author: MR. PRESIDING JUSTICE MURPHY

text:
    Arnold Menconi, Plaintiff-Appellee, v. George W. Davison, et al., and Lake States Construction Co., Inc., an Illinois Corporation, Defendants-Appellants.
    Gen. No. 51,026.
    First District, First Division.
    January 16, 1967.

      O’Brien & Boyle, of Chicago, for appellants.
    Robert L. Huttner, Kernal Freeman and John V. Evans, of Chicago (Robert L. Huttner and Kernal Freeman, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendants appeal from a $28,376 summary judgment entered against them in favor of plaintiff in a “creditor’s bill” proceeding under the Chancery Act (Ill Rev Stats 1963, c 22, § 49).

The record consists of the complaint, defendants’ answer, affidavits, counteraffidavits, and exhibits. Defendants’ theory is that the judgment was entered on a “constructive fraud basis,” and that the summary judgment ought to be reversed and the case remanded for a trial on the issue of “actual fraud.”

In sum, plaintiff, a licensed real estate broker, was employed by the defendant, Lake States Construction Co., Inc., an Illinois corporation, to procure a purchaser for two 11-unit apartment buildings. In a letter dated July 23, 1963, the defendant corporation agreed to pay plaintiff a real estate commission of $27,500.

Under date of August 1, 1963, a “real estate sale contract” was executed, wherein the purchaser agreed to pay $232,900 for the two buildings. The contract included the provision: “The seller agrees to pay a broker’s commission to Menconi Realty Company ... as per agreement.” In their answer to the instant complaint, defendants allege plaintiff’s contract of employment “was never complied with as required . . . ,” and in an affidavit defendants allege the property was sold for substantially less to another purchaser.

On December 6, 1963, defendant, Lake States, adopted a plan of liquidation, and toward the end of December it transferred its remaining assets to its stockholders. On April 16, 1964, plaintiff filed suit against Lake States for his brokerage commission. Upon the advice of the attorney for the corporation, the suit was not defended, and on July 2, 1964, a default judgment was entered against the corporation for the sum of $27,000 and costs. On February 3, 1965, plaintiff filed the instant creditor’s complaint against the shareholders of Lake States to compel the discovery of any corporate property. Both constructive and actual fraud were alleged. The instant summary judgment was entered in favor of. the plaintiff on September 30,1965.

Initially, defendants assert that Lake States’ obligation to pay plaintiff depended upon (1) the consummation of the real estate contract, and (2) a conveyance of other property to plaintiff by a third person, all set forth in a letter of July 23,1963, and as the transaction aborted, plaintiff “could not have been a creditor prior to the accident of an erroneous ex parte judgment on July 2, 1964, six months after the transfer.”

Defendants contend that “a judgment absent any other lawful credentials is not conclusive of any indebtedness before the date of its entry.” (Sweet v. Dean, 43 Ill App 650, 654 (1892); Springer v. Bigford, 55 Ill App 198, 202 (1894); Crandall v. Carey-Lombard Lumber Co., 63 Ill App 320, 322 (1896).) Also, one who becomes a creditor subsequent to a transfer of assets may reach those assets only on proof of actual fraud. Supporting citations include Chicago Daily News v. Siegel, 212 Ill 617, 72 NE 810 (1904), where it is said (p 629):

“Where a conveyance is alleged to be made in fraud of the rights of creditors, the creditors injured are those whose claims exist at the time of the conveyance. Only creditors, having claims when the fraud is committed, can avoid such conveyances. ... It is not sufficient that other creditors are prejudiced by such a conveyance or release, but it must be shown that the creditors, attacking the fairness of the transaction, had existing claims.”

Defendants argue plaintiff “should be required to proceed in his creditor’s bill as one who became a creditor after the alleged conveyance,” and further, “these defendants must defend this creditor’s bill, and they aré precluded from offering evidence of the lack of merit in Menconi’s case against Lake States, but they have the right to require Menconi to assume the burden of proving actual fraud.”

As to this contention, plaintiff asserts he became a creditor on August 1, 1963, the day the sales contract was executed. He argues that a preexisting creditor is one who has a subsisting claim against a debtor at the time the fraudulent conveyance was made, although his claim may not have matured or reduced to judgment until after such conveyance. Cited in support is Weller v. Schulte, 137 Ill App 520 (1907), where it is said (pp 521-522):

“While no judgment was obtained by appellant against Stephen Schulte until some time after the conveyances were executed, yet the contract or agreement which bound Stephen Schulte to payment, and upon which his liability was afterwards established, was in existence at the time of the making of the deeds which rendered appellant a creditor under the statute and authorized him to attack the deeds upon the ground of fraud.
“The term ‘creditor’ has received a liberal construction. The character of the claim, if just and lawful, is not material. It need not be due when the fraudulent transfer is made. It may be absolute or contingent.”

We find no merit in defendants’ contention. This record affirmatively shows that plaintiff comes within the accepted pronouncements of a “pre-existing creditor,” who had a subsisting claim or obligation against the debtor at the time the alleged fraudulent conveyance was made, although his claim was not reduced to judgment until after such conveyance. Plaintiff’s claim, upon which liability was afterwards established by a default judgment, was in existence at the time of the liquidation of Lake States, and defendants are the transferees of all of its assets. (20 ILP, Fraudulent Conveyances, §§ 201-205.) Plaintiff’s claim was injured by the corporation’s liquidation.

Defendants next contend that plaintiff’s complaint in the original action against the corporation fails to state the existence of a “valid cause of action” or “legally enforceable demand” for the reason that it appears on the face of the complaint that no indebtedness would be due him until the occurrence of two conditions precedent; that the happening of the two conditions precedent to his recovery are not alleged and could not be confessed by the corporation’s failure to appear and answer. (Lasko v. Meier, 394 Ill 71, 67 NE2d 162 (1946); Wuellner v. Illinois Bell Tel. Co., 390 Ill 126, 60 NE2d 867 (1945); Carlton v. Smith, 285 Ill App 380, 2 NE2d 116 (1936).) We have examined these authorities and note they are all based upon direct appeals in the original actions, and for that reason we do not consider them in point in defendants’ collateral attack on the original default judgment.

This contention of defendants comes within the pronouncements made in Kirkham v. Harris, 285 Ill App 385, 2 NE2d 119 (1936). A prior adjudication between the same parties is conclusive upon them, not only as to matters actually determined but as to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defense. Defendants having neglected to interpose their defense against plaintiff’s original complaint, they cannot now be allowed to urge the same matters as grounds for affirmative relief. A party cannot litigate and try a cause by parts in different proceedings; he must bring his whole case before the court and have it disposed of in one proceeding. No fraud or irregularity on behalf of plaintiff in procuring his original judgment is charged by defendants. Judgments by default have the same validity and force as those rendered upon a trial of the issues.

Defendants, all directors and stockholders of the corporation, acting upon the advice of the attorney for their corporation, did not defend and permitted plaintiff’s original suit against the corporation to proceed to a default judgment on July 2, 1964, which was final and in full effect when plaintiff commenced his creditor’s bill proceeding on February 3,1965.

We conclude defendants’ affidavits did not disclose any defense to the instant suit and failed to raise a genuine issue as to any material fact. As there was no triable issue of fact, but a question of law only, the trial court was correct in entering summary judgment for plaintiff and, therefore, the instant judgment appealed from is affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter Seig Mason, Defendant-Appellant.
    Gen. No. 51,035.
    First District, First Division.
    January 16, 1967.

      John J. Cleary, of Chicago, and Walter Seig Mason, pro se, of Joliet, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee..
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Walter Seig Mason, and Edward Seig, his brother, were found guilty of murder. The jury fixed their punishment at 199 years in the penitentiary. The Illinois Supreme Court transferred to this court the separate appeal of Walter Seig Mason, in which he contends that it was prejudicial and reversible error to receive into evidence his oral and written confessions and a loaded gun found on his person at the time of arrest.

On November 12,1960, Louis Mascio and his wife operated a small food store at 7847 South Loomis Street. At about 8:30 in the evening Mrs. Mascio was alone in the store, and two men entered and demanded money. One of the men, defendant Mason, was holding a gun, and she gave them $12. After receiving the money, the defendant ordered Mrs. Mascio toward the back of the store, where her husband was sleeping in a bedroom. As Mrs. Mascio passed the bedroom, she called to her husband, “Get up, Lou,” and then ran out a rear door to a nearby tavern for assistance. As she returned, she heard a shot, and upon entering the store she found her husband on the bedroom floor, bleeding from a bullet wound, which resulted in his death on December 26,1960.

On the evening of January 6,1961, the defendants were arrested and, on being searched, each defendant was found to be in possession of a loaded gun. The .38 caliber revolver found on defendant Mason was later identified as the gun which fired the shot that resulted in the death of Mr. Mascio. At about 4:00 a. m. on January 7, 1961, both brothers made oral confessions to police officers. Later that day, both brothers signed written confessions.

The trial of the defendants commenced on March 22, 1961, and twelve veniremen were placed in the jury box and sworn for examination upon their voir dire. The trial was then recessed for lunch. When it resumed at 2:00 o’clock, the attorney for the State informed the court that he had learned that morning of oral statements made by defendants on January 7, 1961, in addition to written statements that had been allegedly given to defendants’ counsel upon their arraignment. Counsel for the defendants objected to notice at that time of the oral statements because of noncompliance with the statute (Ill Rev Stats 1959, c 38, § 729).

As to the oral confessions, the court announced that counsel for both defendants would have an opportunity “to talk to the defendants before we proceed,” and overruled defendants’ objections. Later, and after the jury had been sworn to try the issues, the State informed the court that Police Officer Mildice had talked to the defendants’ counsel regarding the oral confessions.

At the trial, Mrs. Mascio related the details of the robbery and identified defendant Mason as the man who held the pistol on her and followed her into the back of the store. Mrs. Mascio further testified that at a police station lineup on January 7, 1961, she had identified the two defendants, and later that day, in the police station and in her presence, she heard them say that they had seen her before in her store, that they had “asked her for the money in the drawer,” and defendant Mason said that he had had a gun. Also, at that time, she heard Mason say that he had told her to go to the back, and he went into the back, “and he said he had to shoot my husband.”

Police officers testified as to the arrest of the defendants on January 6, 1961, and finding the loaded guns on both defendants. A police firearms technician testified as to firing test bullets from the weapon found on defendant Mason and comparing them with the bullet taken from the person of Mr. Mascio. In his opinion, the test bullets and the Mascio bullet “were fired from one and the same weapon.”

Officer Joseph Mildice testified as to a conversation had with defendants at 4:30 a. m. on January 7, 1961, in the presence of Officers Bongiorno and Massett. Over the renewed objections of counsel for defendants, Officer Mildice related the details of the oral confession in which defendant Mason gave as his reason for shooting Mascio, “Well, he was lying in the bed and I told him to get moving and he didn’t move fast enough and I shot him.” Officer Bongiorno corroborated this testimony.

A court reporter and a police officer both testified in detail as to the preparation and execution of written statements by both defendants on January 7, 1961. Defendant Mason initialed the pages and signed the last page of the written statement made by him. In this statement, defendant explained the shooting, “He got up and grabbed the broom and started swinging at me. I shot him.”

Over the objection of defendants, the court received in evidence the weapons and cartridges found on both defendants at the time of arrest, the test bullets, and the bullet removed from the body of Mascio. The State then informed the court that on checking, it had been ascertained that the written confessions of both defendants had not been furnished to defendants’ counsel on arraignment, and “I will ask that they be introduced into evidence subject to counsel’s objection.” The trial court then informed counsel for defendants, “I want the record to show that if you do object to those statements that that objection will be sustained.” Defendants’ counsel replied, “I understand that and I explained it, but I think you ought to explain it to them right here. . . . No, I am not objecting.” Thereupon, the documents were received in evidence without objection. The State then rested. No evidence was offered on behalf of defendants, and the jury returned verdicts of guilty and fixed the punishment of both defendants at 199 years in the penitentiary.

Initially, in considering defendant Mason’s contentions, we find that it was not error to receive into evidence the loaded gun found on his person at the time of his arrest on January 6, 1961. It was proved to be the murder weapon. Also, the weapons found on both brothers at time of arrest come within the pronouncements made in People v. Jackson, 9 Ill2d 484, 492, 138 NE2d 528 (1956). Defendant’s contention that he was denied his constitutional right to competent court-appointed counsel is without substance. The record shows diligence and persistence on behalf of defendant’s counsel. Defendant’s waiver of his right to object to the admission of his written confession was made with his consent in open court and apparently was part of his trial strategy to avoid a death penalty. Defendant was adequately represented.

Defendant asserts that the confessions and list of witnesses furnished to the defendants at the time of arraignment did not pertain to the murder charge. He contends the failure of the State to furnish a list of witnesses to the oral confession until the voir dire examination of the jury was a violation of mandatory statutory requirements (ch 38, § 729). Cited is People v. O’Connell, 30 Ill2d 603, 198 NE2d 834 (1964), where the court held on similar facts that the State’s failure to comply with the notice provisions of the statute “was a clear violation of the mandatory provisions thereof which could not be cured by the trial court’s offer of a brief continuance” (p 609).

As to the written confession, to which defendant affirmatively waived objection, defendant states “he deliberately sought the introduction of the written confession with a reference to the aggressive conduct of the decedent (swing the broom) to overcome the far more prejudicial asserted reasons contained in the oral confession (failure to move fast enough). It is submitted that if the oral confession was not admitted into evidence, there would have been no reason for defense counsel to waive his valid objections to the written confession, hence without the oral confession, no confession whatsoever would have been admitted into evidence. Without the two confessions there would arise even a doubt as to the sufficiency of the evidence against the defendant. In any event, a confession has a very important effect upon the mind of the jury which would have been considered in determining the guilt of the defendant Mason in this case.”

As to the confessions of defendant, we note that defendant’s trial was in 1961 and, therefore, the “Escobedo” and the “Miranda” standards do nqfc apply here. People v. McGuire, 35 Ill2d 219, 223, 224, 220 NE2d 447 (1966).

It is undisputed that the State failed to comply with the mandatory provisions of the statute with respect to both confessions (Ill Rev Stats 1959, c 38, § 729). Although this case does not portray a close factual sitúation, we believe People v. O’Connell, 30 Ill2d 603, 198 NE 2d 834 (1964), demonstrates that the trial court’s denial of defendant’s repeated objections to the oral confession was error. Consequently, we agree with defendant’s assertion that there was no reason for him to waive his valid objection to his written confession if his oral confession was not admitted into evidence. Fundamental fairness supports this argument.

Although neither confession of defendant Mason should have been admitted into evidence at the instant trial, the testimony of Mrs. Mascio as to the happenings at their store on November 12, 1960, her positive identification of defendant, and the finding of the murder weapon on the person of defendant, conclusively established defendant’s guilt of wantonly shooting the decedent. Excluding the confessions, we find there was sufficient competent evidence to prove defendant guilty of murder beyond all reasonable doubt, and as the errors in this record could not reasonably have affected the result of the trial, defendant’s conviction of murder should be affirmed. People v. Ashley, 18 Ill2d 272, 282, 164 NE2d 70 (1960); People v. Pelkola, 19 Ill2d 156, 162, 166 NE2d 54 (1960); People v. Burks, 60 Ill App2d 451, 208 NE2d 650 (1965).

However, in this case the jury fixed the punishment and the State qualified the jury for the death penalty and vigorously sought a death verdict. Defendant was 43 years of age at the time of the trial. He had a right to have the jury fix his punishment unprejudiced by the incompetent confessions. (People v. Jackson, 9 Ill2d 484, 489, 138 NE2d 528 (1956).) Because this incompetent evidence may have been a determining factor in the punishment here fixed by the jury, we believe this is a proper case for the use of the statutory power given on appeal to reduce defendant’s punishment (Ill Rev Stats 1965, c 38, § 121-9 (b) (4)).

For the reasons given, defendant’s conviction of murder is affirmed and his sentence of 199 years is reduced to a term of 50 years in the Illinois State Penitentiary. As modified, the judgment of the Criminal Division of the Circuit Court is affirmed.

Judgment modified and affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    Bank of Broadway, an Illinois Banking Corporation, Plaintiff, v. General Aluminum Door & Entrance Company, a Corporation, John C. Long, Inc., a Corporation, and Board of Education of the City of Chicago, a Body Politic and Corporate, Defendants. Board of Education of the City of Chicago, a Body Politic and Corporate, Third Party Plaintiff, v. John C. Long, Inc., a Corporation, Counterplaintiff-Appellee, v. Board of Education of the City of Chicago, a Body Politic and Corporate, Counterdefendant-Appellant.
    Gen. No. 51,110.
    First District, First Division.
    January 16, 1967.
    Rehearing denied March 6, 1967.

      James W. Coffey, of Chicago (Joseph A. Murphy, Richard E. Girard and Michael J. Murray, of counsel), for appellant.
    Sydney G. Craig and W. B. Martin Gross, of Chicago (Martin, Craig, Chester & Sonnenschein, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This action was commenced by the Bank of Broadway, the original plaintiff, to establish a lien against the Board of Education of the City of Chicago, under a contract between the Board and John C. Long, Inc. for construction of a new school contiguous to an existing school building. The Board filed an answer, counterclaim and third party complaint naming as defendants Long, Long’s surety, and certain other subcontractors who had also filed notices of liens against the same funds. The Board claimed damages of $22,038.57 against Long for repairs to the old School’s boiler house resulting from damages to a sewer on the construction site and/or for a failure to properly shore the wall of the boiler house. Long filed a counterclaim against the Board seeking to recover $18,-683.78 over and above the contract price for additional shoring and $9,229.70 for extra work in connection with the installation of heating and ventilating ducts. The Board’s claim against Long and his counterclaim were heard by a Master who recommended that the Board not recover for repairs to the boiler house, and that Long recover for the duct work, but not for the shoring work. The trial court ruled against the Board’s claim and entered judgment for Long on both the duct and shoring counterclaims. The Board brings this appeal contesting that part of the judgment which allowed recovery to Long for the shoring and duct work.

With respect to the shoring claim, the Board contends that Long was required by the contract to protect the existing school from damage by providing all necessary shoring, and therefore was not entitled to be paid extra for such work. The Board also argues that Long failed to prove the performance of any extra duct work over and above the contract requirements, and further that allowance of this extra would be in violation of the contract and state statutes.

We will first consider the circumstances surrounding Long’s claim for additional shoring expense. The record shows that Long entered the successful low bid to construct a new school contiguous with and to replace an existing school, and the resulting written contract with the Board was agreed to on July 23, 1958. As contemplated by the contract classes were held for 550 children in the old school while the new school was being erected, and until it was fit for occupancy. The plans required a 15-foot excavation with the east wall of the new school 2% feet from and parallel to the old school’s boiler room. Prior to the opening of the school term Long dug the excavation, and to support or “shore” the old boiler room, left a sloping embankment or “berm” three to five feet from the west wall of the boiler room which sloped down to a depth of fifteen feet at a 30-degree angle. When school opened the toilets in the old building were turned on and water was found accumulating in the excavation and washing away part of the protective berm. It was then discovered that a private sanitary sewer of the old building was located at a depth of six feet, three feet west and parallel to the wall of the old boiler room, and was connected to a visible manhole sewer near the excavation site. The sewer had been pierced while drilling holes for the caissons as required by the Board’s plans, the sewer not being shown on the plans. Temporary repairs to stop the flow of water and prevent the washout of the berm proved unsuccessful and the Board rerouted the sewer. As a result of the washout Long erected wood shoring to support the berm, and later at the insistence of the Board he agreed to and did install steel sheet piling. Long incurred expenses of $18,683.78 for this additional shoring and steel piling which he claims is work not provided for in the contract or “extra” work.

The Board contends that Long performed no extra work, but was required by express provisions of the contract to examine the site and provide all necessary shoring to protect the school from damage. Long counters that the Board’s plans and specifications were defective; that the Board made positive misrepresentations as to the conditions he would encounter; and that the Board is chargeable with knowledge of the sewer and is liable for failure to disclose its existence and location. Long argues that the Board is liable for the extra work performed by him because the plans prepared by the Board’s architect failed to disclose that there was a private sewer where the caissons were to be drilled and for its refusal to shut off its toilets so as to prevent further washing out of the supporting berm.

It is established that the old school was constructed around 1886 and that some years later the Board constructed the private sewer, which the Board belatedly discovered it had a diagram for, but which located the sewer within the boiler room walls. It is also undisputed that Long had no knowledge of the existence of this • sewer and that it was not shown in the plans and specifications. The charges that at the time the contract was signed the plans were defective and that misrepresentations were made have to be considered in light of the provisions of the contract.

The contract specifically provided that the contractor shall visit and examine the site and all conditions thereon and take into consideration all conditions which may affect his work. The contract also recited that previous buildings had occupied this site and that the contractor was required to see that all water connections, drain and sewer lines were cut off and capped. In the contract he acknowledged that he had examined and familiarized himself with the existing conditions of the premises which would affect the execution of his work.

On cross-examination Long testified that he had only visited the site once for about a half-hour before he was awarded the contract. He said that knowing there had been buildings on that site he had looked principally for old foundations that had to come out, and then stated:

I looked at this boiler house and tried to see exactly where the building would be in regard to it. I also' looked at the north end and just looked at the condition of the sidewalks, various flag poles and so on that had to come out. That' is all that I can think of that I did.

We are of the opinion that Long failed to properly inspect the premises as required by his contract and that his failure to do so was the cause of his breaking into the Board’s private sewer. While the plans did not indicate the sewer or show it to be elsewhere, it does not appear that there were misrepresentations upon which Long relied. Careful inspection would note the presence of manhole covers very close to the excavation site and in light of the warning in the contract proper caution would indicate a little digging which would have disclosed the troublesome sewer line. Under such an inspection provision the contractor was under an obligation to guard against damage from such cause, especially so where the condition could have been ascertained by the exercise of ordinary prudence. See McKay Engineering & Construction Co. v. Chicago Sanitary Dist., 348 Ill App 89, 108 NE2d 39. We agree with the Master that Long was required under his contract to do “all necessary” or “required” sheet piling, shoring and bracing of the embankment. We also believe, as did the Master who saw and heard the witnesses, that the claim that this was extra work is groundless under these facts and circumstances.

The second part of this appeal concerns the order allowing Long recovery for extra duct work in the amount of $9,229.70. The Board’s theory is that Long failed to prove the performance of any extra work over and above his contractual requirements, and also contends that the Chancellor erred in allowing this claim because there was (1) no appropriation and no written authorization by the architect for this extra work, over and above the contract price, and (2) no approval of the extra work by the Board as required by section 34-19 of the School Code, and (3) no prior appropriation by the Board covering the extra, as required by section 34r-49 of the School Code.

During construction of the school Long told the architect that the excavation and the concrete fill for the duct work which he was ordered to do was not included in the contract. The architect informed Long by letter that “the excavation for and the concrete- fill around the duct work under the floor slab are part of the general work and shall be furnished by the General Contractor, John C. Long, Inc.” Long claimed the sum of $16,991.04 for the extra cost of labor and materials in the excavation of trenches for duct work which it performed under protest and which it claimed as extra work.

The Master concluded that, while the contract did not specifically refer to excavating for duct work, excavation work in general was intended and that the general contractor was required to do all machine and hand excavating shown on the plans. The trenches for the duct work admittedly were shown on the plans. The Master found that Long was ordered by the architect’s superintendent to dig the trenches for the duct work deeper and wider at some points than called for by the contract plans and drawings resulting in extra expense for labor and excess concrete, sand and membrane as shown by certain exhibits and recommended that Long be compensated in the amount of $9,221.70.

Under School Code section 84-19 (Ill Rev Stats 1965, c 122, § 34-19) it is provided that:

[M]oney shall be appropriated or expended . . . only at the regular meetings of the board and by a vote of a majority of the full membership of the board.

In addition, School Code section 34-49 (Ill Rev Stats 1965, c 122, § 34-49) provides:

No contract shall be made or expense or liability incurred by the board, . . . nor by any person for or in its behalf, notwithstanding the expenditure may have been ordered by the board, unless an appropriation therefor has been previously made.

No evidence was offered to prove that a prior appropriation had been made by the Board for this alleged extra work above the contract price. Furthermore, the contract between Long and the Board specifically provided that no extra payments of any kind in addition to the original contract would be allowed “except as ordered in writing by the Board’s architect and then only with the Board’s prior approval for the expenditure.” Not only was such a written order not given, but the evidence shows the architect immediately informed Long that it was obligated to do this work under its agreement.

Great Lakes Dredge Co. v. Chicago, 353 Ill 614, 188 NE 196, cited by Long in support of his contention that the Board waived the requirement of a written order is factually distinguishable. There the court stated that the involved work was admittedly required by unforeseen circumstances and did not come under the provisions of the contract. The court further held that the City, by standing by and without objecting, permitted this work to be done and accepted the benefits and thereby ratified the work. In the instant case we agree with the Master that there is no doubt that the contract terms included all necessary excavation work and that the trenches for the duct work were clearly shown on the plans. The Master also concluded that Long did the excavation for the duct work under protest, did not follow the general plans, but rather the orders of the heating .and ventilating contractor, Mellish and Murray, as it was ordered to do by the architect’s job superintendent. The Master then found that Long was entitled to that part of said expense attributable to the fact that the trenches were in some cases dug deeper and wider than called for by the contract plans.

We have carefully reviewed the evidence and are of the opinion that Long failed to sustain the burden of proof of establishing that he did work on the ducts not generally included in his contract. Long did follow the orders of the heating and ventilating contractor, but H. James Murray who supervised that work for Mellish and Murray, testified on behalf of the Board that the ducts were installed exactly as required by the plans and specifications, and explained that had they put in the ducts any differently than called for in the plans it would have cost them a great deal in additional expense. He said that his company had not claimed any extra compensation for the work.

It may be that Long by becoming the successful bidder for the public improvement job entered into the contract improvidently, but nevertheless it is bound by the plain and unambiguous terms of the written agreement. Even in cases where the work was in fact extra and of considerable value and felt to be a hard case for the contractor, similar provisions in public construction contracts have been held binding .upon the parties. Plumley v. United States, 226 US 545.

For the reasons indicated in this opinion the judgment of the Circuit Court of Cook County is reversed.

Judgment reversed.

MURPHY, P. J. and ADESKO, J., concur.

       Among the terms and conditions of the contract are the following provisions:
      2. Wherever, in any portion of the Specifications authority is vested in the Architect or Engineer to approve extra work or changes or adjustment in the cost of the work, for whatever reason, or to approve extensions of time, it is understood that such authority is conditioned upon prior approval of the Board of Education of the City of Chicago, and that the Contractor if he selects, shall be justified in requesting proof of such approval.
      1.03 EXTRAS: It is distinctly understood that no extra of any kind will be allowed, except such extra or extras as ordered by the architect in writing. In all cases where estimates for such extras have not been given in advance, itemized bills must be presented immediately upon completion of the extra work.
      (a) The architect’s Superintendents have no authority to order any extras.
      1.05(b) The Contractor shall furnish all permanent and temporary bracing, shoring and anchoring that may be required to make everything absolutely stable and secure.
      1.09(b) This Contractor will be held responsible and shall make good all damages to adjoining property, caused by the execution of his work under these specifications.
      8.02 WORK INCLUDED: The Contractor under this section of the specifications shall furnish all labor, materials, services, supplies, tools, equipment and transportation necessary to do all the machine and hand excavating, clearing, shoring, filling and backfilling required for the foundations, footings, piers, pits, vaults, sidewalks, driveways, and do all filling, backfilling and rough grading to complete the site as shown on the drawings and hereinafter specified.
      3.05 EXAMINATION OF SITE: The Contractor shall visit and examine the site and all conditions thereon and take into consideration all conditions which may affect his work.
      3.08 SITE CONDITIONS: Previous buildings have occupied the site of the new building and the old foundations have been wrecked to within one foot six inches (1-6") below the present grades. Contractor is cautioned to see to it that all old water connections, sewer and drain lines are properly cut off and capped before excavating for the new building. He shall also take into consideration that old foundations may be encountered in excavating for new work. No additional compensation will be allowed the contractor for the removal of any old foundation, floors, pipes, or rubbish encountered in excavating for the new work.
      3.09(d) Do all necessary or required sheet piling, shoring and bracing of embankments and adjacent school building until foundation walls and backfilling is in place.


text:
    Georgette Messenger and David S. Shapiro, Executors of the Last Will and Testament of Elmer Messenger, Deceased, and Georgette Messenger, Individually, Plaintiffs-Appellees, v. Milton D. Rutherford, Defendant-Appellant.
    Gen. No. 51,065.
    First District, First Division.
    January 23, 1967.
    Rehearing denied March 6, 1967.

      Myer H. Gladstone, of Chicago, for appellant.
    Morgan, Halligan, Lanoff & Cook, of Chicago (Samuel M. Lanoff and John A. Cook, of counsel), for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Plaintiffs, as executors of the estate of decedent, seek to recover from defendant the balance on an account stated made shortly before the death of the decedent. Defendant appeals from an order which dismissed his counterclaim after finding that his claim “is now barred by Section 204 of the Probate Act of Illinois.” The order also struck portions of defendant’s answer to plaintiffs’ complaint. The trial court further found there was no just reason for delaying appeal from the order.

Elmer Messenger, now deceased, and Milton D. Rutherford, defendant, were involved in a number of oil drilling ventures over a period of years. These ventures were agreed to in a series of oral contracts. Messenger died on April 10, 1961, and letters of administration were issued in the Probate Court of Cook County on April 24, 1961. On February 6, 1963, the executors filed the instant complaint against defendant, claiming $29,000 for the purchase of fractional interests in five oil wells (including drilling and equipment) and $1,525.71 for defendant’s pro rata share of operating expenses for eleven oil wells (including the aforementioned five) for the 11-month period preceding Messenger’s death. In addition, Georgette Messenger, Elmer Messenger’s widow, claimed individually $2,903.78, alleging that after her husband’s death she had continued operating the wells. This latter amount was claimed to represent defendant’s pro rata share of expenses incurred by Mrs. Messenger.

The complaint alleged that the contracts, as they related to each well, involved the sale of an agreed fractional interest in the well at a fixed price, which included drilling costs, and if oil was found, an- additional fixed price to include equipment and completion. It was further alleged as to the five wells that prior to the death of Elmer Messenger, a full, just and true account, dated March 21, 1961, was made and stated between the defendant and the decedent, which showed that a balance of $29,000 was due decedent from the defendant over and above all sums received by defendant and from which he was entitled to credit, which account was received and retained by defendant without objection being made thereto.

Defendant’s answer and counterclaim were filed August 5, 1964. The answer denied the March 21, 1961, statement of account and alleged that the decedent had a fiduciary duty to charge the actual proportionate cost of drilling, which was actually $11,175.60, and that the statements rendered by decedent were false, and defendant did not become aware of that fact until 1962. Defendant’s counterclaim alleged that defendant was charged $65,501.20 in excess of his pro rata share while drilling and completing seventeen oil wells, and after allowing credit for the amounts claimed in the complaint defendant claimed “a net indebtedness due him from the Plaintiffs of $32,071.71.”

Plaintiffs then moved to dismiss the counterclaim, alleging that the claim on which it was based was barred by section 204 of the Probate Act, because “the nine-month period for filing claims in the Probate Court of Cook County applicable to said estate expired on January 24, 1962,” and “no additional assets were inventoried subject to claims following said date.” Plaintiffs further alleged that the counterclaim related to charges on transactions which were completed prior to the transactions set forth in plaintiffs’ complaint, and on which the alleged account stated was based.

Subsequently, the trial court dismissed the counterclaim after finding that it “was filed after the nine month period for filing claims against the Estate of Elmer Messenger, Deceased, which said period expired on January 24, 1962, . . . that no claims were filed in the Probate proceeding ... by Milton D. Rutherford, Defendant and Counter-Plaintiff, and that his claim against said Executors is now barred by Section 204 of the Probate Act of Illinois.” The same order also struck portions of defendant’s answer to the complaint.

As to the merits of the counterclaim, defendant’s principal contention is, “when the deceased fraudulently withheld certain important facts from the defendant, which if known to him, would have induced him to act during the deceased’s lifetime or within the nine month period provided for in said Section 204, the limitation in said Section is tolled.”

Initially, we note that defendant, in his brief and during oral argument, makes no attempt to assert his right to proceed with his counterclaim against after-discovered assets. See In re Estate of Bird, 410 Ill 390, 396, 102 NE2d 329 (1951). Therefore, our determination of defendant’s right to assert his counterclaim is limited to its alleged enforceability against decedent’s assets inventoried within the nine-month period following the issuance of letters testamentary.

It has been repeatedly said, “This provision creating a limitation upon the time for filing claims against an estate is not a general statute of limitations. The purpose of the act in regard to the administration of estates was to facilitate their early settlement, and the limitation for the exhibition of claims . . . had that particular purpose in view. A claim not exhibited within the time fixed is not absolutely barred but its right to participate in the distribution of the assets of the estate actually inventoried or accounted for is lost.” (Sanders v. Merchants State Bank, 349 Ill 547, 566, 182 NE 897 (1932).) The time limitation section on claim filing is “a specific act adopted for the particular purpose of facilitating the early settlement of estates.” (Durflinger v. Arnold, 329 Ill 93, 98, 160 NE 172 (1928).) A probate court cannot authorize an administrator to pay a claim after the claim has been barred from payment under the statute. “To authorize payment under these circumstances would in effect nullify the provision in the statute.” Yaple v. Mahy, 241 Ill App 446, 453 (1926).

Where a claim against an estate is filed and allowed after nine months from the granting of letters, the order or judgment allowing the same must be special, ordering payment only out of assets which have not been inventoried within nine months from the issuance of letters or accounted for by the administrator. Austin v. City Bank of Milwaukee, 288 Ill App 36, 44, 5 NE2d 585 (1936).

Defendant’s authorities on the contention that fraud on behalf of the “decedent” tolls the provisions of section 204 of the Probate Act are not in point. They do support the maxim that “no man may take advantage of his own wrong,” but these cases are based on fraud occurring between living litigants and do not involve estates of decedents. With the exception of expenses of administration and “surviving spouse’s or child’s award,” section 204 contains no exceptions to its pronouncements that “all claims . . . not filed within 9 months . . . are barred as to the estate which has been inventoried within 9 months from the issuance of letters.”

In holding that a mental incompetent’s claim was “barred under the nonclaim statute, sec 204 of the Probate Act as to inventoried assets of the estate,” in Pratt v. Baker, 48 Ill App2d 442, 199 NE2d 307 (1964), the court said (p 444):

“Accepting the stated purposes of the nonclaim statute to be the facilitation of an early and final settlement of estates, it becomes readily apparent why the exceptions as to persons with disabilities were omitted from the present act. To make exceptions for disabilities, whatever their nature, would only serve to destroy the very object of the non-claim statute and not only prolong the administration of estates indefinitely and, in some instances, almost interminably, but also subject the executors and administrators to such an indeterminable future liability that a knowledgeable person would be reluctant to accept the responsibility.”

And at page 445:

“A summary of the decisions of nonclaim statutes is set forth in 34 CJS, Executors and Administrators, sec 404, from which the following is quoted: ‘Where, however, the statute of nonclaim makes no exception as to any persons or class of persons, the courts can make none; and hence, as a general rule, and in the absence of some provision to the contrary, the statutes of nonclaim run against nonresident as well as resident, and infant as well as adult claimants, and also against married women and insane persons, and the estate of a deceased creditor.’ ”

We conclude that “decedent’s fraud” does not toll the provisions of section 204. Therefore, the order of the trial court was proper insofar as it barred defendant’s claim as to the assets which had been inventoried within nine months from the issuance of letters.

As defendant does not assert error as to the dismissal of his counterclaim against Georgette Messenger, individually, we have not considered that part of the order.

Although defendant’s appeal from that part of the order which dismissed his counterclaim is proper on the theory it was a final and appealable order (Wilson v. Tromly, 336 Ill App 403, 406, 84 NE2d 177 (1949)), the part of the order which struck portions of defendant’s answer was not final and appealable, even though so found by the trial court. Therefore, we have not considered that part of defendant’s appeal.

For the reasons given, the dismissal of defendant’s counterclaim is affirmed insofar as it applies to decedent’s assets inventoried within the nine-month period following the issuance of letters testamentary, and the cause is remanded for further proceedings in accordance with the views expressed herein.

Affirmed in part; not considered in part, and remanded with directions.

BUKMAN and ADESKO, JJ., concur.


text:
    Lillian S. Sitek, Plaintiff-Appellee, v. Lillian Thomas, etc., et al., Defendant-Appellant.
    Gen. No. 50,972.
    First District, First Division.
    January 23, 1967.
    Black and Beermann, of Chicago (Benjamin H. Black, of counsel), for appellant.

      Dowdle & Moscato, of Chicago (Richard E. Dowdle, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Lillian Thomas, administrator of the estate of John Jakubec, deceased, appeals from a deficiency-decree entered in a mortgage foreclosure proceeding. As administrator she contends (1) the complaint failed to state a cause of action “upon which to support a deficiency decree so as to reach the inventoried assets of the estate,” and (2) the failure of plaintiff to file a claim in the Probate Court of Cook County barred plaintiff from participating in the assets of the estate of the decedent which had been inventoried within nine months from the issuance of letters.

John J. Jakubec died May 1, 1963, and on May 3, 1963, letters of administration were issued to Lillian Thomas by the Probate Court of Cook County. The instant foreclosure proceedings were filed in the Circuit Court of Cook County on July 12, 1963. Both the caption and the introductory paragraph of the complaint included: “Lillian Thomas, Administrator of the Estate of John J. Jakubec, Deceased.” In the body of the complaint, under the heading “Names of persons claimed to be personally liable for Deficiency, if a deficiency decree is prayed for,” appears: “Estate of John J. Jakubec, Deceased.” The prayer for relief was for the foreclosure of the mortgage and “for a personal deficiency decree.”

Summons was served on the defendant administrator on August 20, 1963, and an appearance was filed on her behalf, as administrator. She failed to answer or plead to the complaint and was adjudged in default.

The decree of foreclosure and order of sale was entered on April 7, 1965. The property was sold on May 19, 1965, for $4,500, and the master’s report of sale filed on May 24, 1965, found a deficiency. On June 11, 1965, the defendant administrator filed verified objections to the master’s report, in which it is related that at the time of the filing of the complaint there was a balance due on the mortgage note of $26,316.95, and that no claim had been filed in the Probate Court for the balance of the mortgage note, although the attorney for the plaintiff did enter his appearance in the Probate Court proceedings on September 19, 1963. It is further stated, “the said administrator is not liable for said indebtedness in that the note forming part of the foreclosure proceedings was never offered as a claim within the nine-month period required by the Probate Act of the State of Illinois. That the Court never had jurisdiction over Lillian Thomas as Administrator of the estate of John J. Jakubec, deceased with regard to any deficiencies as the same would be within the exclusive jurisdiction of the Probate Court of Cook County.”

Defendant’s objections were referred to a master, who filed a report on August 13, 1965, finding that the court did have jurisdiction to enter a deficiency decree against the defendant. On August 30, 1965, the court entered a decree which approved and confirmed “the Master’s Sale and the Report of Sale and Distribution filed May 24,1965 and the Master’s Report filed August 13, 1965.” It was further decreed that the plaintiff was entitled to recover from the defendant administrator “the said deficiency found due and assessed to the said Plaintiff and against the said Defendant in the sum of $37,785.69, and that execution issue therefor.”

Initially, we consider defendant’s contention that the right to a deficiency decree “in a foreclosure action must be determined from the pleadings and evidence,” and that the instant complaint “totally fails to state a cause of action ... so as to reach the inventoried assets of the estate.” Defendant asserts that the complaint is silent as to the details of her appointment as administrator. No allegations appear “charging her as being liable for a deficiency decree,” and the “ ‘Estate of John Jakubec, Deceased,’ is not made a party Defendant as such, yet the Complaint seeks to hold it liable for a deficiency decree.”

Defendant’s authorities are not persuasive on this point. The administrator was named a defendant in her official capacity, and the complaint disclosed a clear intention to seek a personal deficiency decree against the “Estate of John J. Jakubec, Deceased,” of which defendant was named the administrator, and the prayer for relief included “for a personal deficiency decree” and “for the appointment of a Receiver after sale in the event of a deficiency.” Even though the complaint failed to allege the routine details of decedent’s death and the appointment of the administrator, it contained such information as reasonably informed the defendant administrator of the nature of the claim she was called upon to meet. The summons was served on defendant, as administrator, on August 20, 1963, well within nine months from the issuance of letters of administration to defendant. If the complaint was lacking “either in form or substance,” the defendant’s failure to object in the trial court waived these objections (Civil Practice Act, §42). A cause of action on which the court could properly enter a deficiency decree against the defendant administrator was stated. See Fleshner v. Copeland, 13 Ill2d 72, 74, 147 NE2d 329 (1958); Brandeis Machinery & Supply Co. v. C. A. McNeely General Contracting & Equipment Co., Inc., 18 Ill App2d 396, 398, 152 NE2d 890 (1958).

Next considered is defendant’s contention that plaintiff’s failure to file a claim in the Probate Court within nine months from the date of the issuance of letters of administration barred plaintiff from participating in the assets of the decedent which had been inventoried within nine months from the issuance of letters. Defendant argues, “By her proceeding with the foreclosure suit, she had a right to the real estate involved, but no right to have a deficiency entered in the Probate Court proceedings in said Estate against the administrator of the John J. Jakubec Estate despite the fact that the Administrator was made a party defendant in the foreclosure proceedings.”

Defendant asserts that amendments to Article XVII of the Probate Act, entitled “Claims Against Estates,” effective January 1, 1964, “indicate a legislative intention that in spite of jurisdiction of other courts, including the Circuit Court, all claims are to be filed for adjudication in the probate estate in the probate court, even when based on actions originally brought in another court, such as the Circuit Court.”

We find no merit in this contention. The foreclosure proceedings were commenced on July 12, 1963, and the defendant administrator was served with summons on August 20, 1963, approximately four months after the issuance of letters of administration. The steps then taken by plaintiff were sufficient exhibition of plaintiff’s claim within the time fixed by statute, for participation in the distribution of the inventoried assets, and came within the provisions of the Probate Act then in effect, and also within the pronouncements made by this court in Bosnak v. Murphy, 28 Ill App2d 110, 170 NE2d 640 (1960), where this court said (p 115):

“ [A] s to claims over which the Probate Court has no jurisdiction because of nature and content, the filing of the action in a court of competent jurisdiction will be sufficient for participation in the inventoried assets, if, during the limitation period, either service of summons be made on the executor or a filing of the claim be made in the Probate Court.”

Finally, we consider defendant’s contention that the deficiency decree “is not based upon facts showing a liability for the deficiency and therefore is insufficient to support the decree upon appeal, also the buyer at the foreclosure sale refused to consummate the sale and therefore a deficiency decree could not have been entered as the amount of the deficiency was not determined.”

The record indicates that the buyer at the foreclosure sale filed a motion for the vacation of the sale and a refund of his deposit. On August 30, 1965, an order was entered, which stated: “It Is Hereby Ordered that the sale to Louis N. Epstein of the property in question in the amount of $4500.00 be and hereby is approved and that his motion to vacate said sale and for a refund of his deposit be and hereby is overruled.” On September 15, 1965, a rule was entered on the buyer to show cause why he should not be held in contempt of court for his failure to pay the balance of the bid accepted by the master.

From the foregoing, defendant argues that the deficiency judgment entered on August 30, 1965, for $37,-785.69 was arbitrary and based upon guess — “Until the buyer at the sale, Louis N. Epstein consummated the sale by paying the purchase price of $4500.00 the amount of the deficiency could not have been determined. . . . The law does not permit guessing in entering a deficiency judgment. The amount must be true and certain. . . . At the time of the entry of the deficiency judgment there were no proceeds of the sale of the mortgaged premises, as the buyer refused to pay the balance due and sought a rescission of the sale. He even attempts to retrieve his earnest money of $500.00.”

Our examination of this record shows that the foreclosure proceedings, including the prayer “for a personal deficiency decree” and its entry, complied with sections 23—23.11 and 56 of chapter 95 (Ill Rev Stats 1963). Although the foreclosure sale buyer sought to vacate the sale, the court’s approval of the sale made it a final sale and the proper basis for the entry of the deficiency decree against the defendant administrator. The enforcement of the purchaser’s bid was the responsibility of the plaintiff and no concern of the defendant administrator as long as she was given full credit for the amount of the sale approved by the court.

For the reasons given, the deficiency decree against the defendant administrator is affirmed. However, it was not proper to award execution upon this decree, and the decree is modified in this court by striking out the portion thereof which awards an execution, and it is directed that the deficiency decree be paid in due course of administration of the Estate of John J. Jakubec, deceased.

Affirmed as modified.

BURMAN and ADESKO, JJ., concur.


text:
    Julio Detres, Jr. by Angelia Detres, His Mother and Next Friend, Plaintiff-Appellant, v. Rogelio Fernandez Rojo, Defendant-Appellee.
    Gen. No. 50,691.
    First District, First Division.
    January 23, 1967.
    Rehearing denied March 6, 1967.

      Joseph M. Tobias, of Chicago, for appellant.
    Kamin, Stanley, Burtker & Steinberg, of Chicago (Frank C. Stanley, Jr., of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The plaintiff, Julio Detres, Jr., appeals from an order vacating an ex parte judgment after a hearing upon a petition filed by the defendant, Rogelio Rojo, under section 72 of the Civil Practice Act.

The original complaint was filed on May 28, 1956, by Angelia Detres on behalf of her son, Julio Detres, Jr., alleging that when plaintiff was five months old he was taken by his mother to the office of Dr. Rojo, a physician, for routine examination and that as a direct and proximate result of Dr. Rojo’s violation of an alleged duty of due care the plaintiff infant fell from an examination table and was injured, whereupon $25,000 was sought as damages. The defendant appeared by Kirkland, Fleming, Green, Martin & Ellis, and on June 15, 1956, filed an answer denying the allegations and filed a counterclaim for $100 for services rendered. The counterclaim was stricken and an amended counterclaim was filed naming Angelia Detres as guardian ad litem for Julio Detres, Jr. Both parties filed and answered interrogatories and the defendant took an evidence deposition which was filed on February 6,1957. The defendant’s attorneys upon due notice withdrew as his counsel on September 27, 1962, and on February 17, 1964, a jury rendered a verdict on an ex parte hearing in the sum of $10,000, and judgment was entered on the verdict. On April 9, 1964, the judge entered a memorandum of judgment and on December 22, 1964, a citation was served on the First National Bank of Chicago.

On January 28, 1965, new counsel for defendant filed a petition under section 72 of the Civil Practice Act, Ill Rev Stats 1965, c 110, § 72, in which it was stated that the defendant had a good and meritorious defense in that he had never treated the child at all, but was treating the mother in another room when the grandmother, who had custody and was caring for the child, allowed the child to fall to the floor. It was further averred that the complaint was dismissed for want of prosecution on October 14, 1958, and reinstated; that on March 27, 1962, the defendant moved to dismiss for failure of plaintiff to answer interrogatories and on plaintiff’s motion the dismissal was vacated; that by stipulation a third dismissal was vacated and that defendant’s first notice of a judgment against him was when he was served with citation proceeding to discover assets on December 22,1964.

The plaintiff moved for dismissal of the petition asserting that defendant had made no showing of diligence and pointed out that section 72 requires that not only must the party set forth a meritorious defense, but must also state facts indicating that he has exercised due diligence in preventing the entry of the ex parte judgment. Attached to this motion were copies of two letters addressed to the defendant by plaintiff’s counsel, dated January 18, 1963, and September 30, 1963. The January letter reminded defendant that his attorneys had withdrawn from the case and that the writer was interested in settling the case, but that defendant had not returned his telephone calls. The letter went on to say, “If you fail to communicate with me, I can only presume that you choose to defend this case in whatever manner you please and my clients and I shall await trial of the case.” In the September letter the defendant was informed that the writer had appeared in court and was directed by the judge to inform him that trial of the case was imminent and will be about four months away.

On February 11, 1965, a new firm of attorneys filed a Supplemental Petition to vacate judgment on behalf of defendant. It recited that the judgment was void because the complaint failed to state a cause of action; that the defendant had no notice of the judgment contrary to chapter 110, section 50.1 of the Illinois Revised Statutes, in that the Clerk of the Court failed to notify the defendant that a default judgment had been entered against him and that the defendant’s first notice of the judgment was approximately eight months subsequent to its entry. Attached to the petition was a Supplemental Affidavit in support of the motion to vacate judgment. It recited that after examining the child he left the infant in the care of the grandmother and it was while he was in another room examining the mother that he was informed of the child’s injury. He stated that he had paid his original attorneys $600 for legal fees and had been informed by them that there was little merit to the claim against him and he believed that the case would never go to trial because he was informed that the plaintiffs had returned to Puerto Rico and that he did not learn of the judgment until December of 1964. The plaintiff filed a general denial of the allegations of the supplemental petition and a motion to strike the affidavit and defendant’s motion to file supplemental exhibits including the deposition of a witness to the occurrence.

The matter was heard on May 26, 1965, and an order was entered vacating the judgment upon the payment of $350 which was tendered to and accepted by plaintiff’s attorney in open court. Plaintiff appeals from the order vacating the judgment.

It is the plaintiff’s contention that the defendant failed to allege or prove diligence as required under section 72 of the Civil Practice Act and it was therefore error for the court to vacate the judgment. He argues that section 72 is not intended to relieve a party of the consequences of his own negligence.

It is well settled in Illinois that a section 72 petition must adequately set forth sufficient facts to show a meritorious defense and due diligence, and that the trial court has discretion in allowing or denying the petition. See Till v. Kara, 22 Ill App2d 502, 161 NE2d 363. It is also well settled that since Ellman v. De Ruiter, 412 Ill 285, 106 NE2d 350, petitions under section 72, invoke the equitable power of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unconscionable circumstances. See also Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE 2d 348.

We note that Judge Gutknecht who presided when the matter was heard ex parte by a jury and who entered the judgment is the same judge who vacated the default judgment. The allegations in defendant’s petitions, affidavits and deposition show a meritorious defense. The record is clear that the defendant diligently retained a prominent legal firm to defend him and paid $600 as a retainer fee, and the court file is replete with his demonstration of contesting plaintiff’s claim. He caused depositions to be taken of witnesses and interrogatories were propounded and answered by the parties. On several occasions the suit was dismissed. It was unfortunate for him that his counsel withdrew from the case and his failure to employ substitute counsel explains the reason for his not appearing in court when the case was reached for trial which occurred one and one-half years after his counsel withdrew. He also could have misinterpreted the letters he received from plaintiff’s counsel as suggesting a settlement in the case which he undoubtedly refused to entertain.

The record also shows that although plaintiff’s counsel knew that the defendant was seriously contesting the claim and that his counsel withdrew, he did not serve the defendant with an execution within thirty days after the entry of a default judgment, which would put him on notice of judgment. As stated in Dann v. Gumbiner, 29 Ill App2d 374, 382, 173 NE2d 525, where after an ex parte judgment service of an execution was delayed four months after term time, “. . . a cloud is cast upon the whole proceedings, which the court should consider when appraising the merits of the petition to vacate.” The record is clear that when the defendant was informed of the judgment through a, citation proceeding which occurred about six months after the default judgment was entered he promptly retained counsel and sought a day in court.

We are of the opinion that under these facts the court could find reasonable diligence and did not abuse its discretion in vacating the judgment and indeed properly permitted the defendant to have his day in court. Considering the view we have taken on the merits of the appeal, it is unnecessary to determine the motion of defendant to dismiss this appeal which we took with the case.

The order of the Circuit Court is therefore affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: PRESIDING JUSTICE MURPHY.

text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner, Plaintiff-Appellant, v. Gerald D. Ryan, Licensee, License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 51,105.
    First District, First Division.
    January 16, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Thomas F. Strubbe, Assistant Corporation Counsel, of counsel), for appellant; no appearance made for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Defendant in Error, v. Donald Paulson, Plaintiff in Error.
    Gen. No. 51,473.
    First District, Fourth Division.
    January 30, 1967.

      Jerome J. Ruther and John F. Lang, of Chicago, for plaintiff in error.
    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 defendant in error.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Donald Paulson (hereinafter referred to as defendant) and Bobbie Haygood were convicted after a jury trial of murder and were sentenced to the penitentiary for a term of forty years. The conviction of Haygood was affirmed on appeal (People v. Haygood, 60 Ill App2d 70, 208 NE2d 373). Defendant sued out a writ of error in the Supreme Court and the cause was transferred to this court.

Contentions on Appeal

1. Defendant was not proven guilty beyond a reasonable doubt because the prosecution’s witnesses were impeached;

2. The decedent died of meningitis and not from any alleged act of the defendant.

Evidence

Lee James, the deceased, died following a cafe brawl. (The facts with regard to the brawl are set out in detail in People v. Haygood, supra, and will not be repeated here.) According to the testimony adduced by the prosecution, both defendant and Haygood struck the deceased over the head with a baseball bat during the brawl. Defendant admitted his presence at the cafe and his involvement in the fight, but denied striking anyone with a bat. Another defense witness was Marsha Larry, a girl whom defendant had dated, who testified that she was sitting on a stool at the counter when the brawl suddenly began; that she was knocked down and hit “a couple times”; that she was on the floor and didn’t see what was happening; and that Paulson grabbed her by the waist and led her from the cafe. She further stated that she did not see defendant strike anyone with an object. Marion Rufus, who managed the cafe, also testified on behalf of the defendant and stated that she had known the defendant for two years; that her back was to the customers when the fight began; that Paulson was involved in the fight but used only his fists; and that she didn’t see any baseball bats behind the counter that morning. On cross-examination the witness admitted telling the police shortly after the incident that she didn’t know any of the men involved in the brawl. She also admitted that in response to the question of a policeman: “Is there anything you can tell me at all about this fight?” she replied “No, it happened so fast, I don’t know what happened.” The witness stated in addition that she discussed her testimony with defense counsel, in the presence of Marsha Larry, less than a week prior to trial.

As to the cause of death, the uncontroverted testimony is that the deceased died on July 25 from meningitis, which was caused by infection which entered the surgical incision during an operation for a sub-dural hematoma due to a blow on the head. Dr. Oscar Sugar testified that he examined the deceased on July 9 (the day of the brawl) and that the diagnosis was cerebral concussion and lacerations of the scalp. There was also a skull fracture. On July 19 the deceased complained of dizziness and headaches and a test indicated sustantial brain damage, after which the operation was performed.

Opinion

(1) Defendant’s first contention is that he was not proven guilty beyond a reasonable doubt because the prosecution’s witnesses made contradictory statements and were unworthy of belief. However, after a careful review of the record in this case, we find that defendant’s contention is without merit. Walter Attwood testified that “Paulson struck the head of James three or four times, all with a baseball bat.” Attwood also stated that the deceased was not hit in the head by a thrown sugar bowl. On cross-examination he admitted that in a signed statement to the police he had stated that James was hit in the head by a sugar bowl, causing a laceration. Attwood further testified, however, that in his statement to the police he meant that a man named Raby was hit by the bowl. Martha Kennon, who testified that she observed defendant strike the deceased on the head with a bat but admitted giving the police a statement to the contrary, stated on redirect examination that she falsified her statement to the police because she was afraid of “what Johnny Glisson [also referred to as Gleason] had told me.” The court then sustained objections by defense counsel as to the conversation between Glisson and Miss Kennon. Another witness, Barbara Pierce, also stated that defendant struck the deceased with a baseball bat.

The contradictory statements of the state’s witnesses were reasonably explained. Moreover, there is no relevant contradiction whatsoever in the testimony of Barbara Pierce. While defendant asserts that Barbara Pierce failed to identify him from a lineup, this is not supported by the record (the witness admittedly did not identify Haygood, the other defendant, from the lineup). Furthermore, the credibility of defendant’s witnesses was placed in doubt by their contradictory statements.

A mere conflict in evidence on material facts in issue will not justify a reversal where there is sufficient credible evidence to convict. People v. Sheppard, 402 Ill 347, 351, 83 NE2d 587. The evidence in the instant case is sufficient to prove beyond a reasonable doubt that defendant struck the deceased on the head with a baseball bat.

(2) A supervening act will not relieve an accused from responsibility for the death of another unless that act was disconnected from the act of the accused. People v. Meyers, 392 Ill 355, 64 NE2d 531. In the instant case, according to the uncontroverted testimony, death was caused by an infection which developed during an operation to relieve a hematoma, the hematoma having been caused by a blow to the head allegedly inflicted by the defendant. The chain of events ultimately causing the death of Lee James was set in motion by the act of defendant, and therefore the resulting infection was not disconnected from defendant’s act (People v. Meyers, supra).

Holding on Appeal

We find that defendant was proven guilty of murder beyond a reasonable doubt. Therefore the judgment of the trial court is affirmed.

Affirmed.

ENGLISH, P. J. and MCCORMICK, J., concur.

       Witnesses for the prosecution stated that Paulson grabbed a baseball bat from beneath the counter.

       Johnny Glisson was the manager of the “New Southern Inn” which was across the street from the cafe in question and was where defendant worked as a bartender. The fight had its inception there.

       In his brief defendant argues that the cross-examination of Barbara Pierce was improperly restricted. However, this same contention on behalf of Bobbie Haygood was rejected by the court in People v. Haygood, 60 Ill App2d 70, 208 NE2d 878 and appellate counsel withdrew this contention at oral argument.


text:
    Helen Whitman, et al., Plaintiffs-Appellants, v. George Prescott, Defendant-Appellee.
    Gen. No. 50,558.
    First District, First Division.
    February 6, 1967.

      Harry P. Hutul, of Chicago (Arthur M. Gorov, of counsel), for appellants.
    Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard and Frederick W. Temple, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The plaintiffs brought this action to recover for personal injuries and property damage which they sustained when the automobile driven by plaintiff, Helen Whitman, in which plaintiffs, Julia Osolinski, Myrtle Berry and Lottie Kaczor were passengers, collided with an automobile driven by the defendant, George Prescott. The jury trial resulted in a verdict of not guilty and the plaintiffs appeal from the judgment entered in favor of the defendant. No question was raised as to the pleadings.

On January 6, 1958, the plaintiff, Helen Whitman, picked up the other three plaintiffs, and taking the same route they used every day, was driving to the Automatic Electric Company in Northlake, Illinois, where they were employed. Helen Whitman testified that she was driving west on Grand Avenue in the second lane of the six-lane through street at about 20 to 25 miles per hour and when she was about 20 feet east of Nórdica Avenue she glanced and saw the defendant’s car going south on Nórdica and expected him to stop for the through street. When she was about ten feet away, she said, she saw he wasn’t going to stop and yelled, “He isn’t stopping,” applied her brakes, blew her horn, swerved to the left, and that the defendant’s front left fender hit her right fender. She testified further that the defendant did not blow his horn or swerve his car to avoid the collision. The testimony of her three passengers and coplaintiffs was substantially the same.

The defendant, George Prescott, testifying under section 60 of the Civil Practice Act, said that he was on his way to work and knew that traffic on Nórdica must stop before entering Grand Avenue which was a through street. He said that he was stopped several times on approaching Grand Avenue because cars in front of him were turning into it and that when traffic cleared he proceeded 15 feet into Grand Avenue where his engine stalled. He testified that he had just restarted his engine and that his car was standing still when the other car, which he saw shortly before the impact, struck his left bumper. He said the other car then swerved slightly to the left and came to a stop about ten feet away and that his car was not moved by the impact.

Plaintiffs contend that the misconduct of defendant’s counsel so prejudiced the jury that they rendered a verdict clearly against the manifest weight of the evidence. They argue, and we agree, that where the question of liability is sufficiently close, as in the instant case, the trial must be conducted in an orderly manner so that the jury will not be improperly influenced. Bulleri v. Chicago Transit Authority, 41 Ill App2d 95, 190 NE 2d 476, Owen v. Willett Truck Leasing Corp., 61 Ill App2d 395, 209 NE2d 868. Therefore errors in the course of the trial should be carefully scrutinized by the court.

We first consider plaintiffs’ claim that defendant’s attorney was guilty of misconduct in persistently asking objectionable questions of several witnesses with regard to injuries and ailments of Mrs. Berry not connected with the accident in question. Mrs. Berry testified that the collision on January 6th threw her into the windshield and that she was put under the care of Mrs. Whitman’s doctor who was on the staff of the American Hospital. At that time she said that her whole right side and neck hurt and that she was confined to the hospital until January 27th, during which time she couldn’t walk. She returned to work about March 17th, and was subsequently hospitalized in November of 1963, for, as stated in plaintiffs’ brief, an unrelated condition.

We are of the opinion that no useful purpose would be served by detailing the many further charges. We have carefully reviewed the 900-page record of the nine-day trial and it appears to us that counsel for defendant was attempting to show through witnesses and exhibits that most of the injury claims by plaintiffs were fabricated. During the cross-examination of Mrs. Berry the trial judge ruled, on motion of plaintiffs, that her hospitalization for pneumonia and female illnesses were irrelevant and the jury was to disregard such evidence. The record is replete with bickering and wrangling by both counsel when defense counsel attempted to question Mrs. Berry and other witnesses about her many and various ailments both before and after the occurrence; counsel for the plaintiffs objecting that it was irrelevant and defense counsel insisting that it was either for the purpose of impeachment or for recollection of the witnesses.

During the last stages of the trial the defense called Dr. Arthur Jackson, who had treated Mrs. Berry for “nervousness” in February of 1961. Continued objections were made by plaintiffs’ attorney on questions put to him on grounds of hearsay and irrelevancy and were sustained and the jury instructed to disregard the answers. Counsel for defendant insisted he was trying to refresh the recollection of the witness from hospital records and to connect his testimony with other evidence already given for purposes of impeachment. When the trial judge requested defense counsel to get to the point, counsel replied, “I am trying to ask those questions but counsel keeps interrupting and raising frivolous questions and I never get to communicate with the witness.”

Plaintiffs’ counsel objected to this statement by defense counsel that he was interrupting and raising frivolous questions. A colloquy then took place between the court and counsel in chambers where counsel of plaintiffs moved for a mistrial. After much discussion the court stated that at that stage of the case he was reluctant to grant the motion, but he thought that the only way to settle this dispute was to grant a mistrial unless counsel got together. The following exchange between counsel then occurred:

Mr. Hutul: I don’t know whether there is any way it can be settled unless he apologizes in open court and you instruct the jury that it was not frivolous.
Mr. Kaye: I cannot do that.
Mr. Hutul: I will move that this court instruct the jury that such a remark is not in keeping with proper court conduct.
Mr. Kaye: All right. I will go out there and withdraw the remark I made.

The colloquy continued and then counsel for plaintiffs stated the understanding reached as:

Mr. Hutul: And the jury will be instructed to completely disregard the colloquy with counsel. That it has nothing to do with the trial of this lawsuit? And you are denying my motion for a new trial ?
The Court: Right.

Mr. Kaye insisted that he was entitled to refresh the memory of the witness when his recollection was exhausted and Mr. Hutul insisted the evidence was inadmissible because it was hearsay. The parties returned to the court and the following took place:

Mr. Hutul: Will the court please instruct the jury with respect to our instructions ?
The Court: I am going to ask counsel for the defendant to make a motion to withdraw the remark that he made before the jury.
Mr. Kaye: Yes, your honor, I withdraw the remark I made before the jury.
Mr. Hutul: Will the Court instruct the jury to disregard this remark ?
The Court: The jury will so disregard the remark counsel for defendant made against counsel for the plaintiff.

Plaintiffs further complain that the inflammatory conduct in defense counsel’s closing argument to the jury was so prejudicial as to require a reversal citing Westbrook v. Chicago & N. W. Ry. Co., 248 Ill App 446, 451, where it was stated that, “where the conduct of counsel is inflammatory and prejudicial, the judgment will be reversed even though the verdict is not against the manifest weight of the evidence.”

During Mr. Kaye’s closing argument Mr. Hutul objected to certain remarks as being improper and argument between counsel ensued. Later Mr. Hutul objected that Mr. Kaye was referring to an exhibit excluded from the evidence and the following exchange ensued:

Mr. Hutul: Objection, your honor. He is referring to an instrument that the Court saw fit to preclude from this jury’s attention, an exhibit.
Mr. Kaye: It was not offered in evidence, your honor, and I am referring to testimony of Mrs. Hartman.
Mr. Hutul: I will offer those exhibits right now, if you make such a challenge, and if you will stipulate, I am sure the Court will let it in.
Mr. Kaye: Very well. On the basis of that prejudicial misconduct, I will now move for a mistrial.

Mr. Kaye accused Mr. Hutul of threatening to reopen the case without leave of the court and put in evidence an inadmissible document and asked the court to declare a mistrial. The court ruled against this motion stating:

The Court: I think we better proceed. The jury will disregard the statements that have been made. But as I said before, confine yourselves to matters that actually took place when this witness was on the stand. And I want counsel for the Plaintiffs to be fair about his objections.

Later in his argument Mr. Kaye told the jury that if they believed that his client is a suicidal maniac to go driving into Grand Avenue into heavy traffic in both directions then their verdict should be for the plaintiffs. The following then took place:

Mr. Hutul: I must object. There is nothing in the law that says that this man, the defendant, must be a homicidal maniac for the plaintiffs to recover.
The Court: Cease using those words.
Mr. Hutul: He is telling the jury that is the test for determining the capability and I respectfully request that that remark be stricken.
The Court: It is an unfair comment.
Mr. Hutul: An unfair comment? That is, my comment is unfair? Is that the statement?
The Court: Well, the statement made by counsel for the defendant is rather unfair.

The defense counsel then asked for a mistrial in view of the court’s own remark which was overruled. After completing his argument, Mr. Kaye renewed his motion for a mistrial in chambers on the ground that the court had admonished him before the jury as doing something improper and they therefore would be prejudiced against him and his client. The judge overruled his motion and counsel for the plaintiffs proceeded with his rebuttal.

We do not think it necessary to recite further details in this opinion. We have considered all arguments made and we find the ultimate question to be not whether the trial was scrupulously free from error, but whether error occurred which unduly affected the jury’s verdict. Prejudice must be clearly shown to require a reversal and new trial. LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill App2d 188,208 NE2d 845.

The record shows that the trial judge earnestly attempted to conduct the nine-day trial in all fairness to both sides. Objections were promptly ruled on and the jury was adequately and properly instructed. The judge admonished both attorneys about their conduct during the trial. On two occasions the defense attorney moved for a mistrial and the trial judge indicated that if both sides wished a mistrial he would grant it. Counsel for plaintiffs had opportunities to make such a request if he thought plaintiffs were prejudiced. He elected not to take advantage of such a course and permitted the matter to go to the jury. See LaBelle v. Brown (Abstract) 46 Ill App2d 87,196 NE2d 389.

The resulting jury verdict found the defendant not guilty of negligence. After considering all the circumstances in this case, we find no convincing reasons to conclude that the verdict of the jury was the result of defense counsel’s misconduct nor the result of passion and prejudice created by the actions of defense counsel.

The plaintiffs also contend that the verdict of the jury was contrary to the manifest weight of the evidence. They argue that in addition to the fact that the defendant is contradicted by the four plaintiffs the four photographs of the automobile clearly indicate that the occurrence could not have happened in the manner testified to by the defendant.

The law is well settled in Illinois that a reviewing court cannot substitute its judgment for that of a jury in passing on the weight of the evidence. The trial judge who saw and heard the witnesses may, in his sound discretion, grant a new trial if the jury’s verdict is contrary to the preponderance or weight of the evidence. Lukich v. Angeli, 31 Ill App2d 20, 175 NE2d 796. The trial judge declined to grant a motion for a new trial. A reviewing court may overturn a jury’s verdict only if it is contrary to the manifest weight of the evidence. By manifest weight is meant the clearly evident, plain and indisputable weight. Black v. DeWitt, 55 Ill App2d 220, 204 NE2d 820.

The photographs in evidence were examined and considered by the jury and the trial judge in reaching their decisions. We also have examined the photographs and cannot say from such examination that the collision could not have happened in the manner testified to by the defendant. The other evidence also clearly indicates substantial conflict as to the cause of the collision. Plaintiffs’ version was that the defendant failed to stop at Grand Avenue which was a preferential through street and ran into their car. According to the defendant he stopped his car at Grand Avenue because he was familiar with the fact that there was a stop sign for traffic entering into Grand. He also said his car was stalled for a short period about 15 feet into Grand Avenue and was standing still when it was struck by plaintiffs’ car. There were no disinterested eyewitnesses to the occurrence.

The jury determines the credibility of witnesses, and it is evident that this jury disbelieved the version of the plaintiffs as to the occurrence. Such a verdict based on conflicting evidence and approved by the trial judge should not be disturbed on appeal unless an opposite conclusion is clearly evident. Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28. We cannot say that such a conclusion is evident.

For the reasons given, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry West, Defendant-Appellant.
    Gen. No. 50,294.
    First District, First Division.
    February 6, 1967.
    Rehearing denied March 22, 1967.

      Marshall Patner, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen V. Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from a judgment entered upon a verdict of guilty of the crimes of attempted robbery and of burglary in violation of chapter 38, sections 8-4 and 19-1 of the Blinois Revised Statutes, 1963, respectively. He was sentenced to serve from 2 to 5 years for the crime of attempted robbery and 10 to 25 years for burglary.

The defendant was arraigned on July 23, 1964, on each charge. The Public Defender was appointed on the same day to represent him. Bond was reduced from $10,000 to $5,000 and an order was entered on the State to furnish counsel for defendant with a list of witnesses and statements within ten days. The case was continued to September 21, 1964. On August 27, 1964, a motion for additional reduction of bond was denied. A motion to suppress confession filed on September 21, 1964, was continued by order of court to October 7, 1964. On September 21, 1964, defendant’s counsel requested a conference with the court. The court then advised the defendant that if a conference were held the facts of the case would be discussed, but unless he consented to the conference, the court had no right to hear the facts prior to the actual trial. The trial judge also advised defendant that if a conference were held and the case proceeded to trial, it would be tried before him. The defendant indicated he understood the judge’s comments. The judge then asked defendant: “Do you still want such a conference to take place?”, and the defendant said yes.

On October 7, 1964, defendant appeared in court, represented by the Public Defender. A hearing on the motion to suppress was had and denied. The defendant, speaking for himself, asked for a further reduction of bond so he could employ counsel of his own choosing. The court refused to reduce the bond, the bond having already been reduced from $10,000 to $5,000. The defendant requested the dismissal of the Public Defender and asked to be represented by a Bar Association attorney. This request was denied. The defendant then asked for a change of venue. The court denied it and set the case for trial on October 13,1964.

As soon as the case was called on October 13th, counsel for the defendant informed the court that the defendant had filed petitions for substitution of judges but indicated that they had been sent through the mail to the Clerk of the Court. Two of these petitions requested a substitution of judges and the third was a motion for appointment of a Bar Association lawyer. The court denied all of these motions. Selection of the jury commenced and was completed the next day.

During the selection of the jury, counsel for the defendant made a motion out of the presence of the jury for ten challenges under each indictment. The court denied this motion on the ground that since the indictments were consolidated, each side was entitled only to ten challenges. Selection of the jury was completed and the jury was sworn.

Out of the presence of the jury the court stated for the record that he had received in the morning mail two written unverified petitions signed by the defendant for substitution of judges. The court allowed the petitions to be filed, and noted that he had previously denied the request for substitution of judges.

Defendant is seeking a new trial because he claims his motion for substitution of judges was improperly denied; that he was not given adequate assistance of counsel and his motion for other counsel was improperly denied; and that he was denied the proper number of challenges under the statute.

The law concerning a substitution of judge in criminal cases is dealt with in Ill Rev Stats (1963) c 38, § 114-5.

Subsection (a) of that section provides for a motion for substitution of judge or any two judges. Such motion must be filed within ten days after the case has been placed on a judge’s trial call. Although the “petitions” filed in the case at bar named two other judges who defendant states are prejudiced against him, the petition came too late to qualify under section 114-5 (a).

Thus if defendant’s “petitions” are proper they must qualify under section 114-5 (c) which provides as follows:

“In addition to the provisions of subsections (a) and (b) of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.”

The defendant did not comply with the provisions of the statute. The petitions submitted by the defendant were not supported by affidavit and the trial court was justified in denying them.

This case is distinguishable from People v. Etheridge, 78 Ill App2d 299, 223 NE2d 437 (1966). In Etheridge, defendant filed a verified motion for substitution of judge. This court ruled that although the statute states that a motion for substitution of judge is to be supported by affidavit, the verification on the motion was sufficient to bring the motion within the statute. In the instant case the “petitions” were neither verified nor supported by affidavit.

The defendant further contends that he was not given adequate assistance of counsel. We do not agree with that contention. A careful examination of the record shows that defendant’s counsel represented him properly and presented his defense adequately according to law.

Defendant’s request for a Bar Association attorney was properly denied. The trial court found that this motion was made for the purpose of delaying the trial. His request came too late. As this court stated in People v. Jones, 51 Ill App2d 391, 201 NE2d 194, in discussing the right of an indigent defendant to substitute a Bar Association attorney for a Public Defender:

“We hold that an indigent defendant may not accept the appointment of a public defender and then, on the day of the trial demand that his defense be undertaken by another appointed attorney or public agency. People v. Cox, 22 Ill2d, 534, 177 NE2d 211. The indigent defendant has a right to be represented by counsel, but he does not have a right to experiment with various supplied counsel to the detriment of the orderly process of the law.” (Citations omitted.)

Defendant also argues that since there were two separate indictments he was entitled to the statutory number of challenges on each indictment. The record discloses that on defendant’s motion and “by express consent and agreement between the State’s Attorney, counsel for the people and the said defendant and his counsel” both indictments were consolidated for trial. The statute provides that “each defendant shall be allowed twenty peremptory challenges in capital cases, ten in all cases in which the punishment may be imprisonment in the penitentiary and five in all other cases.” This section appears under the general heading of “Trial by Court and Jury.” Ill Rev Stats (1963) c38, § 115-4 (e).

Defendant argued that the use of the word “cases” is synonymous with the word “indictment” and to rule otherwise would cause defendants to oppose consolidation of indictments for trial. We disagree with the defendant’s contention. We believe that the legislative intent in using the word “cases” was to describe the various types of offenses which would subject the defendant to capital punishment or imprisonment in the penitentiary or other punishment. If the legislature had intended to allow the number of challenges to correspond to the number of indictments being tried, it would have used the word “indictments” or “offenses.”

The State as well as a defendant is limited in the number of peremptory challenges when two or more indictments are consolidated for trial. Thus we do not agree that the statutory limit on the number of challenges will lead defendants to oppose consolidation of indictments for trial.

The trial court’s denial of the additional challenges was proper especially where the record fails to show that any objectionable juror was forced upon the defendant after he exhausted his peremptory challenges.

For the foregoing reasons the judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY, P. J. and BURMAN, J., concur.