text:
    Earl W. Gable and Lillian Gable, His Wife, Plaintiffs-Appellees, v. Village of Hinsdale, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 66-156.
    Second District.
    September 20, 1967.
    Rehearing denied November 14, 1967.
    Supplemental opinion November 14, 1967.

      Arthur C. Thorpe, of Klein, Thorpe, Kasson and Jenkins, of Chicago, for appellant.
    Kathje, Woodward and Dyer Associates, of Wheaton, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

In 1948 the plaintiffs acquired two lots in the Village of Hinsdale, in DuPage County, located at the Southwest corner of the intersection of U. S. Route 34, commonly called Ogden Avenue and County Line Road. The property measures 105 feet along Ogden Avenue and 300 feet along County Line Road. At the time of the purchase, the land was zoned for commercial use permitting automobile service stations, among other things. In 1949, the plaintiffs constructed a small building and have used the premises ever since as a drive-in restaurant. In 1957, the Village passed a comprehensive zoning amendment but continued the business zoning on the subject property.

In 1961, Village adopted a new comprehensive zoning amendment which created, for the first time, a classification known as “F” Planned Development District. The purpose of this district as set forth in the ordinance is as follows: “All such planned developments are declared to possess characteristics of such unique and special form with such a large impact on the entire community that such specific development shall be considered individually.” The corporate authorities apparently thought that the plaintiffs’ property was “unique” and therefore classified it under the “F” District. The only uses which appear to be permitted in the so-called “F” District are governmental buildings, professional offices or retail businesses and garden apartments.

Subsequently, the plaintiffs entered into an option to sell the premises to an oil company for $100,000, contingent upon a rezoning, permitting the erection of an automobile service station. The plaintiffs applied for a rezoning of the north 150 feet of the premises but their request was denied. This suit followed. The trial court found the ordinance of the Village arbitrary and unreasonable in its application to the subject property and authorized the plaintiffs to construct and maintain the automobile service station in accordance with the exhibits admitted in the trial. The Village did not file a timely appeal but we have granted the Petition for Leave To Appeal so that the case may be considered upon its merits. Our decision to allow this Petition is limited to this case and we will consider such future Petitions in other cases on their individual merits.

The Village brings the case to this court raising five points: (1) That the plaintiffs failed to establish that the present zoning depreciated the subject property; (2) That plaintiffs failed to show any effort to sell the premises; (3) The existence of nonconforming uses in the neighborhood does not justify a setting aside of an existing zoning classification; (4) A zoning ordinance is presumed valid; and (5) The trial court should have considered the zoning plan of the Village for the area.

Before considering the theories of the Village, it is well to have a picture of the area in mind.

Ogden Avenue is a four-lane heavily traveled highway carrying traffic to and from the city of Chicago. A short distance East of the subject property, Ogden Avenue crosses the Tri-State Toll Highway which is part of the Interstate Highway System. At that intersection there exists a four-way interchange permitting traffic to enter and leave in all directions. East of the subject property, on the other side of County Line Road, the land is in the unincorporated area of Cook County and zoned for general business use. That property is improved with a large restaurant known as “The Cypress.” North of the subject property, across Ogden Avenue, is another large restaurant called “The Spinning Wheel.” Both restaurants have large parking facilities and serve alcoholic beverages. West of the subject property is a pharmaceutical office selling veterinary supplies. The rear of that property is used for a parking lot. South of the subject property is a two-story residence owned by the owner of the Cypress restaurant and temporarily used to house his employees. Along Ogden Avenue, west of the subject property, is a realty office, an architectural office, a construction firm, a laundromat, an office building and an automobile agency containing a repair shop and used car lot as well as an automobile showroom. The rear of all of these properties are used for the storage and parking of automobiles and trucks. In the next block to the west is located the General Motors Training Center, running some 400 feet along Ogden Avenue and the property immediately next to that contains another automobile dealership.

In July of 1961, the Village granted a variation to General Motors permitting parking on a part of their premises which was zoned for single-family residences. Thereafter, in September, 1965, the Village granted another variation to the General Motors Corporation, reducing the setbacks for the Training Center. Subsequently, the Village granted another variation permitting access to the rear of one of the properties occupied by an automobile agency. All of the experts who testified in the case agreed that the effect of these variations was to downgrade the area and yet, as before noted, all of the variations were granted.

We come now to the defendant’s contentions. First, they contend that there is no proof that the present zoning depreciates the property. While there was some conflict between the witnesses on this subject, the plaintiffs’ witnesses testified that the property would be worth $100,000 if it could be used for an automobile service station and that it was worth $50,000 as presently zoned. Defendant’s witnesses, on the other hand, testified that the property was worth $100,000 as presently zoned.

We are cognizant of the rule that the trial court had the witnesses before him and was in a better position to judge their credibility. Therefore his decision should not be disturbed unless manifestly against the weight of the evidence, Bauske v. City of Des Plaines, 13 Ill2d 169, 181, 148 NE2d 584 (1957). However, another rule appears to us to be more pertinent. The true inquiry in this regard is whether or not the depreciation of property is justified by the public welfare. See, Dixon v. County of Kane, 77 Ill App2d 338, 341, 222 NE2d 354 (1966). In this case we can see no basis in the public welfare for sustaining the present zoning. Merely because the corporate authorities stamped the area as “unique” does not make it so. To us it appears that the area was originally contemplated and zoned for business use and that it has developed for those purposes. In establishing a comprehensive amendment to a zoning ordinance the corporate authorities may not close their eyes to existing uses. The fact that this is done in a program to “upgrade the area” adds no vigor to the argument.

Having in mind that the use and zoning of surrounding property is one of the chief factors to be considered in a zoning case, Krom v. City of Elmhurst, 8 Ill2d 104, 107, 133 NE2d 1 (1956), it seems to us that there is no justification for the present zoning. The trial court found that there was a depreciation in value and we are not inclined to disturb its findings. As indicated, the fact of the depreciation is not important, but the fact that that depreciation cannot be justified upon the public health, safety and welfare is a fatal defect.

Defendant’s next point is that the plaintiff failed to prove that he had made any effort to sell the subject property as presently zoned. The court does not consider this to be a factor of great importance in a zoning case. The uses permitted in the so-called “F” Planned Development District are so few as to reduce the number of potential buyers to a minimum. Most of the surrounding property is devoted to uses which are not permitted in the “F” District and we could hardly make it a requirement that an owner exhaust all possibilities of sale under these circumstances.

The defendant’s next argument is that the existing zoning should not be set aside because of nonconforming uses. Nonconforming uses are a fact of life and we must all live with them. Many municipalities restrict their expansion and attempt to gradually eliminate them. However, the zoning ordinance of the Village, in this case, provides “Uses existing at the date of adoption of this Ordinance which constitute exceptions to this section of the ‘F’ District regulations may be altered or enlarged subject to the other limitations, i. e., parking, loading, setback, intensity, side yard, heights, etc., as set forth herein.” So it can be seen that the Village not only acknowledges nonconforming uses but makes no effort at their control or elimination.

The existence of nonconforming uses does not automatically invalidate a zoning ordinance. They are land uses which have to be considered in each case in determining whether or not the zoning in question conforms with the use and zoning of surrounding properties, Kupsik v. City of Chicago, 25 Ill2d 595, 600, 185 NE2d 858 (1962). There is some dispute as to how many of the uses in the area are nonconforming, but it appears that by any standard more than half of the frontage is devoted to nonconforming uses.

In addition, the Village has granted variations permitting the extension of nonconforming uses upon property zoned for residential purposes. The record shows no conduct on the part of the Village tending to restrict nonconforming uses. Their ordinance permits extensions and they have granted variations which authorize further extensions. Nonconforming uses exist and they appear to us to characterize the area. The trial judge was not in error in so holding.

The defendants next point is that the zoning ordinance is presumed valid. Any official act of the corporate authorities is presumed valid, but this presumption may be rebutted by a showing that the act is not grounded in the public health, safety and welfare.

In the early case of City of Aurora v. Burns, 319 Ill 84, 94, 149 NE 784 (1925), the Supreme Court recognized that the corporate authorities of each municipality had the right to establish reasonable restraints upon the right to use private property. The power to establish restraints carries with it the obligation to ground those restraints in the public health, safety and welfare, Loves Park v. Woodward Governor Co., 14 Ill2d 623, 625, 153 NE2d 560 (1958). As we have previously found, there is no basis in the public health, safety and welfare for the present restraint. As a result, there is no right to establish the restraint.

Finally, the defendant argues that the trial court should have considered the so-called zoning plan for Hinsdale. Obviously, a zoning plan is a factor to be considered, but one cannot consider those things which assist him and close his eyes to those which do not. In establishing a zoning plan the corporate authorities have reasonable powers to affect an upgrading. On the other hand, they cannot ignore existing uses. As previously noted, the corporate authorities in this case not only acknowledged existing uses but provided for their expansion. In particular cases they granted variations which authorize the expansion of nonconforming uses in the residential areas. The mere statement by the corporate authorities that they have a “zoning plan” and that they are attempting to “upgrade” an area does not make that a fact. The conduct of the corporate authorities in this case indicates the contrary. Having in mind all of the factors which apply in a rezoning case we conclude that the trial court was correct.

While the relief granted was not questioned by any of the parties, we deem it important to say a word on that subject. The trial court did not rezone the property and it did not authorize any use other than the use proposed by the plaintiff. The court limited its decision and permitted only the construction of an automobile service station based upon a plot plan and front elevation drawings shown in the record. This decision is correct and in line with our recent decision in the case of Fiore v. City of Highland Park, 76 Ill App2d 62, 75-76, 221 NE2d 323 (1966).

Judgment affirmed.

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

On Petition for Rehearing

On rehearing it has been pointed out to us that there are numerous permitted uses in the so-called “F” District. Among them some thirty-nine are retail business uses. These permitted uses, however, do not include an automobile service station as proposed by the plaintiff, nor do they include automobile sales or repairs. This fact was not pointed out to us in the briefs but the Village now contends that the existence of these permitted uses make most of the existing uses in the neighborhood conforming. We have carefully reexamined the record and find that the conclusion of the Village is not correct.

The Cypress and Spinning Wheel Restaurants are nonconforming because they both serve alcoholic beverages.

There are six land uses in the same block as the subject property. The first has a pharmaceutical office for veterinary supplies and the rear of the property is used for the storage of automobiles. Neither use conforms with the “F” zone. The second lot is used for the storage of automobiles and does not conform. The front of the third lot is used as an architectural office and does conform. However, the back of that same property contains an automobile paint and body shop which does not conform. The next property is devoted to automobile sales and repairs and does not conform. The fifth lot has a laundromat which is a conforming use, but the rear portion of that lot is used for the storage of automobiles, a nonconforming use. The sixth lot has an office building which apparently conforms, but again the back part of that property is used for the storage of automobiles, which is a nonconforming use. It appears that the rear of all of the properties above described is devoted to the storage of automobiles in connection with a Chevrolet agency on the block. This is not a conforming use of the property. The next block is used by the General Motors Training Center and that is not a conforming use.

Of all the uses described only three are conforming and even in those instances a portion of the property is devoted to a nonconforming use, so that upon reexamination it appears clear to us that the large majority of the land uses in the immediate area are nonconforming.

The only other point made by the Village on rehearing is that the Village did not grant a variation to permit access to the rear of the property occupied by an automobile agency. This appears to be correct. Instead of granting a variation the Village merely granted a permit authorizing access. The court is unable to see any difference as a practical matter because by whatever name, the fact remains that granting a permit was an affirmative act of the Village contrary to its position that the area was “unique.”

The new matters brought to our attention in the Petition For Rehearing reinforce our view that the zoning of the subject property is improper and that the relief prayed should be granted. We therefore adhere to our original decision, and hold that the petition for rehearing should be denied.

Petition for rehearing denied.

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


source: Caselaw Access Project

author: MR. JUSTICE BAUER

license: Public Domain

text:
    In the Matter of the Application of the County Treasurer and Ex Officio County Collector of Lake County, Illinois, for Judgment and Order of Sale Against Real Estate Returned Delinquent for the Nonpayment of General Taxes and Special Assessments for the Year of 1960 and Prior Years, Plaintiff-Appellee, v. The First National Bank of Lake Forest as Trustee, Defendant-Appellant.
    Gen. No. 67-7.
    Second District.
    October 23, 1967.

      Mark J. Drobnick, of Waukegan, for appellant.
    Hall, Meyer, Fisher, Holmberg, Snook and May, of Waukegan, and David J. Zimring, of Chicago, for appellee.
   MR. JUSTICE BAUER

delivered the opinion of the court.

This is an appeal from certain orders of the Circuit Court of Lake County setting aside purported redemptions from three tax sales and directing the County Clerk of Lake County to issue tax deeds to the original tax purchaser.

The factual situation is relatively uncomplicated and the appeal encompasses orders on three different parcels of property, all involving the same problems.

The first order covers the West one-half of Lot 3 in Block 6 in South Waukegan; the second order involves Lot 5 in Block 6 in South Waukegan and the third order is concerned with Lot 26 in Block 6 of the same subdivision.

The original tax purchaser purchased the three parcels involved at a tax sale under Section 235a of the Revenue Act on August 7, 1962, and received the certificates of sale. On November 24, 1964, the purchaser filed petitions for the issuance of Tax Deeds. March 15, 1965, was the final day for redemption and on that date a redemption was purportedly made on behalf of Trust #321 of the First National Bank of Lake Forest. On April 1, 1965, the purchaser filed petitions to set aside the redemptions and stated that the First National Bank of Lake Forest Trust #321 was a stranger to title in the various lots and had no redeemable interest. The Bank Trust filed answers to the petition, which answers claimed redeemable interest in the Trust by virtue of a deed from one Joseph J. Drobnick who, the answer alleged, acquired title by cutting the weeds in 1955, and by offering the property for sale, by fencing the property in 1960, and by virtue of a deed from another stranger to title.

The hearings on the original petition for the tax deed were set for March 18, 1965, and, after the purported redemption were first continued until April 1st, and then until May 26,1965. On that date, the court entered orders which vacated the purported redemptions and directed the County Clerk to issue tax deeds to the original tax purchaser. The orders, identical except for the described property and certificate numbers, all contain opening paragraph as follows:

This cause coming on to be heard upon the Petition of S.C.Z. Corp., an Illinois Corporation, due notice having been served on all parties entitled thereto, and the Court having heard the evidence adduces (sic) and being fully advised in the premises.

On June 25th, the Bank filed motions to vacate the orders of May 26th, 1965, on the grounds that the orders were not submitted to counsel for the Bank prior to their execution by the court; that no evidence was in fact adduced by either party prior to the entry of the order and that the answers to the petitions were never struck or dismissed. These motions were denied and this appeal followed.

As a starting point, our concern is whether the purported redemption from the tax sale was made by a person having a redeemable interest in the property involved. For purposes of this inquiry it is unnecessary to go beyond the pleadings. The pleadings were verified and the matters set forth in the petition that were not denied in the answers, together with the affirmative matters contained in the answers clearly demonstrate that the Bank Trust was a stranger to the title of the property.

Although record title is not a prerequisite for redemption, a stranger to the property may not redeem. Monsen, Inc. v. Hasselman, 63 Ill App2d 135, 137, 211 NE2d 127 (1965).

There is one question relative to the title of one of the lots that merits comment. On Lot 26 the Bank asserts a redemptive right predicated upon an unrecorded deed from a grantor who received his interest from persons described as the heirs of a 1915 tax purchaser. The question of the right to redeem based on an unrecorded deed was resolved by our Supreme Court in Weiner v. Jobst, 22 Ill2d 11, 174 NE2d 561 (1961) where the court stated at page 15:

Appellant did not have title to the property in question and could obtain title only through an unrecorded deed. The petition to vacate the order of April 14, 1960, shows that completion of the record chain of title in appellant was too late. (The redemption was vacated.)

This view, of course, eliminates the necessity of determining what, if any, interest was passed by the unrecorded deed in the instant case, although it is by no means clear that the interest passed would have been one that created a right to redeem even if the deed had been recorded.

Since the Bank Trust had no redeemable interest in any of the properties described, the trial court properly voided the purported redemption and ordered the County Clerk to issue the tax deeds to the purchaser at the tax sale.

Next comes the problem of the language of the order which states that “The Court having heard the evidence adduces (sic) and being fully advised in the premises.” To begin with, the language with reference to what the court heard was not necessary to the validity of the order and was therefore, in this situation, mere surplusage. In addition, we will not assume that no evidence was in fact heard, since it is presumed that the facts stated in the judgment order are true, in the absence of contrary evidence. Skaggs v. Junis, 28 Ill2d 199, 201, 190 NE2d 731 (1963). It is also obvious that appellant confuses the term “evidence” with “testimony.” The word evidence, in legal acceptance, includes all the means by which any alleged matter of fact is established or disproved. Testimony is not synonymous with evidence; the latter is a more comprehensive term.

At any rate, the appellant’s claim to color of title as set out in the answers filed, clearly fail to establish such an interest as would create a right to redeem from the tax sale herein.

Lastly, the appellant Bank complains that the orders holding void the redemptions and directing the issuance of the tax deeds were not submitted to counsel for the Bank before being signed by the court. We know of no rule in law or logic that requires the submission of orders of the court to counsel in order to give validity to such orders. No suggestion exists that the order presented differed from the court’s decision and we have been presented with no case or rule requiring approval of counsel to give validity to proper orders of the court.

The decision of the Circuit Court of Lake County is therefore affirmed.

Orders affirmed.

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


author: JUSTICE GOLDENHERSH.

text:
    Jean Mayberry, Plaintiff-Appellant, v. Frank Moser and Frank Moser as Executor of the Estate of Caroline S. Moser, Defendant-Appellee.
    Gen. No. 67-63.
    Fifth District.
    October 24, 1967.
    Theodore Van Winkle, of McLeansboro, for appellant;
    Conger, Elliott & Fechtig, of Carmi (Ivan A. Elliott, Jr., of counsel), for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: JUSTICE ABRAHAMSON.

text:
    Richard J. Martikonis and Belva Staas, Plaintiffs-Appellants, v. City of Rockford, a Municipal Corporation, and H. S. Merz, Superintendent of Water Department, City of Rockford, Illinois, Defendants-Appellees.
    Gen. No. 67-33.
    Second District.
    November 3, 1967.
    Knight, Ingrassia and Schirger, of Rockford, for appellants;
    William E. Collins, Corporation Counsel, of Rockford, for appellees.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE ABRAHAMSON MORAN, J.,

text:
    Vincent Radice, Administrator With Will Annexed of the Estate of Chancey Radice, Deceased, Plaintiff-Appellant, v. Jessie Antonacci, Defendant-Appellee.
    Gen. No. 67-48.
    Second District.
    November 7, 1967.

      Leonard Karlin, of Chicago, for appellant.
    Rafael A. Del Campo, of Chicago, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff-appellant appeals from a judgment order of the Circuit Court of DuPage County entered on September 22, 1966, that dismissed his complaint with prejudice and a subsequent order dated January 20, 1967, that overruled his motion for reconsideration and affirmed the prior order.

The plaintiff is the surviving spouse of Chancey Radice, deceased, and the Administrator of her estate with Will Annexed. His complaint alleged that Chancey Radice had during her lifetime surreptitiously transferred various assets owned by the parties jointly into joint accounts with her sister, Jessie Antonacci. The complaint further charged that Chancey had also executed a will that left all her property to her sisters or their children as part of her general scheme to completely disinherit her husband in violation of the laws of descent and of public policy. Finally, the complaint alleged that the assets were transferred to Jessie Antonacci not as her own property but as trustee to effectuate Chancey’s design to circumvent the law of inheritance and asked the court to impose a constructive trust on those assets for the benefit of the estate.

The plaintiff had previously brought his verified petition for a citation on Jessie Antonacci, as respondent, in the probate proceeding pending before the Probate Division of the Circuit Court of DuPage County pursuant to section 183 of the Probate Act. (Ill Rev Stats, c 3, 1965.) A hearing on that petition was apparently held and, on July 27, 1966, the presiding judge of the Probate Division advised the respective counsel by letter of his “determination” that the plaintiff had no interest in various accounts held by Jessie Antonacci as the surviving joint tenant of Chancey Radice. The complaint to establish the trust was filed after receipt of that letter but apparently prior to the entry of any formal order in the probate proceeding.

The defendant filed a special and limited appearance, in the nature of a motion to strike, in the new suit and demanded a dismissal of the complaint on the grounds that the Probate Division had already considered the matter and rendered its decision. The trial court dismissed the complaint and stated as follows:

“It is my opinion that subsequent to 1964, with the Probate Court being an arm of the Circuit Court, the Judge in the Probate Court being a circuit judge sitting in the Probate Division, his orders are final and binding orders, that the parties have had their day in Court, that his orders are res ad judicata as to the ownership of the properties in question.”

Section 183 of the Probate Act provides as follows:

“Citation.
“Upon the filing of a verified petition therefor, the court shall order a citation to issue for the appearance before it of any person whom the petitioner believes (1) to have concealed, converted, or embezzled or to have in his possession or control any personal property, books of account, papers, or evidence of debt or title to lands which belonged to a person whose estate is being administered in that court or which belongs to his estate or to his executor, administrator, guardian, or conservator or (2) to have information or knowledge withheld by the respondent from the executor, administrator, guardian, or conservator and needed by the executor, administrator, guardian, or conservator for the recovery of any property by suit or otherwise. The citation shall be served not less than 10 days before the return day designated therein and shall be served and returned in the manner provided for summons in civil cases.”

The court could, even prior to the Judicial Amendment of 1964, “determine all questions of title, claims of adverse title and the right of property . . pursuant to section 185 (Ill Rev Stats, c 3, § 185, 1965). In re Estate of Baumgarth, 23 Ill App2d 319, 163 NE2d 201 (1959); Schwaan v. Schwaan, 320 Ill App 287, 50 NE2d 861 (1943). Prior to the amendment, a probate court had no chancery jurisdiction and was therefore limited to the determination of legal title in a citation proceeding. In re Estate of Peters, 34 Ill2d 536, 540, 217 NE2d 3; In re Hauser’s Estate, 40 Ill App2d 150, 189 NE2d 370.

The court could not however, adjudicate property rights unless its jurisdiction was properly invoked. Schwaan v. Schwaan, ibid. A petition brought under subsection (2) of section 183, as quoted above, that sought only “information or knowledge withheld by the respondent . . .” was not an adversary proceeding and did not present a real issue to be adjudicated. In re Estate of Curley, 43 Ill App2d 389, 392, 193 NE2d 607; Keshner v. Keshner, 376 Ill 354, 359, 33 NE2d 877.

Since the court in the citation proceeding would not have the power to make a final determination of rights of property if the petition was restricted to the discovery of information, there would be no reason why a separate action could not be instituted in the circuit court. In the case of In re Estate of Curley, ibid., the court at page 393, held:

“In our opinion, it would do violence to the intended purpose of the discovery citation procedures of section 183 of the Probate Act to hold that the institution of such proceedings alone, unaccompanied by any request for an adjudication, has the effect of confining the potential claimant to an adjudication by the Probate Court to the exclusion of all other courts of concurrent jurisdiction. Accordingly, we hold that the discovery proceedings in the Probate Court did not give that court exclusive jurisdiction to try the issues subsequently raised by the parties.”

The respondent, In re Conservatorship of Baker, 79 Ill App2d 234, 223 NE2d 744 (1967) appealed from an order of the trial court, entered at the conclusion of a citation proceeding, that entered judgment against him in the amount of $30,156.33. The Appellate Court reversed the trial court for the reason that it did not have jurisdiction to adjudicate rights of property since the verified petition under section 183 was directed only to the discovery of information or knowledge withheld by the respondent. The court, on page 240, stated:

“We have found no cases wherein a citation limited to discovery, has been developed into a determination of claims to property. In fact, the authorities provide that where the petition is for discovery only, there can be no adjudication of title or of claim, for there are no issues on which to enter judgment . . .”

It is true that, since the establishment of a single circuit court in 1964, the probate division of the circuit court would have chancery jurisdiction and could entertain a suit for a constructive trust. However, it is still necessary that jurisdiction of the court to adjudicate rights of property under a Section 183 petition be properly invoked by the issues raised in the pleadings. In re Conservatorship of Baker, ibid.; In re Estate of Carlin, 5 Ill App2d 241, 125 NE2d 649; In re Estate of Garrett, 81 Ill App2d 141, 149, 224 NE2d 655.

There is nothing in the record before us to indicate that the issue of ownership was properly before the court in the citation proceeding for discovery and we can only conclude that the dismissal of the adversary suit to impose a constructive trust in the circuit court was improper and must be reversed and remanded for further proceedings.

Reversed and remanded.

DAVIS, P. J., concurs.

MORAN, J.,

dissenting:

I am reluctant to concur in the above opinion because the appellant failed to comply with Rule 342 of the Supreme Court. I believe the litigants in a court of review are entitled to a considered opinion based upon all relevant materials contained in the record on appeal as disclosed by the excerpts of record or abstracts.

It should not be the duty of each reviewing judge to search the single record to obtain this result. Therefore, I conclude that the appeal in this case should be dismissed.


author: EBERSPACHER, J.

text:
    The People of the State of Illinois on the Relation of Wilma Highsmith, Plaintiff-Appellant, v. County of Jefferson, Leslie R. Sheldon, et al., Defendants-Appellees.
    Gen. No. 66-118.
    Fifth District.
    September 2, 1967.

      Hanagan & Dousman, of Mt. Vernon, for appellant.
    Frank H. Walker, of Mt. Vernon, for appellees.
   EBERSPACHER, J.

This is an appeal from an order of the Circuit Court of Jefferson County, dismissing, pursuant to defendants’ motion, a petition for a writ of mandamus.

Appellant had obtained a judgment in the United States District Court for the Eastern District of Illinois on March 22, 1963, which judgment was not appealed from and became final, and defendants concede that it is not subject to collateral attack in these proceedings.

Appellant then filed her verified petition for writ of mandamus in the Circuit Court of Jefferson County, alleging her monetary judgment in the District Court, its finality, and sought compliance by the County and County Board with the provisions of chapter 34, section 604, Ill Rev Stats 1965, for the payment of the judgment, interest and costs. Defendants then filed their motion to dismiss and an amended motion to dismiss in which they incorporated a copy of the Finding of Fact and Conclusions of Law of the U. S. District Judge entered in the original tort action and the opinion of the Circuit Court of Appeals in Highsmith v. Aetna Casualty & Surety Co., 339 F2d 985. Nothing was offered by way of evidence or affidavit to show that that case, in which these defendants were not parties, had any connection or bearing with the matter at hand. Defendants’ motions were not verified. Appellant then filed her verified motion for summary judgment. Defendants responded by motion to strike the motion for summary judgment, and an alternate motion to dismiss appellant’s complaint, neither of which was verified, and no affidavits were attached thereto. Appellant then filed a verified motion to strike each of defendants’ motions, alleging, verification of the complaint, that verification had not been excused by the court, and the failure of defendants to verify their pleadings; and renewed her motion for summary judgment. At the same time appellant filed a verified alternative motion to strike defendants’ motion directed against the motion for summary judgment.

Upon all motions being heard, the trial court sustained defendants’ alternate motion to dismiss, and dismissed the petition for writ of mandamus, “after considering the pleadings and arguments.” The sustained alternative motion to dismiss alleged that “it appears from the pleadings that the County of Jefferson was not liable in tort to Wilma Highsmith on the alleged cause of action,” that the nature of the original tort action was not changed by recovering a judgment on it and that the trial court “is not precluded from ascertaining whether the claim is really one of such nature that the court is authorized to enforce it by mandamus”; and that the original tort action did not constitute a corporate debt under article 9, section 9 of the Illinois Constitution, and that the District Court judgment had the same standing as the original cause of action. At the most these were only legal conclusions of the pleader; and plaintiff’s verified petition alleged nothing from which it could be assumed or inferred that plaintiff’s judgment in the U. S. District Court was based on a tort claim.

Here appellant contends that since their petition was verified, appellees’ unverified motions (each of them) should have been stricken. Section 35(1) of the Civil Practice Act (c 110, § 35.1, Ill Rev Stats 1965) provides :

“. . . If any pleading is verified, every subsequent pleading must also be verified, unless the verification is excused by the court.”

The requisites of affidavits, in opposition to a motion for summary judgment, are set forth in Supreme Court Rule 15, (c 110, § 101.15, Ill Rev Stats 1965), and although section 57 of the Civil Practice Act (c 110, § 57, Ill Rev Stats 1965) permits either a plaintiff or defendant to move for a summary judgment, with or without supporting affidavits, we know of no authority for opposing a verified motion for summary judgment on a verified complaint, by any pleading that is neither verified nor supported by affidavits, and cannot condone such practice. Affidavits opposing the entry of summary judgment, which were based on information and belief, and which stated no facts but contained conclusions have been held inadequate, and an affidavit of merits which denied only in general terms, has been held insufficient. ILP, Judgments, § 75. Here appellees filed no affidavits, alleged no facts, but only the conclusions of the pleaders as to the law. Appellees have not, previous to their argument in this court, pleaded any factual defense to the petition nor to the motion for summary judgment. They have made no proper record of any defense to either the petition or the motion for summary judgment. Each of appellees’ motions admitted each and every well pleaded allegation of plaintiff’s petition.

A motion for summary judgment is the procedural equivalent of a trial. The motion for summary judgment searches the record, and, where made by plaintiff, it admits every material averment in the answer or affidavit of defense and reopens the question of the sufficiency of the complaint. Gleiva v. Washington Polish Loan & Building Ass’n, 310 Ill App 465, 34 NE2d 465. However, only such facts as are well pleaded as a defense or counterclaim are to be taken as admitted, and not defendants’ conclusions therefrom. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272. Summary judgment should be granted when no genuine issue as to any material fact is presented. Supreme Court Rule 15, Bryant v. Metropolitan Motorists Ass’n, 23 Ill App2d 261, 161 NE2d 879; Allen v. Meyer, 14 Ill2d 284, 152 NE2d 576; and a mere denial is not sufficient to raise a triable issue as against uncontroverted evidentiary matter under Section 57 (3) of the Civil Practice Act.

Appellees’ motions purported to call upon the court to decide the law applicable to a particular fact situation, without properly presenting any facts to contradict those alleged in plaintiff’s verified petition. The alternate motion to dismiss, which the court granted, purported to raise questions of law only, but the question of applicable law could only be determined and applied to a particular fact situation, and the only fact situation that was properly before the court consisted of those facts alleged in plaintiff’s verified petition. Although appellant, both in the trial court and in this court, argued the insufficiency of each of the appellees’ motions, appellees, both below and here, have ignored this argument, making no argument or brief on any of the pleading questions. Their alternate motion to dismiss purports to be in the nature of a motion filed under section 48 of the Civil Practice Act, but that section required the support of the motion by affidavits “If the grounds do not appear on the face of the pleading attacked.” Here the pleading attacked is the verified petition, which states a good cause of action; and the opposite party (defendants here) have presented no affidavits or other proof denying the facts alleged or establishing facts alleviating any grounds of defect, so that the court could hear and determine the factual situation, as is provided for in (3) of section 48. (C 110, § 48, Ill Rev Stats 1965.)

Throughout the years and centuries of common and code law, there have evolved certain rules in the conduct of litigation. These rules, if obeyed, are designed to result in the orderly administration of justice. If, contrary to the Civil Practice Act and Supreme Court Rules, parties are allowed to inject unverified matters, not included in the abstract, without the filing of a supplemental abstract, and assume facts which have not been properly presented, and if they are allowed to controvert verified pleadings by their conclusions and the filing of unverified allegations, there would be no point in the courts having any rules.

It has been suggested, since rights of the public and public funds are here involved, that this cause should not be determined on the technicalities of the Civil Practice Act; defendants have not seen fit, in their brief, to answer any of those points. Instead, they seek affirmance of the trial court’s dismissal of the complaint on the merits, although they have failed to properly present a factual situation other than that presented by plaintiff’s verified complaint, either in the trial court or in this court. They here contend that the plaintiff’s judgment in the U. S. District Court was unenforceable because on the date on which plaintiff’s claim arose, December 24, 1958, the county had governmental immunity, that date being previous to the abolishment of the doctrine of governmental immunity by the decision in Molitor v. Kaneland Community Unit School Dist. No. 302, 18 Ill2d 11, 163 NE2d 89. They completely overlook the fact that the District Court judgment was based on the stipulated fact that the Defendant County of Jefferson was insured at the time of plaintiff’s injury, and entered such a finding of fact, and that the judgment of the District Court entered on such finding of fact and conclusions of law was never appealed from; although the defendant county filed a post-trial motion in that court which defendant made a part of this record complaining of the inadequacy of the proof of insurance coverage in that case, which was denied for failure to comply with rules of that court, on October 18, 1963. In that motion this defendant conceded that judgment on the tort claim could properly be entered where there was insurance coverage. In the absence of appeal that judgment became final and entitled to full faith and credit. It was such a judgment as was authorized by law, and it was such a judgment as is embraced by our statute for the payment of judgments against the county. That statute makes no exception for judgments of Federal Courts, nor does it except final judgments which may have been entered as a result of failure to comply with the rules, or in which a stipulation contained a mistake of fact, or in which there was inadequate proof of insurance; nor does it except those judgments on which there has been a failure by the judgment creditor to collect from the insurer in a separate action in which the county was not a party. Apparently the County is here urging that C. C. A. decision (supra), is proof that the District Court erred in the original tort case. But, even assuming that had the facts been properly presented in the tort action they would not have sustained plaintiff’s judgment; her judgment became final, and judgments unsupported by the facts are not excepted from section 604. The reason is so obvious that it requires no comment.

Our courts have held that knowledge of the existence of a judgment imposes a duty and obligation on a County to comply with section 604, and imposes a positive duty to include among the purposes for which taxes are to be raised the payment of any outstanding judgments against the county for the payment of which no other provisions have been made. People v. Payne, 296 Ill 430, 129 NE 852; Halliday v. Pulaski County Board of County Com’rs, 203 Ill App 178. In the case of Supervisors of Coles County v. People, 226 Ill 576, 80 NE 1066, our Supreme Court held that mandamus is the proper remedy to compel the county board to comply with section 604, that the statute created a positive duty upon the board of supervisors to include among the purposes for which taxes are to be raised the payment of any outstanding judgments against the county for the payment of which no other provisions have been made, and that the statute is not unconstitutional as depriving the county of sufficient means to meet its ordinary running expenses or as impairing obligations of contract. In that case they point out that the statute proceeds upon the supposition that every county will be actuated by an honest purpose to pay its legal obligations, especially those which have been reduced to judgment and is intended to aid them in accomplishment of that purpose.

Defendants contend that the levy of taxes for the payment of this judgment would require the public officials to violate article 9, section 9 of our Constitution since they contend this is not a debt for a corporate purpose, and that therefore mandamus must be denied. They cite as authority People v. Board of Education, 386 Ill 522, 54 NE2d 508 and Leviton v. Board of Education of Chicago, 385 Ill 599, 53 NE2d 596. We agree that it is the law in Illinois, as expressed in those cases that mandamus will not lie to compel a positive duty fixed by law, if to do so would require a violation of the Constitution. But it is to be noted that both these cases involved a Board of Education which was a part of the City of Chicago, and that section 9 of article 9 specifically enumerates cities, towns and villages, and that enumeration has been held to be an exclusion of all other municipalities with reference to powers of special taxation. There is no question but that all taxation must be for corporate purposes but our Supreme Court has held that the levy of taxes to pay judgments against a county is a tax for county purposes, within the limits of the provisions of section 604 of the Counties Act (c 34, § 604) which limits the amount counties can levy for county purposes in any one year. People v. B. & O. S. W. R. Co., 350 Ill 217, 183 NE 22; Woodmen of World Life Ins. Society v. Cook County, 322 Ill App 112, 53 NE2d 994. Our Supreme Court has likewise pointed out that the entire authority of a county to levy taxes is derived from legislative grant. People ex rel. McClusky v. Alton & E. R. Co., 359 Ill 440, 194 NE 573, and that a county board has no inherent power to levy taxes, and the Constitution does not authorize any tax by a county board. People v. Wabash Ry. Co., 286 Ill 15, 121 NE 218. We know of no constitutional provision which questions a county’s duty to tax under the provisions of section 604, providing taxes to pay judgments; section 9 of article 9 does not.

The situation in both Chicago Board of Education cases is clearly distinguishable from the case at hand. In those cases there was no statute comparable to section 604 of the Counties Act which had been declared by the Supreme Court to be a constitutional act of the Legislature; and there were no cases such as People v. B. & O., supra, and Woodmen of World Life Ins. Society, supra, holding that the purpose for which the levy was to be made was a corporate purpose. In those cases the bonds on which the judgments were taken were void; they were issued on the basis of unpaid tax anticipation warrants, and a tax anticipation warrant is not a debt — it is only a pledge of certain tax money when collected. In those cases to compel payment from other tax proceeds would require a violation of the constitution; this is made particularly clear in People v. Board of Education, 386 Ill at pages 530 and 531 when the court said:

“We have repeatedly held a tax anticipation warrant does not create a debt; that the legislature is without power to authorize a city to issue bonds to pay warrants where the taxes levied were insufficient to pay them; (Berman v. Board of Education, 360 Ill 535;) that the legislature is without authority to authorize a municipality to issue bonds to pay a judgment which is based upon the failure to pay an anticipation warrant; (Leviton v. Board of Education, 374 Ill 594; Leviton v. Board of Education, 385 Ill 599;) that a municipality may not levy taxes in a succeeding year to pay the interest on anticipation warrant accruing in a different year; (People ex rel. Gill v. Schiek, 368 Ill 352; People ex rel. Lindheimer v. Axelrod, 373 Ill 446;) all because to do so would violate section 9 of article IX of the constitution.”

In those cases the court pointed out that the judgments which petitioners sought to mandamus the Board of Education to pay, showed upon their face that to compel payment would require the board to violate the constitution. In the present case there is nothing upon the face of Wilma Highsmith’s judgment to show that to compel its payment pursuant to section 604 of the Counties Act, would force the county officials to violate the constitution or any statute. In People v. Board of Education the court spelled out the distinction at pp 533-534:

“(a) If there is authority of law for the creation of the debt, whether it takes the form of bonds, claims, or otherwise, and may be paid from a levy of taxes, mandamus may be employed because, there being authority in law to pay such class of claims, a judgment is deemed conclusive of the merits thereof; thus a municipal officer is not compelled to violate the law in doing the things proper to bring about payment.
“ (b) If there is no authority for the creation of the debt, or if a levy of taxes for its payment would be in direct violation of a positive statute or the constitution, and such fact appears as a part of plaintiff’s case when seeking mandamus, the court will not issue the writ to compel a violation of the constitution, because the judgment gives him no new rights with respect to its payment.” (Citing cases.)

Here, (a) plaintiff’s claim in negligence allegedly covered by insurance, and so found to be, resulted in a judgment by a court having jurisdiction; that judgment is of such class of claims as there was authority to pay from taxes under section 604 of the Counties Act and that judgment is deemed conclusive of its own merits, (b) There is authority for a competent court to enter a judgment against a governmental body for negligence when that court found the tortious acts of the governmental body to be covered by insurance, this defendant has admitted that to be the law, and the levy of taxes for payment of such a judgment is not in violation of any statute or the Constitution. No such fact as would indicate that the U. S. District Court lacked authority to enter the judgment or that the levy of a tax to pay the judgment was prohibited by either a statute or the Constitution appear in any part of plaintiff’s case.

Defendant also contends that this case is quite similar to the facts in the case of Brunson v. Caskie, 127 Ga 501, 56 SE 621, also cited in People v. Board of Education, supra. The distinction between that case is disclosed by the discussion of it in the Illinois case. There the county was not liable for the injury (here the county was determined to be liable because of insurance), and in Georgia a county was not permitted by the constitution to levy a tax unauthorized by the constitution. (In Illinois there is no constitutional authority for a county to levy a tax. People v. Wabash Ry. Co., supra.) The purposes for which the Georgia Legislature can empower a county to tax are severely restricted, in fact enumerated, by the Georgia Constitution.

We therefore conclude that the judgment on which plaintiff sought mandamus to enforce is conclusive of its own merits, that to grant the writ will not compel the county officials to violate any statute or provision of the Constitution of this State. Defendant has failed to either allege or prove affirmatively any facts which would indicate that it can controvert the matters set up in the verified petition for writ of mandamus or the motion for summary judgment. It has only argued its theory on an assumed set of facts, which if properly presented and proved would not be a defense.

We, therefore, reverse the judgment of the Circuit Court of Jefferson County, remand the cause, and direct that Court to enter the Writ of Mandamus.

Reversed and remanded with directions.

MORAN and GOLDENHERSH, JJ., concur.

       Highsmith v. Trotter, et al., Civil Number 4713 in the District Court of the United States, Eastern Dist of Illinois. Judgment for Wilma Highsmith against County of Jefferson for $13,042.05 plus costs entered on March 22,1963.

       Chapter 34, section 604, Ill Rev Stats which provides “Execution shall not, in any case, issue against the lands or other property of a county; but when judgment is rendered against a county, the county board shall direct an order to be drawn on the county treasurer for the amount of the judgment and costs, which orders shall be paid as other county debts.
      A. Whenever the county board in any county shall in any year determine the amount of all taxes to be raised for county purposes, such board shall include among the purposes for which such taxes are to be raised the payment of any outstanding judgment or judgments against such county for the payment of which no other provisions have been made.
      B. The county board may provide for the payment of any such judgment or judgments and the interest thereon in equal annual installments, not exceeding however ten (10) in number, and may include one of such installments in the amount of taxes to be raised for county purposes in each year, but the aggregate amount of all taxes to be raised for county purposes shall not in any year exceed the rate of seventy-five (75) cents on the one hundred dollars ($100) valuation of property unless authorized by a vote of the people of the county. 1874, March 31, RS 1874, p 302 § 34; 1905, May 13, Laws 1905, p 134, § 1.

       Defendants attached to their unverified motion to dismiss, a copy of the opinion of the Circuit Court of Appeals in Highsmith v. Aetna Casualty & Surety Co., 339 F2d 985, in which this plaintiff, in a separate action, was denied recovery against the insurer. This case did not involve an appeal from her tort action against the county, in fact the county was not a party to the action which was determined by the Circuit Court of Appeals.


author: CRAVEN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Nelson, Defendant-Appellant.
    Gen. No. 10,868.
    Fourth District.
    September 28, 1967.
    Rehearing denied December 4, 1967.

      J. Waldo Ackerman, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Richard A. Hollis, First Assistant State’s Attorney, of counsel), for appellee.
   CRAVEN, P. J.

The defendant was tried by a jury for the offense of armed robbery. Upon a finding of guilty, he was sentenced for a term of not less than four nor more than ten years in the Illinois State Penitentiary. This appeal is to review the trial and the sentence.

It is here urged that the sentence is excessive, that error intervened in the trial of the case when the circuit court refused to discharge the public defender as requested by the defendant and to permit the defendant to represent himself. Further, it is urged that the jury deliberations were tainted with error since the jury considered matters not of record in arriving at its verdict. The errors urged will be considered in reverse order.

The trial of this case was concluded on May 26, 1965, and the jury returned its verdict on that date. A motion for a new trial was filed on June 3, 1965, and arguments thereon were heard July 1, 1965. The public defender, as counsel for the defendant, filed an affidavit on July 1, 1965, and in this affidavit stated that on the day the jury returned its verdict one of the jurors called him requesting information regarding the interpretation of the term “dangerous weapon” and in the course of that telephone conversation the unidentified juror made further observations concerning the jury deliberations. This juror related that one of the jurors stated he was a deputy sheriff and that this same juror stated that he had read about the defendant, that he was no good, and that the defendant was charged with a narcotic violation, and that anyone who had anything to do with narcotics belonged in jail. Other observations related to whether or not the jury intended to obey the instructions given in this case.

The material set forth in this affidavit raises grave questions as to this trial. The matter, however, was not urged in the trial court either at the time of the occurrence, at the time of the filing of the post-trial motion or at any time. The issue of jury misconduct must initially be passed upon by the trial court. People v. Phelps, 388 Ill 618, 58 NE2d 615 (1945). Having failed to urge this question in the trial court either at the time of the alleged misconduct or in the motion for a new trial, the issue is waived by the defendant. People v. Irwin, 32 Ill2d 441, 207 NE2d 76 (1965); People v. Fleming, 54 Ill App2d 457, 203 NE2d 716 (1st Dist 1965).

It is next urged that the defendant was entitled to represent himself and the refusal of the trial court to discharge the public defender at his request was error. The authority for this proposition cited to us is the general rule contained in 23 CJS, Criminal Law, § 979(4). The record in this case indicated that as the trial was well in progress the public defender advised the court that the defendant wished to release the public defender of the duty of representing him. Inquiry by the court of the defendant confirmed the request. The court denied the defendant’s request to remove his attorney and ordered that the trial proceed. The attorney thereafter indicated that he was proceeding not at the desire or request of the defendant but at the direction of the court. The cause continued thereafter with the public defender representing the defendant and fully participating in the proceedings. The motion for a new trial did urge that the court committed error in refusing to allow the defendant to dismiss his counsel and represent himself.

It is, of course, well-settled that an accused has the right to have counsel act for him or has the right to act for himself. He must elect between these alternatives but it does not follow that a defendant in a criminal proceeding may attempt to exercise the right to counsel or the right of self-representation to thwart the administration of justice. See People v. Ephraim, 411 Ill 118,103 NE 2d 363 (1952). As stated in People v. Bright, 78 Ill App2d 2, 223 NE2d 215, 220 (1st Dist 1966):

“It has been held that the right of a criminal defendant to represent himself also derives from the Federal Constitution, and that the right of a defendant in a criminal case to act as his own lawyer is unqualified, if invoked prior to the start of the trial (United States ex rel. Maldonado v. Denno, 348 F2d 12, 15 (2nd Cir, 1965)). Once the trial begins, however, a defendant no longer has an unqualified right to discharge his attorney and represent himself. United States ex rel. Robinson v. Fay, 348 F2d 705, 707 (2nd Cir, 1965); United States v. Bentvena, 319 F2d 916, 938 (2nd Cir, 1963), cert den, Ormento v. United States, 375 US 940, 84 S Ct 345, 11 L Ed2d 271; United States ex rel. Hyde v. McMann, 2nd Cir, 263 F2d 940, in which the court stated at page 943:
“ ‘. . . The right to discharge counsel after the trial has begun is a qualified one and to support a reversal of a conviction because the trial judge denied a motion to discharge counsel there must be a showing that defendant was prejudiced by the denial.’ ”

In this case, we find no indication whatsoever that the defendant was prejudiced when the court, as a matter of discretion, denied the motion to discharge the public defender and allow the defendant to proceed by representing himself.

Finally, it is contended that the sentence is excessive. The defendant, in his brief, makes the assertion of the excessiveness of sentence but does not state in what respect he deems the sentence to be unwarranted. The brief asserts that there was no hearing in aggravation and mitigation and suggests that under the authority of People v. Harden, 78 Ill App2d 431, 222 NE2d 693 (4th Dist 1967), the sentence was imposed without adequate information and therefore not such as can be sustained on appeal.

The People assert that a hearing in mitigation and aggravation was conducted and further suggest that the sentence is within the limits prescribed by the legislature, and not a substantial departure from the fundamental law, and therefore apparently not deemed excesgive. First, it begs the question to suggest that a sentence that is within the limits prescribed by law is ipso facto not subject to reduction on review. The grant of authority to the appellate courts and the Supreme Court to reduce the punishment imposed by the trial court is, of course, relatively new. This authority clearly is not limited to those instances where the sentence imposed exceeds that authorized by law, for to so hold would be to judicially repeal the grant of authority by the legislation.

Reviewing courts have been admonished to apply the new grant of authority with considerable caution and circumspection, the assigned reason being that the trial judge ordinarily has superior opportunity by reason of hearing the testimony in the trial and the information given in aggravation and mitigation to make a sound determination concerning the sentence that is to be imposed. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965).

In this case, the hearing in aggravation is, at best, minimal. A deputy sheriff testified that while an inmate of the county jail the defendant was disrespectful to deputy sheriffs and used obscene language. This testimony constitutes the hearing in aggravation and mitigation. The assistant state’s attorney sought to offer evidence of a crime for which the defendant had been indicted. The indictment was still pending. Objections to this offer were sustained. The only other matter submitted was a statement that the defendant had been convicted in 1962 for second degree burglary and sentenced to a term of two years in Missouri.

The defendant testified in his own behalf during the course of the trial and from that testimony it can be ascertained that he was then 24 years of age, that he was a photographer by occupation, that his legal address was Chicago, Illinois, and that he had lived in St. Louis, Missouri, together with the evidence received on the substantive nature of the offense.

The legislature has said that it is the general purpose of the criminal law to prevent arbitrary or oppressive treatment of persons convicted of offenses and to provide penalties which are proportionate to the offense and which permit of recognition of differences in the rehabilitation potential of individual offenders. (Ill Rev Stats 1965, c 38, § 1-2 (c), (d).) In this case, the conviction for the offense carries a statutory penalty of imprisonment in the penitentiary for an indeterminate term with a minimum of not less than one year. (Ill Rev Stats 1965, c 38, § 18-2 (b).) In order to give effect to the legislative mandate as to sentencing, the sentencing judge clearly would want the maximum of information of the nature described in section 1-7 (g) of chapter 38, Ill Rev Stats, 1965. That provision is discussed in People v. Evrard, 55 Ill App2d 270, 204 NE2d 777 (5th Dist 1965).

Appellate review of sentence must be predicated upon a legislative realization that there is disparity in sentencing and appellate review is to correct disparate sentences which clearly mitigate against rehabilitation.

While the sentencing judge is in a position to personally view witnesses who appear, that which goes into his judgment in arriving at the sentence must necessarily be in the record if this court is to intelligently exercise its responsibility in the review of sentence. In this case, the record does not show the education, the family situation, the background or, to any appreciable extent, the employment record of the defendant. Observing his demeanor as a witness cannot supply this missing information.

In 55 Ill BJ 300 (1966), the question is raised as to whether appellate review of sentences is a reality or an illusion under the new legislative grant of power. The cases relating to the new authority are there collected and discussed. An observation of similar import discusses the sentence review statute in the State of Iowa. Rubin, The Law of Criminal Correction, 149 (1963); see also 1966 Ill LF 538.

The sentence in this case of not less than four nor more than ten years in the Illinois State Penitentiary is asserted to be excessive. If the sentence was arrived at in recognition of the differences in rehabilitation potential, the record does not so indicate. A sentence of four to ten years effectively means incarceration for at least three years and two months prior to parole eligibility and may, depending upon the action of the Parole and Pardon Board, mean incarceration for six years and eight months if the defendant is not paroled but receives his credit for good time. It is an awesome responsibility for the sentencing judge to attempt to predict the future conduct of any defendant. The sentence, if it contemplates the rehabilitation of the defendant and the protection of the society, is such a prediction. It should be based upon the fullest possible information relevant to the defendant and that information should be incorporated in the record in case of subsequent review of sentence. This record being deficient in this respect, the sentence is vacated and the cause is remanded to the circuit court of Sangamon County for further proceedings consistent with the views herein expressed.

Judgment of conviction affirmed. Sentence vacated and cause remanded.

SMITH and TRAPP, JJ., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Whiting, Defendant-Appellant.
    Gen. No. 67-50M.
    Second District.
    October 31, 1967.
    Michael T. Caldwell, of Woodstock, for appellant.
    Richard R. Cross, State’s Attorney of McHenry County, of Woodstock, and William J. Cowlin, Assistant State’s Attorney, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Kenneth Whiting, was charged with the offense of theft of property not exceeding $150 in value in violation of section 16-1 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, par 16-1). The complaint charged that Whiting obtained unauthorized control over 15 gallons of gasoline from the owner, Arthur Johnson, on June 12, 1966. At the arraignment on June 27, 1966, the defendant entered a plea of not guilty and waived his right to trial by jury. On August 4, 1966, the defendant reappeared in court with his counsel and requested leave to withdraw his prior plea and to plead guilty to the charge. The court granted that request and a judgment of conviction was entered on the plea of guilty after the defendant was properly admonished by the court. Further, the defendant was given leave to file his petition for probation.

The petition was filed on August 12, 1966, and a hearing held on it on February 2, 1967. The trial court denied the petition for probation and sentenced the defendant to a period of 6 months at the Illinois State Farm at Vandalia. On February 6, 1967, the defendant again appeared before the trial court, this time with new counsel, and moved to vacate the sentence on the grounds that there had been no hearing on aggravation and mitigation prior to its entry. That motion was denied and this appeal followed.

The defendant contends that the sentence imposed was not proportionate to the nature of the offense as required by section 2 of article II of the Illinois Constitution and that the sentence was so unduly harsh as to depart from “the fundamental spirit of the law.” He asks that this court, under the powers conferred upon it by section 121-9 (b) (4) of the Code of Criminal Procedure, reduce the sentence. He also urges that the failure to hold a hearing on aggravation and mitigation was reversible error.

Until the recent decision of this court in the case of People v. Smice, 79 Ill App2d 348, 223 NE2d 548, there was some difference on the question of whether a hearing on aggravation and mitigation, as provided in section 1-7 (g) of the Code, was mandatory. We resolved that difference, on page 352 of that opinion, as follows:

“We believe it to be the spirit and intent of section 1-7 (g) that the court hearing on aggravation and mitigation is mandatory unless understandingly waived by the defendant and not requested by the State; and that a transcript of the inquiries of the court and the answers of the defendant, if any, pertaining to such waiver should be made, as well as a transcript of the hearing, when not so waived by the defendant or when requested by the State 99

The State here agrees that the failure to hold such a hearing was error and asks that the matter be remanded. We note that the State also asks that the trial court be directed to reconsider the defendant’s petition for probation. Unfortunately, no record was made of the hearing on the probation petition but the report of the probation officer does appear. That report is apparently based, to a considerable extent, on an earlier probation report made in March of 1965 and did not consider, among other things, his recent marriage and consequent change of environment.

Because of the state of the record, we are unable to determine whether the denial of the petition for probation or the sentence imposed by the trial court was an abuse of discretion. Consequently, it is necessary that this cause be remanded for further proceedings.

The sentence of the trial court is set aside and the cause remanded with directions as provided herein.

Affirmed in part; reversed in part and remanded with directions.

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


author: MORAN, P. J. EBERSPACHER, J.,

text:
    M. B. Lewis and Arnold Cohn, Plaintiffs-Appellants, v. Wetzel G. Harness as Treasurer of Canteen Township Sewer System, Defendant-Appellee.
    Gen. No. 67-1.
    Fifth District.
    September 5, 1967.

      Robert J. Harding, of East St. Louis, for appellants.
    Thomas P. O’Donnell, of East St. Louis, for appellee.
   MORAN, P. J.

This suit was commenced by the filing of a petition in two counts — Count I for a writ of mandamus, and Count n for a writ of injunction against Wetzel G. Harness, Treasurer of the Canteen Township Sewer System.

The trial court granted defendant’s motion to dismiss and entered a final judgment dismissing said suit at plaintiffs’ costs. Plaintiffs appeal.

Count I of plaintiffs’ complaint alleges that appellants are residents and property owners in that portion of Canteen Township served by the Canteen Township Sewer System and that as such their property is subject to the rates and charges imposed under said system; that the charges for the sewer services are set forth in a township ordinance marked Exhibit A attached and made a part of the petition; that the defendant has repeatedly and consistently refused to accept legal tender (cash) for the payment of the sewer charges assessed against appellants’ property and other property holders of the system; that the requirement of defendant that property owners pay such charges by money order or check imposes additional burdens on the property owners and is unjust and unreasonable. (It will be noted that appellants do not question the ordinance, but rather the actions of the Treasurer, acting pursuant to the ordinance.)

They prayed for a writ of mandamus from the trial court directed to defendant, Wetzel G. Harness as Treasurer of Canteen Township Sewer System, commanding him forthwith to accept legal tender of cash, in payment of all charges owing to him as such Treasurer now and at any time in the future, to accept without penalty, service charge or interest, the principal of all charges in said Canteen Township Sewer System which have been tendered in cash and refused by defendant or his employees.

Plaintiffs argue that they have a clear right under Count I to mandamus the defendant to accept cash in payment of all sewer bills, claiming that the Treasurer of the sewer system has a clear duty to accept cash as legal tender under the statutes of the United States and of the statutes of the State of Illinois. However, they did not rely upon or refer to any statute of the State of Illinois or of the United States in the trial court. Chapter 139, section 160.45 of Illinois Revised Statutes gives the Board of Town Auditors supervision and control of a sewer system and authority to establish all needful rules and regulations by ordinance. The bonding ordinance passed by the Board of Town Auditors which they attached to their complaint contained the following language: “All bills shall be payable by check or money order.” It is undisputed that the defendant was acting pursuant to the aforesaid ordinance when he insisted that all sewer bills be paid by check or money order and that the defendant as Treasurer of the Canteen Township Sewer System is regulated in the conduct of his duties by the rules, regulations and ordinances adopted by the Board of Town Auditors of Canteen Township.

A proceeding for a writ of mandamus is an action at law and the pleadings are covered by the same rules that apply to other actions at law. (People v. Dixon, 346 Ill 454 at 460, 178 NE 914.) Since this judgment was entered by the court’s granting of a motion to dismiss the complaint, the propriety of the judgment entered depends upon the sufficiency of the facts alleged, which must be taken as true. (Bengson v. City of Kewanee, 380 Ill 244 at 250, 43 NE2d 951.) However, the petition must set forth the material facts on which the petitioner relies, distinctly, clearly and specifically, so that they may be admitted or traversed, and the allegations of the petition must show a clear right on the part of the petitioner to have performed, and a duty on the part of the persons sought to be coerced to perform the act or acts that it is sought to have commanded. (Osborne v. Bradford, 346 Ill 464 at 467-468, 179 NE 118; Bengson v. City of Kewanee, supra.) Mandamus is not proper where the right of the petitioner must first be established or the duty of the officer sought to be coerced must first be determined. (Bengson v. City of Kewanee, supra.)

By their complaint, appellants have asked the trial court to compel the respondent to adopt a method of acceptance of payment different from that provided in the ordinance, when they did not even question the validity of the ordinance. Since the defendant in the performance of his duties was not compelled to look beyond the ordinance which governed him in the execution of his duties, the petitioners do not show a clear and undisputable right to mandamus in this case. Therefore, although we construe Count I of appellants’ petition most favorably to them, we conclude that it does not state a cause of action. The trial court was therefore correct in dismissing Count I of appellants’ complaint.

In Count II of their complaint, petitioners reallege all of the allegations of Count I and in addition complain that defendant is attempting to assess penalties and service charges for delinquencies in excess of those prescribed by the ordinance. They pray that defendant be ordered to accept from petitioner payment in legal tender of the United States for all charges assessed or billed; that he be restrained from insisting upon the payment of charges in said sewer system in other than legal tender; that he be restrained from collecting and attempting to collect any interest, penalty, or service charge for delinquency in excess of those prescribed by the ordinance.

Again, without questioning the validity of the ordinance requiring that “all bills shall be payable by check or money order,” petitioners sought to invoke the equitable powers of the court to compel the defendant to adopt a method of acceptance of payment which would compel him to violate his duties under the ordinance. They also ask the court to invoke its equitable powers to compel the defendant to comply with the ordinance in assessing penalties for delinquencies when they have not tendered payment according to the terms of the ordinance.

In McLaurine v. Birmingham, 247 Ala 414, 24 So 2d 755, 163 ALR 962, it was held that one who admits that his automobile was illegally parked will be denied injunctive relief on account of unclean hands against the enforcement of an ordinance providing that illegally parked automobiles may be summarily impounded by the police. In that case, the Supreme Court of Alabama said at 163 ALR 965:

It will also be observed that the complainant does not deny violating the parking ordinance in his bill, and does not allege that the city authorities propose to impound his car when he was not violating the city ordinance, and therefore he comes into court seeking equitable relief with respect to a situation where it is admitted, either expressly or impliedly, that he is violating the city ordinance fixing a time limit, whose validity is not questioned. A court of equity will not grant him relief under those circumstances whether or not the impounding ordinance or the manner of its enforcement may be in violation of certain features of the Constitution or law.

So, too, in the present case the appellants come into court seeking equitable relief against illegal treatment under an ordinance in a situation where their pleadings indicate that they, themselves, have not complied with the ordinance. Under such circumstances, equitable relief will be denied. (Village of Lake Bluff v. Horne, 24 Ill App2d 343, 164 NE2d 217; Carolene Products Co. v. Evaporated Milk Ass’n, 93 F2d 202.) We come to this conclusion reluctantly because if the allegations of petitioners’ complaint are true, the defendant is imposing penalties in excess of those provided by the ordinance.

For the foregoing reasons the judgment of the trial court of St. Clair County is affirmed.

Judgment affirmed.

GOLDENHERSH, J., concurs.

EBERSPACHER, J.,

dissenting.

I respectfully dissent from the opinion.

I do not consider that the language of our statute (e 139, § 160.45, Ill Rev Stats) which authorizes the Board of Town Auditors to supervise and control and establish all needful rules and regulations for a sewer system, by ordinance, is sufficiently broad to authorize an ordinance making ineffective the laws of the United States with reference to legal tender. 31 USCA § 392, §§ 451-463. While our General Assembly has provided that taxes may be paid in mediums other (warrants and orders) than those designated by Congress, (c 120, § 672, Ill Rev Stats) they have not said that any public officer shall refuse legal tender in the payment of charges or taxes. While our General Assembly has the power to prescribe the medium in which taxes shall be paid, People ex rel. Swartchild & Co. v. Carter, 376 Ill 590, 35 NE2d 64, People v. Board of Education, 349 Ill 291,182 NE 383, our courts have never said the Illinois Statute permitting payment in other than legal tender as declared by Congress, excluded the right to payment by such legal tender; neither have our Courts ever held that a municipality had the power to provide by ordinances, the medium in which charges or taxes should be paid, to the exclusion of the mediums provided either by the General Assembly or Congress.

To construe the ordinance here in question, which only provides for payment by check or money order, as excluding payment by legal tender, in my opinion makes the ordinance bad; it should be construed as permitting payment by check or money order in addition to payment by legal tender. “Where two constructions can be placed upon a statute or an ordinance, one of which will render it valid and the other invalid, it is the duty of the court to so construe the statute or ordinance that the same be held valid, if the court can reasonably do so.” Bjork v. Safford, 333 Ill 355, 164 NE 699 at 701, 61 ALR 561; 37 Am Jur 829, Mun Corp, par 189. Under such construction it need not be directly attacked or questioned in order for plaintiffs’ complaint to stand, since they have alleged that they tendered the amounts due in legal tender and defendant refused to accept the same. To me it is obvious that plaintiffs are contending that defendant was purportedly acting pursuant to the ordinance, but was really acting in accordance with the defendant Treasurer’s interpretation of the ordinance, which was arbitrary and unreasonable.

Defendant here concedes that the rule is that unless authorized by statute a public officer has no authority to accept anything other than money in payment of any obligation due the State or a political subdivision thereof; 40 Am Jur, Payment, § 41. Even assuming that the ordinance was such statutory authority, it still is not authority for excluding the acceptance of legal tender. Furthermore, our Supreme Court held in Conkling v. City of Springfield, 132 Ill 420, 24 NE 67, that a municipal corporation or subdivision has no power by ordinance to direct the payment of taxes by a medium other than that prescribed by Statute, and no Illinois Statute includes checks or money orders as payment for either taxes or charges; in fact a check for all purposes has been held to be only conditional payment.

Defendant contends, assuming the absence of statutory authority, both an express and implied contractual relationship between the parties, relying on Rockford Savings & Loan Ass’n v. City of Rockford, 352 Ill 348,185 NE 623, and Rosborough v. City of Moline, 30 Ill App2d 167, 169, 174 NE2d 16, which held that a water user does not pay a tax, but has an obligation resting on contract, express or implied. Such argument completely overlooks language in those cases, pointing out that the rule is only applicable where the user has a free choice. Here plaintiffs are forced by the ordinance (section 3) to connect to the sewerage system or be subject to a fine each day. Under such circumstances there was no choice, and no contract. The theory of contractual relationship is to be applied only where the privilege of using the utility is optional at the choice or election of the property owner. Spalding v. Granite City, 415 Ill 274, 113 NE2d 567; Hartman v. Aurora Sanitary Dist., 23 Ill2d 100, 177 NE2d 214.

In addition to alleging the refusal of defendant to accept legal tender, plaintiffs have alleged that defendant, by the enforcement system used, has under the guise of a “service charge” added illegal charges to the bills. They point out that the charges made are neither reasonable nor authorized by the ordinance. They concede that the enforcement provisions of the ordinance are reasonable but object to the strained construction placed upon such provision. The ordinance provides in part:

“All sewer bills shall be due and payable ten days from the date such bills are rendered and a service charge equivalent to ten percent (10%) shall be added and collected if such bill is not paid within ten (10) days. If said delinquent sewer bill is not paid within sixty (60) days further after said first ten (10) day period the superintendent of the Township of Canteen Sewer Department shall cause the sewer to be disconnected from said premises, the same shall not again be connected or used until all delinquent accounts and bills of services are paid in full, including a fee of $10.00 for reconnecting said sewer service plus expenses incurred in the reconnecting of the sewer service.
“If said delinquent sewer bill is not paid within sixty (60) days further after said first ten (10) day period, the Board of Town Auditors shall by resolution order the Township Treasurer to place a lien upon the premises for the amount of sewer service charges due to date.”

Plaintiffs allege and point out that the charges which they have in past paid under protest and for which they have tendered in past in legal tender, consist not only of the 10% provided by the ordinance, but additional 10% charges on the bill and accrued service charges, compounded, and that they are threatened with their sewer service being disconnected to their irreparable damage, making their premises unsafe for habitation, and the implied threats of prosecution for misdemeanor, if they do not pay such illegal payments by check or money order. Defendant contends that under the authority of the ordinance he can compound the 10% monthly. The ordinance, in my opinion, clearly provides reasonable provisions for collection; a 10 % charge for 10 days delinquency in payment, termination of service after 60 additional days with a lien. I do not consider it authority for the Treasurer to add a new 10% on the bill and service charge each month, or authority for proceeding in any method other than specifically provided for enforcement.

Defendant suggests that instead of action for mandamus or injunction, plaintiffs pay the excessive compounded penalties under protest and then sue for their recovery. Such procedure would forfeit the point that defendant cannot refuse legal tender, and that point would become moot. Such procedure and remedy is not adequate, full or complete.

Where the action of the municipality or administrative agency was highly inequitable and most unfair and determined, a writ of mandamus was ordered to issue against the municipality or administrative agency and such action was affirmed on appeal. Catholic Foreign Mission v. Village of Glen Ellyn, 339 Ill App 565, 90 NE 2d 653; Frank v. Village of Lansing, 33 Ill App2d 1, 178 NE2d 415.

In U. S. v. White County Bridge Commission, 275 F2d 529 the court observed that mandamus or injunction

“traditionally maybe used for enforcing or challenging official conduct.” . . .
“The function of the equitable remedy of injunction ... is preventive, prohibitory, protective or restorative, as the law and circumstances of the case warrant.”

Mandamus lies to enforce the performance of statutory duties with respect to the assessment and collection of taxes where such omission has been specifically directed to the attention of the authorities and a demand for affirmative action has been ignored. People ex rel. Park Forest v. Cullerton, 13 Ill2d 575 at 580, 150 NE2d 589; People ex rel. Jones v. Webb, 256 Ill 364, 100 NE 224; People ex rel. Spiegel v. Lyons, 1 Ill2d 409, 115 NE2d 895.

A court of equity will direct its restraining power against the enforcement of an ordinance, if ground exists therefor, to prevent irreparable injury. Ehrlich v. Village of Wilmette, 361 Ill 213 at 221, 197 NE 567; Northern Pac. Ry. Co. v. Weinberg, 53 F Supp 133 at 139; Ex parte Young, 209 US 123, 28 S Ct 441, 52 L Ed 714, 13 LRA (NS) 932, 14 Ann Cas 764; Eastern Oil Refining Co. v. Court of Burgesses, 130 Conn 606, 36 A2d 586.

I would reverse the judgment order dismissing the complaint.


text:
    Otto W. Homann, d/b/a Schmidt-Homann Real Estate, Plaintiff-Appellant, v. Frank R. Wilson and Lucile G. Wilson, Defendants-Appellees.
    Gen. No. 67-29M.
    Fifth District.
    September 20, 1967.
    Mr. Earl Vuagniaux, of Edwards-ville, for appellant;
    no brief filed for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. JUSTICE MORAN DAVIS, P. J.,

text:
    Ernest J. Svenson, Plaintiff-Appellant, v. American National Bank and Trust Co., a Banking Corporation of Rockford, Illinois, as Trustee, and Gust J. Peterson, Defendants-Appellees.
    Gen. No. 66-130.
    Second District.
    October 4, 1967.
    Rehearing denied December 1, 1967.

      Maynard, Maynard & Brassfield, of Rockford, for appellant.
    Miller, Thomas, Hickey & Collins, of Rockford, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The plaintiff, Ernest J. Svenson, brought this proceeding in equity to enforce his averred right to a Trustee’s Deed from the corporate defendant to a 85/100ths interest in a land trust, and Gust J. Peterson, by way of counterclaim, sought to enforce his opposing right to a 30/100ths interest in the trust. The chancellor found in favor of Peterson and Svenson has appealed.

During the years 1941 through 1948 inclusive, the plaintiff and the defendant, Gust J. Peterson, were employed by John S. Barnes Company in Rockford, Illinois. Plaintiff had been appointed to the management committee of the company and was to receive the sum of $3,000 each year for his services, but because he was absent for extended periods of time in connection with certain litigation, it was arranged that Peterson would replace him on the committee and would receive the same amount of money.

The plaintiff testified that his agreement allowed Peterson to retain the proceeds of the check for the year 1941 but that they were to share equally in the total of all checks, with Peterson paying income tax on the whole amount and Svenson reimbursing him for the tax paid on the portion received by him. On the other hand, Peterson testified that it was not until he received the check for the year 1942 that Svenson informed him that they were to share it in equal portions and pay taxes in the manner he described.

The check for the year 1942 was deposited in the parties’ joint checking account in the First National Bank of Chicago, the checks for the years 1943 and 1944 were not deposited but Peterson testified, and Svenson denied, that they were negotiated and the proceeds shared equally, and the 1945 check was deposited in the joint account.

In November, 1945, Svenson and Peterson, together with Carl A. Palmgren and G. Adolph Markuson, executed a land trust agreement with the defendant, American National Bank and Trust Co., in which it was stipulated that the beneficial interests of the parties in the trust were:

Ernest J. Svenson 55%
Gust J. Peterson 15%
G. Adolph Markuson 15%
Carl A. Palmgren 15%

Among other things, the trust agreement provided that:

“No assignment or other instrument conveying the interest of any beneficiary hereunder shall be binding on the Trustee in any manner until the original or an executed duplicate copy of such assignment or other instrument is deposited with the Trustee.”

During the period the joint checking account existed, Peterson wrote the following checks:

January 1944 to Peterson $1,800.00
March 1945 to Peterson 200.00
March 1946 to Svenson 2,000.00
March 1946 to Palmgren 1,531.81
March 1946 to Peterson 468.19
$6,000.00

Although Svenson testified that he directed Peterson in March of 1946 to write the check to Palmgren for the purchase by Svenson of Palmgren’s interest in the trust, no assignment of Palmgren’s interest apparently was requested at that time. On May 14, 1947, American wrote to Svenson saying that it had learned that Svenson had purchased the interests of Markuson and Palmgren and requested that the necessary assignments be filed with it.

As a result, on May 17, 1947, Svenson sent an assignment form to Markuson, which was executed and returned bearing the date of May 15, 1947, but acknowledged of June 6, 1947. Palmgren testified that on December 8, 1949, he was summoned to the office of American and, at the request of its president, executed what later proved to be an assignment of his interest to Svenson. Finally, on March 18, 1954, an assignment of Palmgren’s interest to Peterson, dated June 6, 1947, was delivered to American, bearing the notarial seal of one of its officers.

As might be expected, each of the parties says that Palmgren’s interest was purchased in his behalf using his funds. In addition, Svenson maintains, because the assignment to him was filed earlier in time, that American should have executed its deed conveying an 85% interest in the trust res to him, while Peterson urges that because his assignment was dated earlier and executed in the presence of one of American’s officers, it was in compliance with the trust agreement.

It seems that the parties only agree about the obviously true and dispute almost every other material factual issue. A rare instance of agreement between the parties occurs when Peterson agrees with the statement of the plaintiff that, “the most that can be said of the evidence in this case on this subject (who paid the valuable consideration for the assignment) is that it is wholly inconclusive.”

We approach the consideration of this case having in mind that the evidence was heard in open court by the chancellor, who made findings of fact on hotly disputed questions, which we are unable to disturb unless they are clearly and palpably contrary to the manifest weight of the evidence. Funderburg v. Shappert, 23 Ill2d 220, 222, 177 NE2d 845 (1961); Loeb v. Gendel, 42 Ill App2d 111, 115-116, 191 NE2d 642 (1963); ILP, Appeal and Error, § 787. Accordingly, if the findings and decree of the chancellor find support in the evidence, we have no choice but to affirm his judgment.

The evidence of Peterson tended to show that by agreement he retained the 1941 check; the 1942 check was deposited in the joint account; the parties shared equally in the proceeds of the 1943 and 1944 checks; and the 1945 check was deposited in the joint account.

Although Svenson testified that his portion of the 1941 check was to be repaid to him, but was not, although he denied sharing in the proceeds of the 1943 and 1944 checks, although he received only $2,000 of the $6,000 deposited in the joint account, all of which would have been considerably less than his share, the only evidence the record contains showing any effort on his part to receive his share is the statement, “I tried on three occasions to settle our money matters with him.” And of equal importance is the fact that Svenson’s complaint merely sought the conveyance of an eighty-five percent interest to him and did not seek a judgment for his share of the funds. The chancellor undoubtedly regarded this conduct of the parties as harmonious with their agreement and entered the decree in question. It is always allowable to look to the interpretation the parties themselves place on their agreement and by which they abide. Mitchell v. Illinois Cent. R. Co., 384 Ill 258, 51 NE2d 271 (1943); Anchor Grain Co. v. Kail, 54 Ill App2d 130, 134, 203 NE2d 721 (1964). Language in contracts is construed according to its actual meaning, and if there has been any action under an ambiguous contract the construction placed upon the same by the parties is of great aid in determining what was intended. Walter v. Sohio Petroleum Co., 402 Ill 33, 41, 83 NE2d 346 (1949).

The equities present in this case arise out of the foregoing factual setting. The assignment to Peterson occurred prior to that to Svenson and, although delay occurred in its formal filing with American, as a practical affair, American had notice of it and Peterson’s delay is, in our opinion, more equatable with ignorance of his rights in that connection than with any fraudulent intent on his part. It seems clear that he had far more to lose than to gain when he was dilatory in filing it with American.

Although the parties briefed and argued other issues in this cause, they seemed to agree tacitly that the determination of whose funds were used to pay for the assignment would be decisive and, for that reason, we will not prolong this opinion by touching upon what are now subordinate issues.

Under the circumstances, we find that the decree of the chancellor is supported by the evidence, is not clearly contrary to the manifest weight of the evidence, and is affirmed.

Decree affirmed.

ABRAHAMSON, J., concurs.

DAVIS, P. J., dissents.

DAVIS, P. J.,

dissenting:

The opinion of the court is based upon the rule of law that a reviewing court will not disturb the findings of the chancellor, where he has seen and heard the witness and the testimony is contradictory, unless such findings are clearly and palpably erroneous or manifestly against the weight of the evidence. It states: “Accordingly, if the findings and decree find support in the evidence, we have no choice but to affirm his judgment.”

With due deference to the above rule of law, I would reverse. It is my opinion that the court unduly emphasized this rule and failed to consider a corollary rule which existed under the common law and by statute since 1837; namely, that courts exercising appellate jurisdiction have authority to set aside verdicts and judgments on the ground that the findings of fact are not supported by the manifest weight of the evidence. Corcoran v. City of Chicago, 373 Ill 567, 579, 27 NE2d 451 (1940); Ill Rev Stats 1965, c 110, par 92 (3) (b).

I believe that it was the obligation of this court to consider the evidence in the record, and if it did not sustain the decree, or if the decree was manifestly against the weight of the evidence, then it was the duty of this court to reverse. Under the facts of this case as revealed by the record, I believe an opposite conclusion to be clearly apparent and, consequently, I would reverse.


author: JUSTICE CORYN.

text:
    Loretta Franke, Plaintiff-Appellee, v. William Franke, Defendant-Appellant.
    Gen. No. 66-72.
    Third District.
    October 3, 1967.

      Galowich & Galowich, of Joliet, and Miller, Schneider & Galasso, of Chicago, for appellant;
    Gray, Thomas, Wallace & Peehan, of Joliet, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.