author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Sterling Savings and Loan Association, an Illinois Corporation, Plaintiff-Appellee, v. Alvin A. Schultz, et al., Defendants-Appellees, Bank of Lyons, Defendant-Appellant.
    Gen. No. 50,487.
    First District, Third Division.
    May 19, 1966.
    Rehearing denied June 17, 1966.

      Herbert Lesser, Willard J. Lassers, Bison, Lassers and Wolff, of Chicago, for appellant.
    Edward J. Barrett, of Chicago, for appellee, Mary Schultz; no brief filed for appellee, Sterling Savings and Loan Association.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Plaintiff, Sterling Savings and Loan Association, brought an action in March of 1963 to foreclose a mortgage on a residence at 1046 North Lathrop Ave., River Forest, Illinois, title to which was held by the Chicago City Bank and Trust Company, as trustee under a land trust. The beneficiaries of the trust, Alvin and Mary Schultz, and the trustee, were named as defendants in the foreclosure suit. Subsequently, the Bank of Lyons, the appellant here, was added as a party since it claimed an interest in the property because of a judgment which it held against Alvin Schultz in the amount of $62,038.-41. This judgment had been entered on May 8, 1961, and execution had been issued and served.

After the amount found owing by the decree of foreclosure and other legal expenses had been satisfied from the proceeds of the sale, there remained an excess of $8,881.48 in the hands of the master.

The Bank of Lyons claimed the sum by virtue of a judgment lien, and because of an equitable lien created by the filing of a creditor’s bill on April 13, 1962. Mary Schultz claimed this sum because of an equitable lien created by advancements made by her which helped to pay off a prior mortgage and because of an estate of homestead. The lower court ordered the sum of money paid to her. It is from this order that an appeal was taken by the Bank of Lyons.

The contentions of the appellant, the Bank of Lyons, are: (1) That the trial court erroneously ordered payment of the surplus funds to Mary Schultz; (2) that its judgment lien against the interest of Alvin Schultz in the land trust was prior to any claim of Mary Schultz; (3) that the filing of a creditor’s complaint gave the bank an equitable lien upon the beneficial interests in the land trust; (4) that the court erroneously awarded Mary Schultz a homestead in the amount of $2,500.

The facts are: The property had been acquired in 1956 by the Chicago City Bank and Trust Company as trustee under land trust number 5596. The original beneficiaries of the trust were Sylvia and Norman Robinson, who later assigned their beneficial interests to Mary and Alvin Schultz. Initially, Alvin and Mary Schultz each had an undivided 50% beneficial interest in joint tenancy. On October 26, 1960, a decree of divorce was entered in favor of Mary against Alvin in the superior court of Cook County; said decree provided for alimony and child support, and provided that the premises here involved should be “sold by the plaintiff, Mary Schultz, and defendant, Alvin A. Schultz, and the net proceeds thereof shall be divided between the parties, share and share alike.” The property was not sold as the decree provided.

However, on March 27 and 30, 1961, the Schultzes assigned their beneficial interests in the land trust to a nominee, and the nominee reassigned to each of them a 50% interest, not as joint tenants, but as tenants in common. On March 31, 1961, the mortgage to Sterling Savings and Loan was executed by the trustee of the land trust.

On May 8, 1961, the Bank of Lyons obtained its judgment of $62,038.41 against Alvin. Execution was issued on August 1, 1961, and was served upon Alvin on August 10, 1961. In order to enforce collection of the judgment, the Bank filed a creditor’s bill in the circuit court of Cook County against Alvin and Mary Schultz on April 13, 1962.

That complaint set forth the entry of judgment and the service of execution upon Alvin. It alleged that Chicago City Bank held title to real estate in which Alvin had an interest, and that Mary had property which was owned by Alvin. The bill prayed that Alvin be decreed to pay the amount due, and to apply thereto any money or property, real or personal, in law or in equity, debts, choses in action, or equitable interest belonging to him or held in trust for him, or in which he is in any manner beneficially interested, and that he be enjoined from transferring any property in which he had an interest.

On May 10, 1962, Mary filed a petition in the divorce court alleging that $10,250 was due from Alvin for alimony and child support provided for in the divorce decree, and $2,639.17 for payments she had made on the existing mortgage. Judgment was entered on the same day for the amount claimed and interest thereon. On October 19, 1962, an order was entered in the divorce court modifying the decree of divorce and ordering Alvin to execute and deliver to Mary an assignment of his beneficial interest in the trust. This assignment, which was dated October 21, 1962, was not filed with the trustee of the land trust during the lifetime of Alvin, but was received by the trustee on May 23, 1963, three days after the death of Alvin. The assignment was not accepted by the trustee because it failed to comply with the provisions of the trust agreement. This agreement provided that an assignment in order to be effective must be delivered to the trustee prior to the death of the beneficiary making the assignment. Also, it might be pointed out at this time that even if the assignment had been delivered prior to Alvin’s death, it would have been subject to the lien of the judgment creditor, the Bank of Lyons, as will hereinafter be pointed out in this opinion.

The foreclosure suit by Sterling Savings was filed on March 29, 1963. The suit was heard by a master in chancery who found that the mortgage was a valid lien and recommended entry of a decree of foreclosure. This recommendation was followed by the court and the decree was entered on October 15, 1964. It recited that if there was a surplus after the sale, said surplus should abide further order of the court. The sale was held in November, 1964, and after the amount of the mortgage and the expenses of the sale and other expenses were paid, there remained in the hands of the master $8,881.-48.

Mary filed a petition on January 8, 1965, which petition recited: that the master held the sum of $8,881.48; that she and Alvin had acquired the property in 1956, each with a 50% undivided interest; that Alvin had assigned to her in October of 1962 his beneficial interest and that by reason thereof she was the owner of the entire beneficial interest. Mary claimed a homestead exemption in the statutory amount of $2,500, and alleged that she had made advancements in the amount of $9,447 in the form of payments on a prior first mortgage debt, and for upkeep and maintenance, which advancements were made prior to the judgment of the Bank of Lyons and prior to execution thereon. Hence, Mary claimed an equitable lien in the total amount of $11,947 on the property to cover her advancements and her claim for homestead. She asked that the master be ordered to turn over to her the sum of $8,881.48 and that she be declared to have an equitable lien to the extent of $3,065.52 out of any subsequent sale or disposition of the property.

Mary relied upon a finding by the master, subsequently adopted by the court in its foreclosure decree, that she had made the foregoing advancements. However, the master found that Mary did not have a lien or any interest in the premises by reason of these payments. At most, he found such payments might create a right of reimbursement or contribution against the beneficial interest of Alvin. He concluded that this determination must be made in the creditor’s bill.

On January 26, 1965, the bank filed an answer to Mary’s petition and a petition of its own, which in substance alleged that it had obtained a judgment against Alvin and had filed a creditor’s bill, and therefore had succeeded to the beneficial interest in the land trust to the extent of the interest of Alvin as of the date of the filing of the creditor’s bill, April 13, 1962. Hence, all transactions which attempted to transfer the interests of Alvin subsequent to said date were fraudulent as to the Bank of Lyons.

The petition prayed that the master be directed to hold the surplus of the sale, or that it be held by the clerk of the circuit court, pending a determination of the creditor’s bill.

On February 5, 1965, the trial court found that Mary had an equitable lien on the premises in the amount of $9,447 plus a homestead in the statutory amount of $2,-500. It ordered the sum of $8,881.48 be turned over to her, and further ordered that she have an equitable lien on the premises already sold in the amount of $3,065.52. The Bank of Lyons appeals from this order.

As a preface to this opinion it must be mentioned that Mary has taken two diverse positions on appeal as to the effect of her equitable lien; on the one hand she argues that it attached to the premises, and later she argues that it attached to the half-interest of Alvin in the trust. For the purposes of this appeal, as will be shown, it makes no difference to the decision upon which theory she attempts to base her claim.

The decision of the trial court which found that Mary had an equitable lien upon the premises must be reversed. Mary contends that certain contributions made by her to pay off a prior mortgage, and for upkeep and maintenance on the premises, gave rise to an equitable lien in her favor. The Bank of Lyons disputes this alleged lien because of a rule stated in several Illinois cases that an equitable lien is created where there is an express executory agreement in writing indicating an intention to make some property security for a debt or other obligation. (Cf. Byron v. Byron, 391 Ill 256, 62 NE2d 790, where the court held that a mere verbal promise was not sufficient to sustain an equitable lien; also: Aldrich v. R. J. Ederer Co., 302 Ill 391, 134 NE 726; Walker v. Brown, 165 US 654; Sanner v. Sanner, 257 Ill App 305.) In the instant case, since the record discloses no agreement between Mary and Alvin indicating an intention to make the property at 1046 Lathrop Ave., River Forest, Illinois, security for a debt, the bank contends that there is therefore no lien.

Mary Schultz has cited the case of Oppenheimer v. Szulerecki, 297 Ill 81, 130 NE 325, in which certain language indicates that an express agreement is not necessary to sustain an equitable lien. In that case the court granted a lessee an equitable lien upon certain premises that he had rebuilt after they had been destroyed by fire. The lessor had refused to restore the building even though the lease specifically required her to do so. Though there was no agreement in the lease making the cost of restoration a lien upon the premises, the court granted a lien to the lessee “based . . . upon general considerations of justice.”

In the instant appeal, it is not necessary to the decision to decide whether or not an agreement is necessary to sustain an equitable lien. Even assuming that such a lien could be established without an agreement, the proof in this case fails to establish an equitable lien on behalf of Mary Schultz.

Before the master, Mary Schultz introduced substantial testimony and evidence to show that she had made advancements in the form of mortgage payments and payments for upkeep and maintenance of the subject premises. However, no evidence was introduced to show what payments were made by Alvin Schultz upon the mortgage and for upkeep. There is nothing to indicate that Alvin did not advance comparable amounts. Merely because Mary advanced $9,947 does not give her an equitable lien unless this amount advanced was over and above the amount advanced by Alvin.

At the time these advancements were made, Alvin and Mary were husband and wife and were the holders of the certificates of beneficial interest in the land trust as joint tenants. The premises held under this trust were occupied by them as a residence.

Under the provisions of the trust agreement each beneficiary was entitled to an interest in the earnings, avails, and proceeds of the property. Since each was entitled to an equal share of the proceeds, there is no just reason why each should not be required to advance equal sums to pay off a mortgage upon the property and provide for the upkeep thereof.

There was nothing in the trust agreement, nor was there any separate agreement between Alvin and Mary, whereby Alvin was required to pay off the mortgage and provide for the upkeep of the property by his sole efforts. Since both were entitled to the proceeds from the property both were obligated to pay expenses thereon equally.

In the Oppenheimer case, supra, cited by Mary Schultz in support of her equitable lien, the court commented at p 88 on cases in which one cotenant has made permanent improvements on the property which have added to its value: “Upon partition of the estate a court of equity will allot to the cotenant making the improvement the portion improved without taking account of its value, but if such division cannot be made will create a lien upon the proceeds of the other shares for their proportionate amounts of the increased value caused by the improvement. Louvalle v. Menard, 1 Gilm 39; Dean v. O’Meara, 47 Ill 120; Kurtz v. Hibner, 55 id. 514; Mahoney v. Mahoney, 65 id. 406; Noble v. Tipton, 219 id. 182.”

As the above language indicates, a lien is created in favor of one cotenant only when, and to the extent, the contributions of that tenant exceed the proportionate amount owed by such tenant. Similarly, Pomeroy in his treatise on Equity Jurisprudence, 5th ed, vol 4, § 1240, states: “Where two or more persons are joint purchasers or owners of real or other property, and one of them, acting in good faith and for the joint benefit, makes repairs or improvements upon the property which are permanent, and add a permanent value to the entire estate, equity may not only give him a claim for contribution against the other joint owners, with respect to their proportionate shares of the amount thus expended, but may also create a lien as security for such demand upon the undivided shares of the other proprietors.” (Emphasis added.) Therefore, a cotenant is not entitled to a lien for amounts advanced unless such amounts proportionately exceed those of the other cotenants. Mary Schultz is not entitled to a lien since there is nothing in the record of this case which indicates that the amounts which she advanced exceeded those of Alvin Schultz.

At the time that the foreclosure proceeding and evidence thereon was heard by the master, Alvin was no longer alive. He died in May of 1963, and the foreclosure proceedings before the master began in February of 1964. Therefore, there was no evidence presented on his behalf to show what contributions he had made to the premises. Since Mary has not shown that her advancements exceeded those of her former husband, and since both parties had an equal interest in the trust, we hold that Mary is not entitled to an equitable lien upon the premises or upon the half interest of Alvin in the trust.

Assuming that Mary had proven that the amounts which she had advanced exceeded those of her cotenant, she would still not be entitled to an equitable lien since the facts of the case reveal that Mary had waived any right which she may have had to assert said lien.

In her complaint for divorce, filed after the alleged contributions were made, Mary asked that she be awarded the entire realty held in joint tenancy by the parties at 1046 Lathrop Ave., River Forest, Illinois. She alleged that it had been acquired through the joint efforts of her and Alvin.

The property at the time of the divorce was held under a land trust, and Mary and Alvin owned the certificates of beneficial interest in said trust. Apparently this was not called to the attention of the trial judge, who entered the divorce decree which contained no reference to the land trust. This factor is immaterial to the decision of this appeal, since the court found the interest of Mary to be one-half.

In the decree of divorce entered by the court, it was adjudicated that Mary was entitled to one-half of the net proceeds of the sale of the property. The power of the divorce court to decide the interest of each party in the property is derived from section 18 of the Divorce Act (c 40, § 18, Ill Rev Stats 1959.) This section gives the court the authority to determine the property rights of the parties in a divorce action.

This decree, which determined that the interest of Mary in the property amounting to one-half, was approved by her personally. The adjudication by the court, and the subsequent approval by Mary, amounted to a final determination of Mary’s interest in the premises.

Since Mary asked for the entire premises, and the court decided that she had only a one-half interest, she cannot now claim any additional interest in the premises. She is now estopped from attempting to claim an equitable lien for contributions made by her prior to the divorce decree.

Though the decree provided that the property should be sold, and the proceeds divided evenly, this was not done. Instead, Mary and Alvin changed their interests under the trust from that of joint tenants to that of tenants in common, with each possessing a 50% interest. Subsequently, Mary came into the divorce court and asked that a judgment be entered in her favor against Alvin for alimony and child support payments which were in arrears, and for payments she had made on the existing mortgage all of which accrued after the divorce decree. The judgment was entered and the court then entered an order which recited that it modified the prior decree for divorce, and further ordered that Alvin should execute and deliver to Mary an assignment of his beneficial interest under the land trust. This assignment was made by Alvin, and the modified divorce decree was thereby complied with. As previously pointed out, this assignment was ineffective under the terms of the trust agreement because it was not delivered to the trustee until after Alvin’s death; also, Alvin’s interest was already subjected to the lien of the Bank of Lyons by the filing of a creditor’s bill by the bank, as will hereafter be pointed out. This modification in no way changed the prior decree of the court insofar as it determined that each party had a one-half interest in the property.

We hold that since the court in the divorce action adjudicated the extent of Mary’s interest and Mary approved the divorce decree, she waived her right to assert an equitable lien against her husband’s interest at a later date; she is now estopped from asserting such a lien against the judgment creditor of her husband, the Bank of Lyons.

Mary Schultz, as beneficiary of one-half of the land trust, is entitled to one-half of the surplus of the sale, being the amount of $4,440.74.

The Bank of Lyons claims the entire $8,881.48 based upon its judgment lien obtained against Alvin Schultz, and upon an equitable lien which attached upon the filing of its creditor’s bill.

As a preface to the determination of the rights of the bank, it is important to state the law relating to beneficial interests under an Illinois land trust. As the facts reveal, the only interest of Alvin at the time that the judgment of the bank was entered against him was an undivided one-half interest as a tenant in common under the land trust. Hence, the rights of the bank necessarily must be considered in the light of Alvin’s interest in the trust.

The trust res was real estate. However, the interest of Alvin as beneficiary of the land trust was personal property. (Chicago Title & Trust Co. v. Mercantile Trust & Savings Bank, 300 Ill App 329, 20 NE2d 992; Seno v. Franke, 20 Ill2d 70, 169 NE2d 335; Robinson v. Chicago Nat. Bank, 32 Ill App2d 55, 176 NE2d 659; Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 178 NE2d 888.) The beneficiary of a land trust has no interest, either legal or equitable, in the real estate held in the land trust. The provision of the trust agreement in the instant case, which determines the rights of the beneficiaries to the trust, provides that:

. . no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails, and proceeds . .

Further, said trust agreement provides that “such right in the avails of said property shall be deemed to be personal property . . .”

The Illinois statute with respect to the liens of judgments against real estate states: “. . . the judgment of a court of record shall be a lien on the real estate of the person against whom it is obtained . . (Ill Rev Stats 1963, c 77, § 1.) Section 3 of the same chapter recites that: “. . . ‘real estate,’ when used in this act shall include land, tenements, hereditaments, and all legal and equitable rights and interest therein and thereto . .

Since the only interest of a beneficiary under a land trust is considered to be personal property, a judgment cannot attach to such interest. The Hlinois Statute relating to judgments against real estate specifically states that a judgment is a lien on real estate. It makes no mention of personal property, nor of the interest of a beneficiary under a land trust.

The court in the Cacciatore case, supra, commented upon this point and stated at page 142 of the opinion: “In passing, we might say that the attachment of a lien to an abstract right considered in a void, as it were, would be fruitless. By definition a lien must be found to attach to property or rights to property.” In the case of Chicago Title & Trust Co. v. Mercantile Bank, supra, the court specifically held that since the interest of a trust beneficiary was personalty, a judgment did not create a lien upon the real estate held under a land trust.

Nevertheless, the Bank of Lyons contends on appeal that a judgment constitutes a lien against a beneficial interest in a land trust, and cites the case of Johnson v. Watson, 309 Ill App 440, 33 NE2d 130, to sustain its position. In that case the owner of property conveyed it to a bank under a trust agreement whereby one-half of the earnings, avails and proceeds was for the benefit of the grantor’s son during his life and the other half for the benefit of the grantor’s daughter. The bank was to deal with the property only when authorized to do so in writing by the beneficiaries. The bank had no duties to perform and the beneficiaries were to manage the property. Subsequently the bank re-conveyed the property to the original grantor on the beneficiaries’ request. The court held that the beneficiaries’ interest in the property was subject to liens of judgments acquired during the time the bank held the title and the reconveyance to the grantor by the bank did not affect such liens.

Both defendants, however, have misconstrued the facts of that case. Though the court held that a judgment constituted a lien against the beneficial interest under a land trust, it did so only under the facts of the case which reveal the filing of a complaint in the nature of a creditor’s bill.

Section 49 of the Chancery Act (Ill Rev Stats 1961, c 22, § 49) states:

“Whenever an execution shall have been issued against the property of a defendant, on a judgment at law or in equity, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a complaint against such defendant, and any other person, to compel the discovery of any property or thing in action, belonging to the defendant, and of any property, money, or thing in action due to him, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except when such trust has, in good faith been created by, or the fund so held in trust has proceeded from some person other than the defendant himself. The court shall have power to compel such discovery, and to prevent such transfer, payment or delivery, and to decree satisfaction of the sum remaining due on such judgments, out of any personal property, money or things in action, belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not; Provided, that no answer made to any complaint filed under this and the preceding section shall be read in evidence against the defendant on the trial of any indictment for fraud charged in the complaint.”

Therefore, in the present case the filing of a creditor’s bill resulted in a lien upon the beneficial interest owned by the judgment debtor. (Thomas v. Richards, 13 Ill2d 311, 148 NE2d 740.) Subsequent to the filing of the creditor’s bill by the Bank of Lyons, Alvin attempted to assign his interest under the trust to Mary pursuant to the order of the divorce court. This assignment was subject to the lien of Alvin’s creditor, the Bank of Lyons, since Alvin’s interest under the trust had already become impressed with a lien in favor of the bank.

Therefore, the Bank of Lyons became entitled to a lien upon the one-half interest of Alvin Schultz under the land trust, which now has been reduced to cash as a result of the foreclosure sale.

The last point that must be discussed relates to the determination by the trial court that Mary Schultz was entitled to an estate of homestead in the premises in the statutory amount of $2,500. This was error by the court, and this determination must be reversed.

The issue presented here is whether an estate of homestead exists by virtue of a beneficial interest in a land trust. As previously shown, the only interest which either Mary or Alvin had was a 50% undivided interest as tenants in common under the land trust in which title to the premises was held.

Two federal cases which concerned the question of homestead by virtue of a beneficial interest in a land trust do not aid us in the instant appeal. In the case of In re Sjostrom, 338 F2d 676 (7th Cir), the facts reveal that the person holding the beneficial interest under a land trust had expressly released and waived his homestead estate in his conveyance to the trustee bank. Similarly in Jones v. Bank of Lincolnwood, 329 F2d 360 (7th Cir), a husband and wife tried to claim a homestead estate in land held under a trust, contending that the trust deed was invalid. The court of appeals denied their claim since it found the trust deed to be valid and that the parties had waived their homestead interests in the property in the deed in trust. Both of these cases involved situations where the party claiming the homestead had previously waived the homestead in the deed placing the land into the trust.

In the instant case, the Schultzes did not convey the premises into the trust. They acquired their interest in the trust by an assignment from previous holders of the beneficial interest in the trust. Therefore, there was no specific waiver of homestead by the Schultzes. In the cases of Sjostrom and Jones, supra, the courts did not consider the question of whether the beneficiaries of a land trust are entitled to a homestead estate. The cases did not decide the question whether the parties there would have had a homestead if the homestead had not been expressly waived in the deed in trust.

The Schultzes did not personally waive the homestead since they did not convey the land into the trust. Therefore, it is necessary to determine the question of homestead solely on the facts of the instant case.

Mary contends that she has a homestead in the premises under chap 52, see 1, of the Ill Rev Stats (1963) which provides:

“Every householder having a family, shall be entitled to an estate of homestead, to the extent in value of $2,500, in the farm or lot of land and buildings thereon, owned or rightly possessed, by lease or otherwise, and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution, sale for the payment of his debts, or other purposes, and from the laws of conveyance, descent and devise, except as hereinafter provided.”

Admittedly Mary is a householder, does have a family, and was in possession of the residence. She cites several cases to sustain her right of homestead which hold that the holder of a possessory interest in land may invoke the aid of the statute, without regard to the extent of his title. (Cf. Feldes v. Duncan, 30 Ill App 469 (1888); Watson v. Saxer, 102 Ill 585 (1882).) However, Mary has no title, and as these cases indicate, some title, no matter what its extent, is necessary to sustain a homestead estate. Further, the facts of the Watson case, upon which Feldes relies, reveal that the premises there were occupied by the possessor under either a lease or as a purchaser, and in either event the possessor fell within the provisions of the Homestead Act. The court there specifically found that the person claiming the homestead had some type of title.

Later cases also indicate that something more than mere possession is required to entitle a party to a homestead estate. In DeMartini v. DeMartini, 385 Ill 128, 52 NE2d 138 (1944), the court stated at page 36: “The right of homestead being by our present statute enlarged into an estate, it follows that like all other estates, it can have no separate existence apart from the title on which it depends. We have held that the estate of homestead created by the statute is based upon the title of the householder, and can have no separate existence independently of the title, which constitutes one of its essential elements, and from which it is inseparable.” (Kitterlin for Use of Swanson v. Milwaukee Mechanic’s Mut. Ins. Co., 134 Ill 647, 25 NE 772; Browning v. Harris, 99 Ill 456; Tink v. Walker, 148 Ill 234, 35 NE 765; Roberson v. Tippie, 209 Ill 38, 70 NE 584.)

In Jones v. Kilfether, 12 Ill App2d 390, 139 NE2d 801, the plaintiff admitted that title to certain property was in his wife and her brother as tenants in common. He claimed a homestead right in the premises because of mere possession. The court denied his claim of homestead and stated at page 396: “. . . since, under the rule heretofore enunciated, the right of homestead can have no separate existence independently of the title which constitutes one of its essential elements and from which it is inseparable, he has no right of homestead . . .” It is apparent from a reading of these cases that some type of title is required to sustain a right of homestead. It is not necessary that a householder have a fee title upon which to predicate his homestead estate, but one must have some right in the property to which a homestead may attach. (Rice v. United Mercantile Agencies of Louisville, Ky., 395 Ill 512, 70 NE2d 618.)

In the instant case, Mary, as beneficiary under the land trust, merely had possession of the premises. She had no right in the property, nor did she have any title or interest therein. As the provisions of the trust agreement state: “. . . no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable. . . .” Therefore, Mary is not entitled to a homestead estate based upon naked possession, without any title or right in the real estate.

Further, the provisions of the trust agreement state that the only interest of a beneficiary is in the earnings and avails of the property, and such interest is considered to be personal property. By the very nature of the homestead estate, it cannot exist in personal property. The Homestead Act, section 1, specifically provides that a homestead attaches only to the “farm or lot of land and buildings thereon.” Nowhere in the statute is personal property mentioned. In order to set off a homestead to Mary, we would have to set it off in personal property, since this was the only interest which she possessed. This we cannot do. In the case of Gahan v. Golden, 330 Ill 624, 162 NE 164, the court considered the question of whether an estate of homestead may attach to personal property and concluded: “A widow may have a homestead in the real estate devised to her if the facts show that she is entitled to such an estate, but she is never entitled to a homestead in personal property.”

The decree of the trial court is reversed and the cause remanded with directions to enter a decree dividing the $8,881.48, being the excess from the sale, in the following manner: one-half to Mary Schultz, who by virtue of her certificate of beneficial interest in the land trust became entitled to receive the “proceeds from rentals and from mortgage, sale or other disposition of said premises . . .” to the extent of her interest in the trust as set forth in the trust agreement; one-half to the Bank of Lyons whose judgment became a lien on the one-half interest of Alvin Schultz by virtue of the creditor’s bill heretofore filed prior to the attempted assignment of Alvin’s one-half interest to his former wife.

Reversed and remanded with directions as above set forth and such other and further proceedings as are not inconsistent with the views expressed herein.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: STOUDER, J.

license: Public Domain

text:
    Evelyn Vignali, Plaintiff-Appellee, v. Farmers Equitable Insurance Company, a Corporation, and State Automobile Insurance Association, a Corporation, Defendants-Appellants.
    Gen. No. 65-30.
    Third District.
    May 20, 1966.

      Kevin D. Kelly and Hollerich & Hurley, of LaSalle, and Safford, West & Herring and Heyl, Royster, Voelker & Allen, of Peoria, for appellants.
    Peter F. Ferracuti, of Ottawa, for appellee.
   STOUDER, J.

This is an appeal from an order of the Circuit Court of LaSalle County denying Defendants’ motions to vacate and set aside an order directing a verdict for Plaintiff or in the alternative for a new trial.

The facts giving rise to the cause of action in the court below involved an automobile accident occurring on June 27, 1959, in which Appellee, Evelyn Vignali, was injured. The automobile in which she was riding was owned by her brother-in-law to whom a policy of insurance had been issued by Farmer’s Equitable, one of the Appellants. Appellee’s husband also had a policy in effect at that time issued by the other Appellant, Auto Underwriter’s Inc., attorney in fact for the Subscribers at State Automobile Insurance Association.

The automobile in which Appellee was a passenger was struck by an automobile owned by Jerry Penick and being driven by Robert Satterfield. Appellee notified her husband’s insurance agent, James Bernardini, of the accident shortly after its occurrence. Bernardini, who wrote insurance for both Appellants, prepared a report which he sent to each company. Shortly thereafter a claim was made by Appellee under the medical payments coverage of the Farmers Equitable policy. This claim was investigated by Farmers Equitable and paid.

In April of 1960, Appellee’s attorney learned that Penick did not carry public liability insurance. He immediately called Bemardini and advised him that Appellee would make a claim under the uninsured motorist provisions of both policies and asked Bemardini to furnish forms for proof of loss. These forms were not forthcoming and Bemardini apparently did not notify either company until August 1, 1961, when a loss report was sent to Auto Underwriters.

On May 4, 1960, Appellee filed suit under the Dram Shop Act against certain tavern operators and in July, 1960, filed a negligence action against Satterfield and Penick. Neither company received copies of the complaint, summons and process in either action until October 18, 1961. Country Mutual Insurance Company initially undertook the defense of the action against Satterfield but withdrew after the Circuit Court of La Salle County in a Declaratory Judgment proceeding determined on July 21, 1961, that the Company was not obligated to defend Satterfield. Appellants were not notified by Appellee of the action for Declaratory Judgment, or the order until October, 1961.

The correspondence, discussions and negotiations which followed did not produce any settlement of the claims under the uninsured motorist provisions of the policies. In February, 1962, Appellants approved settlement of the dramshop action for $8,000. On May 1, 1962, Appellee was awarded a judgment in the amount of $23,000 against Satterfield. Thereafter Appellee filed this action against each of the Appellants alleging liability under the uninsured motorist provisions of each policy.

After the conclusion of all the evidence each party moved for a directed verdict and the court granted Appellee’s motion for directed verdict against both Appellants and rendered a judgment in favor of Appellee in the amount of $14,858.18 computed as follows: the total damages were assessed at $23,000, each Appellant was held liable for the $10,000 maximum coverage under each policy but allowed to share the net proceeds of the dramshop settlement of $5,141.82 arriving at a judgment against each in the amount of $7,429.09. The total amount of the dramshop settlement was $8,000, the court allowing and deducting $2,858.18 as attorney’s fees and expenses in arriving at the net recovery. Appellant, State Auto, appeals from the order directing a verdict against it. Appellant, Farmers Equitable, appeals from the order denying its motion to vacate the judgment or in the alternative for a new trial.

Appellant, State Auto, contends that the Trial Court erred in finding that the provisions of each of the policies with respect to other insurance were mutually repugnant. Appellant argues that such provisions are consistent and should be given effect according to their terms in which event the coverage afforded by its policy is excess only. If this contention is correct, the remainder of the opinion would not apply to this Appellant. We shall therefore, first consider this argument.

In order to determine the effect of the two policies, reference must be had to the provisions in question. Our Supreme Court in New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 34 Ill2d 424, 216 NE2d 665, has rejected the minority or Oregon rule of the broad application of the doctrine of mutual repugnancy and held that to the extent that such provisions could be consistently applied effect should be given thereto.

Each policy defines insured as meaning the named insured, spouse of such named insured and any other person riding in the automobile described in the policy.

The provisions dealing with other insurance are as follows: “With respect to bodily injury to an insured while occupying an automobile not owned by a named insured under this endorsement, the insurance hereunder shall apply only as excess insurance over any similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this endorsement exceeds the sum of the applicable limits of liability of all such other insurance.

“With respect to bodily injury to an insured ... through being struck by an uninsured automobile, if such insured is a named insured under other similar insurance available to him, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this endorsement for a greater proportion of the applicable limit of liability of this endorsement than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance.

“Subject to the foregoing paragraphs, if the insured has other similar insurance available to him against a loss covered by this endorsement, the company shall not be liable under this endorsement for a greater proportion of such loss than the applicable limit of liability hereunder bears to the total applicable limits of liability of all valid and collectible insurance against such loss.”

Thus it can be seen that in the first paragraph, excess coverage is intended and in the other paragraphs pro rata coverage is intended. Each paragraph refers to the insured under a different set of conditions: the first condition being where the insured is occupying an automobile not owned by a named insured; the second where the insured is a named insured under other similar insurance; and the third where the insured has other similar insurance available to him.

With respect to the policy issued by Appellant, State Auto, Appellee clearly was an insured occupying an automoTbile not owned by a named insured and came under the first paragraph of the coverage in question. This paragraph provides that under these circumstances coverage shall be excess insurance and shall apply only in the amount by which the applicable limit exceeds the sum of the applicable limits of liability of all other similar insurance. With respect to the policy issued by Appellant, Farmers Equitable, Appellee just as clearly comes under paragraph three which states that its coverage shall be pro rata if other similar insurance is available. However since the policy of State Auto affords excess coverage only if there is no other similar insurance available under the terms of the Farmers Equitable pro rata provision.

We do not regard these two paragraphs as repugnant. As was stated in Jensen v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE2d 141 “. . . the conflict, if any, resulting from an attempt to apply the provisions of each policy to a given factual situation, must be determined from the language used in the respective policies. . . . The principles involved in the interpretation and construction of insurance contracts are the same as those involved in construing other contracts. The “other insurance” clauses must be interpreted according to the sense and meaning of the terms which the parties have used.” In the instant case each policy gave different coverage to the insured under different circumstances and, under the existing facts, the circumstances were different as applied to each policy. It is therefore our opinion that the coverage under State Auto’s policy was excess. Since its applicable limit did not exceed the sum of the applicable limits of liability of all other similar insurance in view of the precedent in New Amsterdam Co. v. Certain Underwriters at Lloyds of London, supra, the lower court erred in holding this Appellant liable in any amount.

Appellant, Farmers Equitable, contends at great length that Appellee’s failure to give proper notice of loss, notice of claim and notice of suit operated to relieve Appellant from liability. Requirements of notice are not mere technicalities but are intended to serve the practical purpose of enabling the insurer to make the necessary investigation to defend a claim against it. Marino v. Firemen’s Ins. Co. of Newark, N. J., 345 Ill App 540, 104 NE2d 317. However, in the instant case we are of the opinion that the facts clearly show that Appellant was actually notified of the accident, that an investigation was conducted by Appellant and a claim paid under one portion of its policy, that Appellant, through its agent was notified of the claim under the uninsured motorist endorsement and that Appellant’s conduct throughout, constituted a waiver of the requirement of more formal notice. On October 16, 1961, the following appeared in a letter from Farmers Equitable to Appellee’s attorney marked Plaintiff’s Exhibit 13:

“In response to yours of October 3, 1961, relative to the applicability of the uninsured motorist endorsement as to Evelyn Vignali, we wish to advise that it does apply but is not primary as Mr. Rumpf seems to imply.

“We were somewhat surprised that Country Mutual was able to get a favorable verdict on their Declaratory suit as we were anticipating a subrogation recovery through the office of Attorney White and Simon.

“In any event, I do know that you still have a possibility of a collection in the pending dram shop action and, while the other suit against Jerry Penick and Robert Satterfield is still pending, they apparently are judgment proof. We would, however, like to be informed as to the approximate date of the trial of the dramshop case.

“In the interim, if you could send us a complete record of the medical expenses incurred by Evelyn Vignali together with supporting medical reports, we will be in a position to consider this claim under the endorsement after the dramshop matter has been disposed of.

“I would like to call your attention to the fact that according to the provisions of this endorsement we should have had notice of the suits filed by you shortly after same were instituted.”

This exhibit is a clear admission of Appellant’s liability, a clear indication that Appellant was at all times aware of the accident, the possibility of a claim against it and the pendency of the various law suits, a willingness to allow Appellee to proceed with the dramshop action and a reminder that notice of the suits should have been given. Under this state of facts we must conclude that Appellant waived any requirement of formal notice.

We cannot take seriously Appellant’s contention that Appellee does not qualify under the endorsement because the driver of the car was insured at the time of the accident and somehow became uninsured thereafter. Appellant states that the reason for the court’s decision in rendering the Declaratory Judgment is not clear and assumes that this constituted an avoidance of coverage at some time after the accident. Since the record does not contain the Declaratory Judgment, we cannot speculate as to the reasons for the decision and must accept Satterfield’s testimony that he was uninsured at the time of the accident.

Appellant complains that Appellee did not sustain her burden of proof in that the only evidence consisted of self-serving letters and the testimony of Plaintiff’s attorney. We agree that such evidence is to be subjected to critical analysis. Beninca v. Nardiello, 320 Ill 181, 150 NE 661. We are however, equally critical of the practice of ignoring that in the record which appears unfavorable to Appellant. The record in the instant case contains, among other evidence, testimony of Appellant’s agent, testimony of Appellant’s investigator, and letters from Appellant, all uncontradicted and tending to support Appellee’s claim. On the basis of the record we find ample evidence to support Plaintiff’s claim. We therefore find no error in the order of the Trial Court directing a verdict in favor of Appellee.

This brings us to Appellant’s final contention that the proceeds from the dramshop settlement should have been credited in full against its obligation and not reduced by the costs, including attorney’s fees as allowed by the court below. Appellant concedes that Remsen v. Midway Liquors, Inc., 30 Ill App2d 132, 174 NE2d 7, supports the ruling of the Trial Court. Remsen deals with a similar factual situation as well as a similar subrogation provision. The court approved the deduction of attorney’s fees and expenses and concluded that since such expenses would have been paid by the insurer if it had initiated the action the result should have been the same even if such recovery was secured by the insured. We find no merit in Appellant’s contention that Niekamp v. Allstate Ins. Co., 52 Ill App2d 364, 202 NE2d 126, expresses a contrary view which should be applied to this case. In Niekamp the court held that the insurer was not liable under an uninsured motorist provision and accordingly subrogation or rights incident thereto were not involved in the decision of the court.

Since we find error in the judgment of the Circuit Court of LaSalle County as to the Appellant, State Automobile Insurance Association, the judgment against said Appellant is reversed. The judgment against Appellant, Farmers Equitable Insurance Company, is modified and reduced to the sum of $4,858.18, said amount being the maximum limits of the policy of $10,000 less the net amount of the dramshop recovery of $5,141.82, and in such amount is affirmed.

Judgment reversed in part, modified in part and affirmed as modified.

CORYN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE MCCORMICK

text:
    Employers Mutual Casualty Company, Subrogee of Clark-Maple Chevrolet Company, Plaintiff-Appellant, v. Trimon Elevator Company and Richard Moore, Defendants-Appellees.
    Gen. Nos. 50,170, 50,254.
    First District, Fourth Division.
    May 20, 1966.

      Brody & Gore, of Chicago, for appellant.

      Michael J. Costello, of Chicago, for appellee, Trimon Elevator Company; no appearance made for appellee, Richard Moore.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

This is a consolidated appeal from two adverse judgments entered against Employers Mutual Casualty Company, subrogee of Clark-Maple Chevrolet Company, plaintiff, in an action brought to enforce payment on employer’s lien created by section 5(b) of the Workmen’s Compensation Act of Illinois (Ill Rev Stats 1955, c 48, § 138.5(b)). Separate judgments in favor of the two defendants were entered by the trial court on different days.

The defendant, Richard Moore, was injured on March 15, 1956, while in the employ of Clark-Maple. The plaintiff, Employers Mutual Casualty Company, as workmen’s compensation carrier of Clark-Maple, paid $1,150 to Moore by reason of the injury and expenses incurred by him. Thereafter, Moore brought a lawsuit against Trimon Elevator Company as a third party tort-feasor. On June 29, 1956, the plaintiff sent a registered letter to Trimon Elevator advising of plaintiff’s rights and claim to a lien pursuant to the provisions of the Workmen’s Compensation Act. On November 19, 1957, the plaintiff sent a letter to Trimon Elevator setting forth that plaintiff had expended the sum of $1,500, and making a demand for reimbursement. The record indicates that Trimon Elevator, through its agent, acknowledged receipt of the second letter. Plaintiff did not intervene in the lawsuit between Moore and Trimon Elevator but depended upon the Workmen’s Compensation Act and the plaintiff’s lien filed with Trimon Elevator to protect its rights. On February 8, 1963, the trial court, by agreement of the parties, entered a judgment order setting forth the following findings: that Trimon Elevator was guilty of negligence; that Moore had exercised due care and caution for his own safety; and that the employer, Clark-Maple Chevrolet, was guilty of negligence. The court ordered that Moore be awarded $4,000 and costs. Trimon Elevator then paid Moore $4,000, but neither Moore nor Trimon Elevator notified plaintiff of the settlement or judgment. On February 8, 1963, the court entered a satisfaction of judgment order.

On December 23, 1963, Clark-Maple Chevrolet, having entered no appearance in the case, petitioned the court for relief under section 72 of the Illinois Civil Practice Act. On January 17, 1964, the court found that Clark-Maple Chevrolet could not maintain an action under section 72 since the court had no jurisdiction of the petitioner, and the petitioner did not intervene, participate in any way or submit itself to the jurisdiction of the court. The court struck the petition of Clark-Maple Chevrolet and further ordered that the striking of the petition was without prejudice to Clark-Maple Chevrolet’s filing a separate action against Moore or Trimon Elevator or either. The court further stated in the order that it was not ruling or indicating any view on the validity of any asserted claim of Clark-Maple Chevrolet against either or both. The court further found that the previous findings as to Clark-Maple Chevrolet (that Clark-Maple Chevrolet was negligent) are not to be considered and were not made as any formal adjudication of the rights, if any, of Clark-Maple Chevrolet.

On February 25, 1964 — a year and 17 days after the day on which the consent judgment in the case of Moore against Trimon Elevator was entered — the plaintiff, Employers Mutual Casualty Company, as subrogee of Clark-Maple Chevrolet Company, brought a suit against Moore and Trimon Elevator in the Municipal Court of Chicago to enforce payment in satisfaction of plaintiff’s statutory lien on the judgment, award or settlement between Moore and Trimon Elevator. An amended complaint asking for the same relief was thereafter filed on July 3, 1964. Moore filed an answer; Trimon Elevator moved to dismiss, and set up the statute of limitations as a special defense. The trial court sustained Trimon Elevator’s motion and dismissed the amended complaint as to Trimon Elevator only. The court further ordered that the plaintiff take nothing by its amended complaint and that the defendant go hence without day. Subsequently, Moore withdrew his answer and moved to dismiss, setting up the statute of limitations, which motion was sustained in the trial court. The plaintiff appeals from the judgment orders of dismissal both as to Trimon and Moore. Trimon Elevator has appeared in this court and has filed briefs; Moore has neither appeared nor filed briefs.

In this court plaintiff contends that Trimon and Moore made a settlement without paying any attention to plaintiff’s lien; that plaintiff had given proper notice of its lien interest and had made proper demands thereunder; that the purported settlement made between Moore and Trimon was in violation of plaintiff’s rights; and that plaintiff’s cause of action against Moore and Trimon arose at the time of the improper settlement. Trimon argues that the trial court was correct in dismissing plaintiff’s suit against Trimon and says that while it is acknowledged that plaintiff had a lien, plaintiff’s action thereon should have been commenced within two years from the date of Moore’s injury, and that this action is therefore barred by the statute of limitations.

Section 5(b) of the Workmen’s Compensation Act of Illinois (Ill Rev Stats 1963, c 48, § 138.5(b)) provides inter alia that if the employee brings an action against the third party tort-feasor, and if judgment is obtained or settlement made, whether with or without suit, “. . . then from the amount received by such employee . . . there shall be paid to the employer the amount of cornpensation paid or to be paid by him to such employee. . . .” The act continues:

“If the injured employee . . . shall agree to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the said employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
“In such actions brought by the employee . . . , he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in such action. The employer may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee . . . , except in the case of the employers, such consent shall not be required where said employer has been fully indemnified or protected by Court order.
“In the event the said employee . . . shall fail to institute a proceeding against such third person at any time prior to 3 months before said action would be barred at law said employer may in his own name, or in the name of the employee, . . . commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee ... all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, . . . and costs, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.” (Emphasis supplied.)

It is necessary for us to interpret the Workmen’s Compensation Act with reference to liens. In an article in University of Illinois Law Forum, 1957, page 253, George T. Frampton, a professor of law at the University of Illinois, makes the following statement:

“Sir John Salmond described case-law as ‘gold in the mine’ and statute-law as ‘coin of the realm ready for use . . . brief, clear, easily accessible and knowable. . . .’ He had never read the Illinois Workmen’s Compensation Act.
“The lawyer who consults that act before first reading it from beginning to end will likely be caught in its Minotauran labyrinths and devoured. The more careful approach of reading it, however, is an alternative no less grim. True, it does offer some competition with other bedside reading. Like the Bible, it is an authoritative work of many minds that have made their contributions to it in different eras, and it is provocative in the variety of plausible interpretations suggested by some of its critical passages. An element of suspense exists, as in those mystery books where the significance of what one reads cannot be grasped until the very end, if then.”

In an interpretation of the statute the court must supply that which is missing from the statute in a manner consistent with the overall purpose of the act and consistent with other cases.

In the case before us Trimon cites as authority Dan-ville Producers Dairy for Use of Employers Hut. Liability Ins. Co. of Wisconsin v. Preferred Risk Hut. Ins. Co., 33 Ill App2d 359, 179 NE2d 439, in which case the employer’s insurance carrier sued the third party tortfeasor’s insurance carrier for the amount of compensation paid by the employer to the employee’s widow. The defendant insurance carrier had made a settlement with the widow without regard for the employer’s lien, without the consent of the lien holder, and in spite of the fact that defendant had been notified of the employer’s lien. The court held that the plaintiff insurance carrier was barred by the 2-year statute of limitations from pursuing an action against the third party tort-feasor’s insurance carrier and that the proper course would have been to sue the defendant within two years from the date of the employee’s injury or to intervene in the suit brought by the employee against the third party tortfeasor. In that case the court relied on Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill 322, 138 NE 658, which case interpreted section 29 of the old Compensation Act prior to the 1935 amendment as requiring that the employer’s subrogated action be brought within the period of limitations governing the employee’s third party action. However, the rule with reference to the period of limitations applied to an employer’s subrogated action; in other words, the employer stepped into the shoes of the employee and was governed by the same statute of limitations. In the Danville case the court said:

“And we do not reach the issue of whether within the appropriate period of limitations an employer may enforce his statutory lien as a separate cause of action against a third party or his insurance carrier.”

If the Danville case means that a lien properly in existence under section 138.5(b) of the Illinois Compensation Act cannot be enforced against the employer after the running of the statute of limitations governing a suit brought in connection with the accident and commencing on the date of the accident, we cannot agree. That court held the governing period of limitations to be two years where the employer’s compensation carrier was attempting to enforce its lien rights against the employee’s widow and the third party tort-feasor’s principal. The court apparently misapprehended the impact of the wrongful death statute of limitations, which was one year (Ill Rev Stats 1959, c 70, § 2) and which applied where the employer was bringing the original action in his employee’s name. Lincoln Park Coal & Brick Co. v. Wabash Ry. Co., 254 Ill App 323, reversed on other grounds, 338 Ill 82, 170 NE 8; Goebel v. Mize, 14 Ill App2d 69, 143 NE2d 73. (The plaintiff in Danville brought his action to enforce his lien rights three years after the accident, and exactly two years and one day after the settlement between the widow and the third party tort-feasor.) We cannot agree that the statute of limitations governing the original action is controlling in the instant case, and in so holding we do not feel that we are doing any more than giving a reasonable interpretation to the Act. As first enacted in 1913, the Workmen’s Compensation Act made the question as to whether or not the third party tort-feasor was bound by the Act a meaningful distinction. Prior to 1952 the law was that where the third party tort-feasor was bound by the Act the employee was deprived of his common-law tort action against the third party tort-feasor who was bound by the Act either by compulsion or election. In such a case the cause of action was transferred to the employer. In 1952, in Grasse v. Dealer’s Transp. Co., 412 Ill 179, 106 NE2d 124, the court held that provision of the Workmen’s Compensation Act to be invalid since it denied employees compulsorily bound by the Act the equal protection of the law guaranteed by the Illinois and Federal Constitutions. The court further held that the result of its determination was to restore to the employee the same rights he had against a negligent third party prior to the enactment of paragraph 1 of the Workmen’s Compensation Act. The legislature deleted paragraph 1; under the 1953 Act it became immaterial whether or not the third party was under the Act in an action by an employee against a third party tort-feasor.

As we pointed out in discussing the Schlitz case, the question was as to the right of an employer, in lieu of the employee, to bring a suit and in that case the court stated that the Act’s earlier provision that the employer was subrogated to the employee’s rights was an unfortunate use of the word “subrogated” and that what it really meant was “transferred”; therefore, since the employer stood in the shoes of the employee he would not have a longer limitation than the employee would have had.

However, in the instant case, plaintiff is not standing in the shoes of the employee in bringing this action against the third party tort-feasor, but rather, is bringing the action in its own name in order to enforce its right against both the employee and the third party tort-feasor who have failed to give proper regard to the employer’s lien rights.

The Workmen’s Compensation Act provides in relevant part: first, if any compensation is received by the employee from his employer the employer may have a lien on any award, judgment or fund out of which the employee might be compensated from such third party; second, if such an action is brought by the employee against a third party he must notify his employer. It is further provided that the employer “may, at any time thereafter join in said action upon his motion so that all orders of court after hearing and judgment shall be made for his protection.” It is also provided that “no release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee,” unless the employer has been fully indemnified or protected by court order.

In the instant case the plaintiff is seeking, by virtue of his lien rights, to recover the money paid by him to the employee. There are various types and classes of liens, such as a common-law lien which ordinarily is considered to be a legal claim or charge on property, either real or personal, as security for the payment of some debt or obligation; an equitable lien, which is a right recognized in equity, though not at law, to have property applied to the payment of a particular debt; and a statutory lien, which may be provided for by the legislature subject to constitutional limitations. In 53 CJS Liens § 5, it is said that a statutory lien arises and exists only where there has been at least a substantial compliance with all the statutory requisites essential to its creation and existence, but where there has been such a compliance the lien arises by operation of law. In section 21 of CJS Liens it is said that where a statute creating a lien provides no method for its enforcement, it may be enforced by an ordinary action at law for the collection of the debt. [Citing Fristoe v. Crowley, 142 La 393, 76 So 812, error dismissed 251 US 179, 40 S Ct 116, 64 L Ed 2131.] The Act does not provide an exclusive method for enforcing the lien.

The lien of an employer who has paid compensation to an employee comes into effect at the time the employer gives notice to the third party tort-feasor. It is also provided in the statute that an employer “may” join in the employee’s action. In order to protect the employer the statute provides that a satisfaction of judgment shall not be valid without the consent of the employer. In the instant case no notice was given by the employee or the third party tort-feasor to the employer, nor was there any satisfaction of judgment properly entered. Here the employer knew nothing about the judgment or the payment thereof by the third party tortfeasor. There are very few cases on this particular subject. There is something analogous to a lien of this character in an attorney’s lien; however, in the statute which provides for attorney’s liens there is a provision that after the party against whom a client has a suit has been properly notified, the lien attaches to a judgment or to any money or property which may be recovered on account of such suit; and that on petition any court of competent jurisdiction shall adjudicate the rights of the parties and enforce the lien.

In Baker v. Baker, 258 Ill 418, 101 NE 587, a petition was filed in the Circuit Court by an attorney representing the plaintiffs to adjudicate the rights of the parties and to enforce his lien under the Attorney’s Lien Act. The court said:

“. . . While the act is entitled as one creating an attorney’s lien and for enforcement of the same, and while it in terms gives the attorney a lien for his fees, the lien created partakes but little of the elements and nature of the ordinary lien. It attaches to any verdict, judgment, decree, or the proceeds of any settlement. In other words, it is a lien upon the proceeds, only, of the litigation or settlement of the claim. Should the defendant or debtor ignore the notice claiming a lien and settle in full directly with his adversary, there is no specific property left in his hands which could be applied to the payment of the attorney’s fees upon foreclosure or other proceedings to enforce the lien. The only recourse that an attorney has under those circumstances is to bring suit, recover a judgment and collect it in the ordinary way. ... In short, when the notice claiming a lien is served on the defendant or debtor under this statute it has the effect of an assignment of an interest in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and is such an assignment that the defendant or debtor is bound to respect. This creates a new and a substantial right in favor of the attorney and divests the client of substantial rights that he theretofore possessed.”

The Workmen’s Compensation Act provides that if the employer has been given notice of a suit being brought by his employee against the third party tort-feasor, the employer may join in the action; however, this does not provide an exclusive remedy. To hold this as an exclusive remedy on the part of the employer would to a great extent cut down to the very minimum the protection which the act intended to give him.

In the instant case the statement of claim filed by plaintiff against Trimon Elevator and Richard Moore was dismissed by the trial court solely on the ground that the statute of limitations had run against the plaintiff. In this court the defendant, Trimon Elevator, argues that “It is hornbook law that the Statute of Limitations begins to run when the right of action accrues.” We hold that plaintiff’s cause of action under the lien against the defendant did not accrue until February 1963, when an agreed judgment order in favor of Moore was entered against the defendant.

When the plaintiff notified the defendants, Trimon Elevator and Richard Moore, on June 29, 1956, that plaintiff claimed a lien under the Workmen’s Compensation Act, the plaintiff established its lien. There would seem to be no reason in logic or in law why the plaintiff could not enforce that lien in a separate action as it attempted to do. Arnold Lies Co. v. Legler, 26 Ill App2d 365, 167 NE2d 813. The judgment of Moore against Trimon was not satisfied under the Workmen’s Compensation Act because there was on record no written consent of the employer approving that judgment satisfaction.

The judgment orders of the trial court dismissing the instant suit brought by the plaintiff against Trimon and against Moore are reversed and the cause is remanded with directions that the trial court shall order that answers be filed by both Trimon Elevator and Richard Moore and that the cause shall then proceed in accordance with the views expressed in this opinion.

Reversed and remanded.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank T. Carpenter, Defendant-Appellant.
    Gen. No. 51,055.
    First District, Fourth Division.
    May 20, 1966.

      Jack M. Levin, of Chicago, for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. James Gildea, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, Frank T. Carpenter, was found guilty of robbery after a bench trial and was sentenced to the penitentiary for a term of not less than two nor more than five years. Defendant appealed directly to the Supreme Court and urged (1) that the element of force or intimidation was not proven beyond a reasonable doubt; (2) that the testimony of the identifying witnesses was in conflict and therefore the defendant was not identified beyond a reasonable doubt; and (3) that he was placed in a lineup from which he was identified without being represented by counsel prior thereto, and therefore he was deprived of due process. The Supreme Court transferred this case to the Appellate Court and stated that:

The defendant contends that the evidence was insufficient to establish his guilt, which clearly presents no constitutional issue. It is also charged that the defendant was not advised of his right to counsel before he was placed in the police lineup where he was identified. It is not contended that the defendant requested counsel prior to the lineup. Evidence as to the identification at the lineup was not objected to in the trial court. We are of the opinion that there is no substantial constitutional question involved and the motion of the defendant in error is allowed and the cause is transferred to the Appellate Court for the First District.

Therefore, only the first two grounds urged by the defendant are before this court.

Rosalie Walker testified and stated that on November 13, 1962, at approximately 1:25 p. m. she was employed by Leader Cleaners in their store located at 5101 South Michigan Avenue in Chicago, Rlinois; that she was working in the back of the store but could see the counter; and that:

I was working with Jessie Banner, a counter clerk. ... A man walked into the store on November 13, 1962, [at about 1:25 p. m.] and I see the man is in Court [indicating the defendant, Frank T. Carpenter] . He walked in the door and the girl [referring to Jessie Hanner] was waiting on a customer. ... As soon as she finished with the customer, then she asked him, “May I help you ?” . . . The defendant’s left side of his face was opposite the left side of the girl’s face and after he leaned over to whisper to my co-worker she kept walking to the back. He started — we seen her walking to the back, passed by me. Then he come down the counter a little piece, he says to me, “O.K., lady, this is it.” I said, “What?”. . . I just walked. Jessie was in the back. He said, “Come on from back there.” . . . She started walking behind me. I walked to the cash register. ... He said, “Put the money in a paper bag.” I said, “I don’t have no bag.” He said, “Bring it to me as it is.” ... He put it [the money] in his pocket. ... He had on a black three quarter long corduroy jacket and a brown hat. He had a mustache. I didn’t see a scar on his face. . . . He was standing to my left side. ... On November 28, 1962, I attended a lineup at the police station . . . where four or five colored men were in this lineup. I didn’t pay any attention to their heights. I saw the man in that lineup that held us up. They were just standing when I walked in. The man was in line when I got there and was third from the left. . . . When I was standing at the lineup and picked out the defendant, I was able to see a scar on his face. When I walked in, I looked at his face and I knew his face .... He was wearing a mustache. He had on a gray hat.

On cross-examination the witness stated that:

He [defendant] said, “The money isn’t yours,” and I said, “No, sir, it isn’t.” He never told me to take it out of the cash register, but he said it wasn’t mine. He then said, “Put it in a paper bag.” I didn’t see a gun and I didn’t see a knife. He had his hand in his pocket. ... I looked at his face. I was looking on the side. I didn’t see any scar on his face. He was not facing us. He was on the side .... He reached over with his left hand. . . .

On redirect examination she testified that:

I gave him the money because I knew it was a stickup. He said that was it. He said, “Lady, come on up here, this is it,” and I walked up. He said, “Do as I say and nobody will get hurt.” He told me to put the money in a paper bag. When I gave him the money, his right hand was in his right pocket in his trouser pocket. I cannot describe exactly how his hand looked in his pocket. I can’t describe it because I was afraid.

Jessie Banner testified and corroborated the testimony of Rosalie Walker with regard to the aforesaid events in the store but stated that defendant’s hand was in his coat pocket. She further testified that after she asked the defendant if she could be of assistance to him that:

He leaned over and whispered, “This is a stickup.” He leaned the left side of his face toward me and my right side was closest his.

On cross-examination the witness testified that at one time during the alleged robbery the defendant was directly facing both of them from across the counter and that she did not see a scar on his face. She further stated that:

I saw him [defendant] one week before, going west, right in front of the cleaners. It was in the afternoon. ... I think he had on a black jacket, I am not sure, but I do remember his face. I think it was the same black corduroy jacket. He had a hat on .... It took about three minutes to walk past the store. He was walking kind of slow, I guess.

There was a conflict in the testimony of Rosalie Walker and Jessie Hanner as to the description of the customer who was in the store immediately prior to the alleged robbery.

Detective Lucio Bitoy testified that he was present at the aforesaid lineup and that the defendant was identified by Rosalie Walker.

Roger Carpenter, a brother of the defendant, testified that on November 13,1962, he saw the defendant at home “specifically between the hours of eleven in the morning until four in the afternoon.” However, on cross-examination the witness stated that he [Roger] was not at home between 11:00 a. m. and 12:15 p. m.

Defendant’s mother testified and stated that she saw him at home on the day in question “specifically between the hours of 11:00 in the morning until about 4:00 in the afternoon.” On cross-examination she stated that the defendant was not in her sight during that entire period of time but that he could not have left the house without passing her.

Defendant testified in his own behalf and stated that he was at home “between the hours of 11:00 a. m. and 4:00 p. m.” on the day in question and that while he was in the lineup he did not hear Rosalie Walker identify him; that after the lineup Detective Bitoy came to him and said “I got three fingers on you and you are going to the penitentiary”; and that he told the detective that he had not committed any crime.

Defendant testified on redirect examination as to a scar on his face and stated that:

I have had the scar on my face for about ten years. The scar is at least a minimum of two and one-half inches. It probably might be as long as three inches on the right side of my face along the right cheek bone, about at least an inch below the right eye and an inch below the hair line, on the right side by the ear lobe.

Defendant first argues that the element of force or intimidation was not established since there is nothing in the record to show that the person from whom the money was allegedly taken was intimidated or put in fear. A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. Illinois Rev Stats, 1961, c 38, §18-1 (a). That requirement is satisified if the fear of the alleged victim was of such a nature as in reason and common experience is likely to induce a person to part with property against his will and put him “under the temporary suspension of the power of exercising his will through the influence of the terror impressed.” Steward v. People, 224 Ill 434, 443, 79 NE 636. Moreover, the property that is taken need not have been owned by the victim, but it is sufficient that the property was in his care or custody. People v. Kubish, 357 Ill 531, 192 NE 543. In the instant case Rosalie Walker testified that the defendant said to her: “This is it”; that he said: “Do as I say and nobody will get hurt”; that he told her to put the money in a bag; that the defendant’s hand was in his pocket; that she gave him the money because she was afraid and she knew it was a stickup.

We find that the evidence establishes beyond a reasonable doubt the requisite element of force or threat of imminent force.

Defendant next argues that the identification of the defendant was not proven beyond a reasonable doubt because of minor discrepancies in the testimony of Rosalie Walker and Jessie Hanner with regard to matters wholly unrelated to the identification of the defendant and because both witnesses testified that during the alleged robbery they did not notice an obvious scar on the face of the robber. The witness Walker testified that the defendant was standing to her left, which would expose only the left side of his face, and this is consistent with her additional testimony that he reached for the money with his left hand. Jessie Hanner testified that the defendant was facing her directly. According to defendant’s own testimony, however, the scar was on the right side of his face which was not exposed to the witnesses. The trial judge, as the trier of fact, commented with regard to the scar and stated that:

Well, on the question of the scar, the Court can’t see a scar looking at Mr. Carpenter straight on. There was some testimony about a scar and I attempted to see it from the bench and it wasn’t until he got on the witness stand and turned his right side to me that I could see this scar. Once you see a scar is there why then it is very evident. But the scar is not particularly a discoloration and it is hard to see. For instance, I can’t see — I know there is a scar there now, but I can’t see it even on Mr. Carpenter ten or twelve feet away from me. And it isn’t until you get a side view that you see this scar.

Moreover, there was testimony from which the trier of fact could conclude that the defendant was positively identified from a lineup by Rosalie Walker and in addition the defendant was positively identified in court by both witnesses. In People v. Miller, 30 Ill2d 110, 195 NE2d 694, where two witnesses failed to mention a scar which ran across the bridge of the defendant’s nose, the court stated at page 113:

We feel that the failure of Madison Clark to mention defendant’s scar and Edrice’s failure to notice it do not create a reasonable doubt of his guilt. Precise accuracy in describing facial characteristics is unnecessary where an identification is positive.

Slight discrepancies in the testimony of the witnesses do not render that testimony unworthy of belief. People v. Williams, 28 Ill2d 53, 190 NE2d 796. In a bench trial it is the function of the trial court to determine the credibility of the witnesses and the weight to be afforded their testimony. People v. Clark, 30 Ill 2d 216, 195 NE2d 631. We will not substitute our judgment for that of the trial judge.

We find that the defendant was convicted beyond a reasonable doubt of the crime of robbery. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH and McCORMICK, JJ., concur.


author: TRAPP, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Hemphill, Defendant-Appellant.
    Gen. No. 10,651.
    Fourth District.
    May 25, 1966.
    William Hemphill, pro se, of Menard, appellant.
    Charles J. Ryan, State’s Attorney of Morgan County, of Jacksonville, for appellee.
   TRAPP, P. J.

Under an indictment returned on December 23, 1964, defendant, upon his plea of guilty, was convicted of the crime of murder and sentenced to the penitentiary for not less than 20 nor more than 40 years.

Defendant contends that certain defects in the indictment require an arrest of the judgment, and that he be discharged.

The first issue raised is that the indictment failed to state the time and place of the alleged offense as required by Chap 38, § 111-3 (Ill Rev Stats). Defendant relies upon People v. Blanchett, 55 Ill App2d 141, 204 NE2d 173, decided by this court. The Supreme Court, in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, has determined the issue contrary to defendant’s contentions.

It is next contended that the indictment is fatally defective in that it fails to contain the formal language prescribed in art VI, § 33 of the Constitution of 1870:

“All process shall run: In the name of the People of the State of Illinois; and all prosecutions shall be carried on: In the name and by the authority of the People of the State of Illinois; and conclude: Against the peace and dignity of the same. . . .”

Such requirements are entirely absent from the Judicial Article adopted to become effective on January 1, 1964.

It is argued that there is neither an express nor an implied repeal of such § 33 in the amendment to the Constitution adopted in 1962, effective January 1, 1964, known as the Judicial Article, and that hence, the formal language whereby indictments were required to begin “In the name and by the authority of the People of the State of Illinois,” and to conclude, “Against the peace and dignity of the same” remains in effect. Our Supreme Court has, heretofore, determined that such formal language was mandatory in an indictment. The indictment in issue does not include such formal language. There is thus the contention that the indictment is fatally defective and that the defendant must be discharged under the authority of the decisions of the Supreme Court.

The present Judicial Article was voted upon by the people pursuant to House Joint Resolution No. 39, Laws, 1961, in part, as follows:

“Be It Resolved by the House of Representatives of the Seventy-second General Assembly of the State of Illinois, the Senate concurring herein, that there shall be submitted to the electors of this State for adoption or rejection .... in the manner provided by law, a proposition to amend Article VI of the Constitution, to read as follows: . . . .”

We have examined the several joint resolutions of the Senate and House of Representatives relating to the amendment of Article VI of the Constitution of 1870, considered by those bodies in their sessions in 1953, 1955, 1957 and 1959, as well as the resolution quoted.

Each of the resolutions was in the language:

“. . . . in the manner provided by law, a proposition to amend Article VI of the Constitution, to read as follows: . . . (Emphasis supplied.)

Each of the resolutions omitted reference to any provision for the form of process as was provided in § 33 of art VI, Constitution of 1870, although it may be presumed that the Legislature was aware that the Supreme Court had held such formal language mandatory in an indictment.

In the Explanatory Statement On The Proposed Judicial Article For The Courts of the State of Illinois, dated January 1953, and prepared by the Joint Committee on the Judicial Article of the Illinois State Bar Association and the Chicago Bar Association, it is said, at page 101 thereof:

“It will be noted that the proposed article omits § 33, form of process, of the present Judicial Article. It is agreed that questions as to the forms in which process should issue are more properly determined by rules of court than by constitutional provisions.”

We find that the report of the Judicial Article Revision Commission, dated April 14,1953, prepared pursuant to Senate Bill No. 397, made no reference to any constitutional article as to form of process as was set out in § 33, Constitution of 1870, either in the main body of the report or in the statements of the dissenting members.

It appears that as a matter of legislative history, the provision for formal language for forms of process was presented to the Legislature as a matter of procedural rather than substantive law and that the Legislature, commencing with Senate Joint Resolution No. 23, introduced April 21, 1953, and in each resolution of the Senate or the House of Representatives dealing with the proposed amendment in the several years noted, including House Joint Resolution No. 39, introduced March 28, 1961, which presented the Constitutional Amendment to the voters of the State and which was adopted by them, omitted any reference to § 33, art VI, Constitution of 1870, and omitted reference to prescribed forms of process as a matter of constitutional law. Again, each of the several resolutions in the Legislature employed the language for amendment of the Constitution:

“. . . . in the manner provided by law, a proposition to amend Article VI of the Constitution, to read as follows: . . . ,”

and the amendment was submitted to the voters by such language.

In such context we conclude that the amendment voted upon and adopted reflects a purpose and an intent to adopt a complete and entire constitutional amendment known as the Judicial Article, rather than to alter or modify by either adding to or taking away from art VI, Constitution of 1870. The amendment so adopted thus provides no constitutional requirement for forms of process or formal language in indictments.

By reason of the foregoing, we find no error in the form of indictment or the proceedings in the trial court, and the judgment is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Rhodes, Defendant-Appellant.
    Gen. No. 10,684.
    Fourth District.
    May 25, 1966.

      John Unger, of Danville, for appellant.
    John P. O’Rourke, State’s Attorney, of Danville, for appellee.
   SMITH, J.

The only point urged for reversal is the interdiction of the Eavesdropping Act. What happened was that while defendant was being interrogated in one part of the police station, an intercom system picked up and transmitted the conversation to the Chief’s office, where a person, who had been receiving telephone calls demanding money or else, identified defendant’s voice as his caller. When this proof of identification was offered at the trial, no objection was made, and the People point to this as barring our review. To avoid this hurdle, defendant argues that his counsel was incompetent in not objecting, thus, making the point reviewable. This is correct, if true.

In deciding whether such is true, we can if we want, consider the eavesdropping point, for the absence of an objection is pointed to as one of the indicia of incompetency. As it needs must be on this issue, the entire record is before us, and, hence, we can come to our own determination by reading it. We have done so, and we do not agree with defendant that he was incompetently defended. Defendant’s counsel was of his own choosing, and while this does not bar him from raising the point, it is persuasive. In our opinion, a reading of the record indicates competency of a high order.

In coming to this conclusion, we did consider the eavesdropping point. Of course, the question is not so much whether an objection should have been made— lawyers are always objecting — but whether the objection, if it had been made, would have been, as Judges say, “well taken.” The Eavesdropping Act, § 14-1 et seq., c 38, Ill Rev Stats 1963, renders inadmissible evidence obtained by use of an eavesdropping device, “without the consent of any party thereto,” and an eavesdropping device is defined as any device capable of being used to overhear an oral conversation. At the time of trial, the italicized phrase had been interpreted to mean that if one conversant gave his consent, the bar of the act was lifted or avoided or denied — take your choice — as to his antiphonal. People v. Dixon, 22 Ill2d 513, 177 NE2d 224. Accordingly, any objection at that time would have been overruled, this for the very simple reason that defendant’s antiphonal had necessarily consented to the eavesdrop. We must assume that his counsel was familiar with Dixon and considered an objection unworthy of his attention, and indeed, fruitless. Why, indeed, object when Dixon clearly held that if any party gave his consent the act would not apply. It was not for counsel to anticipate via an objection that the trial court was going to gainsay the Supreme Court and overrule Dixon. That prerogative, as we all know, rests with that court.

Recently our Supreme Court opted, and in People v. Kurth, et al., 34 Ill2d 387, 216 NE2d 154, Dixon was overruled, and the italicized phrase construed to mean that eavesdrop evidence could not be used against any party who had not given his consent. We are not going to equate competency with divination!

But we can’t stop there, even though it might look like we should, because Kurth was handed down while this opinion, so to speak, was in gestation, and as we understand the law, it is binding on us, certainly prospectively, and for all we know, retrospectively, but that problem is not before us, although it might seem so. While this statement might seem somewhat outlandish, application here of the Kurth ruling is really no different and no more smacking of retrospectivity, than according to Messrs. Kurth, et al. the benefit of the Kurth ruling— new trials, with no eavesdrop evidence this time. This, for the reason that the present matter has not been legally concluded — it is here on direct review, with possibly more stops before it reaches its legal end. A new ruling impinges on all cases pending on direct review, or for that matter just plain pending, excluding, of course, collateral attacks.

Accordingly, since this is no problem of retrospectivity, we can eschew the labyrinthine policy considerations which dictate whether or not a new ruling should be retroactively applied. See Linkletter v. Walker, 14 L Ed2d 601, and Tehan v. Shott, 15 L Ed2d 453. In support of our position, we quote from footnote 3 of Tehan, “Nor is there any question of the applicability of the Griffin rule to cases still pending on direct review at the time it was announced.” O’Conner v. Ohio, 15 L Ed2d 337 is cited, and a more startling illustration of the workings of this rule would be hard to imagine — the Griffin rule [prohibiting adverse comment on a defendant’s failure to testify] was announced while his petition for rehearing [on denial of certiorari] was pending in the U. S. Supreme Court, whereupon the court allowed the petition, vacated his conviction and remanded the same to Ohio for further proceedings, which was really being “plucked [as a firebrand] out of the burning.” See Bovey v. Grandsinger, 253 F2d 917.

Of course, nobody can seriously argue that we cannot consider Kurth because the point was not preserved for review, since we have just held that preserving such point, where the law was well settled, would have been futility in action. Kurth renders the eavesdrop evidence in this case excludable and we will exclude it, and then ask ourselves, can the conviction still stand? We think it can, because there was other proof of voice identification more than sufficient to bottom the verdict and judgment appealed from. The eavesdrop evidence was not of a character that is inherently inflammatory or prejudicial, hence we can safely characterize it as cumulative. The victim identified defendant’s voice at a “lineup,” and there was circumstantial evidence otherwise that he had made the “or else” calls to the victim. No good purpose would be served by remanding for a new trial, where the result reached is, in our opinion, correct. Accordingly, the judgment is affirmed.

Affirmed.

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