author: Mr. JUSTICE HALLETT

text:
    William Harris et al., Plaintiffs-Appellees, v. American Legion John T. Shelton Post No. 838, Defendant-Appellant—(Thomas Boyd, Defendant.)
    (No. 57364;
    First District (1st Division)
    May 21, 1973.
    Miller and Concannon, of Chicago, (Joseph B. Lederleitner, of counsel,) for appellant.
    Alan D. Katz and Philip Grifase, both of Chicago, for appellees.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

This is an appeal by an American Legion Post from the denial of its motion to quash the sheriff’s return purporting to show service of summons upon it and to vacate and set aside a default judgment of $9,000 based thereon.

The suit sought recovery from the Post and one Thomas Boyd and alleged that plaintiff was seriously injured when Boyd, intoxicated as the result of liquor purchased at the Post, struck Harris on the head with a beer bottle.

The return of the sheriff’s deputy certified that on April 7, 1970, he served the summons on:

“the within named American Legion, a corporation, by leaving a copy with John T. Shelton, an agent/officer of said corporation.”

The defendant Boyd was never served.

On May 3, 1971, said Post was defaulted and on June 9, 1971, a judgment for $9,000 was entered in favor of William Harris and against the defendant “John Shelton American Legion Post No. 838.”

On January 21, 1972, the defendant filed a special appearance and moved to quash the purported service and to vacate and set aside the judgment. On that day the motion was denied. A subsequent motion for rehearing was heard and denied on February 22, 1972, and the instant appeal is from both orders.

Affidavits in support of said motion show that John H. Shelton was a United States Army soldier who was killed in the trenches in Europe during World War I; that the John H. Shelton American Legion Post No. 838 received its charter in February of 1940 from the National Headquarters of the American Legion; and that on April 7, 1970 (the date the deputy’s return shows service upon John T. Shelton), there was no one named John H. Shelton, John T. Shelton, John Shelton, or any name similar, affiliated with said Post as agent/officer, employee or member. The plaintiff filed no counter affidavits and the deputy who made the return did not appear or testify.

The affidavit of the Post’s Commander also states that he first received notice of the instant law suit and ex parte judgment on or about December 10, 1971, when an execution was delivered to John Brown, the Post’s bartender. It does appear that the trial judge mailed postcards to the Post notifying it of the default and of the entry of the ex parte judgment and that plaintiffs’ attorney, in August of 1971, wrote a letter to the Post advising it of the June 10, 1971, judgment.

The plaintiff cites, Mordecia v. Michicich, 45 Ill.App.2d 238, 195 N.E.2d 441; Hines v. Smith, 29 Ill.App.2d 35, 172 N.E.2d 429; Pyle v. Groth, 15 Ill.App.2d 361, 146 N.E.2d 219; and Marnick v. Cusack, 317 Ill. 362, 148 N.E. 42; for the sound legal proposition that where a natural person challenges a return by a sheriff’s deputy stating that he served the defendant in person such a return is “prima facie proof of service and can be overcome only by clear and convincing proof”, and “should not be set aside merely upon the uncorroborated testimony of the person on whom the process has been served.” It should be noted that these cases related only to attacks by natural persons against returns reflecting service upon them personally. The fifth case cited by plaintiff (Cannata v. White Owl Express, Inc., 339 Ill.App. 79, 89 N.E.2d 56) involved the service of a summons upon a corporation by serving its driver but the defendant corporation conceded that he was its agent and challenged the return only on (unsound) ground that a copy of the summons was not subsequently mailed to the corporation.

When, however, the deputy’s return recites that he served an individual defendant, not by serving him in person, but by serving a member of his family at his usual place of abode, or where he recites that he served a corporate defendant by serving a certain person as its agent, no such presumption arises and, where such a return is challenged by affidavit and there are no counteraffidavits, the return itself is not even evidence, and, absent testimony by the deputy, the affidavits must be taken as true and the purported service of summons quashed.

In 62 Am.Jur.2d, Process, sec. 179, at page 959, it is said:

“§ 179. As to collateral facts and facts not within knowledge of officer.
The rule that the officer’s return of process is conclusive as to parties and privies does not apply to statements or recitals of facts or matters which need not be returned,20 nor to those facts which are not presumptively within the personal knowledge of the officer,1 as where he must act upon information obtained from others, and hence where he is liable to be misinformed.2 Such facts, for instance, may relate to questions concerning where “the usual place of residence” of the defendant is located,3 whether a certain place is the residence or dwelling house of the defendant,4 whether the person served was the agent of the defendant,5 or whether the defendant was an agent for a corporation.6”

Substituted Service on an Individual

In Mahler v. Segel, 333 Ill.App. 138, 76 N.E.2d 795 (1948), in affirming an order quashing the sheriff’s return of service upon the defendant by leaving a copy with his daughter at his usual place of abode, etc., this court, at page 142, said:

“If the counter-affidavits do not rebut the alleged fact that the place of service of summons was not the usual place of abode of the defendant,’ then the affidavit of defendant is sufficient to impeach the return of the sheriff, and the ruling of the court quashing the return was correct. Where the question to be determined is whether it is the defendant’s usual place of abode,’ the return of the sheriff upon such an issue cannot be accepted as proof of the fact. Trust Co. v. Sutherland Hotel Co., 389 Ill. 67, 73; Lewis v. West Side Trust & Savings Bank, 377 Ill. 384, 386.” (Emphasis ours.)

In Zazove v. Wilson, 334 Ill.App. 594, 80 N.E.2d 101 (1948), in reversing an order refusing to quash a sheriff’s return that he had served the defendant by serving his mother at his usual place of abode, this court, at page 598-599, said:

“* * * The burden rested upon the petitioners to establish the facts essential to valid service, denied in the affidavit supporting defendant Johnson’s motion to quash the service. The statements in the sheriff’s return as to Johnson’s usual place of residence and being a member of the family of Mrs. Johnson, are conclusions of fact and not evidence. Mahler v. Segel, 333 Ill.App. 138. Petitioners having failed to show by competent evidence that Johnson did in fact reside at the home of his mother, the court erred in overruling the motion to quash. The judgment as to Johnson is reversed.”

In Chiarra v. Lemberis, 28 Ill.App.2d 164, 171 N.E.2d 81 (1960), reversing a judgment against a garnishee where the court had denied a motion to quash the garnishment proceedings on the ground that the deputy’s return that he had served the primary defendant by serving his wife at his usual place of abode was incorrect because the defendant lived elsewhere, this court at pages 171-172, said: 36 N.E.2d 573. That portion of the return may be attacked by an affidavit, and where there is in the record no counteraffidavits contradicting it such affidavit will be taken as true. Hiram Walker Distributing Co. v. Giacone, 339 Ill.App. 279, 89 N.E.2d 748; Mahler v. Segel, 333 Ill.App. 138, 76 N.E.2d 795; Abelson v. Steffke Freight Co., 1 Ill.App.2d 461, 118 N.E.2d 26; Albers v. Bramberg, 308 IIl.App. 463, 32 N.E.2d 362. The court was in error in denying the garnishee’s motion to vacate the principal judgment and that error invalidated the judgment entered in the garnishment court in favor of the plaintiff and against the garnishee.” (Emphasis ours.)

“* e * The return of the sheriff or bailiff on a summons cannot be lightly set aside, and it has been held that where the return is that the defendant was personally served that return cannot be impeached by the evidence of the defendant alone. Davis v. Dresback, 81 Ill. 393. However, in the case of substituted service a different rule applies. Here when the serving officer attests that the place where the summons was served was the defendant’s usual place of abode he is attesting to a matter outside of his own personal knowledge. The recital in the return that the place where the summons was served was the defendant’s usual place of abode cannot be accepted as proof, nor can it be treated as evidence of the fact. Trust Co. v. Sutherland Hotel Co., 389 Ill. 67, 73, 58 N.E.2d 860; Lewis v. West Side Trust & Sav. Bank, 377 Ill. 384,

Service on a Corporation

In Mineral Point R.R. Co. v. Keep, 22 Ill. 9, (1859), our supreme court, at pages 16-17, said:

“We are not inclined to think the return of the officer, as to the fact of agency, when a corporation is sued, should be conclusive. Great injustice and ruin to incorporated companies might be the consequence, had the officer the undisputed power to select any person he might choose, as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. An officer’s return is not conclusive of all the facts stated in it, as where he returns upon a fi. fa., ‘money made and paid to the plaintiff,’ the payment is a fact which may be contested. So in this case, the fact that J. R. Booth was the agent and Dexter the conductor, is not conclusively established by the return; it can be contested. Our statute authorizing service of process on an agent or conductor, is an innovation upon the ancient practice, and no greater force and effect should be given to it than is absolutely necessary. When a party sues an incorporated company whose president and whose place of doing business is out of the county where suit is brought, and causes his process to be served on one whom he chooses to consider the agent of the company, it is no hardship to require him to prove such person was the agent. We think, therefore, that the fact of agency could have been put in issue by plea in abatement of the writ, the defendants appearing for that purpose only. By such practice, no injustice can be done. If the issue is found against the company, and the fact of agency established, leave will always be given to plead to the merits.”

In Abelson v. Steffke, 1 Ill.App.2d 461, 118 N.E.2d 26 (1954), in reversing an order denying a motion to vacate a default judgment where the deputy’s return recited that he had served the corporate defendant by serving “John Doe-Agent who refused to give true name”, this court, at pages 463-465, said:

“* * * The cases cited by plaintiff as to the conclusiveness of the return of service of process between the parties are not applicable to the facts presented on this record. The general rule is stated in 42 Am.Jur., Process, sec. 129, as follows:
‘The rule that the officer’s return of process is conclusive as to parties and privies does not apply to statements or recitals or facts or matters which need not be returned, or to those which are not presumptively within the personal knowledge of the officer, but upon which he must act from information obtained from others, and hence about which he was liable to be misinformed, such facts, for instance, as where “the usual place of residence” of the defendant is located, or whether the defendant was agent for a corporation.’
‘This rule was adopted in Illinois as early as 1859 in Mineral Point Railroad Co. v. Keep, 22 Ill. 9. Keep brought an action of debt on two contracts, and for warrants drawn upon the treasurer of defendant; he also filed the common counts; service of summons was had by leaving a copy with J. R. Booth, agent, and J. W. Dexter, conductor of defendant, ‘the President of said company not residing in the State.’ Attachment was sued out in aid and levied upon locomotives, railroad cars, a lathe and shop of defendant, and a copy of the attachment writ left with Booth as agent of defendant. A plea in abatement to the affidavit and writ of attachment was filed. A demurrer to the plea was sustained. Defendant then moved to set aside the sheriff’s return on the summons, supporting its motion by affidavits of Dexter, Booth and Johnson that Dexter and Booth were not and had not ever been agents, conductors, or in any way employees of the company. The court ruled that the testimony was inadmissible because the return could not be contradicted. On review on writ of error the Supreme Court, speaking through Mr. Justice Breese, said (p. 16):
‘We are not inclined to think the return of the officer, as to the fact of agency, when a corporation is sued, should be conclusive. Great injustice and ruin to incorporated companies might be the consequence, had the officer the undisputed power to select any person he might choose, as the agent of a company sued, and serve the process upon him. That he was the agent must be held to be a fact open to the country. An officer’s return is not conclusive of all the facts stated in it, as where he returns upon a -fi. fa., “money made and paid to the plaintiff,” the payment is a fact which may be contested. So in this case, the fact that J. R Booth was the agent and Dexter the conductor, is not conclusively established by the return; it can be contested. * * *
When a party sues an incorporated company whose president and whose place of doing business is out of the county where suit is brought, and causes his process to be served on one whom he chooses to consider the agent of the company, it is no hardship to require him to prove such person was the agent.’
This rule has never been departed from. In Mahler v. Segel, 333 Ill.App. 138, this court held that a return is not proof that the place of service was the usual place of defendant’s abode,’ citing with other cases, Trust Co. of Chicago v. Sutherland Hotel Co., 389 Ill. 67, 73, wherein the court said: ‘The statement in the sheriff’s return, that Kafkie was the agent of the corporation, cannot be accepted as proof of the agency.’ In Cannon v. Time, Inc. (C.C.A. 4th Cir.), 115 F.2d 423, the contention that the sheriff’s return of service on the agent of a corporation could not be attacked, was disposed of by Mr. Justice Parker in the following language:
‘Little need be said as to plaintiff’s contention that the officer’s return is conclusive. The statement in the return, that the person served was an agent of the defendants, was nothing more than the officer’s conclusion; and the contention, that the court is bound by such conclusion on a motion to quash the return, is so manifestly unsound as not to warrant discussion. See Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398; Tignor v. Balfour & Co., supra; Bank of Bristol v. Ashworth, 122 Va. 170, 99 S.E. 469.
Many troublesome jurisdictional questions could be solved very easily if the return of the process officer were accepted as conclusive. The courts, however, may not thus abdicate the judicial function to the server of process.’ ”

Applying these principles to the case at bar, the deputy’s return that he had served the American Legion, a corporation, by leaving a copy with John T. Shelton, an agent/officer of said corporation having been challenged by affidavits establishing that the John H. Shelton, after whom the Post had been named, had been killed in World War I and that no person of any name similar- was an officer, agent, employee or member, not only did not raise any presumption of valid service but did not even constitute evidence of service and when, therefore plaintiffs chose not to have him testify as to when, where and whom he served for the Post, the trial court should have taken the defendant’s affidavits as true and quashed the purported return and vacated the default judgment.

The plaintiff’s contention that the Post’s delay in challenging the said purported service of summons upon it somehow:

“supported and affirmed the service and return of the Sheriff, ft ft ft ”

is not sound and erroneously assumes that the Post’s motion to quash and to vacate is a petition under C.P.A. 72 after valid service, which, it is not.

In Lichter v. Scher, 4 Ill.App.2d 37, 123 N.E.2d 161 (1954), in reversing an order striking a petition seeking to vacate a default judgment where the sheriff’s return recited that he had served the defendant corporation by serving one Wakefield, its bartender, this court, at pages 41-42, said:

“Plaintiff contends that it is essential to the validity of the petition that there be a showing of diligence in moving to vacate the judgment. * * * There is, however, an important distinction between the cases he cites and the instant case. In all those cases in which relief has been denied because of a lack of diligence, service had been had on the defendant and the default related to a failure to file a pleading, to appear for trial, or in some other respect occurring after the court had acquired jurisdiction by service. To miss this distinction is to lose sight of the fact that a void judgment may be set aside at any time. Parker v. Macoy, 91 Ill.App. 313 (1900); Keeler v. People ex rel. Kern, 160 Ill. 179, 182 (1895); Ray v. Moll, 338 Ill.App. 360, 84 N.E.2d 163, 166 (1949).”

In Chiarra v. Lemberis, 28 Ill.App.2d 164, 171 N.E.2d 81 (1960), above discussed, this court at page 169, pointed out that:

“It is elementary law that where the court lacks jurisdiction of the subject matter or parties any judgment which it may enter is void and may be vacated at any time. The attack may be either direct or collateral, and the doctrines of laches and estoppel do not apply. Ward v. Sampson, 395 Ill. 353, 359, 70 N.E.2d 324. If the application to vacate the judgment is made to the court that rendered it within thirty days after its entry, it is a direct attack upon the judgment or decree; if made after the expiration of thirty days, it is a collateral attack. Barnard v. Michael, 392 Ill. 130, 135, 63 N.E.2d 858 * *

Finally in Mabion v. Olds, 84 Ill.App.2d 291, 228 N.E.2d 188 (1967), this court, in referring to an order vacating a default judgment some four months old based on an “abode” service, at page 295, said:

“Defendant’s attack on the default order was because it was void. Consequently, we do not consider the proceedings below as a Section 72 petition * *

As a result we reverse the orders appealed from, quash the purported return of service, vacate the default judgment and remand the cause for further proceedings consistent with the views herein expressed.

Orders reversed, purported service quashed, default judgment vacated and cause remanded.

BURKE, P. J„ and EGAN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Davis, Defendant-Appellant.
    (Nos. 57722-57723 cons.;
    First District (1st Division)
    May 21, 1973.
    Paul Bradley and Gordon H. Berry, both of Defender Project, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

BURKE, P. J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Don Alfred Austin, Defendant-Appellant.
    (No. 58109;
    First District (1st Division)
    May 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (Ronald P. Katz, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

BURKE, P. J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alonzo Bonner, Defendant-Appellant.
    (No. 56066;
    First District (2nd Division)
    May 29, 1973.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DOWNING, J., took no part.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dwight Cavin, Defendant-Appellant.
    (No. 56789;
    First District (1st Division)
    May 29, 1973.
    James J. Doherty, Public Defender, of Chicago, (George L. Lincoln, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Patrick J. McNally, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    Anne Kerr, Plaintiff-Appellant, v. The City of Chicago et al., Defendants-Appellees.
    (No. 56896;
    First District (2nd Division)
    May 29, 1973.
    Cotton, Watt, Jones, King & Bowlus, of Chicago, (Richard F. Watt, Robert H. Nichols, and Thomas D. Allison, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Thomas J. Cachor, Assistant Corporation Counsel, of counsel,) for appellees.
   PER CURIAM.


text:
    The People ex rel. Leonila Moore, Plaintiff-Appellee, v. Spencer Coleman, Defendant-Appellant.
    (No. 57034;
    First District (2nd Division)
    May 29, 1973.
    Earl B. Williams, of Williams & Slaughter, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DOWNING, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny A. Roberts, Defendant-Appellant.
    (No. 57211;
    First District (2nd Division)
    May 29, 1973.
    Paul R. Bradley, of Defender Project, of Chicago, (Kenneth L. Jones, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (James S. Veldman, Assistant State’s Attorney, of counsel,) for the People.
   PER CURIAM.

HAYES, J., took no part.


author: Mr. JUSTICE McNAMARA

text:
      In re Bruce Forrest, a Minor.
    (No. 56672;
    First District (3rd Division)
    May 31, 1973.

      David C. Thomas, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane, James R. Carlson, and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

After a hearing conducted without a jury in the juvenile division of the circuit court of Cook County, the defendant, Bruce Forrest, sixteen years of age, was adjudged to be delinquent. He had been charged by petition with robbery and aggravated battery. Defendant was committed to the Department of Corrections Juvenile Division until he attained the age of twenty-one or until sooner discharged by order of court. (We were advised at oral argument that defendant has been released on parole.)

On appeal, defendant contends that the trial court erred in not requiring the prosecution to produce certain alleged statements of one of its witnesses, and that the evidence was insufficient to support the finding of delinquency.

On July 16, 1971, between 11:30 and 11:45 P.M., Albert Brown and his wife were robbed in an apartment building in which they resided at 3549 South Federal Street in the City of Chicago. Mr. Brown was shot twice in the thigh during the robbery.

Albert Brown testified that as he and his wife entered the building they observed defendant along with a group of other boys. The Browns waited for an elevator, but the boys informed them that the elevator was out of order. After waiting several minutes, the Browns began the long walk up the building’s enclosed stairs to their eleventh floor apartment. As the Browns went up the stairs, defendant and another boy, also ascending the stairs, passed them. A short time later a third boy ascending the stairwell passed the Browns.

Mr. Brown further testified that when he and his wife reached the eighth floor landing, defendant, carrying a gun, entered the stairwell. While defendant pointed a gun at Brown, another boy ordered him to face the wall. When Brown failed to do so, defendant shot him twice. Brown testified that at this time his wallet, money and keys were taken. He also testified that his wife attempted to continue up the steps, but she was forced back down to the eighth floor landing, and her purse was taken. The entire incident took between five and ten minutes. On July 20, 1971, Brown saw defendant in the first floor of the building, and Mrs. Brown called the police.

During cross-examination, Brown testified that he had described his assailant to the police as being 5'3" tall, and shorter than himself. Defendant actually was 5'7" in height, and in court proved to be taller than Brown. Prior to the incident, Brown did not know defendant, nor did he recall ever seeing defendant before.

Mrs. Brown testified substantially to the same facts as her husband. She was unable to judge their assailant’s height because during the incident he was standing on a different level of the stairs than they. After the incident, both boys called down from above to Mrs. Brown to come and get her purse.

Both Browns testified that the stairwell was narrow and that die' light on the eighth floor landing was not working. Mrs. Brown testified that when they first saw defendant on the first floor, eight boys were with him. Brown initially testified that he did not know how many boys were there. Subsequently he testified that four boys were with defendant.

Defendant offered alibi testimony. John E. Thompson, the employer of defendant’s brother, testified that on the night in question he was present in his auto with defendant, Donald Stevens and defendant’s ■ brother, Mitchell Forrest, from 11:30 or 11:40 P.M. until 12:20 or 12:25 A.M. After obtaining some beer and wine, they parked the auto in the parking lot of the building in question and talked until 12:25 A.M. Thompson’s testimony was supported by that of Donald Stevens, Mitchell Forrest and defendant.

Mitchell Forrest further testified that the stairwell in the apartment building was narrow and dark, and that on the evening in question the light in the eighth floor stairwell was not working.

Defendant’s first contention is that the trial court committed reversible error in not ordering the State to produce a previous written statement of Albert Brown. Defendant argues that the defendant was prejudiced by denial of the opportunity to impeach Brown by means of such a statement.

During cross-examination, Albert Brown stated that he had given a description of his assailant to the police and they had written it down. At this juncture defense counsel requested that the State produce this particular statement. The prosecutor initially made a general objection to this request. Subsequently, the prosecutor stated that defense counsel must be referring to a police case report in which “Brown gives a general description to the police, and they put it in the report.” The following colloquy then took place:

“PROSECUTOR: And the State has no statement.

DEFENSE COUNSEL: The State has in their files no paper containing a statement—

PROSECUTOR: No.

DEFENSE COUNSEL: — made by Mr. Brown to the police? PROSECUTOR: No.

DEFENSE COUNSEL: Okay.”

The State is required to furnish on demand to the defendant for impeachment purposes specific statements in its possession made by a State’s witness which have been established to exist and which are in the witness’s own words or substantially verbatim. (People v. Neiman, 30 Ill.2d 393, 197 N.E.2d 8.) Where a request is made for the production of such specific statements, and there are indications that such statements are in the possession of the prosecution which might be useful to the defendant for impeachment purposes, a right sense of justice demands that such should be made available to the defense. (People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1.) However, this rule applies only to substantially verbatim statements, not to “thumbnail” summaries (People v. Torello, 109 Ill.App.2d 443, 248 N.E.2d 725), and a proper foundation must be laid by the defense to determine the existence of the statement. (People v. Golson, 37 Ill.2d 419, 226 N.E.2d 610.) Once the defense has adduced evidence indicating the existence of a statement reduced to a writing in the possession of the prosecution, it is entitled to an in camera inspection of such writings by the court to ascertain whether the statement comes within the purview of the rule. People v. Montgomery, 51 Ill.2d 198, 282 N.E.2d 138.

In the instant case, the defense did elicit testimony from Brown that he had given a description of his assailant to the police and that they had written it down. However, in the face of the Assistant State’s Attorney’s unequivocal denial of the existence of any substantially verbatim statement, defendant did not request the court to ascertain through an in camera inspection whether such a statement was in the State’s possession. Indeed, the record indicates, as noted above, that defense counsel apparently accepted the prosecutor’s declaration that the State had no such statement in its possession.

Our Supreme Court has recognized that the failure to request an in camera inspection by the court amounts to. a waiver of this right. (People v. Wright, 30 Ill.2d 519, 198 N.E.2d 316.) And it has been held in circumstances similar to the present case that the failure to request the police report or an in camera examination by the court does constitute a failure to lay a proper foundation to compel production, and waives any right to such statement. (People v. Lanier, 98 Ill.App.2d 89, 240 N.E.2d 288; People v. Hill, 98 Ill.App.2d 352, 240 N.E.2d 801, cert. denied, 395 U.S. 984.) In each of these cases, defense counsel, after eliciting testimony from a State’s witness that the police had written down a statement, failed to request a court examination of the State’s files to ascertain whether a substantially verbatim document existed. In the instant case, there was a failure to request a court examination of the file plus an explicit acceptance by the defense of the prosecutor’s denial that he- had any such statement in his possession. The trial court did not commit reversible error in failing to require the State to furnish defendant with an alleged statement of the State witness.

Defendant also argues that the court’s finding of delinquency was not adequately supported by the evidence offered at trial. He argues that the identification testimony of the Browns was confusing and contradictory, especially regarding defendant’s height, and that the alibi testimony of the four defense witnesses further demonstrated that the evidence, as a matter of law, was insufficient.

If a criminal offense is the basis for a charge of delinquency the standard of proof is the same as that in a criminal proceedings, proof beyond a reasonable doubt. (Ill. Rev. Stat. 1971, ch. 37, par. 704 — 6; In re Interest of Landorf, 7 Ill.App.3d 89, 287 N.E.2d 21.) We believe that the State satisfied its burden of proving defendant guilty beyond a reasonable doubt.

It is within the province of the trier of fact, with a superior opportunity to hear the testimony and observe the demeanor of witnesses, to judge credibility, choosing whom to believe and not to believe. (People v. Hyde, 1 Ill.App.3d 831, 275 N.E.2d 239.) And discrepancies in the testimony of witnesses do not necessarily destroy credibility. (People v. Martinez, 4 Ill.App.3d 1072, 283 N.E.2d 268.) On review the trier of fact’s judgment regarding the sufficiency of identification testimony will not be disturbed unless the evidence is so improbable or unsatisfactory as to, as a matter of law, create a reasonable doubt of defendant’s guilt. People v. Adams, 8 Ill.App.3d 8, 288 N.E.2d 724.

In the instant case, the State presented two eyewitnesses who both positively identified defendant as their assailant. They observed defendant before, during and after the incident. Although the light bulb on the eighth floor landing was out, there was some light, and the eyewitnesses had an opportunity to view defendant at close quarters for five to ten minutes. While Mr. Brown’s description of defendant’s height was faulty, his wife explained that she was unable to judge defendant’s height because he was on a different level of stairs. Moreover, there was no obligation on the trial court to believe the alibi evidence presented by the defendant. (People v. Jackson, 95 Ill.App.2d 28, 237 N.E. 2d 858.) The trial court chose to accept the testimony of the eyewitnesses rather than the alibi evidence offered on behalf of defendant. We cannot say that the court’s determination was erroneous.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

SCHWARTZ and McGLOON, JJ., concur.


text:
    Robert E. Gordon et al., Plaintiffs-Appellees, v. Safeway Insurance Co., Defendant-Appellant.
    (No. 55678;
    First District (2nd Division)
    May 29, 1973.

      Parillo, Sims and Bresler, of Chicago, (David J. Weiss, of counsel,) for appellant.
    Gordon and Brustin, Ltd., of Chicago, (Robert E. Gordon and Michael W. Schaefer, of counsel,) for appellees.
   PER CURIAM.

DOWNING, J., took no part.


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Bey, Defendant-Appellant.
    (No. 56769;
    First District (2nd Division)
    May 29, 1973.

      James J. Doherty, Public Defender, of Chicago, (Shelvin Singer, Assistant Public Defender, of counsel,) for appellant
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and Mark T. Zubor, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

On 12 August 1970, in Indictment No. 70-2362, defendant was charged with murder (Ill. Rev. Stat. 1969, ch. 38, sec. 9 — 1), and in companion Indictment No. 70-2363 defendant was charged with armed robbery (Ill. Rev. Stat. 1969, ch. 38, sec. 18 — 2). The murder and the armed robbery occurred on the same day, but were unrelated incidents. On the murder charge, one Isaac Smith was a co-defendant. Smith was subsequently severed for trial, and his trial took place prior to defendant’s trial. The two charges against defendant were then consolidated on 13 September 1971, which was the date on which defendant’s trial began. On 13 August 1970, defendant had been arraigned and had pleaded not guilty to each charge. Pending trial, defendant remained in custody. The cases were continued from time to time, either on motion of court, motion of defendant or motion of State until 11 August 1971.

On 11 August 1971, the State made an oral motion to extend by 30 days the statutory 120 day period which represents the legislative implementation of the constitutional right of a defendant who is in custody to a speedy trial, and to continue the cases for that period of time. This so-called Fourth Term Act is III. Rev. 1971, ch. 38, sec. 103 — 5. Subsection (c) of that section provides as follows:

“If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later day the court may continue the cause on application of the State for not more than an additional 60 days.”

The parties agreed that the last day of the normal 120 day period was 17 August 1971 (six days later). Defendant objected to the State’s motion for an extension and a continuance on the ground that the defendant, who was in jail, was and had been ready for trial, and that the motions represented a dilatory tactic on the part of the State. Defense counsel, however, specifically waived any objection to the oral, rather than written, nature of the motion. After argument by counsel, the trial court granted the motion, extended the statutory 120 day period by 30 days to 17 September 1971 (actually 31 days, because the month of August has 31 days), and continued the cases for 33 days from 11 August 1971 to 13 September 1971.

On 13 September 1971, defendant’s bench trial began on both charges, which had that day been consolidated for trial. Defendant was found not guilty of the murder charge, but guilty of the charge of armed robbery, on which defendant was then sentenced to a term of not less than five years nor more than ten years in the Illinois State Penitentiary.

Defendant appeals from his conviction and sentence for armed robbery. His sole contention on appeal is that the trial court prejudicially abused its discretion when it extended the Fourth Term for 30 (actually 31) days and continued the cases for 33 days on a motion by the State which was not written, not supported by affidavit, and not supported by any evidence whatsoever.

It is clear from the record that defendant’s counsel specifically waived any objection to the oral nature of the motion; even had he not done so, section 103 — 5(c) has been construed not to require a formal written motion. (People v. Canada (1967), 81 Ill.App.2d 220, 225 N.E.2d 639.) An informal oral motion suffices. (People v. Moriarity (1966), 33 Ill.2d 606, 213 N.E.2d 516.) Further, the section has been construed not to require that the motion be supported by affidavit. (People v. Canada (1967), 81 Ill.App.2d 220, 225 N.E.2d 639.) Hence, the sole potentially valid contention of defendant on this appeal is that the section at least requires that the motion be supported by evidence of some sort and that this motion was not supported by evidence of any sort.

We note that the motion was also a motion to continue the cases, and that in fact the cases were continued for 33 days. The statute providing for continuances in criminal cases is Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 4. Subsection (a) of that section provides that either defendant or the State may move for a continuance, and that, if such a motion is made more than 30 days after arraignment, the court may require that the motion be supported by affidavit. Subsection (c) (2) of that section provides that such a motion made by the State more than 30 days after arraignment may be granted when a material witness is unavailable and the prosecution will be prejudiced by the absence of his testimony, unless defendant will stipulate as to the witness’ testimony. Subsection (e) of that section provides that all motions for a continuance are addressed to the discretion of the court and shall be considered in the light of the diligence shown by the moving party. Hence, in order to be so considered, the moving party must make some type of showing of diligence. We assume, therefore, that defendant’s contention is not only that the motion to extend the Fourth Term must be supported by evidence of some sort under the provisions of section 103 — 5 (c), but also that the motion to continue must be supported by some type of showing of diligence under the provision of section 114 — 4(e).

Consideration of this sole potentially valid contention of defendant on this appeal requires a scrutiny of the record as to what occurred at the hearing on the State’s dual oral motion on 11 August 1971. The State began by making a statement for the record. That statement first alleged that the State had sent out police officers in an attempt to locate necessary witnesses. The necessary witness on the murder charge was one Freddie Lee Scott, who was an eye-witness to the murder; the police officers found that he was no longer living at the only address available to the State. The necessary witness on the armed robbery charge was one Lee Wilson, who was the victim of the robbery. At the time of the armed robbery, the said Lee Wilson was working as a ticket and fare taker for the Chicago Transit Authority. The police officers sent out by the State found that Lee Wilson was no longer living at the only address available to the State, and was no longer in the employ of the Chicago transit Authority. Hence, it had become necessary for the State to attempt to locate the two necessary witnesses through its investigative personnel, which the State was doing. The State then alleged the probability that the witnesses would be found through further investigation during the requested 30-day extension of the Fourth Term and the requested 30-day continuance. Defense counsel thereupon objected to the State’s dual motion, with particular reference to the extension of the Fourth Term period, because the defendant, who was in jail, had been answering ready and demanding trial and felt that the State’s motion was a mere dilatory tactic by which the State was attempting to extend defendant’s time in jail while it looked for witnesses. At this point the trial judge remarked that, with respect to witness Scott, the judge knew that there had been difficulty in locating him for the murder trial of Isaac Smith; that the judge could not recall whether he had had to extend the Fourth Term in respect of Isaac Smith; but that the judge thought witness Scott had become available on the last day of Isaac Smith’s Fourth Term, but in any event the State had located him.

The trial judge then inquired about witness Lee Wilson, the victim of the armed robbery, and was informed about the circumstances relative to Lee Wilson. After defense counsel had waived notice of written motion, the State re-alleged the exercise of due diligence in seeking to locate the two witnesses and the materiality of their testimony. Thereupon, the trial judge granted the State’s motion for a 30-day extension of defendant’s Fourth Term period to 17 September 1971 (actually a 31-day extension) and a 33-day continuance of the cases until 13 September 1971.

It is, therefore, clear from the record that the State alleged facts demonstrating diligence in support of its dual motion, and that defendant did not controvert the alleged facts, but merely asserted that the State’s motion was a dilatory tactic. We hold that the alleged facts demonstrating diligence, in the absence of any denial by defendant of the truth of the alleged facts, constituted a sufficient showing of diligence to satisfy the requirement of section 103 — 5(c) and section 114 — 4(e) without the production of any evidence by the State to support this allegation of fact, and that the trial judge did not abuse his discretion in relying upon those undenied allegations of fact as constituting an adequate showing of diligence for the purposes of section 103 — 5(c) and section 114 — 4(e).

Whether the State must present evidence to support its allegation of fact in a motion for extension of the Fourth Term period and for a continuance appears to be a question of first impression in this State. Prior cases have held that, absent a showing to the contrary, it will be assumed that the court had a proper basis for granting such a motion. (People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804.) These holdings would seem to place the burden of procedure as to the issue of diligence upon the defendant. We think that such a construction of the Statute is both erroneous and fundamentally unfair to the defendant, because defendant is not in possession of the facts necessary to make such a prima facie showing. Under section 103 — 5(c), the statute requires the court to make a “determination”; this requirement implies a finding of fact, which would normally require evidence to support such a finding of fact. Under section 114 — 4(e), motions for a continuance are to be considered in the light of diligence shown by the moving party; again, this would require some showing of diligence by the moving party. Despite some loose language used in a purported paraphrase of the present section 103 — 5(c) to the effect that the court need merely be “satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day” (People v. Tamborski (1953), 415 Ill. 466, 114 N.E.2d 649), no case has been cited to us which has specificaUy held that no evidence whatever need be presented to support the motion of the State for extension and continuance.

We hold that the two sections involved require the State as the moving party to make a showing of diligence which would enable the court to determine that the State has exercised diligence; that allegations of fact in support of such a motion by the State will prima facie satisfy the State’s burden to make such a showing in the absence of any denial of those allegations by defendant which would serve to put those allegations at issue; and that, should defendant by denial put those allegations of fact at issue, then the State must present evidence in support of those allegations.

In the instant case, the record shows that the State made allegations of fact in support of its dual motion. The record also shows that defendant did not deny those allegations of fact so as to put those allegations at issue. Hence, the State was not required to present any evidence in support of those allegations.

We conclude that the trial judge did not abuse his discretion in granting the dual motion of the State.

Affirmed.

STAMOS, P. J., and LEIGHTON, J., concur.


author: Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Klaus Wolfram, Defendant-Appellant.
    (No. 57068;
    First District (2nd Division)
    May 29, 1973.
    Robert S. Bailey and Arthur E. Engelland, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Klaus Wolfram (defendant) was found guilty, after a jury trial, for the offense of burglary. He was sentenced to a term of 3 to 5 years in the Illinois State Penitentiary.

This appeal presents four issues: (1) was defendant’s confession voluntary; (2) should a tire iron, seized ás a derivative result of the confession, be suppressed; (3) can defendant’s testimony at a hearing on a motion to suppress a confession be used for impeachment of the defendant at the trial; and (4) does defendant have standing to object to a search of another’s house.

On the morning of April 2, 1968, an Oak Park, IUinois pharmacist returned to his drug store, and, upon opening it for the day’s business, found a door, two windows, and a window casing damaged, a number of drawers open, and a quantity of narcotics and money missing.

On April 4, 1968, a detective in the Forest Park police department received telephone information that narcotics were located in the home occupied by Gregory Glos. The Oak Park police department was also contacted. Thereupon, a detective from the Oak Park police department contacted the father of Gregory Glos and, with the consent of the father, they searched the father’s home and seized a quantity of narcotics. While they were in the house, Gregory Glos returned and assisted the father and the detective in locating the narcotics.

Gregory Glos, on April 3, 1968, had purchased the narcotics at a suburban motel from the defendant and one Danny Demetri.

At about 4:30 P.M. on April 4, 1968, the defendant was arrested and taken to the Oak Park police station. On the arrival at the police station, defendant’s eyes were dilated, his speech slurred and incoherent. He staggered when he attempted to walk. According to the police, the defendant appeared to be under the influence of “something,” although no alcohol smell was detected. However, defendant was given his constitutional rights at that time. Between 4:30 P.M. and 12:15 to 12:30 A.M., defendant slept at the police station.

At 12:30 A.M. the following morning, defendant was questioned at the Oak Park police station. At that time he was again informed of his constitutional rights. Defendant acknowledged understanding his rights and declined an opportunity to use the telephone to call an attorney. Defendant, thereupon, confessed his participation in the drug store incident. In his confession he admitted that he and two other men had used a tire iron to gain entry to the pharmacy. Money and merchandise, including narcotics, were removed from the pharmacy. After giving an oral confession, the defendant refused to sign a written statement detailing the facts of the burglary. However, he accompanied the Oak Park police officers to his home, where he obtained car keys, proceeded to his backyard, opened the trunk of a car, and pulled out the tire iron. The defendant admitted using the tire iron at the burglary.

At the hearing on a motion to suppress his confession, defendant testified that he was in Forest Park on April 4, 1968 when he was apprehended by the police. He also testified that he had taken tuinols and seconals prior to the time he was apprehended. Defendant further testified that he had a complete loss of memory from approximately 4:30 P.M., April 4, 1968 to the next morning when he was taken to court.

At the trial, defendant testified that on April 4, 1968, he had taken three drugs: tuinols, seconals, and morphine taken with a needle. He also testified he did not recall being arrested. The trial court permitted impeachment of the defendant on the question of his adding “morphine taken with a needle” to the list of drugs testified to in the hearing on the motion to suppress.

Defendant contends his oral confession to the Oak Park police was involuntary. An evidentiary hearing on defendant’s motion to suppress his confession was heard by the trial court out of the presence of the jury. Defendant makes no claim of police brutality. After listening to the testimony of defendant and the three police officers involved in questioning defendant, the trial court found that at 12:15 or 12:30 A.M., defendant was no longer under the influence of something, that he had been given his constitutional rights (as required in Miranda v. Arizona, 384 U.S. 436) and defendant understood them. The motion to suppress the confession was denied.

Defendant urges that nothing in the record supports a finding that his confession was the product of a rational intellect and a free will. His contention is based on the evidence which clearly established that at the time of defendant’s arrest at 4:30 P.M. on April 4, his eyes were dilated, he was staggering, not coherent, and under the influence of something.

Defendant, on the motion to suppress, testified that prior to 4:30 P.M., he had taken 5 or 6 tuinols, a barbiturate drug and sleeping pill, and also took seconals, another barbiturate drug; that he did not remember anything thereafter until he had breakfast and coffee before going to court; and that he did not remember talking to anybody at 12:30 A.M. on April 5.

Three police officers, who saw defendant at 4:30 P.M. and 12:30 A.M., testified. His condition at 4:30, as testified to by the officers, is summarized above. At 12:30 A.M., according to the officers he was normal, coherent, and walked under his own power.

On the question of voluntariness, defendant stresses Townsend v. Sain (1962), 372 U.S. 293; In re Cameron (1968), 68 Cal.2d 487, 439 P.2d 633, 67 Cal.Rptr. 529; and People v. O’Leary (1970), 45 Ill.2d 122.

In Townsend, a case involving a confession from a defendant under the influence of drugs, including a “truth serum” administered by a police physician, the Supreme Court at page 307 said:

“Numerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced. These standards are applicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a ‘truth serum.’ It is not significant that the drag may have been administered and the questions asked by persons unfamiliar with hyoscine’s properties as a ‘truth serum,’ if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible.

In Cameron, the Supreme Court of California considered four confessions. One confession under the influence of alcohol (.18 alcohol blood level) was held voluntary. The other confessions were obtained after Cameron was injected (while under the influence of alcohol) with 300 mgs. of Thorazine; these confessions were rejected on the theory that Cameron’s will was overborne because of impairment of his ability to exercise his rational intellect and free will.

In O’Leary, the police administered tear gas and placed O’Leary in a small cell. One-half hour later he was released from the cell and confessed. At page 125 the Illinois Supreme Court said:

“The question of the voluntariness of these statements and the admissibility of the pry bar is for the trial court to determine, and its determination depends not upon any one factor, but on the totality of all the relevant circumstances. People v. Taylor, 40 Ill.2d 569, 573; People v. Hudson, 38 Ill.2d 616, 619.”

The facts in each of the aforesaid cases are easily distinguished from the facts in this case. However, the legal principle common to each of these cases is significant.

The trial judge saw all the witnesses. Applying the test of the totality of all the relevant facts, as testified to in the hearing on the motion to suppress, the trial judge concluded defendant’s confession was voluntary. We find there is substantial evidence to support the trial court’s conclusion. The record is crystal clear that defendant’s condition, on April 4 and 5, was not caused by any drugs administered by the police, rather it was self-inflicted. Likewise, the confession was not caused by any acts of coercion.

Having so concluded, and based on the record in this case, defendant’s claim that the tire iron, seized as a derivative result of defendant’s confession, should have been excluded, is likewise denied.

During the course of the jury trial, defendant testified that he could not remember what occurred on April 4, 1968; that he took tuinols, seconals, both sleeping drugs, and morphine; that he did not remember talking to police officers on either April 4 or 5. On cross-examination, over objection of defendant, plaintiff was permitted to impeach defendant by using a portion of the defendant’s testimony on the motion to suppress, as follows:

“Q: Mr. Wolfram, do you recall being asked this question and do you recall giving this answer. ‘Calling your attention to the 4th day of April, 1968, were you apprehended? Yes sir.’

Do you recall being asked that question and do you recall giving that answer?

A: Yes, sir.

Q: Do you recall being asked this question. Do you recall giving this answer. ‘Where was that at? Answer: Forest Park, sir.’

Do you recall being asked that question and do you recall giving that answer?

A: Yes.

Q: Do you recall being asked this question and do you recall giving this answer. ‘Question: What had you taken prior to that time? Answer: Drugs. I was taking Tuinol which is a barbiturate drug. It is a sleeping pill. I take about four, five or six of those. I was taking Seconal which is another barbiturate drug. I was pretty well gone. I didn’t remember nothing.’

Do you recall being asked that question and do you recall giving that answer?

A: Yes.”

Defendant strongly urges this court to hold that the use of his testimony at a hearing on a motion to suppress his confession cannot be used to impeach his trial testimony. Defendant contends that to permit such a procedure will have a chilling effect on the rights of defendants under similar situations. Based on the facts in this case, we do not agree.

Defendant relies heavily on Simmons v. United States (1968), 390 U.S. 377. There the Mai court denied defendant’s motion to suppress evidence, allegedly, illegally seized, and allowed the prosecution to use defendant’s testimony at the hearing to suppress, for purposes of impeaching his testimony at trial on the issue of guilt. The Supreme Court held, that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Simmons is distinguishable from the case at hand on two grounds. In Simmons, in a pretrial motion to suppress, the defendant, to maintain standing, was required to claim ownership of seized articles, while defendant Wolfram was burdened with no such standing requirement. Secondly, while the prosecution in Simmons used the testimony against the defendant on the issue of guilt, as part of its case in chief, in the instant case plaintiff did not use defendant’s testimony to show guilt but rather for impeachment purposes.

In People v. Luna (1967), 37 Ill.2d 299, cited by defendant, the Illinois Supreme Court held it was error for the trial court to permit the prosecution to impeach a defendant’s testimony, at a trial, by using his prior testimony in support of his motion to suppress, when that testimony was substantially the same as a suppressed confession. In the instant case the trial court did not suppress defendant’s confession and the impeaching statements were not related to defendant’s guilt.

In Harris v. New York (1971), 401 U.S. 222, the Supreme Court found no error where statements from a confession, inadmissible under Miranda v. Arizona, 384 U.S. 436, were used to impeach a defendant’s testimony at trial. Harris did not claim the statements made to the police were coerced or involuntary. At pages 225 and 226 the court said:

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77 (1969); cf. Dennis v. United States, 384 U.S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.2 (Footnote omitted.)
# # #
The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.”

People v. Moore (1973), 54 Ill.2d 33, involved a defendant’s oral statement used on rebuttal for impeachment purposes. The trial court had denied defendant’s motion to suppress the oral statement based on the alleged failure of properly advising the defendant of the Miranda warnings. The Illinois Supreme Court, based on the facts in the Moore case, applied the ruling of Harris v. New York (1971), 401 U.S. 222. Also see People v. Byers (1972), 50 Ill.2d 210, 212-213, and People v. Speed (1972) 52 Ill.2d 141, 145-146.

The record shows defendant made no claim of police coercion. The trial court properly held the defendant’s confession was voluntary. Under these circumstances, and in pursuit of the search for truth, the trial court did not err in permitting the impeachment.

Lastly, defendant contends the trial court erred in admitting into evidence narcotic drugs, seized in the course of a search, which violated defendant’s rights under the fourth and fourteenth amendments to the United States Constitution. The evidence established that the narcotics were obtained from the home of William GIos, and with his consent. Nothing was seized from the person or property of the defendant. As to tírese narcotic drugs, defendant has no standing to assert any violation of Fourth Amendment rights. See Alderman v. United States (1969), 394 U.S. 165.

For the reasons given, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

LEIGHTON and HAYES, JJ., concur.

       The record is not clear, but the court date was apparently during the morning of April 5, 1968.

        Reck v. Pate, 367 U.S. 433, 440.

        Blackburn v. Alabama, 361 U.S. 199, 208.

      (Footnotes 4 and

       omitted.)


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William Jackson, Defendant-Appellee.
    (No. 56269;
    First District (3rd Division)
    May 31, 1973.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel,) for the People.
    No appearance for appellee.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Dixon (Impleaded), Defendant-Appellant.
    (No. 56381;
    First District (3rd Division)
    May 31, 1973.

      Arthur Lewis Belkind, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and John C. O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

In November, 1970, the defendant, Thomas Dixon, was indicted for the offenses of armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2), attempted murder (Ill. Rev. Stat. 1969, ch. 38, par. 8 — 4), aggravated battery, in that he committed a battery while armed with a deadly weapon (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(b — 1)), a second count of aggravated battery, in that he committed a battery which caused great bodily harm (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(a)), and a third count of aggravated battery, in that he committed a battery causing permanent disfigurement (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4(a)). Shortly after a jury trial was begun, the defendant notified the Rial judge that he wished to change his plea to guilty. A misRial was declared, and the defendant was admonished and his plea accepted. The defendant was sentenced to serve two to six years for the offense of armed robbery, two to six years for attempted murder, two to six years for aggravated battery while aimed with a deadly weapon, and two to six years for aggravated battery causing permanent disfigurement, all sentences to run concurrently. There is no indication in the record as to how the third count of aggravated battery was disposed of by the Rial court.

In this appeal the defendant argues that he was improperly convicted of the two charges of aggravated battery, because the elements of those crimes are the same acts which support the offense of attempted murder, and that the sentence imposed upon him was excessive.

We affirm the judgment as modified.

The stipulated facts that were presented to the Rial court are as follows: On September 16, 1970, at approximately 9:30 P.M. Herbert Simpson was walking in front of 3517 West Floumey when he was accosted and robbed by three men. The defendant, whom he later identified as one of the three, had a sawed-off shotgun in his possession, and the other two men were also armed. The three took approximately $26 from him and walked away.

After walking a short distance, one of the three turned and fired one shot at Mr. Simpson, but did not strike him. Then the defendant Dixon ran back to where Mr. Simpson was standing, and from a distance of six to seven feet he fired the shotgun, striking Mr. Simpson on the right side of the head and body. Mr. Simpson survived the attempt on his life, but as a result was permanently disfigured and lost the vision of his right eye.

Shortly after the shooting, Mr. Simpson identified one of his assailants from a group of photographs shown to him by the police. The suspect identified by Simpson was arrested and subsequently implicated the defendant Dixon and a third man who were also arrested. All three were , identified by their victim and subsequently indicted for armed robbery, I attempt murder, and three counts of aggravated battery. All three defendants eventually pleaded guilty and were sentenced for four of the five offenses as aforementioned.

The defendant’s first contention is that the two offenses of aggravated battery of which he was convicted must be reversed, because the same acts that constituted the elements of these two offenses are necessarily included in a third offense of which he was also convicted, attempt murder.

All three crimes resulted from the same conduct on the part of the defendant when, after the armed robbery was completed, he returned to the victim and shot him. It was error for the defendant to be convicted of two offenses of aggravated battery when the two charges arose from but one act (People v. Gaines, 11 Ill.App.3d 14, 295 N.E.2d 569), and it was error for him to be convicted of either charge of aggravated battery and attempt murder because both crimes resulted from the same conduct, and aggravated battery is a lesser included offense of attempted murder. (People ex rel. "Walker v. Pate (1972), 53 Ill.2d 485, 292 N.E.2d 387; People v. Peery (1967), 81 Ill.App.2d 372, 225 N.E.2d 730.) The defendant’s convictions for the two lesser included offenses of aggravated battery are, therefore, vacated.

The defendant also argues that the sentences imposed for the offenses of armed robbery and attempt murder are excessive and should be reduced. We have reviewed all the evidence adduced during the hearing in aggravation and mitigation and find that the sentence imposed does not manifest an abuse of discretion on the part of the trial court, nor is it a great departure from the normal sentence imposed for similar offenses under similar circumstances. People v. Caldwell (1968), 39 Ill.2d 346, 236 N.E.2d 706; People v. Hobbs (1965), 56 Ill.App.2d 93, 205 N.E.2d 503.

For these reasons the concurrent sentences for armed robbery and attempt murder will be affirmed, and the judgments entered on the charges of aggravated battery are vacated.

Judgment affirmed as modified.

SCHWARTZ and McNAMARA, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The County of Du Page, Plaintiff-Appellee, v. Richard J. Kussel, Defendant-Appellant.
    (No. 72-81;
    Second District
    June 8, 1973.

      David K. Anderson, of Skokie, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Edward J. Vertovec and James F. Campion, Assistant State’s Attorneys, of counsel,) for the appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff, the County of Du Page, filed a small claim complaint seeking $152.18 for sewer services allegedly rendered to defendant, Richard Kus-sel. The defendant counterclaimed for damages alleged to be the result of the surcharging of the plaintiff’s sewer line, and sought an injunction to remove the sewer line from his property. A motion to dismiss the counterclaim was denied and the case was transferred to the general division of the court. The court, in a bench trial, found for the plaintiff on all issues and defendant appeals.

We affirm that portion of the judgment below dealing with plaintiff’s claim for sewer services. In defendant’s answer to the plaintiff’s complaint he alleged as an affirmative defense that he had acquired from plaintiff’s predecessor in title an absolute right to sewer services for as long as he permits plaintiff to operate the line over his property. He then alleged that he has permitted plaintiff to operate the sewer line on his property since the time when it was first installed. This admission supports the county’s claim for sewer services and it also answers defendant’s contention that the sewer line over his property constitutes a taking of private property for public use without just compensation.

The issues raised by the counterclaim require more detailed discussion.

The sewer line in question runs in a north-south direction, and crosses the west part of defendant’s property slightly west of defendant’s swimming pool. Two manholes are on the property, one about 15 feet southwest of and 7 feet higher than the pool, and the other on lower ground at the north end of the property. Concrete flat work surrounds the pool. The flat work at the south end of the pool extends for about 7 feet and at its edge is a concrete curb about 4 inches high, on which there is a flagstone wall of 2-2V2 feet in height. South of the wall is a garden that extends to the manhole cover. Defendant’s house is northeast of the pool, and immediately south of the house is a retaining wall. The damage claimed is to the pool and to the retaining wall.

While there is some reference in the testimony to damage to the property and repairs made by the plaintiff prior to 1964, the damages sought involve an alleged condition in June, 1964. At that time defendant’s house was not being occupied, but defendant’s brother-in-law, Otto Stephanie, was on the property on various occasions. At some time prior to June 15, 1964, he noticed brown water dripping from the sidewalk at the north end of the pool. There was water running from the south, coming through and over the flagstone, draining over the concrete slab, and running up and underneath the pool. He testified that as the water went around to the east side, it was running into the pool and water was all around the pool. The pool was lifted up and “cocked over”, and was full of brown water. The concrete of the pool was bent and in several places it was raised dr lowered from the flat work around the pool. There was a crack which extended all the way from the east to the west side of the pool. Seeking the source of the water, Stephanie found a hole in the ground with standing water in it south of the southern manhole. He raised the manhole cover and saw no water so he climbed down into the manhole. He used a flashlight to look south into the sewer pipe and saw it was stopped up with rocks and debris about 3 feet from the manhole, with one stream of water about the size of a pencil squirting from it.

The witness testified that he had been on the property some 4 or 5 days earlier, at which time the pool was in good condition. The pool was filled with water during his absence. He was not present when the water entered the pool and did not recall any rainfall during this period.

After completing his investigation, Stephanie telephoned defendant, who went to the property. He observed that the pool was on an angle and was full of sewer water, fecal matter and toilet paper which he said came from a rupture in the sewer just south of the southern manhole. The pool had been heaved, raised up, and cocked on the side adjacent to the sewer line, and there a terrible stench. He said that “hydraulic” pressure had forced the retaining wall south of the house to crack and push in toward the house. He found numerous cracks in the foundation of the house, with water going through. He further testified that he was on the property when plaintiff started repair work and that the sewer pipe was found to be broken or collapsed about 3 or 4 feet south of the southern manhole, which pipe was replaced by the plaintiff.

Defendant called Robert Hadley, the superintendent of Public Works of Du Page County, under section 60, who testified that his records

showed that there had been a break in the dropline to the north of the southern manhole in June of 1964. Rudolph Parker, an assistant superintendent of Public Works in Du Page County, also stated he was aware of repair work done in June of 1964.

Hadley testified for the plaintiff as a licensed civil engineer and land surveyor with training in hydraulics and soils. He said that in his opinion, and under the conditions testified to, the sewer surcharge would not create sufficient hydrostatic pressure to lift or raise a pool full of water. On cross-examination, he stated he did not know the weight of the swimming pool either full or empty. He said he knew the weight of water and of concrete, but he did not know how many cubic feet of water this pool held, nor the width or thickness of the concrete in the pool. He did not know the hydrostatic pressure created by the effluent going under the pool. He said the weight being lifted would not affect the amount of pressure necessary to lift that weight, and that with a pool fuH of water, if you put water outside of it, it would take the same amount of pressure to lift a pound as it does to lift a miHion pounds.

Richard Kussel, the defendant, testified that he had a bachelor of science degree in mechanical engineering and had training in hydraulics. It was his opinion that under the circumstances of this case, the hydrostatic pressure created by the effluent coming from the broken sewer line could have lifted the swimming pool filled with water the distance that it was lifted.

Defendant contends that plaintiff was guilty of negligence in the operation and maintenance of its sewer system upon defendant’s property and that the court’s finding to the contrary is against the manifest weight of the evidence. Defendant also contends that the doctrine of res ipsa loquitur should be applied to the case. Plaintiff argues that the trial court’s finding that the county was free from negfigence is not against the manifest weight of the evidence; and that the doctrine of res ipsa loquitur was not pleaded, not argued in the trial court, and in any event, is not supported by the record.

As material here, the counterclaim charged:

“3. Counterdefendant and its predecessors have been permitted for a long period of time to run and operate the sewer line in question in, over, through and across the property in question for a, long period of time under through and by virtue of a continuing, express, oral agreement that the Counterclaimant and his predecessors and his successors would and will be' indemnified from any damages to the property in question resulting from the existence of said sewer line in, through, along, upon or across said property.
4. Commencing in about February, 1964, said sewer line running in, through, along, upon and across said property erupted on numerous occasions, causing, in each instance, great damage to the property in question and great damage to counterclaimant and his predecessors and successors.
5. As a direct and proximate result of the foregoing “wrongful acts and omissions” of the counterdefendant the property in question and the counterclaimant and his successor have sustained great damages in the sum of in excess of $50,000.”

In order to rely on the principles of res ipsa loquitur, the pleadings must first be broad enough to support a charge of negligence. (Sutcliff v. Fort Dodge Gas & Electric Co. (Iowa 1934), 257 N.W. 406, 409.) Once finding that the pleadings support a negligence claim, res ipsa loquitur may be invoked only on a charge of general negligence, rather than on specific allegations of negligence. (Erckman v. Northern Illinois Gas Co. (1965), 61 Ill.App.2d 137, 144.) The essence of the doctrine and its consequences on the conduct of the trial place the burden on the counterclaimant to apprise the counterdefendant of his intent to rely on it by concise allegations in general terms. Erckman v. Northern Illinois Gas Co. (1965), 61 Ill.App.2d 137, 144-145.

An examination of the pleadings leads us to conclude that they are at best ambiguous. Paragraph 3 would appear to present a contract theory while paragraph 5 can be interpreted as an attempt to state a cause of action in negligence. However, the countercomplaint does not allege counterplaintiff’s freedom from contributory negligence, which is a required pleading in a negligence action. In addition, the complaint nowhere refers to counterdefendant’s acts as having been negligent, careless, lacking in due care or the like. Rather, the complaint refers to “wrongful” acts and omissions. The term “wrongful” has occasionaUy been equated to die term “negligent” (Belmont v. City of New York (N.Y. 1920), 182 N.Y.S. 173, 174), but generally has been considered a more comprehensive term, including criminal, willful, wanton, reckless, and aU other acts which in ordinary course will infringe upon rights of another to his damage. (Howard’s Admr v. Hunter (Ky. 1907), 104 S.W. 723, 724; Judson v. People’s Bank & Trust Co. of Westfield (N.J. 1954), 110A.2d 24, 35. See generally, 46 Words and Phrases 495-498.) A breach of contract has, in proper circumstances, been considered a “wrongful act”. (Application of Chiappinelli-Marx, Inc. (N.Y. 1961), 223 N.Y.S.2d 943, 945.) The “wrongful acts and omissions” referred to in the countercomplaint could well be interpreted as being the failure of counterdefendant to indemnify counterplaintiff pursuant to the agreement stated in paragraph 3. In any event, the pleadings are not suf-Bcientiy concise to charge general negligence or to inform counterdefen-dant that plaintiff intended to rely on the doctrine of res ipsa loquitur.

Notwithstanding this conclusion, we keep in mind that the trial court denied a motion to dismiss the complaint and proceeded to trial; If the trial clearly proceeded on a negligence theory and if the counterdefendant would not be prejudiced by applying res ipsa loquitur, this court could on its own motion amend the pleadings to comply with the proofs. (Ill. Rev. Stat. 1971, ch. 110A, par. 362(f); see Broberg v. Mann (1965), 66 Ill.App.2d 134, 138.) We are not justified in taking this approach on the record before us. Counterplaintiff produced no evidence of negligence on the part of the county. At the close of counterplaintiff’s case, counterdefendant moved for a directed verdict on the basis that the counterplaintiff failed to prove negligence or causation. Counterplaintiff responded that every element of its cause of action had been , proved, stating that the evidence showed that the sewer line broke, that this caused the damage complained of, and that the damage was irreparable. Counterplaintiff did not state that the evidence established control and maintenance of the sewer line by the counterdefendant, that the occurrence was such as would ordinarily not happen but for counterdefendant’s negligence, or that counterplaintiff was free from contributory negligence. In short, his response did not indicate that he thought himself to be proceeding under res ipsa loquitur. (See Metz v. Central Ill. Electric & Gas Co. (1965), 32 Ill.2d 446, 448-9; Traylor v. The Fair (1968), 101 Ill.App.2d 268, 274-5.) The court then asked the attorneys if negligence was the criteria that must be established. Counterplaintiff’s attorney stated, “I don’t think so”. Counterdefendant’s attorney did not answer on point. The court, in its memorandum opinion, gave as one of the reasons for its decision that the counterplaintiff failed to establish negligence on the part of counterdefendant.

It appears that there was confusion as to the theory of the action in the trial court. This being true, we cannot say that counterdefendant would not be prejudiced by an amendment of the pleadings. We affirm the trial court’s determination of this issue.

The final issue is whether an injunction should issue against plaintiff’s future operation of its sewer upon defendant’s property. Injunction is a proper remedy when an unlawful appropriation of land is attempted for the use of a public corporation which has not acquired the right of such appropriation by condemnation or otherwise. (Springer v. City of Chicago (1923), 308 Ill. 356, 364.) while a county has the authority to construct and maintain sewers and to acquire property for this purpose by purchase, condemnation, easement, etc. (Ill. Rev. Stat. 1971, ch. 34, pars. 3106, 3112.), there is no evidence that plaintiff has availed itself of any of these methods. The only evidence tendered by the county in support of a right to maintain its sewer line on defendant’s property absent defendant’s continued consent is that the developer who originally installed the line, and from whom the county acquired it, agreed with the lot owner to the south of defendant to give him a free connection in exchange for the right of installation in the ground. This arrangement with another, however, does not give the county a right to remain on defendant’s property. The consent defendant admits giving to operate the line on his property is revocable at any time. City of Kewanee v. Otley (1903), 204 Ill. 402, 413; Kellum v. Village of Greenup (1932), 265 Ill.App. 24, 26.

We agree with the court in Springer that, to avoid public inconvenience, a reasonable time should be allowed the county to agree with defendant on the amount of compensation to be paid, or to condemn the property. We therefore order that unless the county agrees on the compensation to be paid and pays it, or begins a condemnation proceeding within 60 days, a perpetual injunction will issue against the county’s occupying or using the property.

Taken with the case was plaintiffs motion to strike defendant’s brief, or a portion thereof. We have, in our discretion, considered only those portions of the brief which are in conformity with the Supreme Court Rules, and deny the motion.

We affirm the judgment below as it relates to plaintiffs complaint for sewer services and defendant’s counterclaim for damages. We vacate the order denying the injunction and remand with directions that the trial court proceed on the motion for an injunction in conformity with this opinion.

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

GUILD, P. J., and T. MORAN, J., concur.


author: Mr. PRESIDING JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Terry G. Flanigan, Defendant-Appellant.
    (No. 72-235;
    Second District
    June 8, 1973.
    Cuve M. Glosser, of Rochelle, for appellant.
    John B. Roe, State’s Attorney, of Oregon, (Richard L. Caldwell, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE GUILD.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffrey Clark, Defendant-Appellant.
    (No. 72-142;
    Third District
    June 8, 1973.

      Jack Rimland, of Chicago, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Kankakee County where the defendant Jeffrey Clark after trial by jury was found guilty of the crime of armed robbery and sentenced to a term of not less than four nor more than eight years in the penitentiary.

The defendant raises several issues for review, among which is his contention that the trial court committed reversible error by permitting an introduction into evidence of what in police parlance is referred to as a “mug shot” of the defendant from a previous arrest.

During the course of the trial the prosecution attempted to introduce in evidence People’s Exhibit Number 9, which consisted of two pictures of the defendant. The pictures were set forth on one piece of photographic paper and were what is known as “mug shots.” They portrayed the defendant in both a frontal and profile view, standing in front of a height chart with an identification sign hanging from his neck. The signs contained legends which set forth the name of the defendant, the words “Kankakee, 111. P.” and the numbers “69.” Such legends could only serve to impart the information that the defendant had a considerable time prior to his trial been arrested or apprehended by the Kankakee police department as the result of some difficulty with the law.

Counsel for the defendant objected to the admission of exhibit number 9 into evidence but after a conference with the court and the State it was agreed that the legend appearing on the frontal view of the defendant would be deleted by cutting it out. The legend on the profile view was not removed presumably because it was quite difficult to read. The exhibit was then permitted to go into evidence with the consent of counsel for the defendant.

This court recently considered the propriety of admitting into evidence “mug shots” like those which were admitted in the instant case. We concluded that the admission of the photographs was sufficiently prejudicial to deny the defendant his right to a fair trial, since on the face of them it was clearly shown that the pictures were not taken as the result of the charge for which the defendant was being tried. (People v. Hawkins, 4 Ill.App.3d 471, 281 N.E.2d 72.) In Hawkins we cited People v. Donaldson, 8 Ill.2d 510, 134 N.E.2d 776, which held that evidence which tends to show that an accused has committed crimes or acts of misconduct which are distinct and entirely unrelated to the one for which he is being tried is both incompetent and prejudicial. The “mug shots” in the instant case show that the defendant had been in the custody of the Kankakee Police Department in the year 1969 but he was being tried for a crime which occurred on June 29, 1970. The effort to remove the prejudicial effect of the “mug shots” by deleting the legend on the frontal view was ineffective since the legend containing the same information remained on the profile view of the defendant. In fact, an examination of the “mug shots” after the deletion could only lead the jury to speculate as to what information the deleted portion of the photograph had contained. The prejudicial effect of such evidence is of such magnitude as to overcome any relevancy or probative value that it may have had.

The State argues that the admission of the "mug shots” into evidence was agreed to by counsel for the defendant and that further this alleged error was not raised in the defendant’s motion for a new trial and consequently it was not preserved for review. Supreme Court Rule 615(a) (Ill. Rev. Stat. 1969, ch. 110A, sec. 615(a)) provides that plain error or defects affecting substantial rights may be noticed by reviewing court although they were not brought to the attention of the trial court. See People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432; People v. Shields, 9 Ill.App.3d 682, 295 N.E.2d 153; People v. Hawkins, 4 Ill.App.3d 471, 281 N.E.2d 72; and People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475.

It is clear that Supreme Court Rule 615(a) is permissive and it is within the discretion of the reviewing court to determine whether or not substantial rights of the defendant have been affected and thereby should be considered on appeal. The defendant’s right to a fair trial requires us to exercise such discretion and we have accordingly done so and for the reasons set forth we believe that the defendant is entitled to a new trial free from the prejudicial effects resulting from the admission into evidence of photographs of the kind and nature that were introduced during the course of his trial.

Having reached this conclusion it becomes unnecessary for us to consider the other assignments of error raised by the defendant in this appeal. For the reasons set forth we reverse the conviction of the defendant and remand this case to the circuit court of Kankakee County for a new trial.

Reversed and remanded.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Dorothy M. Juen, Plaintiff-Appellant, v. Kenneth J. Juen, Defendant-Appellee.
    (No. 72-161;
    Fifth District
    June 8, 1973.

      Dick H. Mudge, Jr., of Edwardsville, for appellant.
    Robert H. Rice, of Belleville, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the corut:

This is an appeal from the order of the circuit court of St. Clair County denying plaintiff-appellant’s motion to dismiss her complaint for divorce. Appellant filed a complaint for divorce on June 28, 1971. Defendant-ap-pellee filed an answer and a counterclaim for divorce. The case was called and evidence heard on December 9, 1971. The record suggests that the appellee voluntarily withdrew his counterclaim before the proceedings began. No evidence regarding the counterclaim was offered at the hearing.

The court took the case under advisement after stating that the divorce would be granted. The court forwarded preliminary findings concerning the property settlement to both counsel, after which appellant wrote a letter to the court in which she indicated that her attorney had not adequately represented the standard of living of the parties during their marriage. She requested a voluntary dismissal of her suit. Subsequently, appellant discharged her attorney and employed another, filed a complaint for separate maintenance and then filed a motion to dismiss the complaint for divorce. Appellee filed a motion to dismiss the complaint for separate maintenance.

A hearing was held in which the court denied appellant’s motion to dismiss the complaint for divorce and granted appellee’s motion to dismiss tire complaint for separate maintenance. The decree for divorce was filed and later amended on appellant’s motion. Appellant appeals from the court’s order denying her motion to dismiss and granting appellee’s motion to dismiss. She also appeals from the amended decree for divorce, asking that it be dismissed so she may pursue a remedy of separate maintenance.

The principal question presented on appeal is whether the trial court erred in refusing to dismiss a complaint for divorce after the evidence has been heard, but prior to the entry of a decree.

Section 52 of Chapter 110, Illinois Revised Statutes, provides as follows:

“(1) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part-thereof, as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent.”

The purpose of this section was to prevent a voluntary dismissal where it would be unfair or unjust to a defendant to permit it. (Fidelity and Casualty Co. of New York v. Heitman Trust Co., (1943), 317 Ill. App. 256, 268, 46 N.E.2d 155, 161. The court said:

“Prior to the passage of section 52 of the Civil Practice Act the complainant had an absolute right to have the cause dismissed at his costs and without prejudice at any time before final decree, if no cross-bill had béen filed * * *. This right was frequently abused, and it was to remedy the existing evil that section 52 was enacted.”

In Chicago Title and Trust Co. v. Cook County, (1935), 279 Ill.App. 462, 466, involving a construction and application of this section, the court said:

“The practice under the common law that permitted a plaintiff to take a nonsuit at any time before the decision by walking out of the courtroom, and the practice under section 70 of the old Practice Act which permitted a plaintiff to take a nonsuit * * * before it was submitted for final decision, often made the administration of justice a mere travesty. Evidence might be taken in a case for a number of days by both sides. Counsel might then argue at length and if, during the argument, it appeared from what the court had intimated that he was inclined to decide for the defendant, plaintiff had the absolute right to take a nonsuit. It was to remove this obvious defect in the law that the legislature enacted section 52 of the Civil Practice Act/’ ■

The terms nonsuit and voluntary dismissal without prejudice are used interchangeably because there is no difference in effect between them. Gilbert v. Langbein, (1951), 343 Ill.App. 132; Brown v. Lawler, (1906), 130 Ill.App. 540.

In applying section 52 to the instant case, the most important aspect to be noted is the trial court’s discretion. Dismissal after trial has begun is to be had only on terms fixed by the court. On appeal, the standard to be applied is simply whether the trial court abused its discretion. (Bauman v. Advance Aluminum Castings Corp., (1960), 27 Ill.App.2d 178, 169 N.E.2d 382; Voegele v. Kidd, (1958), 18 Ill.App.2d 400, 152 N.E.2d 887.) In the instant case, the trial court did not abuse its discretion in denying the plaintiff-appellant’s motion to dismiss. On the contrary, appellant’s noncompliance with the provisions of section 52 dictated that the motion be denied.

If we accept appellant’s statement in her brief that appellee never dismissed his counterclaim, the trial court was clearly correct because section 52 provides that appellant could not have dismissed her suit without the appellee’s consent. Even if the appellee did withdraw his counterclaim, as the record suggests, thus obviating the need for his consent, the appellant still failed to satisfy the requirements of section 52.

Section 52 requires that the plaintiff make a motion specifying the ground for dismissal, supported by affidavit or other proof. Appellant neither specified the grounds of dismissal nor supported her motion with an affidavit. She did state that she wished to pursue her remedy for separate maintenance. Her motion can in no way be interpreted as fulfilling the requirements of section 52. The court’s statement in Doody v. Doody, (1963), 28 Ill.2d 191, 190 N.E.2d 734, at 736, applies here:

“Finally, plaintiff contends that the Trial Court erred in denying her motion for a voluntary nonsuit, which was made on February 9, 1962, the day on which the Decree was entered. Section 52, the Civil Practice Act, provides that after the Trial had begun the plaintiff may dismiss only on terms fixed by the Court upon filing a stipulation to that effect signed by the defendant, or a Motion specifying the grounds for Dismissal, which shall be supported by Affidavit or other proof. The plaintiff’s oral Motion did comply with the Statute and it was not error to deny it.”

Although appellant’s motion in the instant case was written, it did not comply with the requirements of the statute.

Section 52 also provides that a plaintiff may dismiss only upon payment of costs. There is no indication in the record that appellant paid or tendered the payment of costs. On this basis alone, her motion to dismiss was properly denied. The court stated in Menard v. Bowman Dairy Co., (1938), 296 Ill.App. 323, 327, 15 N.E.2d 1014, 1015:

“In the instant case, it is also to be noted that the Motion made by plaintiff to dismiss the bill and the order submitted, proposed that the bill be dismissed upon plaintiff’s costs, No offer was made, by plaintiff, to pay all the costs. * * * It is very evident from the language of tire Statute that it was never intended that the plaintiff should be allowed to dismiss her bill after a large bill of costs had accrued through her doing, without paying them and for this reason alone, the Court was right in denying her Motion.”

Although it has been held that there is a public policy involved in divorce actions under which the state has a definite interest in protecting the continuance of the marriage relationship without destroying the rights of the parties, and under which the court should favorably receive motions for the voluntary dismissal of divorce cases (Gonzalez v. Gonzalez (1955), 6 Ill.App.2d 310, 127 N.E.2d 673), appellant’s motion in the instant case was properly denied. Since the appellant stated that she would pursue her remedy for separate maintenance if voluntary dismissal were granted, the public policy of protecting a continuing marriage relationship does not apply; and since granting appellant’s motion would be destructive of appellee’s rights in terms of costs and repetitious litigation, the trial court was not disregarding public policy in denying appellant’s motion to dismiss. On the contrary, the court was respecting the policy of discouraging vexatious litigation which was the purpose of Section 52.

Accordingly, the decision of the trial court is affirmed.

JONES and CREBS, JJ., concur.

       The only reference in the record apears on page 2 of the transcript, wherein the appellant’s attorney stated: “I don’t believe there is any jury demand. If any of us have demanded a jury, you are withdrawing your counterclaim * * *. We will just go into the cause of divorce”.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wesley W. Street, Defendant-Appellant.
    (No. 72-356;
    Fifth District —
    June 11, 1973.

      Meyer & Meyer, of Greenville, for appellant.
    John C. Reznick, State’s Attorney, of Vandalia, for the People.
   PER CURIAM:

Appellant was convicted upon his plea of guilty to possession of more than 30 but less than 500 grams of marijuana in Fayette County. Probation was denied and appellant was sentenced to a term of from one year to eighteen months in the penitentiary. Appeal here is based solely on the trial court’s alleged abuse of discretion in denying appellant’s motion for probation and imposing sentence.

While appellant does not so assert, it appears from the record that the trial judge failed to substantially comply with Supreme Court Rule 402 (Ill. Rev. Stat., ch. 110A, par. 402). The trial judge failed to advise appellant of his right to plead not guilty or persist in that plea (402(a) (3)), and that his plea of guilty waives his right to trial, with or without jury, and his right to confront witnesses against him (402(a)(4)). The judge further failed to determine whether any threats or promises had been made to induce the appellant to plead guilty (402(b)), and failed to determine on the record that a factual basis existed for the plea (402(c)).

For the foregoing reasons, the judgment of the circuit court of Fayette County must be reversed and remanded for new pleading.

Reversed and remanded.