulting from serious provocation,” and serious provocation is defined as “conduct sufficient to excite an intense passion in a reasonable person.” Ill Rev Stats 1967, c 38, § 9-2 (a). Defendant contends that mere words are insufficient to evidence serious provocation. People v. McMurry, 64 Ill App2d 248, 251, 212 NE2d 7. With this the State agrees, but avers the factual situation here presented not only a vocal argument, but an act of serious provocation, culminating in the decedent threatening to throw the defendant out of the home and drawing a gun and pointing it at him. Just prior to these acts, she had thrown his ties on the floor, shoved a television set at him, and cursed him. There is no time interval between decedent’s drawing the gun from her person and pointing it at the defendant; immediately he rushed her and a violent struggle ensued. We cannot agree with the defendant that these facts support his contention that there was no serious provocation making a voluntary manslaughter instruction improper.

Defendant also states that mere gestures cannot support a conviction of voluntary manslaughter. The People v. Washington, 27 Ill2d 104, 109, 187 NE2d 739, but we consider drawing a pistol and pointing it at defendant more than a mere gesture.

During the trial the defendant pleaded self-defense and claims that he was either guilty of murder or innocent by reason of self-defense. He relies upon The People v. Newman, 360 Ill 226, 231, 195 NE 645, in which the court held there was insufficient evidence to support a conviction of manslaughter since the evidence admitted of but one of two conclusions — either that the defendant was guilty of murder, or innocent under the law of self-defense. However, in Newman, the evidence showed a lapse of time between the provocation and the killing. Defendant also relies on The People v. Smith, 404 Ill 350, 354, 88 NE2d 834, where it was held there was an improper conviction for manslaughter. In that case, the court held that the facts revealed that the use of a crank by the defendant was not the result of a sudden impulse of passion, but was a deliberate act of self-defense at a time when defendant was being assaulted.

The general rule as to what constitutes voluntary manslaughter is stated in the Smith case as follows, p 354:

“In cases of voluntary manslaughter, there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and punished as murder.”

It seems clear that the rapid sequence of events in the case before us precludes any interval sufficient for the voice of reason to be heard, or an act of deliberate revenge, and qualifies as a sudden impulse of irresistible passion.

Defendant also cites the recent case of People v. Hall, 118 Ill App2d 160, 254 NE2d 793, but that is not analogous to this case. The factual situation there did not create a heat of passion situation, but rather a situation of either guilty of murder or a finding of innocence by reason of self-defense.

The People v. Taylor, 36 Ill2d 483, 489, 224 NE2d 266, says: “It is only where the evidence establishes that the defendant is guilty of murder or is not guilty, as for example in cases in which the defense is alibi, or mistaken identity, that a defendant may be said to have a right not to have the jury charged as to lesser included offenses.”

Having carefully considered all of the evidence, we cannot say that the defendant has the right here to have the jury determine whether or not he is guilty of murder and no other lesser offense. On the basis of the record it was not improper to submit to the jury an instruction and verdict form on voluntary manslaughter. Therefore, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: MORAN, P. J.

text:
    Elmer L. Legendre and Esther A. Legendre, Plaintiffs-Counterdefendants-Appellees, v. Warren H. Harris and Eunice M. Harris, Defendants-Counterplaintiffs-Appellants.
    Gen. No. 69-89.
    Fifth District.
    June 17,1970.
    Rehearing denied July 17,1970.

      Turner, Holder & Ackerman, of Belleville, for appellants.
    Dixon & McDonnell, of Belleville (Joseph B. McDonnell, of counsel), for appellees.
   MORAN, P. J.

Plaintiffs-counterdefendants, hereinafter referred to as appellees, filed their suit in equity praying for a mandatory injunction to restrain and enjoin the defendantscounterplaintiffs, hereinafter referred to as appellants, from maintaining a garage and dog pen upon their lot 284. The appellants filed their answer and counterclaim that a fence located on appellees’ lot 284 was the true line between the properties and praying that their deed be reformed accordingly.

The court denied relief to the appellants and entered a decree in favor of the appellees enjoining the appellants from the use and enjoyment of that portion of lot 284 existing between the fence and the true boundary line of said lot. The appellants were further ordered to remove the dog pen and to cease the planting and cultivation of all produce on said strip, and to refrain from the use of said strip for any purpose whatever. The appellees were further authorized to remove the fence and to construct any fence or enclosure within the boundary line between lots 283 and 284. The prayer of appellees’ complaint praying for removal of the garage encroaching on appellees’ lot was denied on the ground “that the aforesaid garage is of brick construction and that the benefit to be gained by appellees by requiring its removal is out of proportion to the probable expense and inconvenience attendant upon its removal, and that the encroachment of said garage upon appellees’ lot 284 is relatively slight.” Defendants-counterplaintiffs appeal.

The record discloses that Nick Hulliung and his wife were the owners of lots 274, 283, 284 and 293 of Fikes Addition to the Town now City of Mascoutah until February 21, 1952, when they conveyed lots 274 and 283 by warranty deed to George and Katie Lehr, who conveyed those lots to appellants on August 26, 1963. On February 26, 1964, Nick Hulliung and his wife conveyed lots 284 and 293 to appellees. The survey of lots 283 and 284 accepted by both parties shows that these lots are immediately adjoining and that a fence used by appellees to enclose their horse pasture extends from 5.3 to 7 feet onto lot 284 and appellants’ brick garage extends 5.6 feet onto lot 284. The disputed strip of property lies between this fence and the boundary line as surveyed according to the recorded plat and deeds of the respective parties.

Elmer Legendre testified that on February 26, 1964, he purchased lot 284 along with three other lots in Mascoutah from Nick Hulliung for use as a horse pasture. At that time and for many years prior to that, there was a fence somewhere near the property line separating lot 284 from lot 283. There is also a brick garage on lot 283 next to the fence. Mr. Hulliung told him that that was his fence when he bought the property. There were some fruit trees between the fence and the surveyed boundary line that were planted by prior owners and also some shrubbery planted by appellants. He also testified that he never indicated to Mr. Harris either before or after he bought the property that the fence was the proper dividing or boundary line between their lots. He further stated that he had no personal knowledge of exactly where the true boundary line was. When Nick Hulliung told him that the fence was his when he bought the property, he did not indicate that any part of appellants’ garage was his. He knew his deed called for four complete lots. He had rented those lots several years prior to 1964 and he was aware of the garage, the fence and the fruit trees. The survey and exhibits show that the fence is of four-inch square wire mesh in need of repair and is not in a straight line. Appellant testified that he wanted to rebuild the fence, but he did not know where the proper boundary line was.

Mr. Harris testified that he purchased the property from Mr. and Mrs. Lehr in August of 1963 and on several occasions he inspected the property and saw the fence and garage. He did not have any survey made prior to the purchase or at any time up to the institution of this lawsuit. After he purchased the property in 1963, he had several discussions with Elmer Legendre over the back fence and they referred to the fence as the one that divided their property. Thereafter, some dissention arose and Legendre indicated to the Harrises on several occasions that “they should stay on their side of the fence and he would stay on his.” Mr. Harris testified that they have been using the property up to the fence since August, 1963, for various purposes such as gardening, maintaining a dog pen and harvesting the fruit from the fruit trees.

Eunice Harris testified that the fence runs approximately one foot behind their garage but is not in a straight line. Mr. Legendre repeatedly told them "you maintain your side of the fence and I will maintain mine.” At no time before making the survey did Mr. Legendre make any claim to the strip of land between the fence and the true boundary line. Up until that time, they assumed that the fence was the line. She testified that they were told when they purchased this property that the lot went up to the fence.

Appellants argue that courts of equity will reform a deed on the ground of mistake of fact, mutual and common to the parties and in existence at the time of the execution of the instrument, showing that the parties intended to say a certain thing and by mistake expressed another, when satisfactory evidence of mistake is presented, leaving no reasonable doubt as to the mutual intention of the parties, relying heavily on Korosic v. Pearson, 377 Ill 413, 36 NE2d 744. In that case, Steve and Edward Korosic were joint owners of a certain platted lot. They agreed to divide the property evenly and each constructed a home and other improvements on his half. They built a joint driveway along what they mutually assumed and believed to be the true dividing line between them which they had agreed upon. Thereafter, they decided to make appropriate deeds for their respective halves of the property and consulted a real estate agent for the purpose of preparing these deeds. Edward then sold his half and his purchasers entered into a contract to sell the property to a third party. A survey was made and it was disclosed that the deeds dividing the property between the brothers had ignored a thirty-three foot strip of platted unused roadway along the north side of the property, so that the boundary line as described in the deeds was 16% feet north of the line previously supposed to have been the dividing line. Edward Korosic had built his house 2.4 feet over this described line and had built a chicken house, dug a well and planted trees within the 16% foot strip. The Master found that it was clear from the record that it was the intention of the parties that each have one-half of the lot and that they believed that they had so arranged it as to create a division along the center line of the driveway which they had previously constructed and the trial court granted reformation of their deeds. Appellants argue strenuously that this case controls the present case, relying especially on the language in the opinion that:

“Before they bought this property appellants were confronted with such monuments as ordinarily delineate boundary lines and were bound to take notice of them. The driveway, the row of trees, the chicken house and even a part of appellee’s house itself were in full view and could not in good faith be ignored. Appellants had ample opportunity to observe these physical facts, to make inquiry of appellee or others, to require a survey or look for surveyor’s monuments. No master in chancery or chancellor could be expected to believe that appellants in good faith intended to buy or actually thought they were buying 2.4 feet off of the north end of appellee’s house.”

Appellees argue that the present case falls more squarely within the decision of Skinner v. Francisco, 404 Ill 356, 88 NE2d 867, and that the evidence produced by appellants does not approach the standard required for reformation of a deed. In that case, Skinner had purchased from a Mrs. Burns a parcel of land which she had allegedly told him was bounded on the west by a hedge fence. He entered into possession and cultivated the land to the hedge fence for ten years at which time Mrs. Burns sold the adjoining tract on the west to Francisco. It developed that the hedge fence was, in fact, thirty-three feet on Francisco’s side of the boundary line. Skinner filed suit claiming that the hedge fence was the true boundary and praying that title be confirmed in him to the hedge. The court denied this relief and held that although a boundary line may, under certain circumstances, be permanently and irrevocably established by parol agreement of adjoining owners, if the boundary line is not in dispute and the intention of the parties is merely to determine the exact or true line and in so doing agree upon an erroneous line by accident or mistake, the agreement will not be binding and the line will not be established merely because of the agreement previously entered into between the parties. In such a case there is merely a failure to find the true line through accident or mistake and not an agreement to adopt an unascertained or disputed line. The court went on to note that there was no uncertainty in the deed that could not have been removed by a survey or the running of a simple instrument, and that Skinner understood that he was purchasing 80 acres of ground, which was exactly what he bargained for and received.

We believe that the present case is distinguishable from Korosic v. Pearson, supra, and is more appropriately controlled by Skinner v. Francisco, supra. In Korosic, the evidence was conclusive that at the time the lot was divided by deed the brothers had agreed upon the boundary line as evidenced by the driveway, but due to a mutual mistake on their part, the deeds failed to recite the boundary line as they had agreed. In the present case, the only evidence of the intention of any of the parties is that Mr. and Mrs. Harris expected that they were purchasing property up to the fence. Mrs. Harris testified that they were told when they bought the property that their lot extended to the fence. However, Nick Hulliung and Mr. and Mrs. Lehr are now deceased and there was no testimony as to the intent of those parties at the time Hulliung conveyed lot 283 in 1952 to the Lehrs, aside from inferences which might be drawn from the presence of the fence and the garage.

In analogous circumstances in Perry v. Elliott, 261 Ill 553, 104 NE 196, the court held that a prior conveyance to plaintiff’s predecessor in title which failed to include an area allegedly meant to be included would not be reformed to include the disputed tract, even though defendant grantor had over a period of thirteen years asserted no claim to the disputed strip, and had not taken possession of it until after a county survey was made for taxation purposes. The court said that these factors were merely circumstances to be taken into consideration but were not conclusive in favor of reformation, particularly where it was far from clear in light of other evidence that any mistake had been made in the prior conveyance. The court stated:

“To justify the relief prayed, the evidence must be of very strong and convincing character that there was a mutual mistake by the parties in the respect alleged. (Citing cases.) The fact that owners of land who became such after the conveyance to Mrs. Gent thought they were acquiring land extending one hundred feet south of West Main Street would not authorize a reformation of the deed from Mrs. Elliott to Mrs. Gent in the absence of clear and convincing proof that they understood and intended the deed to convey one hundred feet south of West Main Street.”

Similarly, the fact that appellants thought they were acquiring property up to the fence is not sufficient to authorize reformation of their deed to include that property in the absence of clear and convincing evidence that their predecessors in title had intended to convey that land up to the fence. Appellants assert they have shown mutual mistake on the part of all parties by the fact that appellees have assumed the fence to be the boundary line and that Nick Hulliung told appellees that the fence was the line when he said that the fence was his (Legendre’s). However, Legendre denied ever referring to the fence as the boundary line. He testified that he did not know where the line was, although he had been told that the fence was on his property. We believe that this evidence falls far short of that clear and convincing evidence required to demonstrate that Nick Hulliung and the Lehrs intended to convey property up to the fence when they conveyed lot 283, and that their deeds failed to recite this intention properly because of a mutual mistake of fact.

This case is similar to Skinner v. Francisco, supra, in that, prior to this lawsuit, there was never a dispute as to the true boundary line and at best, the adjoining landowners merely erroneously assumed that the fence was the true line. Appellants’ deed was to convey to them lot 283, which according to the recorded plat adjoins lot 284 on the line as surveyed by the parties, and not on the fence line as asserted by appellants. The appellants bargained for lot 283 and this is what they received. They could readily have ascertained where the true boundary was but they took no steps to do so. In such a case where the true boundary is not in dispute or uncertain, an agreement between the parties, express or implied, is not binding so as to alter the description in their respective deeds. Skinner v. Francisco, supra.

Appellants finally argue that the decree is inconsistent in that it restrains appellants from use of the disputed strip, but permits the maintenance of the garage as it now exists without reforming their deed to include the property on which it rests, and thus places a cloud upon their title. The trial court found that the garage was of brick construction and that the expense and inconvenience attendant upon its removal would be out of proportion to the benefit to be gained by appellees in that its encroachment upon appellees’ lot is relatively slight. Thus, it denied that portion of plaintiffs’ complaint asking that the garage be removed. Appellees do not dispute this disposition of the ease and recite that their sole objective in instituting this action was to confirm their title to the disputed strip. In fact, appellees had waived that portion of their prayer asking for removal of the garage.

We believe that the findings in the decree of the trial court are consistent with each other and with the law of Illinois that where the court declines to compel a removal of an encroachment, it will leave the complaining party to Ms remedy at law for damages, if he so desires. Pradelt v. Lewis, 297 Ill 374, 130 NE 785. In any event, when Nick Hulliung built a portion of his garage over the boundary line between lots 283 and 284 and subsequently transferred one of those lots, Ms grantee took that lot subject to, or benefited by an easement by necessary implication in favor of the encroaching garage. ILP, Easements, § 17; Koubenec v. Moore, 399 Ill 620, 78 NE2d 234; Gilbert v. Chicago Title & Trust Co., 7 Ill2d 496, 131 NE2d 1; People ex rel. Helgeson v. Hackler, 21 Ill2d 267, 171 NE2d 599; Mueller v. Keller, 18 Ill2d 334, 164 NE2d 68. In fact, appellees have offered to “recognize a permanent easement in favor of defendants and their successors in title over that portion of plaintiffs’ lot onto which the garage extends, so long as the true boundary line is recognized.” (Appellees’ Brief, page 14.)

The decree of the trial court is therefore affirmed.

Decree affirmed.

EBBB8PACHER and GOLDENHERSH, JJ., concur.


author: RYAN, P. J.

text:
    Dale E. Artz, et al., Plaintiffs-Appellants, v. Commercial National Bank of Peoria, as Executor of the Estate of Evelyn. H. Mathers, Deceased, et al., Defendants-Appellees, and Wayne F. Melcher, et al., Plaintiffs-Appellees.
    Gen. No. 69-89.
    Third District.
    June 17,1970.
    C. B. Ullrrick, of Peoria, for appellants.
    Edward F. Sutkowski and Duane G. Stone, of Peoria, for appellees.
   RYAN, P. J.

On November 26, 1968, a petition was presented to the City Planning and Zoning Commission of Peoria, requesting the issuance to the Peoria Association for Retarded Children, Inc. of a special permit for the establishment of a “Shelter-Care Facility” for retarded children on certain premises, the location being immediately adjacent to a restricted residential territory, recently developed. 137 residents of the immediate neighborhood filed written objections with the City Planning and Zoning Commission.

After hearing, the Commission recommended that the petition be denied. On April 1, 1969, however, the Peoria City Council passed an ordinance granting the special use.

Plaintiffs-Appellants filed a petition for Administrative Review with the Circuit Court of Peoria County to which petition the City of Peoria and the Peoria Association for Retarded Children, Inc. filed a Motion to Dismiss on the sole ground that the action of the City Council was a legislative action and not subject to administrative review. The Court sustained the Motion and dismissed the complaint, from which action this appeal is taken.

The sole question presented by this appeal is whether the Plaintiffs-Appellants have misconceived their remedy. Having considered the cases cited by Appellants and Appellees and the Administrative Review Act (c 110, § 264 et seq., Ill Rev Stats), we are compelled to rule that Plaintiffs-Appellants have indeed chosen the wrong remedy and that the trial court properly dismissed their petition. The Administrative Review Act was created and designed to provide a means and a procedure for judicial review of administrative decisions of administrative agencies. The Act does not provide for judicial review of legislative acts of legislative bodies. While legislative acts can be reached in an appropriate case, e. g., through proceedings for declaratory judgment, such remedy and declaration was not sought in this case. Thus, it is neither for the trial court nor this court to pass on the merits of the allegations of the Plaintiffs-Appellants that might have been raised in a different proceeding.

Numerous decisions of the Illinois Appellate and Supreme Courts have clearly established the principle that ordinances enacted by county boards of supervisors or municipal governing boards are legislative acts of legislative bodies. Kotrich v. County of DuPage, 19 Ill2d 181, 166 NE2d 601; Klein v. Village of LaGrange, 93 Ill App2d 318, 236 NE2d 351; Village of Justice v. Jamieson, 7 Ill App2d 113, 129 NE2d 269; Downey v. Grimshaw, 410 Ill 21, 101 NE2d 275; Forbes v. Hubbard, 348 Ill 166, 180 NE 767; Anthony v. City of Kewanee, 79 Ill App2d 243, 223 NE2d 738.

Section 265 of the Administrative Review Act provides: “This Act shall apply to and govern every action to review judicially a final decision of any administrative agency . . . .” The action of the Peoria City Council now being considered under the cases cited above was the action of a legislative body and not of an administrative agency and thus not reviewable under the Administrative Review Act.

The plaintiff attempts to distinguish Kotrich v. County of DuPage, supra, from the case at bar contending that in Kotrich the action was against a county which along with its officer are constitutional entities and possess certain inherent legislative powers. That, on the other hand, a municipal corporation is a creature of the legislature and the City Council has no power excepting that which has been granted to it by the legislature. We do not think this distinction is significant in this case. The above-cited cases involve actions by both counties and municipal corporations and the courts have held the action taken to be legislative in nature in both situations. A legislative determination cannot be transformed into a decision of an administrative agency and thus reviewable under the Administrative Review Act by simply alleging certain defects in the legislative process.

The plaintiffs urge that when administrative review is sought in the Circuit Court that Court’s jurisdiction extends to all matters properly pertaining to the case submitted for decision. Plaintiffs cite Howard v. Lawton, 22 Ill2d 331, 175 NE2d 556, as holding that the constitutionality of a zoning ordinance may be tested in an administrative review proceeding. We do not dispute this holding. We do wish to point out, however, that the Howard case was an administrative review action instituted to review the decision of an administrative agency and not to review a determination of a legislative body.

For the above reasons, we are of the opinion that the trial court properly granted defendants’ motion to dismiss the complaint for administrative review.

Affirmed.

STQUDER and ALLOY, JJ„, concur.


text:
    William Mark Lawrence, a Minor, by Nathan M. Lawrence, His Father and Next Friend, Plaintiff-Appellant, v. Loren Rehmer, Defendant-Appellee.
    Gen. No. 69-118.
    Fifth District.
    June 17,1970.

      Sam S. Pessin, of Belleville, for appellant.
    Oehmke, Dunham, Boman & Leskera, of East St. Louis (Robert W. Cadagin, of counsel), for appellee.
   PER CURIAM.

This is a personal injury suit filed on behalf of a twelve-year-old minor.

The complaint charged the defendant-property owner with maintaining a dangerous condition by constructing and maintaining a dirt pile containing rocks, glass and other hard substances in the yard of his premises in Fayetteville, Illinois, and with negligently failing to take any safety precautions concerning the dirt pile, although the defendant knew, or should have known, that minor children would and did play thereon, and throw clods therefrom at each other, thus providing a dangerous condition whereby they were likely to injure each other.

The complaint further charged that in October, 1967, the minor plaintiff was struck in the eye by one of the dirt clods containing rock, glass or other hard substances, thrown by another child, and that as a result, he lost the sight of an eye. The amended complaint was dismissed with prejudice by the trial court on defendant’s motion, and judgment was entered in favor of the defendant and against the plaintiff.

The trial court’s judgment was in conformity with the Supreme Court’s ruling in Donehue v. Duvall 41 Ill2d 377, 243 NE2d 222.

The judgment of the trial court is affirmed.

Judgment affirmed.


author: CRAVEN, P. J.,

text:
    Edward Edwards, Plaintiff Counterdefendant-Appellee, v. Cynthia Edwards, Defendant Counterplaintiff-Appellant.
    Gen. No. 11,218.
    Fourth District.
    June 22,1970.

      Knuppel, Grosboll, Becker & Tice, of Havana (John L. Knuppel, of counsel), for appellant.

      White & Ermeling, of Havana, for appellee.

       See Callaghan’s Illinois Digest, same topic and section number,

   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Mason County entered on a motion to redocket a divorce suit and fix support payments and the rights of visitation with the minor child of the parties. No appeal is taken from that portion of the order fixing visitation rights.

On May 18, 1967, a divorce was granted to the plaintiff-husband, Edward Edwards, against defendant-wife, Cynthia Edwards, on grounds of desertion. Custody of their minor child, Phillip, was awarded to defendant with visitation rights to plaintiff and the paternal grandparents. Plaintiff was ordered to pay defendant “the sum of $95.20 per month through government allotment during the period of his service in the United States Armed Forces, said payment to be for the care and maintenance of their minor child and until further order of the Court.”

Plaintiff, on May 15, 1969, filed a motion to redoeket the cause and to fix support payments and rights of visitation, alleging change in circumstances resulting from his release from military service and subsequent employment. It appears that he had been discharged from military service several months prior to filing his motion.

At the hearing on the merits evidence was introduced that plaintiff was no longer in the Armed Forces but was employed by Caterpillar Tractor Company, Peoria, earning $100 per week after payroll deductions. He showed that he had remarried and had monthly obligations for house payments of $66, for utilities of $30, for work-transportation costs of $28 and for food at his place of employment of $28. In addition, he testified that there were other regular monthly costs of running his household, including $80 per month for groceries, and expenses for insurance on himself and the minor child.

Defendant testified that she was employed, with take-home pay of $310 a month, and lived in a small apartment for which she paid $95 a month. She testified to having other expenses totaling $337.20 a month. She attributed $163.30 of her total $432.20 monthly expenses to direct expenses for her son.

Evidence was also introduced that plaintiff’s second wife was employed, earning $217 per month. It further appeared that plaintiff had been making support payments of $60 a month since his discharge from the service.

The court entered its order that plaintiff pay $20 per week to the defendant for the care, support and maintenance of the minor child, such payments to be retroactive to the date of termination of the government-allotment payments for the child and until further order of the court.

Defendant appealed this order, contending that discharge from military service is not a change in circumstances sufficient to permit a court to review child-support payments previously ordered; that it is an abuse of discretion to reduce support payments where one is in arrears in payments ordered; and that employment and earnings of the child’s mother, subsequent to the divorce, do not constitute a change in circumstances justifying reduction of child support. Defendant also contends that the court was without jurisdiction to retroactively reduce, cancel or abate support payments which have accrued under a prior decree before the filing of a petition to modify the decree.

It is well-established that the court has power to modify child-support orders of a divorce decree if subsequent changes in the conditions and circumstances of the parties render such modification necessary. Mayes v. Mayes, 23 Ill App2d 513, 163 NE2d 235 (3rd Dist 1960) (abst). The Divorce Act provides: . . The court may, on application, from time to time, make such alterations In the allowance of alimony and maintenance, and the care, education, custody and support of the children, as shall appear reasonable and proper . . . .” (Ill Rev Stats 1967, c 40, § 19.)

It also is well-established that the alteration of an order respecting support payments rests in the sound judicial discretion of the trial court, and unless the record shows an abuse of that discretion such an order will generally not be disturbed on review. Hoover v. Hoover, 307 Ill App 590, 30 NE2d 940 (1st Dist 1940).

In the instant case the trial court determined that the discharge of plaintiff from military service was a material change in the husband’s circumstances necessitating further consideration of the support for the minor child. When this discharge and discontinuance of the government allotment for child support are viewed in connection with the subsequent financial condition and amount of earnings of plaintiff, we find no error in the determination reached as an exercise of sound discretion by the trial court. In fact, the necessity for review of the financial situation, earnings and needs of the parties was virtually implicit due to the nature of the original support order. That order was that plaintiff pay the sum of $95.20 per month through government allotment during the period of his service in the United States Armed Forces. Obviously, when that order was entered, it was deemed reasonable and proper under the circumstance that plaintiff was or shortly was to be in the Armed Forces. When the period of service ended, the order contemplated that the amount might be changed, or at least reviewed. That the order might be contradictory by its additional words “and until further order of the Court” does not alter the fact that the government allotment no longer was available, nor that the change in status, in fact, was a change in circumstances within the standards consistently followed by our courts.

While equity does not look with favor on modifying a support decree when the petitioner is in default of compliance with the order then in effect, it will not deny a petition to modify for that reason only, but will consider the whole situation on its merits. Wiseman v. Wiseman, 290 Ill App 585, 8 NE2d 960 (4th Dist 1937). The default of plaintiff in this case appears small and of short duration. We find nothing in the evidence here to justify finding that plaintiff’s failure to pay the full support payments previously ordered constituted a “contumacious refusal to pay,” as defendant contends.

The financial status of plaintiff’s present wife has no bearing upon the obligation of plaintiff to support his minor child. However, it is quite apparent that the trial court considered the financial circumstances and needs of plaintiff and of the minor child in light of all the facts surrounding both households. We cannot say that this was an abuse of discretion, but rather it was an assessment of those matters which demonstrate clearly the effort to reach an equitable conclusion.

Likewise, as a part of the circumstances and conditions of the parties, the court properly considered the subsequent employment and earnings of the defendant-mother, which also was a proper consideration in determining a reasonable and proper support amount to be ordered.

It appears to us that the trial court gave due consideration to the evidence presented, and that in view of all the facts presented, it arrived at an equitable sum in setting the support payments at $20 a week.

We find no reversible error or abuse of discretion in ordering that the support payments of $20 a week be retroactive to become effective as of the date of termination of the government-allotment payments for the child.

We are not unmindful of the often-announced rule that past-due payments of alimony and support are vested and that the court has no authority to modify them either as to amount or time of payment. Hurt v. Hurt, 351 Ill App 427,115 NE2d 638 (1st Dist 1953; Vail v. Vail, 98 Ill App 2d 234, 240 NE2d 519 (1st Dist 1968) (abst). Also, that modification is effective only from the date of filing of the petition for modification. Vail v. Vail, supra.

In none of the cases where these rules were announced was there an order in the language of the divorce decree as in this case. Under the language of the divorce decree here, it was proper for the support-payment sums to be modified as of the date the government-allotment payments terminated. To do so not only was equitable, but was well within the purport of the original order. In view of the language of the original order, we cannot say that any vested rights had accrued.

Judgment affirmed.

SMITH and TRAPP, JJ„, concur.