author: MR. JUSTICE SEIDENFELD

text:
    Donald E. Yurs, d/b/a Yurs Funeral Home, Plaintiff-Appellant, v. Director of Labor, Department of Labor, State of Illinois, Division of Unemployment Compensation, Defendant-Appellee. Yurs Funeral Home, Inc., Plaintiff-Appellant, v. Director of Labor, Department of Labor, State of Illinois, Division of Unemployment Compensation, DefendantAppellee.
    Gen. No. 67-138.
    Second District.
    April 5, 1968.

      Redman, Shearer & O’Brien, of St. Charles, for appellant.
    William G. Clark, Attorney General, of Chicago, and John O’Toole and Donald J. Veverka, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

These are appeals from judgment orders in consolidated Administrative Review Actions affirming the decision of the Director of Labor of the State of Illinois that Margaret Stover, an organist, was an employee of the plaintiffs under the Unemployment Compensation Act of Illinois.

The case requires construction of sections 206 and 212 of the Unemployment Compensation Act, defining “Employment.” Section 206 provides, as material here, as follows:

“. . . ‘employment’ means . . . any service after June 30, 1940 performed by an individual for an employing unit . . .” (Ill Rev Stats 1965, c 48, § 316.)

Section 212 of the Act is as follows:

“Service performed by an individual for an employing unit, whether or not such individual employs others in connection with the performance of such services, shall be deemed to be employment unless and until it is proven in any proceeding where such issue is involved that—
“A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
“B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
“C. Such individual is engaged in an independently established trade, occupation, profession, or business.” (Ill Rev Stats 1965, c 48, § 322.)

No question is raised on the pleadings, and the following facts are undisputed.

During the period from January 1, 1959, through February 28, 1961, and for some time prior thereto, plaintiff Donald Yurs was engaged, as sole proprietor, in operating funeral homes. Within the period named, Yurs had three full-time employees. In addition, a Margaret Stover played the organ in Yurs’ funeral home within 26 calendar weeks in the year 1958, within 40 calendar weeks in the year 1959, and within 34 calendar weeks in the year 1960. The January 1, 1959, beginning date for the determination and assessment against Yurs as an individual is explained by the Director’s compliance with the four-year limitation period on such actions provided by section 2207 of the Unemployment Compensation Act. (Ill Rev Stats 1965, c 48, § 687.)

Effective March 1,1961, the funeral home business was incorporated as Yurs Funeral Home, Incorporated, and continued to operate on the same basis as it had formerly. As an employer subject to the Unemployment Compensation Act, Yurs Funeral Home, Incorporated, paid contributions on the wages of its admitted employees which did not include amounts paid to the organist. The determination and assessment against the corporation is for amounts paid the organist and is in this sense “supplemental” to those reported by the corporation. Both cases thus are concerned with an identical basic issue which accounts for their consolidation.

The organist began playing in Yurs’ funeral home about 1950. At that time pursuant to an understanding between Yurs and the organist, she would be available to play-providing she had no prior engagement which could not be cancelled. When the organist had a previous engagement, Yurs called on another organist. The arrangement between Yurs and the organist required the latter to begin playing fifteen minutes before services. This period of background music might be reduced to as little as five minutes, depending upon the rate at which callers assembled. The organist was expected to be on time, and she was never late for a funeral. There were fifteen or twenty hymns appropriate for this preliminary music.

At times, but not always, the type of music to be played would be discussed by Yurs and the organist; if the family had a request, this was passed on to the organist by Yurs. The organist was never contacted by a family member or customer. On rare occasions there would be such a contact by a singer. The organist’s playing followed a routine pattern which was subject to variations according to religious beliefs, or selections and playing intervals specified by a minister. The minister’s requests were also relayed to the organist by Yurs. The organist was not directed by Yurs as to how to play the organ.

The organist was required to play selections preferred by the family as directed by plaintiffs. This was true also of selections preferred by a minister and playing interludes requested by him. She played where directed, that is, in plaintiffs’ place of business or in a church. The ceremonial pattern of funeral services was determined by plaintiffs. When the organist played at the funeral home she played on an organ owned by the plaintiffs.

In an estimated 75% of the funerals handled by Yurs, services were conducted in Yurs’ funeral homes; others were conducted in churches. Quite often customers were unaware of what constituted a regular funeral service. After an explanation by Yurs of what was customary, an agreement was reached as to a particular funeral ceremony, including whether or not music was desired. Services followed an established ceremonial pattern determined by Yurs. It was Yurs’ responsibility to the family and other participants to control funeral proceedings. When everyone was seated Yurs gave the minister his cue to begin. When the minister had completed his part of the service, he left the chapel or sat down. This was Yurs’ cue to resume active charge.

The price assigned to each casket included a service “package” which included everything done at the funeral home and all services performed at the funeral. Additional charges were made for cemetery expenses, flowers, minister, or a singer, or outside hairdresser specified by the family. The charge for an organist was included in the package prices charged for the caskets. If the family had an organist of its choice, this did not change the package price. In such case, Yurs paid that organist the amount he would have paid his own organist, or if the family paid its organist, Yurs allowed a credit of the amount he customarily paid.

There is no evidence in the record that a credit was allowed to a customer if no music was desired.

When the organist began playing for Yurs, she was paid $5 per funeral. This eventually was increased to $10. She was paid $7.50 for a period in 1959. For the greater portion of the year 1960 she was paid $10 a service, and that same amount during 1961 and 1962.

The organist was paid immediately or shortly after each service. If there were two services on one day, payment was made by one check. On rare occasions when there were services on successive days, payment would be made by one check. Payment of the organist was not contingent upon Yurs’ collection of the funeral bills. No withholding or payroll deductions were made from the amounts paid the organist. Plaintiffs never filed any reports indicating that the organist was an employee, and she was not included in the employee insurance carried on Yurs’ payroll. On December 18, 1959, a Christmas gift or bonus in the amount of $35 was paid to the organist, and a similar payment of $25 was made on December 19,1960.

In the year 1959 plaintiffs provided music as a part of funeral services on more than 75 occasions. During the period from January 1, 1960, through February 28, 1961, there were in excess of 80 services conducted which included music. In 1961, from March 1, 1961 through December 31, 1961, plaintiffs furnished music more than 60 times. In 1962, the services which included music exceeded 70 in number.

Margaret Stover had played for about twenty years at weddings, funerals, churches and receptions, on a first-come, first-served basis. She maintained no place of business, but operated from her home. While the organ she played for Yurs constituted a part of the funeral home property, the sheet music she used was her own.

The director’s determinations and assessments are based on reports prepared by a field agent of the Illinois Division of Unemployment Compensation. The reports list amounts paid for the period covered by both assessments, and weekly employment experience of Donald Yurs for the years 1958,1959 and 1960.

In determining whether an employment relationship exists, the common-law concepts of master and servant are not controlling but one must look to the somewhat broader statutory definitions. Spahn v. Department of Labor, 25 Ill2d 482, 486, 185 NE2d 231 (1963); Peasley v. Murphy, 381 Ill 187, 44 NE2d 876 (1942). The statutory conditions in section 212 of the Unemployment Compensation Act (supra) are conjunctive, and if an individual performs services for an employing unit, he is an employee under the act unless the party can prove all three of the exemption requirements. Spahn v. Department of Labor, (supra at 487); Ross v. Cummins, 7 Ill2d 595, 597, 131 NE2d 521 (1956); Miller, Inc. v. Murphy, 379 Ill 524, 527, 42 NE2d 78 (1942). Findings of fact of the Director of Labor are prima facie correct and should not be disturbed unless contrary to the weight of the evidence. Spahn v. Department of Labor, (supra at 490) ; Myers v. Cummins, Director of Labor, 9 Ill2d 582, 138 NE2d 491 (1956); Greenberg v. Industrial Commission, 23 Ill2d 106, 78 NE2d 646 (1961). The Unemployment Compensation Act is not a taxing act but is one passed to alleviate the perils of unemployment under the police powers of the State and should receive a liberal construction. Zehender & Factor, Inc. v. Murphy, 386 Ill 258, 263, 53 NE2d 944 (1944); Zelney v. Murphy, 387 Ill 492, 497, 56 NE2d 754 (1944), but the exemption provisions found in section 212 must be strictly construed against the one claiming the exemption. Ross v. Cummins, (supra at p 597).

Applying these rules to the facts of this case, we are of the opinion that the Director of Labor’s findings and decision, as affirmed by the trial court, are substantially supported by the record and are not opposed to the manifest weight of the evidence.

It is clear that the organist performed “services” for the plaintiffs and that the latter was an “employing unit” under section 206 of the Act. Under the “package” price plaintiffs were obliged to provide organ music, not to provide Margaret Stover particularly. No employment relation was created, under the facts, between Margaret Stover and the family or customer. She was, therefore, within the broad definition of “employee” under section 206.

We next consider the exemptions contained in section 212.

We cannot say that Margaret Stover was so free from control by the plaintiffs as to preclude a determination of employment. Appellants argue that plaintiffs did not have the right to control the manner of playing the instrument. The record does not support this argument in any substantial general sense. The organist was required to play selections preferred by the bereaved family or the minister when directed to do so by plaintiffs. She was expected to be on time to play background music before the services. Plaintiffs directed her where to play, in the funeral home or in a church. The ceremonial pattern to which she must conform was determined by plaintiffs. She was given a cue by plaintiffs to commence or stop playing if the minister did not do so. It is reasonable to assume from the circumstances that if she played inappropriate music or played in unseemly volume or tempo she could have been directed to do otherwise or subject herself to discharge. The fact that the organist was a professional who had freedom and latitude in detailed actions of her craft did not negate the general right of control over her services. Spahn v. Department of Labor, supra, at page 488.

Nor were the organist’s services performed outside the plaintiffs usual course of business or place of business. There is no issue as to place. That the services were in the usual course of the plaintiffs’ business is supported by the evidence that the music was included in the “package price” affixed to each casket. In discussing its services plaintiffs always discussed arrangements for music. The frequency of the inclusion of music in the funeral services indicated that it was a usual part of the services offered by plaintiffs. Plaintiffs owned the organ. It cannot be said under these circumstances that the furnishing of music was not in aid of and a part of plaintiffs’ business. Miller, Inc. v. Murphy, supra; Photographic Illustrations, Inc. v. Murphy, 389 Ill 334, 59 NE2d 681 (1945).

Plaintiffs, further, did not meet their burden of qualifying under the final paragraph of section 212 relating to the operation of an independent trade or business. The charge for the organist’s services was included in plaintiffs’ billing of the customer. Payment to her was not contingent on collection. She operated from her home. The organ she played was owned by plaintiffs and she is not shown to have owned one. There is no evidence that she determined the rate paid to her. Likewise there is no evidence of her professional listings or advertising. There is no sufficient evidence of the right to operate without hindrance, or indicia of a proprietary interest subject to being sold or given away within the decisions in Murphy v. Daumit, 387 Ill 406, 56 NE2d 800 (1944); Spahn v. Department of Labor, supra, or Photographic Illustrations, Inc. v. Murphy, supra.

Appellants argue that the provisions of section 212, to arrive at reasonable conclusions, must be construed by first applying a statement in Mowry v. Board of Review, 411 Ill 508, 513-514, 104 NE2d 280 (1952), quoted in turn from Bartels v. Birmingham, 332 US 126:

“. . . in the application of social legislation employees are those who as a matter of economic reality are dependent upon the business to which they render service.”

However, the Mowry case did not interpret section 212 which is the section involved here. Moreover, the quotation from the Bartels case was in reference to a section of the Federal Unemployment Tax Act which specifically limited the definition of an employee to applicable common-law rules. Here the broader statutory definition is construed and the cases construing the particular sections involved in this case are persuasive.

Finally, appellants unsupported conclusion that because Margaret Stover was a part-time employee who had other employment, she could not qualify for unemployment compensation in that even if plaintiffs did not call her, she would not be unemployed, because she played for others, is not relevant. The Act does not predicate, in any of its terms, a definition of “employment” contingent on a part-time employees’ rights to benefits. Miller, Inc. v. Murphy, supra; Photographic Illustrations, Inc. v. Murphy, supra; Peasley v. Murphy, supra; Spahn v. Department of Labor, supra; Concrete Materials Corp. v. Gordon, 395 Ill 203, 69 NE2d 841 (1946). All of these cases included part-time workers as “employees” even though work was also done for others.

Judgment affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellant, v. James Cordovano, a/k/a James Cordavanna, Defendant-Appellee.
    Gen. No. 50,759.
    First District, First Division.
    April 8, 1968.
    Rehearing denied May 13, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and E. J. Gildea, Assistant State’s Attorneys, of counsel), for appellant.
    Bellows, Bellows & Magidson, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

James Cordovano was indicted for violating a provision of the Election Code which prohibited ex-felons from voting. (Ill Rev Stats 1961, c 46, § 29-26.) The statute provided:

“If any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state, and who has never received a certificate restoring his rights of citizenship from the Governor or court entitled to grant such certificate, shall thereafter vote or offer to vote at any election or primary, he shall upon conviction thereof be adjudged guilty of a felony, and, for each and every such offense shall be punished by imprisonment in the penitentiary for not less than two nor more than five years.”

This section of the Election Code was repealed in 1963, (Public Laws, 1963, p 2569).

The indictment charged Cordovano with voting in the November, 1962, General Election held in the city of Chicago after he had been convicted in 1954 in the U. S. District Court for the Northern District of Illinois, Eastern Division, for unlawful purchase and sale of heroin and cocaine. Cordovano never received a certificate of restoration of his rights of citizenship from the Governor, or a court entitled to grant such certificate.

Defendant filed a motion to dismiss the charges alleged in the indictment contending that the statute purportedly violated had been repealed and that the phrase “crime under the laws of any state” does not apply to federal violations. The trial judge, after a hearing of the motion and consideration of the briefs, submitted by defendant and the State, quashed the indictment. The State appeals pursuant to the former Illinois Supreme Court Rule 27 (4), now Rule 604(a), authorizing such appeals.

The State argues that the repeal of section 29-26 of the Election Code does not bar the instant prosecution. In People v. DeStefano, 64 Ill App2d 389, 212 NE2d 357 (1965), certiorari denied 385 US 821, 989 (1966), we considered precisely this argument. There, as here, defendant argued that the repeal of section 29-26 was tantamount to a legislative pardon and prosecutions thereunder which were not finally adjudicated prior to the date of repeal were abated. That argument was rejected. Defendant asks us to reexamine our opinion in DeStefano. Upon so doing, we fully concur with that conclusion. No new arguments in favor of the theory of legislative pardon have been raised and repetition of authorities cited therein is unnecessary.

The issue whether the language of the statute “convicted of bribery, felony or other infamous crime under the laws of any state” includes a conviction under the laws of the United States, has been decided. In People ex rel. Keenan v. McGuane, 13 Ill2d 520, 150 NE2d 168 (1958), Keenan was removed from public office after he had been convicted of the federal offense of income tax evasion. Keenan argued that convictions under the federal law were not encompassed within the infamous crimes defined in section 7 of Division II of the Criminal Code. (Ill Rev Stats 1957, c 38, § 587.) In Keenan, the court stated:

“Accordingly, we conclude that any public officer convicted, in the Federal court or in the court of any sister State, of a felony which falls within the general classification of being inconsistent with commonly accepted principles of honesty and decency, or which involves moral turpitude, stands convicted of an infamous crime under the common law as interpreted when our constitution was adopted in 1870, and that such conviction creates a vacancy in such office. This determination is not inconsistent with the legislative policy expressed in section 29-26 of the Election Code . . .” (p 534.)

Let us consider the area of legislative intent. Under the provisions of the Illinois Statutory Construction Act “all general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the General Assembly may be fully carried out.” (Ill Rev Stats 1965, c 131, § 1.01.) One of the foundations of our American democracy is the sanctity and purity of elections. The Illinois Constitution in Article VII, Paragraph 7, (Ill Rev Stats 1967, p 21) provides :

“The General Assembly shall pass laws excluding from the right of suffrage persons convicted of infamous crimes.”

It appears therefore that the basic purpose of these restrictions is to protect the ballot box. Can it then be said that a conviction of an infamous crime under the statutes of the United States is less objectionable than a similar conviction under State laws ? The intent of such legislation is to protect the ballot box from corruption by a convicted felon, regardless of the place of conviction.

The judgment of the trial court is reversed.

Judgment reversed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Archie Lee Shannon, Defendant-Appellant.
    Gen. No. 51,132.
    First District, First Division.
    April 8, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Carolyn Jaffe and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael C. Zissman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial, defendant was found guilty of murder in the manner and form as charged in an indictment, which contained two counts, both charging defendant with the murder of Verlene Shackleford. On appeal, defendant primarily contends that Count I failed to charge an offense, and “the verdict was fatally defective, in that it is impossible to ascertain therefrom whether the jury found the defendant guilty as charged in Count I or Count II.” Defendant also asserts prejudicial trial errors, including that he was not proved guilty of murder beyond a reasonable doubt.

On January 11,1965, while in the apartment of Verlene Shackleford, his aunt, defendant participated in a family quarrel, which resulted in the death of Verlene. Those present included Verlene, Curtis Hugges (her common-law husband), Ruby and Jimmie Shackleford (her children), Myrtle Shannon (defendant’s common-law wife), and defendant. At the trial, Curtis Hugges and Ruby Shackle-ford testified for the State in chief and Jimmie Shackle-ford in rebuttal.

The testimony for the State shows the following course of events. On January 11, 1965, at about 2:00 a. m., the defendant had an argument and a scuffle with his cousin, Jimmie Shackleford, in the lobby of the apartment building where both lived. Defendant then went to his own apartment where he argued with his wife, Myrtle Shannon. Thereafter, Myrtle went downstairs to the apartment of defendant’s aunt, Verlene Shackleford, and the Shackleford family. Defendant followed his wife to the Shackleford apartment where the argument was continued. After defendant struck his wife Myrtle, she sought protection behind Verlene Shackleford and Curtis Hugges. Verlene and Jimmie Shackleford tried to calm the defendant and to stop the argument. The defendant left the Shackleford apartment and briefly returned to his own apartment, where he obtained a rifle. The defendant then returned to the Shackleford apartment with the rifle. The door had been closed and locked after defendant had left, and when he returned he demanded readmittance and attempted to force the door open. When Verlene Shackleford identified herself to him through the door, the rifle was fired through the door, fatally injuring her.

Defendant and his wife testified for the defense. In substance, defendant testified that he got the rifle after some altercations with a neighborhood gang and kept it in his apartment. Shortly before the fatal shooting, he caught his cousin Jimmie smoking marijuana in the hallway and was attempting to tell his aunt Verlene about her son’s criminal activities and associations. Jimmie pulled a knife on him and was attempting to prevent him from telling Verlene. Defendant did not know the gun was loaded. He thought the catch was on, and he did not intend to fire the gun through the door. The gun went off accidentally when defendant stumbled, and it dropped from his hand.

Defendant’s wife denied a scuffle with her husband and stated there was an argument between Jimmie Shackle-ford and the defendant, and she was accidentally struck because she was standing between the two. On cross-examination she admitted making a statement to a police officer that “Archie hit me on the side of the head and pulled my hair. Archie then said something about I’ll fix you. Then he went upstairs. In a few minutes he was shaking the door on the apartment and trying to get in. Aunt Verlene was at the door and was trying to talk to him. But she had only said a few words when I heard the shot. Then I heard Curtis (that is Verlene’s husband) say to Archie, if he would open the door to Archie, you have done shot Aunt Verlene. He asked, ain’t you did enough. And Archie was still calling Jimmie. I ran into the closet about this time.”

On rebuttal, Jimmie Shackleford testified as a State’s witness over the objection of defendant that Jimmie was an occurrence witness, and his testimony should have been put on in the State’s case in chief. He stated his quarrel with defendant originated about some women in defendant’s car and whether Jimmie was going to tell Shannon’s wife Myrtle about them.

The statute under which both counts in the indictment were drawn reads as follows:

“§ 9-1. Murder.]
“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
“(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
“(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
“(3) He is attempting or committing a forcible felony other than voluntary manslaughter.
“(b) Penalty . . . .”

Count I of the indictment states in part: “. . . on January 11th, 1965, at and within said County, Archie Lee Shannon committed the offense of murder, in that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, without lawful justification, in violation of Chapter 38, Section 9-1 of the Illinois Revised Statutes, 1963. . . .”

Count II states: “. . . on January 11th, 1965, at and within said County, Archie Lee Shannon committed the offense of murder, in that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, knowing that such shooting with a rifle, created a strong probability of death or great bodily harm to Verlene Shackleford, without lawful justification, in violation of Chapter 38, Section 9-1 (a) (2) of the Illinois Revised Statutes, 1963.

Defendant argues that Count I was framed in terms of section 9-1, whereas section 9-1 “per se” does not constitute an offense with which a person can be charged; that only the “subsections” of section 9-1 define and enumerate the statutory offenses; that Count I of the indictment does not charge any of the offenses specified in those subsections and thus fails to charge an offense against the laws of Illinois. “The state of mind necessary to make the homicide constitute murder within the definitions of those subsections is not alleged in Count I. That Count does not allege that the defendant either intended to kill or do great bodily harm to the deceased or another, or that he knew his acts would cause the death of the deceased or another.”

Defendant further argues that the court instructed the jury as to the elements of the offense of murder in the language of the statute, section 9-1 (a)(1) and (a)(2), while nowhere in the indictment was the defendant charged with murder as defined in section 9-1 (a) (1). Thus the jury could have found the defendant guilty upon a set of facts not alleged in the indictment.

In People v. Pronger, 48 Ill App2d 477, 199 NE2d 239 (1964), this court said (p 481) :

“An indictment need not state specifically the statute violated by the acts alleged to be a crime, and this holds true where there are several statutory provisions under which the charge might fall. . . . Also, an indictment is sufficient if it informs an accused of the charge, enables him to prepare a defense, and protects him from further prosecution . . . and it is not necessary that an indictment contain all the language of the statute on the subject. People v. Love, 310 Ill 558, 567,142 NE 204 (1924).”

Also, in People v. Clarke, 407 Ill 353, 95 NE2d 425 (1950), it is said (p 359):

“. . . where the language of the information is as fully descriptive of the offense as the language of the statute denouncing it, and alleges every substantial element of the offense as defined by statute, the information is sufficient.”

After an examination of Count I and in the light of the foregoing authorities, we find that Count I properly charges the offense of murder. Count I included “that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, without lawful justification. . . .” Although Count I does not specify the particular subsection on which the count was based and the jury instructed, it advised the defendant with reasonable certainty of the precise offense charged, including its essential elements, and adequately notified defendant of the nature and cause of the accusation against him. (People v. Patrick, 38 Ill2d 255, 258, 259, 230 NE2d 843 (1967).) Also, we find that Count II properly charged defendant with the offense of murder.

We find no merit in defendant’s further contention that “the verdict was fatally defective, in that it is impossible to ascertain therefrom whether the jury found the defendant guilty as charged in Count I or Count II.” In People v. Lymore, 25 Ill2d 305, 185 NE2d 158 (1962), it is said (p 307):

“A general finding of guilty is presumed to be based on any good count in the indictment to which the proof is applicable. . . . This court has also held that in a case where an indictment contains several counts arising out of a single transaction, and a general verdict is returned, the effect is that the defendant is guilty as charged in each count, and if the punishment imposed is one which is authorized to be inflicted for the offense charged in any one or more of the counts, the verdict must be sustained.”

See, also, People v. Clifton, 408 Ill 475, 477, 97 NE2d 298 (1951), and People v. Savage, 5 Ill2d 296, 301, 125 NE2d 449 (1955). We conclude the evidence was sufficient to support a finding of guilty of the offense of murder on either count.

Considered next is defendant’s contention of prejudicial trial errors. We find no error in the trial court permitting Jimmie Shackleford to testify as a rebuttal witness. His testimony was offered to contradict defendant’s accusation against him, and although part of his testimony might have been proper as evidence in chief, we find there was no abuse of discretion in receiving it as rebuttal. In People v. Lion, 10 Ill2d 208, 139 NE2d 757 (1957), it is said (p 217):

“Although testimony that would be proper as evidence in chief should not be reserved for rebuttal, these matters rest largely within the discretion of the trial court and such rulings will ordinarily not be set aside upon review.”

See, also, People v. Burnett, 27 Ill2d 510, 190 NE2d 338 (1963), where it is said (p 518):

“We have examined the record and find that the testimony of both witnesses was only corroborative of the case in chief and was apparently contradictory of defendant’s evidence and was, therefore, properly admitted in rebuttal.”

Defendant next contends that he was prejudiced by the final argument of the State which overemphasized the importance of the fact of her death in relation to all the other facts which must be proved in order to convict the defendant. It appealed “to the jury’s sympathy and prejudice by telling them, ever so dramatically, that the night she died, the bell tolled ‘for thee, for thee.’ Such argument has no place in a court of law.”

We find no prejudicial error here. The record does disclose emotion and range of argument on the part of the State’s Attorney and an “eagerness to secure a conviction.” While we might consider some the State’s remarks somewhat imaginative and dramatic, we do not believe these remarks deprived defendant of a fair trial. We believe the State’s argument comes within the pronouncements of People v. Fort, 14 Ill2d 491, 153 NE2d 26 (1958), where it is said (p 501):

“. . . Nor is it improper to dwell on the evil results of crime and to urge a fearless administration of the law.”

Defendant also complains that the court refused defendant’s Instructions Nos. 6 and 14. We have examined the instructions given and refused and find the jury was properly instructed. Defendant’s Instruction No. 6 tended to encourage disagreement of the jury, and Instruction No. 14 was not relevant.

Finally, we consider defendant’s contention that “the evidence did not establish the defendant’s guilt of the offense charged beyond all reasonable doubt, inasmuch as the essential element of the defendant’s state of mind was not established beyond all reasonable doubt.”

Defendant argues that the State’s evidence, if it proved anything, proved an intent to kill either Myrtle Shannon or Jimmie Shackleford but not Verlene Shackleford, and neither the indictment nor the instructions to the jury included a charge of transferred intent. Defendant further argues that the only evidence of his state of mind, other than his own testimony that he did not intentionally cause the gun to discharge, was circumstantial evidence, and while intent as an element of an offense may be proved by circumstantial evidence, it is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the defendant’s guilt, but that they be inconsistent, upon any reasonable hypothesis, with his innocence. People v. Wilson, 400 Ill 461, 473, 81 NE2d 211 (1948).

In People v. Coolidge, 26 Ill2d 533, 187 NE2d 694 (1963), it is said (p 536):

“However, since intent is a state of mind, and, if not admitted, can be shown only by surrounding circumstances, it has come to be recognized that an intent to take life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances. ... It is not requisite or necessary that the party charged should have brooded over the intent, or entertained it for any considerable time, but it is enough if at the instant of the assault he intended to kill the party assaulted, or it will be enough if he is actuated in making the assault by wanton and reckless disregard of human life that denotes malice, and the assault is made under such circumstances that, if death had ensued, the killing would have been murder. . . . since every sane man is presumed to intend all the natural and probable consequences flowing from his own deliberate act, it follows that if one wilfully does an act the direct and natural tendency of which is to destroy another’s life, the natural and irresistible conclusion, in the absence of qualifying facts, is that the destruction of such other person’s life was intended.”

The instant record, examined in the light of the foregoing guidelines, presents sufficient and satisfactory evidence from which the jury could have reasonably con-eluded that the defendant was intending to strike Verlene Shackleford when he fired through the door. There was no denial that defendant had participated in the family-quarrel, that he had left the apartment and shortly thereafter returned with a loaded gun, and that this was the instrument of death while in the possession of defendant. The evidence also shows that Verlene Shackleford had entered the dispute between defendant and his wife, and that Verlene Shackleford had identified herself through the door to the defendant immediately before she was shot. The jury was not compelled to accept defendant’s account as conclusive but was required to consider the surrounding circumstances and the probability or improbability of defendant’s story. (People v. Wiggins, 12 Ill2d 418, 423,147 NE2d 80 (1957).) We believe the facts here come within the pronouncements made in People v. Davis, 35 Ill2d 55, 219 NE2d 468 (1966), where it is said (P 61):

“To justify a conviction of murder, it has not been necessary that the accused should have deliberately formed an intent to kill; it has been sufficient to show that he voluntarily and wilfully committed an act, the direct and natural tendency of which was to destroy another’s life. . . . The intent is implied from the character of the act.”

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

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    Estate of Alex Arcicov, a/k/a Alexander Arcicov, a/k/a Andrzej Majewski, Deceased. The County of Cook, a Political Body, and Charles J. Fleck, Former Administrator, Petitioners-Appellees, v. Joseph Majewski, a/k/a Jozef Majewski, Respondent-Appellant.
    Gen. No. 51,901.
    First District, First Division.
    April 8, 1968.

      Stanley Werdell, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Donald J. Veverka, Assistant State’s Attorney, of counsel), for appellee, County of Cook.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an appeal from an order of the Probate Division of the Circuit Court of Cook County, which amended a table of heirship in a decedent’s estate after the estate had been closed for five years. The petition to amend was in the nature of a petition under section 72 of the Civil Practice Act.

The petition filed by “The County of Cook” on February 21, 1962, shows that Alex Arcicov died intestate on December 12, 1955, a resident of Chicago. Letters of administration were issued to the then Public Administrator on December 13, 1955. After a hearing in which Joseph Majewski, respondent in the instant proceedings, testified that he was the only surviving child of the decedent and his first wife, a declaration of heirship was entered in the Probate Court of Cook County on January 19, 1956. The declaration found that Alex Arcicov, also known as Alexander Arcicov, also known as Andrzej Majewski, deceased, left him surviving as his only heir at law and next of kin, Joseph Majewski, a son, the respondent here.

The petition alleges that on April 23, 1956, October 31, 1956, and November 8, 1956, hearings were had in the Probate Court on motions of the Public Administrator to vacate the table of heirship. On November 8, 1956, the court overruled the motion to vacate the table of heirship, and on November 30, 1956, the estate was closed and distribution of the assets was made. The petition further alleges:

“9. Subsequently, documents, affidavits and certificates of birth, death and marriage certificates, relating to the decedent and Josef Majewski have been received by the State’s Attorney of Cook County.
“10. That on January 27, 1962, an affidavit executed by Tesfil (sic) Krupinski, a nephew by marriage, but not by consanguinity, alleges that one Josef Majewski is not the heir of decedent, was received by the State’s Attorney of Cook County. Said affidavit is attached to and made a part hereof.
“11. That said documents tend to prove that Josef Majewski in fact was not an heir of said decedent and thus falsely and mistakenly testified at the hearing on January 13,1956.
“12. On information and belief based on the aforementioned documents, petitioner has reason to believe that the decedent ‘did in fact leave him surviving no known heirs at law/
“13. Apropos above, the order of heirship entered on January 19, 1956, the escheat rights of Cook County, as provided for by paragraph 9, Section 11 of the Probate Act have been precluded.
“Prayer: That the above estate be re-opened; that the Order entered January 19, 1956, be vacated; that additional hearings be held so that a proper Order as to a true and correct heirship may be entered.”

Subsequent to the filing of the instant petition, hearings were had and numerous documents, many in the Polish language, were received in evidence and over objections of respondent. On June 19, 1964, an order was entered in the Probate Court, which decreed “that the heretofore entered Table of Heirship be and is hereby amended to show that the decedent, Alexander Arcicov, died a resident of the County of Cook, State of Illinois, leaving no known heirs or legal representatives capable of inheriting the same.” This is the order with which we are now concerned.

On appeal, the determinative contention of Joseph Majewski, the respondent, is that “the order amending the original declaration of heirship is void for want of jurisdiction of the subject matter and the court therefore erred in failing to sustain the defense of res judicata.” Respondent’s other contentions, which relate to the evidence admitted and the findings and conclusions of the trial court, need not be considered, and the motion of respondent to strike certain portions of the supplemental record, which was taken with the case, is hereby denied.

The contentions of petitioner, the County of Cook, include: (1) The trial court had jurisdiction to amend the original order of heirship; (2) Orders declaring heirship and closing an estate can be set aside at any time upon proper grounds; and (3) The order of heirship could be vacated because it was obtained by fraud.

The petitioner argues, “Traditionally, and by the very nature of heirship proceedings, orders setting forth a table of heirship or closing an estate have been subject to later amendment. As to heirships, this is apparent from our statute, which provides that:

“ ‘An order of the court declaring heirship whether heretofore or hereafter made, is prima facie evidence of the heirship, but any other legal method of proving heirship may be resorted to by any party interested therein in any place or court where the question may arise/ Ill Rev Stats c 3, § 58 (1965).
“Similarly, Section 308a allows the reopening of estates after they are closed. Moreover, frequently the appellate courts have been presented with proceedings where there have been motions to vacate an heirship or to reopen an estate, and in none of these cases has it even been argued that such efforts were barred by res judicata. [In re Estate of Enoch, 52 Ill App2d 39 (1964); In re Estate of McGovern, 338 Ill App 187 (1949).]”

We agree that the original declaration of heirship entered on January 19, 1956, was “prima facie evidence of the heirship,” and it was subject to amendment during the remaining period of the administration of the estate.

We further agree that section 72 may be appropriately used in probate proceedings and for the relief sought here. Petitioner cites In re Application of Smith, 49 Ill App2d 189, 199 NE2d 420 (1964), where it is said (p 194) :

“We are aware that sec 72 may not be employed to resurrect and re-try issues previously adjudicated by valid means. But where a judgment is obtained by fraud, recourse may be had to sec 72 and thereunder the court has power to grant relief. ... ‘If the order was obtained by fraud, as petitioner alleges, elementary principles of law require that relief be granted.’ ”

However, we have reservations as to when and under what circumstances an amendment may be made to a table of heirship after an estate has been closed and the assets distributed. The use of section 72 includes the application of subsection (3), which provides:

“The petition must be filed not later than 2 years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of 2 years.”

Therefore, the time within which such a proceeding may be brought is a condition essential to the jurisdiction of the court, and the court has no jurisdiction or power to entertain such a proceeding after the statutory period has passed. (Heuberger v. Schwartz, 41 Ill App2d 28, 30, 190 NE2d 163 (1963).) Although the period of administration of an estate is limited by statute, it is somewhat uncertain and dependent upon the facts as to when a decedent’s estate may be closed and the assets distributed. Therefore, we think the limitation period of subsection (3) should commence on the date of the approval of the final account and the closing of the estate.

We have examined the record in the light of the foregoing guidelines. As previously observed, the County’s petition was filed more than five years after the closing of the estate and the distribution of the assets and more than three years after the two-year limitation period of subsection (3). If there was any time during which the County was under any “legal disability,” or the ground for relief was “fraudulently concealed” by respondent, that time was to be excluded in computing the period of two years.

Petitioner does not contend that the County was under any legal disability at any time but asserts fraud in the heirship claim of respondent and in his testimony on which the declaration of heirship of January 19, 1956, was based.

The record shows that during the period of administration of the estate, repeated attempts were made to amend the table of heirship on the ground that respondent was not an heir at law, all of which were denied after a hearing. In the hearing on April 23, 1956, respondent offered evidence and witnesses to sustain his claim that he was the son of the decedent, and on May 2, 1956, an order was entered confirming the original declaration of heir-ship. On the hearing prior to the order of November 8th, the court stated: “At this time, I will enter your motion and continue it to November 8th at 2:30. Now you will write an order up that your motion to vacate is continued to November 8th with the understanding that unless you have positive affirmative proof that someone in this case is mistaken or lying, or that you have positive proof that somebody else is the heir of this Mr. Arcicov or this Mr. Majewski, at that time I will deny your motion to vacate on November 8th unless you have that proof.” Following these remarks, and on November 8th, the petition to amend the heirship was denied and the date for the filing of the final account was continued to November 14, 1956, and it was approved on November 30, 1956.

The foregoing shows that respondent’s relationship to the decedent was repeatedly questioned by the Public Administrator during the period of administration, but there was no showing or claim made in the instant proceedings that respondent at any time concealed any of the evidence now relied upon by petitioner in seeking to amend the declaration of heirship.

We find that the instant petition of the County of Cook, filed on February 21, 1962, was not filed within the two-year limitation period of section 72, which commenced on November 30, 1956, the date of the closing of the estate. Therefore, it failed to meet a condition essential to the jurisdiction of the court. During this period the County was not under any legal disability and the ground for relief was not fraudulently concealed. Consequently, there was no period of time during which the limitation period was suspended. We conclude that the Circuit Court was without jurisdiction to consider the petition or to amend the declaration of heirship.

For the reasons given, the order of the Probate Court entered on June 19, 1964, amending the table of heirship, is reversed, and the petition is hereby dismissed.

Order reversed and petition dismissed.

BURMAN, P. J. and ADESKO, J., concur.


text:
    Cherie A. Slove, Plaintiff-Appellee, v. John Strohm, Defendant-Appellant.
    Gen. No. 51,910.
    First District, First Division.
    April 8, 1968.

      Block, Levy & Becker, and Lawrence K. Posner, of Chicago, for appellant.
    Samuel Alfassa, of Chicago (Myles A. Grill, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

A complaint based on the Paternity Act (Ill Rev Stats 1965, c 106%, § 51 et seq.) was filed against the defendant on April 19, 1966. On April 29, 1966, defendant filed his appearance, jury demand and a motion for a stay under the Soldiers’ and Sailors’ Civil Relief Act (50 USC, § 501 et seq.). The petition for a stay was renewed on four subsequent occasions but was consistently denied by the trial court. In his post-trial motion, defendant raised as the sole ground for vacating and setting aside the jury verdict which had been rendered against him, the fact that his petition for a stay of the proceedings had been denied. He now prosecutes this appeal on that same issue.

Section 521 of the Soldiers’ and Sailors’ Civil Relief Act provides as follows:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within 60 days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act (sections 501-548 and 560-590 of this Appendix), unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”

The three copies of defendant’s motion for a stay that are contained in the record on this appeal are substantially identical. The first motion, filed April 29, 1966, has attached to it a copy of Marine Corps orders directing defendant to report to the base at Quantico, Virginia. The second motion, filed September 29, 1966, has attached to it as an exhibit, a certificate from the personnel department of the U. S. Marine Corps indicating that defendant was a Marine and stationed at Camp LeJeune, North Carolina. The third petition, filed October 25, 1966, incorporated by reference, the certificate of record of military service attached to the September 29th motion.

In Boone v. Lightner, 319 US 561 (1943), the Supreme Court considered a case in which a petition for a stay under the Soldiers’ and Sailors’ Civil Relief Act had been denied. In Boone, as here, the defendant contended that the Act rendered a continuance mandatory. In response to that argument, Mr. Justice Jackson stated:

“The Act cannot be construed to require continuance on mere showing that the defendant was in Washington in the military service. Canons of statutory construction admonish us that we should not needlessly render as meaningless the language which, after authorizing stays, says ‘unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.’ ” (P 565.)

The above language from Boone is clearly applicable in the instant case. We do not feel that because defendant was in the military service, he was automatically entitled to a stay of the proceedings. Thus, the only issue for us to determine is whether the trial judge abused his discretion in denying the requested stay of proceedings.

In Boone, the Supreme Court refrained from declaring any rigid doctrine with respect to who had the burden of proof to sustain a petition for a stay of proceedings. However, it is clear from the Boone opinion that the petitioner must allege something more than his mere being in the military service. Not one of the petitions filed by the defendant in the instant cause indicated when he would be available and present in Chicago to defend the instant action. He was given an opportunity to set a date at some time in the reasonable future, but declined to do so. There was no indication of when he would be entitled to leave so that he could be present for a trial. He did not submit any letters, affidavits or statements from his commanding officers to the effect that they would be unable to release him at any time, or that his continued presence at the Marine Corps camp was essential to the defense of the country.

While we recognize that the purpose of the Soldiers’ and Sailors’ Civil Relief Act is to permit members of the armed forces to devote their full attention to the defense of the country, (50 USC, § 510), this Act may not be used as a sword against persons with legitimate claims against servicemen. Some balancing between the rights of the respective parties must be arrived at.

In the instant case, the plaintiff gave birth to a child approximately two months after the proceedings were initiated. She alleged that she was without funds and was unable to care for the child. A determination under the Paternity Act as to who had the obligation to provide support for the child was necessary at the earliest possible time. Of course, defendant’s absence was prejudicial to his case. However, he made no effort to assist the court in determining when this matter could be disposed of. We therefore feel the trial judge was not incorrect when he denied the petition for a stay of the proceedings.

Defendant cites the case of Everingham v. Stringer, 329 Ill App 490, 69 NE2d 348 (1946), as authority for holding that being in the military service is sufficient to entitle the defendant to a stay of proceedings. Appellee attempts to distinguish Everingham on the ground that the defendant there was out of the country, not just in another State. This factor may reflect on the character of defendant’s job as essential for the defense of the country at that time. More significant, however, is the fact that Everingham was a forcible entry and detainer case. No child would be wanting for food, clothing and shelter if that case were delayed. The nature of the action is an important consideration in weighing the need to proceed with the trial as opposed to the serviceman’s request for delay. As stated above, we cannot say that the trial judge’s evaluation of this situation constitutes an abuse of discretion.

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

Judgment affirmed.

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


text:
    Richard O’Donnell, Plaintiff-Appellant, v. Joseph I. Woods, Sheriff of Cook County, Defendant-Appellee.
    Gen. No. 52,741.
    First District, First Division.
    April 8, 1968.
    Selwyn Zun and Gerald B. Mullin, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Ronald Butler, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff, Richard O’Donnell, appeals from an interlocutory order dissolving a temporary injunction, which had restrained Joseph Woods, Sheriff of Cook County, “from arresting the plaintiff or interfering with the operation of plaintiff’s business” [retail sale of alcoholic liquor].

Plaintiff’s “Complaint for Injunction,” filed November 24, 1967, alleged that plaintiff was the holder of a State and local liquor license and on November 7, 1967, the Circuit Court of Cook County, Illinois, in the case of Richard O’Donnell, d/b/a Turf Lounge v. Illinois Liquor Control Commission, Case No. 67 L 14382, entered an order sustaining the Illinois Liquor Control Commission’s revocation of plaintiff’s retail liquor license and setting a bond on appeal in the amount of $1,000.

Plaintiff further alleged that on November 7, 1967, “plaintiff filed in the aforementioned case, his bond on Appeal which was duly signed by the Honorable Edward F. Healy and Notice of Filing said Bond on Appeal was given to the Attorney General of the State of Illinois and the Illinois Liquor Control Commission,” and “pursuant to Chapter 110, Section 82, of the Illinois Revised Statutes and Rules of the Supreme Court, the filing of the Bond on Appeal operates as a supersedeas and stays the enforcement of said order pending the Appeal.”

The complaint further alleged “that on November 14, 1967, the defendant, notwithstanding the supersedeas bond, arrested the plaintiff and closed his business and charged plaintiff with operating without a State Retail Liquor License,” and “since November 14, 1967, plaintiff’s business has been closed and the defendant has stated that he will arrest the plaintiff if he attempts to reopen his business.”

The prayer of the complaint was that the defendant sheriff and his employees be restrained from arresting the plaintiff or interfering with the operation of his business “until the Appeal to the Appellate Court of Illinois, First District, . . . Case No. 67 L 14382 has been disposed of.”

Thereafter, Judge Daniel A. Covelli, a judge of the Circuit Court of Cook County, entered an order granting a temporary injunction restraining the defendant sheriff from arresting plaintiff or interfering with his business. On December 7, 1967, after a hearing, Judge Covelli entered an order dissolving the temporary injunction entered on November 28, 1967. This is the order from which plaintiff appeals.

On appeal, plaintiff contends: (1) A notice of appeal upon the approval of a bond operates as a supersedeas. (2) The effect of a supersedeas is to preserve the status quo. (3) Violation of a supersedeas may be restrained. (4) The issue presented here is a matter of general public interest.

Defendant contends that the issues presented for review are: (1) May a judge of the Circuit Court of Cook County, sitting in chancery, review and interpret the orders entered by another Circuit Court judge, the latter having heard the merits of the litigation and entered final orders, and who had the power to supplementally hear and determine any dispute arising out of the litigation on the merits? (2) Could the “cost” bond filed in this case be equated with a “supersedeas”? If so, does the supersedeas bond maintain the status quo for the period prior to the commencement of the case in the Circuit Court ?

From our view of the determinative issue here, it is unnecessary to discuss either plaintiff’s or defendant’s contentions and authorities.

In sum, the filing of plaintiff’s notice of appeal to the Appellate Court in the administrative review proceedings on November 7, 1967, caused the jurisdiction of the Appellate Court of the First District to attach instanter and during the pendency of that appeal deprived the Circuit Court of Cook County of jurisdiction to entertain plaintiff’s instant complaint.

In City of Chicago v. Myers, 37 Ill2d 470, 227 NE2d 760 (1967), it is said (p 472):

“The jurisdiction of the appellate court attaches upon the proper filing of a notice of appeal. Thereafter, excepting certain instances not here concerned, the cause is beyond the jurisdiction of the trial court. This court in Brehm v. Piotrowski, 409 Ill 87, 90, declared: ‘Filing of a notice of appeal within due time causes jurisdiction of the reviewing court to attach instanter and deprives the lower court of jurisdiction. Also, this court does not possess jurisdiction to review proceedings of the lower court which happened after the notice of appeal was filed and served.’ ”

The Circuit Court was without jurisdiction on November 28, 1967, to enter the temporary injunction order restraining the sheriff. Supreme Court Rules 305 and 328 provide procedure whereby plaintiff could have ascertained in the administrative review proceedings now pending in this court whether the notice of appeal and bond operated as a supersedeas and the extent of its application.

For the reasons given, it follows that the order of the Circuit Court of Cook County dissolving the temporary injunction was proper, and that order is affirmed. The cause is remanded to the Circuit Court of Cook County with directions to dismiss plaintiff’s instant complaint.

Affirmed and remanded with directions.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    Solomon N. Miller, Plaintiff, Counter-Defendant, Appellant, v. Beverly Jean Miller, Defendant, Counter-Plaintiff, Appellee.
    Gen. No. 51,499.
    First District, Second Division.
    April 9, 1968.
    William H. Rubin, of Chicago, for appellant.
    Joseph H. and Norman Becker, and Harry G. Fins, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

A decree was entered in July 1961 granting a divorce to defendant, counterplaintiff Beverly Jean Miller, hereinafter referred to as “defendant,” and awarding her alimony, child custody, and child support for the children. In the years following the entry of the decree, defendant filed several petitions for rules to show cause against plaintiff, counterdefendant Solomon N. Miller, hereinafter referred to as “plaintiff,” for nonpayment of alimony and child support. On plaintiff’s petition in October 1963, portions of the original divorce decree were modified as to alimony and child support.

In March 1966, defendant again filed a petition against plaintiff for a rule to show cause following his failure to make alimony and child support payments; hearing on the petition was set for April 21, 1966. Plaintiff thereupon filed another petition for modification of the 1963 amended decree as to alimony and child support, alleging as grounds a drastic change in his financial circumstances due to personal insolvency and the involuntary bankruptcy of his corporate business.

On April 14, 1966, the court entered the following order:

“On Petition of Solomon N. Miller, Plaintiff and Counter-Defendant to abate the payment to the Defendant and Counter-Plaintiff of support and maintenance of the minor children and alimony and the Court being advised in the premises, the Court hereby orders:
“2. That a sworn list of assets of the Plaintiff and Counter-Defendant be filed with this Court.
“3. That a rule is hereby entered against the Plaintiff and Counter-Defendant to show cause. . . .
“4. That payments continue to the defendant and Counter-Plaintiff until the further order of Court.”

On May 9, 1966, plaintiff filed a petition for a “change of venue” from the trial judge and from seven other judges sitting in the Circuit Court of Cook County, which petition was subsequently denied. Plaintiff then filed his sworn statement of assets, as required under the April 14th order, and on May 12, 1966, the court entered an order denying plaintiff’s petition for modification of the amended decree and holding him in contempt for failure to make alimony and child support payments. Plaintiff prosecutes this appeal from the order of May 9th denying his petition for a “change of venue,” and from the May 12th order denying his petition for modification of the divorce decree and adjudging him in contempt.

Plaintiff’s first contention is that the trial court erred in denying his petition for a change of venue, inasmuch as the statute regulating changes of venue (Ill Rev Stats 1967, c 146, par 1 through 17) grants a petitioning party an “absolute right” to a change of venue when the petition is made “in apt time and proper form,” citing Cory Corp. v. Fitzgerald, 335 Ill App 579, 82 NE2d 485, and Jones v. Jones, 40 Ill App2d 217, 189 NE2d 33, in support thereof. Before the petitioning party acquires an “absolute right” to a change of venue, the petition therefor must not only be made in “apt time and proper form,” as plaintiff maintains, but it must also appear that the trial court had not theretofore ruled or otherwise acted upon any substantive matter in connection with the case. See Booth v. Metropolitan Sanitary Dist. of Greater Chicago, 79 Ill App2d 310, 224 NE2d 591; Marshall Savings & Loan Ass’n v. Henson, 78 Ill App2d 14, 222 NE2d 255. Were this latter condition not a prerequisite to the allowance of a petition for a change of venue, a litigant would be permitted to “forum shop” by means of first “testing the attitude of the trial judge,” and if the attitude of the judge proved adverse to that party as to substantive matters connected with the case, the party would then be permitted to take his case before another tribunal. Commissioners of Drain. Dist. No. 1 v. Goembel, 383 Ill 323, 50 NE2d 444.

In the instant case the trial court made two rulings on substantive matters connected with the case on April 14, 1966, over three weeks before the filing of plaintiff’s petition for a change of venue. Although plaintiff’s April 1966 petition for modification of the 1963 amended divorce decree requested a reduction of alimony and child support payments, the trial court’s order of April 14th recited that the court was “advised in the premises,” and ordered that the alimony and child support payments were to continue until further order of the court. Secondly, although not specifically requested in defendant’s March 1966 petition for a rule to show cause, the court ordered on April 14th that plaintiff file a sworn statement of assets. Inasmuch as the court made such rulings prior to the filing of plaintiff’s petition for a change of venue, we are of the opinion that the court did not abuse its discretion in denying the petition.

The second point urged by plaintiff is that the trial court erred in denying him the right to interrogate defendant at the May 12th hearing in order to ascertain the extent of her personal and separate income and estate, and in refusing to modify the amended divorce decree with respect to alimony and child support in light of plaintiff’s deteriorating financial condition. Plaintiff cannot be heard to complain in this regard inasmuch as the contention raises factual considerations whereas the record on appeal does not contain a report of proceedings of the May 12th hearing. It is well established that where the judgment or order appealed from recites that the court heard evidence and was “advised in the premises,” and where the party assailing the judgment or order raises factual questions on the appeal and yet has failed to preserve such evidence in the record as is necessary to a proper resolution of those questions, it will be presumed that the trial court heard sufficient evidence to support its determination. Skaggs v. Junis, 28 Ill2d 199, 190 NE2d 731; Kay v. Kay, 46 Ill App2d 446, 197 NE2d 121. Both of plaintiff’s contentions, so far as they involve factual considerations, must consequently fail.

The fact that the order of May 12th recites that the court heard the testimony of plaintiff but does not indicate that it heard the testimony of the defendant does not alter the situation presented. If defendant did not testify and if, in the opinion of the plaintiff, defendant’s testimony was necessary to a proper determination of the issues presented below, which again we are unable to determine due to the lack of a report of proceedings on this appeal, it became incumbent upon plaintiff to request that defendant be called to testify and to request a full hearing; the record again does not establish that plaintiff discharged this obligation. Saxon v. Saxon, 20 Ill App2d 477, 156 NE2d 229 (Abst.). (See page 2 of unreported opinion.)

The cases cited by plaintiff in support of his position are distinguishable on their facts; they involve questions resolved by the reviewing courts after a consideration of the matters preserved for the record on appeal. See e. g., Regan v. Regan, 38 Ill App2d 383, 187 NE2d 286; Gregory v. Gregory, 52 Ill App2d 262, 202 NE2d 139. Under the circumstances we are unable to say that the trial court erred in entering the order of May 12, 1966.

For these reasons the orders appealed from are affirmed.

Orders affirmed.

MCNAMARA and LYONS, JJ., concur.


text:
    Paul F. Ilg, Plaintiff-Counterdefendant, Appellant, v. Continental Illinois National Bank and Trust Company, Defendant-Counterplaintiff, Appellee, Edens Industrial Park, Inc., et al., Def endants-Counterdefendants.
    Gen. No. 52,430.
    First District, Second Division.
    April 9, 1968.

      Peterson, Lowry, Rall, Barber & Ross, of Chicago (John R. Porter, of counsel), for appellant.
    Chapman and Cutler, of Chicago (Abbey Blattberg, Robert V. Lewis, and James N. Zartman, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Plaintiff, Paul Ilg, filed this action for a declaratory judgment to establish the validity of an assignment of a partial interest in a lease of real estate. The trial court granted a motion filed by defendant, Continental Illinois National Bank and Trust Company of Chicago, hereinafter referred to as “defendant,” for judgment on the pleadings. Plaintiff appeals.

Prior to October 1, 1961, Robert Ilg, Sr., was vested of the fee title to a parcel of real estate located in the Village of Niles. Under a document dated October 1, 1961, he leased said premises to Edens Industrial Park, Inc., hereinafter referred to as “Edens,” for a term of forty years at a rental of $15,000 per year, with renewal options for four additional fifteen-year periods. Rental payments for the first five years of the lease were subject to a $3,000 yearly deduction for real estate broker’s commissions.

Also executed by Robert Ilg, Sr., and dated October 1, 1961, were three separate assignments of interest in the Edens lease, each assignment being a 25% interest to each of his three children, plaintiff and defendants, Robert Ilg, Jr., and Virginia Ilg Houser, constituting 75% of the total interest in the lease.

From the date of execution of the lease until the death of Robert Ilg, Sr., on December 25, 1964, Edens paid the stated rentals directly to Ilg, Sr., or for his account, pursuant to the terms of the lease. It is undisputed that no notice was given to Edens of the execution of the assignments by Ilg to his three children. The record shows that on August 1, 1963, the lease was amended in certain respects, the amendment having been executed by Ilg, Sr., and assented to by his spouse; it does not appear that any of the three Ilg assignee-children were involved in the amendment. Letters testamentary issued to defendant on May 21, 1965, and Edens made the rental payments required under the lease directly to defendant as executor and trustee under the Last Will and Testament of Robert Ilg, Sr. Subsequent to the date of October 1, 1961, Robert Ilg, Sr., made disbursements to each of his three children in amounts of $2,997, $3,000 and $2,250 for the years 1962 through 1964 respectively.

The inventory filed in the estate of Robert Ilg, Sr., was approved in January 1966 and included the following items:

“2. Edens Industrial Park, Inc.
“Rent check dated October 30, 1964 $1,000.00
“Rent check dated November 27,1964 $1,000.00
“6. Lot 9 in the Assessor’s Division . . . (setting out the complete legal description of the parcel of real estate in question to which the lease to Edens is subject.)
“Unimproved.
“The above property is subject to a lease between decedent and Edens Industrial Park, Inc., dated October 1,1961.”

On March 7, 1966, plaintiff wrote a letter to defendant demanding 25% of the rentals theretofore collected and being held by defendant in connection with the lease, asserting that he was entitled thereto by virtue of the partial assignment of the Edens lease from his father on October 1,1961. The demand was refused by defendant.

Shortly thereafter plaintiff filed the complaint herein for declaratory judgment seeking, inter alia, a declaration of rights and obligations between the parties with respect to the assignment; a declaration that the assignment was lawful, valid and binding; a judgment for plaintiff in an amount equal to 25% of the rentals theretofore collected and being held by defendant under the lease; and a decree requiring defendant to pay plaintiff 25% of all future rentals it collected with regard to the lease.

Defendant’s answer denied the execution of the assignments of interest in the Edens lease as alleged in the complaint. A counterclaim set up the affirmative defense that plaintiff’s cause of action constituted a claim against the estate of Robert Ilg, Sr., which had not been filed within the nine-month statutory period then provided for the filing of claims and that the cause of action was consequently barred as to all assets inventoried in the estate within the nine-month period. Ill Rev Stats 1965, c 3, par 204. (The present limitation period is seven months. See Ill Rev Stats 1967, c 3, par 204.) Plaintiff’s reply thereto requested that the matters set up therein be rejected.

Defendant filed its motion for judgment on the pleadings in February 1967, alleging that plaintiff’s cause of action was in reality a claim against assets inventoried in the Ilg estate within nine months after letters testamentary had issued and that, as such, it was not filed within the time prescribed for the filing of claims against assets inventoried in an estate. Defendant moved for judgment on the pleadings barring plaintiff’s action against all assets inventoried in the estate within the said nine-month period.

Plaintiff’s answer to the motion admitted that no claim had been filed, but denied that the rentals in question were a part of the Ilg estate, denied that plaintiff’s 25% interest in the lease was ever included in the inventory filed and approved in January 1966, and denied that the provisions of the Probate Act recited in the motion constituted a bar to the relief sought by plaintiff’s action for declaratory judgment. In its reply thereto, defendant admitted that it had knowledge of the assignments made by Robert Ilg, Sr., at the time the inventory was filed and approved. Judgment was entered for defendant and against plaintiff on defendant’s motion in May 1967, and this appeal followed.

We are of the opinion that plaintiff’s action for a declaratory judgment constitutes a claim against the estate of Robert Ilg, Sr., and that the failure to file the claim within the period prescribed by statute barred the claim with respect to those assets inventoried within the claim period.

Section 171 of the Probate Act requires the executor of an estate to file an inventory of all property comprising the decedent’s estate, both real and personal. Ill Rev Stats 1965, c 3, par 171. The inventory constitutes an initial listing of assets, title to which may or may not in fact be in the decedent. Thus, it has long ago been reasoned that the statutory provision requiring an executor to file an inventory of a decedent’s property with the court involves a “preliminary investigation to determine probabilities, and not ultimate rights” and that the matter of disputed property is thereby brought before the court, “so that an adjudication in the interest of the estate on such property may be had.” Simms v. Guess, 52 Ill App 543, 546. Once such asset has been inventoried in an estate, the burden then devolves upon the party who likewise claims title to or an interest in the asset to take such necessary and timely steps to preserve whatever interest he may have therein. The filing of a claim within the statutory period preserves the question of disputed title until the merits can be determined at some later time, and conversely, a claim not filed within the time prescribed by the statute is barred as to all assets inventoried in an estate within the claim period. See Bosnak v. Murphy, 28 Ill App2d 110, 170 NE2d 640.

The undisputed circumstances brought out through the pleadings establish that defendant did not act arbitrarily in listing the entire Edens lease as an asset of the estate of Robert Ilg, Sr., albeit defendant had knowledge of the assignment to plaintiff of 25% of the Edens lease prior to filing the inventory, and further that in listing the lease as an asset of the estate, defendant had a right to question the validity of the assignment. The assignment, as appears on its face, was executed on October 1, 1961, the same day the Edens lease was executed, yet the amounts of money which plaintiff claimed to have received for the years 1962 through 1964 pursuant to the assignment were not proportionately equal to a 25% fraction of the yearly rentals called for under the lease (less the stated deduction therefrom for the real estate broker’s commissions). Furthermore, although both the lease and the assignment bear the execution date of October 1, 1961, plaintiff does not claim to have received any moneys for the last three months of 1961 to which he was otherwise entitled as assignee.

For over three years while the lease was in effect prior to the death of Robert Ilg, Sr., rental payments were made directly to him or for his account, and after his death the payments were made directly to defendant as executor of the estate. For a period of 14 months from the death of Robert Ilg, Sr., plaintiff made no claim to any portion of the rentals collected and held by defendant. The pleadings also reveal that the lease was amended in August 1963, that the amendment bears the signature of the decedent alone, with his spouse assenting to the amendment, and that none of the assignees was a party thereto. Under the circumstances defendant was justified in listing the entire Edens lease as an asset of the estate.

The rental checks and the lease having been fully represented on the inventory, as appears above, plaintiff was given adequate notice that defendant was claiming the entire lease as part of the estate of Robert Ilg, Sr. Plaintiff was therefore put on notice that he possessed a claim against the estate, as defined under section 2(j) of the Probate Act, El Rev Stats 1965, c 3, par 2(j), and it consequently became incumbent upon him to file a claim to a 25% share of the rentals of the lease within the time prescribed by the statute. Having failed to do so, the trial court properly entered judgment on defendant’s motion for judgment on the pleadings. The fact that defendant admittedly knew of the assignment within the statutory period set for the filing of claims gave plaintiff no right to assume that his claim would be honored by the defendant. It is the duty of the prospective claimant to institute a proper proceeding upon his claim and exhibit the claim in court. See In re Estate of Grant, 300 Ill App 179, 20 NE2d 817; Bosnak v. Murphy, 28 Ill App2d 110,114,170 NE2d 640.

Plaintiff maintains that his complaint alleged that the decedent had assigned a 25% interest in the lease to him and that this fact was admitted by virtue of defendant’s motion for judgment on the pleadings, citing such cases as Thillens, Inc. v. Hodge, 2 Ill2d 45, 116 NE2d 886, and Milanko v. Jensen, 404 Ill 261, 88 NE2d 857, in support thereof. However, overlooked by plaintiff in this regard is the fact that the record bears out that the entire lease was claimed as an asset of the estate of Robert Rg, Sr., by the defendant, casting upon plaintiff the burden of filing a timely claim in order to preserve for a later determination whatever interest he may have had in the Edens lease. Therefore, a determination of the validity of the assignment to plaintiff by the decedent became secondary to the necessity of plaintiff perfecting his right to try that question, by his filing a timely claim. In re Estate of Stahl, 305 Ill App 517, 27 NE2d 662; Bosnak v. Murphy, 28 Ill App2d 110, 170 NE2d 640.

Plaintiff also advances the indisputable proposition of law that an executor stands in the shoes of his decedent and acquires the same interest in property as the decedent had. Kinder v. King, 180 Ill App 62, 66. This, however, has no bearing on the question here involved, namely, whether plaintiff filed a timely claim, having received adequate notice that the defendant was listing the entire Edens lease as an asset of the estate of Robert Ilg, Sr.

Plaintiff finally maintains that the trial court erred in holding that section 204 of the Probate Act was applicable to his action for declaratory judgment. Ill Rev Stats 1965, c 3, par 204. Plaintiff reasons that because section 172 of the Act required the inventory filed by defendant to list all of the decedent’s real estate, together with all improvements and encumbrances thereon, and that because there appeared no notation on the inventory filed in the estate which could be construed as a description of his 25% interest in the lease, as allegedly required by section 172, such failure to inventory the 25% interest “removed such item for (sic) the operation of the time limitation provided in Section 204” inasmuch as claims not filed within nine months from the issuance of letters were barred as to those assets inventoried within the nine months. Ill Rev Stats 1965, c 3, pars 172, 204. Although plaintiff makes the allegation that his 25 % interest in the Edens lease should have been listed on the inventory of assets, he advances no valid ground to support this allegation. On the contrary, the Edens lease constituted an encumbrance upon the title of the real estate in question and was listed as such on the inventory, as required by section 204 of the Act; a partial assignment of the lease did not itself constitute a lien, mortgage, or the like, upon the real estate itself. Furthermore, all the rights under the Edens lease, including the right to the stated rentals therefrom, were claimed by defendant as an asset of the estate; the assignment of the 25 % interest in the lease to plaintiff therefore constituted a partial assignment of that asset itself. Consequently, plaintiff cannot be heard to argue on the one hand, that he received an outright assignment of 25% of the asset and on the other hand, that such partial assignment should have been listed as an asset of the estate. Thus, being neither an asset of the estate of Robert Ilg, Sr., nor an encumbrance upon the real estate to which decedent had title, defendant was not required to list plaintiff’s 25% interest on the inventory.

Furthermore, the fact that defendant had knowledge of the assignment prior to its filing of the inventory did not place upon defendant the burden of initially “repudiating” or “challenging” the potential claim, as plaintiff’s argument implies. As stated above, the burden was upon plaintiff to take the timely and necessary steps to perfect his claim to the property and exhibit the claim before the court, Bosnak v. Murphy, 28 Ill App2d 110, 170 NE2d 640, after he had been placed on notice that the property had been listed as a possible asset belonging to the decedent. Simms v. Guess, 52 Ill App 543.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: JUSTICE SEIDENFELD.

text:
    Dorothy Goff, Plaintiff-Appellee, v. Marvin Goff, Defendant-Appellant.
    Gen. No. 67-95.
    Second District.
    April 10, 1968.
    Paul W. Schnake and Dale K. McAlpine, of Aurora, for appellant; O’Brien, Burnell, Puckett and Barnett, of Aurora, for appellee.
   Opinion by

JUSTICE SEIDENFELD.

Not to be published in full.