author: MORAN, J.

text:
    The John Allan Company, Petitioner-Appellant, v. Sesser Concrete Products Company, Respondent-Appellee.
    Gen. No. 68-70.
    Fifth District.
    October 27, 1969.
    Rehearing denied November 14, 1969.
    Blair & Buyer, of Chicago, and Lawrence J. Starman, of Mt. Vernon (Allan L. Blair and Lawrence J. Star-man, of counsel), for appellant.
    Hodson & Pennock, of Centraba (Glendon C. Hodson and Harold H. Pennock, Jr., of counsel), for appellee.
   MORAN, J.

The John Allan Company, petitioner-appellant, appeals from an order entered March 28, 1968, by the Circuit Court of Jefferson County which denied its application, as tax purchaser, for a tax deed to certain real estate, and further denied its motion to expunge an alleged redemption by Sesser Concrete Products Company, respondent-appellee.

On October 5, 1964, the following described property was sold at public auction to The John Allan Company’s assignor, Interstate Bond Company, for the unpaid 1963 general real estate taxes:

Lots 11 and 12, Block 1, Storm’s Survey, Mt. Vernon Township, Jefferson County, Illinois.

Interstate also paid the 1964, 1965 and 1966 general real estate taxes which subsequently became due and payable against the subject property.

Normally, the period of redemption would have expired two years from the date of sale, or on October 5, 1966. However, on September 27, 1966, pursuant to section 263 of the Illinois Revenue Act (Ill Rev Stats 1965, c 120, par 744), which authorizes the holder of a certificate of purchase to extend the period of redemption, Interstate extended the period of redemption to Saturday, August 12, 1967.

Prior to the extension of the redemption period, on December 27, 1965, Sesser filed a complaint to foreclose a note secured by a trust deed on the subject property to the City National Bank of Centralia. Neither the John Allan Company nor its assignor, Interstate Bond Company, were made a party to the mortgage foreclosure proceeding.

On February 28, 1967, a decree of mortgage foreclosure was entered, but this decree was not recorded. The decree provided that the real estate should be sold unencumbered and free of all liens for taxes.

On April 6, 1967, Interstate filed a petition for tax deed. Thereafter, timely notice was personally served upon the owners of the subject property, the party in whose name the real estate was last assessed, the occupants thereof, and the trustees and mortgagees of record. Timely publication was made as to all unknown owners or parties interested in such real estate. Sesser was not given personal notice.

On August 2, 1967, after the period provided for serving notices, a mortgage foreclosure sale was held on the subject property and the property was sold to Sesser who received a certificate of sale. The report of sale was filed and approved on August 11,1967.

On August 11, 1967, the 1966 real estate taxes in the amount of $512.55 were paid by Sesser in the County Treasurer’s Office. On that same day, an uncertified check, drawn on the account of the Sheriff of Jefferson County, pursuant to the court decree in the foreclosure proceedings, was delivered to the County Clerk by the Sheriff in the amount of $1,908.53, the amount required to redeem at the date of the foreclosure sale. The attorney for Sesser also appeared in the County Clerk’s Office on August 11, 1967, and was informed that subsequent to the foreclosure sale additional taxes had become due and after August 10, 1967, the total amount required to redeem had been increased to $2,524; he thereafter attempted unsuccessfully on that date to so advise his client by telephone. Later the same day, the County Treasurer discovered that the 1966 taxes had been paid the previous day by Interstate, but had not been posted. He therefore returned Sesser’s check by mail and refused Sesser’s payment.

On Monday, August 14, 1967, Sesser presented a check in the amount of $617.87 along with the check for $1,908.53 in order to redeem the property. Both checks were accepted by the County Clerk and a Certificate of Redemption issued, dated August 14, 1967. It was also on August 14, 1967, that The John Allan Company, assignee of the Certificate of Purchase, was substituted as petitioner.

Appellant contends that no redemption was made because the checks in the amount of the redemption price were delivered two days after the expiration of the period of redemption, while appellee contends that the date for the expiration of redemption was Monday, August 14, 1967, and not Saturday, August 12,1967.

Section 263 of the Illinois Revenue Act (Ill Rev Stats, c 120, par 744) provides that the notices required therein state when the time of redemption will expire. It is undisputed that the notices given by Interstate specified Saturday, August 12, 1967, as the expiration of the extended redemption period.

Until July 1, 1969, Ill Rev Stats, c 131, § 1.11 provided:

“The time within which any Act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Sunday or holiday is also a holiday or a Sunday then such succeeding day shall also be excluded.”

In Pettigrove v. Parro Const. Corp., 44 Ill App2d 421, 194 NE2d 521 (1963) the court applied this statute to a situation where the final day for filing a petition fell on a Saturday and the Circuit Clerk’s office was lawfully closed on that day, saying that, as a practical matter, where an office is closed on the final day for the doing of any act provided by law to be done, that day shall also be excluded and, therefore, filing the petition on the first day on which the Circuit Clerk’s office was properly open, following that Saturday, was timely.

In Burgess v. Erickson, 72 Ill App2d 85, 218 NE2d 111. where the last day for filing the record on appeal fell on a Saturday and the clerk’s office was closed on that day, the court said at pages 85-86:

“. . . The time within which the record on appeal must be filed in this court is computed by excluding the first day, that is, the day on which the notice of appeal is filed, and including the last day, unless the last day is a Sunday, a legal holiday, or a day in which the office of the clerk of this court is closed. Ill Rev Stats, c 131, § 1.111; Pettigrove v. Parro Const. Corp., 44 Ill App2d 421, 194 NE2d 521. Accordingly, the filing of the record on appeal herein on Monday, November 8, 1965, was within the time prescribed by law, and therefore the motion to dismiss the appeal is denied.”

The statute governing the operation of the County Clerk’s office provides that in counties of less than 500,000 population, the office shall be closed on Saturday unless changed by an appropriate resolution passed at a regular meeting of the County Board or Board of Supervisors. Ill Rev Stats, c 35, § 4(b). No such resolution as required by statute was passed to authorize the conducting of business on Saturday.

Although the County Clerk testified that his office was open on that day, from 8:00 a. m. to 12:00 noon, he could have, as easily as not, lawfully closed the office at any time before noon or refused to open it at all on that day. Therefore, although the County Clerk’s office was open on August 12, 1967, it was not open under any provision of law which would give notice to Sesser that he could redeem on that date.

Including the last day of the extended period of redemption would make Saturday, August 12, 1967, the final day for redemption. Accordingly, Saturday and Sunday should both be excluded, thereby making Monday, August 14, 1967, the date on which the extended period of redemption actually expired.

Appellant also contends that no valid redemption was made because section 253 of the Revenue Act (Ill Rev Stats, 1965, c 120, § 734) requires that the redemption price must be paid in cash to the County Clerk prior to the expiration of the redemption period or the redemption as extended. Appellant relies principally on the case of Weiner v. Eder, 22 Illd 408, 176 NE2d 777. In Weiner the period of redemption expired Saturday, February 14, 1959. Appellee deposited its personal check with the County Clerk on February 13, 1959, for the amount due. The County Clerk then issued a receipt stating that a certificate of deposit for redemption would not be issued until all checks had been honored by the bank. On Monday, February 16, 1959, the decree for tax deed was entered, the County Clerk’s records showing that no redemption had been made on that date. The purchaser at the tax sale contended that no redemption could have occurred because the owner’s certified check was not paid until after the redemption period expired. Our Supreme Court said at 411:

“. . . In the present case, the county clerk indicated the conditional nature of the payment (1) by the language on the receipt given to Liblich that ‘certificate of deposit for redemption will be issued when all checks rendered with redemption deposit have been honored by the bank/ (2) by writing ‘5’ on the check, indicating that an answer as to whether the check had been honored by the bank could be expected in five working days, (3) by issuing a certificate of redemption on February 26, 1959, and (4) by posting the purported redemption in the county clerk’s tax, judgment, sale, redemption and forfeiture records on February 26, 1959. Since payment took place when the county clerk acknowledged acceptance of the payment on February 26, 1959, the payment was not made before the expiration of two years from the date of sale, which period expired on February 14,1959.”

Appellee contends that Weiner v. Eder, supra, does not apply to the present case and that where the County Clerk accepts payment and issues an unconditional certificate of redemption, the redemption is complete even though payment was made by check, citing Weiner v. Chicago Title & Trust Co., 21 Ill2d 69, 171 NE2d 50, wherein the court said at page 74:

“. . . Since the check was paid when it was deposited at a later date and since the city was willing to rely upon the security deposited with the check instead of insisting upon a bank draft or cashier’s cheek, the city through its officers, accepted the check and security as cash. Although a different situation may have arisen if the check had been deposited earlier and returned to the city for insufficient funds, this did not occur and speculation regarding it was properly excluded.”

Therefore, Sesser argues that the acceptance of the checks by the County Clerk without objection on August 14,1967, and the issuance of a certificate of redemption to Sesser on that date constituted payment as of that date and effected a proper redemption by Sesser.

We believe that the rationale of Weiner v. Chicago Title and Trust Co., 21 Ill2d 69, 171 NE2d 50, applies to the present case, rather than that of Weiner v. Eder, 22 Ill2d 408, 176 NE2d 777, where the Supreme Court was faced with a situation where the County Clerk accepted the check on the condition that a certificate would not issue until the check was honored by the bank. Our holding is in accord with the general rule in the United States as enunciated in 21 ALR2d, page 1302:

“While it is a general rule that taxes can only be paid in money, and taxing authorities are not, in the absence of statutory requirement, under any obligation to accept checks or drafts in payment of taxes, it may be noted that the acceptance by the taxing officer of a draft or check without objection will, provided of course that the instrument is subsequently paid, constitute a payment as of the time of acceptance, and a tax purchaser may not, by raising objections to the failure to pay in legal tender, cause a failure of redemption from this fact alone, the failure of the tax collector to object constituting a waiver of the tax purchaser’s right to object.”

Appellant could not prevent Sesser from redeeming the property from the tax sale and the trial court was therefore correct in denying the motion to expunge Sesser’s redemption from the record. We do not consider it necessary to discuss other contentions raised by the parties.

For the foregoing reasons, we affirm the judgment of the Circuit Court of Jefferson County.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.

       This statute was amended, effective July 1, 1969, to read:
      “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Delano Bell, Defendant-Appellant.
    Gen. No. 69-56.
    Fifth District.
    October 27, 1969.
    Michael B. Constance, of Belleville, for appellant; Robert H. Rice, State’s Attorney, of Belleville (William R. Poston, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: CREES, J.

text:
    William Metz, et al., Plaintiffs-Appellees, v. Dwight H. Doss, et al., Defendants-Appellants. Alice Gray, Plaintiff-Appellee, v. Welby Walden, et al., Defendants-Appellants. Alice Gray, et al., Plaintiffs-Appellees v. Burdett Manning, et al., Defendants-Appellants. Alice Gray, et al., Plaintiffs-Appellees, v. Burdett Manning, et al., Defendants-Appellants. Alice Gray, et al., Plaintiffs-Appellees, v. Dwight H. Doss, et al., Defendants-Appellants. Lawrence W. Phillips, et al., Plaintiffs-Appellees, v. Hiram M. Weber, et al., Defendants-Appellants. Virgil Walmsley, et al., Plaintiffs-Appellees, v. Fred Zeisler, et al., Defendants-Appellants.
    Gen. No. 10,930.
    Fourth District.
    October 28, 1969.
    Rehearing denied December 1, 1969.

      Free & Free, and Lucas & Lucas, of Springfield (Edward G. Free, of counsel), and Grigsby & Irving, of Pittsfield, for appellants.
    Thomas Sweeney, Sweeney & Sweeney, of Taylorville, and Paul F. Grote, of Pittsfield, for appellees.
   CREES, J.

Plaintiffs brought suits to compel the release of record of certain oil and gas leases. The trial court granted plaintiffs’ motions for summary judgments.

Our first consideration is a motion to dismiss the appeals in six of the seven cases on the grounds that they were improperly consolidated on appeal. This motion has been taken with the case. The seven cases were filed as separate suits and so handled by the trial court. Because the issues were similar, appellants on their own motion, without leave of court, attempted to consolidate the seven cases. This is not proper. As a result of the attempted consolidation, the record on appeal is only a record of the first case; it does not even contain the judgments in six of the cases. We cannot pass on the validity of judgments which are not before us. The motion of appellees to dismiss the appeal in all cases except Metz, et al. v. Doss, et al., 65-C-107, is granted.

In the Metz case the facts, generally, are not in dispute. The lease was dated July 29, 1956. It provided for a primary term of one year “and as long thereafter as oil or gas, or either of them, is produced from said land by lessee.” A well was drilled within the primary term and gas was encountered. Lessors used free gas from the well under the terms of the free gas clause in the lease. There was no commercial production of gas from the lease at any time. Lessees attempted to develop the area as a gas storage reservoir and took leases for that purpose. Plaintiffs originally sought to cancel the gas storage leases but this part of their complaint was stricken on plaintiffs’ motion. The complaint in the Metz case was filed September 30, 1965, and sought relief under section 40, chapter 80, Ill Rev Stats 1965.

In their motion for summary judgment, supported by affidavits, plaintiffs made out a prima facie case for the relief sought; hence, our only question is whether or not defendants raised a triable issue of fact in their answer and counteraffidavits. The pleadings are too voluminous to be set forth here. Basically, they contained two contentions, by way of defense. First, because of defendants’ expenditure of large sums of money and a great deal of time in trying to develop the area as a gas storage reservoir, defendants were entitled to equitable relief; and second, the furnishing of free gas constituted production and kept the lease alive by its terms.

During the primary terms of the various leases involved in these suits a considerable amount was spent drilling wells. These wells had at the time suit was filed been shut in for a period of approximately eight years. In view of the length of time involved it necessarily appears that either the wells did not encounter gas in commercial quantities, or the operators were not diligent in their efforts to market the gas. Neither of these alternatives gives a basis for equitable relief to lessees. Also, the efforts to develop a gas storage reservoir are not in furtherance of the objectives of a lease for the production of gas.

While there are some cases where, contrary to the general rule, equitable relief has been granted (Summers, “The Law of Oil & Gas,” Vol 2, Sections 298, 299), we find that this record does not show conditions or circumstances that compel equitable relief.

On the questions of whether or not furnishing free gas for domestic use on the premises constitutes production so as to keep the lease in force after the primary term, no cases directly in point have been cited to us by counsel. The purpose of an oil and gas lease is to obtain production. Unless lessee obtains production, he cannot recover his drilling expense. Lessor depends upon production for receipt of the royalty provided in the lease. This purpose can only be accomplished if the production which can keep the lease effective for an indefinite future period is production in the ordinary sense of the term, and hence results in royalties to the lessor.

From a reading of the entire instrument it is evident that the royalty provision is a primary matter, while the provision for free gas, like the provision for burying lines below plow depth, is a secondary matter. Nor does the acceptance of free gas constitute an estoppel. Under the terms of the lease, lessor was entitled to free gas and to have the lease terminate at the end of the primary term unless there was production. These rights are not in the alternative.

The trial court’s findings in these matters being correct, no genuine issue as to any material fact was left for a jury to pass upon. In such a situation entry of summary judgment is proper.

Numerous other contentions have been raised on this appeal by appellants. The proper content of the record on appeal is in dispute, largely as a result of the death of the trial judge before the record was settled. However, even if we accepted appellants’ views in this regard, there would still be no showing of reversible error. Appellants also contend that there was a failure of plaintiffs to prove certain allegations in their complaint. These allegations we find are immaterial to the cause of action. We have considered these and other contentions and find them without merit and not of general interest, so we do not include them in this opinion.

That part of the Judgment Order entered May 10, 1967, in the case of Wm. Metz, et al. v. Dwight H. Doss, et al., No. 65-C-107 which purports to cancel the gas storage lease and the assignments thereof is reversed and vacated since the references to the gas storage lease in the complaint had previously been stricken on Plaintiff’s motion. Therefore, there were no findings to support that part of the Order.

Except as thus provided, the judgment is affirmed.

Appeal dismissed in the cases of Gray v. Walden, et al., Gray, et al. v. Manning, et al., Gray, et al. v. Manning, et al., Gray v. Doss, et al., Phillips, et al. v. Weber, et al., and Walmsley, et al. v. Zeisler, et al.

TEAPP, P. J. and CEA VEN, J., concur.


author: SMITH, J.

text:
    Irene Murray, et al., Plaintiffs-Appellants, v. Estate of Lewis I. Armstrong, et al., Defendants-Appellees.
    Gen. No. 11,079.
    Fourth District.
    October 28, 1969.
    Bernard E. Wall, Campbell, Markowitz, Lawrence & Lenz, of Bloomington (Robert J. Lenz, of counsel), for appellants.
    Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), for appellees.
   SMITH, J.

This is a suit in ejectment filed by remaindermen after the death of a life tenant to compel the defendants to surrender possession of the premises and for a determination of title. The defendants answered the suit and set up two affirmative defenses; to wit, (1) that the defendants have a fee simple title by virtue of a tax deed in their ancestor and (2) that the plaintiffs’ action is barred by the “40-year limitation on claims to real estate” as provided in Ill Rev Stats 1967, c 83, §§ 12.1-12.4. The facts are stipulated. The trial court held that the statute above cited commonly referred to as the Illinois Marketable Title Act operates as a bar to the plaintiffs’ action for ejectment. Neither of the affirmative defenses is a bar to plaintiffs’ suit.

Plaintiffs’ great-grandfather died in 1904 owning the 36.34 acres of real estate in controversy. By his will, he devised it to the heirs of Maude E. Hickman, his granddaughter, subject to her life estate. Maude E. Hickman married one Van De Warker, gave birth to six children, who are the plaintiffs in this case, and two of whom were born prior to the death of her testator. She died on June 29,1966.

In 1910, the real estate was sold at a tax sale by the county clerk of DeWitt County and was purchased by one J. D. Scott, who later assigned it to one Isaac L. Armstrong, an uncle of Maude E. Van De Warker, and a granduncle of the plaintiffs in this case. On July 20, 1912, Maude E. Van De Warker conveyed her life interest in the premises to Isaac Armstrong by a quitclaim deed in consideration of the sum of $300. Armstrong died in 1934, and his wife died in 1946. Their children, the defendants, survive them. The defendants have been in the possession of the premises since their father’s death. After Mrs. Van De Warker’s death on June 29, 1966, the plaintiffs made a demand for possession of the premises, the defendants refused and this suit follows. The trial court held for the defendants and plaintiffs appeal.

The defendants cite Village of Dolton v. First Nat. Bank of Blue Island, 12 Ill2d 435, 147 NE2d 62, as authority for the proposition that since 1951, our Revenue Act changed the authority for the issuance of tax deeds from a ministerial act of the county clerk to a judicial act of the county court and provided that tax deeds issued pursuant to tax sale should be incontestable except by appeal from the order of the court directing the county clerk to issue the deed. Ill Rev Stats 1965, c 120, § 747. Thus, the defendants say that the attitude of our courts toward tax deeds has changed completely, that it is now the policy to protect the purchaser wherever possible and that only in an exceptional circumstance would the tax title be defeated. The effect of this case as authority for defendants’ tax title is eroded by the fact that the tax deed upon which the defendants relied here was issued by the county clerk of DeWitt County as a ministerial act and cannot by any construction be deemed to be a title acquired through a judicial sale. In addition, the tax deed was defective in several respects. As the law then existed, at least three months’ notice had to be given before the expiration of the time of redemption. The affidavit and the records show that the last publication of the notice was on May 17, which was less than three months before the time of redemption which expired on July 12, 1912, nor does the affidavit show any notice by personal service or by publication upon two of the plaintiffs who were in being and minors at the time of the tax proceedings; namely, Harry Van De Warker and Leo Van De Warker. It is unlikely that an uncle was not aware of the whereabouts of these children, or on diligent inquiry could not have found out. He knew where their mother was because he got a deed from her. Isaac L. Armstrong paid §300 for a quitclaim deed from Maude Van De Warker on July 20, 1912, and this in itself suggests that he recognized the tax deed and his tax title to be defective. Defendants fail to show a fee simple title under the tax deed.

We turn now to inquire whether the Illinois Marketable Title Act with its admitted legislative purpose of simplifying and facilitating land title marketability has any application to the facts at bar. The trial court held that it did, and that it barred plaintiffs’ claim to this farm. We think otherwise.

In The Exchange Nat. Bank of Chicago v. Lawndale Nat. Bank of Chicago, 41 Ill2d 316, 243 NE2d 193, the Supreme Court considered the Illinois Marketable Title Act. The litigants each traced their respective titles from different sources. Exchange pleaded that the Illinois Marketable Title Act did not apply to a chain of title founded upon a “wild deed” which they regarded as a chain of title not originating in a grant from the United States. The Supreme Court held that Exchange was correct and that the statute was not intended to apply to a “wild deed” which was not specifically included in the Act as it is in the statutes of some other states and held that the defense of the Illinois Marketable Title Act was not available to Lawndale as a defense. Our statute is, to a great extent, based upon the one in Iowa, and in Lane v. Travelers Ins. Co., 230 Iowa 973, 299 NW 553, the court held that the children of a life tenant were barred of their contingent remainder for failure to comply with the statute similar to the one in Illinois. There is, however, a significant difference between the Iowa statute and the Illinois statute. Both statutes enumerate specific types of sources of title which are protected by the respective statutes. In the Iowa statute, a tax deed is enumerated as one to be protected by the statute, whereas the Illinois statute does not specifically specify tax deeds. It is the general accepted rule that “All changes in words and phrasing will be presumed deliberately made with the purpose to limit, qualify, or enlarge the adopted law. . . .” 82 CJS, Statutes, § 371. An Iowa case construing an Iowa statute specifically applicable to tax deeds is of little weight in considering an Illinois statute designed for the same purpose which omits a tax deed. In addition, in Northwestern Law Review, Vol 61, p 846, footnote 17, the writer of the article discussing this subject makes the further distinction that “Contingent remainders were subject to extinguishment by adverse possession in Iowa, while in Illinois adverse possession does not run against a remainderman until he has the right to possession.” In the case at bar, this was on the death of the life tenant in 1966. Thus Lane is neither authoritative nor persuasive.

It should also be noted that, in addition to persons holding by direct conveyance, those who are considered to hold chain of title are “. . . For the purposes of this Act, any person who holds title to real estate by will or descent from any person who held the title of record to such real estate at the date of his death or who holds title by decree or order of any court, or by deed issued pursuant thereto, i. e., by trustee’s, trustee’s in bankruptcy, conservator’s, guardian’s, executor’s, administrator’s, receiver’s, assignee’s, master’s-in-chancery, or sheriff’s deed shall be deemed to hold chain of title. . . .” Ill Rev Stats 1967, c 83, § 12.1. It should be noted that a tax deed is not included in this list. In addition, the deeds described are those issued pursuant to an order of court. We have already pointed out that the deed issued here on which the defendants rely as a defense was a ministerial deed and not a deed issued by a court order. Defendants’ deed is beyond the pale of the statute and is not protected by it.

Accordingly neither the tax deed nor the Illinois Marketable Title Act, each pleaded as an affirmative defense to the suit of the plaintiffs, is a bar to the suit. It follows therefore that this cause must be reversed and remanded to the trial court with directions to enter a decree in favor of the plaintiffs in accordance to the views herein expressed.

Reversed and remanded.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Garry Lynn Bodine, Defendant-Appellant.
    Gen. No. 11,087.
    Fourth District.
    October 28, 1969.

      Asher O. Geisler, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant and one Richard Tucker were indicted for aggravated battery. Specifically, the indictment charged that “they knowingly and without legal justification caused great bodily harm to one Dane Martin by striking and kicking him about the face, head and body, with their fists and feet.” As to Tucker, this indictment was dismissed prior to the trial of the defendant Bodine. Tucker pleaded guilty to a charge of battery and was fined.

A jury trial of the defendant under this indictment resulted in a verdict of guilty and the defendant was ultimately sentenced to the Illinois State Penitentiary for a term of not less than two nor more than five years. He appeals.

The defendant asserts that the language of the indictment is such as to constitute a joint indictment charging joint action by two persons in the commission of an offense and that since the evidence at the trial showed that, in fact, there were two separate and distinct offenses by two defendants the court should have directed a verdict for the defendant Bodine; further that the dismissal of the indictment as to one defendant required a dismissal of the indictment as to the other.

A brief statement of the evidence is necessary in connection with this contention. Bodine and Tucker were in a tavern in Macon County and there they met Dane Martin and others and engaged in drinking and playing pool. Difficulties in the tavern ultimately resulted in a fight between Tucker and Martin and at the conclusion of that fight, a fight between Bodine and Martin, during the course of which Martin was severely injured.

As we view the indictment, it charges both the defendant and Tucker with the offense of aggravated battery. It does not follow that the dismissal of the charge as against Tucker necessitates the dismissal of the charge as against Bodine. In People v. Tanthorey, 404 Ill 520, 526-527, 89 NE2d 403, 407 (1950), the Supreme Court stated:

. . Indictments, though joint in form, are regarded as a several charge against each defendant, save in those cases where the agency of two or more is of the essence of the offense, and all or a part may be convicted or acquitted. Where a joint offense is not established, the prosecution may be compelled to elect as to which defendant it will proceed against. The election may be by nolle prosequi or voluntary dismissal as to all but one defendant. The indictment will stand as if it had been a separate one. (31 CJ, Indictments and Informations, sec 319D, p 757 [42 CJS, Indictments and Informations, sec 160].) Two or more defendants may be charged in the same indictment where they commit the same offense as principals or where they act as principal and accessory. (People v. Richie, 317 Ill 551 [148 NE 265 (1925)].) They may be joined in the same count. (People v. Sink, 374 Ill 480 [30 NE2d 40 (1940)]; Ill Rev Stats 1947, chap 38, par 582.)

See also: People v. Rogers, 16 Ill2d 175, 157 NE2d 28 (1959); People v. Rohwedder, 78 Ill App2d 211, 223 NE2d 1 (5th Dist 1967).

Under this indictment both the defendant and Tucker were charged with the offense of aggravated battery. The dismissal as to Tucker prior to trial need have no effect on the charge as to Bodine when, as here, there is proof beyond a reasonable doubt of Bodine’s guilt of the charge. See 42 CJS, Indictments and Informations,. § 160.

In the early stages of this case the defendant Bodine moved for a severance. As a result of his motion, separate trials were ordered as to Tucker and Bodine. Thereafter the charge against Tucker was dismissed and he pleaded guilty to the battery offense, this without notice to Bodine. Bodine sought to subpoena Tucker as a witness at the trial. The record indicates that the sheriff was unable to serve the subpoena on Tucker, and Bodine sought a continuance until such time as Tucker could be subpoenaed. The motion for continuance was denied and the denial is asserted to have been an abuse of discretion. We do not agree.

It appears the defendant sought to call Tucker for the purpose of establishing that the charge against him had been dismissed and that Tucker had pleaded guilty to the offense of battery and had been fined. We find no assertion of any other purpose in calling Tucker as a witness. Indeed, for all that appears, that which was sought to be established through Tucker as a witness was ultimately established in the record by stipulation. The disposition of the charge against Tucker would not have been relevant or material in the jury proceedings on the issue of the defendant’s guilt.

It is well established that the granting of a continuance during trial is a matter of discretion of the trial court, and while the denial of a continuance may work a manifest injustice and thereby be an abuse of discretion, we find no such showing in this record. The judgment of the Circuit Court of Macon County is affirmed.

Judgment affirmed.

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


author: CREBS, J.

text:
    Bert Jackson Motors, Inc., a Delaware Corporation, Plaintiff-Appellant, Plaintiff-Appellee, v. Charles Chambers, Pat Hague, Partners, Defendants-Appellees, Cross-Defendants, Appellees, Interstate Fire & Casualty Company, a Corporation, Defendant-Appellee, Cross-Plaintiff, Appellant.
    Gen. No. 11,094.
    Fourth District.
    October 28, 1969.

      Thomson, Thomson & Mirza, and Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Loren Thomson and James T. Foley, of counsel), for appellants.
    Costigan and Wollrab, of Bloomington (James C. Wollrab, of counsel), for appellees.
   CREBS, J.

On July 14, 1967, a Cessna Skylane Aircraft owned by Bert Jackson Motors, Inc., plaintiff, and parked at Bloomington Municipal Airport, was damaged by an aircraft owned and operated by Charles Chambers.

Plaintiff filed a two-count complaint. Count I charged defendant Charles Chambers with negligent operation of his aircraft and sought both cost of repairs and loss of use. Count II was against Interstate Fire & Casualty-Company, a corporation, based on its policy of insurance and sought cost of repairs and attorneys’ fees because of vexatious delay.

The cause was tried before a jury. The court directed a verdict against Interstate as to liability, and the jury assessed plaintiff’s damages under Count II in the sum of $5,287.21. The court awarded attorneys’ fees in the sum of $1,000 for vexatious delay. The jury returned a verdict for defendant, Chambers, on Count I.

Plaintiff appealed from the verdict in favor of Charles Chambers on Count I. Defendant, Interstate, cross-appeals from the judgment entered against it, and also appeals from the order dismissing its cross-complaint against Chambers and from the order denying a motion to reinstate and reconsider its said cross-complaint.

On review, the issues raised by plaintiff are whether defendant Chambers was negligent as a matter of law; whether the verdict was against the manifest weight of the evidence; whether the conduct of Chambers’ counsel at the trial and during argument was prejudicial, and whether the court should have severed the issues as against the two defendants.

The issues raised by defendant, Interstate, are whether, as a matter of law, plaintiff is precluded from recovery under an insurance policy for damage to its aircraft for failure to file a sworn statement of interest and proof of loss; in the alternative, whether such issue should have been presented to the jury; whether the verdict is against the manifest weight of the evidence; whether a new trial should have been granted because the court allowed certain evidence pertaining to plaintiff’s attorneys’ fees before the jury; again, in the alternative, whether the court should vacate the judgment with respect to attorneys’ fees and remit the sum of $1,000 from the judgment; and whether the court erred in striking Interstate’s cross-complaint.

A brief review of the evidence is necessary. As defendant Chambers was approaching the airport by radio he reported that his brakes were soft. On landing, he advised the airport manager concerning his brakes and sought the services of a mechanic. The mechanic was not immediately available and when he was located, he told defendant he could not work on the brakes unless defendant stayed overnight. Defendant did not want to stay, so he inspected his plane by a walk-around inspection, and took off. The plane had a blind spot directly ahead so it was necessary to make gradual turns on takeoff. After a gradual turn to the left, defendant applied the right wheel brake in an attempt to turn the plane back to the right. The right wheel brake pedal went to the floor. He did not try to apply the left wheel brake, but did shut off the motor. His airplane then struck the parked Jackson plane, causing the damage.

Defendant was flown to Chicago later that evening. About a week later he returned and repaired his plane. At that time he found that one of the rubber discs in the wheel cylinder had split, which caused the brake failure. He was qualified as an expert on this type of brake, and gave his opinion that the break was instantaneous and was the cause of this particular brake failure. In his opinion, the brakes were soft because there was air in the brakes and this would not necessarily have anything to do with this particular gasket splitting.

He further testified that landing this type of plane without brakes on one side would normally cause the pilot to be killed or hurt; that he had no advance notice that there would be a loss of brakes before it occurred; that since the wheels are not covered, he could have seen a leak on his walk-around inspection but saw none, and that the plane was in license and had had all required inspections.

This is necessarily a very brief résumé of the evidence. From this evidence the jury could have found negligence. On the other hand, defendant’s evidence, if believed, constitutes a defense. There was no evidence offered to contradict defendant’s opinion testimony, although it appears that defendant’s deposition had been taken before the trial. Under these circumstances, we find no basis to overturn the jury’s verdict as to liability on Count I.

As regards the allegation of misconduct of defendant Chambers’ counsel, we note that no objections were made at the time of trial. We find no conduct in this case sufficiently out of the ordinary to prevent the application of the rule that failure to object constitutes a waiver.

Plaintiff’s last contention is that the court should have severed the issues. The main basis for its motion was that the joint trial would cause delay. However, as soon as the motion for severance was overruled, a certificate of readiness was filed. Plaintiff joined the two counts and cannot now complain on grounds not set forth in its motion for severance.

As regards the cross-appeal of defendant Interstate, a review of the evidence on that point is necessary. On the day following the accident, Mr. Jackson, the president of plaintiff company, notified his insurance agent of the accident. Mr. Jackson, the agent and an adjuster retained by the agent went to the airport to view the damaged aircraft. The adjuster suggested that Mr. Jackson obtain some itemized estimates. An itemized estimate of $5,287.21 was obtained from Walston Aviation and both the adjuster and Mr. Jackson obtained copies of this estimate. Subsequently in August, Mr. Krill of Hobart, Indiana, the owner of Hobart Aircraft Sales and Service, inspected the damage at the request of Mr. Weise who, in turn, was retained by defendant Interstate to adjust the loss, replacing the first adjuster.

Later in August, Mr. Krill called Mr. Jackson and stated that his company would repair the aircraft for $2,930. No written estimate was submitted and there is some dispute as to what was said. Weise testified that he had a conversation with Jackson late in August, wherein he told Jackson he had a firm bid and that Hobart Aircraft was qualified and would guarantee the results. Weise testified that Jackson replied he was not interested in anybody except Walston Aviation to repair his airplane. Jackson denied this alleged conversation with Weise. Next, Jackson retained an attorney. The attorney wrote Interstate September 29 requesting arbitration as provided in the insurance policy and appointing John Herman of Walston Aviation, Inc. as his appraiser.

In a letter dated October 12 to the attorney from Interstate, the company pointed out that John Herman was interested. The letter concluded: “We must therefore, at this time decline your request for appraisal and must continue to do so until the insured does appoint a completely disinterested person to serve as his appraiser in this matter.”

Then, in a letter dated October 24, the attorney named a Mr. Allott as his appraiser and demanded the company select an appraiser within twenty days.

In answer to this letter, Interstate in a letter dated October 31 stated that on carefully reviewing its file, the insured had failed to file sworn statement of proof of interest and loss within the ninety-day period stipulated in condition 9(b) of the policy, setting forth that said period expired on October 12. Plaintiff’s claim was then denied on that basis. It is uncontradicted that no sworn statement of proof of interest and loss was filed within the ninety-day period stipulated in condition 9 (b) of the policy.

In answer to Count II, Interstate again denied liability on the basis of failure to file the statement. The trial judge on the basis of these facts found that the actions of Interstate waived its right to insist upon the statement and he therefore directed a verdict of liability. We agree with this finding. Downing v. Wolverine Ins. Co., 62 Ill App2d 305, 210 NE2d 603; Mitchell v. Orient Ins. Co., 40 Ill App 111.

The denial of liability under these circumstances amounted to vexatious delay under the statute, Ill Rev Stats 1967, c 73, § 767. In view of the amount involved, the maximum fee of $1,000 was reasonable. Interstate objects to evidence concerning attorneys’ fees being heard by the jury. It would appear that this evidence should have been heard by the court. However, the only objection made to this evidence at the trial was that it was immaterial. Thus, Interstate has waived the objection it now seeks to make. Interstate also seeks to assign as error the dismissal of its cross-complaint. The docket entry shows “By agreement Motion to Dismiss Third-Party complaint heard and allowed. Third-Party complaint dismissed without prejudice.” Interstate cannot complain of action taken by agreement. A subsequent motion to reinstate the cross-complaint was not ruled upon by the trial court since counsel failed to call it up for hearing.

As to the amount of the judgment, the jury heard the evidence concerning the two appraisals, and we find no basis to disturb their findings.

Finding no reversible error, judgment is affirmed.

Affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    Anita Caroline Alsen, Plaintiff-Appellant, v. David Stoner, Defendant, Harry B. Stoner, The Valley National Bank of Aurora, and The First National Bank of Batavia, Respondents-Appellees.
    Gen. No. 69-17.
    Second District.
    October 28, 1969.
    Certificate of importance and rehearing denied December 5, 1969.

      Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellant.
    Boodell, Sears, Sugrue & Crowley, of Chicago (Barnabas F. Sears and Gerald M. Sheridan, Jr., of counsel) , for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Anita Caroline Alsen, plaintiff, appeals from an order quashing citations issued under the provisions of Ill Rev Stats 1967, c 110, § 73, and c 110A, § 277. The supplementary proceedings were brought to enforce a purported judgment under the Paternity Act. (Ill Rev Stats 1967, c 106%, §§ 51-66.) Harry B. Stoner, The Valley National Bank of Aurora, and The First National Bank of Batavia were made respondents to the citation petition as holders of assets purporting to be those of David Stoner, the defendant in the paternity suit. The court also held the underlying judgment of paternity void for lack of jurisdiction over David Stoner.

The basic inquiry presented by the proceedings below is whether a paternity action may be initiated by service of a civil summons as well as by warrant; and whether this issue can be reached in a supplementary action to collect the judgment from assets held by third parties.

Plaintiff filed her complaint on October 17th, 1967. A warrant was issued in accordance with the prayer of the complaint, but was returned unexecuted with a recitation that the defendant was not found in the state. On November 3rd, without order of court, the clerk issued a form of summons used in civil cases under the Civil Practice Act. This summons was also returned with a recitation that the defendant was not found.

On November 14th, 1967, another summons was issued which was on the printed form of the usual civil summons, amended to recite that the summons charged an offense under the Paternity Act and requiring the defendant to appear in court at a fixed hour, thirty days after the service of the summons. In addition to the usual clerk’s signature, there was attached an order of court that the defendant be ordered to appear as “above set forth,” signed by the judge. The return of service recites service upon a family member “at the usual place of abode of said defendant,” with summons mailed to the same place.

On January 23rd, 1968, an order of default was entered on the defendant upon his failure to appear. A hearing was then held and a paternity judgment order was entered finding the defendant to be the father of plaintiff’s child as alleged in her complaint, and awarding her the sum of $150 per week for support, and confinement expenses in the amount of $970.85.

The arrearages were reduced to judgment on July 1st, 1968. Thereafter, the court issued a citation to the defendant. The citation was not served on defendant personally but the return recited that it was left with a member of his family at a usual place of abode and a copy mailed there. On July 1st, the court entered an order of default against the defendant for his failure to respond to the citation and entered judgment against him in the amount of $3,525.85. Thereafter, on September 27th, 1968, supplementary proceedings to discover assets were commenced against the three respondents who filed special appearances and motions to quash.

Plaintiff concedes that section 55 of the Paternity Act, supra, provides that upon the filing of a verified complaint the court shall “issue a warrant for the apprehension of the defendant” which may be served in any county of the state. It is also acknowledged that section 64 of the Paternity Act provides that the provisions of the Civil Practice Act shall apply to all proceedings under the Paternity Act, “except as otherwise specifically provided in this Act.”

However, plaintiff argues that there is an alternative procedure established under the provisions of Ill Rev Stats 1967, c 38, § 107-11:

“When authorized to issue a warrant of arrest a court may in lieu thereof issue a summons.”

Respondents maintain that the provisions of the Criminal Code have no application to the prosecution under the Paternity Act which is civil in nature.

The trial judge reasoned that proceedings under the Paternity Act are of a special statutory origin and are independent of the Criminal Code, and are independent of the Civil Practice Act to the extent that specific provisions are found in the Paternity Act. Therefore, he concluded that plaintiff could not get service under the Civil Practice Act because the Paternity Act provided the method for bringing in the defendant. We agree. Remedies which are conferred by statute in derogation of the common law may be enforced only in the manner prescribed in that statute. Kosicki v. S. A. Healy Co., 380 Ill 298, 302, 44 NE2d 27 (1942); Toms v. Lohrentz, 37 Ill App2d 414, 417-18, 185 NE2d 708 (1962); People ex rel. Cantazaro v. Centrone, 48 Ill App2d 484, 485-6, 199 NE2d 226 (1964).

Provisions regarding service of process, arrest, preliminary hearing, binding over for trial and the power to require bond, remain substantially the same under the present Paternity Act as they were under the previous Bastardy Act. See 47 IBJ 826. Cases construing procedures under the former act are applicable to the present. People ex rel. Covington v. Johnson, 79 Ill App2d 266, 269, 224 NE2d 664 (1967).

We believe that the legislative intention to insure the defendant’s presence for examination in open court is clearly evident in the language of the Paternity Act, Ill Rev Stats 1967, c 106%, § 55:

“Upon the filing of a complaint . . . under oath or affirmation before the court, the court shall thereupon issue a warrant for the apprehension of the defendant, . . . which may be served ... in any county. Upon the appearance of the accused and in his presence, the court shaH examine the woman, ... on the charge that he is the father of the child. The accused shall have right to controvert the charge, .... If the court is of the opinion that no sufficient cause is established it shall dismiss the complaint and discharge the accused . . .

Similarly the provisions for bond, and for committing “the accused” to the county jail for his neglect or refusal to give bond and security (Section 55, supra), also point to the reason for the issuance of a warrant rather than civil process.

Respondents have cited an opinion of the Attorney General of Dlinois supporting this view. Illinois Attorney General’s Opinions, 1965, pages 175 and 176:

“It seems clear from the statutory language of the Paternity Act (Illinois Revised Statutes 1963, chapter 106%) that the only method by which jurisdiction of á defendant may be obtained is by the issuance and service of a warrant. There is no provision in the Paternity Act which will permit service of process outside of the State or any method other than by personal service. In Attorney General Opinions, UP 1285, November 6, 1964, it was stated ‘The Paternity Act which requires the appearance of the defendant for both the furnishing of bond and trial of the case, makes absolutely no provision for service by copy or mail, and allows no personal service outside the State. No default judgment is possible in a Paternity action.’ There is a good reason why the examination of the woman should take place upon the appearance and in the presence of the accused. By the very nature of Paternity actions there is difficulty of proof of one’s innocence. A putative father should be present in order that he may offer testimony or other evidence to controvert the testimony and evidence of the complainant. If after hearing the evidence of the complainant and the refuting evidence of the accused, the court is of the opinion that no sufficient cause is established, it shall dismiss and discharge the defendant.
“In my opinion, the only way jurisdiction of the accused can be obtained in a Paternity action pursuant to the Paternity Act is by the issuance and personal service of a warrant. Further, it is my opinion that the accused must be physically present at the Par ternity proceedings in order that he might controvert evidence offered by the complainant.”

Although the opinion, of course, is not binding on the courts, we consider that its reasoning is persuasive and that it is, therefore, entitled to weight in this matter of first impression in the courts of this State. See Strat-O-Seal Mfg. Co. v. Scott, 72 Ill App2d 480, 485, 218 NE 2d 227 (1966); City of Champaign v. Hill, 29 Ill App2d 429, 444, 173 NE2d 839 (1961).

While not applicable on its facts, we find a suggestion of the unique nature of Paternity proceedings, assuming a defendant’s presence in open court, and showing a recognition of the responsibility to admonish a defendant as to the nature and consequences of the charge and his rights to counsel and a jury trial, in People ex rel. Adams v. Sanes, 41 Ill2d 381, 385, 243 NE2d 233 (1968). These admonishment procedures are foreign to civil practice.

Plaintiff cites Poindexter v. Willis, 87 Ill App2d 213, 231 NE2d 1 (1967) as contrary authority.

It is true that in that case defendant was not even a resident of the State of Illinois, did not appear at trial, and there was no preliminary hearing, nor a bond furnished ; also that service of summons was effected in the State of Ohio, and that no warrant was ever served. Plaintiff relies upon the holding of the case that sections 16 and 17 of the Civil Practice Act, providing for service outside the State on one who commits a tortious act within the State, applies to proceedings under the Paternity Act. However, the issue as to whether jurisdiction could be obtained by service of summons was not raised by the parties, nor considered by the court and we do not consider it authority here.

In Toms v. Lohrentz, supra, page 418, we stated:

“Upon the filing of a complaint, the Paternity Act provides that the ‘Court shall thereupon issue a warrant for the apprehension of the defendant.’ This is the only method provided for obtaining jurisdiction of the putative father.”

In that case we were not dealing with the issue which we have before us directly in this case, and the language quoted was used to support the court’s reasoning that an action under the Paternity Act did not survive the death of the putative father. There is, of course, no need to obtain a warrant to insure the appearance of a defendant in court if he appears voluntarily before the court. See People ex rel. Covington v. Johnson, supra, page 270. Here the defendant did not appear in court at any time voluntarily or otherwise.

The process that was finally served by substituted service on the family of the defendant at his place of abode was not the civil summons contemplated under the Civil Practice Act. It provided for an appearance by the defendant in court but at a designated hour, thirty days after its service. It designated a case under the Paternity Act and the Court’s order was endorsed upon it. The further argument of the plaintiff is that it may be sustained as a summons or notice to appear under the provisions of Ill Rev Stats 1967, c 38, §§ 107-11, 107-12. The argument is not persuasive. The particular provisions of the Criminal Code were not in effect when the Paternity Act was adopted in 1957. Moreover, the Code of Criminal Procedure applies only in criminal proceedings (Ill Rev Stats 1967, c 38, § 100-2), while proceedings under the Paternity Act are not criminal actions. People v. Glees, 322 Ill 189, 190, 152 NE 575 (1926). It should also be noted that the procedure under section 107-11 is for the purpose of getting a party into court without the necessity and inconvenience of an immediate arrest, and the procedure contemplates that if he does not so appear, the court can only obtain jurisdiction by the issuance and personal service of a warrant. See Committee Comments, SHA c 38, §§ 107-11, 107-12.

Plaintiff argues, with considerable ingenuity, that since the Paternity Act provides for no form of warrant or any manner of service, it would be necessary in a normal paternity prosecution to look to the Code of Criminal Procedure for such provisions, and that you would therefore look to the same Code for the alternative to a warrant. For the reasons, which we have already noted, we do not believe that the Paternity Act contemplates the adoption of the procedure under the Criminal Code. The term “warrant” used in the Paternity Act has a well known and accepted meaning apart from reference to any other legislation as “particularly, a writ or precept issued by . . . competent authority, addressed to a sheriff, constable, or other officer, requiring him to arrest the body of a person therein named, and bring him before the magistrate or court, to answer, or to be examined, touching some offense which he is charged with having committed.” Black’s Law Dictionary, 4th Ed, Page 1756.

We conclude that the failure to serve the defendant, David Stoner, by a warrant in the paternity action deprived the court of jurisdiction to enter the paternity judgment. While the defendant might have conferred the necessary jurisdiction upon the court, if he had generally appeared in response to the purported process, he did not do so.

We do not consider any questions as to the form of supplementary proceedings to collect the accrued support payments. In our view, the failure to serve a warrant under the Paternity Act was a jurisdictional defect, and not a mere irregularity, making the original judgment void. Supplementary proceedings to collect, of whatever nature, must derive their support from the main judgment, and if the main judgment fails the right to collect in such proceedings must also fail. Dennison v. Taylor, 142 Ill 45, 56-7, 31 NE 148 (1892); First Nat. Bank of Palatine v. Hahnemann Institutions of Chicago, Inc., 356 Ill 366, 370, 190 NE 707 (1934); Thomas v. Kowalewski, 12 Ill App2d 283, 289, 139 NE2d 604 (1957).

We affirm the judgment of the court below.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.


author: JUSTICE SEIDENFELD.

text:
    Woolbright, Inc., a Corporation, Plaintiff-Appellee, v. Edwin H. Sarver, Defendant-Appellant.
    Gen. No. 69-23.
    Second District.
    October 28, 1969.
    Roszkowski and Paddock, of Rockford, for appellant; Paul F. O’Neil of Rochelle, and Gunner & Keller, of Dixon, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: PRESIDING JUSTICE THOMAS J. MORAN

text:
    Village of Fox River Grove, Plaintiff-Appellee, v. Aluminum Coil Anodizing Corporation, Defendant-Appellant.
    Gen. No. 69-42.
    Second District.
    October 28, 1969.
    Rehearing denied November 26, 1969.

      Charles F. Marino, of Chicago, for appellant.
    Regina F. Narusis, of Cary, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

The defendant was found guilty of violating one of plaintiff’s ordinances relating to the discharge of waste into its public sewer and fined $200.

On review, it is contended that (1) the ordinance and ■ action of the plaintiff violated the due process requirements of the Federal and State Constitutions because (a) the ordinance was unreasonable in prohibiting any waste, with a pH count of less than 5.5, from being discharged into the public sewer without reference as to whether the quantity of discharge is sufficient to cause damage and (b) the plaintiff acted unreasonably by repealing a former ordinance upon the subject that provided for notice and a reasonable time to correct any violation and (2) the plaintiff failed to prove a clear violation of the ordinance because (a) no proof was introduced that the alleged wastes were discharged into a public sewer and (b) the proof that the wastes contained a pH count of 2.4 was insufficient.

The pertinent portions of the ordinance under attack provide in part as follows:

“. . . no person shall discharge or cause to be discharged any of the following described waters or wastes to any public sewer:
(t • • •
“(f) Any waters or wastes having a pH lower than (5.5) or higher than (9.0), or having any other corrosive property capable of causing damage or hazard to structures, equipment, and personnel of the sewage works. . . .”

Only two witnesses appeared at the trial, both on behalf of the plaintiff. The first witness, a sanitary engineer employed by the Illinois Department of Public Health, testified that, in company with another man, he took approximately 500 millimeter of waste water from a manhole in the building sewer of the defendant company. About half of that amount was sent to his department’s laboratory in Springfield for analysis. In the presence of the witness, the other man checked the remainder of the amount taken by using litmus paper. In comparing the changed color of the litmus paper with a graph, it was determined that the pH quantity of the material was between 2.0 and 3.0. The quantity sent to Springfield was tested, utilizing the glass electrode which is the best known method, and the results indicated a pH of 2.4.

The defendant first argues that the ordinance is unconstitutional or, in any event, unreasonable because it prohibits the discharge of “any” waste. We do not so read the ordinance. The ordinance does not prohibit the discharge of any waste. Indeed, waste having a pH between 5.5 and 9.0 may be discharged in any quantity. It is only those wastes which have a pH of less than 5.5 or more than 9.0 which are prohibited. For purposes of understanding, the number 7.0 indicates a neutral water or waste. A lower number indicates an acid water or waste and a higher number, an alkali water or waste, so that a water or waste with a rating of 6.0 would contain acid but it would be permitted under the ordinance. On the record before us we cannot say that this is an unreasonable rule.

The corporate authorities of each municipality have power to regulate the construction, repair and use of sewers, section 11-20-10 and section 11-109-1 of the Municipal Code (111 Rev Stats 1967, c 24, §§ 11-20-10 and 11-109-1) and to make and enforce all necessary rules and regulations for the care and protection of its sewerage system, section 11-141-7 of the Municipal Code (Ill Rev Stats 1967, c 24, § 11-141-7). In short, the corporate authorities have adequate legislative power and they have exercised that power in a reasonable manner, The City of Nokomis v. Sullivan, 14 Ill2d 417, 422-423, 153 NE2d 48 (1958).

Before the adoption of the current ordinance, the plaintiff had an ordinance on the same subject matter which provided for a written notice of violation and an opportunity to the person to whom the notice was directed to correct the condition. Sometime prior to the violation herein charged, that ordinance was repealed and the ordinance, under which this proceeding commenced, simply provided the usual fine without previous notice or right of correction. Defendant argues that it is unreasonable to repeal a notice provision of the ordinance and unreasonable not to give a reasonable time to correct violations. The defendant cites no authority for this proposition and, indeed, there is none. The amendatory ordinance was published and this is notice to the world of its existence. The plaintiff is not required to give any other notice or to permit a reasonable time to correct violations.

The defendant next argues that the plaintiff did not prove a violation in that it failed to prove that the waste in question was discharged into a public sewer and that the proof regarding the pH content of the waste in question was insufficient. Unfortunately, these arguments were not made in the trial court and need not be considered by us. Be that as it may, the record indicates clearly that the waste was found to be discharged into the public sewer and that the only two tests taken indicated that the waste did not meet the standard established by the ordinance. The defendant did not offer any expert testimony, it did not offer any evidence that the discharge was not directed into a public sewer. In fact, it did not offer any evidence at all. The trial court specifically found that the plaintiff had sustained its burden of proof and proved a violation of the ordinance. That finding is not against the manifest weight of the evidence and it is, therefore, affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: CRAVEN, J., SMITH, J.

text:
    People of the State of Illinois, Plaintiff, v. James Crawford, Defendant. People of the State of Illinois, Plaintiff-Appellee, v. Richard A. Hollis, Contemnor-Appellant.
    Gen. No. 11,160.
    Fourth District.
    October 30, 1969.

      SMITH, J., dissenting.
    Richard A. Hollis, State’s Attorney of Sangamon County, pro se, of Springfield, appellant.
    Charles H. Delano, of Springfield, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The issue in this case is the permissible scope of an order for pretrial discovery in a criminal case. The defendant Crawford was indicted for the offenses of aggravated battery and battery. He filed a pretrial motion for discovery requesting a list of witnesses, physical evidence, written confessions and a list of witnesses to any oral confessions. This motion was allowed and there was compliance. Subsequently the defendant moved for further discovery seeking a copy of all statements of any witnesses, a copy of all memoranda of oral statements of witnesses together with a list of witnesses to any oral witness statements, and an inspection by the court of the State’s file to determine the existence of any statements, and also an inspection by the court of all police files to determine the existence of any such witness statements, and for a copy of police reports regarding these matters. Ultimately this motion was allowed and the State’s Attorney was ordered to comply within a specified time. Upon his refusal to comply with the order the State’s Attorney was found guilty of contempt of court and a fine of $10 was imposed. The State’s Attorney appeals.

It was and is the position of the State’s Attorney that the allowance of the second motion and the order based thereon were void for the reason that there was no legislation, Supreme Court Rule or Supreme Court decision requiring a State’s Attorney to furnish the information there requested, and that in the absence of such precedent the trial court was without authority to allow the motion, enter the order and make the finding of contempt.

In his memorandum opinion the trial judge indicates that there is a variation in various counties as to the availability to a defendant of information in the State’s file. In some cases State’s Attorneys appear to have an “open file” policy and motions for discovery are unnecessary. Further, it appears that even within the same county the amount of information given to a defendant from the State’s file varies from case to case in that county. Indeed in the oral argument of this case the State’s Attorney, with commendable candor, asserted that he often makes witnesses’ statements available to some defendants in some cases, but not in all cases.

We believe it to be self-evident that the nature and extent of preparation for defense are necessarily dependent upon the quality and quantity of pretrial discovery available to the defendant. It is equally self-evident that the reality of “plea negotiation” makes such information relevant to the defendant’s subsequent course of conduct —whether a plea of guilty, a bench trial or a jury trial.

Paragraph 114-13 of chapter 38, Ill Rev Stats 1967, provides that discovery procedures in criminal cases shall be in accordance with Supreme Court Rules. There are no Supreme Court Rules on discovery in criminal cases. The nonexistence of such Rules suggests to us that the Supreme Court has determined that discovery in criminal cases should be on a case-by-case basis, at least until the emerging principles relevant to pretrial discovery surface and take form. We are fully aware that able jurists, law professors, attorneys and others are examining into and suggesting changes in the administration of criminal justice. Rules for criminal discovery in the federal system are in experimental states of development (see 1 ALR Fed 252) and the variables to be found from state to state seem infinite. See 7 ALR3d 8.

In this connection we note the tentative draft of “Standards Relating to Discovery and Procedure Before Trial” issued by the American Bar Association Project on Minimum Standards for Criminal Justice, published in 1969. The rules for pretrial discovery in criminal cases, unanimously adopted by a distinguished committee, are prefaced by the observation that the extensive discovery there recommended was broader than that used in any jurisdiction in the United States and was designed to correct general dissatisfactions with criminal litigation. See: ABA Standards, Discovery and Procedure Before Trial (Tentative Draft, 1969), p 2 et seq.; 64 Harv L Rev 1011 (1951); State v. Tune, 13 NJ 203, 98 A2d 881 (1953).

The Hlinois cases on the issue of pretrial discovery, discovery and the use of witness statements for impeachment were reviewed by this court in People v. Endress, 106 Ill App2d 217, 245 NE2d 26 (4th Dist 1969). In People v. Cagle, 41 Ill2d 528, 244 NE2d 200 (1969), our Supreme Court reviewed the same issue in the light of the recent United States Supreme Court decisions in Giles v. Maryland, 386 US 66, 17 L Ed2d 737, 87 S Ct 793, (1967), and Brady v. Maryland, 373 US 83, 10 L Ed2d 215, 83 S Ct 1194 (1963). The court, in Cagle, spoke of the Illinois rule relating to the use of statements, at least for impeachment purposes, as encompassed in the Illinois decisions of People v. Moses, 11 Ill2d 84, 142 NE2d 1 (1957), and People v. Wolff, 19 Ill2d 318, 167 NE2d 197, cert den, 364 US 874, 5 L Ed2d 96, 81 S Ct 119 (1960), and then observed:

“Defense counsel argues that the Illinois rule limiting the use of such favorable reports to impeachment purposes at the time of trial is too restrictive in that it hinders trial preparation and therefore violates the due process requirements for a fair trial. In the view we take of this case it is not necessary to consider that issue, since the trial court here failed to follow the Illinois rule, and in effect precluded the use of the favorable police report, even for impeachment purposes. In our judgment such action was tantamount to a suppression of evidence and itself constituted a violation of the due process clause. Giles v. Maryland, 386 US 66, 100, 17 L Ed2d 737, 87 S Ct 793 [(1967)]; Brady v. Maryland, 373 US 83, 87, 10 L Ed2d 215, 83 S Ct 1194 [(1963)] ; Napue v. Illinois, 360 US 264, 269, 3 L Ed2d 1217, 79 S Ct 1173 [(1959)]; People v. Wolff, 19 Ill2d 318, 323 [167 NE2d 197, cert denied, 364 US 874, 5 L Ed2d 96, 81 S Ct 119 (I960)]. . . .” People v. Cagle, 41 Ill2d 528, 534-535, 244 NE2d 200, 203 (1969).

In People v. Tribbett, we concluded that it was error for a trial court to refuse the request of the defendant to inspect, prior to trial, items of physical evidence. People v. Tribbett, 90 Ill App2d 296, 232 NE2d 523 (4th Dist 1967). The Supreme Court granted leave to appeal but found it unnecessary to consider the discovery aspect of the case. (41 Ill2d 267, 242 NE2d 249 (1968).) We read the opinion, however, as we observed in Endress, to be an indication that the defendant had the right to the pretrial discovery there requested. See also: People v. Hoffman, 32 Ill2d 96, 203 NE2d 873 (1965); People v. Watson, 36 Ill2d 228, 221 NE2d 645 (1966).

Many of the cases cited by the People for the proposition that pretrial discovery is not available to a defendant in criminal cases in Illinois were discussed and cited by us in Endress.

In Endress the issue related to the discovery of items of physical evidence which the prosecution intended to introduce at trial. The order here is more encompassing than the order in Endress. Our observation in Endress and Tribbett that a trial court has the inherent authority in appropriate cases to order pretrial discovery need not be limited to items of physical evidence when further discovery is deemed necessary in order to ensure a defendant a fair trial.

Viewing the language in Cagle in the light of the Giles and Brady cases, it seems fair to conclude that the inherent authority of the trial court need not be limited to the question of statements to be used for impeachment. The cases of People v. Hoagland, 83 Ill App2d 231, 227 NE2d 111 (2nd Dist 1967), and People v. Hall, 83 Ill App2d 402, 227 NE2d 773 (3rd Dist 1967), limiting such discovery to discovery at the time of trial and for impeachment purposes only, may thus not now be persuasive authority.

The brief of the State further asserts that “Pretrial discovery of the nature requested in this case should not be allowed to a defendant until such time as the State is allowed the same type of discover [sic] from the defendant. ...” No issue of the right of the prosecution to discovery is presented by this case for the reason that no motion for discovery was made by the prosecution. It would thus be an academic exercise for this court to speculate upon the issue of discovery by the prosecution and the scope of such discovery and the limitations that might arise by reason of the defendant’s right under the Fifth Amendment. In this connection, see Part III at (16-17) of the tentative draft of Minimum Standards Relating to Discovery and Procedure Before Trial. See also: 30 ALR 2d 480; Jones v. Superior Court, 58 Cal2d 56, 372 P2d 919, 22 Cal Rptr 879 (1962).

Failure to grant discovery or severe limitations upon pretrial discovery limiting the same to statements used for impeachment tend not to lend finality to the disposition of criminal cases. It is clear now that the failure to make available to a defendant evidence which would be of substantial benefit to him and which could materially affect the outcome of the case may result in the loss of a conviction. Limitation of discovery to statements at trial for impeachment can result in unwarranted trial delay and a severe limitation upon the effective use of such statements. Cases that illustrate the problem are: People v. Hoffman; People v. Cagle; People v. Sumner, 72 Ill App2d 258, 218 NE2d 236 (4th Dist 1966), revd and remanded, People v. Sumner, — Ill2d —, — NE2d — (1969). The last cited case, although clearly referring to the availability of a statement for impeachment purposes, amply illustrates the possible consequences attendant upon limitations of discovery. In Sumner the trial court failed to require the prosecution to furnish certain requested pretrial statements. There was an appeal and this court remanded to determine the availability and producibility as well as the relevancy of the statements and if the denial of the statements might reasonably have affected the verdict to grant the defendant a new trial. Upon remand the trial court determined the existence and producibility of the statements but that there was no prejudicial error in the failure to produce them for use in impeachment. Upon further appeal, we affirmed (92 Ill App2d 386, 234 NE2d 537 (1968)). The Supreme Court granted leave to appeal and reversed and remanded for a new trial. In the course of its opinion the Supreme Court made reference to the American Bar Association Standards Relating to Discovery and equated the refusal of the prosecution to produce the statements with suppression of evidence which deprived the defendant of due process in the context of Brady v. Maryland.

We view this case in the context of the authority of the trial court to order pretrial discovery in order to ensure the defendant a fair trial. It is not the prerogative of this court to promulgate rules relating to discovery in criminal cases, nor do we here assert the existence of such authority in this court. We have concluded, however, that the trial court has the authority to order discovery and that that authority is inherent and is based upon the affirmative duty to afford the defendant a fair trial. The motion for discovery here is very broad and the order allows the motion in general terms. While the order is not void for want of authority, necessarily issues will arise in the circuit court as to the specifics of items discoverable. Such issues must be resolved in the trial court and resolution of those issues must be determined upon a case-by-case and indeed possibly upon an item-by-item basis. Thus this case must be remanded to the circuit court for further proceedings on the discovery issue.

The refusal of the State’s Attorney to obey the instant order is not such as can in any way be characterized as wilful contempt. It is clear that the State’s Attorney’s noncompliance was a good faith condition precedent to ascertain the nature and scope of permissible pretrial discovery in criminal cases. Thus in this case, as in Endress, it is appropriate that the order imposing a sanction be vacated upon compliance. This case is, therefore, remanded to the Circuit Court of Sangamon County for further proceedings consistent with the views herein expressed.

Order for discovery affirmed; cause remanded to the Circuit Court of Sangamon County for further proceedings.

TRAPP, P. J., concurs.

SMITH, J., dissenting.

SMITH, J.

dissenting:

“Shoemaker, stick to your last.” This proverb is contained in Natural History Book 35, § 84, by Pliny the Elder (AD 23-79), and referred to in Plutarch’s “Moral-is.” Hoary and. timeworn as it is, it epitomizes my reasons for reversing this case outright. I would reverse both judgment orders and remand for further appropriate proceedings. In so doing, I do not recede from the position previously taken by this court in Tribbett, En-dress and Sumner I. In each of those cases we were dealing with specifics. In each of those cases we relied upon the inherent power of a trial court to insure a defendant a fair trial or upon case law indicating the propriety of the principles announced in those cases. In none of them did we come close to considering the sweeping motion and the sweeping order that we review here. There we were passing upon questions of what is discoverable and how to get it. In the case at bar, the sole issue before us on the question of pretrial discovery is not what the defendant is entitled to discover, but rather the method to be used to determine whether or not there is anything to discover and how to get it.

Chapter 38, § 114-13, Ill Rev Stats 1967, provides that discovery procedures in criminal cases shall be in accordance with Supreme Court rules. Whether this statute be regarded as a grant of authority or a statement of public policy, it implies nowhere that a trial court has the authority to initiate discovery rules nor that this court may do so. While the majority disavows that they are establishing a rule or have any authority to do so, they are in fact promulgating a threefold rule which has the effect of (1) permitting discovery of material not heretofore discoverable in this State under any decision, rule or statute, (2) requiring the State’s Attorney to state whether he has any such material or to disclaim its existence, and (3) if he disclaims its existence in whole or in part, require him to produce his file so that the court may determine whether or not there is anything worthwhile to be turned over to the defendant. In his memorandum opinion, the trial court states that the defendant cannot have a fair trial without pretrial discovery and that it is his belief that we have progressed to a point where the defendant is entitled to such pretrial discovery. By its approval of the trial court’s order, the majority opinion apparently subscribes to that doctrine. There are no facts in the trial court’s opinion nor in the majority opinion upon which to base such a conclusion, unless it can now be said that pretrial discovery in every criminal case is an essential to a fair trial. Facetious argument suggests that it necessarily follows that the trials heretofore held in this State during the past 150 years without pretrial discovery have not been fair trials. Such a conclusion, of course, is nonsense. It is equally nonsensical to lay down a rule that pretrial discovery in every case is an essential to a fair trial. If the trial court’s order is approved here, we announce a rule or a policy that unlimited pretrial discovery is necessary for a fair trial in every case. In so doing, we usurp the authority that rests with the Supreme Court, not with either the trial court or this court. It is a practice and a rule that is a far-reaching departure from any practice or procedure which has been heretofore followed or approved anywhere in this State.

I have no quarrel with the proposition that the State’s Attorney may, if he opts, open his file to the defendant, to the defendant’s attorney, or to anybody else, and a police department may do likewise. Under our system of jurisprudence, the obligation that the guilty as well as the innocent receive a fair trial is an essential part of the obligation of the State’s Attorney and his associated law enforcing agencies. I would therefore issue a caveat to State’s Attorneys that the failure to disclose to a defendant information which would substantially affect the innocence or guilt of such defendant, retard or deprive him of a proper defense or perhaps even affect his punishment may under the authorities cited in the majority opinion result in punishment for contempt, the loss of a conviction, a retrial or a dismissal of the case. If whenever and wherever prosecutorial misconduct, malfeasance or misfeasance occurs in this obligation of the State’s Attorney, then the sanctions of either the trial court or this court should be swift, certain and appropriate.

A reasonable acquiescence in these principles by the prosecuting agencies will avoid the never ending post-conviction hearings which are worrisome, wearisome, and exhausting to both the trial courts and reviewing courts.

I entertain no doubt but that the trial court and the majority seek a fair trial. So do I. We part company on how it is to be assured. I cannot subscribe to the doctrine that pretrial discovery is necessary to insure a fair trial in every case. I cannot subscribe to the proposition that pretrial discovery is required in this case. There is nothing in this record except the unsupported conclusion of the trial court and its affirmance by the majority opinion that it is necessary to insure a fair trial. Grant it where necessary to a fair trial; deny it where it is patently only a trial tactic. By reversal, the trial of the principal case will be resumed in the trial court. The State’s Attorney may then do a little soul searching and either comply with the principles stated here or realize that a conviction otherwise obtained is stillborn. In the meantime, the trial court and this court should “stick to their lasts,” i. e., attend to our own proper business of trial and review, respectively, and not assume the prerogative of the Supreme Court, either to promulgate a far-reaching rule or to establish a far-reaching policy on pretrial discovery.


text:
    Irma M. Paulsen, Plaintiff-Appellee, v. Gateway Transportation Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 69-41.
    Second District.
    November 4, 1969.

      Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellant.
    Russell J. Goldman and R. A. Jacobsen, of Rockford, for appellee.
   PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This is an action for personal injuries arising out of an auto accident on July 20, 1965. In the trial of this case the plaintiff proved medical bills amounting to $1,318.30, and claimed lost wages of $2,800 in addition thereto. The jury returned a verdict of $37,500 on behalf of the plaintiff upon her claim that the accident occasioned the surgical removal of an intervertebral disc in February of 1966. The accident occurred when the defendant’s tractor-trailer struck the rear end of plaintiff’s vehicle, driving it into a vehicle in front of her.

Two assignments of error are made. Both concern the conduct of plaintiff’s counsel; first, in his examination of the plaintiff during the trial and second, during his argument to the jury.

The record discloses that the court reporter was not present at the time of plaintiff’s opening statement and defendant’s closing argument, “. . . but was called in by the Court in the middle of Mr. Goldman’s final argument before the jury. . . .” Plaintiff, in her brief, states “. . . the court can read the same and decide whether or not the trial judge erred in his judgment. ... It should also be noted that only part of plaintiff’s closing argument was reported and none of the appellant’s argument to the jury was reported, and, therefore, is not subject to review by the Appellate Court.”

The plaintiff has not cited any authority for this proposition; however, in the case of Brown v. Schintz, 98 Ill App 452, 455 (1901) it was held:

“Although the transcript of record is not complete as to the whole case, yet if it fully and fairly presents all matters material and necessary for a decision of the questions involved, under the assignments of error, it is enough.” (Citations omitted.)

The Brown case was later affirmed by the Supreme Court, 202 Ill 509, 67 NE 172 (1903), and in quoting from an earlier case of Bertrand v. Taylor, 87 Ill 235, it had this to add at pages 512-513:

“ ‘. . . This court cannot properly consider any question arising upon the record unless we have a full record before us, or it is made known to us in some approved manner that the transcript contains all parts of the record material to the question submitted to us for decision.’ ” (Emphasis added.)

The defendant relies upon only the transcribed portion of the plaintiff’s closing argument to present one of his questions of error. Even if the closing remarks of defendant’s counsel were of such a nature as to provoke the final remarks of plaintiff’s counsel, which is not claimed herein, still, under the Brown case, an “approved manner” for making such instance known to this Court would be for the plaintiff to use Supreme Court Rule 323(c). We, therefore, find no merit to plaintiff’s contention in this regard.

Some excerpts of plaintiff’s closing argument to the jury, which are mostly directed at defense counsel, are as follows:

“Is that fair, ladies and gentlemen of the jury to try and deprive this poor widow of whatever she has coming? . . .
“Would you want that to happen to you, to be treated that way?”
Counsel referred to defense counsel as “. . . this man who plays fast and loose with the facts in this case, such as counsel has done.” The court overruled an objection and plaintiff’s counsel then continued:
“Think about all of that. Think about it. It isn’t decent, it isn’t fair. He is trying to change the facts by trickery, he is trying to change the situation, he is trying to color the facts, to distort the facts and take them out of context.
“But I’m up to his gimmicks, I’m up to his tricks.”
While referring to a doctor who had testified on behalf of the plaintiff, counsel, directing his remarks at defense counsel, observed the doctor had: “. . . graduated from medical school in 1928 before this guy was bom.”
Shortly thereafter counsel argued, “. . . And while that doctor was doing that very thing for his country (referring to the fact that the doctor was a surgeon in a field hospital during the war), this attorney, the attorney for the defendants had just gotten out of his rompers and was an escapee from a playpen.”
Continuing on about the doctor, counsel stated: “. . . But to now come in and find after all those 42 years of practice and a member of all these learned medical societies in connection with his profession, and find this young man who was not even bom when he started to practice medicine, who was just getting out of his rompers when the doctor was in the Army. . . .”
In referring to defense counsel’s examination of the plaintiff’s physician and a myelogram examination, plaintiff’s counsel argued, “. . . Then Mr. Stem asked the doctor, getting back to Mrs. Paulsen, whether or not she should have a myelogram, and again they had to torture her some more. They, are not satisfied that they put her in the hospital and caused her one operation which laid her up for ten months, now they want to subject her to this horrifying, terrible ordeal of another jab with the needle into her back and go through that again. That is what they want to do, and the doctor tells you absolutely not, it can’t be done.
“. . . Ladies and gentlemen of the Jury, he has the temerity, the guts, the gall to bring it up time and time again about this arthritic condition. . . .”

While other objections were made, the only objection to the foregoing statements is noted and set out above. Appellee maintains that counsel waived any objection because he failed to object at the time of trial.

Certainly it is the duty of counsel to promptly object to improper conduct or argument in order that both parties receive a fair trial of the legal issues present. It is the duty of the trial court to control the proceedings to the extent necessary to insure this result. In a proper case the court has the duty to act promptly to stop misconduct. If the argument of counsel is seriously prejudicial, the court on its own motion should stop the argument and direct the jury not to consider it.

In a clear case, this court will reverse a judgment because of improper conduct and prejudicial statements even though timely objections have been granted and the jury instructed to disregard the remarks. In a case where prejudicial arguments or improper conduct of counsel affect the case to the extent that the litigants cannot receive a fair trial and the judicial process suffers deterioration, this court may consider such an assignment of error even though no objection was made and no ruling made or preserved thereupon by court or counsel. (Belfield v. Coop, 8 Ill2d 293, 311-313, 134 NE2d 249 (1956).)

This court may thus consider the assignment of error notwithstanding the failure of the defense attorney to object to each statement. The attacks were clearly attacks upon defense counsel. It is obvious that the above remarks have no application to any issue in the case. This court views remarks of plaintiff’s counsel as an unwarranted characterization of defendant’s counsel and a successful effort to belittle, impugn and ridicule him and thus deprive the defendant of fair treatment by the jury.

The constitutional right of trial by jury is not a license to counsel to indulge in abusive and prejudicial conduct to gain a verdict, nor does it grant any privilege to embarrass, belittle and abuse an adversary before a jury to such an extent that the hope of the adversary to obtain respectful consideration at the hands of the jury is destroyed or seriously jeopardized. Vujovich v. Chicago Transit Authority, 6 Ill App2d 115, 122-123, 126 NE2d 731 (1955); Vandaveer v. Norfolk & Western Ry. Co., 78 Ill App2d 186, 207-208, 222 NE2d 897 (1966).

In this court’s view of the case, the conduct of counsel and the verdict leads us to the conclusion that plaintiff’s counsel was successful and that the prejudicial argument had an obvious prejudicial effect upon the jury.

Defendant assigns, as further error, two other incidents which occurred during trial.

First, in his direct examination of the plaintiff, her counsel established that she was a widow since 1951 with two children, 18 and 30 years of age. He then inquired:

Q. “And this boy has been living with you ever since he was born, the 30 year old one?”
A: “Yes.”
Q: “What is his condition ?”
A: “You mean, the older boy ?”
Q: “Yes.”
A: “He is a quadraplegic.”
Q: “And you are his sole support?”
A: “Yes.”

Second, defendant complains that, in his closing argument to the jury, plaintiff’s attorney referred to the plaintiff as a “poor widow.”

Because of our prior conclusion it is not necessary to discuss at length the propriety of the above two assignments of error. However, the court suggests some guidelines for the retrial of this case. The mere statement, upon direct examination, that the plaintiff was a widow is not in itself prejudicial. The fact that she is the sole care of a quadraplegic son was not an issue in this case and certainly should be avoided upon the retrial. The reference to the plaintiff as a “poor widow” in the closing argument is an obvious effort at sympathy and prejudice. All of the foregoing taken together could easily be considered reversible error.

The judgment of the trial court denying the post-trial motion for a new trial is reversed and the cause remanded for a new trial in accordance with this decision.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.