text:
    Robert B. Colville et al., Plaintiffs-Appellees, v. The City of Rochelle et al., Defendants-Appellants.
    (No. 70-48;
    Second District
    November 4, 1970.

      Puklin, Nelson & Dunn, of Aurora, and David K. Guest, of Rochelle, for appellants.
    Canfield, Canfield, Franks, Wylde & Hoad, of Rockford, for appellees.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

This is an appeal from a decree wherein the trial court granted an injunction in favor of the plaintiffs and against the defendants, the City of Rochelle, and certain of its officers and employees. The decree permanently enjoined the defendants from taking steps to open 14th Street, between 10th Avenue and Highland Road, in the City of Rochelle, and further restrained all of the defendants from expending any taxpayers’ funds for this purpose.

In February of 1969, the City of Rochelle Planning Commission made recommendations to the Rochelle City Council for the extension of certain north-south streets in the city, including 14th Street. Resolutions were duly passed by the City Council in April of 1969, which provided that 14th Street be designated an arterial street from 8th Avenue north to the city limits; that the construction of this street be authorized; and that the sum of $55,000 be appropriated for this improvement from the city’s allotment of motor fuel taxes.

The Illinois Department of Public Works and Buildings, Division of Highways, approved the resolutions adopted by the City Council and notified the City of Rochelle of its action allotting $55,000 in motor fuel tax funds for the construction of 14th Street.

Thereafter, the plaintiffs, who were residents and property owners of the City of Rochelle, filed their complaint for an injunction to enjoin the city, and its officials and employees, from opening and paving that portion of 14th Street between 10th Avenue and Highland Road, and from expending motor fuel tax funds for this purpose. The plaintiffs alleged, in essence, that they had no adequate remedy at law; that the city had failed to comply with applicable statutes and ordinances in its plan for construction of 14th Street; that the proposed street would be too narrow to be adequate for an arterial street; that it would create a serious and dangerous traffic problem and would not benefit any person or persons; that the proposed street would depreciate their property values, and that the city had failed to comply with the applicable statutes relating to the use of motor fuel tax funds.

The right-of-way for that portion of the 14th Street extension herein involved was dedicated to the City of Rochelle in the plat of Westview Subdivision, which was filed by John Tilton approximately fifteen years ago.

At the trial, the plaintiffs called fifteen witnesses. Ten of the witnesses were plaintiffs and two were persons connected with a nearby church. Each testified that in his opinion the proposed street would be too narrow, would cause traffic hazards and reduce the value of his property. A real estate man also testified that the proposed street extension would depreciate the value of the plaintiffs’ properties.

The mayor of the City of Rochelle was called as a witness for the plaintiffs and testified that he did not favor the proposed extension; that he opted an alternate street, and that his views were fully presented to the City Council before it adopted the resolutions in question.

The defendants’ evidence included testimony of the city engineer which, among other things, was to the effect that the proposed project would neither create a dangerous traffic situation nor contribute to traffic congestion; and that it would relieve existing traffic congestion primarily found on U.S. 51, or 7th Street, which is the main north-south thoroughfare through the city.

An engineer for the Illinois Department of Public Works and buildings, Highway Division, was a witness for the defendants and testified that his Department had approved this project and had allotted motor fuel tax funds for the construction of 14th Street. He also testified that there is no minimum width requirement for municipal streets as a condition precedent to the expenditure of motor fuel tax funds for their construction: that after investigation, the Department estimated that the future traffic on the proposed street would approximate eight hundred cars a day; that the contemplated width of the street would be sufficient for its estimated traffic; and that he was not aware of any circumstances which would make this a dangerous street or a traffic hazard.

The defendants also called Robert Troop, a member of the City Council and Planning Commission, as a witness. He testified that the 14th Street project was only one of three proposed by the Commission as an overall plan to improve north-south traffic flow through the city.

The trial court, in its decree ordering the injunction, found that the proposal to build a road of less than forty feet in width would create a dangerous and serious traffic problem, and would not permit parking or the proper removal of snow; that traffic would congest at the end of the street and cause a serious problem at that point; and that 15th Street would represent a safer, more adequate and serviceable alternative.

Inasmuch as the particular portion of 14th Street involved in this appeal was acquired by dedication in 1954, no actual taking of land was involved. The right-of-way is only forty feet in width, and the street itself is to be only 30 feet in width. One of the plaintiffs’ principal contentions is its inadequacy in this respect. The plaintiffs’ complaint points out that the proposed width is narrower than that required in the Comprehensive Plan of the City of Rochelle or the City of Rochelle Subdivision Control Ordinance. However, the Comprehensive Plan is applicable only to future subdivision platting as is the Control Ordinance, which sets forth the land improvements required to be installed or constructed by developers as a prerequisite to approval by the City Council of the proposed subdivision plats. Neither Plan nor Ordinance imposes any restriction or limitation upon the manner or method to be used by the City to provide public streets. They do specify, however, what the City will require from others.

The authority of a municipality to construct and maintain public streets is unmistakable, (Ill. Rev. Stat. 1969, ch. 121, par. 7—101,) and the authority to use motor fuel tax funds for this purpose is likewise clear under the appropriate statutes. Ill. Rev. Stat. 1967, ch. 121, par. 7—201, 7—202, 7—202.2.

In Hoerrmann v. Wabash Ry. Co. (1923), 309 Ill. 524, the power of the trustees to vacate a particular street was raised before the court. At page 531, the court stated that the village holds its streets in trust for the benefit of the public; that the care and supervision of the streets is committed to the president and board of trustees of the village; that their judgment, if fairly exercised, with reference to the public necessity for a street and the requirements of the public interest, is not subject to control of the courts; that it is only where it is apparent that their action, with respect to the streets, has been taken without regard to public interests that such action will be declared void; and that even though a court may disagree with their wisdom or judgment, it will not undertake to substitute its own judgment for that of the trustees on the issue.

In considering the question of the width of the street, the court, at page 532 stated that whether the particular width “sufficiently meets the public interest is a question primarily for the board of trustees to determine. That question depends upon the character of the locality and its relation to other parts of the village, the manner of its present or probable future use, the nature and amount of the established business, and present and probable future requirements of the public. It is not a judicial question but a legislative question and one which is entirely committed to the discretion of the trustees.”

It is apparent from the testimony that there was a genuine difference of opinion between the plaintiffs and the defendants as to the efficacy of the proposed 14th Street extension. It also appears from the decree entered herein that the trial court concurred with the judgment of the plaintiffs. However, neither the record nor the decree suggest that the action of the city authorities was prompted by improper motives or that the determination of the city was so unreasonable, arbitrary, or oppressive as to render it void. Under these circumstances, the trial court should not have interfered with the legislative action of the city. City of Chicago v. Thielans (1929), 334 Ill. 231, 232.

The determination of the necessity for opening the street in question, its width and the use of motor fuel tax funds for its construction, are left by statute to the municipal authorities and the Department of Public Works. The decree of the trial court is without support which shows an abuse in the exercise of these legislative powers; it constitutes judicial interference with the powers of the coordinate legislative branch of our government in contravention of Article III of our State Constitution. Dept. of Pub. Wks. and Bldgs. v. McNeal (1965), 33 Ill.2d 248, 252; Chicago v. National Management (1959), 22 Ill.App.2d 445, 454, 455.

Aside from the merits of the case, we deem it appropriate to note that Supreme Court Rule 341 (Ill. Rev. Stat. 1969, ch. 110A, par. 341) sets forth the requirements for briefs filed in this court. In addition to “Points and Authorities,” the Rule provides that the portion of the brief entitled “Argument,” shall contain the contention of the party and the reasons therefor, with citation of the authorities and the pages of the record relied on, and that points which are not argued, are waived.

The appellee’s brief contains only the quotation of the memorandum opinion of the trial court as the argument on which the judgment should be sustained. This procedure was not particularly helpful to the court in the presentation of the appellee’s theory of the case, or of their points which were relied upon for its affirmance; neither was it a meaningful compliance with Supreme Court Rule 341. We prefer the correlation of the “Argument” portion of the brief with the “Points and Authorities,” and that it contain the contentions of the parties and the reasons therefor with appropriate citations and record references.

The decree of the trial court is reversed, and it is ordered that the injunction writ issued pursuant to that decree be, and it is hereby dissolved.

Decree reversed and injunction writ dissolved.

MORAN and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    Douglas W. Hawes, Plaintiff-Appellant, v. Lois E. Hawes, Defendant-Appellee.
    (No. 70-41;
    Second District
    November 6, 1970.
    Karlin, Coe & Solomon, of Chicago, for appellant.
    Diver, Ridge, Brydges & Bollman, of Waukegan, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This is an appeal from an order of the circuit court vacating portions of a default divorce decree. The plaintiff, husband, instituted suit in the State of Illinois for divorce based upon grounds of desertion. The defendant was served by the sheriff in Wayne County, Michigan. The defendant did not appear or cause an appearance to be filed on her behalf. At the ex-parte hearing, proofs were taken and a decree of divorce was entered on August 21, 1968, finding that the plaintiff was an actual resident of Lake County, Illinois for more than one year prior to filing the complaint; that two children were born of the marriage; that the defendant wilfully deserted the plaintiff; and that the plaintiff was a fit person to be awarded the custody of the children. In addition to the divorce, the decree provided:

“2. The plaintiff shall have the care, custody and education of the two children of the parties hereto, hereinbefore named, and that the defendant may have reasonable rights of visitation with them.
3. It is further ordered, adjudged and decreed that it would appear to the Court that the defendant is not entitled to any alimony.”

On June 10, 1969, a notice for leave to appear and file a special and limited appearance for the sole purpose of challenging jurisdiction of the court was filed and allowed on behalf of the defendant. The verified motion moved the court to vacate paragraphs two and three of the decree of divorce, and alleged that neither the defendant nor the children of the marriage ever resided in the State of Illinois. On December 2, 1969, the court filed a memorandum of decision and entered an order vacating paragraphs two and three of the decree, set out above. The court found that it had jurisdiction to grant the divorce to the husband because of the residence of the husband and, additionally, that there had not been sufficient minimal contact with the State of Illinois, either through the residence of the children or the defendant, to support the jurisdiction of the trial court concerning the custody and alimony questions.

Plaintiff argues that the act of desertion took place in Illinois, relying upon Karman v. Karman (1960), 24 Ill.App.2d 123 and Martin v. Martin (1965), 62 Ill.App.2d 105, wherein the rule was announced that a wife has a duty to follow her husband when he chooses to change his residence and that her refusal to follow constitutes desertion at the husbands new domicile. From this premise, the act of desertion having been committed in this State, the plaintiff then contends that section 17(1)(e) of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110, sec. 17(1)(e)) afforded the trial court the jurisdiction to determine the custody and alimony provisions in question.

The purpose of section 17 is to expand jurisdiction over non-residents having certain associations within the State. In this case, however, the defendant did not have sufficient contact with the State of Illinois to subject her to the personal jurisdiction of Illinois courts.

Since the establishment of section 17, a number of cases have been decided which give guidelines for the application of this section. In Nelson v. Miller (1957), 11 Ill.2d 378, 389, the Supreme Court stated: “Sections 16 and 17 of the Civil Practice Act reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due-process clause.” The U.S. Supreme Court, in Hanson v. Denckla (1958), 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, 1298, stated: “* * # It is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

The plaintiff relies quite heavily on Gray v. American Standard Radiator & Sanitary Corp. (1961), 22 Ill.2d 432, in supporting his position that section 17 should be construed to give personal jurisdiction under the present factual situation. The Gray case, however, states that although the test to satisfy the requirement is flexible, the relevant inquiry is whether the defendant engaged in some act or conduct by which he invoked the benefits and protections of the law of the forum. There is no indication that the defendant in this case did anything to fulfill the above requirements.

The defendant maintained no matrimonial domicile in Illinois, never resided in Illinois, and committed no act in Illinois. She failed to follow her husband into this State. She has never invoked the benefits or protection of Illinois law and thereby subjected herself to the personal jurisdiction of our courts as contemplated under section 17.

The plaintiff contests the jurisdiction of the trial court to amend the decree and vacate the prior provisions. According to the plaintiff, a motion under section 72 of Chapter 110 of the Illinois Revised Statutes, was the proper procedure to vacate the orders in question and that, since the defendant did not comply with said section, the trial court had no jurisdiction to amend the decree.

We do not agree. It is well established that a special and limited appearance is the proper method of contesting jurisdiction. (Spencer v. American United Cab Ass’n. (1965), 59 Ill.App.2d 165, 169-170; Forsberg v. Harris (1960), 27 Ill.App.2d 159, 168-169.) The defendant acted under section 20, Chapter 110 of the Illinois Revised Statutes, and such procedure was proper when attempting to vacate, for lack of jurisdiction, the in personam orders of the divorce decree.

For the above stated reasons the order of the trial court vacating portions of the divorce decree, is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON

text:
    Tarvin Purdom, Plaintiff-Appellant, v. Roy Swanson, Defendant-Appellee.
    (No. 70-49;
    Second District
    November 12, 1970.

      Peterson, Bogucki & Beck, William N. Siebert, of Chicago, for appellant.
    Hartnett & Pease, of Waukegan, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The plaintiff, Tarvin Purdom, was injured as a result of an accident that occurred at the intersection of Route 59 and Petite Lake Road in Lake County on July 29, 1968. Purdom brought suit against the owner of the automobile involved in the accident, Roy Swanson, and the driver, Valerie Swanson. Roy Swanson was dismissed from the suit during trial and the plaintiff appeals from a judgment entered in favor of Valerie Swanson.

Purdom was driving north on Route 59 on his Honda motorcycle around noon on July 29. He was on his way to Antioch and had driven on this road many times before since he lived only three or four miles away. Route 59 is a two lane highway at the area in question and it dips into a hollow approximately 330 feet south of Petite Lake Road. As he approached the intersection, Purdom observed the defendant’s car about a quarter of a mile away proceeding south on Route 59. Purdom was traveling around 40 to 45 miles an hour and as he went into the dip he lost sight of oncoming traffic. As he came out of the dip he again saw the Swanson automobile about 300 feet away and he continued north at his same speed. Purdom testified that as he drove closer to the intersection he observed left turn signals on the automobile and that it began to turn left into his path when he was 50 to 75 feet away. Purdom applied his brakes and swerved to the right in an attempt to avoid the collision but his cycle hit the side of the automobile and he was thrown through the air and severely injured.

Two occurrence witnesses testified at the trial. Randy Debus, a college student who was acquainted with Purdom’s daughter, testified for the plaintiff. Debus was driving south on Route 59 and was the second car behind Valerie Swanson. Debus stated he was about 100 feet north of Petite Lake when he first noticed Purdom’s cycle approaching the dip. He estimated the speed of the cycle at between 40 to 50 miles an hour. Debus then saw Mrs. Swanson turn left onto Petite Lake and the collision occur. He also testified that he saw the left turn directors signalling on the Swanson car about 100 to 125 feet north of the intersection and that Mrs. Swanson’s speed was about 5 to 10 miles an hour as she made her turn.

John Gallagher testified for the defense and said that he was driving south on Route 59 immediately behind the Swanson car. Gallagher slowed down as he approaced the intersection since Mrs. Swanson had stopped, with her left turn signal on, to permit a northbound car to pass. As Mrs. Swanson started to turn, Gallagher first observed a head “come over the hill” from the other direction on Route 59. The “head” was Purdom emerging from the dip about 300 feet away. Gallagher was unable to estimate the speed of the cycle other than to say that the collision occurred “awful fast.”

Valerie Swanson, who lived in the immediate area, said she had stopped at the intersection before her turn to let oncoming traffic through. She had turned on her directional signals at least 300 feet north of the intersection and they were still on as she started her turn. Before she turned, Mrs. Swanson looked to the south but did not see the motorcycle. She proceeded at about five miles an hour, heard a thud and saw Purdom, for the first time, fly through the air.

The other evidence was that Purdom was 40 years old and although he had only one eye he testified that he had no problems with depth perception. He wore a red protective helmet and his Honda was painted black. Photographic exhibits corroborate other evidence that large trees grew on the side of the road and cast heavy shadows at the intersection on a sunny day like July 29. The photographs and the testimony also disclose that the dip south of the intersection obscures traffic from the other direction for the short span a vehicle would be in the dip.

The plaintiff here contends that the trial court erred in its denial of his motion for a new trial since the verdict of not guilty returned by the jury was not sustained by the greater weight or preponderance of the evidence. A motion for a new trial is addressed to the discretion of the trial court and will not be disturbed unless it appears that the discretion has been abused. (Skiba v. Ruby, 113 Ill.App.2d 170, 173.) The existence of negligence by the defendant or contributory negligence by the plaintiff are ordinarily questions of fact for the determination of the jury. (Brichacek v. Hampton, 54 Ill.App.2d 284, 290.) The plaintiff maintains, however, that the testimony of two occurrence witnesses that they saw the plaintiff before the colfision and the testimony of the plaintiff that he saw the defendant when considered with the undisputed fact that the defendant made a left hand turn in front of the plaintiff clearly shows that the verdict was not supported by the preponderance of the evidence.

Although most of the facts of the accident were undisputed there was some slight conflict in the testimony, particularly in relation to the existence of shadows at the intersection. Even if all the facts were undisputed, however, the matter should have been left to the jury if a difference of opinion could exist as to the inferences that could be legitimately drawn from them. (Carter v. Winter, 50 Ill.App.2d 467, 477; Lowe v. Gray, 39 Ill.App.2d 345, 350.) The facts of this case are such that a difference of opinion could exist as to the degree of care exercised by the plaintiff under the circumstances and the refusal of the trial court to grant a new trial was clearly within its sound discretion.

It is also contended that this court should reverse the verdict since it was against the manifest weight of the evidence. A court of review can reverse a verdict as against the manifest weight of the evidence where it appears that an opposite conclusion is clearly evident or the jury’s verdict palpably is erroneous and wholly unwarranted from the manifest weight of the evidence. (Johnson v. Central Tile & Terrazzo Co., 59 Ill.App.2d 262, 273, 274; Vasic v. Chicago Transit Authority, 33 Ill.2d 11, 11e.) A verdict will not be disturbed simply because another jury or the judge might have reached a different conclusion. We cannot conclude that the verdict returned in this case was wholly unwarranted from the manifest weight of the evidence. Accordingly, the judgment of the trial court will be affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE ALLOY

text:
    John William Wood, Plaintiff-Appellee, v. Joseph M. Johnson, Executor of the Estate of William R. Johnson, Deceased, Defendant-Appellant.
    (No. 70-42;
    Second District
    November 16, 1970.

      Burek & Field, of Wheaton, for appellant.
    Gerald C. Snyder, of Waukegan, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Plaintiff John William Wood filed a complaint against defendant Joseph M. Johnson, individually and as Executor of the Estate of William R. Johnson, deceased, alleging that he was entitled to a broker’s commission in the amount of $162,500. The complaint alleged that plaintiff, as a broker, had been employed to procure a buyer for the “Chevy-Chase Country Club property” owned by defendant; that plaintiff had presented a purchaser who was accepted by defendant; and that a valid written contract was entered into for the purchase price of $3,250,000. It was alleged that defendant agreed to pay a broker’s commission to plaintiff of five per cent (5%) of the purchase price and that although plaintiff had demanded payment, no payment was made. The transaction involving the sale of the premises occurred in December 1963.

The action from which this appeal stems was initiated on November 13, 1968. Defendant filed an answer, appearing pro se. On May 28, 1969, following notice, the cause was set for trial before a jury on July 21, 1969. Defendant was served with an additional notice of such setting on July 10, 1969. On such date plaintiff announced he was ready for trial and defendant asserted that he was not. Defendant orally stated that he was unable to go to trial at the time; that the original parties involved in the case had been underway with other proceedings, not involved directly as between the parties with respect to the commission, for a number of years prior to that time in other proceedings in the circuit court of Lake County. Defendant, who was an attorney, but who was not practicing, orally requested a continuance. Plaintiff’s attorney stated, that, following notice, he had summoned his client who had come in from Texas for the purpose of the trial of the cause. In the course of the discussion, the court stated that defendant, in making his request for a continuance, was not “following the rules”, and that he had not presented anything to the court which justified a continuance. There was some discussion between defendant and the court as to what if anything was required to justify a continuance. It is not necessary that we detail this discussion in view of our determination of this cause. The court denied the request for continuance. Thereafter, defendant stated he would not participate in the trial which the court set for 1:30 P.M. the same afternoon.

The failure of the defendant to appear and proceed at the trial resulted in a default and a formal “prove up” of the obligation before the jury, followed by a directed verdict for $162,500 as against the defendant.

The defendant in the course of the discussion with the trial court, stated that he would gladly stand trial that day if he could get his witnesses but that they were preoccupied with business or vacations. No affidavit or testimony was submitted in support of defendant’s motion. As we have indicated the continuance request was denied. At the hearing conducted in the afternoon before the jury, plaintiff testified that he lived in Midland, Texas, and came to Illinois for the trial; that he was a licensed real estate broker in Illinois and had been since 1930. Defendant in the cause lives in Lake County. Plaintiff testified that he had been employed to procure a buyer for the Chevy-Chase Country Club and had done extensive work in connection with such employment. He referred to an offer he had received for $3,000,000 for the property, which was rejected, and a subsequent offer of $3,250,000, which was accepted (after plaintiff had worked for over two years on the sale of the property). The record shows that after the offer for $3,250,000 was presented, defendant requested and received five credit reports as to the purchaser, and after the defendant had received such reports he accepted the offer of purchase and signed the contract.

Following entry of judgment in this cause, defendant filed a petition to vacate the judgment. The petition recites that an action was filed by defendant on November 25, 1964, against the purchaser for default on the December 9, 1963, contract, upon which the plaintiff contends a commission is payable. A judgment order was entered on January 28, 1965, finding that the purchaser was in default. Plaintiff in this action, was not a party to that lawsuit. It was also recited, in the petition, that another action was filed by defendant Johnson against the individual purchaser in the 1963 contract and as against plaintiff. That action alleged a conspiracy as between said defendants. The judgment order entered in that case, on October 7, 1968, found that there was no conspiracy; that defendant Johnson had requested and received credit reports as to the purchaser and judgment was entered in favor of plaintiff and the purchaser in that action.

Defendant’s affidavit indicated that he was admitted to practice law in Illinois in 1933 but that his business had been that of an investment broker and counselor and that defendant was unfamiliar with the practice of law. Defendant was shown to be a successful businessman engaged in business for more than 35 years. While he maintained an office and was referred to as an attorney, he did not practice actively. It was shown that defendant elected not to engaged an attorney to assist him at any time prior to the entry of the judgment in this cause, although he had been represented by attorneys in the previous proceedings referred to in the petition to vacate. The petition to vacate the decree was denied.

On appeal in this cause, defendant contends that the court committed reversible error in denying defendant a continuance. Defendant asserts that it is not necessary that defendant establish a meritorious defense or facts relating to a defense in the action or show reasonable excuse to justify setting aside a default, and that the entry of judgment in the cause before us was a denial of substantial justice to defendant. Defendant agrees that the motion for continuance was not made in accordance with Supreme Court Rule 231. (Ill. Rev. Stat. 1969, ch. 110A, par. 231.) It is also established of record that the cause was set for trial pursuant to notice and that thereafter special notice of the setting was given to defendant. No written motion or affidavit for continuance was presented.

As this court had indicated at considerable length in Brewer v. Martin, 96 Ill.App.2d 54, 238 N.E.2d 162, a motion to set aside a default is addressed to the sound discretion of the court. We pointed out in that case that the principles as expressed in Widicus v. Southwestern Electric Cooperative, Inc., 26 Ill.App.2d 102, 167 N.E.2d 799, and also supported in Kehrer v. Kehrer, 28 IlI.App.2d 296, 172 N.E.2d 239, and Lynch v. Illinois Hospital Services, Inc., 38 Ill.App.2d 470, 187 N.E.2d 330, were approved by the courts of this State. We pointed out there that the basic concept with which the courts are concerned is that of attaining justice through the exercise of fairness to both parties. As we emphasized in that case, the court can and should examine into such considerations as the reason for failure to present a timely defense, and, also, whether a reasonable basis for a meritorious defense in fact exists. We stated there that another important consideration is the determination of whether or not setting aside the default will operate as a hardship on the party who obtained the default judgment. In this connection, we also referred to Mieszkowski v. Norville, 61 Ill.App.2d 289, 209 N.E.2d 358, where it was noted that the court must decided whether some meritorious defense exists so that vacating the judgment will not be a patently useless act.

With these principles in view, it is essential to examine into the record in the cause before us. It is disclosed from such record that the property owner, in the cause before us, had asked for credit reports as to the purchaser, and had received five credit reports before he entered into a written contract with the buyer. He approved and accepted the buyer and executed a written contract of sale with the buyer. On the basis of such activity, since seller had checked the credit of the buyer and relied on the result of his own judgment, followed by the execution of a written contract with buyer, the broker became entitled to a commission (Rushkiewicz v. St. George, 226 Ill.App. 310; Chapman v. Illinois Midwest Joint Stock Land Bank, 302 Ill.App, 282, 23 N.E.2d 744.) The fact that one of the parties to the contract failed to complete the sale provided for in the written contract does not deprive the broker of his right to the commission. The circumstance that the purchaser was held in default following the execution of the contract would not be a defense to suit for broker’s commission under the contract, since defendant accepted the purchaser after investigating his financial stability. Where a seller has obtained credit reports or makes an independent investigation, and thereafter executes an agreement to sell to such purchaser, the transaction amounted to a conclusive arrangement between the seller and the buyer, and the actions of the seller in concluding such contract, following receipt of credit reports, amounts to a waiver of a condition relating to the readiness, willingness and ability of the purchaser to complete the transaction, which might otherwise have obtained. Cabry v. Ionidas, 122 Ill.App.2d 167, 258 N.E.2d 45.

As a consequence of a review of the record, it becomes apparent that plaintiff would be entitled to a commission on the basis of the facts of record, and that setting aside the default and vacating the judgment would be, as expressed in Mieszkowski v. Norville, supra, a "patently useless act”. We agree that under the precedents in this State, it is not indispensable in the motion to set aside a default, that a specific meritorious defense be estabfished or that a rigid showing be made of good and sufficient cause for setting aside a default. It is true that the court, in passing on the motion should examine into aH matters of record relating thereto, to determine, on basic principles of fairness and furtherance of justice, whether the default should be set aside and the judgment vacated. This does not mean, however, that in any case where request is made to set aside a default and vacate a judgment, that the motion should be granted irrespective of whether or not setting aside such judgment wül be of value in the ultimate determination of the cause. This involves an examination of facts of record presented in the proceeding to set aside such default. If it appears that vacating the judgment would be a useless act, and that, ultimately, the obligation which is reflected by the judgment would necessarily be required to be imposed, then the court should not vacate the judgment.

Applying the principles which we have discussed in the course of this opinion, we do not find it necessary to determine whether or not defendant failed to show diligence or whether the denial of the motion for continuance was proper by reason of the failure of the defendant to file or state grounds for a continuance. In view of the record in this cause it is apparent that the same liability would be imposed on defendant at a trial on the merits in this cause. Accordingly, we conclude that the denial of the petition to vacate the judgment against defendant was proper.

For the reason heretofore stated, therefore, the judgment of the circuit court of Lake County wiU be affirmed.

Judgment affirmed.

RYAN, P. J. and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary L. Clark et al., Defendants-Appellants.
    (Nos. 70-45, 70-46;
    Second District
    November 18, 1970.

      Canfield, Canfield, Franks, Wylde & Hoad, of Rockford, for appellants.
    John B. Roe, State’s Attorney, of Oregon, (William H. Snively, Assistant State’s Attorney, of Rockford, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

The defendants Gary L. Clark and Tobie M. Grover, were separately indicted by the same Ogle County Grand Jury for the crime of reckless homicide. They filed motions to quash the respective indictments, but the trial court held that the language of the indictments was sufficient to charge the crime against both of the defendants. A motion by the State to combine and hear the two cases in a single trial was granted over the objection of both of the defendants. At the trial each defendant testified and the jury found that both of them were guilty. Post-trial motions were filed and denied; applications were made for probation and each defendant was placed on probation for five years, conditioned upon each defendant spending the first six months of the probationary period in the State Reformatory at Vandalia. Both of the defendants have now appealed to this court.

The defendants contend: (1), That the indictments failed to state the nature of the charge against them as required by Section 9 of Article II of the Illinois Constitution; and (2), that joinder of the indictments for trial was erroneous. The defendant Clark further asserts that he was not proven guilty beyond a reasonable doubt, and that he was arbitrarily denied a release on probation by being compelled to spend the first six months of his sentence at Vandalia.

The Criminal Code provides:

“A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.
“If the acts which cause the death consist of the driving of a motor vehicle, the person may be prosecuted for reckless homicide or if he is prosecuted for involuntary manslaughter, he may be found guilty of tire included offense of reckless, homicide.” Ill. Rev. Stat. 1969, ch. 38, par. 9—3(a)(b).

The indictment returned against Clark alleged that he committed the offense of reckless homicide in that he did “operate a motor vehicle on a public highway in such a reckless manner that he lost control of the said vehicle and struck a motor vehicle operated by Connie T. Bowen, causing the said vehicle operated by Connie T. Bowen to go out of control and hit a tree, and thereby causing injury to Connie T. Bowen that resulted in the death of the said Connie T. Bowen.”

The indictment returned against Grover alleged that he committed the offense of reckless homicide in that he did “operate a motor vehicle on a public highway in such a reckless manner that he lost control of the said vehicle and struck a motor vehicle being operated by Gary L. Clark, which struck a motor vehicle being operated by Connie T. Bowen causing the said vehicle being operated by Connie T. Bowen to go out of control and hit a tree, and thereby causing injury to Connie T. Bowen that resulted in the death of the said Connie T. Bowen.”

It, thus, appears that both indictments are substantially in the words of the statute, and that they further particularized the acts which were alleged to have constituted the offense to a degree which was sufficient for the defendants to prepare their respective defenses, and to plead any resulting judgment as a bar of any subsequent prosecution for the same offense. They are, therefore, sufficient. People v. Potter (1955), 5 Ill.2d 365, 367, 368; People v. Mowen (1969), 109 Ill.App.2d 62, 68, 69.

Prior to the trial, the State filed a motion for joinder of related prosecutions pursuant to Section 114—7 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1969, ch. 38, par. 114—7.) Both of the defendants filed pleadings opposing the joinder. The State’s motion, however, was granted. The objections of Grover pointed out to the court that the State had filed with the court, written statements taken from both of the defendants; that the statement of Clark confessed wrongdoing on his part and charged wrongdoing on the part of Grover; and that, in event the prosecutions were joined, the statement of Clark would be admissible as to him and would prejudice the defense of Grover.

The material aHegations of wrongdoing contained in Clark’s statement as they related to Grover were: that it was Clark’s opinion that, immediately prior to the coHision, both cars were traveling in excess of 80 m.p.h.; that he, Clark, while driving his car at a speed of from 90 to 100 m.p.h., had passed the Grover car which was going about 85 to 90 m.p.h.; that he, Clark, then slowed his car down to about 80 m.p.h. because of the car in front of him; and that Grover then passed him and the accident occurred. At the trial, Clark’s statement was admitted in evidence and aHowed to go to the jury as an exhibit.

An examination of Grover’s statement leads us to believe that, irrespective of any other evidence at the trial, no implications of conduct sufficient to constitute reckless homicide could be inferred from his statement. Under this state of facts, we believe the court erred in not granting Grover’s motion for a severance. The Supreme Court in People v. Clark (1959), 17 Ill.2d 486, at pages 489 and 490 stated:

“The general rule is that those indicted jointly for the commission of a crime are to be tried together, and the matter of granting a separate trial is within the sound discretion of the trial court. (Citations.) But this is a judicial and not an arbitrary discretion, (citation) and where the circumstances are such that a defendant wiH be deprived of a fair trial if jointly tried, a severance must be ordered. (Citations.) Confessions or admissions made by an accompHce outside the presence of a defendant are not admissible against the latter whether or not the parties are jointly tried, and we have repeatedly held that when a motion for separate trial is based on the fact that a codefendant’s confession implicates the moving defendant, a severance should be granted unless the prosecution declares that the admissions or confessions wiH not be offered in evidence at the time of trial, or if offered, that there will be eliminated therefrom any and all reference to the party applying for a severance. [Citations.]” Also see: People v. Miller (1968), 40 Ill.2d 154, 158, 159.

Thus, as to Grover, we believe the denial of the motion to sever deprived him of a fair trial, and, as to him, the cause must be reversed and remanded for a new trial.

Clark also moved for a severance. His motion and his opposition to the consolidation of the defendants’ cases for trial was to the effect that his defense was antagonistic and incompatible to that of Grover. (See: People v. Battle (1969), 116 Ill.App.2d 375, 383, 384.) However, we found nothing in the record to indicate the validity of such contention. As to Clark, we believe that the court did not err in denying his motion for severance, and, therefore, we must consider whether there was sufficient evidence to sustain his conviction.

Grover notified the Sheriff’s office of the accident, but did not then admit that he had been involved in it. The next day, however, both Grover and Clark gave statements to the police. As previously noted, Grover’s statement did not mention speed, but Clark’s statement indicated that when his car passed the Grover car he was going between 90 and 100 m.p.h., and that as he approached the Bowen car he was going about 80 m.p.h. Pictures of the scene of the occurrence, and testimony concerning distances and skid marks, were introduced over objection. The testimony of certain witnesses on behalf of the defendants indicated that at the time of the collision, both the Clark and Grover cars were traveling between 60 to 65 m.p.h. From the entire record, we believe that there was sufficient evidence to sustain Clark’s conviction.

We recognize that evidence of speed alone is not sufficient to sustain a conviction for reckless homicide. (People v. Potter, supra, 371.) Plowever, charges of reckless homicide may be justified by a combination of excessive speed and other circumstances which would indicate a conscious disregard of a substantial risk likely to cause death or great bodily harm to others, and the circumstances are such that a reasonable person would act differently under the same situation. People v. Prendergast (1968), 95 Ill.App.2d 41, 44; People v. Baier (1964), 54 Ill.App.2d 74, 78.

The record indicates that the occurrence which caused the death of Connie T. Bowen happened May 11, 1969, at approximately 7:45 P.M., on the Pines blacktop road, which leads to White Pines State Park. The car which Mrs. Bowen was driving was traveling in a westerly direction at approximately 50 to 55 m.p.h. The defendants, each in their respective automobiles, were also traveling in a westerly direction on this road. The Clark car passed the car driven by Grover approximately six-tenths of a mile from the place of the coUision. His car proceeded up and down a hill and then came upon the automobile driven by Mrs. Bowen. He attempted to pass her car, and at the same time, Grover attempted to pass both the Bowen and Clark cars.

It is uncertain from the testimony whether or not the Clark car was partially in the passing lane; however, the Grover car was forced off the road, either before or after it sideswiped the Clark car. The Clark car struck the Bowen car which then hit a tree, resulting in fatal injuries to Connie T. Bowen.

In summary, we feel that the evidence of excessive speed on a hilly blacktop road, a series of passes, and an attempted pass on the part of the defendants while driving at a high rate of speed, was sufficient, if believed by the jury, to sustain the conviction.

As to the defendant Clark’s final contention, we find no abuse of discretion by the trial court in its decision on Clark’s application for probation. In the absence of such abuse of discretion, the decision of the trial court will not be disturbed. People v. Burdick (1969), 117 Ill.App.2d 314, 323.

The judgment of conviction as to the defendant, Tobie M. Grover, is reversed, and that cause is remanded for a new trial.

The judgment of conviction as to the defendant, Gary L. Clark, is affirmed.

Judgment affirmed in part; reversed in part ánd remanded.

MORAN and SEIDENFELD, JJ„ concur.


text:
    Jay Ricke, a minor by and through his mother and next friend, Helen Ricke, Plaintiff-Appellee, v. Cyril Ricke, Defendant-Appellant.
    (No. 70-61;
    Second District
    November 18, 1970.

      Edward Van De Houten, Jr., of Glen EHyn, for appellant.
    Erlenborn, Bauer & Hotte, of Elmhurst, for appeHee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

This appeal arises from replevin action brought by a minor son (plaintiff) against his father (defendant). After a bench trial, the court found in favor of the son and the father appeals.

In June of 1968, the son had graduated high school and was in the custody of his father -under a court order. The son wanted to go to a local college but needed an automobile for transportation. An arrangement was made between the father and son whereby the son would seek employment and turn over to his father one-third of his earnings for board and room and one-third for school. The son was to retain the remaining one-third for his personal needs. By December 1, 1968, the son had given his father a total of $1097.00.

Together they went to an automobile agency. A car was purchased for $1092.00 and the title placed in the fathers name. The son testified that his father had told him that if he went to college, the car would be his. The father testified that he had agreed to get the son a car for his use as long as he went to coHege and lived up to the rules and regulations of the house.

The son entered college in December of 1968 and continued until November, 1969. From December until the foHowing June, the son had exclusive use of the car in going to and from coHege and work. He maintained the car during this period. On June 7, 1969, the father went to the son’s place of employment and told the son that he had not done what he was told to do around the house, that he should pick up his clothes, that he was through in their house and that he was going to take the car away from him. The father then pulled the ignition wires from the car.

The son went to the house and found all of his belongings on the front porch. Three days later, the father returned to the sons place of employment and took the car with the son’s belongings therein. The son testified that two days later he endorsed his paycheck and sent it to his father because he owed him for gas and/or for his contact lenses; that he called his father that evening in an effort to get his clothing back but his father said he would talk about that when the son paid up his bills. He told his father he had sent him his paycheck and the father replied, “too bad”; that since that time he has heard nothing.

The son commenced a suit in replevin to recover the automobile. At the conclusion of trial, the court ordered the father to transfer legal title and possession of the car to the son on the basis that the evidence disclosed the automobile was a gift from the father to the son.

On appeal, the father contends that a son may not sue his father in tort and that the trial court’s decision was against the manifest weight of the evidence.

As to the first contention, we have read the entire record but fail to find this point raised either in the pleadings or in the transcript. A contention not presented in the trial court is waived and cannot be raised for the first time on review. This proposition of law has been repeated so often that citation of authority is unnecessary.

On the second contention, it is argued that the record title to the automobile was shown to be in the name of the father; that this is a conclusive presumption that could not be rebutted by the son’s parole evidence. We disagree and conclude, from the evidence, that the documentary title was held as a matter of convenience by the father for the benefit of his son.

It is further argued that “the father does not admit that he made a gift of the car”, but our attention is first directed to the answer of the father where he “admits making a gift to Plaintiff of a 1965 Mustang automobile conditioned, however, upon Plaintiff’s continuance in school and continued good behavior.”

The father, in his briefs, claims that his son “quit school.” Nowhere does the evidence substantiate this statement as of the time suit was commenced. The testimony of the son discloses that he was in school until two weeks prior to trial, at which time the car he was using broke down; he was, therefore, unable to continue his attendance.

As to “continued good behavior,” there is no evidence in the record to define what was meant by good behavior or in what manner the son had misbehaved. Actually, the fathers testimony coincided with that of his son in almost every instance.

As pled in the answer, the conditions of the gift amounted to affirmative defenses which were entirely unsupported by the evidence and left the trial court without any alternative but to find that an absolute gift had been made by the father to the son.

The father finally argues that a parent may take back property previously given to a minor child and cites Cranz v. Kroger (1859), 22 Ill. 74. We refer the defendant to Magee v. Magee (1872), 65 Ill. 255, 257 and Scott v. Scott (1903), 111 Ill.App. 220.

In conclusion, we are of the opinion that the trial court, as the trier of facts, properly decided the issues and its decision was not against the manifest weight of the evidence. The judgment is, therefore, affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE SEIDENFELD

text:
    Ruberta Karasik, Plaintiff-Appellant, v. City of Highland Park et al., Defendants-Appellees.
    (No. 70-7;
    Second District
    November 20, 1970.

      Paul Peter Mack, Sidney Karasik, of Chicago, for appellant.
    Thomas H. Compere, Berle L. Schwartz, of Highland Park, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff appeals from the judgment of the circuit court confirming the refusal of the Zoning Board of Appeals of Highland Park of a variation to reduce a yard restriction on a comer lot. She had sought the variation to enable her to extend and rebuild an existing porch into an enclosed room. The following plat with the proposed extension superimposed is illustrative:

The lot, zoned residential, meets the width and area requirements of the city zoning ordinance. It is improved with a two-story, single family residence which was built prior to the zoning enactments in question. The principal entrance fronts on Lincolnwood Road, which is also the residence address.

The various yard provisions of the Highland Park Zoning Code, which the parties have cited, include the following:

“Highland Park Zoning Ordinance, Article VII ‘C’ Single Family Dwelling District Regulation.
Section 7-13. Front yard:
(a) There shall be a front yard having a depth of not less than forty (40) feet. * * *
(c) On a corner lot there shall be a front yard on each street side of such lot, except that the front yard on a side street, may be reduced in depth to the extent necessary to permit a buildable width on said lot of forty (40) feet, providing the depth of said yard shall not be reduced to less than ten (10) feet.
Section 7-14. Side yard:
(a) (With exceptions which are not applicable here) * * * there shall be a side yard on each side of a building having a width of not less than nine (9) feet. * * *.
Section 150.005:
# « * (54) ‘Yard, front’ means a yard extending across the the front of a lot between the side yard lines, and being the minimum horizontal distance between the street line and the main building or any projection thereof other than projection of the usual step. (55) Yard, rear’ means a yard extending across the rear of a lot, measured between the side lines, and being the minimum horizontal distance between the rear lot line and the rear of the main building or any projections other than steps. On corner lots the rear yard shall be considered as parallel to the street upon which the lot has its least dimension. On both comer lots and interior lots the rear yard shall in all cases be at the opposite end of the lot from the front yard.
(56) Yard, side’ means a yard between the main building and the side line of the lot, and extending from the front line to the rear yard line.

Section 150.040:
(3) On a corner lot there shall be a front yard on each street side of such lot, except that the front yard on the side street may be reduced in depth to the extent necessary to permit a buildable width on said lot of 40 feet, providing the depth of said yard shall not be reduced to less than 10 feet.”

(There is no definition of a “side street” or a “main street”, as those terms are used in the ordinance.)

Plaintiff first argues that she was unlawfully required to seek a variation because her porch was, in fact, located in her side yard and not in her front yard. She cites authorities which have construed restrictive covenants holding that the fact that a lot is on a corner does not cause it to have two fronts, one on each street (Turney v. Shriver (1915), 269 Ill. 164); that the portion of a corner lot which is opposite the rear of the lot and which faces on the street is properly designated as the front of the lot (Staley v. Mears (1957), 13 Ill.App.2d 451); and that “front”, in general usage, refers to the side in which the main entrance is located (Rhinehart v. Leitch (Conn. 1928), 140 Atl. 763).

The City rests its argument upon that portion of sub-paragraph (55) of Section 150.005, supra, which reads,

“On comer lots the rear yard shall be considered as parallel to the street upon which the lot has its least dimension. On both corner lots and interior lots the rear yard shall in all cases be at the opposite end of the lot from the front yard”.

Thus, the City reasons, the front yard must face on Delta. We believe, however, that a more explicit reference to the legislative intention is found in Section 150.040 and Section 7-13, supra, both of which provide that on corner lots there shall be a front yard on each street side of such lot with certain exceptions applicable to the front yard on a side street.

Although the ordinance fails to define the term “side street, we agree with plaintiff that under the circumstances shown by the evidence here, Delta Road must, in reason, be considered the “side street” under the ordinances. However, in view of the requirements that there shall be a front yard on each street side of a corner lot, we cannot conclude, with plaintiff, that the frontage on Delta Road therefore becomes the “side yard”.

Corner lot restrictions are intended to permit an owner to develop his land without undue restriction, but to protect other owners on both streets. (Anderson, American Law of Zoning, Section 8.45.) Set back restrictions are subject to rigorous application. (Anderson, American Law of Zoning, Section 8.43.) The apparent design of such regulations is to provide uniformity of frontage in the spirit of harmonious city-planning. See Frank v. Russell (Neb. 1955), 70 N.W.2d 306, 311.

Viewing the Highland Park Zoning Ordinances with this purpose in mind, the provisions for front yard set-backs on each street side of the corner lot determine the need for plaintiff to seek a variation here. A contrary interpretation would permit plaintiff, or any property owner similarly situated, to build within 9 feet of one side line of a comer lot and thus effectively destroy any reasonable minimum set back standards at block ends.

We must also reject plaintiffs argument that the city set back ordinance may not be given retroactive effect as to pre-existing buildings. A valid exercise of the police power can be made to apply and does apply to existing properties. Village of Oak Park v. Hepler (1958), 13 Ill.2d 360, 362.

We are also of the opinion that the trial judge correctly ruled that plaintiff had not made a case under Section 150.165 of the Highland Park Ordinance which generally authorizes variations which are in harmony with the general purpose of the zoning code when the Zoning Board of Appeals is satisfied that strict application imposes “practical difficulties or particular hardship” upon an owner, amounting to “practical confiscation of property, as distinguished from a mere inconvenience to such owner”.

Judicial review of the action of the Highland Park Zoning Board of Appeals is limited by the rule that the action of the administrative agency may be reversed only if it is contrary to the manifest weight of the evidence. If there is substantial competent evidence to support its action, the court will not disturb the decision of such board. (Ill. Rev. Stat. 1969, ch. 110, par. 274; DeGrazio v. Civil Service Com. (1964), 31 Ill.2d 482, 489; Sudduth v. Board of Fire & Police Comr’s (1964), 48 Ill.App.2d 194, 208; River Forest Bank & Trust Co. v. Zoning Board (1962), 34 Ill.App.2d 412, 417.) We cannot accept plaintiff’s argument that since the city offered no contrary evidence on the question of hardship, that her testimony made a prima facie case for relief. Our review is rather concerned with the legal significance of the facts appearing in the entire record before the administrative board. Plaintiff has the burden of complying with the proof required by statute and ordinance whether there is or is not opposing testimony. See River Forest Bank & Trust Co. v. Zoning Board, supra, at page 417.

The proof here consisted of testimony that plaintiff desired to add a family room to provide additional area “for children coming into the house as visitors” of two sons, age 11 and 9, and a daughter, age 12, so that the children would not then have to come through the main entrance or use the living room for entertaining; that the family “is sorely pressed for space” and desired to remain in the neighborhood; and that plaintiff had sustained a broken leg the previous summer, and it would be easier to supervise at ground level rather than improving the basement of other areas. The present porch was limited by a chimney and was of inadequate size to construct a family room. The house included three bedrooms with the two sons sharing one bedroom, a patio area on the east side of the house which was not enclosed, and a full basement.

The Highland Park Ordinance sets forth strict requirements for the seeming of a variance in conformity with enabling provisions of Ill. Rev. Stat. 1967, ch. 24, par. 11-13-4. An analysis of cases in various jurisdictions indicates that courts will generally approve an area variance upon a lesser showing by the applicant than is required to sustain a use variance, but will not affirm an area variance if it is granted solely to relieve a problem which is personal to the owner as opposed to one especially affecting the lot in question. Anderson, American Law of Zoning, Sections 14.45, 14.50. See also River Forest Bank & Trust Co. v. Zoning Board, 34 Ill.App.2d 412, supra, at page 419.

Plaintiff has placed reliance upon Lippe v. Cisternino (1964), 254 N.Y.S.2d 273, 278 and Quaglio v. LaFreneire (1960), 203 N.Y.S.2d 968, 970 as holding that a requirement of larger quarters due to natural growth of children constitutes “practical difficulty” justifying an area variance. These cases may be distinguished both upon factual differences and upon the unique view taken by the New York authorities that a showing of hardship is not required for a variation and that minimal practical difficulties will suffice. Moreover, we believe, that the direction of the law in Illinois as well as the provisions of the ordinance before us, require more than the showing of natural growth of a family and personal inconvenience within the definition of “practical difficulties” or “particular hardship” justifying a variation from the terms of the zoning requirements. While we have not been directed to any Illinois cases with substantially similar facts to the one before us, we have noted factually similar cases in other jurisdictions, including Didonato v. Zoning Bd. of Review of Town of Johnston (R.I. 1968), 242 A.2d 416, 420; In re Kline’s Estate (Pa. 1959), 148 A.2d 915, 916; Aronson v. Board of Appeals of Stoneham (Mass. 1965), 211 N.E.2d 228, 229; Brown v. Beuc (Mo. 1964), 384 S.W.2d 845, 852; Carney v. City of Baltimore (Md. 1952), 93 A.2d 74, 77, in which requests for variances were denied.

We, therefore, affirm the judgment below which affirmed the action of the Zoning Board of Appeals of Highland Park.

Judgment affirmed.

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

       Plaintiff, of course, cannot bring herself within the exception stated in this section since her home has a width of more than 40 feet.

       Section 150.165:
      “(D) When a property owner shows that a strict application of the terms of this chapter relating to the use, construction, or alteration of buildings or structures, or to the use of land, imposes upon him practical difficulties or particular hardship, then the board may make such variations of the strict application of the terms of this chapter as are in harmony with its general purpose and intent when the board is satisfied, under the evidence heard before it, that a granting of such variation will not merely serve as a convenience to the applicant, but is necessary to alleviate some demonstrable hardship or difficulty so great as to warrant a variation in the following instances: 6 *
      (4) To make a variance where, by reason of an exceptional situation, surroundings, or condition of a specific piece of property, or by reason of exceptional narrowness, shallowness or shape of a specific piece of property of record, or by reason of exceptional topographical conditions the strict application of any provision of this chapter would result in peculiar and exceptional practical difficulties or particular hardship upon the owner of such property and amount to a practical confiscation of property, as distinguished from a mere inconvenience to such owner, provided such relief can be granted without substantial detriment to the public good and without substantially impairing the general purpose and intent of the comprehensive plan as established by the regulations and provisions contained in this chapter.”


text:
      In re Estate of Irene Isabelle Nowak, Deceased—(Grace Todd et al., Petitioners-Appellees, v. First National Bank and Trust Co. of Belvidere, Admr., Respondent-Appellant.)
    (No. 70-16;
    Second District
    November 20, 1970.

      David R. Babb, Stanley A. Hetzler, of Belvidere, for appellant.
    John A. Strom, of Belvidere, for appellees.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A petition was filed to set aside a finding of heirship and appointment of an administrator by persons (petitioners) claiming to be the true heirs of the decedent. Their claim was based upon the supposition that the deceased was not lawfully married at the time of her death. The court, subsequent to bench trial, rendered a decision finding that there was a valid marriage and denied the petition. Some 15 days later, a pleading was filed by petitioners and the court then rendered a contrary decision finding that the deceased was not married and ordered the appointment of a new administrator. From this last order the appeal is taken.

Herman and Irene Nowak were married in 1936 at Moline, Illinois, and moved to Belvidere, Illinois, in 1937. They resided continuously in Belvidere, as husband and wife until they were divorced there on April 26, 1948. After the divorce, Herman and Irene lived separate and apart for a period of approximately one year. Thereafter, the parties were known to be living together again and, from that time until their deaths, the parties conducted themselves as husband and wife. On June 25, 1969, Irene and Herman Nowak were both injured in an automobile accident; Irene died instantaneously and Herman died the next day. No marriage license was issued to them in Boone County subsequent to April 26, 1948, nor could any marriage certificate be found dated after their divorce. There were no children either bom to or adopted by either of them during their respective lifetimes.

July 7, 1969, on the petition of Hilda J. Hollister (sister of Herman Nowak), respondent was appointed Administrator of the Estate of Irene Nowak, Deceased. Proof of heirship found Herman Nowak, her husband, her only heir at the time of her death. A petition for revocation of letters of administration and issuance of new letters was filed by Grace Todd, sister of the deceased Irene Nowak, on July 16, 1969. The Court, after an extended hearing, found that Irene Nowak’s sole heir at law was Herman Nowak, her husband. Thereafter, a pleading was filed by petitioners, asserting error in the courts decision and, after argument, the court reversed its prior order and found that Irene Nowak was not married at the time of her death and was survived only by her brothers and sisters, petitioners herein. The letters issued to respondent were revoked and new letters issued to Grace Todd.

The respondent urges in the first instance that the pleading filed by petitioners does not conform to the requirements of section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 68.3), in that specific relief was not requested in the document. Respondent would have us conclude that the order of the court, entered on November 28, 1969 (reversing its order of October 20, 1969) which was granted on the court’s own motion, was void for want of jurisdiction since more than thirty days had elapsed. On this point, we do not agree. The document filed with the court on November 4, 1969, when taken as a whole, was an extensive presentation which could only be regarded by the court as a request for review of its prior findings. As respondent has pointed out, a motion of this nature is optional in a non-jury case and does not limit the scope of review. Its only purpose can be to ask for relief. Furthermore, the Civil Practice Act requires that it “be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties. The rule that statutes in derogation of the common law must be structly construed does not apply to this act or to the rules made pursuant thereto.” (Ill. Rev. Stat. 1969, ch. 110, par. 4.) We therefore find that the pleading filed by petitioners was sufficient under the act to stay execution of the order rendered on October 20, 1969, and that the court did not lose jurisdiction of the case.

The respondent next urges that they find the order of the trial court, entered on November 28, 1969, improper for failure to cite its reasoning or any authority in the matter. We also disagree on this point. The trial court in a non-jury case is not required to give or advance any reasons in reaching a decision. Ill. Rev. Stat. 1967, ch. 110, par. 64; Robinhorne Const. Corp. v. Snyder (1969), 113 Ill.App.2d 288, 294.

The respondent’s next contention concerns the evidentiary nature of the information stated in a coroner’s certification of death. An exhibit at trial was a certified copy of the coroners certificate of death, naming the deceased as Irene Nowak and stating her surviving spouse to be Herman Nowak. Respondent claims such information presents “prima facie evidence” of the marriage of Irene and Herman Nowak at the time of the decedent’s death, citing People v. Fiddler (1968), 102 Ill.App.2d 319 for construction of section 25(6) of the Vital Records Act. (Ill. Rev. Stat. 1969, ch. 111½, par. 73-25(6).) However, the Supreme Court has since reversed that finding in People v. Fiddler (1970), 45 Ill.2d 181. The Comt there found that a certified copy of a coroner’s death certificate listing cause of death was not admissible in a murder prosecution as prima facie evidence of cause of the victim’s death. The Court, at page 188, stated:

* * we think that in any event the cause of death * * * is not made admissible by subsection (6). That subsection gives the status of prima facie evidence only to ‘facts’ stated in the certificate. The question, therefore, is whether a statement of the cause of death which is included in a coroner’s certificate of death is a fact within the meaning of the statute.”

The Court went on to conclude that the opinion of an examining physician as to cause of death is not a “fact” which is to be admissible as prima facie evidence. We would likewise conclude that a statement made to the coroner by one of decedent’s relatives, and transferred to the death certificate as in this case, is not a “fact” which is to be admissible as prima facie evidence of the marital status of the decedent.

Respondent’s final contention is that documentary proof of a ceremonial marriage is not required to raise a presumption of marriage where the man and woman five together continuously during the time of the presumed marriage, where by their own statements and actions they exhibit conduct consistent with a ceremonial marriage, and where substantial documentary evidence demonstrates conduct consistent with a ceremonial marriage. It cites Stathos v. La Salle Nat. Bank (1965), 62 Ill.App.2d 398, leave to appeal denied, 33 Ill.2d 626, where the court concluded, on facts similar to those present in this case, that a reasonable presumption of marriage was raised. In Statthos, both participants to the wedding were dead; no record of ceremonial marriage could be found; they had exhibited conduct consistent with ceremonial marriage; and they had lived together as man and wife until the woman died.

Petitioners argue that Stathos is not controlling because the participants in the marriage had children born to them, and the court was primarily concerned with the presumption of legitimacy of the offspring. They urge, instead, that we adopt a rule requiring documentary proof of ceremonial marriage where no witness testifies to an actual marriage having been performed. They further maintain that had a marriage occurred, it would have been performed in Illinois and most likely in Belvidere, and that the absence of an Illinois marriage certificate should result in a presumption against marriage in this State or elsewhere.

We cannot agree with petitioners in this regard; we cannot make such a supposition regarding the actions of the deceased couple. It was not uncommon in 1948 for a couple to travel to another state to have a marriage ceremony performed. The Nowaks had been married in 1937 and lived together for eleven years before their divorce in 1948. Often a remarriage is not looked upon in the same light as was the original marriage of the couple. The fact that a marriage ceremony was not performed in the home town of the couple does not preclude the possibility of marriage. Conversely, marriage cannot be presumed valid by reputation alone since the State of Illinois does not recognize common law marriage; a marriage ceremony must take place.

The question before this court is whether a marriage may be proven by evidence which does not include actual proof of the ceremony.

We conclude that the finding in Stathos is controlling in this case. The presumption of legitimacy was considered in that decision, but we do not feel it renders the findings impotent in similar circumstances where no children are born of the relationship. The evidence in this case is even more extensive than in Stathos. Herman and Irene Nowak were married, divorced, and then resumed living together after a short period of time. Both parties are now dead and no record of a marriage can be found, nor can any person be found who can be said to have witnessed the marriage. Yet the parties did claim to have been remarried on a trip to the western states. Such a trip was in fact taken by them at the time they claimed to have been remarried. They resumed living together after returning from the trip, and continued to so live until their deaths. They held themselves out to the community and to friends and relatives as being remarried. Real estate was conveyed to them as husband and wife in joint tenancy. Exhibits including sales slips, insurance contracts, census records, savings accounts, personal property tax returns, hospital consent forms and income tax returns, were indicia of their husband- and-wife relationship. In all phases of day to day activity, the parties acted in a manner fully consistent with a ceremonial marriage. Given this factual situation, we hold that respondent did furnish sufficient proof to establish the marriage in question by the manifest weight of the evidence.

Petitioners argue that Lesher v. Lesher (1911), 159 Ill.App. 432, places the burden of proof on the respondent to prove that an illicit relationship has changed. By holding that the alleged marriage has been proven, we eliminate the question of whether the relationship was illicit in its commencement. It cannot have been illicit to live together after a marriage.

The decision of the trial court is reversed and the cause is remanded for entry of an order consistent with this opinion.

Reversed and remanded.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    William Bryant, Plaintiff-Appellant, v. George N. Etnyre, Jr., Defendant-Appellee.
    (No. 70-59;
    Second District
    November 20, 1970.
    Berry, Simmons & Coplan, of Rockford, for appellant.
    Fearer & Nye, of Oregon, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The issue presented is whether the trial court improperly denied a petition filed by the plaintiff seeking the vacation of an order of dismissal for want of prosecution.

A complaint for false arrest was filed by the plaintiff, William Bryant, against the defendant, George N. Etnyre, Jr., on August 16, 1965, in the circuit court of Ogle County. The defendant, thereafter, on September 15, 1965, filed a motion to strike and dismiss the complaint on the grounds that it failed to state a cause of action. On September 7, 1967, there having been no orders or other motions in this case, the plaintiff was served with a notice by the circuit court clerk, under Local Rule 5, that the case would be dismissed on October 2, 1967, for want of prosecution unless justifiable cause was shown for continuance.

On October 2, 1967, the plaintiff not having appeared or otherwise responded to the Rule, the case was dismissed for want of prosecution. That order appears in the court file of this case.

On August 20, 1969, the plaintiff filed a petition under Section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, sec. 72) which alleged that the counsel for the plaintiff was given notice that the case would be dismissed for want of prosecution on October 2, 1967; that the attorney for the plaintiff telephoned the attorney for the defendant as soon as he received the notice and advised him that he was engaged in the preparation of a murder case that was subject to call in the month of October, and was actually tried in November, 1967; that he could not be present on October 2, 1967, because of engagements in the circuit court of Winnebago County; that it was his understanding that the counsel for the defendant would make a statement to the court supporting these facts so that the case would not be dismissed; that he checked the judge’s docket in the office of the clerk of the circuit court in February or March, of 1968, and found no order of dismissal on record; that he was informed on or about September 16, 1968, that the suit had been dismissed on October 2, 1967, and that he verily believes that his client, the plaintiff, has a just and legal cause of action. Attached to the petition was an affidavit of plaintiffs attorney substantiating the petition.

Plaintiffs attorney, after realizing that he had not requested service to be made on the defendant, caused the defendant to be served on December 12, 1969. On January 5, 1970, the defendant filed an answer, stating that the counsel for the plaintiff had stated that he called the attorney for the defendant and made arrangements for non-dismissal but that nothing was done until March, 1968, when counsel for the plaintiff says he examined the docket and found no order for dismissal, whereas the file marks indicated that the matter was dismissed on October 2, 1967. The answer further states that counsel for the plaintiff did nothing until August, 1969, when he drafted a petition to reinstate but since he did nothing about setting it for hearing, two dates had been set by counsel for the defendant, and the defendant prayed for a dismissal of the petition.

On January 13, 1970, the Judge, in her memorandum order, stated that although the plaintiffs attorney says he checked the docket in the office of the clerk of the circuit court and failed to find an order of dismissal, if he had checked the court file, he would have found the order of dismissal. The Judges memorandum order concluded that: “It is incumbent upon plaintiff to use due diligence in disposing of cases, and even though notice was given prior to entering order of dismissal and not thereafter, and plaintiff relied on conversations with defendant’s attorney, which conversations were delayed to the court, motion to reinstate is denied.” This appeal followed.

Plaintiff argues that the court violated its own Rule 5 which provided that notice of a dismissal should be given to the dismissed litigant, and states that such notice is also provided by Ill. Rev. Stat. 1969, ch. 110, sec. 50.1. However, said section, although providing for notice of the entry of an order of dismissal for want of prosecution, also states: “The failure of the clerk to give the notice does not impair the force, validity or effect of the order.” It is also argued by the plaintiff that Section 72 invokes the equitable powers of the court as justice and fairness require. In Esczuk v. Chicago Transit Authority, 39 Ill.2d 464, 467, the court stated that section 72, of the Civil Practice Act, “enables a party to bring before the court rendering a judgment matters of fact which, if known to the court at the time the judgment was entered, would have prevented its rendition.” The court also stated: “It has long been held that once a court acquires jurisdiction, it is the duty of the litigants to follow the case.” Without repeating the chronology of events in this case, it is apparent that the plaintiff’s attorney failed properly to follow his case. The argument of the plaintiff s attorney that, even though an attorney may neglect to pursue his case, his client should have his day in court, is not impressive. In Davis Furniture Co. v. Young, 102 Ill.App.2d 415, 419, it is stated:

“Section 72 is not intended to relieve a party from the consequences of his own mistake or negligence (Esczuk v. Chicago Transit Authority, 39 Ill. 2d 464, 467, 236 NE2d 719 (1968)) even though a determination under section 72 invokes the equitable powers of the court, as justice and fairness require. Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 613, 615, 130 NE2d 348 (1963). The defendant must show that his failure to resist the judgment initially was a result of an excusable mistake and that he has a reasonable excuse for failure to act within the appropriate time.”

In Brantley v. Delnor Hospital, Inc., 120 Ill.App.2d 185, the court upheld an order (pursuant to a local rule) of dismissal for want of prosecution and found that although the attorney stated the reason why he did not attend the docket caU (a previous commitment on that day), he totaUy failed to assert any sufficient cause why nothing had been done in the prosecution of the cause preceding the call. The court concluded that the trial court properly exercised its discretion in refusing to vacate the order of dismissal because no sufficient cause was shown by the plaintiff for his failure to take positive action in the cause during the year (in our case, two years) preceding the dismissal. The court quoted from Deardorff v. Decatur and Macon County Hosp. Ass’n (1969), 111 Ill.App.2d 384 at page 390, 250 N.E.2d 313, at page 316, the following, p. 191:

“The desirability of resolving lawsuits by a trial on the merits is not aided where either a plaintiff or a defendant, as the case may be, does not show reasonable diligence in bringing about that result.”

The court further stated the following, p. 192:

“We prefer to decide cases on their merits, and seek to avoid determinations based on procedural or rule violations or omissions. However, flagrant and continued infringements of procedures and rules cannot be tolerated, and may justify our affirmance of the trial courts dismissal of the action for want of prosecution, without hearing the case on its merits.”

The Section 72 petition in the present case was inadequate. No sufficient cause is alleged as to why nothing had been done in the prosecution of the cause either before or after the order of dismissal. It fails to state a cause of action and shows on its face that the petitioner is not entitled to the relief sought. The order of the trial court is affirmed.

Order affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Dzielski, Defendant-Appellant.
    (No. 70-10;
    Second District
    November 25, 1970.

      Nicholas T. Kitsos, of Chicago, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (Kenneth M. Clark, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DAVIS

delivered the opinion of the court:

The defendant, Frank Dzielski, plead guilty to the charge of forgery. On appeal, he contends that the indictment did not state an offense; that his post-trial motion, although not filed within 30 days following the entry of a verdict or finding of guilt, was timely filed; that the trial court erred in refusing to grant a hearing on the post-trial motion; and lastly, that the sentence of from two to six years was excessive.

Count 2 of the indictment charged that the defendant, also known as Edward P. Davis, on February 7, 1969, in Lake County, Illinois, “committed the offense of forgery, in that he, with the intent to defraud, he knowingly delivers to the First National Bank of Waukegan, * * * a check dated February 4, 1969, made payable to Edward P. Davis in the sum of Four Hundred Eighty Dollars ($480.00), drawn on The First National Bank of Waukegan, * * * and the said check is apparently capable of defrauding another in such manner that it purports to have been made by and to have been signed as drawer by Marjorie Porter and the said Frank T. Dzielski a/k/a Edward P. Davis knowing that the said check to have been made and to have been signed as drawer by another other than Marjorie Porter, in violation of Chapter 38, Section 17-3, Illinois Revised Statutes of 1967; * *

In order to confer jurisdiction upon the court, an indictment must be sufficient to enable the defendant to prepare his defense, and to sustain a plea of judgment in bar to any further prosecution for the same offense. (People ex rel. Miller v. Pate (1969), 42 Ill.2d 283, 285; People v. Peters (1957), 10 Ill.2d 577, 580.) If the indictment is not sufficient to charge an offense, a judgment of conviction may not be upheld even though on a plea of guilty; and such defect may be raised for the first time on appeal. People v. Minto (1925), 318 Ill. 293, 296; People v. Billingsley (1966), 67 Ill.App.2d 292, 299, 300.

Section 111—3(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 111—3(a)), prescribes the manner of charging an offense. It provides that the charge shall be in writing; that it must state the name of the offense; cite the statutory provision supposedly violated; set forth the nature and elements of the offense; state the time and place of the offense as nearly as can be done; and state the name of the accused, if known.

Sections 17—3(a)(1), (2) and (3) of the Criminal Code defines the offense of forgery as one committed by a person, when, with intent to defraud, he knowingly:

“(1) Makes or alters any document apparently capable of defrauding another in such manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or
(3) Possesses, with intent to issue or deliver, any such document knowing it to have been thus made or altered.” Ill. Rev. Stat. 1969, ch. 38, par. 17—3(a(1), (2) and (3).

The indictment in this case depicts the forged instrument by a “purport description,” or in narrative form. If it explicitly identifies and describes the instrument, it is not necessary that there also be a “tenor description.” People ex rel. Miller v. Pate, supra 287.

The indictment here describes the check as being dated February 4, 1969, made payable to Edward P. Davis in the sum of $480,000, drawn on The First National Bank of Waukegan, and purportedly made and signed as drawer by Marjorie Porter. This description is sufficient. The number of the check and the color, the number of the account or other descriptive features, are not necessary to explicitly identify the check in question.

The contention of the defendant that the indictment is defective because it makes no mention of the unlawfulness relating to the signature of the purported drawer is without merit. He argues that the signature may have been made with the consent of Marjorie Porter, and that tire indictment requires one to presume that Marjorie Porter did not give her consent. In this regard, we think that the indictment was sufficient in charging that the check purports to have been signed by Marjorie Porter, as drawer, and that the defendant knew the check was made and signed by another. The charge was in the language of the statute, and set forth the essential elements of the offense sufficiently to inform the defendant of the charges against which he must defend, and to bar a second prosecution for the same offense. The old requirement of pleading technicalities in an indictment, has yielded to the command that the substance of the charge be stated. (People ex rel. Miller v. Pate, supra 287, 288; People v. Billingsley, supra 299. Whether the various requirements of Section 111-3(a) of the Code of Criminal Procedure are met, must be determined by the substance of the charge and not by the technicalities of its language. (People v. Billingsley, supra.) We believe that the indictment charged an offense.

The defendant entered his plea of guilty on June 30, 1969, and judgment was entered on the plea on that date. The hearing in aggravation and mitigation and with respect to probation was set for July 24, 1969, and on that date, the court sentenced the defendant to the penitentiary for a term of from three to six years, and denied his application for probation. The defendant moved for and was granted a stay of execution and mittimus. On August 5, 1969, he filed his motion for a new trial and for other post-trial relief. Thus, this motion was filed more than 30 days after the judgment of guilt was entered.

The trial court did not conduct a hearing on the defendant’s motion in that it was not filed within 30 days from the date of conviction. Consequently, the trial court made no finding on the issue of the voluntariness of the plea, but the court subsequently reduced the defendant’s sentence from three to six to two to six years. The defendant began to serve his term in the penitentiary in August, 1969.

Sections 116—1(b) and 116—2(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, pars. 116—1(b) and 116—2(a)), relating to motions for a new trial and in arrest of judgment, both provide that such motions “shall” be filed within 30 days following the entry of a verdict or finding of guilty. The Committee Comments indicate that the time limitations were newly imposed by the Code. We believe that the limitations as to time are mandatory and not directory. Generally, where a court has entered a judgment in a cause in the absence of circumstances justifying relief from that judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72), a valid judgment cannot be opened, vacated or set aside by the court in which it was entered after the expiration of 30 days from its rendition. People v. Lewe (1942), 380 Ill. 531, 535; People v. Rudecki (1923), 309 Ill. 125, 131.

The defendant’s post-trial motion, however, charged that the guilty plea had been obtained by virtue of an unfulfilled promise of the State to recommend probation for the defendant. While the hearing for and the denial of probation occurred within the 30-day time limit, and the defendant could have filed a timely motion, yet, even under such circumstances, our courts have dealt harshly with the State when it appears that the prosecutor has failed to fulfill his promise of a reduced sentence or probation. (People v. Riebe (1968), 40 Ill.2d 565, 568.) Under such facts, our courts have held that such conduct deprives the guilty plea of its voluntary character and renders it void. A conviction based upon such a plea is violative of due process and is open to collateral attack. (People v. Washington (1967), 38 Ill.2d 446, 449, 450.) A void judgment can be impeached at any time, whenever a right is claimed under it. (Simmons v. Hefter (1923), 308 Ill. 292, 293.) Consequently, we will consider the allegations of the post-trial motion with reference to the involuntariness of the defendant’s plea of guilty.

The answer of the State to the post-trial motion denied these allegations relating to the promise of probation. The issues thus formed went beyond the record, and would have required an evidentiary hearing had the motion been timely filed. (People v. Sigafus (1968), 39 Ill.2d 68, 70.) These issues could be appropriately raised in a post-conviction hearing after confinement. People v. Kessler (1969), 41 Ill.2d 501; People v. Sigafus, supra; Ill. Rev. Stat. 1969, ch. 38, par. 122—1, et seq.

Under the circumstances of this case, and in the light of the judicial concern in all cases that a defendant be permitted to withdraw his plea when the record shows it was entered through misapprehension of the law or the facts, or where the ends of justice will be best served by submitting the case to the jury (People v. King (1954), 1 Ill.2d 496, 500, 501), we believe that a hearing should be held on the question of the voluntary character of the plea. Even though this matter could be raised in a post-conviction hearing, we believe that it should be determined in this proceeding; that the technicality of an improper procedure should be waived to expedite the determination of this issue; and that the ends of justice require that a hearing be held in the trial court on the question of the voluntariness of the defendant’s plea.

The defendant also contends that the penitentiary sentence of from two to six years is excessive and should be reduced. The range of penalty permitted by statute is a fine not to exceed $1,000 or imprisonment in the penitentiary from one to fourteen years, or both. We recognize that this court has the power, on appeal, to reduce the punishment imposed by the trial court. Supreme Court Rule 615(b)(4); Ill. Rev. Stat. 1969, ch. 110A, par. 615(b)(4).

The hearing in aggravation and mitigation suggests some unfortunate incidents which may have lead the defendant to his ill-advised course of conduct; and that he has had some past problems indicating that this unlawful course of conduct was not previously unknown to him. Yet, the evidence of his surroundings at the time of this incident, indicates that health and financial setbacks may have caused him to take an action which he would not otherwise have taken; and that his family surroundings might well mitigate against similar conduct in the future.

The trial court heard and saw the witnesses; it determined the credibility and weight of their testimony. In the light of its determination, it imposed a punishment upon the defendant within the Emits prescribed by the legislature. Our power to reduce a sentence should be applied with considerable caution and circumspection. (People v. Taylor (1965), 33 Ill.2d 417, 424; People v. Juve (1969), 106 Ill.App.2d 421, 428, 429.) We do not believe that the penalty imposed constitutes a departure from the fundamental law and its spirit and purpose, or that it is manifestly in excess of the proscription of section 11 of Article II of the IIEnois constitution.

Consequently, we find no abuse of discretion by the trial court in imposing the sentence in question. Thus, the cause must be reversed and remanded for a hearing on the defendant’s motion regarding the voluntariness of his plea of guilty. If the plea is found to be voluntary, then the defendant should be resentenced; if found to be involuntary, he should be permitted to withdraw his plea of guilty, and the case should then be heard on its merit.

Reversed and remanded with directions to proceed not inconsistent with the views expressed herein.

Reversed and remanded, with directions.

ABRAHAMSON and SEIDENFELD, JJ., concur.