text:
    The Village of Gulfport, Henderson County, Illinois, Petitioner-Appellant, v. Mary Buettner, Defendant-Appellee, and Gladstone Grain Company, Intervening Petitioner-Appellee.
    Gen. No. 68-90.
    Third District.
    September 17, 1969.

      Vilas C. Rice, of Carthage, for appellant.
    Love, Beal & Pratt, of Monmouth, for appellee.
   RYAN, J.

This is a condemnation proceeding to acquire approximately 2% acres of land on the Mississippi River to be used for a harbor for recreational use pursuant to the authority of Illinois Revised Statutes 1967, c 24, § 11-92-1 et seq.

The plaintiff filed a petition to condemn the real estate alleging that the Village of Gulfport had adopted a resolution to establish a harbor and to acquire the real estate and alleged the legal description of the same; that the petitioner had been unable to agree with the defendant as to compensation and prayed that just compensation to be paid to the owners be ascertained by a jury. A copy of the resolution of the village was attached to the petition. The resolution recited the lack of launching or docking facilities in the village for watercraft and that the village contemplates establishing a small boat harbor or marina for the benefit of the residents of the village. It then resolved that the city proceed to acquire by negotiation or condemnation, legal title to the real estate which was described therein.

Numerous pleadings were filed, none of which are involved herein. However, defendant, Buettner, the owner of the real estate filed a motion to dismiss alleging the lack of authority to condemn for various deficiencies. Evidence was taken in support of the motion to dismiss. The court then entered an order dismissing the petition, which order included certain findings of fact which in the court’s opinion showed the lack of authority of the village to condemn the property. One such finding of fact was that there was no record of any prior approval of the Department of Public Works of the State of Illinois nor of the proper officials of the United States Government for the acquisition or construction of a harbor as required by chapter 24, section 11-92-2, Ill Rev Stats 1967. Thereafter, the petitioner asked leave to file an amendment to his petition which amendment alleged conditional approval of the project as contained in correspondence from the Department of Public Works and Buildings of the State of Elinois and from the Corps of Engineers of the Department of the Army. Copies of the letters were attached to the proposed amendment.

The court denied the petitioner’s motion for leave to amend and dismissed the petition with prejudice. This order, as well as the earlier order, contained several findings of fact which the trial court deemed jurisdictional. We find it unnecessary to the determination of this case to discuss each finding of fact or to review the determination of the trial court as to the jurisdictional aspect of each finding individually. However, before considering any of the substantive questions presented, we must consider a procedural question. Did the court commit reversible error in denying petitioner’s motion for leave to amend the petition? We do not think this action of the trial court constituted error.

Ill Rev Stats 1967, c 47, § 5 provides that in a proceeding under the Eminent Domain Act, amendments to the petition may be permitted whenever necessary to a fair and final determination of the questions involved. We are of the opinion that the same liberality should be exercised in allowing amendments under this statutory provision as is extended to pleaders in allowing amendments under the provisions of section 46 of the Civil Practice Act (Ill Rev Stats, c 110, § 46). The power to allow amendments should be liberally exercised in favor of allowing such new pleadings as are essential to the presentation of the parties’ cause of action or defense. Irwin v. Omar Bakeries, Inc., 48 Ill App2d 297, 198 NE2d 700; Department of Public Works and Buildings v. Greenlee, 63 Ill App2d 425, 211 NE2d 771. We likewise believe that under the Eminent Domain Act, as under the Civil Practice Act, the trial judge’s exercise of discretion in allowing amendments will not be disturbed unless there has been a clear abuse of discretion. Deasey v. City of Chicago, 412 Ill 151, 105 NE2d 727; Irwin v. Omar Bakeries, Inc., supra; Department of Public Works and Buildings v. Greenlee, supra.

Among many trial practitioners it is considered a more orderly procedure to allow a proposed amendment to a pleading and then to test the sufficiency of the amended pleading by a motion to dismiss. However, when passing upon a motion for leave to amend as well as when considering a motion to dismiss the court may consider the ultimate efficacy of a claim as stated in the proposed amended pleading. Deasey v. City of Chicago, supra. If the proposed amendment does not remedy an obvious defect in the pleading of which amendment is sought it is not an abuse of discretion for the trial court to deny the same.

In the case at bar the proposed amendment dealt only with the question of the conditional consent of the state and federal authorities which the statute requires before an improvement such as the one proposed may be undertaken. This proposed amendment obviously did not touch upon other jurisdictional defects in the condemnation proceeding which had been enumerated in the findings of the trial court and which defects we consider crucial and shall discuss later. For this reason we do not consider that the trial court abused its discretion in denying the petitioner’s motion for leave to amend. The motion was accompanied by the proposed amendment which showed the defects sought to be cured. The court in passing on the motion was, therefore, aware that the proposed amendment did not remedy an obvious defect in the petition.

Before considering the crucial point of the case wé wish to express our opinion on one finding of the trial judge. The trial judge found that the proposed plan for construction which was introduced at a hearing on the motion to dismiss was for the construction of a boat launching ramp. This, the court concluded was not included in the definition of “harbor” as contained in section 11-92-1 of the act. The city, therefore, had no authority to condemn land for the construction thereof. We cannot agree with this finding of the trial court.

The various statutory sections referred to herein are found in the Ill Rev Stats 1967, c 24. Division 92 of said statute is entitled “Harbors for Recreational Use.” Section 11-92-2 authorized a city or village of less than 500,000 population to “acquire, construct, replace, enlarge, improve, maintain and operate a harbor for recreational use and benefit of the public.” Section 11-92-3 in order to carry out the purposes of the act authorized the city or village to furnish complete harbor facilities “including harbors, marinas, slips, docks, piers, breakwaters, and all buildings, structures, facilities, connections, equipment, parking areas and all other improvements for use in connection therewith.”

We do not think that the legislature in these various sections was attempting to specify or limit the particular structures or improvements that could be constructed or maintained under the provisions of the act. The intent to be derived from these sections was an intention to authorize cities and villages to provide facilities for recreational boating. One has only to observe the many small boats being transported over the highways to and from the various bodies of water in this state to realize that some facility for launching these boats into the bodies of water and removing them therefrom is a very important and necessary adjunct to any facility which is being provided for recreational boating. Although a boat launching ramp may not constitute a complete harbor as we usually consider this term, we do think that it constitutes a facility which may be constructed under the authority granted in the statutory sections which we have just discussed, provided, of course, that the same be usable for recreational boating.

The fatal defect in the petition to condemn and the defect which the proposed amendment to the petition did not attempt to remedy concerns the total lack of authority of the city to act as revealed in the petition itself. The Hlinois Municipal Code (Ill Rev Stats 1967, c 24) is divided into articles, divisions and sections. Article 11 relates to corporate powers and functions. Divisions 92 through 100 of Article 11 relate to recreational facilities. Division 92 is entitled, “Harbors for Recreational Use.” It is by virtue of the authority contained in Division 92 that the plaintiff seeks to condemn the property here involved. Section 7 of Article 11, Division 92 (Ill Rev Stats 1967, c 24, § 11-92-7) provides:

“The corporate authority of any city or village availing under this Division 92 shall adopt an ordinance describing in a general way the harbor and facilities thereof or relating thereto to be constructed, enlarged, improved, operated and maintained as a harbor for the use and benefit of the public and refer to the general plans and specifications therefore prepared for that purpose. These plans and specifications shall be open to the inspection of the public. Any such ordinance shall set out the estimated cost of the harbor or facilities thereof, or relating thereto, and shall fix the maximum amount of revenue bonds proposed to be issued therefor. . . .”

The petitioner contends that this section of the statute pertains only to the authority to issue revenue bonds and not to the exercise of the power of eminent domain. We do not agree. The introductory phrase of this section above quoted indicates that a city or village which seeks to establish a harbor for recreational purposes under the provisions of this division must adopt an ordinance. The section further specifies what the ordinance must contain. Petitioner never adopted an ordinance relating to this subject. It adopted the resolution which made certain recitals and resolved that the city proceed to acquire the land by negotiation or condemnation. Even if we were to consider the resolution to be an ordinance (which we cannot do as hereinafter discussed), it still does not comply with the statutory requirements. It does not: (1) describe in a general way the harbor and facilities to be constructed, (2) refer to general plans and specifications therefore prepared for that purpose, (3) set out the estimated cost of the harbor or facilities, or (4) fix maximum amount of revenue bonds proposed to be issued therefor. The statute requires that these matters be contained in the ordinance adopted by the city. The authority of the petitioner to acquire land by condemnation for the purposes of the act is found in section 11-92-3 of the Illinois Municipal Code. However, before the petitioner had the authority to proceed under the provisions of Division 92 it was necessary that the proper ordinance be adopted as specified in the statute. This, the city failed to do and thus, it acquired no authority to condemn any property for the purposes of establishing a harbor for recreational purposes.

As noted above the petitioner elected to adopt a resolution and not an ordinance. The statute states that the corporate authorities “availing under this Division 92 shall adopt an ordinance” (section 11-92-7, Illinois Municipal Code). Where the law requires that an act be done by ordinance a resolution is not sufficient. An ordinance is necessary. Village of Altamont v. Baltimore & O. S. W. R. Co., 184 Ill 47, 56 NE 340; Houston v. Village of Maywood, 11 Ill App2d 433, 138 NE2d 37; Lee v. City of Venice, 206 Ill App 376. A resolution is a form by which the legislative body expresses an opinion. Acts of legislation by a municipal corporation which are to have continuing force and effect must be embodied in an ordinance while mere ministerial acts may be in the form of resolution. When a statute requires that the municipal body act by adopting an ordinance, the adoption of a resolution will not suffice. Chicago & N. P. R. Co. v. City of Chicago, 174 Ill 439, 51 NE 596; People v. City of Chicago, 363 Ill 409, 2 NE2d 330. An ordinance prescribes a permanent rule of conduct or government while a resolution is of a special and temporary character. Village of Altamont v. Baltimore & O. S. W. R. Co., supra, 8 Ill Law and Practice Cities and Villages, §§ 121, 122, 123.

We hold that since the petitioner did not adopt the ordinance as required by statute it had no authority to file a petition to condemn land for the purpose of establishing a harbor for recreational facilities. The decision of the trial court will accordingly be affirmed.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE SEIDENFELD.

license: Public Domain

text:
    Leaverne C. Weaver, Plaintiff-Appellant, v. Illinois Bell Telephone Company, a Corporation, and Roland L. Kelsey, Defendants-Appellees.
    Gen. No. 68-189.
    Second District.
    September 22, 1969.
    Rehearing denied and supplemental opinion November 20, 1969.
    John D. Hayes and John Powers Crowley, of Chicago, for appellant; Sidley and Austin, of Chicago, and Caldwell, Berner and Caldwell, of Woodstock, for appellees.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.


author: STOUDER, P. J.

text:
    Oakley Marlatt, Plaintiff-Appellee, v. Peoria Water Works Company, a Corporation, Defendant-Appellant.
    Gen. No. 69-19.
    Third District.
    September 25, 1969.
    Rehearing denied October 24, 1969.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellant.
    Davis, Morgan & Withered, of Peoria, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, Oakley Marlatt commenced this action in the Circuit Court of Peoria County against the Defendant-Appellant, Peoria Water Works Company. The action based on trespass and ejectment, sought to recover possession of premises allegedly and unlawfully occupied by a two-inch water main owned and installed by defendant. The case was submitted on a stipulation of facts and resulted in a judgment in favor of plaintiff from which judgment defendant has appealed.

This controversy involves a water main constructed by the defendant underground at the rear of a lot owned by plaintiff. The lot is part of a subdivision platted in 1947. At the time, the lots were owned by several different persons who joined in the execution of a plat including reservations, which was duly filed in the Recorder’s office. It is Paragraph Six of the Reservations which is the basis of the controversy. Such paragraph provides, “6. An easement is hereby reserved for the use of Public Utilities, as shown by the dotted lines on the plat and marked ‘Right-of-Way,’ to install, lay, construct, renew, operate and maintain gas pipes, conduits, cables, poles and wires either overhead or underground, with all necessary braces, guys, anchors and other appliances for the purpose of serving the subdivision and adjoining property with gas, electric and telephone service, including the right to use the streets where necessary, and to overhang all lots with aerial service wires to serve adjacent lots, together with the right to enter upon the lots at all times to install, lay, construct, renew, operate, and maintain said gas pipes, conduits, cables, poles, wires, braces, guys, anchors and other appliances and to trim and keep trimmed, any trees, shrubs, or saplings that interfere with said public utility equipment. No permanent buildings or trees shall be placed on said easement, but same may be used for gardens, shrubs, landscaping and other purposes that do not interfere with the use of said easement for public utility.”

In 1951, one Sauder, apparently one of the original sub-dividers but not the owner of the lot purchased by plaintiff, entered into an agreement with defendant for the construction of the water main which was, in fact, constructed at least in part, underneath the area designated as an easement across the rear five feet of plaintiff’s lot. Plaintiff purchased his lot in 1952 and built a house thereon. The water service for plaintiff’s house is not supplied from the water main in question. In 1961, the Water Company notified plaintiff that it intended to excavate on the easement in order to connect another water service to the main. The plaintiff notified defendant that the latter had no right to excavate or otherwise permit the main to continue at its present location. The defendant nevertheless connected the residential service to the main but rather than disturbing the surface, it made the connection by tunneling underneath.

In seeking to reverse the judgment of the trial court the defendant argues that it had the right to locate, construct and maintain its water main under the easement strip and the court’s conclusion to the contrary is erroneous.

The general rule is that the restrictions and reservations appearing on a recorded plat are binding on the proprietor as well as all subsequent grantees. Wattles v. Village of McHenry, 305 Ill 189, 137 NE 114 and Bluett v. County of Cook, 19 Ill App2d 172, 153 NE2d 305. Benefits of easements so created may be enforced against the owners of lots burdened with such easements regardless of the annoyance or detriment. City of Morrison v. Hinkson, 87 Ill 587. If the easement is limited in scope or purpose, the owner of property, subject to the burden thereof, is entitled to prevent the burden of such easement from being increased. Dickman v. Madison County Light Co., 304 Ill 470, 136 NE 790, and City of Morrison v. Hinkman, supra.

This brings us to the main point of the controversy, namely whether or not Paragraph 6 of the restrictions permits the construction of the water main involved. The trial court concluded that it did not, and we are in agreement with such conclusion.

There is no argument but that the service of providing water is a public utility and it would follow that if the reservation were in favor of public utilities generally, the defendant would be in the class so described. However, the reservation contains extensive additional language concluding with the phrase, “. . . for the purpose of serving the subdivision and adjoining property with gas, electric and telephone service.” Water service is not included in the foregoing specification and in our opinion, the plain meaning of the reservation does not include water service. The phrase, “gas, electric and telephone” does not modify “adjoining property” as insisted by defendant but in our opinion constitutes an unambiguous explanation of the public utilities intended to be included within the easement so provided. Defendant relies substantially on the case of Nichol v. Village of Glen Ellyn, 89 Ill App2d 251, 232 NE2d 580. The facts of that case are such that we do not see how they can be of any support to defendant’s assertions in the instant case. In the Nichol case, an easement for public utilities was reserved upon which easement had been constructed a sewer line. The issue involved was whether the sewer line so constructed could be used by property not included in the original subdivision, or whether only the original subdivision had the right to use the sewer line on the easement. Thus the case does not involve a construction of a similar phrase. Indeed, the case to some extent supports the decision of the trial court in that it indicates such easements must be construed according to their terms.

The fact that one of the subdividers, never an owner of the lot herein involved, made agreements with the defendant water company, is also of no assistance to defendant. Concededly, the agreement did not grant any rights to the defendant since the person contracting with the water company had none. Further, such agreement or conduct cannot be deemed to change or modify the plain meaning of the reservation. The plaintiff cannot be charged with notice of the unrecorded and unknown unilateral construction of an easement by a third party who in law can only be regarded as a stranger to the transaction.

Lastly, we do not believe that the Plat Act, c 109, III Rev Stats 1967, requires that a limited public utility easement be expanded by implication to include any public utility. The authority conferred upon municipalities to require that plats be submitted to the municipality for approval does enable the municipality to regulate the subdivision of property so that adequate public services will be provided. The requirement of such approval does not necessarily specify the services which must be provided or the manner in which such services must be provided. Bluett v. County of Cook, 19 Ill App2d 172, 153 NE2d 305, cited by defendant does not hold that any public utility easement whether limited or not, must be available for any and all public service.

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

Judgment affirmed.

RYAN and CULBERTSON, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vincent A. Moscatello, et al., Defendants-Appellants.
    Gen. No. 68-154.
    Second District.
    October 1, 1969.

      John Powers Crowley and John J. Cogan, of Chicago, for appellants.
    William J. Scott, Attorney General of State of Illinois, of Springfield, Fred G. Leach, Assistant Attorney General, and John H. Maville, State’s Attorney, of Belvidere, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Vincent A. Moscatello, Frank Cullotto and Mike Swiatek, defendants, appeal from a judgment of conviction of armed robbery, and a sentence of 5 to 15 years in the penitentiary, after a jury verdict.

Defendants charge constitutional error in the denial of a pretrial petition for rendition of a prisoner held in another state (Kentucky) as a witness who had confessed to the instant crime in his extradition hearing held in Wisconsin; and in the denial of admission of the transcript of the third-party confession at the trial. Defendants also argue that the evidence failed to establish guilt beyond a reasonable doubt and that they were prejudiced by inflammatory arguments of the prosecutor.

The appeal was filed contemporaneously in both this Court and the Supreme Court of Illinois. We transferred the case on defendants’ motion to the Supreme Court which subsequently returned it here on the ground that no substantial constitutional question was involved.

The action was commenced by the filing of an indictment on November 13th, 1967, charging the defendants with armed robbery of $14,413 from the One-Stop Pacemaker, Inc. in Belvidere, Illinois, alleged to have occurred on September 1,1967.

Willie Halcomb, the co-manager of the Belvidere Pacemaker, testified that the robbery occurred shortly after the 10:02 a. m. Brinks money delivery. He heard the cashier, Sherry DalPra, state, “What are you doing in here?” He then saw a man, in back of her, lifting his sweater and pulling a revolver “half way out.” The man told everyone to get back on the floor and allowed Sherry to cash checks. He testified that he only had a side view of the man; that he was in the office for only a few seconds; and that he was dressed in a black sweater and dark pants. Later he saw pictures and picked out a photograph that looked like the man and still later he saw him in person. He stated that the man was sitting in court with a small scar above his cheek, sitting to the right of his attorney.

On cross-examination he testified he had gone to a lineup approximately two or three weeks later and he did not see anyone that he could positively identify in the lineup. He could “halfway identify someone” but was not sure that any of the men in the lineup were one of the men that held them up. The man had his back to the witness and also his back to Sherry DalPra except for a few seconds, and he only faced Eamona Thornton for a few seconds.

Gerald DalPra, the manager of the store, testified that he was at the check-out counter, which was 10 to 15 yards from the office. He was not aware that the robbery had taken place until after it had been completed. He went to the office and was informed by Mrs. Thornton, his head checker, that they were robbed, and Mrs. Thornton pointed out one of the men who was the only one left in the store at that time. DalPra left the office and walked towards the man until he got within a few feet of him, and the man then stepped back and put his hand underneath his shirt and said that he had a gun, which the witness did not see. DalPra, in the courtroom, identified that man as defendant, Frank Cullotto, and testified that he was wearing a loud, green sport shirt outside his pants. The man walked out of the store, and DalPra went back to the counter and told someone to call the police. He then went back to the door and tried to write down the license number of a cream-colored Chevrolet, 1959 or 1960 model, which the man was entering. Later that day he was shown some photographs by Sheriff Aten and picked out a picture of Frank Cullotto. Approximately a week later he went to a lineup in Chicago, saw five men, and picked out the defendant Cullotto from the lineup.

On cross-examination he testified that he had given the police a description of the man as wearing a loud, green sport shirt and glasses and that he was between 5 feet 10 and 5 feet 10% inches, and 170 pounds. He stated that he was standing 6 or 8 feet away from him and looked at him for possibly 15 seconds, and that the man was a stranger to him. When he went to the lineup in Chicago he already knew the name of the man whose picture he had identified was Frank Cullotto. During the lineup, each man was required to state his name. At the lineup the Witness possibly said, “The man who said his name is Frank Cullotto, that’s the man whose picture I identified and the clothing he wore at the time.” He recognized Frank Cullotto in the courtroom as the man whose picture he had identified and he had no doubt in his mind after viewing the pictures. He had no doubts as he testified that defendant Cullotto was in the Pacemaker store on September 1st, 1967.

Ramona Thornton, the head cashier, testified that a few minutes after Brinks had made a delivery of money to the store, she was in the office and had the bag of money in her hand and had not yet put it in the safe. She heard the door and turned around, and Sherry Dal Pra came into the office and right behind her was a man. The man walked up alongside of her and had a gun in his hand and a yellow plastic pail. He said, “This is a holdup, don’t try anything funny.” Then he told her to get down on the floor. The robber told her to open the safe, and she replied that she couldn’t. He then opened the safe and took all the currency out and took two envelopes out of the top. He then turned from the safe and took the Brinks bag from her. He went over to the register and took three bundles of money from the drawer under the register. She saw another man standing just outside the courtesy counter, behind a carton of cigarettes, who had a gun. She also saw a third man who was standing by the wall near the shampoo rack. He walked out of the store when the man in the office who had been taking the money moved out. Then the one in front of the courtesy counter moved over in that position.

She was later shown pictures in the upstairs office of the store and she identified two men and the man inside the office tentatively. The man she identified tentatively was Vincent Moscatello and the other two were Frank Cullotto and Mike Swiatek. She described Moscatello as wearing a golf cap, black wash slacks, a black sweater, open down the front and buttoned at the waist, which had a yellow and white stripe diagonally down to the waist, and a sport shirt underneath. Cullotto wore some type of a yellow sweater, gray wash slacks and a cap and glasses that she believed to be the same type he was wearing in the courtroom. She testified that Swiatek had a cap, a loud, tropical print shirt and wash pants. She was not sure of the color. She was later taken to Chicago and saw a lineup where she identified Cullotto and Swiatek. She was doubtful as to Moseatello because of height, but when she saw him sitting down in the courtroom she would say that it was him.

On cross-examination she testified that she had given a verbal statement to Sheriff Aten. She recalled also being interviewed by the two young lawyers from Kentucky on April 8th, 1968, and telling them that the reason she could not identify the man the sheriff said had entered the cage was because of height difference.

Sheryl DalPra, a sister of Gerald DalPra, testified that she entered the office of the store shortly after the Brinks messenger left and she was followed in by a man. She asked him what he was doing and he told her don’t try anything that this was a holdup. He then told her, Ramona Thornton, and Halcomb to get down on the floor. He also told her that if anyone came to the office to cash any checks, that she was to do so. She had her back to him when he followed her in, and then she turned and looked at him. The man then walked over towards the back of the courtesy counter and told Ramona Thornton to open the safe. After she replied that she didn’t know how, he put on a brown glove and opened the top safe and put on another glove and opened the bottom safe and took an envelope from the top and took the money out from the bottom, as well as the Brinks bag that Ramona Thornton had in her hands. The phone then rang and Sheryl answered it. She also cashed a check for a customer and gave him money for returned bottles. By that time it was all over.

During the period of time the man was in the office she was back to back, or more or less to the side of him. There was another man outside the cage who showed her part of a gun, and then she turned her back on him. She looked off the side to her left, and there was another man standing over by the doorway near the shampoo display. Prior to the robbery she had noticed all three men as having walked into the store together, more or less single file, with about 5-foot intervals between them. They walked back into the produce department where she was putting up an ad and then walked over to the meat department where she was putting up an ad.

In court she identified Moscatello as being the man inside the cage, Cullotto as being the man in front of the courtesy counter, and Swiatek as being the man off to the side of the doorway. On the evening of the robbery she had been shown photographs by Sheriff Aten and she identified all three of the defendants. She testified that Moscatello at the time of the robbery had a dark cap on, a sport shirt, a black sweater and black slacks, that the sweater had a diagonal yellow and white stripe which went downward and buttoned where the stripes met; that Cullotto had on a brown, bright print shirt, glasses which looked like army glasses, and light slacks; and that Swiatek had on a yellow sport shirt, a sweater, a jacket type of thing, with a cap and grayish slacks.

On cross-examination she testified that the descriptions she gave of the clothing were the same descriptions she gave to Sheriff Aten on the day of the robbery. She told the sheriff that Moscatello had a visible scar over his left eye, but that as she looked at Moscatello in court the scar was not over the left eye, but was on the side of his eye. She said that when she gave the descriptions to the sheriff and to the police captain both men wrote them down.

Ruth Ellen Brown testified that she was a customer at the store, arriving there at approximately 10:00 o’clock. She went outside the store to drive her car around to pick up boxes and as she left the store and was walking through the check-out counter the manager of the store, Jerry DalPra, was right behind her. He more or less followed her out. Three men came out of the store following her, walking rapidly, and as she approached her car, she noticed a white Chevrolet sitting next to it. The three men got into the white Chevrolet and as they opened the door they bumped her car. She recognized two of the men and later that day she looked at certain photographs which were shown to her by Sheriff Aten and picked out Cullotto and Swiatek. About a week later she went to a lineup in Chicago involving five people and at that time again picked out Swiatek and Cullotto. She testified that the driver of the car, Swiatek, was dressed in gray trousers and yellow-gold sweat shirt. The other man, Cullotto, had on a bright shirt, an Hawaiian-type shirt, dark trousers, and his glasses were tinted.

On cross-examination she testified that she had only seen the men a couple of seconds or so. She testified that at the lineup Frank Cullotto had stepped forward and had given his name and she may have heard that name before. She did not recall how Cullotto was dressed on the day of the lineup.

Lester Aten, the Sheriff of Boone County, testified that on September 1, 1967, he found a cream-colored Chevrolet, 1959 or 1960, by the Highland Hospital and that the car had been reported stolen by a Mr. Boerdman.

On cross-examination he testified that he did not go thru the car to determine if there was anything in the car to connect any of the defendants. He further testified that he did not take any written statements from any of the witnesses and that none of the witnesses had described to him the wearing apparel of the men who held up the store.

Vincent Moscatello testified for the defendants that he had a scar on the left side of his cheek since he was about 4 years old. He testified that between the 11th and 15th of September, 1967, he was in a showup in Chicago and after the showup he was not charged with any offense and he left and went home. He denied being present in the City of Belvidere and participating in the holdup at the One-Stop Pacemaker on September 1, 1967.

Moscatello testified that around the time of the robbery he was dating a woman named Gloria Dante, and was in her home in Chicago. He had stayed at that address all night. Gloria’s sister Karen was there also, as well as Gloria’s mother, Carol Dante, and Marie Kuputta, a close friend of Carol and Karen. The father of the girls, James Dante, was not there. He testified that Carol Dante and James were divorced.

Carol Dante testified that Moscatello roomed and boarded at the house and that she was sure he was there on September 1st, 1967. She was not divorced on that date. Her husband was not there at the time, having left for work at 7:30 in the morning.

Gloria Dante, Carol Dante’s daughter, testified that on September 1st, 1967, she was living at the address with her mother, sister, brother and her mother’s husband, as well as Vince Moscatello. She testified that on September 1st, 1967, Moscatello was having breakfast in the home. Another daughter, Karen Dante, testified that on September 1st, 1967, at 10:00 o’clock in the morning Vincent Moscatello was in the house. She didn’t remember if her stepfather was living there at the time.

Michael Swiatek testified on his own behalf that he was employed in Chicago as a cook and pizza maker and that his hours of work were from 4 in the afternoon until 12 o’clock midnight; that on September 1, 1967, at about 10 o’clock in the morning he was receiving a ticket in Oak Park, Illinois, and that Frank Cullotto was with him at that time. The ticket was for speeding and he received a citation from Officer Reichert of the Oak Park Police Department.

On cross-examination Swiatek testified that he was driving Frank Cullotto’s car and it was under Frank Cullotto’s mother’s name. He pleaded guilty to the offense in court and paid a fine.

Lawrence Flynn testified for the defendant that he was a private investigator from Racine, Wisconsin, and that on October 13th, 1967, he interviewed Ramona Thornton and asked her if she could identify any of the men charged with holding up the Pacemaker. She stated to him that the sheriff had taken her and some others down to Chicago to view suspects in a lineup and that she was unable to identify any of them.

Foster Jones testified for the defendant that he was an attorney licensed to practice in Kentucky, and that he had spoken to Ramona Thornton approximately the first week of April, 1968. He asked her about the identification of defendants in this case and she told him that she could identify one of them and that would be the person who stood outside the cashier’s cage. She testified that she attended a showup in Chicago, but that she could not positively identify anyone at that time. Jones testified that about June 9th or 10th, 1968, he again talked to Ramona Thornton at the Pacemaker Super Market and Halcomb, the manager, was present, and Mr. DalPra was briefly present. She then said she could possibly identify two of the men and that she had identified them by the position in the store — the one by the door and the one in front of the cage. He asked her about the man inside and she said that if she ever saw him she could identify him but she had not seen him.

Finally, the defendants made an offer of proof of the transcript of the extradition hearing in the matter of the detention of Carl Sims Pankey in Wisconsin, which offer was denied.

Ramona Thornton testified in rebuttal that in each instance she had identified two suspects, but did not identify the third, and that as to the third she told the investigator that there was a resemblance in the size.

Fremont Nester testified that he was the Chief of Police of Oak Park and that his records showed that Sgt. Reichert began his work at 4:00 p. m. on the afternoon of September 1st, 1967. On cross-examination he said that the records indicated that the driver’s license taken from the violator was the same number as Swiatek’s driver’s license. He testified that the tickets usually go to court within two days, but since there was an intervening weekend there was nothing particularly unusual about the fact that a ticket issued on September 1st did not arrive in court until September 6th. He testified that Reichert, who was a member of the department on furlough, would not be back until the first part of August. He was permitted to testify to a conversation with Reichert to the effect that he issued the ticket on whatever date appeared on the ticket.

The ticket, in evidence, shows the time of 9:50 a. m. Defendants argue that the evidence failed to establish the guilt of the defendant beyond a reasonable doubt because that of the prosecution was based solely on identification testimony and in which some inconsistencies appear, contrasted with “unrebutted alibi evidence” offered by defendants.

In determining whether the alibi is sufficient to raise a reasonable doubt, the case must be judged on all of the evidence. Contradiction of the identification witnesses by alibi witnesses raises questions of sufficiency of the identification and the credibility of witnesses, with no presumption in favor of either kind of evidence. See The People v. Hicks, 22 Ill2d 364, 366, 176 NE2d 810 (1961); The People v. Cox, 22 Ill2d 534, 539, 177 NE2d 211 (1961). Sufficiency of identification is ordinarily a question of fact and the finding by the trier of the facts is not to be reversed unless the testimony is so unsatisfactory as to leave a reasonable doubt as to guilt. The People v. Brengettsy, 25 Ill2d 228, 231, 184 NE2d 849 (1962). Similarly, it is for the trier of fact to determine the credibility of an alibi. The People v. DiGerlando, 30 Ill2d 544, 551, 198 NE2d 503 (1964); The People v. Ault, 28 Ill2d 34, 36, 190 NE2d 815 (1963). It follows that an alibi cannot be disregarded and if the identification testimony is so unsatisfactory that upon the whole record the evidence does not create an abiding conviction of defendant’s guilt, the judgment of conviction must be reversed. The People v. Jefferson, 24 Ill2d 398, 402, 182 NE 2d 1 (1962); The People v. Kidd, 410 Ill 271, 279, 102 NE 2d 141 (1951).

The eyewitness identification testimony in this record is not of that unsatisfactory or doubtful nature so as to create a reasonable doubt of defendants’ guilt. Gerald DalPra testified that he viewed Cullotto for up to 15 seconds and positively identified him as one of the men who held up the store. Ramona Thornton identified all three men. Sherry DalPra identified all three of the defendants after testifying that she had more than adequate opportunity to observe them. Mr. Brown identified two of the defendants. While there were inconsistencies in the testimony as to the color of the clothing worn by the defendants, as to the time elapsed for observation and as to various statements made immediately after the robbery, the identification testimony of the witnesses was not impeached in any essential aspect. Where witnesses agree substantially in their descriptions, minor discrepancies in their testimony will not cause reversal. The People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920 (1963).

Defendants’ reliance on People v. Kidd, supra, and People v. Jefferson, supra, is misplaced. The identification testimony in each of the cited cases was so weak and tainted that there was practically no identification testimony to be overcome by the evidence of the alibi.

Defendants also claim that the final argument of the prosecutor in rebuttal resulted in prejudicial error requiring a reversal.

The first instance to which defendants refer is to the prosecutor’s stating:

Now he says, where are these mug shots, where are these pictures. He would scream if I had three police identification photos with numbers on them.

The court properly sustained an objection to the argument and instructed the jury to disregard the statement. The remark moreover, was made in response to the argument of defense counsel, referring to pretrial identification by photographs:

And what about these photographs that they keep telling us about? Have we ever seen the photographs that these witnesses looked at, these 35 or 40 photographs. Where are they?

The characterization “mug shots” was improper, but the reference is not reversible error in view of the prompt ruling of the court and in view of the fact that the photographs were not admitted into evidence and there was no reference made to defendants’ prior criminal record. See The People v. Maffioli, 406 Ill 315, 322, 94 NE2d 191 (1950); and People v. Ogden, 77 Ill App2d 312, 313, 222 NE2d 329 (1966). We distinguish United States v. Reed, 376 F2d 226, cited by defendants, because there testimony was permitted which established that the “mug shots” were from the prison and were of former inmates, and other references were made to the defendants’ record, criminal activities and time served. In United States v. Robinson, 406 F2d 64, reference by the prosecutor to “mug shots” in his opening statement was deemed ill-advised but not reversible error when not accompanied by anything suggesting past criminal activities.

Defendant complains of the prosecutor’s argument that he did not call Sgt. Reichert to testify relative to the issuance of the ticket because he had been served with notice that counsel for defendants intended to call Reichert. The court made it clear to the jury that they were to disregard the statement if there was nothing in the evidence regarding such notice. In addition, the argument was in response to defendants’ counsel stating, with reference to the State’s evidence purporting to impeach the date of the traffic ticket issued to Swiatek, that Reichert was “still an Oak Park Police Officer.”

Defendant also complains of the prosecutor’s argument as to the traffic ticket.

But it wasn’t written on 9-1-67 at 9:50 a. m., as inferring that the prosecutor had personal knowledge of this , outside the record.

We do not give this statement that effect. The argument was consistent with the State’s position that Swiatek could not have been the one receiving the ticket at the time when he was positively identified as a participant in the robbery, a great distance removed.

Considering the comments in the light of the evidence of guilt presented by the prosecution, we cannot say that the arguments represented a material factor in the verdict justifying a reversal of the judgment. The People v. Nicholls, 42 Ill2d 91, 245 NE2d 771 (1969).

We next consider defendants’ claim of prejudicial error in the refusal to admit into evidence the transcript of the third-party confession.

We find no error in the trial court’s refusal. Defendants reason that third-party confessions are similar to declarations against pecuniary or proprietary interests which are generally admissible as exceptions to the hearsay rule. They suggest the general rule that hearsay declarations against penal interests are not admissible has been criticized and rejected by the weight of authority.

The issue has been resolved for us by The People v. Lettrich, 413 Ill 172, 178, 108 NE2d 488 (1952). Lettrich supports the general rule that extrajudicial declarations of a third party that he committed a crime are hearsay, and even though they are declarations against interest, are inadmissible except “where it is obvious that justice demands a departure.” There, evidence that the defendant’s confession was coerced; all witnesses of the confession had not testified at the hearing; that the confession was the only evidence against the defendant and there was no other evidence that would connect him to the crime, were held to be special circumstances requiring a departure from the general rule in the interests of justice. In the subsequent case of People v. Dowling, 95 Ill App2d 223, 227, 238 NE2d 131 (1968), the court delineated the Lettrich special circumstances rule, basically noting that where there is overwhelming evidence of defendant’s guilt, especially the direct, unequivocal and unimpeached testimony of eyewitnesses, special circumstances do not exist under which a third-party confession would be admitted.

Considering the motive of Pankey to falsify his confession in order to avoid the more serious prosecution in Kentucky and the absence of special circumstances in view of the eyewitness testimony in the record, there is no guaranty of trustworthiness that would justify the absence of cross-examination and the presenting of a witness’ demeanor to the trier of fact.

We believe, however, that the court committed error in denying the pretrial petition of defendants for rendition of a prisoner in another state, on the ground that the witnesses’ testimony was not material.

The petition was filed on December 15th, 1967, in accordance with the provisions of the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act (Ill Rev Stats 1967, c 38, § 157-1 et seq.). Material here is section 157-6 and section 157-7 which provide:

157-6. Sec. 6. Prisoner from Another State Summoned to Testify in this State.) If a person confined in a penal institution in any other state may be a material witness in a criminal action pending in a court of record or in a grand jury investigation in this State, a judge of the court may certify (1) that there is a criminal proceeding or investigation by a grand jury or a criminal action pending in the court, (2) that a person whcTls confined in a penal institution in the other state may be a material witness in the proceeding, investigation, or action, and (3) that his presence will be required during a specified time. The certificate shall be presented to a judge of a court of record in the other state having jurisdiction over the prisoner confined, and a notice shall be given to the Attorney General of the state in which the prisoner is confined.
157-7. Sec. 7. Compliance.) The judge of the court in this state may enter an order directing compliance with the terms and conditions prescribed by the judge of the state in which the witness is confined.

Among other allegations, the petition stated that one Carl Sims Pankey was presently confined in a Louisville, Kentucky jail (and one “Swaite” was presently confined in a California jail and would be confined in the Kentucky jail on December 15th, 1967); that Pan-key, on November 2nd, 1967, had testified under oath in extradition proceedings in Racine County, Wisconsin, that he and Swaite committed the offense of armed robbery of the One-Stop Pacemaker in Belvidere, Illinois, on September 1, 1967; that defendant Mike Swiatek was issued a traffic ticket in Oak Park, a distance of 75 miles from the scene of the robbery, at about 10:00 a. m. on September 1, 1967; that witnesses at a preliminary hearing on the Illinois charge of armed robbery had testified that the robbery of the One-Stop Pacemaker took place between 10 and 11 a. m. on that September 1st date; that Kentucky has adopted a uniform reciprocal statute providing for the attendance of witnesses in criminal proceedings in another state if the Kentucky court certifies, pursuant to Kentucky Revised Statute, § 421.240, “that a person being within this state is a material witness in such prosecution.” The petition requested that the court certify that criminal proceedings were pending in Illinois and that Carl Sims Pankey and Swaite are material witnesses and that their presence was required upon a trial date to be designated by the court.

The petition was supplemented at a later date to include the transcript of the Wisconsin hearing containing Pankey’s full and detailed confession to the armed robbery of the One-Stop Pacemaker in Belvidere, Illinois, on September 1,1967.

It further appears from the record that Pankey was extradited to Kentucky in connection with a charge of armed robbery and the murder of a police officer alleged to have occurred on September 1, 1967, in Louisville, Kentucky, and that Pankey was positively identified by an eyewitness as a participant in the Kentucky crime.

The court below denied the pretrial petition, commenting that it was a question whether he could abuse his discretion if he denied the petition and concluding that Pankey’s “only purpose is to evade the prosecution in Kentucky.” The trial court noted Pankey’s immunity from prosecution here if brought back as a witness and then stated that Pankey “is not a material witness in this case.” The court then denied a motion to continue this case until a conclusion of the Kentucky trial (subsequent to these rulings but before the trial of the instant case, Pankey was convicted of the Louisville armed robbery and murder of September 1,1967).

The statement of Pankey is not a simple admission that he committed the robbery of the One-Stop Pacemaker, but is a detailed description, closely coinciding with the testimony of the prosecution. The confession relates the theft of a cream-colored Chevrolet and its subsequent abandonment in the hospital parking lot. It also relates that the car contained empty pop bottles, refers to the Brinks delivery, the time of the robbery, the men walking to the back of the store, the taking of the money from the safe, the placing of it in a plastic bucket, and the manager’s attempt to capture the robbers. The burden of establishing the matter of the materiality of the testimony desired is recognized by defendant. People v. Nash, 36 Ill2d 275, 280-281, 222 NE2d 473 (1966); In re Grothe, 59 Ill App2d 1, 8, 208 NE2d 581 (1965). The language of the Rendition Act (“may be a material witness”; and (a judge) “may certify”) is language of discretion. But the State rightly concedes, as did the trial court, that “discretion” cannot be absolute, but must be subject to review for abuse particularly where rights of substance are involved.

The People v. Nash (supra) is authority for the fact that the Uniform Act to Secure the Attendance of Witnesses, being Ill Rev Stats 1967, c 38, §§ 156-1 to 156-6 (whose provisions are essentially similar to those of 157-6 with which we deal here in the area of discretion) covers only material witnesses, and a judge is justified in refusing to certify that the persons named in a petition are material witnesses when he has nothing before him but the names and addresses of the persons requested and a statement by defendant that these persons are material witnesses. (See page 281.)

The precise question as to the limits of judicial discretion under the Rendition Act appears to be of first impression in Blinois. There have, however, been a limited number of somewhat relevant decisions in other jurisdictions, none of which have been cited to us by the parties.

In People v. Cavanaugh, 69 Cal2d 262, 70 Cal Rptr 438, 441-443, 444 P2d 110 (1968), the California Supreme Court construed its Uniform Rendition Act as requiring the defendant to show, in a hearing, that the testimony to be given by the proposed witnesses is material and that even after such a showing the judge could decide not to bring even a material witness from out of the state in his sound discretion. In that case the facts were that the defense counsel filed an affidavit listing eleven proposed witnesses whom he desired to have brought from Massachusetts, advising the court that every one was an alibi witness. (However, the affidavit had value as to the proposed testimony of several of the witnesses and was silent as to the remainder.) The court citing the inconvenience and expense of disrupting the lives of all the named persons on such an inadequate showing ruled that he would deny the petition but would entertain a motion in due course, after oral or written interrogatories had been taken, to renew the motion for one or perhaps two witnesses. Thereafter, interrogatories were submitted and the court appointed the public defender of Boston as commissioner to examine the witnesses, and in due course the answers of seven of the witnesses were received and filed, and four others were found to be unavailable or uncooperative. A motion then was made by defense counsel for four of the seven witnesses to be brought from Massachusetts. The court indicated that the testimony of each was substantially the same and that this would be an unnecessary duplication, which defense counsel conceded. The court granted permission to bring in two of the witnesses, also permitted the deposition of the remaining witnesses to be used at the trial. The Supreme Court in deciding that discretion was not abused said on page 444:

“Discretion is abused only when ‘the court exceeds the bounds of reason, all of the circumstances before it being considered.’ (Citations omitted.) In the light of defendant’s meager showing of materiality and the substantially cumulative nature of much of the proposed testimony, we cannot say that the court ‘exceeded the bounds of reason’ when it permitted defendant to select his two best witnesses for testimonial duty and to read the depositions of the others to a carefully-instructed jury. Here, as in United States ex rel. State of Pennsylvania v. McDevitt (DC App 1963), 196 A2d 740, 741, ‘The trial court’s determination was not arbitrary, capricious or unreasonable. . . . Therefore, we hold there was no abuse of discretion by the trial judge in denying process compelling the attendance’ of a witness under the uniform act.”

In State v. Smith, 87 NJ Super 98, 208 A2d 171, 174-5 (1965), the Superior Court of New Jersey, Appellate Division, held that the remedy under the Uniform Act to Compel the Attendance of a Witness from Another State in a criminal proceeding in New Jersey was not available to a defendant on the mere unsupported conclusionary oral statements by defendant’s attorney. That the witness resided in “Royer Run, Pennsylvania” and that he was “a person from whom he acquired or allegedly acquired the goods which are the subject matter of the complaint of indictment” were legally and factually insufficient to show that Sabol was a nonresident material witness who would give favorable and material testimony in aid of the defendant. Defendant merely testified that he required the presence of Sabol. There was also no specific information in the record as to where Sabol could be found which was the further basis of sustaining the court’s refusal to “initiate the complex judicial process necessary under these acts to procure the attendance of out of state witnesses.”

In State v. Bagges, 350 Mo 984, 169 SW2d 407, 409 (1943), the Missouri Supreme Court ruled on a defendant’s application for a writ of habeas corpus ad testificandum (predecessor to the uniform acts involving foreign witnesses), and held that it was error to refuse an offer of proof that a third party would testify that he was one of the persons who committed the robbery in question and that the defendant did not participate. The court held that such testimony was material to defendant’s defense.

We recognize the difficulties of defining “judicial discretion” and setting its limits except on a case to case basis. In The People v. Pfanschmidt, 262 Ill 411, 104 NE 804 (1914), the Illinois Supreme Court was ruling on an application for a change of venue on account of prejudice of the inhabitants of the county. In conceding that the application was addressed to the sound legal discretion of the trial judge, the court found an abuse of this discretion under the circumstances. On pages 440-441 the court said:

“By judicial discretion is meant sound discretion guided by law. It does not mean an arbitrary discretion. (9 Am & Eng Ency of Law, — 2d ed — 473; 14 Cyc 384.) ‘Judicial power is never exercised for the purpose of giving effect to the will of the judge, —always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.’ (Osborn v. United States Bank, 22 US 738.) Deciding what is just and proper under the circumstances of a case is such judicial discretion. In all cases courts must exercise a discretion, in the sense of being discreet, prudent and exercising cautious judgment. (Murray v. Buell, 74 Wis 14; Abbott v. L’Hommedieu, 10 W Va 677.) A judicial discretion, in practice, is ‘the equitable decision of what is just and proper under the circumstances.’ (1 Bouvier’s Law Diet—15th ed—537; see also, Black’s Law Diet—2d ed—375; 3 Words and Phrases, 2095, 2098; Trustees of Schools v. School Directors, 88 Ill 100; 6 Ency of Pl & Pr 819.) Abuse of discretion does not mean only the decision of a case by whim or caprice, arbitrarily or from a bad motive, (Citizen’s Street Railway Co. v. Heath, 62 NE Rep 107), but it also means that the discretion has not been justly and properly exercised under the circumstances of the case. Murray v. Buell, supra.

The State cites People v. Ashley, 34 Ill2d 402, 412, 216 NE2d 126 (1966), as authority for the statement that a reviewing court will not interfere with the trial court’s rulings on matters addressed to its discretion where the record does not show an abuse of discretion by the trial judge and a clear showing of prejudice. There the petitioner’s presence at a post-conviction hearing was held to be a matter ordinarily committed to the sound discretion of the judge, and where the defendant first appeared and, being dissatisfied with his counsel, requested a new counsel and asked that he be returned to prison, he could not charge error in his absence at the subsequent hearing. We do not find it any authority here.

Reference to “discretion” or “abuse of discretion” is meaningless unless a trial court’s acts which will stand on appeal can be measured against standards ascertainable in advance.

The granting of discretion to the trial judge recognizes the superior vantage point of one who sees and hears the witnesses when the record cannot reproduce actual trial conditions; the practical necessities of judicial administration in procedural matters; and the necessity of the trial judge’s leeway in evolutionary phases of the development leading to fixed rules of law. Where matters of the administration of the court’s business are involved, such as for example, whether to allow a pretrial conference, discretion may be practically absolute. In matters of trial procedure such as order of proof or ruling on rebuttal testimony, discretion may be very wide; in awarding a new trial, discretion may be considered more limited; in the area of declaratory judgment or equity jurisdiction, discretion may be narrowly proscribed by rules of law which have been carved out on a case-by-case basis, or a broader exercise of discretion may be approved where no limiting rules of law or equity have been laid down and the case is more unique, with the ruling dictated by necessity. See Delno v. Market St. Ry. Co., 124 F2d 965 (1942); The Atchison, T. & S. F. Ry. Co. v. Barrett, 246 F2d 846 (1957).

But few of these considerations are relevant under the circumstances of this case. Here we are dealing first with an exercise of discretion to determine what is material. That inquiry is addressed to a question of fact. The trial judge did not see the witnesses in Wisconsin, and in this connection has no superior vantage point to which we would ordinarily afford great weight.

It may be that, as suggested in People v. Cavanaugh, supra, (page 441), the language of the Rendition Act declaring that the judge “may” issue the certificate of demand, means that a decision to bring even a material witness from out of state remains within his sound discretion. But the discretion must be related to the materiality of the testimony sought, viewed in the whole case, in order to provide any meaningful standard. In this context, merely cumulative evidence or evidence on a relatively unimportant part of the case, even though material, might be excluded in the court’s exercise of discretion, in view of the expenses of bringing the witness in the particular case, as well as in future cases based on the precedent. But this is not involved within the facts of this case, and the court, in fact, recognized that the standard it was applying was the materiality of the testimony.

It seems undeniable that the confession of a third person excluding the participation of these defendants in the crime is material to the case. The State argues that the confession is too detailed so that it is obvious that the defendants and Pankey were in communication between the date of the robbery and the date when Pankey, for the first time, confessed to the Belvidere robbery, after already having been charged with the murder and robbery in Kentucky. We appreciate that the trial court was calling on his long experience in criminal cases to detect what appeared to him to be a mere device to avoid extradition or involvement in the more serious offense in Kentucky. But this requires considerable speculation outside the record and the ruling that the statement was not material cannot be sustained on the record. Because of the motive to falsify and the presence of eyewitness testimony, Pankey’s proposed testimony may have been entitled to little weight (and the court’s view may be said to have been buttressed after the fact by the conviction of Pankey in the Kentucky trial), but we would be required to hold that discretion is given to the court not only on the issue of materiality but also on the issue of credibility to sustain the trial court’s action.

While, apart from statute, there is no right to compulsory process of witnesses outside of the jurisdiction of the court, the adoption of the statute would appear to be a recognition that defendants should have the opportunity to secure material testimony in their behalf in the interests of a fair trial. The statute thus operates in an area which has been held to be a fundamental and essential element to a fair trial. Washington v. Texas, 388 US 14 (1967).

We, therefore, find that the court erred in denying certification under the Rendition Act. We are not able to say, however, whether the error was prejudicial or harmless. The issuance of certificate by the court below was only one of three steps that defendants’ counsel recognized they must make. In the event the court issued the certificate, then defendants would have to proceed in Kentucky for permission for Pankey to leave that jurisdiction. Further, defendants would then have to get Pankey on the witness stand in this court to confess, under oath, to the Belvidere crime. Under the circumstances at the time of the trial judge’s action on the petition, as well as the intervening circumstances up to the time of trial, the likelihood of Pankey’s testifying in the trial below is speculative.

Therefore, without reversing the conviction, we remand the case to the Circuit Court below with directions to issue the certificate and to continue the cause for a reasonable period of time within which application can be made in Kentucky for the production of Pankey. If approval is forthcoming from Kentucky and Pankey is shown to be willing to testify, we then direct the trial court to vacate its judgment of conviction and grant a new trial. Otherwise the conviction shall stand. See Greenwell v. United States, 317 F2d 108, 111 (1963).

Remanded with directions.

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

       “The defendants claim that they were denied process to compel the production of a witness. This claim is based on the refusal by the trial judge to certify that a prisoner confined in another State was a material witness, a finding which is necessary to initiate proceedings under the Uniform Rendition of Prisoners as Witnesses in Criminal Proceedings Act. (Ill Rev Stats 1967, c 38, §§ 157-1 through 157-11.) In our opinion this ruling by the trial court does not present a substantial constitutional question. On the Court’s own motion the cause is transferred to the Appellate Court for the Second District.”


author: MR. JUSTICE DAVIS

text:
    Chrysler Credit Corporation, Plaintiff-Appellee, v. M. C. R. Leasing Co. and Aurora Chrysler-Plymouth, Inc., Defendants-Appellants, and Northern Illinois Corporation, Intervenor-Appellee.
    Gen. No. 69-16.
    Second District.
    October 9, 1969.

      Dreyer, Foote & Streit, of Aurora, for appellants.
    Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an interlocutory appeal by the defendants, M. C. R. Leasing Co., and Aurora Chrysler-PIymouth, Inc., from an order granting a temporary injunction in a replevin action brought by the plaintiff, Chrysler Credit Corporation.

The plaintiff filed a complaint for replevin wherein it alleged that it was entitled to possession of sixty-four automobiles wrongfully obtained by the defendants. Subsequently, it filed a petition alleging that the intervenor, Northern Illinois Corporation, also claimed the right to possession of many of the same automobiles; that it was advised that two other financial institutions likewise claimed a right to possession of some of the same automobiles, all by virtue of security agreements; that a complete examination of the defendant’s records would be necessary to determine the relative priorities of the respective claimants; that it had been informed that some of the defendants’ books and records had been removed by the defendants; that it feared that such books and records might be either altered or destroyed; that an injunction should issue restraining the defendants from destroying, altering or disposing of their books; and that the defendants should be ordered to deliver such books and records to the court to be impounded until further order.

The petition was served upon the defendants, together with a notice that the matter would be heard before Judge John S. Petersen on a date shortly after the service. The defendants immediately prepared and presented to the court, a motion for change of venue, supported by affidavit, asserting that they could not get a fair trial before Judge Petersen or any Aurora area judge.

Judge Petersen was advised of both motions, and he entered an order granting the plaintiff’s petition for temporary injunction and at the end of the order added the words, “the case is assigned to Judge Carl A. Swanson for trial.”

Thereupon, the defendants moved to vacate the order of Judge Petersen on the grounds that after the motion for change of venue was made in due time and in proper form, the court had no power to render any further order, except such as may be made in connection with the one which allowed the change of venue. Judge Swanson, over a span of several hearings, heard the parties and entered a mandatory injunction order directing that the books and records be deposited at a given storage place under the control of the sheriff, subject to further order of the court; and that the plaintiff and intervener pay the expenses thereof. The order further stated that to the extent the prior order of Judge Petersen was in conflict with the order issued by his court, said prior order was modified.

The defendants first argue that the earlier order of Judge Petersen was void, as it was made after a proper motion for change of venue, pursuant to section 1 of the Venue Act (Ill Rev Stats 1967, c 146, par 1). Presumably, the plaintiff does not disagree with this contention, as it neither addressed itself to, nor responded to the defendants’ argument.

We believe that the defendants’ position is correct. It has been repeated, too often to belabor, that where a petition for change of venue, on the ground of prejudice of a judge, is presented in due time and in proper form, the court is without power to render any further order except in connection with the order allowing the change of venue. Hinduliak v. Inn of Four Lakes, Inc., 98 Ill App2d 42, 48, 240 NE2d 532 (1968); Gates v. Gates, 38 Ill App2d 446, 448, 187 NE2d 460 (1963); Agar Packing & Provision Corp. v. United Packinghouse Workers of America, 311 Ill App 502, 505, 508, 36 NE2d 750 (1944); Simpson v. Simpson, 165 Ill App 515, 516 (1911). The order of Judge Petersen granting the temporary injunction after presentation of the motion for change of venue — which the plaintiff does not challenge as being bad in either form or substance — was improper and void.

However, after the entry of Judge Petersen’s order granting the temporary injunction, the question of whether a temporary injunction should issue in reference to the protection of the books and records, was heard at length by Judge Swanson, the transferee judge. Obviously, he was impressed by the charge that there allegedly was double and triple financing by the defendants; and that there was a need for complete inspection of certain of the defendants’ books in order to determine who, among the plaintiff and interveners, would have the right to the various automobiles and to allay the purported fear that otherwise certain of these records would not be available.

At the time the order appealed from was entered,, the defendant dealership had closed its doors. The only business activity was work by an accountant to take care of certain payroll matters, clarify certain customer problems, and determine receivables. The court’s order provided that the books and records be impounded — not produced — at the address of the accountant, where some of the records then were, or at such other place as the parties might agree. The books and records to be impounded covered only a two-year period. Only the defendants’ agents were to have access to the documents. The plaintiff and intervener were to pay all costs in connection with the storage and maintenance of the records. It appears from court’s statements that the records were to be impounded only for so long as necessary to enable the plaintiff and intervenor to obtain copies of documents ordered by the court to be produced.

In view of the circumstances of this case, we find that it is readily distinguishable from People ex rel. General Motors Corp. v. Bua, 37 Ill2d 180, 226 NE2d 6 (1967), and that the order entered by Judge Swanson served a useful purpose and was not unduly broad.

The order reflects the concern which he expressed at the hearings and obviously was the result of these hearings, and not of the prior order of Judge Petersen. It is true that the second order did not vacate the earlier one, but referred to the earlier order as being modified to the extent that it was in conflict with the latter one. In this regard the second order was erroneous. It should have vacated the earlier, void order. It does not follow, however, that the second order — that of Judge Swanson —was void, as argued by the defendants. It was valid in all respects other than it should have provided that the prior order was vacated thereby, rather than that to the extent that the prior order conflicted with the latter order, it was modified thereby.

The defendants also contend that the injunction order was improper in that a replevin action is an action at law and the equitable relief of injunction may not be granted in such an action, and that only the relief specifically provided for by the replevin statute may be awarded. We do not agree with the contention that injunctive relief is improper in a replevin action.

Concededly, replevin is governed by the statute and the remedy provided and procedure to be followed is controlled and limited by the Replevin Act to the extent it is expressive of those matters. Thus, a local rule of court — which purported to provide that if the property to which possession is sought is concealed so that it cannot be found upon demand by the officer, the defendant must turn it over or be deemed in contempt of court— was held to be void in that it compelled the defendant to do something in a replevin suit which was not provided for by the statute. Universal Credit Co. v. Antonsen, 374 Ill 194, 29 NE2d 96 (1940).

The court noted that the Replevin Act did not contain any authorization for demanding the defendant to turn over property upon threat of fine or jail sentence; and that the statute did contemplate a money judgment if the property was not turned over. Universal Credit Co. v. Antonsen, supra, 198. The court further pointed out that the local rule could not expand the remedy or power provided by the Act. It noted, however, on page 199 of the opinion, that there could be contempt in a replevin action if there were misconduct or contempt of court orders; and that the order in a replevin action and the resulting writ is directed to the court’s officer and is not a command to the defendant.

A temporary injunction of the nature ordered here is not, however, a remedy beyond the scope of the Replevin Act, nor prohibited by it. The purpose of the temporary injunction was to further and assist the action. The Replevin Act expressly provides that, where not in conflict, the Civil Practice Act is to govern as to the procedure and rules applicable to such a proceeding. (Ill Rev Stats 1967, c 119, par 21a.) The circuit courts are given the power by statute to award injunctions and issue such writs as may be necessary or proper to carry into effect the powers granted to them (Ill Rev Stats 1967, c 37, pars 72.25 and 72.26), and are granted injunctive powers by the Injunction Act (Ill Rev Stats 1967, c 69, par 1 et seq.).

We find nothing in the Replevin Act which expressly or impliedly prohibits the issuance of a temporary injunction if necessary as a procedural aid to ascertain the truth and a complete disclosure of all of the facts essential to a correct determination of a replevin action.

The argument that injunctive relief is equitable and may not be awarded in an action at law is not persuasive. There are instances, presumably, where the time-honored distinctions between courts of law and chancery and their powers may have merit. See: Ill Rev Stats 1967, c 110, par 1. These instances and distinctions, however, have long been losing significance.

The Hlinois Constitution, Article VI, par 9, grants unto our circuit courts unlimited original jurisdiction of all justiciable matters without distinction between chancery and law powers. It is of no significance that a circuit may not have a chancery division; the important point is that under the new Judicial Article, every circuit judge has equity powers, which may be exercised, to grant the form of relief which the case may require. Thus, the struggle to amalgamate law and chancery powers, which began in England in 1873, was concluded in Illinois when its electorate adopted the new Judicial Article in November of 1962.

Also, one of the dominant aims of the Civil Practice Act is that controversies be speedily and finally determined according to the substantive rights of the parties. Such determination of rights would be shackled if the powers of a court of equity could not extend relief temporarily so as to protect a party against irreparable injury pending proceedings at law to establish a legal right.

The refusal of a court to permit the rote expression of the rule that equitable relief may not be granted in relation to a legal action is not new. In Kulwin v. Harsh, 232 Ill App 419 (1924), the court — in answer to the contention that the only question between the parties was the right to possession which was purely a legal matter, and, therefore, the court was without equity jurisdiction — stated at page 426:

“The rule invoked by counsel for the defendant rests upon the principle that parties having legal rights should be remitted to courts of law for their vindication, and that jurisdiction in equity should be denied until the legal rights are established by law. In modern practice the rule is nowhere so rigid as that which originally prevailed, and the tendency of courts of equity now is to extend relief temporarily so as to protect against irreparable injury pending proceedings at law to establish a legal right.”

And, on pages 423 and 424, the court pointed out that the appointment of a receiver was proper by the trial court even though the legal proceeding as to possession was then pending before the appellate court, and stated:

“By the weight of authority it is a well-recognized province of equity jurisdiction to give aid to an action in another court, either by injunctive process or by the appointment of a receiver whenever either or both of these remedies are necessary to preserve the existing status of property until the proper disposition of the property has been determined in litigation then pending respecting the property, provided irreparable damage may result if the existing status of the property is not preserved.”

Also see: 27 Am Jur2d, Equity, § 11.

We believe that the trial court had the power to grant the injunctive relief which it ordered. We see no reason why such an order could be entered in another action in aid of this one, and not in this one, itself; indeed, it seems obvious that it is to everyone’s advantage that the particular injunctive remedy be sought in this same proceeding. It is not a practice to be followed lightly, but the court apparently was aware of this and provided by its order as much protection and convenience to the defendants as was proper under the circumstances. We cannot say that the court, under the facts before it, abused its discretion in exercising the power it had.

As heretofore stated, the order of Judge Petersen, insofar as it went beyond ordering a change of venue, was void; the order of Judge Swanson was not void, and was erroneous only insofar as it purported only to modify the earlier order of Judge Petersen. It should have vacated that order. Accordingly, the order appealed from is affirmed in part and reversed in part and the cause is remanded for further proceedings not inconsistent herewith.

Affirmed in part and reversed in part and remanded.

MORAN, P. J. and SEIDENFELD, J., concur.


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    Wayne Crafton, Plaintiff-Appellee, v. Lester B. Knight & Associates, Incorporated, a Corporation, Caterpillar Tractor Company, a Corporation, Mississippi Valley Structural Steel Company, a Corporation, and Joseph T. Ryerson & Son, Incorporated, a Corporation, Defendants-Appellants.
    Gen. No. 68-101.
    Third District.
    October 14, 1969.

      Robert C. Strodel, of Peoria, for appellant.
    Lester B. Smith, Jr. and James L. Hafele, of Peoria, for appellee.
   STOUDER, P. J.

Plaintiff, Wayne Grafton, commenced this action in the Circuit Court of Peoria County seeking damages for alleged violation of the Structural Work Act against Defendants, Lester B. Knight & Associates, Caterpillar Tractor Company, Mississippi Valley Structural Steel Company and Joseph T. Ryerson & Son. In addition to filing their answers, each of the defendants by counterclaim or third-party action, sought indemnity from John F. Beasley Construction Company, the employer of plaintiff. Beasley accepted the defense of the principal action and as a consequence the counterclaims and third-party actions were dismissed. Trial before a jury resulted in a verdict in favor of plaintiff in the amount of $20,000 against the defendants, from which judgment defendants have appealed. During the pendency of this appeal, Grafton’s death has been suggested and leave has been granted to substitute his personal representative.

Defendants’ principal assignment of error is that the Structural Work Act is as a matter of law inapplicable to the facts of this case. Consequently, according to defendants, the trial court erred in failing to direct a verdict and in failing to grant their motion notwithstanding the verdict.

Caterpillar Tractor, as owner, entered into certain agreements with the other defendants as prime contractors for the construction of a project near Peoria, Illinois, which after completion would be known as the Caterpillar Foundry. On April 28,1966, plaintiff, an iron-worker, was employed by Beasley Construction, a subcontractor. Plaintiff and two fellow employees also iron-workers, were working with an Allis-Chalmers tractor equipped with a thirty-foot side boom hoist, the tractor being operated by an operating engineer. The tractor and men were engaged in moving structural steel from a storage yard to the construction site, a distance of several hundred yards. Plaintiff and his fellow ironworkers “choked” or tied the structural steel into bundles fastening it to the cable on the hoist. The bundles of steel were then lifted nine inches to two feet above ground and the tractor carried the steel to the building site where the ironworkers unfastened the iron. Other hoists then took over the lifting of the steel into position. The ironworkers rode on the tractor from the storage yard to the site, either sitting on the seat with the operator on the gas tank or on a platform built for the purpose. The area traversed by the tractor was covered with mud ranging from six inches to two feet in depth. On one of the trips the tractor apparently lurched and plaintiff fell off injuring his back.

The tractor hoist was used solely for moving structural steel from storage yard to building site and the iron-workers did not and were not at the time riding the steel as it was being moved. Beasley, on the other hand, was specifically informed by an employee of Knight that riding the tractor was against the safety rules and his employees should not be permitted to ride the tractor.

Defendants argue that the Structural Work Act, Ill Rev Stats 1967, c 48, §§ 60-69, is inapplicable. In particular, defendants argue that the facts do not come within the terms of section 60, chapter 48, Ill Rev Stats 1967, which provides, “All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” Section 69 of chapter 48, Ill Rev Stats 1967, imposes liability on those “in charge of” the construction or alteration. For the purpose of this appeal, defendants have conceded that they were “in charge of” the work as the term is used in section 69, supra, but deny that the work was within the terms of section 60, supra.

The applicability of section 60 is a matter of legislative intent. The preamble to the Structural Work Act provides, “An act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, . . . .” As stated in Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill2d 305, 175 NE2d 785, “[In considering] the construction of this Act, we must apply the legal axiom that the words of a statute should be construed to give effect to the legislative intention, which must be ascertained not only from the language from the entire Act, but from the evil to be remedied and the object to be attained.” See Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630 and Louis v. Barenfanger, 39 Ill2d 445, 236 NE2d 724, affirming and applying the liberal construction rule.

It is defendants’ argument that the side boom hoist was not “erected or constructed . . . for the use in the erection ... of a structure. . . .” Section 60, chapter 48, Ill Rev Stats 1967. According to the defendants the Statute has to do with “. . . active construction activities necessary to actually build or erect a structure . . . .”

Defendants argue that the hoist was not being used for active and actual construction or erection. We are not sure what defendants intend by this argument. An examination of section 60 does not indicate any such limitation. To the extent the argument implies that the equipment used must be in the act of pounding, nailing, bolting or otherwise actively combining elements of the building such assertion is untenable. We do not believe that a hoist or crane must be in the process of holding materials in place before such equipment can be deemed to be used in erection or construction. The movement of materials and personnel is an integral part of any erection or construction activity and to hold otherwise would lead to absurd results. By analogy to Bishop v. Napier, 62 Ill App2d 148, 210 NE2d 9, which held the Act did not apply merely because a ladder was involved, we agree that the Act is not applicable merely because a hoist is involved. However the use of a ladder in the removal of storm windows as in Bishop, is far different from the movement of steel for incorporation into a structure. We likewise fail to see any analogy between the instant case and those of Thon v. Johnson, 30 Ill App2d 317, 174 NE2d 400 and Schaffer v. Veach, 61 Ill App2d 168, 209 NE2d 373, cited by defendants. The general principle which these cases illustrate is that something which is not intended for use as a scaffold does not become a scaffold merely because of the intention of the party so using it. In the instant case there is no question but that the hoist was intended to be used as a hoist.

Defendants next argue that whatever work was being done was not being done on a structure or building as required by the Act. In Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d 276, the principal case relied upon by defendants, the court held both that an excavation was not a structure and also that no scaffolds or other such devices were used. The Bradley case is of little assistance in determining the nature and extent of a structure within the meaning of the Act. The preamble of the Act refers to activity “in and about” a structure. Further the Act itself does not require that scaffolds or other devices be in direct physical contact with some permanent part of the structure. We believe that the erection or construction of a structure includes the construction site which may be considered as including that area around the building which is reasonably necessary to accomplish the erection and construction activity. This, in our opinion, could include the area in which the movement of stored materials takes place and it is immaterial whether the hoisting transferred such materials in a horizontal or vertical direction. In Yankey v. Oscar Bohlin & Son, 37 Ill App2d 457, 186 NE2d 57, the injury was caused by a crane unloading concrete forms from a truck.

In the instant case there is ample evidence from which it can be inferred that defendants were in charge of the area and the work being carried on at the time and place of the injury in the course of the construction of the foundry. Plaintiff was specifically directed to ride the hoist by supervisory employees of Beasley, notwithstanding that such use of the equipment constituted a violation of the generally accepted safety rules and notwithstanding the fact that supervisory personnel of the contractor had directed Beasley not to permit such use. In our view of this case we believe the evidence is sufficient to warrant the conclusion that the hoist was being used in the construction and erection of a structure.

Neither is the Act inapplicable because no defect in the hoisting equipment was proved as argued by defendants. Defendants suggest that Hopwood v. Thomas Hoist Co., 71 Ill App2d 434, 219 NE2d 76, establishes such prerequisite. No such rule is announced in the Hopwood case. The opinion merely states that plaintiff’s allegations of a defect in the hoist was not supported by the evidence. This does not mean that a defect in the hoisting equipment must be shown before there can be a violation of the statute.

Defendants’ basic objection to the result has been frequently raised and uniformally rejected namely the result permits an injured employee to accomplish indirectly what he could not accomplish directly. By such indirection the injured employee is able to recover and the employer is required to pay an amount in excess of that provided by the Workmen’s Compensation Act. As indicated in Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, this is a matter for the legislature.

Finding no error in the judgment of the Circuit Court of Peoria County the judgment of said court is affirmed.

Judgment affirmed.

ALLOY and RYAN, JJ., concur.