author: MR. JUSTICE DAVIS MORAN, J.,

text:
    Lumbermens Mutual Casualty Co., a Mutual Company, Plaintiff-Appellee, v. Ronald Poths, Defendant-Appellant, Lawrence Susmark, et al., Defendants-Appellees.
    Gen. No. 68-59.
    Second Judicial District.
    December 27, 1968.

      Dreyer, Foote and Streit, of Aurora, for appellant.
    Tyler and Peskind, of Aurora, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is a declaratory judgment action wherein the plaintiff, Lumbermens Mutual Casualty Co. (Lumbermens), sought a declaration that Eonald Poths (Poths) was not an insured within the language of its automobile liability insurance policy issued to Lawrence Susmark. Poths, while driving the automobile described in this policy, was involved in an accident wherein the defendants, Mildred E. Maxwell and Kimberly Maxwell, allegedly sustained injuries. They brought suit against Poths to recover damages for such injuries.

Poths tendered the Maxwell complaint to Lumbermens and requested it to defend the suit under the policy in question. Lumbermens accepted with reservation of rights and proceeded with the defense of the suit. Concurrently, it filed this declaratory judgment action.

The insurance policy defines the insured with respect to the owned automobile to include “any person while using the automobile . . . provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.”

Lumbermens filed a motion for summary judgment which set forth the above facts and asserted that at the time when the accident occurred, Poths did not have permission from Lawrence Susmark (Mr. Susmark), the insured, or his wife, Anna Doris Susmark (Mrs. Susmark), to drive the automobile. The motion was supported by the affidavit of the attorney for Lumbermens and by a copy of the policy, the Maxwell complaint, the reservation of rights, and the depositions of Mr. Susmark, Mrs. Susmark, Robert Susmark (Robert), and Poths.

Poths filed an affidavit in opposition to the motion for summary judgment which stated that he and Robert were close friends; that the automobile in question was commonly known as Robert’s car; that he thought that Robert owned it; that Robert told him to have an additional key made for his use and he did so in Robert’s presence; that on certain occasions before the accident, he and Robert would discuss plans for the evening at the Susmark home and in the presence of Mr. and Mrs. Susmark; that on such occasions upon leaving the home, Robert in no manner sought permission of his parents to drive the car; that Mrs. Susmark once saw him drive the car and she made no comment about it; and that he had driven the car approximately twice a week for a considerable period of time prior to the accident and always with Robert’s permission.

An affidavit of Eugene Laky, also filed in opposition to the motion, recited that the automobile was commonly known as Robert’s car; that he had driven it with Robert’s permission; that on one occasion when Poths was driving the car and he was a passenger, Mrs. Susmark saw Poths drive; and that Poths drove the car into the Susmark driveway and stopped, and Mrs. Susmark made no protest with reference to the fact that Poths was driving.

The depositions of Poths, Robert, Mr. Susmark and Mrs. Susmark will be considered separately.

Poths, 16 years of age, stated that he and Robert were close friends; that they went to dances and rode around together; that Robert never told him that there were restrictions on the use of the car; that when he visited at the Susmark home and Robert desired to use the car, Robert would ask either his father or mother for permission to use it; and that on one occasion, Mr. Susmark refused Robert’s request to use the car. Poths also stated that he worked on the car with Robert at the Susmark home; that while working on the car he would drive the car forward or backward in the driveway; that Robert taught him to drive the stick shift, but he didn’t believe that Robert said anything to his father about this; that he never discussed driving the automobile with Mr. Susmark; that in April of 1966, with Robert’s permission, he had a key made for the car; that he had been driving the car while Robert was at work since about January of that year; that Robert would drive the car to work, then park it, and he would drive it as long as Robert was working and didn’t need it; that Robert would know in advance when he was going to use the car; that he would ask Robert if he could use it; that he used it with Robert’s express permission; that on one occasion, Robert left the key in the car and he drove it from school without Robert’s express permission; that he was taking classroom driving at school but did not have a driver’s license; that on certain occasions, Robert would tell him not to use the car because he was going to get off early or because something was wrong with it; and that Mrs. Susmark saw him drive the car on one occasion and neither objected nor told him not to drive in the future.

Poths further stated that on April 22, 1966, the date of the accident, Robert asked him if he was going to use the car and he said he wasn’t because the transmission was causing trouble; that later Jerry Hulme came to the theater where he worked and asked for and was refused the key to the car; that Hulme came back later and said that Robert told him that it was all right to get the key; that he then gave Hulme the key and asked him to bring the car back at 9 p. m.; that Hulme returned about 9:30 p. m. with two girls and asked him when he would get off work, and he stated at 10:30 p. m.; and that Hulme came back at that time and he (Poths) got into the car and drove it, and was driving it in Aurora at the time of the accident.

Mr. Susmark, the insured, stated that Mrs. Susmark purchased the car and held title to it; that it was purchased as a second car for Mrs. Susmark and for Robert to use on occasion with permission from his parents ; that Robert obtained specific permission from either Mrs. Susmark or himself on each occasion when he used the car; that Robert had no blanket permission to use it; that he had cautioned Robert about letting anyone else drive the car; that on one occasion he saw Poths drive the car in the driveway when the boys were working on it; and that he did not know there was a second key to the car. He also stated that Robert had repaid him for part of the purchase price of the car, and and that it was purchased partly for him to have a car so he could learn how to drive and maintain a car.

In her deposition, Mrs. Susmark stated that the car was purchased by her husband and herself as a car for her and as a car for Robert to work on and use; that Robert had paid for the insurance on the car and had repaid part of the purchase price of the car; that she kept the key in her purse; that Mr. Susmark told Robert that no one other than the three of them was to drive the car; and that she had no recollection of ever seeing Poths drive the car. Her statements concerning Robert’s permissive use of the automobile were substantially the same as those of Mr. Susmark. She also stated that she worked evenings on occasion and used the car for shopping; that Mr. Susmark took the train to work and left his car at home.

Robert, a high school senior, stated that the car was purchased, as a second family car for his mother; that he could drive it on occasion and could work on it; that he oiled and greased the car and worked on it; that he had to have specific permission from either his father or mother for each occasion when he used the automobile, and he never used the car without such permission; that he never sought permission for anyone else to use it and never told his father or mother that anyone else was driving it; that after his father saw Poths drive the car in the driveway, his father told him that he didn’t want Poths to drive the car; that he had no specific understanding with Poths about driving the car; and that he agreed that Poths could use it if he had his specific permission for each occasion.

Robert also stated that he worked on April 22; that he had permission to drive the car to work and did so; that he talked with Poths who said he wasn’t going to take the car; that he told Poths that he didn’t want him to use it because of trouble with its transmission; that he did not see or give Hulme permission to use the car or get the key; that before going to work, he parked the car in the parking lot and removed the key; and that when he came back about 1:30 p. m., after completing his work, the car was gone. Robert further stated that he had never contributed anything on the purchase price of the car, but did buy gasoline and oil and helped with repairs for it.

A similar declaratory judgment action against the Farmer’s Insurance Company was also filed in the Circuit Court of the 16th Judicial District, Kane County, wherein Robert F. Poths, and Ronald W. Poths, a minor, by Robert F. Poths, his father, were plaintiffs. The Poths made a motion to consolidate these actions. The trial court denied the motion hut did order the cases consolidated for trial, which was done, and separate judgments were entered in each case.

The trial court entered a summary judgment in the case at bar in favor of Lumbermens and the defendant Poths, appealed.

Poths here urges that the trial court abused its discretion in denying his motion to consolidate the two actions, and that the court erred in entering summary judgment in favor of Lumbermens.

The consolidation of cases is a matter within the discretion of the trial court, and unless that discretion has been greatly abused, this court will not interfere. Black Hawk Motor Transit Co. v. Illinois Commerce Commission, 383 Ill 57, 66, 48 NE2d 341 (1943); Chicago v. Atkins, 19 Ill App2d 177, 180, 153 NE2d 302 (1958). In the case at bar, the trial court denied the motion to consolidate, but did order that the two cases be consolidated for trial. Under these circumstances, we find no abuse of discretion in the denial of the motion.

The entry of summary judgment in favor of Lumbermens presents the issue of whether the trial court erred in holding, as a matter of law, that Poths was driving the automobile in question at the time of the accident without the permission of either Mr. Susmark or his wife.

The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576 (1958)) ; however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Ruby v. Wayman, 99 Ill App2d 146, 240 NE2d 699, 700 (1968); Solone v. Reck, 32 Ill App2d 308, 310, 311, 177 NE2d 879 (1961); Tezak v. Cooper, 24 Ill App2d 356, 362, 363, 164 NE2d 493 (1960).

Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, “show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or decree as a matter of law.”

Courts have construed this section to mean that in determining if there is a genuine issue as to any material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts then a triable issue exists. Ruby v. Wayman, supra, 700, 701; Peirce v. Conant, 47 Ill App2d 294, 300, 198 NE2d 555 (1964).

In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra, 311. A summary judgment should then be granted where the moving party’s right thereto is clear and free from doubt. Ruby v. Wayman, supra, 701; Palier v. Dreis & Krump Mfg. Co., 47 Ill App2d 334, 338, 198 NE2d 521 (1964); Solone v. Reck, supra, 310.

Applying these principles, we believe that the trial court erred in granting a summary judgment in favor of Lumbermens. The only function of the court, when presented with a motion for summary judgment, is to determine if a genuine issue exists as to a material fact; if not, summary judgment is proper; if so, summary judgment is improper, as the court may not summarily determine a material fact issue. Kamholtz v. Stepp, 31 Ill App2d 357, 367, 368, 176 NE2d 388 (1961).

There is no genuine issue with reference to the fact that on the date of the accident, Robert was granted permission by either his father or mother to drive the car to the placed where he worked. This he did. Later, Jerry Hulme, without permission and by ruse, obtained the key to the automobile from Poths, who told him to return the automobile by 9 p. m., park it, and return the key. Hulme came back at 9:30 p. m., accompanied by two girls, and asked Poths when he would get off work. Poths told him at about 10:30 p. m., and Hulme said he would be back. Hulme and the girls came back and Poths got in the automobile, drove it, and was driving it at the time of the accident.

Earlier in the afternoon of April 22, Poths told Robert he wasn’t going to use the car because of its transmission trouble and Robert said that was good because he didn’t want him to use it. Both Poths and Robert stated in substance that Poths would ask permission of Robert, in advance, to use the car, when Robert was at work. Robert said that there was an understanding that Poths would get permission for each occasion when he would use the car.

Thus, the evidence is uncontroverted that Robert had express permission to drive the car to work on the evening in question. He did so, parked it, and removed the key. Likewise, the evidence is undisputed that Hulme had no permission, express or implied, from any source whatsoever, to drive the car; and Poths had no express permission. The right of Poths to drive the car at the time of the accident, if any he had, arose by implication.

Implied permission involves an inference or circumstances arising from a course of conduct or relationship between the parties in which there is a mutual acquiescence or lack of objection under circumstances signifying permission. Thus, an implied permission is not confined alone to affirmative action. Orrill v. Garrett, 100 Ill App2d 194, 241 NE2d 1, 3 (1968); 5 ALR2d, § 7, p 609.

In Hays v. Country Mut. Ins. Co., 28 Ill2d 601, 192 NE2d 855 (1963), the court set forth the circumstances surrounding the original permission (in the case at bar, permission to Robert) which may support an implication of authority in the permittee to grant permission to others to use the automobile. At pages 608, and 609, the court stated:

(1) “Thus where the permittee is in every practical sense the owner of the car, and the named insured holds title for convenience, the general custody and control of the permittee is usually held to empower him to grant permission to others within the scope of an omnibus clause, at least in the absence of express prohibition.” (Citations.)
(2) “If the original permittee retains control of the car, but turns over its physical operation to a third person while remaining a passenger, an implied permission has been found in the continued use and control of the original permittee.” (Citations.)
(3) “Even where the original permittee is not a passenger, an inference of permission has been sustained where the third person is engaged in some errand or activity for the benefit, advantage, or purposes of the original permittee.” (Citations.)
(4) “A course of conduct, establishing that the original permittee was allowing third persons to drive with the knowledge of the named insured and without his objection, may also support a finding of implied permission.” (Citations.)

Even Poths concedes that the circumstances set forth in (2) and (3) have no application in the case at bar. But, he does urge that the facts and circumstances set forth in the pleadings, depositions and affidavits create a genuine issue as to the material fact concerning whether Poths had implied permission to drive the automobile under the guidelines set forth in (1) and (4).

Guideline (1) presents the questions of whether, under the evidence, there was a dispute as to whether (a) Robert was in every practical sense the owner of the car, and (b) whether there was an express prohibition against him permitting third parties to use the car.

In Hays, under guideline (1), the case of Fireman’s Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill App2d 69, 173 NE2d 543 (1961) is cited. In the cited case — an implied permission case — at pages 73 and 74, the court stated that whether or not permission to drive a car exists in any situation is a question of fact; that permission will more readily be implied when the use is for social rather than business purposes; and that permission will be more readily assumed where the permittee has general custody of the car, rather than a limited permission.

Under the evidence, which was conflicting, Robert had made payments to his parents on account of the purchase price of the car; had paid for the insurance, oil and gasoline and had kept it in running condition. These facts indicate that a genuine issue existed on the factual question of whether Robert was in every practical sense the owner of the car, even though there was evidence which would negate ownership in Robert.

The record also indicates that Mrs. Susmark had seen Poths drive the car; that when he drove it into the Susmark driveway, the boys in the car helped Mrs. Susmark take groceries from the other car; and that she did not say anything to Poths relative to the fact that he drove the car. Likewise, Mr. Susmark had seen Poths drive the car in the driveway and had made no protest to him. These circumstances, while negated by Mrs. Susmark, with reference to seeing Poths drive the car, give rise to a genuine issue as to a material fact — whether there was an express prohibition against Poths driving it.

The nature and extent of the permission, if any, which Robert had granted to Poths is not without dispute. Generally, the testimony was that Poths only used the car when Robert was at work and then only with his express permission. However, if such was the circumstance, why did Robert consent to Poths having a duplicate key for the car? Also, Poths testified to an occasion when he used the car without Robert’s permission. In connection with these undisputed facts, would reasonable-minded persons draw different inferences ?

In making the required determinations in a summary judgment procedure, we must remember that the pleadings, affidavits and depositions must be construed most strictly against the moving party, Lumbermens, and most liberally in favor of the opponent, Poths. Solone v. Reck, supra, 311.

The foregoing facts and circumstances also give rise to a genuine issue of a material fact under guideline (4)— whether such course of conduct established that Robert was allowing third persons to drive with knowledge of the named insured and without his objection.

The issue before the court in this summary judgment case was whether there was a dispute as to material facts; and if the material facts were not in dispute, then the issue was whether reasonable minded persons might draw different inferences from such facts. We determine this issue in the affirmative in either event. The purpose of a summary judgment is not to try an issue of fact, but rather, to determine whether one exists. Kamholtz v. Stepp, supra 367.

A party’s right to summary judgment should be free from doubt (Ruby v. Wayman, supra, 701); but the record on which the summary judgment was granted in this case, fails to meet this requirement.

Lumbermens, in support of the trial court’s ruling, has urged that under the rule announced in Pedrick v. Peoria & Eastern R. R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), the trial court properly granted summary judgment. It is its contention that under the facts of this case, Poths could never establish the requirements of the Hays guidelines (1) and (4).

However, the issue in the summary judgment case at bar, was not whether Poths could ever establish the requirements of such guidelines. The issue was whether there was a dispute as to the material facts; and, if the material facts were not in dispute, then the issue was whether reasonable minded persons might draw different inferences from such facts. In either event, a triable issue existed and a motion for summary judgment should not have been granted.

In Pedrick, at page 510, the court stated:

“In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Emphasis ours.)

Pedrick contemplates the existence of a triable factual issue which has been or will be heard by a jury. It provides the rule which shall govern in connection with the direction of a verdict. After the denial of a summary judgment herein, the trial of the cause, upon proper demand, could be before a jury. In such event, the court would not be precluded from directing a verdict for Lumbermens, if all the evidence, when viewed in its aspect most favorable to Poths, so overwhelmingly favored Lumbermens that no contrary verdict based on that evidence could ever stand. Ruby v. Wayman, supra, 701.

For the reasons stated above, the summary judgment entered in favor of Lumbermens is reversed and the cause remanded to the trial court for further proceedings.

Eeversed and remanded.

SEIDENFELD, J., concurs.

MORAN, J., dissents.

MORAN, J.,

dissenting:

I do not share the same views taken by my learned colleagues in this case and therefore must dissent.

My conclusions of fact are based solely upon the affidavit and deposition of Ronald Poths, the moving party in this appeal, and my conclusions of law are based upon the Hays case, specifically, guidelines (1) and (4) as set forth in the majority opinion.

As to guideline (1), even if we assume that Robert Susmark, the original permittee, is, for every practical sense, the owner of the vehicle in question; that his father or mother held title for convenience; and that Robert Susmark had the general custody and control of the automobile in dispute (Poths deposition stated that every time Robert desired to use the car he had “to get permission to leave and take the car”), still, on the day of the accident, there was a specific understanding that Poths would not use the car. At his deposition, he testified to a conversation with Robert, relating to the use of the car, as follows:

Q What was the conversation about ?
A He wanted to know if I was going to use the car and I told him no.
Q Going to use the car that night ?
A Yes.
Q And you told him ?
A I wasn’t going to because we had trouble with it and we only had first gear and third gear, and I didn’t want to wreck the transmission any more.
Q Was there any other conversation between you and Robert Susmark on that date?
A I don’t believe so.

Even more important is the fact that Poths always had express permission, never implied, when he drove the Susmark vehicle. At the same deposition, upon being queried on this point, his testimony was as follows:

Q Mr. Poths, you stated in response to Mr. Lindner’s question that it was all right with Robert Susmark for you to drive the car when he didn’t want to use it himself. Do you remember making that answer to his question?
A Yes.
Q Prior to such use, would you ask his permission, whether you could use it or not ?
A Yes, when I knew he was going to be at work, I would ask.
Q So the times that you used it when it was all right with him, it was by his express consent that you use it. Is that correct?
A. Yes.
Q You stated that Mrs. Susmark saw you driving the car. Did she say anything to any other person other than yourself about your driving the car?
A I couldn’t say.
Q ¥ou stated in response to Mr. Simpson’s question that you drove this car from school on one occasion. At that time did you ask Robert’s permission to drive the car from school to your home?
A I didn’t really ask for permission. I told him I would probably use it.
Q What did he say ?
A I can’t say for sure. I told him I would probably use the car, and he said okay or something.
Q You don’t remember the exact words ?
A No, I don’t.

It is my opinion that Poths did not qualify under guideline (1).

As to guideline (4), there was no knowledge on the part of Lawrence Susmark, one of the named insured, that Poths was driving the vehicle in question. The following testimony by Poths at his deposition on this point is clear when he was examined as follows:

Q Did you ever discuss your use of this car with his father, Lawrence Susmark?
A No.
Q Did Lawrence Susmark know that you were using the car?
A No, he didn’t.

Mrs. Anna Doris Susmark, mother of Robert, and the other named insured, supposedly saw Poths on one occasion, follow her into the Susmark driveway while Poths was driving the vehicle. Assume that she did see Poths behind the wheel, even though she claims no memory of such occasion; it is my opinion that one act does not constitute a “course of conduct” which would impute “knowledge” to the named insured as required by guideline (4) of the Hays case.

Webster defines “course” as a number of like things in the same regular order; a series. (Webster’s New Twentieth Century Dictionary (unabridged) 2nd Ed (1964).) One act does not conform to such definition.

On the night in question, there was definitely no express permission for Poths to use the vehicle and he would necessarily then be dependent upon past performance to establish an implied permission. His own statements, quoted above, indicate that at all times prior to the date of the accident he obtained express permission before driving the vehicle. I am of the opinion that it was incumbent upon Poths to show that he had, previous to the night in question, driven Robert’s car, without express permission and to the knowledge of Robert or the named insureds, without objection.

Poths did not do so, and therefore, the trial court was correct in its judgment and I would affirm.


source: Caselaw Access Project

author: MR. JUSTICE SCHWARTZ

license: Public Domain

text:
    Charles Mungo and Concetta Mungo, Plaintiffs-Appellees, v. Bank of Broadway, a Banking Corporation, Defendant-Appellant.
    Gen. No. 51,518.
    First District, Third Division.
    December 27, 1968.
    George B. Collins, of Chicago, for appellant.
    Gerard A. Serritella, of Chicago (Gerard A. Serritella and Philip J. McGuire, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiffs Charles and Concetta Mungo brought suit to recover a balance of $809.93 in their savings account with the defendant bank. The bank had refused to permit withdrawal of the funds on the ground that it held an assignment of the account as collateral for a loan made to Rocco Benedetto, plaintiffs’ son-in-law, which it alleges the plaintiffs guaranteed. Plaintiffs charge that their signatures on the assignment were forged and the prime issue in the case turns on that question. The bank also counterclaimed for the additional sum of $4,000 which it charged had been withdrawn from the bank by fraud, deceit and misrepresentation.

The trial court heard the case without a jury and entered judgment in favor of plaintiffs for $809.93, the amount remaining on deposit, and against the bank on its counterclaim for $4,000. The bank’s appeal rests on two grounds: (1) that the finding was against the manifest weight of the evidence, and (2) that the funds were paid out of the savings account by mistake made in failing to give notice of the assignment to its tellers. The facts follow.

Plaintiffs owned a business known as “No. 2 R & P Enterprises, Inc.” The business was operated by Rocco Benedetto. The bank loaned $4,000 to Benedetto d/b/a “No. 2 R & P Enterprises” on January 3, 1962. The loan was not repaid and judgment was entered against Benedetto in the sum of $4,531. Benedetto went into bankruptcy, listed his liability on the note and apparently was discharged. Benedetto testified that he paid a $500 bribe to William Lemcke, an officer of the bank, in order to get the loan. Lemcke denied the bribe.

The bank offered in evidence the assignment in question which bears what purports to be the signatures of Charles and Concetta Mungo. By the terms of the assignment the plaintiffs pledged their $5,000 savings account as collateral for the loan. At the time of the default by Benedetto the Mungos had withdrawn $4,000 from the account, leaving a balance of $809.93.

On the trial of the case plaintiffs testified that they had not executed an assignment of the savings account and that their signatures on the assignment were forgeries. Defendant presented the testimony of an ex-officer of the bank who had witnessed the execution of the assignment by the Mungos. Benedetto also testified that he had observed the execution by them. In addition to those two witnesses, another witness Milton Godown, an expert in the examination of questioned documents, testified that the signatures on the assignment were those of the plaintiffs. His testimony was based on a comparison of the signatures on the documents with plaintiffs’ signatures admitted in evidence as genuine. An examination of the documents does not reveal any discrepancy apparent to a layman.

Thus on behalf of the bank we have the fact that no discrepancy apparent to a layman exists between acknowledged signatures and the signatures in question and in addition the testimony of an expert on questioned documents and of two other witnesses support the genuineness of the assignment. The only witnesses for plaintiffs were the plaintiffs themselves. The manifest weight of the testimony is against the finding of the court that the assignment was forged, and the judgment must be reversed and the cause remanded for new trial.

If on a new trial the assignment is found to be genuine, the bank will be entitled to the sum now in plaintiffs’ account. As to the amount paid out of the savings account subsequent to the alleged assignment, the bank contends that this was paid out by virtue of the failure of the officers making the loan to notify the savings tellers of the assignment. It contends this was a mistake. Salvati v. Streator Tp. High School, 51 Ill App2d 1, 200 NE2d 122; J. S. Hulse Hardware Co. v. American Express Co., 65 Ill App 596; West Frankfort Bank & Trust Co. v. Barretti, 206 Ill App 261. On retrial the court should determine whether there was a mistake warranting judgment on the counterclaim.

The judgment is reversed and the cause is remanded for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Chellew, Defendant-Appellant.
    Gen. No. 68-45.
    Second District.
    December 27, 1968.
    Rehearing denied January 23, 1969.

      John Vogel, Public Defender, of Glen Ellyn, and Edwin L. Douglas, Public Defender, of Wheaton, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Kevin P. Connelly and Frank Wesolowski, Jr., Assistant State’s Attorneys, for appellee.
   JUSTICE MORAN

delivered the opinion of the court.

The defendant appeals from his conviction on three counts of an indictment charging indecent liberties with a child, in violation of section 11-4 of the Criminal Code (Ill Rev Stats 1965, c 38, § 11-4).

The defendant is nineteen years of age. He and four other young men, Patrick Gibson, Michael Gibson, James Owen and Bill Levy, all over the age of seventeen, picked up two fourteen-year-old high school girls in Lisle, Illinois, and took them by automobile to the home of the Gibson brothers in Villa Park. There, Patrick Gibson had sexual intercourse with each of the girls, and the appellant Chellew engaged in an act of deviate sexual conduct with one of them. Under the statute, indecent liberties is defined as any act of sexual intercourse or any act of deviate sexual conduct committed by a person over the age of seventeen with a child under the age of sixteen.

There was substantial evidence adduced to show that Chellew not only engaged in the act of deviate sexual conduct with one of the girls, but that he aided and abetted Patrick Gibson in the acts of sexual intercourse committed by Gibson. For instance, the uncontradicted evidence indicates that the defendant carried one of the girls into a room where Gibson was, that he restrained one of the girls when she attempted to go to the other girl’s assistance at one point, that he threatened the girls with violence if they told anyone what had happened, and that he had participated in the decision which was made to pick up the girls in the first place.' In short, the evidence was sufficient to show that Chellew participated fully in the events which led to and facilitated the acts of intercourse engaged in by Gibson.

Defendant’s first point concerns the sufficiency of the indictment. Count I charged the defendant, both Gibsons, Owen and Levy with indecent liberties in that they “performed an act of sexual intercourse” with one of the girls. Count II charged the same persons with indecent liberties in that they performed an act of deviate sexual conduct with the same girl. Count III charged the same defendants with indecent liberties in that they performed an act of sexual intercourse with the other girl. Defendant’s argument is that Counts I and m of the indictment are defective as to him, in that he was charged as a principal rather than as an aider and abettor. There is no merit to this point. People v. Touhy, 31 Ill2d 236, 201 NE2d 425 (1964).

Defendant’s next point is that there was not enough “corroboration” of the testimony of the two fourteen-year-old girls to support his conviction. He argues that in certain respects the testimony of the girls was implausible and inconsistent. The “corroboration” of their testimony was furnished by the codefendant James Owen, who testified for the State. In general, his version of the matter was the same as that given by the two girls.

There is nothing so implausible or inconsistent about any of the evidence that we can say, as a matter of law, that there is a reasonable doubt of the defendant’s guilt. The weight of the evidence was for the jury to determine, and our review of the record leads us to the conclusion that the evidence was sufficient to support the verdict.

Defendant’s next point is that his sentence of 9 to 14 years is disproportionate to the sentence of 3 to 4 years imposed upon the codefendant Patrick Gibson, who pleaded guilty. Defendant argues that he was penalized for going to trial, inasmuch as he received a sentence three times as long as that imposed upon Gibson who, according to defendant, was the “prime mover in the entire occurrence.”

The statute provides for a penalty of from 4 to 20 years. It appears from the record that, at the time of the offense, the defendant was on parole from the penitentiary, having previously been convicted of the crime of burglary and having served one year of a one to three year sentence in the penitentiary. Insofar as this record shows, Patrick Gibson had no previous criminal record. Therefore, this is one difference which would justify a difference in sentencing. Secondly, we do not believe the record supports the conclusion that defendant was substantially less culpable than Patrick Gibson. While Gibson had intercourse with each of the girls, defendant facilitated those acts and committed an act of deviate sexual conduct on his own. Furthermore, he threatened the girls with violence, and, according to the evidence, stated that one of their brothers would be killed if they divulged what had happened.

We are also impressed by the fact that Michael Gibson, who went to trial along with appellant, and whose participation had been solely that of an aider and abettor, was given a sentence of 7 to 14 years. It appeared that Michael Gibson was also on parole for burglary at the time of this offense. Thus, it appears to us that, as between the appellant and Michael Gibson, the sentences were proportionate to their participation in the offense, and that, as between Michael Gibson and appellant on the one hand, and Patrick Gibson on the other, the court could properly distinguish on the basis of their previous records. We conclude that there was no error in the sentencing of defendant.

Defendant’s final point is that the prosecution improperly commented upon his failure to testify, in violation of section 155-1 of the Criminal Code (Ill Rev Stats 1965, c 38, § 155-1) which provides that a defendant’s “neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

The comment in question was made by the Assistant State’s Attorney in his rebuttal argument, after counsel for the appellant and the codefendant Michael Gibson had argued that the defendants could reasonably have believed that the girls were over sixteen years of age. This issue arose because the indecent liberties statute provides that it shall be an affirmative defense that “the accused reasonably believed the child was of the age of sixteen or upwards at the time of the act giving rise to the charge.” ' (Ill Rev Stats 1965, c 38, § 11-4 (b) (1).) The defense had offered into evidence certain photographs which had been taken of the two girls at their school prior to the date of the offense. Although these pictures are not a part of the record before us, we gather from the record we do have that the girls, at least in the view of the defense attorneys, could have been mistaken for sixteen from their appearance in the pictures. At the trial, on the other hand, it appears that the girls were dressed and made up in a way that was more consistent with their actual age of fourteen. There was considerable cross-examination by the defense attorneys concerning the fact that, at the time of the offense, the girls were wearing makeup, silk stockings, and the like, whereas, at the trial, they were not.

The incident in question, which occurred during the Assistant State’s Attorney’s rebuttal argument, was as follows:

“You are also going to be told, and defense counsel mentioned this to you, what the affirmative defense is to this charge. I believe you will be told that the affirmative defense is that the defendants, the accused, reasonably believed the ages of the girls in this case involved to be 16 or upwards. That’s the law.
“Where in the evidence do they show what their belief was at all as to the ages of these girls? Where in the evidence do they show that this belief that they had was reasonable? Where is the evidence? Are they going to say on the basis of these two pictures that they never saw — they never saw these pictures. There is no evidence from that witness stand that told you either one of these two defendants ever saw these pictures. These pictures are valueless. They are worthless. Assuming that they did see the pictures, and there is no basis for that assumption, did anybody tell you that the accused based their belief on the pictures? Did you hear anything like that from the witness stand? What confuses me is that I don’t know if they say they reasonably believed it. I didn’t hear them say that. I didn’t hear — ”
“MR. LANG: Objection, your Honor.
“MR. BAILEY: Objection, your Honor.
“This is most improper.
“THE COURT: The objection is sustained.”

Defense counsel then made timely motions for a mistrial and these motions were denied.

The remark, “I didn’t hear them say that,” coming right after “Did you hear anything like that from the witness stand?” can, in our judgment, be interpreted in only one way. It is an express statement by the prosecutor that he did not hear the defendants state from the witness stand that they reasonably believed the girls to be over sixteen years of age. This is a direct, unambiguous reference to the defendant’s failure to testify.

The People do not contend otherwise. Their entire argument on this point is as follows:

“The People submit that such argument does not overreach the bounds of proper argument as set in People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968).”

We do not find this statement helpful. In the Mills case, the defendant was charged with unlawful possession of narcotics. A package containing heroin was found under a barstool occupied by defendant at the time of his arrest, and a prosecution witness testified that he had seen the defendant place the package there. The defendant did not testify. In his closing argument, the prosecutor pointed out that no one who was in the bar at the time of the occurrence contradicted the testimony of the prosecution witness. On appeal, it was contended that this was a reference to the defendant’s failure to testify. The Court, at page 8, observed that:

“An appropriate test in deciding whether such closing argument violated the defendant’s right to remain silent under Section 155-1 of the Code of Criminal Procedure was set out in Watt v. People, 126 Ill 9, 32, as whether ‘the reference (was) intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify?’ ”

The Court then reviewed several cases in which the comment of the prosecutor had been held improper, and concluded that, in such cases, “. . . the prosecutorial design appears to have been to point the finger of blame directly at the defendant for his failure to testify when it was within his power to enlighten the jury.” The Court went on to hold that, since there were between eight and thirteen people in the tavern at the time of the defendant’s arrest, “. . . (W)e cannot accept the defense contention that the prosecutor’s argument that no one had controverted the State’s principal witness constituted a covert reference to the defendant’s failure to take the witness stand.” (People v. Mills, supra, at pages 9 and 10.)

The instant case is clearly distinguishable from Mills, simply on the basis that the comment of the prosecutor here was an explicit statement that he had not heard the defendants testify. We do not understand how the People can claim the argument did not exceed the limits indicated in Mills. It seems to us that, on the contrary, the comment in question falls precisely within the category which Mills, and the cases cited therein, have indicated is proscribed.

In People v. Wollenberg, 37 Ill2d 480, 487-488, 229 NE2d 490 (1967), the prosecutor in his final argument to the jury mentioned all the witnesses who had testified and stated “No one else testified. Let’s get that straight.” The Court reversed the defendant’s conviction, on the ground that:

“. . . (I) t is apparent to us that the underlying purpose and the ultimate effect of the prosecutor’s remarks was to call attention to the defendant’s failure to testify, thereby accomplishing by inference what could not be done expressly. As such, we hold that the statement in question constitutes plain error.”

In the instant case, there was nothing left to inference. The prosecutor’s statement was nothing less than an express reference to the defendant’s failure to testify.

In People v. Asey, 85 Ill App2d 210, 218, 229 NE2d 368 (1967), a robbery case, the prosecutor commented to the jury that the defendant “doesn’t explain anything about the property found on him; he never does later.” The Court held that this statement by the prosecutor, in view of its context, was “only a reference to the four times Asey was questioned by the police. . . . The whole argument referred to the pretrial questioning and not the defendant’s failure to testify.” In the instant case, no such interpretation can be placed upon the remarks of the prosecutor. There was no time other than the time of trial that he could have “heard them say” that they believed the girls to be over sixteen years of age.

Furthermore, the comment of the prosecutor was not provoked by any argument of defense counsel, and the case is thus distinguishable from such cases as People v. Woods, 26 Ill2d 557, 562, 188 NE2d 1 (1963). Defense counsel did not argue that the defendants had ever seen the photographs of the girls prior to the date of the offense. Indeed, it was clear from the evidence that they had not. The purpose of the photographs was merely to show that the girls did not necessarily always look as young as they apparently did at the trial. Defense counsel merely argued that defendants could reasonably have believed the girls to be over age sixteen, and there was nothing about their argument which could justify a retaliatory comment on the defendant’s failure to testify.

Finally, we come to the question of what to do about the improper comment. It is unfortunate that the comment was made. It may well be that it had no effect upon the outcome of the case. As we have indicated, the evidence was sufficient to support the verdict of the jury. However, there is no way we can know that the comment did not affect the result. From the cold record before us, we are unable to arrive at any judgment as to whether the jury regarded the case as a close one or not. Certainly, there is substance to some of the defendant’s arguments about inconsistencies in the State’s case. While, as we have indicated, we regard these matters as having been properly submitted to the jury for resolution, we have no basis for concluding that they could only have been resolved in one way. Accordingly, we believe the rule applicable to the case is as set forth in Austin v. People, 102 Ill 261 (1882), where referring to the statutory proscription against comment on the defendant’s failure to testify, the Court stated at page 264:

“We do not see that this statute can well be completely enforced, unless it be adopted as a rule of practice that such improper and forbidden reference by counsel for the prosecution shall be regarded good ground for a new trial, in all cases where the proofs of guilt are not so clear and conclusive that the court can say affirmatively the accused could not have been harmed from that cause.”

The error was not cured by the fact that defendant’s objection to the comment was sustained. People v. Cheney, 405 Ill 258, 90 NE2d 783 (1950).

Because of the improper comment upon the defendant’s failure to testify, the judgment will be reversed and the cause will be remanded for a new trial.

Eeversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE MORAN

text:
    Crest Commercial, Inc., a Corporation, Plaintiff-Appellee, v. Union-Hall, Inc., a Corporation, Elbert L. Bagus and Rita Bagus, Defendants-Appellants.
    Gen. No. 68-50.
    Second District.
    December 27, 1968.

      Roszkowski and Paddock, of Rockford, for appellants.
    Miller, Hickey, Collins & Close, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Crest Commercial, Inc., brought a declaratory judgment action against the defendant, Union-Hall, Inc., et al., for the interpretation of a shopping center lease covering realty located in Rockford, Illinois. The plaintiff is the owner and developer of the center and the defendant is a tenant of plaintiff and retailer of a wide variety of merchandise.

In November, 1960, plaintiff’s predecessor in title entered into a written long-term lease with the defendant. The terms of the lease required the plaintiff to erect a building upon Parcel A for the use of the defendant and further provided “that Parcel A, Parcel B and Parcel C in total constitute and are to be considered for the purpose of this lease ‘the shopping center.’ ” At this same time, one Bonavia, who later became a Vice-President of the plaintiff, owned an undivided one-half interest in certain land, referred to herein as Parcel D, which was east and adjacent to Parcel B but not included in the original tract covered by the lease. The other one-half interest of Parcel D was owned by one of plaintiff’s predecessors in title. Parcel D was transferred to the present plaintiff about one year after the lease was executed. At the time of acquisition it consisted of a deep pit which plaintiff began to fill in 1962 and completed in 1966.

The original lease between the parties contained a covenant describing the type of merchandise sold by defendant in great detail and prohibiting plaintiff from leasing “any of the shopping center area to a business that substantially competes with” defendant’s business. The lease also provided that defendant would have an easement in certain described parking areas (as shown by plot plan “A” attached thereto; however, the plot plan did not show parking within Parcel B) and that such areas would not be used “except by tenants of said shopping center and their agents, employees, customers and invitees.”

In 1962 the parties entered into a supplemental lease and an addition was built to defendant’s building. The supplemental lease included parking within Parcel B, and provided that the “Lessee and its sub-tenants shall have the right to use in common with all of Lessor’s other tenants for off-street parking, drive and walkway purposes all of those portions of Lessor’s premises contained within Exhibit ‘A’ and not built upon and which are anywhere within Exhibit ‘A’ or adjacent thereto available for such purposes.” It should be noted that Exhibit “A” in the 1960 lease was not the same as Exhibit “A” in the 1962 lease.

The supplemental lease provided that plaintiff could build on certain other property it was attempting to acquire if it complied with the restrictive covenant as to competition but this did not include Parcel D nor was Parcel D mentioned in either lease.

From 1960 to the beginning of this dispute the shopping center developed and a number of stores were added including a restaurant, a cleaner, an office building and “Appliance City” which, we assume, is a store selling appliances. By 1967 the pit on Parcel D was filled and the plaintiff commenced negotiation with the Walgreen Company to lease this property for the construction of a typical Walgreen Drugstore. In addition, the proposed lease would entitle Walgreen’s the right to use, in common with other tenants, the parking area located in Parcel B.

It is conceded that Walgreen’s line of merchandise is competitive with the line of goods sold by defendant and, therefore, if the restrictive covenant contained in defendant’s lease applies to Parcel D, proposed to be leased to Walgreen’s, a violation of the covenant would occur.

When the parties were unable to agree that no violation would occur, plaintiff brought this action seeking a declaratory judgment authorizing the lease with Walgreen. The defendant moved to dismiss on the grounds that there was no actual controversy between the parties and that the failure to join Walgreen’s as a party was fatal to the cause. After denial of the motion, the trial court decided that an actual controversy did exist, that the restrictive covenant did not apply to Parcel D and that the Walgreen Company would have the right to use portions of the parking areas of Parcel B in common with the other tenants.

The defendant contends (1) that the complaint does not state a cause of action; (2) that the evidence failed to disclose the existence of an actual controversy (3) that failure to join Walgreen’s as a party made it unlikely that the subject matter of the litigation would be terminated which is necessary under the Declaratory Judgment Act (Ill Rev Stats 1965, c 110, § 57.1(1)); (4) that the court erred when it concluded that the noncompetitive clause did not apply to Parcel D and (5) that the court’s conclusion that Parcel D is not part of the shopping center for purposes of the restrictive covenant is inconsistent with the court’s conclusion that Walgreen’s may park in a portion of Parcel B, which is the shopping center.

We are of the opinion that the complaint filed herein stated a cause of action, that an actual controversy existed and that the failure to join Walgreen as a party was not fatal to the action.

The Declaratory Judgment Act was adopted to provide a means of resolving actual controversies. The courts are not open to those seeking advisory opinions on imaginary disputes. However, the courts will consider a controversy if it actually exists. The statute itself provides that the court may, in cases of actual controversy, make binding declarations of rights if these declarations will terminate the controversy, or some part thereof. The Supreme Court in A. S. & W. Club of Waukegan v. Drobnick, 26 Ill2d 521, 524, 187 NE2d 247 (1962) said:

“In limiting the remedy to ‘cases of actual controversy’ the statute was meant merely to distinguish justiciable cases from disputes of a hypothetical or abstract character. It was not intended to exclude concrete disputes admitting of an immediate and definitive determination of the legal rights of the parties.”

The Declaratory Judgment Act should be liberally construed to carry out its good purpose. In Trossman v. Trossman, 24 Ill App2d 521, 525, 165 NE2d 368, the Court quoted from Committee Comments and stated:

“It supplies a new form of relief where needed. It is designed to afford security and relief against uncertainty with a view to avoiding litigation, rather than in aid of it, and to settle and fix rights before there has been an irrevocable change of position of the parties in disregard of their respective claims of right, and thus promote peace, quiet and justice.

and, at pp 531-532, the Court, in quoting from 26 CJS, Declaratory Judgments, § 28, went on to say:

“It is not essential to a proceeding for declaratory judgment that there be a violation of a right, a breach of duty, or a wrong committed by one party against the other. The mere existence of a cloud, the denial of a right, the assertion of an unfounded claim, the existence of conflicting claims, or the uncertainty or insecurity occasioned by new events may constitute the operative facts entitling a party to declaratory relief.”

Applying these standards to the present case it is clear that an actual controversy does exist. Although the Walgreen lease was not signed, it was offered in evidence and the trial court ordered that the lease could be executed without violating any of plaintiff’s rights. The defendant concedes that the Walgreen building need not be built before an actual controversy arises but insists that the lease must be executed; however, the defendant admits that this is a “narrow technical issue.” The record permits no doubt of the existence of a real controversy between the parties. The plaintiff admits that it has negotiated a lease with Walgreen and that Walgreen will sell a competitive line. To insist on the mere execution of the lease to make the controversy “real” would be to negate the salutary purpose of the Declaratory Judgment Act.

It might have been desirable to make the Walgreen Company a party to the case but this failure is not fatal. Indeed, the defendant itself could have joined Walgreen as a party if it had so desired. In the case of A. S. & W. Club of Waukegan v. Drobnick, supra, the Supreme Court considered the right of a landowner to sell without the burden of a deed restriction. The buyer was not made a party and not considered essential. In Exchange Nat. Bank of Chicago v. County of Cook, 6 Ill2d 419, 421-423, 129 NE2d 1 (1955), the Supreme Court considered the validity of the zoning of certain property which the plaintiff desired to sell for a purpose not then permitted. The buyer was not made a party and was not considered essential to a binding declaration. Declaratory judgment is a commonly used remedy in the zoning field. Even where a sale or lease is contemplated, it is not necessary to join the buyer or lessee since the owner has standing to raise the issue and a declaration will be binding.

Finally, we consider the main issues of the case: does the restrictive covenant in defendant’s lease extend to Parcel D where it is admitted that Walgreen will sell a competitive line and, do the parking restrictions in defendant’s lease prohibit Walgreen from using any part of the premises in Parcel B for parking purposes ?

Defendant’s lease defines Parcels A, B and C as “the shopping center.” Parcel D is not included. Defendant argues that it should be included by implication because it was the intention of the parties to protect defendant against competition in the entire shopping center without regard to its eventual size.

Restrictive covenants are valid in Illinois if they are reasonable, House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 37, 225 NE2d 21 (1967). However, as a general rule restrictive covenants are strictly construed and all doubts must be resolved in favor of natural rights and against restriction, Staley v. Mears, 13 Ill App2d 451, 456, 142 NE2d 835 (1957). In Postal Tel. Cable Co. v. Western Union Tel. Co., 155 Ill 335, 40 NE 587 (1895), the Supreme Court said at pp 347-348:

“Restrictions on the power of alienation have long been unfavored, and the policy of this State has ever been hostile to them, and this principle is so firmly engrafted on our polity (sic) that such covenants will be construed with the utmost strictness, to the end that the restraint shall not be extended beyond the express stipulation; and all doubts, as a general rule, must be resolved in favor of a free use of property and against restrictions.”

In addition, it appears that the lease in question was prepared by the defendant and the rule is that a written instrument is construed most strongly against the person who prepared it, Western Illinois Oil Co. v. Thompson, 26 Ill2d 287, 291, 186 NE2d 285 (1962).

The defendant argues that the rule of strict construction should not apply to shopping centers because they are of recent origin and have in many cases expanded rapidly beyond their original contemplation. Defendant acknowledges that there is no authority in the Illinois cases for this proposition but they direct our attention to cases from other states which seem to offer support. A few examples are: Carter v. Adler, 138 Cal App2d 63, 291 P2d 111 (1955), Parker v. Grocer Co., 246 Miss 873, 153 So2d 261 (1963) and Daitch Crystal Dairies, Inc. v. Neis Loss, 60 Misc2d 504, 185 NYS2d 188 (1959). Many of these cases turn on the good faith of the parties. A tenant is deluded into believing himself protected and then the center is expanded to evade the restriction. We cannot presume bad faith and there is nothing in the record before us from which such a conclusion can be drawn.

It is true that shopping centers are, for the most part, a post-World War II development. However, the rules by which we construe documents are ancient and we see no logical basis for having one set of rules for shopping centers and a different set of rules for other contractual relationships. We recognize the problem presented but the defendant could have avoided any difficulty by simply drawing the lease to cover the shopping center as it then existed and as it might exist at any time in the future. The parties clearly expressed themselves in the lease. This court has no right to remake their agreement. We can only apply the lease as written and in so doing we conclude that the restrictive covenant does not cover the premises in question.

At first glance it would appear that the trial court construed the lease in one manner to determine the application of the restrictive covenant and in the opposite manner to determine the parking provisions. A more careful examination of the court’s reasoning indicates, however, that this is not the case. The original lease of 1960 gave defendant exclusive parking rights in a described area and parking rights in other areas to be used in common with other “tenants of said shopping center. . . .” The supplemental lease executed in 1962 provides that defendant’s right to park is in common the “Lessor’s other tenants . . .” on “all of those portions of Lessor’s premises contained within Exhibit ‘A’ . . . or adjacent thereto . ” It will be seen, therefore, that while defendant had exclusive parking rights within a portion of the original premises, its rights were nonexclusive on the balance of the center which included Parcel B.

The trial judge found from the evidence, that the parking lot was of such size that the addition of Walgreen’s would create no parking problem for defendant even in peak business hours when, as a rule, not more than 30% of the parking spaces in Parcel B were used by defendant.

We agree that the trial court correctly interpreted the defendant’s lease and supplemental lease both with respect to the restrictive covenant and to the use of the unrestricted parking area in Parcel B. Therefore the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and DAVIS, JJ., concur.


text:
    The County of Winnebago, a Body Politic and Corporate, Plaintiff-Appellant, v. Garmer D. Hartman, et al., Defendants-Appellees.
    Gen. No. 68-55.
    Second District.
    December 27, 1968.

      William R. Nash, State’s Attorney of Winnebago County, of Rockford (Alfred W. Cowan, Jr., Assistant State’s Attorney, of counsel), for appellant.
    Foster A. Smith and David F. Smith, of Loves Park, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is an appeal by the plaintiff, County of Winnebago, from the trial court’s refusal to issue an injunction against the defendants, Garmer Hartman and Grace E. Hartman, his wife and Clarence R. Walter and Mary A. Walter, his wife.

There is no dispute as to the facts. The difficulty arises from an interpretation of the facts, or more concisely, when does a mobile trailer cease to be a trailer and become a one-family dwelling?

The proofs disclose that the Hartmans owned approximately two acres of land, zoned agricultural, within the County of Winnebago. Under this type of zoning, one-family dwellings are permitted. The Hartmans sold part of this land, approximately % acre, to the Walters. The Walters are the parents of Mrs. Grace Hartman. Thereafter, in July of 1967, the Hartmans constructed a base and foundation for the placement of their future home. The construction consisted of 10 piers, two feet square, being set four feet deep into the ground over which they poured a solid cement slab with tie bolts protruding. On top of this there was placed a foundation of cement block and mortar. No building permit was obtained from the plaintiff. At about the same time, the plaintiff’s health department issued permits to them to construct a septic system for sanitary purposes and for the digging of a well. On August 9, 1967, the Hartmans had moved a mobile home onto the premises which, after removing the wheels and hitch, was placed on the fornida^ tion and bolted down by means of the tie rods. Thereafter, a permanent connection to the septic system, water system and underground electrical system was made.

With the exception of having his cement blocks mortared and the tie rods bolted down, the Walters’ construction was the same as the Hartmans’. However, his mobile home was not placed upon the construction until the early part of October, 1967. Defendant Walter testified that because of family illness in Pennsylvania he was unable to complete his home.

In addition to these two homes, there was a two wheel trailer-camper on the premises of Hartman. It was still on wheels and the testimony was that it was used on weekends for recreational purposes or taken with them on vacation. There was no evidence that it was used or outfitted for permanent habitation.

The evidence discloses further that the defendants made several trips to the zoning office of the plaintiff to secure building permits but did not meet with success. Instead they were informed that such permits would not be issued for trailers.

On August 10, 1967, the defendant amended its zoning ordinance which, for the purpose of this opinion, forbade trailers on the premises of the defendants. It will be noted that the Hartmans moved into their home the day previous to the adoption of this ordinance.

The plaintiff brought this action for an injunction seeking the removal of all of the trailers on the grounds that the premises were not zoned for that purpose. The trial court declined to issue the injunction and the plaintiff brings the case to this Court alleging that the trailers violate the zoning ordinance of the plaintiff and must be removed.

The zoning ordinance defines a dwelling as “A building designed, constructed or intended for use for human habitation, complying with the requirements of Sections 6-7 through 6-42 of the Winnebago County Building Ordinance.” The same ordinance defines a trailer as “A vehicle or similar portable structure designed, constructed or intended for use for human habitation and having no foundation other than wheels, blocks, skids, jacks or skirtings.” (Winnebago County Zoning Ordinance 1967, Ch 16, Sec 10.)

Under the definition that the plaintiff itself has prescribed, the camper-trailer was not in violation of the ordinance. It was simply stored on the property and was not used nor intended to be used on that property for habitation.

From the authorities cited to us by the plaintiff, it is clear that a county has the power to define and regulate trailers, but the plaintiff has not done so in a manner which would prohibit the “trailers” involved in this case. In the case of Rezler v. Village of Riverside, 28 Ill2d 142, 146-148, 190 NE2d 706 (1963), the Supreme Court pointed out that the Trailer Coach Park Act (Ill Rev Stats 1967, c 111%, § 185) does not supersede the power of the County to regulate trailers and it is clear that the County has that power and may exercise it in various ways. This was also pointed out by us in the case of County of Will v. Stanfill, 7 Ill App2d 52, 62, 129 NE2d 46 (1955), where we held that under the provisions of the zoning ordinance of Will County the inhabitants of trailer homes had to comply with the requirements of the residential district since their dwellings were erected within the meaning of the Will County ordinance, which defined “erected” as “set up, raised, built or moved into place.” It, therefore, appears that the only requirement for reaching a conclusion in the instant case is to simply apply the zoning ordinance given us by the plaintiff.

The trial judge specifically found that the Hartman trailer had been moved onto the premises prior to the enactment of the ordinance. The record indicates that the Hartman trailer was moved onto the premises on August 9, 1967 and the hitch and wheels immediately removed. Hartman testified that when he ordered his home from the factory he did so with the understanding that he did not want the wheels or hitch; that they belonged to the company and were used only to transport the home to his premises. The zoning ordinance of Winnebago County was not amended until August 10,1967. It, therefore, appears that the Hartman trailer, if it can be considered as such, constitutes a nonconforming use.

The Walters’ dwelling is exactly like that of Hartman with the exceptions already noted. It is certainly not a “vehicle or similar portable structure,” which it must be within the terms of the plaintiff’s zoning ordinance in order to be considered a trailer. The plaintiff draws our attention to the provisions of its trailer park ordinance which prohibits the parking of any trailer coach outside an authorized and licensed trailer park. But that ordinance would only apply if the structures in question are “trailers.” To be a trailer under the definition given us by the authorities in Winnebago County, the structure must be a “vehicle or similar portable structure.”

The plaintiff finally alleges that there is no proof that the various defendants have building permits or that they have complied with the County Building Code.

The only proof in that regard is that the County Health Department has issued the appropriate permits and that the defendants have applied for building permits but have been refused on the grounds that you could not locate “trailers” on the premises in question. The plaintiff cannot refuse permits on the one hand and then argue that the same person has violated the law because he does not have a permit, and as we have seen since the defendants’ structures were not “trailers” within the meaning of the County zoning ordinance, then permits should have been granted, assuming there was compliance with the Building Code.

The trial judge presumed that the defendants had complied with the County Building Code because there was no evidence offered by plaintiff to the contrary. If the defendants had failed to comply as the plaintiff alleges, then that proof should have been forthcoming. In the absence of such evidence the trial judge could not conclude and we cannot conclude that there was a failure to comply.

Furthermore, the plaintiff’s complaint set out alternative pleadings claiming that both its Trailer Park Ordinance and its Building Ordinance were violated, still its prayer for injunction was based upon a violation of its Zoning Ordinance. This is also affirmatively stated in its brief when it describes the nature of the case to this Court.

We are not to be understood as holding that trailers or mobile homes can be converted into structures simply by removing the wheels and the hitch and attaching them to permanent foundations. Our decision is specifically limited to the facts of this case as applied to the local zoning ordinance and under these facts the trial judge was correct in refusing to issue an injunction and his decision is affirmed.

Judgment affirmed.

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


text:
    Alejandro Reyes Alverio, et al., Plaintiffs-Appellants, v. Lenwood Dowery, et al., Defendants-Appellees.
    Gen. No. 51,781.
    First District, Third Division.
    December 27, 1968.
    Rehearing denied January 16, 1969.

      Peter S. Sarelas, of Chicago, for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Plaintiffs bring this suit against four police officers and a bail bondsman for false arrest and imprisonment. At the close of plaintiffs’ case the court directed verdicts and entered judgment thereon for the defendants. An appeal was taken to the Supreme Court of this State and that court transferred the case here on finding that no substantial constitutional issue was presented.

Some of the Points and Authorities set forth in the plaintiffs’ brief are argumentative and verbose and set forth principles of law which are not contested and have no bearing on the outcome of this appeal. Plaintiffs’ attorney is amply capable, as revealed in his oral argument before this court, of stating his points and making his argument lucidly and succinctly. It would serve both client and the court, now burdened with a great increase in the number of appeals which come before it, if he would apply the same skill to the preparation of his briefs.

The basic issue is whether the trial court properly directed a verdict against plaintiffs within the rule announced in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504. The facts follow.

On June 30, 1957, at about 1:45 p. m. plaintiffs were taken into custody by Chicago Police Officers Michael Keegan and William Ryan. Keegan, called as an adverse witness under section 60 of the Civil Practice Act, testified that he and Ryan were on duty as detectives at the time in question, that they were in plain clothes and riding in an unmarked car. They observed a group of men playing dice on the sidewalk at 310 South Bell Street in Chicago, stopped their car and approached the men. According to Keegan the group broke up as he approached them and some of the participants grabbed money from the sidewalk and fled. The officers apprehended the plaintiffs but did not recover any dice or money at the scene. Plaintiffs were arrested without a warrant on the charge of gambling.

The officers took plaintiffs to the Warren Avenue Police Station at about 2:30 p. m. and were immediately called away to investigate a double murder and suicide. They testified that they advised the lockup keeper that plaintiffs were under arrest for gambling. The officers proceeded to the investigation of the other case and returned to the station at about 5:00 p. m.

Earl Winter, another defendant herein, testified that on June 30, 1957, he was working as part of a team with Keegan and Ryan. When the arrests were made he was at the police station working on reports and the only time he saw plaintiffs was when they were brought into the station. He did not know when they were booked nor what was done in connection with their arrests. Winter stated that Keegan and Ryan did not tell him what charges had been placed against plaintiffs and that he did not know the amount of bail set for them.

The desk sergeant John Slechter was also made a party defendant and when he was called as a witness he testified that he first saw plaintiffs at about 2:30 a. m. on July 1, 1957, twelve hours after they were brought to the station. He stated that he did not set their bail as the amount of the bond in such cases was set by court rule, the applicable bail being $10 for each prisoner. He accepted a bail bond posted by the defendant bondsman Lenwood Dowery and released the six prisoners. No cash was involved since the bond was posted by a bondsman. Slechter said he had never seen the plaintiffs prior to booking them and releasing them from custody. He further testified that he did not remember who told him to book the plaintiffs, but that Dowery talked to him about bonding them. Slechter testified that he did not talk to plaintiffs nor did anyone else talk to them and that plaintiffs were booked pending clearance of fingerprints at the Bureau of Identification, which is normal and customary police procedure.

The complaints charging plaintiffs with gambling were admitted into evidence and although they were not signed by the arresting officer Michael Keegan, they bear the jurat of John Slechter, the desk sergeant. The complaints are date stamped July 12, 1957, a date eleven days subsequent to the booking. They fail to show the amount of bail or the means by which it was posted.

Alejandro Alverio, one of the plaintiffs, testified that on the day of the arrests he had just returned from church and was conversing with a group of people when the policemen approached them. He stated that the policemen drew their guns and said, “Give me the dice.” Alverio denied having any dice or participating in any gambling. Plaintiffs were taken to the police station where they were fingerprinted immediately. The other plaintiffs likewise testified that they had not been gambling and that they were incarcerated for a period of twelve to thirteen hours. It further appears from the testimony of plaintiffs and of Officer Keegan that plaintiffs were not allowed to make any telephone calls during that time.

Release of plaintiffs was obtained through the aid of Angel Flores, a friend who had heard about the arrests. He went to the police station at about 4:30 on the afternoon of the arrests and stayed until plaintiffs were released at about 3:00 o’clock the next morning. He testified that Dowery asked for $100 for bail plus $12 to expedite the processing of plaintiffs’ fingerprints. Dowery allegedly stated that unless the fingerprints were immediately cleared with the Identification Bureau the plaintiffs would have to stay in jail another day. Flores gave Dowery the $112 and Dowery gave him a receipt for $50, which receipt was admitted into evidence.

We will summarize the evidence presented by plaintiffs. They were arrested on Sunday afternoon and kept in custody twelve to thirteen hours on disorderly conduct charges. The complaints against them were unsigned but were nonetheless notarized by the desk sergeant. The sum of $112 was paid to the bondsman Dowery, notwithstanding the fact that the total bond set by court rule would have amounted to $60 in cash. It is also clear from the undisputed testimony that the entire procedure was relegated to Dowery by the police and that the police at no time explained the method by which plaintiffs could make bail and obtain their release.

Verdicts may be directed only in those cases in which all the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

The elements of the tort of false arrest and imprisonment are determined to some extent by the statutory authority granted to police officers and private persons under the Criminal Code. At the time of the arrests in the instant case an officer was authorized to make an arrest without a warrant for a criminal offense committed or attempted in his presence or when a criminal offense was in fact committed and the officer had reasonable grounds for believing the person to be arrested committed that offense. Ill Rev Stats, c 38, § 657 (1957). Where an officer makes an arrest without a warrant for an alleged crime which has not been committed in his presence, such arrest is illegal if the crime has not actually been committed. McKendree v. Christy, 29 Ill App2d 195, 172 NE2d 380. The liability of the arresting officer terminates however when he surrenders custody of the prisoner to investigating detectives or the lockup keeper. Alvarez v. Reynolds, 35 Ill App2d 54, 181 NE2d 616.

With respect to arresting officers Keegan and Ryan there exists a question of fact as to whether or not the crime of gambling was committed in their presence. There was ample evidence from which the jury could have found that the offense was not in fact committed, in which event plaintiffs would have been entitled to recover. Green v. No. 35 Check Exchange, Inc., 77 Ill App2d 25, 222 NE2d 133.

Proceeding to the matter of the detention of plaintiffs pending their release on bail, it is clear that under our law persons who are arrested may not be detained without reasonable cause and shall be afforded the opportunity to be promptly released on bail. Fulford v. O’Connor, 3 Ill2d 490, 121 NE2d 767. The amount of bail was scheduled at $10 each and Slechter as Sergeant of Police was authorized to set such bail and release the prisoners. Ill Rev Stats, c 37, § 406 (1955). That would ordinarily have been a simple procedure, particularly in the middle of the afternoon when it appears that an acquaintance of the prisoners was present and prepared to post a cash bond. That procedure was not followed. Instead the police relegated the entire matter to Dowery and there is testimony that he was paid $112 for the release of the plaintiffs. There was sufficient evidence of conspiracy between the bondsman Dowery and the police officers Ryan, Keegan and Slechter to require the submission of the issues to a jury. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504.

The only other point of substance raised by appellants is that the court erred in refusing to admit Municipal Court “half-sheets” into evidence as proof of the final disposition of the criminal charges brought against plaintiffs. A half-sheet is a document in which the motions, orders and proceedings in a case are listed for ready reference. It is included in the file for the convenience of the court and the parties but is not part of the official court record. Stickler v. McCarthy, 64 Ill App2d 1, 212 NE2d 723; Dale Jewelers v. Walker, 44 Ill App2d 224, 194 NE2d 509. On remand the plaintiffs should observe the better practice of presenting official court records.

The evidence did not reveal any connection between the defendant Earl Winter and the alleged tort and accordingly the court properly directed a verdict in favor of Winter.

The judgment is reversed as to defendants Keegan, Ryan, Slechter and Dowery and the cause is remanded for retrial and for such other and further proceedings as are not inconsistent with the views herein expressed.

Judgment reversed as to defendants Keegan, Ryan, Slechter and Dowery and cause remanded for new trial.

Judgment for Winter affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MATHERS, J.

text:
    People of the State of Illinois ex rel. Edward Henderson, et al., Plaintiffs-Appellants, v. Hal Redfern, Board of Supervisors of Macoupin County, Illinois, and W. J. Payes, Jr., Director of Department of Public Works and Buildings, Defendants, Hal Redfern, Defendlant-Appellee.
    Gen. No. 10,982.
    Fourth District.
    December 30, 1968.

      McGrady and Madden, of Gillespie, for appellants.
    John W. Russell, Phelps & Russell, of Carlinville, for appellee.
   MATHERS, J.

The parties to this appeal were plaintiffs and defendants in a companion case of People ex rel. Henderson v. Redfern, 75 Ill App2d 196, 197 NE2d 841, in which case this court affirmed the judgment of ouster in a quo warranto action against defendant Hal Redfem (January 10, 1966) from the office of County Superintendent of Highways, entered by the Circuit Court of Macoupin County. The mandate of this court was filed in the office of the Circuit Cleric of Macoupin County on February 14, 1967. Thereafter, on March 2,1967, plaintiffs filed a motion for costs and attorneys’ fees under the provisions of the Quo Warranto Act and the Civil Practice Act. The denial of the motion with respect to attorneys’ fees, after hearing of evidence thereon, has resulted in this appeal.

We have taken with the appeal appellee’s motion to dismiss, alleging failure by appellants to file their Notice of Appeal within 30 days after the “entry of the final judgment appealed from.” (Supreme Ct Rule 303.) The record discloses that the trial judge, by letter dated May 17, 1967, and following hearings on the motion on April 19 and April 28, advised counsel as to his ruling on the motion and directed that an order be prepared. When no order had been received by the trial judge by July 21, 1967, he made a docket entry of his decision and requested defendant-appellee’s counsel to prepare the order. On November 17, 1967, on plaintiffs’ oral motion, leave was granted plaintiffs to present additional testimony on November 22, 1967. On this date, at which there was no appearance by defendant Redfern, the written order was filed though it was dated July 21,1967. The Notice of Appeal was filed December 22,1967. This presents the question of the date of the “entry of the final judgment appealed from” within the meaning of Supreme Court Rule 303.

It is true that final judgment can be entered by pronuouncement in open court with all parties present and by docket entry with written order to follow, as well as by the usual formal written order. In this case, while there is strong evidence that the court meant the docket entry of July 21 to fix the date of entry of final judgment, with written order to follow, a docket entry on November 17 gave leave to plaintiffs to introduce additional testimony on November 22. When none was offered, the formal written order was filed, though predated to the docket entry date of July 21.

Under these circumstances we conclude that Notice of Appeal filed on December 22, 1967, was timely, it having been filed within 30 days of the entry of the order on November 22, 1967. Until such date the record suggests the case was not formally and finally concluded.

We turn then to the substantive issue raised by the appeal as to plaintiffs-appellants’ right to have judgment for attorneys’ fees against the defendant-appellee. The assessing of attorneys’ fees against the losing party rests wholly upon statutory or contractual authority. Ritter v. Ritter, 381 Ill 549, 46 NE2d 41; Vol 15, ILP, Damages, § 62. There is no common law or equitable principle allowing attorneys’ fees either as costs or damages. We are concerned here, therefore, only with the provisions of the two statutes relied upon by plaintiffs in their petition for fees. Section 41 of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 41) provides as follows:

“Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court at the trial.”

The remedy in this provision is clearly limited to matters before the trial court, primarily in connection with pleadings, and requires that it be sought “at the trial.” It is apparent that plaintiffs’ petition for costs and attorneys’ fees at this stage of proceedings does not satisfy the requirements of section 41 with respect to the timing or the substance of a petition thereunder.

Paragraph 14 of the Quo Warranto Act (Ill Rev Stats 1967, c 112, par 14) provides in part as follows:

“In case any person or corporation against whom such complaint is filed is adjudged guilty as charged in the complaint, the court may give judgment of ouster against such person or corporation from the office or franchise, and fine such person or corporation, and also give judgment in favor of the relator for the cost of the prosecution: Provided, that instead of judgment of ouster from a franchise for an abuse thereof, the court may fine the person or corporation found guilty in any sum not exceeding $25,000.00 for each offense. When judgment is given for any defendant, such defendant shall recover costs against the relator.”

We have found no Illinois cases defining the phrase “cost of the prosecution” under this section. The Illinois Legislature in a variety of proceedings has provided specifically that attorneys’ fees may be recovered by the successful party, but it did not do so under the Quo Warranto Act. While there might well be situations prompting action under this Act that in equity would dictate assessing attorneys’ fees against a party, this is a matter for legislative rather than judicial action. Consideration of the propriety of assessing attorneys’ fees is permissible only where the statute specifically allows their assessment and we may not judicially enlarge the phrase “cost of the prosecution” to include such expense.

For reasons stated the judgment of the trial court allowing plaintiffs recovery of certain costs but denying recovery of attorneys’ fees in this matter is affirmed.

Affirmed.

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


text:
    People of the State of Illinois ex rel. D. A. McGrady, Petitioner-Appellant, v. Thomas P. Carmody, State’s Attorney, Macoupin County, Illinois, Defendant-Appellee.
    Gen. No. 11,016.
    Fourth District.
    December 30, 1968.

      McGrady and Madden, of Gillespie, for appellant.
    Thomas P. Carmody, of Carlinville, for appellee.
   MATHERS, J.

This is an appeal from an order of the Circuit Court of Macoupin County dismissing an amended complaint seeking: (1) The issuance of a Writ of Mandamus compelling Thomas P. Carmody, State’s Attorney of that county to seek the levy of a fine and costs against one, Hal Redfern, and, (2) To file necessary legal proceedings to recover monies paid to the said Hal Redfern during the time he served as Superintendent of Highways of Macoupin County.

In August of 1962 Hal Redfern was appointed as County Superintendent of Highways of Macoupin County by the County Board of Supervisors and served until ousted from this office by order of this court on January 10, 1966.

On August 4, 1967, petitioner filed a complaint for Writ of Mandamus. Motion to dismiss the complaint was granted on November 6,1967.

Petitioner filed an amended complaint on November 14, 1967, and defendant again filed a motion to dismiss, alleging that: (1) The amended complaint did not set forth a specific duty which the defendant can be compelled to perform by mandamus; (2) That mandamus will not lie to compel the discretionary act of the State’s Attorney; (3) That the amended complaint did not allege sufficient facts to predicate the issuance of a Writ of Mandamus; (4) That mandamus is not a proper remedy where the allegations of the amended complaint fail to show a clear legal right to a Writ of Mandamus.

The trial court, on April 22, 1968, granted the petition to dismiss and this appeal followed.

The above facts have been the subject of much litigation beginning in 1962. Numerous hearings and appeals have been held and this court on February 10, 1967, affirmed an order of ouster in a Quo Warranto proceedings. (People ex rel. Henderson v. Redfern, 75 Ill App2d 196, 220 NE2d 323.)

Paragraph 14 of chapter 112 (Ill Rev Stats 1967, c 112, par 14) provides as follows:

“The Court shall determine and adjudge the rights of all parties to the proceeding. In case any person or corporation against whom such complaint is filed is adjudged guilty as charged in the complaint, the Court may give judgment of ouster against such person or corporation from the office or franchise, and fine such person or corporation, and also give judgment in favor of the relator for the cost of the prosecution: Provided, that instead of judgment of ouster from a franchise for an abuse thereof, the court may fine the person or corporation found guilty in any sum not exceeding $25,000.00 for each offense. When judgment is given for any defendant, such defendant shall recover costs against the relator.”

It is clear from a reading of the Statute that the imposition of a fine is a discretion that is granted to the Court and it is equally apparent that the Court may give judgment of ouster against a person and- may or may not impose a fine.

It is obvious that the State’s Attorney might request a fine but this is a purely discretionary act and not a duty imposed on the State’s Attorney.

The amended complaint herein is based upon the assumption that since the Statute authorized the optional imposition of a fine, the State’s Attorney has a duty to seek a fine.

The amended complaint also alleges a duty on the part of the State’s Attorney to recover monies paid to Mr. Redfern during his term of office as County Superintendent of Highways. However, this amended complaint fails to allege any facts from which these conclusions are drawn.

By statute the County Boards are charged with the obligation of expending county funds in a proper manner and any duty to recover funds improperly paid out would seem to lie within their responsibility.

A person seeking a suit of mandamus to command an officer to perform a duty must show not only a clear right for the relief asked by allegation of specific facts, (People ex rel. Thomas v. Board of Education of City of Chicago, 40 Ill App2d 308, 188 NE2d 237) but must also show a duty on the part of the respondent by allegations of material facts, and mere conclusions do not suffice. (People ex rel. Koester v. Board of Review of Cook County, 351 Ill 301, 184 NE 325, cert den 289 US 760.)

Appellant implies that a mandate was issued by this Court in a previous decision to seek a mandamus action, but a search of the record reveals no such mandate.

Mandamus is an extraordinary remedy and not a proper action to review the performance of an official act involving the exercise or failure to exercise judgment or discretion or to direct or control a court in any matter in which the court has power to decide.

The courts of our state have uniformly held that where discretion is conferred on public agents or officers, their acts in the lawful exercise of that discretion cannot be controlled by mandamus.

Mandamus will lie in a proper case to compel an officer to proceed with the exercise of discretion but not to compel him to act in a certain manner while exercising the discretion. (People ex rel. Brignal v. Lewe, 383 Ill 549, 50 NE2d 577.) The basic requirement for a Writ of Mandamus is the right to the performance of a specific act as distinguished from a general course of conduct. The act must be one in which the officer has no discretion but to perform. The complaint must show a clear right on the part of the applicant and an equally clear duty on behalf of the respondent.

The record in our case is deficient in both areas and does not set forth facts alleging either a right of the petitioner or definitive duty on the part of the defendant.

Many mandamus cases are appealed on the point of whether the act commanded is discretionary but on review our courts have shown a semantic confinement that would encourage the practitioner to have confidence that he could show in his case that there is no discretion and that the court will not be substituting its judgment for that of the officer. (People ex rel. Town Court of Cicero v. Harrington, 21 Ill2d 224, 171 NE2d 647.)

Most of the allegations in the amended complaint are conclusions, irrelevant and repetitious and serve no useful purpose in a determination of the issues in this appeal. Dismissal by the trial court is affirmed.

Affirmed.

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