author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH HOLLIDAY et al., Defendants-Appellants.
    Fifth District
    No. 81—350
    Opinion filed April 26, 1983.
    Randy E. Blue and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellants.
    William P. Strange, Special Prosecutor, of Lawrenceville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

In separate proceedings in the circuit court of Crawford County, defendant William Walton was convicted of theft of a firearm and theft of property valued in excess of $150, and defendant Kenneth Holliday was convicted of theft of property valued in excess of $150. They have appealed from their convictions, and their appeals have been consolidated in this court. They present one assignment of error common to both convictions, that the trial court erred in denying their motions to suppress evidence seized during a search of their residence. Defendant Holliday argues that he was denied the effective assistance of counsel because his attorney failed to move for his discharge on speedy-trial grounds. Defendant Walton contends that his conviction of theft of a firearm should be reversed, it being based upon the same act which supported his conviction for theft of property valued in excess of $150.

Both defendants challenge the court’s denial of their motions to suppress items seized from their residence on April 6, 1980. A search of that residence was undertaken pursuant to a consent signed by defendant Walton at the Crawford County jail and pursuant to a search warrant issued that day. The defendants insist that the complaint for the search warrant did not state probable cause for the search, that, even if the warrant were properly issued, the search exceeded the scope of the warrant, and that Walton’s consent to search was not voluntarily given. Because we agree with the trial court’s finding that Walton voluntarily consented to the search, we need not consider the arguments pertaining to the search warrant.

At the suppression hearing, Robinson police officer William Millsap and both defendants testified. Of these three witnesses, only Millsap and defendant Walton gave testimony relevant to the issue of the voluntary nature of Walton’s consent. On the evening of April 5, 1980, the Robinson police department received a complaint that Walton had been seen brandishing a weapon at a party. Officer Millsap recalled that when he attempted to locate Walton, he went to the residence of Holliday and Walton, where he discovered items which he believed had been stolen in a recent burglary. Later that evening, Walton was arrested and charged with reckless conduct, based on the incident at the party, and was incarcerated in the Crawford County jail.

The following morning, Millsap read Walton Miranda warnings, which, he remembered, Walton seemed to understand. He then requested Walton to sign a form in which he would consent to the search of his residence, informing him that he had the right to withhold his consent. Walton did not deny that he had been so advised, but asserted that he signed the consent because he had been told that “the judge was on the way down” to the jail and “they were getting a warrant out, anyway.” Millsap stated that he did not tell Walton before the consent was signed that a judge was on his way to the jail, because no judge had been contacted at that time. However, Millsap did admit that he told Walton that he and other law enforcement officials were attempting to locate a judge to sign a warrant. A judge of the Second Judicial Circuit did arrive at the jail approximately 30 to 45 minutes after Walton signed the consent form, and that judge, acting on a complaint by Millsap, issued a warrant to search the Holliday and Walton residence.

In order to support a search undertaken pursuant to consent, the State must prove by a preponderance of the evidence that that consent was voluntarily given. (People v. Posey (1981), 99 Ill. App. 3d 943, 426 N.E.2d 209, cert. denied (1982), 456 U.S. 993, 73 L. Ed. 2d 1289, 102 S. Ct. 2276.) The voluntary character of the consent presents a question of fact to be resolved from consideration of all the circumstances under which the consent was given. (Schneckloth v. Bustamonte (1983), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041; People v. Meddows (1981), 100 Ill. App. 3d 576, 427 N.E.2d 219, cert. denied (1982), 459 U.S. 855, 74 L. Ed. 2d 107, 103 S. Ct. 123.) A trial court’s determination on the voluntariness of a consent to search will be accepted on review unless plainly unreasonable. People v. Wahlen (1982), 111 Ill. App. 3d 194, 443 N.E.2d 728; People v. Dortch (1978), 64 Ill. App. 3d 894, 381 N.E.2d 1193.

As the People correctly argue, the fact that a consenting party is in custody does not, by itself, establish that the consent was coerced. (United States v. Watson (1976), 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820; People v. Zynda (1977), 53 Ill. App. 3d 794, 368 N.E.2d 1079; People v. Pagliara (1977), 47 Ill. App. 3d 708, 365 N.E.2d 72, cert. denied (1978), 434 U.S. 1069, 55 L. Ed. 2d 772, 98 S. Ct. 1250.) In the case at bar, Walton was given Miranda warnings and was specifically informed that he need not consent to the search. While failure to give the latter admonishment does not render a consent involuntary (Schneckloth v. Bustamonte; People v. Billings (1977), 52 Ill. App. 3d 414, 367 N.E.2d 337), the fact that a consenting party has been so advised is further evidence that the consent was not coerced. People v. Nunn (1973), 55 Ill. 2d 344, 304 N.E.2d 81, cert. denied (1974), 416 U.S. 904, 40 L. Ed. 2d 108, 94 S. Ct. 1608; People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823, cert. denied (1982), 458 U.S. 1109, 73 L. Ed. 1d 1371, 102 S. Ct. 3490.

Both defendants do not disagree with these principles, but argue that the evidence introduced at the suppression hearing shows only that Walton’s signing of the consent form constituted mere acquiescence, submission or resignation to asserted police authority, and was thus involuntary. (Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788; People v. Johnson (1981), 99 Ill. App. 3d 863, 425 N.E.2d 1215; People v. Kelly (1979), 76 Ill. App. 3d 80, 394 N.E.2d 739.) In Bumper v. North Carolina, Justice Stewart commented, “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion.” (391 U.S. 543, 550, 20 L. Ed. 2d 797, 803, 88 S. Ct. 1788, 1792.) Holliday and Walton contend that a similar sort of coercion was present when Walton consented to the search of the residence in this case.

In People v. Magby (1967), 37 Ill. 2d 197, 226 N.E.2d 33, and People v. Griffin (1977), 53 Ill. App. 3d 294, 368 N.E.2d 738, the consenting parties were informed, prior to giving their consent to search, that if they did not consent, the police would obtain a search warrant. Instead of holding that this information conveyed to the consenting parties the impression that they could not withhold their consent, both courts reasoned that the possible availability of a search warrant suggested to the parties that they need not consent to the search. Here, although Millsap and Walton disagreed on whether Walton was told that a judge was being located or that a judge was on his way to the jail, it is not contested that Walton was informed only that the police would seek a search warrant, not that they had one already. This circumstance, when viewed with the conditions under which Walton executed the consent to search form, shows that the trial court’s finding that that consent was voluntarily given was not plainly erroneous. The search of the Holliday and Walton residence was therefore properly upheld as a product of that consent. See also United States ex rel. Gockley v. Myers (3d Cir. 1967), 378 F.2d 398; Resendez v. State (Tex. Crim. App. 1975), 523 S.W.2d 700.

Next, defendant Holliday maintains that he was denied the effective assistance of counsel when his attorney failed to move for discharge under the speedy trial act (Ill. Rev. Stat. 1981, ch. 38, par. 103 — 5), even though Holliday was not brought to trial until 438 days after a demand for a speedy trial was made. To resolve this issue, a chronology of Holliday’s trial proceedings is necessary. Holliday was arrested on April 8, 1980, and filed a demand for a speedy trial on April 11. Also on April 11, he filed a motion for a list of State’s witnesses, a motion to produce evidence, and a motion for a change of venue from Crawford County. He filed a motion for reduction of bail on April 22, which motion was granted following a hearing on April 23.

A preliminary hearing was held on April 25, at which the court noted that the only remaining motion was Holliday’s motion for change of venue. The court set that motion for hearing on April 28; however, it was not heard at that time. Defense counsel appeared in court on April 28 and orally moved to amend the motion for a change of venue, which was allowed. He also requested leave to file additional motions, to be heard before the venue motion, and, on April 30, he filed motions to suppress evidence and to quash the search warrant. According to a docket entry dated April 28, all pending motions were to be heard on May 2,1980.

On May 1, defense counsel requested that all motions be continued, and this request was granted. A docket entry of August 11, 1980, indicates that Holliday’s case was set for a jury trial on September 11, but instead, the suppression motions and motions to quash the search warrant, filed by Holliday and Walton, were heard jointly and denied on September 15.

During the course of these proceedings, Holliday’s appointed counsel, Jon Anderson, was elected State’s Attorney of Crawford County. Consequently, on January 9, 1981, he was replaced by William K. Thomas as defense counsel, and, on January 22, 1981, William Strange of Lawrenceville was appointed special prosecutor.

On May 18, 1981, Holliday’s case was set for hearing on May 28, but, on the latter date, it was reset for June 3, 1981. No docket entry appears for June 3. Holliday’s stipulated bench trial was held on June 24,1981.

Defendant Holliday asserts that his trial counsel should have moved for his discharge on speedy trial grounds, because even assuming that the 157 days which elapsed between his speedy trial demand and the September 15 suppression hearing are attributable to him, the following 281 days until the stipulated bench trial cannot be so attributed. The People respond that the 160-day period was tolled by the filing of the motion for a change of venue, which was amended once and was continued at least twice at the request of defense counsel. Defendant Holliday replies that a delay due to a defense motion is attributable to the defendant only if a delay actually occurs (People v. Ferguson (1977), 46 Ill. App. 3d 815, 361 N.E.2d 339), and in this case, no delay was occasioned by the venue motion because the defense never called it up for hearing. Under these circumstances, he maintains, he abandoned that motion and his discharge should have been requested. We cannot agree.

Defendant Holliday’s motion for a change of venue would have required a hearing, had it been requested (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 6(b)), and thus would have necessitated some preparation time by the State. (Compare People v. Donaldson (1976), 64 Ill. 2d 536, 356 N.E.2d 776.) Had the motion been heard and decided, the resulting delay to hold the hearing would certainly have been attributable to defendant Holliday. (See People v. Ortiz (1979), 70 Ill. App. 3d 684, 388 N.E.2d 891; People v. Ellis (1972), 4 Ill. App. 3d 585, 281 N.E.2d 405.) The question presented here, however, is whether such a motion can be deemed to have caused delay when it was neither called for hearing by the defense nor withdrawn.

In People v. Ross (1971), 132 Ill. App. 2d 1095, 271 N.E.2d 100, the defendant filed a motion for discovery and a motion to suppress, both of which would have required a hearing. He did not request that either motion be set for a hearing, and, six months later, moved for discharge on speedy-trial grounds. Holding that the trial court erred in discharging the defendant, the appellate court stated that the defendant knew by the type of motions he filed, that legal and factual questions were presented that would have necessitated delay. Of the defendant’s failure to call the motions for hearing, the court said, “He planted the seed and then retired to the shade with a hoe over his shoulder and permitted the weeds to grow in the garden. His quiescence amounted to an acquiescence to a delay in having this case in readiness for trial.” 132 Ill. App. 2d 1095, 1096, 271 N.E.2d 100, 101.

Here, too, defendant Holliday’s pending motion dictated an extensive inquiry, specifically, into the allegations that the citizens of Crawford County would be unable to give defendant Holliday a fair trial. By not taking action on the motion or withdrawing it, Holliday did nothing to alert the State that his prosecution should be expedited so as to avoid a speedy trial violation. In fact, defense counsel’s oral amendment of the venue motion and requested continuances on April 28 and May 1, 1980, would have led the State to believe that he was still pursuing the change of venue. In the absence of withdrawal of that motion, we agree with the People that any delay occurring until the case was set for hearing on May 28, 1981, presumably on that motion, being the only pending motion on file, is attributable to defendant Holliday. He was therefore brought to trial well within the 160-day statutory period. Since a motion for discharge should not have been granted, Holliday’s trial counsel was not ineffective for having failed to so move. People v. Callahan (1981), 95 Ill. App. 3d 479, 420 N.E.2d 787.

Finally, defendant Walton argues that his conviction for theft of a firearm should be reversed, it being based on the same physical act upon which his conviction of theft of property valued in excess of $150 was based. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) He points to People v. Jackson (1978), 64 Ill. App. 3d 159, 380 N.E.2d 1210, in which it was held that the simultaneous exertion of unauthorized control over several different items of property belonging to different owners could support only one conviction of theft. The court in Jackson relied upon People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, where simultaneous possession of two different types of controlled substances was held to support only one conviction of possession of controlled substances under section 402 of the Controlled Substances Act (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1402). In proscribing possession of controlled substances, section 402 lists 11 substances and states that possession of those substances in excess of the amount specified in the subsection is a Class 1 felony. (Ill. Rev. Stat. 1981, ch. 56x/2, pars. 1402(a)(1) through 1402(a)(ll).) Possession of any other amount of a controlled substance is a Class 4 felony. (Ill. Rev. Stat. 1981, ch. 56x/2, par. 1402(b).) In Manning, the defendant was convicted of possession of barbituric acid and amphetamine, which substances are listed in sections 402(a)(5) and 402(a)(6), respectively. Our supreme court held that “in the absence of a statutory provision to the contrary, the simultaneous possession of more than one type of controlled substance, under the circumstances shown on this record, constituted a single offense, and only one sentence should have been imposed.” 71 Ill. 2d 132, 137, 374 N.E.2d 200, 202.

The offenses of theft of a firearm and theft of property valued in excess of $150 are, of course, both types of theft. The elements of theft are defined in sections 16 — 1(a) through 16 — 1(d) of the Criminal Code of 1963 (Ill. Rev. Stat. 1979, ch. 38, pars. 16 — 1(a) through 16— 1(d)), and apply to theft of a firearm as well as other types of theft. To that extent, both offenses share common elements. However, these offenses are treated differently in the sentencing portion of that statute (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(e)), which section provided as follows:

“(1) Theft of property, other than a firearm, not from the person and not exceeding $150 in value is a Class A misdemeanor. A second or subsequent offense after a conviction of any type of theft, including retail theft, other than theft of a firearm, is a Class 4 felony.
(2) Theft of a firearm not from the person regardless of value is a Class 4 felony. A second or subsequent such offense is a Class 3 felony.
(3) Theft of property from the person or exceeding $150 is a Class 3 felony.”

Section 16 — 1 of the Criminal Code of 1961 specifically treats theft of a firearm differently from theft of other property. The value of the firearm need not be shown, in contrast to a prosecution for felony theft. Also, the sentence for theft of a firearm is different, at least for the first offense, than the sentence imposed for felony theft. This statute differs from section 402 of the Controlled Substances Act because possession of the various substances in the amounts listed in sections 402(a)(1) through (11) is treated the same for the purposes of sentencing, and the State must prove, in a prosecution under any subsection, the identity of the substance and the amount. Thus, we believe that this case is distinguishable from Manning. It is also not similar to Jackson, in which the sentences imposed for the acts alleged to constitute different offenses would have been based on the same subsection of section 16 — 1(e), and in which the elements of proof would have been the same for both offenses.

The disparate sentencing treatment and proof requirements for the offenses of theft of a firearm and theft of property valued in excess of $150 are an indication that the General Assembly intended to allow convictions to stand for both offenses, where, as here, it is shown that a defendant exerted unauthorized control over a firearm and over other property valued in excess of $150. We conclude that the trial court did not err in entering judgment and sentencing defendant Walton for both offenses.

Accordingly, the judgment of the circuit court of Crawford County is affirmed in regard to the convictions of both defendants.

Affirmed.

JONES and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARRISON

license: Public Domain

text:
    ENOLA STEVENS FRANKLIN, Ex’x of the Estate of Frank A. Whitehead, Deceased, Plaintiff and Counterdefendant-Appellant, v. ANNA NATIONAL BANK, Defendant and Counterplaintiff-Appellee.—(Cora Goddard, Counterdefendant-Appellee.)
    Fifth District
    No. 82—446
    Opinion filed April 29, 1983.

      John Womick, of Carbondale, for appellant.
    James L. Karraker, of Anna, for appellee Cora Goddard.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The plaintiff, Enola Stevens Franklin, appeals from a final order of the circuit court of Union County which granted summary judgment for the interpleaded counterdefendant, Cora Goddard. The plaintiff raises three issues for our review. First, she contends that the trial court erred in allowing the defendant, Anna National Bank, interpleader relief before the matter was at issue, before the parties were before the court, and at a time when the relief had not been requested. Second, she asserts that the court erred in granting summary judgment to the counterdefendant when that party was not properly before the court. Third, she avers that the trial court erred in granting summary judgment in that material questions of law and fact were unresolved. For the reasons which follow we reverse the judgment of the circuit court and remand for further proceedings.

A brief statement of the procedural history of this case is necessary to an understanding of the issues on appeal. On July 24, 1981, the plaintiff, in her capacity as executrix of the estate of Frank A. Whitehead, filed a two-count complaint in the circuit court of Union County. Count I of the complaint alleged that the defendant was indebted to Whitehead in the sum of $11,523.23. Count II alleged that the same sum was on the books of the defendant bank as an interest-bearing passbook savings account and that the defendant had fraudulently refused to pay the sum to the plaintiff. The defendant filed an answer denying the material allegations of the complaint and a counterclaim for interpleader against the plaintiff and against Cora Goddard as counterdefendants. The counterclaim alleged that the defendant-counterplaintiff held a deposit in the amount of $11,826.86 pursuant to an agreement between the counterplaintiff, Whitehead, and Goddard. The counterclaim further alleged that Goddard, as the surviving joint tenant, had a claim for the entire amount and that the counterplaintiff was therefore subject to double liability. The counterclaim then prayed that the counterdefendants be required to inter-plead in accord with section 26.2 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 26.2, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 409), and requested leave to pay the amount of the deposit account to the clerk of the circuit court. This relief was granted by the trial court on October 22, 1981. On February 1, 1982, the counterdefendant Cora Goddard filed an answer to the counterclaim and a motion for summary judgment based on her status as surviving joint tenant. Attached to the motion for summary judgment was the affidavit of Delano Mowery, president of the defendant-counterplaintiff Anna National Bank. The affidavit stated under oath that the records of the bank on April 17, 1978, reflected a joint account agreement of the Anna National Bank executed by and between Frank A. Whitehead and Cora T. Goddard. A copy of the account agreement was attached as an exhibit and specified that all funds in the account were joint property owned as joint tenants with the right of survivorship and that “upon the death of either of us the balance in said account shall become the absolute property of the survivor.” The plaintiff-counter-defendant filed a counteraffidavit on oath stating that Whitehead had terminated the joint account by “proper order” to the bank and thereby had extinguished any interest which Goddard may have had in the account. On May 6, 1982, the trial court found that there was no genuine issue as to any material fact and allowed Cora Goddard’s motion for summary judgment. The defendant filed a post-trial motion on June 4, 1982, which was denied on July 2, 1982. The plaintiff filed her notice of appeal on July 30,1982.

The plaintiff’s first assertion of error is that interpleader relief was inappropriate because the counterclaim did not comply with the joinder provisions of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, pars. 23 through 26, now Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 404 through 2 — 407) and because the counterplaintiff filing the interpleader action was not a disinterested stakeholder. We find both of these arguments unpersuasive. Compliance with other joinder provisions is not required by the interpleader statute and we refuse to interpret the statute in such a manner. While the common law bill of interpleader required, inter alia, that the party seeking interpleader must be a neutral stakeholder (see, e.g., Platte Valley State Bank v. National Live Stock Bank (1895), 155 Ill. 250, 257, 40 N.E. 621; see also Ill. Ann. Stat., ch. 110, par. 26.2, Joint Committee Comments, at 333 (Smith-Hurd 1968)), we need not decide whether this is also a requisite for relief under the statute as the bank in the instant case has made no claim to the fund or against the other parties. We therefore find no application in the instant case for the plaintiff’s objection.

The plaintiff next contends that the trial court erred in granting summary judgment in that Cora Goddard was not properly before the court. A defendant is authorized by statute to interplead by counterclaim. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 409.) The cited statute also provides that “[pjersons having claims” arising out of the same or related subject matter may be required to interplead. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 409.) Taking the authorization for proceeding by counterclaim together with the emphasized plural language, we conclude that these statutory provisions impliedly authorize the addition of new parties by counterclaim seeking inter-pleader. This conclusion is strengthened by the purpose of the statute: to avoid exposing a stakeholder to multiple liability. (See Drabik v. Lawn Manor Savings & Loan Association (1978), 65 Ill. App. 3d 272, 275, 382 N.E.2d 333.) If such joinder were not permitted the stakeholder would be forced to litigate separate suits, and thus risk incurring multiple liability. This result is precisely what the statute seeks to avoid. We also note the case of Johnson v. Moon (1954), 3 Ill. 2d 561, 567-70, 121 N.E.2d 774, wherein our supreme court determined that the Civil Practice Act authorized the joinder of new parties by counterclaim where the controversy “delimited by the complaint and the counterclaim *** relates to a single occurrence, and presents common questions of law and fact.” (3 Ill. 2d 561, 570.) This rationale is similar to that underlying the interpleader statute and the same result should obtain in both situations. We therefore conclude that Cora Goddard was properly joined as a counterdefendants.

The plaintiff’s argument implicitly questions whether the answer filed by the counterdefendant in response to the interpleader counterclaim properly presented to the circuit court the counterdefendant’s assertion of right to the property at issue. An answer is merely the “first pleading [filed] by the defendant.” (Ill. Rev. Stat. 1981, ch. 110, par. 32, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 602; but see Benckendorf v. Burlington Northern R.R. (1983), 112 Ill. App. 3d 658, 661, 445 N.E .2d 837, 840.) In the context of interpleader, the purpose of the proceeding is to determine which party has the greater right to a particular, disputed fund. Where an interpleaded party asserts no separate cause of action against another party, nor any affirmative defenses seeking to avoid the claim of another party, we discern no difference between a party asserting its right to the fund by an answer or by a counterclaim. Moreover, the interpleader statute does not establish a manner in which a new party joined by a counterclaim for interpleader may assert his claim. Where the interpleaded party raises no affirmative defense or separate cause of action, and seeks only to assert his right to the interpleaded sum, we perceive no resulting confusion or prejudice in allowing assertion of that right by the answer. In light of the instant answer’s prayer for relief requesting the bank account to be ruled to be the counterdefendant Goddard’s sole property, we cannot say that the original plaintiff was unaware of or surprised by Goddard’s claim or its assertion in this proceeding. We conclude that Goddard’s claim to the fund in question was properly before the court.

The plaintiff’s last assertion of error is that the trial court erred in granting summary judgment in that genuine issues of material fact remained unresolved. The plaintiff contends that several “facts” were in issue. Upon analysis, however, only one of these merits discussion. Goddard’s motion for summary judgment was accompanied by the sworn affidavit of Delano Mowery, the bank president. This affidavit alleged that the account and funds were, on December 22, 1982, in the name of Frank A. Whitehead and Cora T. Goddard as joint tenants with the right of survivorship. None of the parties denies that Whitehead died on December 22, 1980. A copy of the signature agreement was attached to Mowery’s affidavit. The plaintiff’s counteraffidavit, for the most part, alleged facts based on information and belief. The allegation that Whitehead had terminated the joint account, however, was based on personal knowledge and under oath. This allegation is sufficient to raise a genuine issue of material fact under the test set forth in Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 586-87, 272 N.E.2d 497, as the allegation contradicts Mowery’s sworn averment that the joint tenancy existed when Whitehead died. Summary judgment is therefore inappropriate.

Nor are we persuaded by appellee’s argument that the affidavit is incompetent because the affiant, plaintiff in this cause, is an “interested person” barred from testifying by section 2 of the Evidence Act. (Ill. Rev. Stat. 1981, ch. 51, par. 2, now Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201.) The statute bars only those parties or persons adverse to the representative of a deceased person. As the representative, plaintiff is not adverse to herself and therefore is not barred from testifying by section 2. Scianna v. Scianna (1966), 69 Ill. App. 2d 388, 217 N.E.2d 101, is therefore distinguishable as in that case the affiant was adverse to the administratrix. In the instant case, plaintiffs counteraffidavit was not barred by section 2, and we conclude that summary judgment was therefore inappropriate, and the judgment of the circuit court of Union County is accordingly reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

EARNS and JONES, JJ., concur.


author: JUSTICE KARNS

text:
    ROBERT WINKLMEIER, Plaintiff-Appellee, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR et al., Defendants-Appellants.
    Fifth District
    No. 82—508
    Opinion filed April 26, 1983.
    Tyrone C. Fahner, Attorney General, of Springfield (Patricia Rosen, Assistant Attorney General, of counsel), for appellants.
    Al J. Pranaitis, of Hoagland, Maucker, Bernard & Almeter, of Alton, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

This appeal is taken from the judgment of the circuit court of Madison County reversing a decision by the Board of Review of the Department of Labor denying Robert Winklmeier’s claim for unemployment compensation benefits.

Winklmeier, during the period from September 1978 to July 1980, submitted 13 medical insurance claims to his employer, Granite City Steel Company. Each claim was for medical treatment for his wife and on each Winklmeier falsely stated that his wife was unemployed and had no insurance of her own. As a result, Granite City Steel’s insurance carrier, Prudential, made payment to those who had rendered medical service to Mrs. Winklmeier. When Granite City Steel learned that Winklmeier’s wife was employed and had medical insurance through her employer, Winklmeier was discharged. Subsequently, Winklmeier filed for unemployment compensation benefits with the State of Illinois.

On February 4, 1981, a hearings referee denied Winklmeier’s request for benefits, citing section 602(A) of the Unemployment Insurance Act (Ill. Rev. Stat. 1979, ch. 48, par. 432(A)) as the basis for his decision. Section 602(A) provides that an individual is ineligible for benefits, for a prescribed period, when he has been discharged for misconduct connected with his work. (Ill. Rev. Stat. 1979, ch. 48, par. 432(A).) The referee found that Winklmeier had intentionally filed the claims containing the false information and that such conduct could result in higher insurance costs to Granite City Steel and reflected a wilful disregard of the employer’s interest. The referee’s decision was affirmed by the Board of Review. Winklmeier then filed a complaint in the circuit court pursuant to the Administrative Review Act (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 101 et seq.), seeking review of the board’s decision. The court reversed without setting forth the reasons for its decision.

The parties agree that the sole issue for this court to decide is whether Winklmeier’s actions constitute “misconduct connected with his work” under section 602(A) (Ill. Rev. Stat. 1979, ch. 48, par. 432(A)). This court will not disturb the referee’s finding if it is supported by substantial evidence. Yadro v. Bowling (1980), 91 Ill. App. 3d 889, 892, 414 N.E.2d 1244, 1247.

Misconduct, as is relevant here, is a deliberate act which constitutes a breach of an employee’s duties and obligations to his employer. (Dotson v. Bowling (1981), 102 Ill. App. 3d 340, 430 N.E.2d 44.) It includes a wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standards of behavior an employer has a right to expect of his employee and negligence in such a degree or with such recurrence that it manifests an intent to disregard employee responsibilities. (Granite City Steel Division of National Steel Corp. v. Board of Review (1979), 68 Ill. App. 3d 264, 385 N.E.2d 931.) It does not include mere insufficiency, ordinary negligence or good faith errors in judgment.

We agree with the referee’s findings. It is undisputed that Winklmeier intentionally submitted the false information and his decision to do so was not an isolated incident. A total of 13 claims were filed over a 23-month period. In addition, the practice of filing the false claims could result in substantial financial costs to Granite City Steel. An employer’s financial loss is a relevant factor in determining if a claimant should be denied benefits. Kneisler v. Commonwealth of Pennsylvania Unemployment Compensation Board of Review (1980), 52 Pa. Commw. 70, 418 A.2d 774.

Finally, we are not persuaded by Winklmeier’s argument that the misconduct must have a direct connection with the work being performed. We do not agree with this narrow interpretation of the statutory language. We point out that the meaning of “misconduct connected with his work” can only be determined in light of the specific facts of each case. (Granite City Steel Division of National Steel Corp. v. Board of Review (1979), 68 Ill. App. 3d 264, 270, 385 N.E.2d 931, 935.) In the present case, we believe Winklmeier’s behavior was contrary to his employer’s interests and in total disregard of the standard of behavior expected of an employee. Such behavior constitutes misconduct connected with an employee’s work and accordingly, we reverse the judgment of the circuit court.

As a result of our decision that Winklmeier’s claim for unemployment compensation benefits must be denied, it is unnecessary to address the remaining issues raised by the parties.

Reversed.

HARRISON, P.J., and JONES, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE ROY GOREE, JR., Defendant-Appellant.
    Fifth District
    No. 81—592
    Opinion filed April 20, 1983.
    Randy E. Blue, of State Appellate Defender’s Office, of Mt. Vernon, Patrick J. Hughes, Jr., of Springfield, and Donald L. Woods, of Southern Illinois University School of Law, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Stephen E. Norris and Frank J. Bieszczat, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

The defendant, Lee Roy Goree, Jr., was convicted in the circuit court of St. Clair County of murder and was sentenced to 40 years’ imprisonment. He appeals from his conviction and sentence, and argues that the trial court erred in failing to suppress a confession given by the defendant after he had been held in custody for three days without being charged with a crime or presented to a judicial officer. He also contends that the court relied on untrustworthy evidence introduced in aggravation at the sentencing hearing.

In the late afternoon or early evening of March 29, 1981, the defendant was arrested by Washington Park police officers. He was kept in custody and was not formally charged with a crime or presented to a judicial officer until April 1, 1981. In the interim, the defendant gave two inculpatory statements, the first of which, on March 30, 1981, was transcribed, and the second of which, on March 31, 1981, was tape recorded. The later statement contained a slightly different version of the offense than the earlier statement. It is only the second, tape recorded statement which the defendant contends should have been suppressed, because the first statement was never introduced into evidence at the defendant’s trial.

After the defendant’s arrest, he was taken to the Washington Park police station, where he was detained overnight. On March 30, he was transported to the St. Clair County jail at approximately 9 a.m. He participated in several lineups and was returned to the Washington Park facilities at 3 p.m. Later that afternoon, the defendant was interviewed at the Washington Park police station by Agents Thomas O’Connor and Jimmy Bivens of the Illinois Department of Law Enforcement. O’Connor and Bivens testified that the defendant was given Miranda warnings before he gave the statement, and no threats or promises were made to him. Both agents stated that during the interview, the defendant seemed cooperative, alert and coherent. This testimony was corroborated by Washington Park police sergeant Phillip Delaney who was present during that questioning.

Following the interview, the defendant indicated that he would accompany the officers to the house of his aunt, Helen Phillips Shanklin, to recover several items which had been used in the robbery during which the murder was committed. At approximately 8 p.m., the defendant, accompanied by O’Conner, Bivens, Sergeant Delaney and Agent Terrence Delaney of the Illinois Department of Law Enforcement, arrived at the house of the defendant’s aunt. Ms. Shanklin executed a consent to search form, and the officers recovered a .22-cali-ber weapon and army fatigues from the basement. Before the defendant was taken back to the Washington Park police department, his aunt gave him a beverage, which the officers thought was a soft drink. The officers and the defendant remained at the Shanklin residence for nearly 30 minutes.

While at the Shanklin house, the defendant showed no signs of illness or other disturbance. However, at about 10:30 p.m. or 11 p.m., at the Washington Park police department, the defendant appeared to be in “somewhat of a stupor.” To the officers, he seemed incoherent, slurred his speech, and had difficulty standing and walking. The defendant was transported by ambulance to St. Mary’s Hospital in East St. Louis, where he was admitted shortly after midnight. He was given an agent to induce vomiting and was kept in the hospital overnight. The defendant was discharged at 9:15 the following morning and was returned to Washington Park by Patrolman Frank Franklin. According to Franklin, the defendant appeared and acted coherent and even refused to use a wheelchair which was offered him upon his discharge.

Shortly after the defendant arrived at the Washington Park police department, he was transferred to the Fairview Heights facilities of the Department of Law Enforcement by Agents Bivens and O’Con-nor. At about noon, the defendant gave a statement which was tape recorded by O’Connor, and which would have been videotaped by State Trooper James Gallo, but the equipment did not function. Both O’Connor and Bivens testified that prior to giving the statement, the defendant was given Miranda warnings. They recalled that he seemed coherent throughout the interview, that no threats or promises were made to him and that he told them that he was not under the influence of drugs or alcohol.

The defendant testified that in the afternoon of March 30, at the Washington Park police department, Agent O’Connor pushed his head against a concrete wall, following which, the defendant stated, he did not remember anything, including the first statement, until he was discharged from the hospital. According to the defendant, Agent O’Connor told him at Fairview Heights that if he did not give a statement, “what happened to him last night could be permanent.” O’Con-nor denied striking the defendant, and Agent Bivens testified that he did not observe any physical contact between the defendant and O’Connor. The defendant claimed to have developed a knot on the back of his head from the blow, but on cross-examination, he admitted that he did not tell the doctors at St. Mary’s Hospital that he was hit on the head. He did state that he told the nurses at the St. Clair County jail about the incident.

The defendant does not argue that his confession was involuntary, but instead, he insists that his detention for three days before being charged with an offense violated his constitutional (Gerstein v. Pugh (1975), 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854) and statutory (Ill. Rev. Stat. 1981, ch. 38, par. 109 — 1) rights to prompt presentment to a judicial officer for a determination of the probable cause for detention. He notes that where an individual is arrested without probable cause, a confession which is the product of that illegal arrest is not admissible solely because it is voluntary for purposes of the fifth amendment. (Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254; Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.) In such circumstances, the fourth amendment, as applied to the States through the fourteenth amendment, requires the State to show that the confession was “sufficiently an act of free will to purge the primary taint” of the illegal arrest. Wong Sun v. United States (1963), 371 U.S. 471, 486, 9 L. Ed. 2d 441, 454, 83 S. Ct. 407, 416-17.

The United States Supreme Court has mandated use of this stringent test to determine the admissibility of a confession obtained after an arrest (Brown v. Illinois; Dunaway v. New York) or search and seizure (Wong Sun v. United States) made in violation of the fourth amendment. The defendant asserts that this standard should also be applied to a confession allegedly obtained in violation of the fourth amendment’s prompt presentment requirement as enunciated in Ger-stein v. Pugh. Initially, we question the defendant’s preservation of this fourth amendment argument for purposes of this appeal, because the delay in presenting the defendant to a magistrate was not specified as a ground for suppression in the suppression motion, at the hearing on the motion, or in the post-trial motion. A specific objection to the admission of evidence waives all grounds not specified (People v. Curry (1973), 56 Ill. 2d 162, 306 N.E.2d 292), and even a constitutional question not properly presented at trial will not normally be considered on appeal. (People v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.) Nonetheless, even upon consideration of the defendant’s fourth amendment claim, we find it to be meritless.

While the Federal courts have used a higher standard of proof to admit a confession obtained following a violation of a Federal statutory right to prompt presentment (Mallory v. United States (1957), 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356; McNabb v. United States (1943), 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608), this rule has not been applied to the States through the fourteenth amendment (see Culombe v. Connecticut (1961), 367 U.S. 568, 6 L. Ed. 2d 1037, 81 S. Ct. 1860; Annot., 19 A.L.R.2d 1331 (1951)), and the defendant does not suggest otherwise. In Illinois, the reported decisions uphold the principle that violation of the constitutional or statutory right to a prompt determination of probable cause for detention does not require exclusion of a confession obtained during that detention, but is instead a factor to be considered in determining whether the confession was voluntary. (People v. Lucas (1980), 88 Ill. App. 3d 942, 948-49, 410 N.E.2d 1040, 1044-45; People v. Dees (1981), 85 Ill. 2d 233, 237-38, 422 N.E.2d 616, 618 (dicta); see also People v. Walker (1977), 45 Ill. App. 3d 627, 360 N.E.2d 64.) The confession will be excluded only if it is involuntary.

The defendant characterizes these Illinois authorities as representing “a pre-Gerstein and a pre-Brown v. Illinois viewpoint,” and urges this court to adopt a different position. However, People v. Lucas and People v. Dees explicitly considered the Gerstein decision, especially the statement that “a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause.” (Gerstein v. Pugh (1974), 420 U.S. 103, 119, 43 L. Ed. 2d 54, 68, 95 S. Ct. 854, 866.) We find nothing in Ger-stein, Brown or Dunaway to cast doubt on the statements in the Illinois cases that a confession obtained during detention in violation of constitutional or statutory prompt presentment requirements will not be suppressed unless involuntary. Absent expansion of the McNabbMallory rule to the States or specific adoption of such a position in Illinois, we continue to adhere to the principles expressed in Lucas and Bees.

In the case at bar, the defendant does not present his tape-recorded statement as involuntary, nor do we believe that such a claim could be made. Prior to giving that confession, the defendant was given Miranda warnings. The defendant stated that he was not under the influence of drugs or alcohol that morning, and appeared to be coherent at that time, according to the police personnel who were involved with the making of the statement and the two transfers of the defendant before the statement was given. Moreover, although the defendant claimed that the statement was coerced by a threat from Agent O’Connor, this testimony is significantly undermined by the testimony of Agents O’Connor and Bivens that O’Connor did not strike the defendant and that they did not make any threats or promises to him, in addition to the failure of the defendant to complain to hospital personnel about a blow to his head. The evidence introduced at the suppression hearing thus shows that the tape-recorded statement was voluntary, and the trial court properly admitted it into evidence at the defendant’s trial.

The defendant’s final assignment of error concerns certain testimony admitted in aggravation at his sentencing hearing. At that hearing, Ernest Mosby testified that on March 26, 1981, the defendant told him that, the previous evening, he had shot someone during a robbery of a Sunoco service station in East St. Louis. Additional evidence in aggravation showed that at approximately 8 p.m. on March 25, 1981, a man named Charlie Dones, an attendant at the Sunoco station at 7701 State Street in East St. Louis, was found dead at that station. He had been shot twice. A spent slug was taken from the body of Dones and was analyzed at the Fairview Heights crime laboratory of the Illinois Department of Law Enforcement. Laboratory director Larry Lorsbach testified that, in his opinion, that slug was fired from a .38-caliber Smith and Wesson revolver which had been recovered from the floor of the defendant’s car, near the gas pedal, by Washington Park police after the defendant’s arrest.

It is not disputed by the defendant that testimony concerning an offense for which he had not been prosecuted or convicted is generally admissible in aggravation. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) However, he observes that, in pronouncing this rule, our supreme court stated,' “More important are the questions of relevancy and accuracy of the information submitted.” (People v. La Pointe (1981), 88 Ill. 2d 482, 498, 431 N.E.2d 344, 351.) In this case, he argues that the State’s evidence in aggravation linking him to the Sunoco homicide was insufficiently trustworthy to have been relied upon by the sentencing court.

The defendant contends that Mosby’s credibility is significantly impeached by his criminal record. At the sentencing hearing, Mosby testified that he had been involved with the defendant in armed robberies at a Wiggs service station in East St. Louis and at a liquor store in Sauget. He also admitted that he had been put on juvenile probation. Although Mosby was charged with both armed robberies, he received a minimum sentence of six years’ imprisonment for the liquor store robbery, and the charge based on the service station robbery was dismissed, pursuant to plea negotiations. Also pursuant to plea negotiations, the State’s Attorney agreed to recommend that Mosby’s sentence be served at a penal institution other than the Menard penitentiary, because, as Mosby stated, he felt that his life would be in danger at Menard. According to the defendant, the results of the plea negotiations establish Mosby’s indebtedness to the State and give him a motive not to testify truthfully.

In addition to these weaknesses in Mosby’s credibility, the defendant points out certain alleged inconsistencies in his testimony. Responding to the prosecutor’s question, Mosby stated that on March 26, the defendant came to Mosby’s house “by himself” and admitted to the killing. The defendant asserts that this testimony is inconsistent with Mosby’s answers on cross-examination, where he said that his girlfriend and Earlie Glenn were present when Mosby was told about the shooting, and that he was at his girlfriend’s house. However, it should be noted that the fact that the defendant arrived at Mosby’s house, or his girlfriend’s house, alone, is not inconsistent with the testimony that Mosby’s girlfriend and Earlie Glenn were there when the defendant talked to Mosby.

According to the defendant, the testimony concerning the Sunoco homicide was relied upon by the court in imposing the maximum non-extended sentence upon him. At the conclusion of the sentencing hearing, the court said of that testimony, “The court has, obviously, heard the evidence that was presented by the State in aggravation, although, obviously, that does not amount to a conviction. It wasn’t a matter of proving something beyond a reasonable doubt. And there was no jury to determine your guilt or innocence. It, at the very least, corroborated the fact which is abundantly clear on the record, Mr. Goree, that you are a killer.” Because the evidence introduced at trial did not show that the defendant killed James Milliner, he asserts that the evidence pertaining to the Sunoco shooting influenced the court in making its sentencing decision, and was prejudicial error.

We cannot agree with the defendant’s argument. While Mos-by’s prior criminality adversely affects his credibility, it should be recalled that his testimony, like that accepted in La Pointe, was sworn testimony, presented in open court, and was extensively cross-examined. Its weaknesses were thoroughly presented to the trial court. Mosby’s version of the Sunoco killing, as having occurred on the evening of March 25, was corroborated by police witnesses, whose testimony is not challenged by the defendant. Moreover, the weapon which fired the slug recovered from the body of Charlie Dones was found in the defendant’s car when he was arrested. The defendant argues that this fact is inconclusive in tying the killing to him, because Mosby and Earlie Glenn were also in that car when they were stopped. But, this ignores the evidence that the defendant was driving the car at that time, and the weapon was found near the accelerator pedal. Finally, as we have discussed above, the alleged inconsistencies between Mosby’s testimony on direct examination and his answers on cross-examination are either nonexistent or not so significant as to render that testimony untrustworthy for consideration in aggravation. The evidence concerning the defendant’s role in the Sunoco homicide was sufficiently reliable under the standards of La Pointe to be used by the sentencing court in its decision.

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

Affirmed.

HARRISON, P.J., and KASSERMAN, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT D. PITCHFORD, Defendant-Appellee.
    Fifth District
    No. 82—220
    Opinion filed April 26, 1983.

      Tyrone C. Fahner, Attorney General, of Springfield, and Robert Shuff, State’s Attorney, of Mt. Vernon (Michael A. Ficaro, Mark L. Rotert, and Michael Vujovich, Assistant Attorneys General, of counsel), for the People.
    Donald E. Irvin, of Mt. Vernon, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant Robert D. Pitehford, sheriff of Jefferson County, Illinois, was charged on December 7, 1981, with official misconduct, obstructing justice, solicitation to obstruct justice, conspiracy to obstruct justice, and obstructing a peace officer. These charges resulted from evidence obtained with an eavesdropping device. On April 12, 1982, the circuit court of Jefferson County granted the defendant’s motion to suppress tape recordings of telephone conversations between the defendant and Wilbert E. Tobias, an informant for the Illinois Department of Law Enforcement. Without holding an evidentiary hearing, the trial court ruled that the documents submitted to the circuit court to obtain the eavesdropping order were facially deficient in three ways. The court held that the State’s Attorney’s authorization for use of an eavesdropping device was invalid because the State’s Attorney signed it a few minutes before Tobias signed a written consent form. The court also held that application for the eavesdropping device failed to state reasonable cause. In addition, the court stated that the order was improper because the time limits it authorized had begun to run by the time the order was signed. The State appeals the order suppressing the evidence. 87 Ill. 2d R. 604(a).

The eavesdropping order was issued by the circuit court of Williamson County on December 3, 1981. Specifying in his petition what felony was about to be committed, Special Agent Donald E. Leckrone of the Illinois Division of Criminal Investigation alleged the following information:

“1. (a) Official Misconduct (Chapt. 38 — 33—3) and Obstructing Justice (Chapt. 38 — 31—4) The Ill. Div. of Grim. Investigation has been conducting a criminal investigation regarding gambling activity in and around the Jefferson County area. This investigation was initiated approx. August, 1981. On Dec. 3, 1981, at approx. 10:15 A.M., Jefferson Co. Sheriff Bob D. Pitehford advised Wilbert E. Tobias, whom the sheriff believes to be involved in gambling activities to tell his friends to ‘pull back, the town’s full of state police and treasury agents.’ ”

Special Agent Leckrone further stated in the petition that “Mr. Tobias will recontact Sheriff. Pitehford and request further information in regards to the previous conversation of Dec. 3, 1981.” The application also requested that the eavesdropping device be used from 6 p.m. that day until 6 p.m. on December 6, 1981.

Other documents submitted to the circuit court of Williamson County included the State’s Attorney’s authorization approving the use of the device and Wilbert Tobias’ written consent allowing his conversation to be recorded. The State’s Attorney’s authorization, signed by Robert Shuff, State’s Attorney of Jefferson County, included a notation of the time as 6:30 p.m. on December 3, 1981. To-bias’ consent form contained the notation that it was signed at 6:47 p.m. that day, and the eavesdropping order was issued by the court at 7:48 p.m. Later that night, two telephone conversations between To-bias and the defendant were recorded. These recordings led to the criminal charges against the defendant.

On appeal, the State argues that the trial court’s order suppressing the evidence was erroneous for three reasons. We will consider each argument in turn.

First, the State asserts that the Illinois eavesdropping statute does not require that the State’s Attorney have the consent of the informant before he signs a form seeking an eavesdropping order from a circuit judge. This court addressed a similar issue in People v. Scribner (1982), 108 Ill. App. 3d 1138, 440 N.E.2d 160. In that case, the sole written authorization by the consenting party included a date and time notation later than the time at which all surveillance was completed. Nonetheless, this court held that the consent by the participant in the conversation was proper, in part, because the statute requires only that the authorizing court find that one party “has or will have consented ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(a); People v. Scribner.) Since a court need not be presented with proof either of past or present consent at the time of the eavesdropping application, the fact that Wilbert Tobias signed a consent form 17 minutes after the State’s Attorney signed his authorization does not vitiate Tobias’ consent to the eavesdropping in the instant case. People v. Scribner.

The State’s second argument is that the trial court erred in finding the eavesdropping order insufficient on its face to establish reasonable cause. Specifically, the court held that paragraph 1(a) of the application, quoted in full above, did not explain how the police knew that the defendant believed informant Tobias to be involved in gambling activity.

The statutory requirements for obtaining permission to use an eavesdropping device are set forth in sections 108A — 3 and 108A — 4 of the Code of Criminal Procedure of 1963. The eavesdropping application must include “a statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued including *** details as to the felony that has been, is being, or is about to be committed ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3(a)(2)(a); People v. Scribner.) After this information is submitted to the circuit court, the judge must determine if “there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a felony ***.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 4(b).) The phrases “probable cause” and “reasonable cause” have been held to be “legally synonymous.” People v. Monoson (1979), 75 Ill. App. 3d 1, 9, 393 N.E.2d 1239, 1246.

It is a well accepted principle that in determining the existence of reasonable cause, courts must view the application in a common sense fashion. (People v. Sylvester (1980), 86 Ill. App. 3d 186, 407 N.E.2d 1002; United States v. Kirk (8th Cir. 1976), 534 F.2d 1262.) Moreover, the Illinois statute does not require that reasonable cause be established solely from facts stated on the application; the statute allows for the court to request and consider “additional testimony, witnesses, or evidence in support of the application.” (Ill. Rev. Stat. 1981, ch. 38, par. 108A — 3(b); People v. Moore (1980), 90 Ill. App. 3d 760, 413 N.E.2d 516; see also People v. Daehler (1978), 57 Ill. App. 3d 944, 373 N.E.2d 776.) When the defendant in People v. Moore argued that there was insufficient information in an eavesdropping application to establish reasonable cause, the court held that such an application may properly plead only the felony involved, so long as the court is supplied with specific details through other evidence. People v. Moore.

The felonies involved in the case at bar were clearly stated by name and criminal code section number in paragraph 1(a) of the State’s application. The application stated that the felonies of official misconduct and obstructing justice had been, were being, or were about to be committed. The Criminal Code of 1961 defines official misconduct as follows:

“A public officer or employee commits misconduct when, in his official capacity, he commits any of the following acts:
(a) Intentionally or recklessly fails to perform any mandatory duty as required by law; or
(b) Knowingly performs an act which he knows he is forbidden by law to perform; or
(c) With intent to obtain a personal advantage for himself or another, he performs an act in excess of his lawful authority; or
(d) Solicits or knowingly accepts for the performance of any act a fee or reward which he knows is not authorized by law; or
(e) Knowingly and intentionally executes a false document which authorizes the disbursement of public funds or the disposal of public property.
***” (Ill. Rev. Stat. 1981, ch. 38, par. 33-3).

The Code’s definition of obstructing justice states:

“A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information; or
(b) Induces a witness having knowledge material to the subject at issue to leave the State or conceal himself; or
(c) Possessing knowledge material to the subject at issue, he leaves the State or conceals himself.
***” (Ill. Rev. Stat. 1981, ch. 38, par. 31-4).

Therefore, the test for reasonable cause in the case at bar is whether the totality of the facts and circumstances were sufficient to warrant the belief by a person of reasonable caution that at least one of these offenses had been, was being or would be committed. People v. Sylvester.

The trial court refused to hold an evidentiary hearing to determine what additional evidence, if any, was presented to the issuing judge. While the State should not have been limited to information on the face of its application to show that reasonable cause was established, we do not feel that this limitation imposed by the trial court rendered the information accepted by the court insufficient to support the eavesdrop.

The facts and circumstances described in the State’s eavesdropping application would in themselves lead a person of reasonable caution to believe that the sheriff was taking steps to impede a police investigation. Even if the phrase objected to by the suppression judge — “whom the sheriff believes to be involved in gambling ***”_is stricken, the remaining portion of the application still establishes reasonable cause (see People v. O’Dell (1980), 84 Ill. App. 3d 359, 405 N.E.2d 809). The State’s application quotes the sheriff as saying to informant Tobias, “pull back, the town’s full of state police and treasury agents.” Only a contorted interpretation of this statement would allow the conclusion that the sheriff’s remarks did not concern the concealment of illegal activity from police detection. This conduct by a law enforcement official established reasonable cause for the circuit judge to believe that a felony either had already been committed, was being committed, or was about to be committed. (People v. Sylvester; People v. Moore.) Therefore, the trial court erred when it held that the State’s eavesdropping application was facially insufficient to establish reasonable cause.

The State’s final argument is that there was no error in the entry of the eavesdropping order after the time limit specified in the order had begun to run because the order had no legal force until it was signed by a judge. Although the court order authorized eavesdropping as of 6 p.m. December 3, 1981, a notation by the issuing judge shows that he signed the document at 7:48 p.m. that day. The suppression court stated that this action “put the court in a position of authorizing illegal activity.” We disagree. There is no suggestion in the record that any unauthorized, illegal eavesdropping actually took place. Accordingly, any error created by the inconsistency in the stated time of the order was only technical and did not warrant suppression of the evidence. People v. Sylvester.

For the foregoing reasons, we reverse the order of the circuit court of Jefferson County which suppressed the recorded conversations and remand this cause for further proceedings.

Reversed and remanded.

HARRISON, P.J., and EARNS, J., concur.


text:
      In re CUSTODY OF WALTER MITCHELL a/k/a David Draper, a Minor.—(The People of the State of Illinois, Petitioner-Appellee, v. Larry Mitchell, Respondent-Appellant.)
    Fifth District
    No. 82—288
    Opinion filed April 29, 1983.

      Curtis G. Quindry, of Newton, for appellant.
    Robin Todd, State’s Attorney, of Louisville (Stephen E. Norris and Karen L. Stallman, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The respondent, Larry Mitchell, appeals from a final order of the circuit court of Clay County which terminated his parental rights concerning his natural son, Walter Mitchell. He contends that the circuit court erred in finding that he had executed a final and irrevocable consent to adoption that would justify termination of his parental rights in that the document which he executed did not comply with the appropriate statutory provision for surrender of a child to an agency, and that therefore the document could not effect such a surrender. For the reasons which follow we reverse the judgment of the circuit court and remand.

The record established that on May 13, 1979, Walter Mitchell’s parents placed him in the custody of the Department of Children and Family Services (hereinafter referred to as the Department). On May 25,1979, the respondent executed the following document:

“FINAL AND IRREVOCABLE CONSENT TO ADOPTION
I, LARRY MITCHELL, father of WALTER LEE MITCHELL, a male child, state:
1. That the child was born on January 9, 1979 at Flora, Clay County, Illinois.
2. That I reside at Rt. 1., Lewisville, Clay County, Illinois.
3. That I am 25 years of age.
4. That I hereby enter my appearance in this proceeding, waive service of summons on me, and waive notice of hearings.
5. That I do hereby consent and agree to the adoption of WALTER LEE MITCHELL.
6. That I wish to and understand that by signing this consent I do irrevocably and permanently give up custody and other parental rights I have to such child.
7. That I understand such child will be placed for adoption and that I cannot under any circumstances, after signing this document, change my mind and revoke or cancel this consent and obtain or recover custody or any other rights over such child. That I have read and understood the above and I am signing it as my free and voluntary act.
DATED this 25 day of May, 1979.
Is/ Larry Dean Mitchell
LARRY MITCHELL.”

At the time of execution, Robert and Nijel Draper, relatives of respondent, planned to adopt Walter and the caption on the document named them as petitioners. This adoption never took place, however, and after Walter had spent three months with the Drapers, the Department again took custody of Walter. A petition seeking to have Walter adjudged a ward of the court was subsequently filed in the circuit court of Clay County. On June 1, 1981, Walter was found to be a neglected child and was made a ward of the court. The circuit court made no determination of Larry Mitchell’s parental rights at this time, but did grant him visitation rights to Walter who was to remain in the Department’s custody.

A second amended petition was filed seeking to terminate respondent’s parental rights. The May 25, 1979, document set out above was also filed in the circuit court. Respondent moved to strike the document and a hearing was held on the motion. On April 29, 1982, the court denied the motion, found that the consent was valid, and terminated the respondent’s parental rights to Walter. The respondent appeals from this order.

In Illinois, adoption is governed by “An Act in relation to the adoption of persons ***” (Ill. Rev. Stat. 1981, ch. 40, par. 1501 et seq. (hereinafter referred to as the Act)). Two considerations bear on our review of this cause and deserve prefatory attention. Adoption statutes formerly were strictly construed in this State as being in derogation of the commonlaw. (Keal v. Rhydderck (1925), 317 Ill. 231, 235, 148 N.E. 53.) This rule of construction, however, is now inapplicable as the statute itself provides that it “shall be liberally construed.” (Ill. Rev. Stat. 1981, ch. 40, par. 1524.) Additionally, we are cognizant of this State’s strong public policy favoring the finality and stability of adoptions (In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 578, 338 N.E.2d 862) and the welfare of adopted children (see Kathy O. v. Counseling & Family Services (1982), 107 Ill. App. 3d 920, 925, 438 N.E.2d 695). We will analyze respondent’s contentions with these principles in mind.

Section 10 of the Act provides for four different forms of consent and surrender. (Ill. Rev. Stat. 1981, ch. 40, pars. 1512(A) through (D).) Only substantial compliance with these suggested forms is required. (Ill. Rev. Stat. 1981, ch. 40, pars. 1512(A) through (D).) The document which the respondent executed conforms closely to the form prescribed by section 10(A) for consent to the adoption of a born child. (See Ill. Rev. Stat. 1981, ch. 40, par. 1512(A).) This form differs, however, from the form prescribed by section 10(C) for a surrender to an agency by a parent of a born child who is to be subsequently placed for adoption. (Compare Ill. Rev. Stat. 1981, ch. 40, par. 1512(C), with par. 1512(A).) The question before us is whether, by executing the May 25, 1979, document in compliance with the statutory provisions for adoption of a born child, the respondent also consented to the placement of Walter with the Department for subsequent adoption. The test for making this determination is whether the document executed by the respondent substantially complies with the form prescribed by section 10(C). Section 10(A) contemplates existence of a petition presently seeking the adoption of the child. (In re Kerwood (1976), 44 Ill. App. 3d 1040, 1044, 359 N.E.2d 183.) As is indicated by the caption on the May 25, 1979, document, this is the type of proceeding which the instant instrument was intended to facilitate. However, where “a child is to be placed for adoption with a licensed agency with the right to consent to a future adoption, parental consent is expressed in writing in the form of a surrender. [Citation.] These statutory forms are almost identical except that the consent form waives appearance in an actual ongoing adoption proceeding while the surrender form details the transfer of all parental rights from the natural parent(s) to the agency, so that it may consent to an adoption occurring sometime in the future.” (Emphasis added.) (In re Kerwood (1976), 44 Ill. App. 3d 1040, 1044.) In the instant case, we note that entirely missing from the document signed by respondent is the language in section 10(C) providing for surrender to an agency “for the purpose of enabling it to care for and supervise the care of such child, to place such child for adoption and to consent to the legal adoption of such child.” (Ill. Rev. Stat. 1981, ch. 40, par.. 1512(C).) We do not consider this difference to be insubstantial. In the instant case, respondent consented to the adoption of his son by specified known parties, the Drapers, to whom he was related. This is considerably different from consenting to placement by an agency with persons unknown. We do not think that the legislature, by providing different forms for different routes to adoption intended that no distinction be drawn between the different forms and that a consent to adoption be interchangeable with a surrender to an agency. We conclude that the May 25, 1979, document did not surrender Walter to the agency for subsequent placement for adoption.

We note that this result does not do violence to the public policy favoring finality and stability of adoptions as the record does not indicate that Walter has ever been adopted. Additionally, the language of the form which “give[s] up custody and other parental rights” was necessary to effect an adoption by the Drapers. We do not read this so broadly that it becomes an unconditional relinquishment of parental rights. The judgment of the circuit court of Clay County is therefore reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JONES and EARNS, JJ., concur.


text:
      In re MARRIAGE OF BRADLEY WOGMON DANIELS, Plaintiff-Appellee, and TAMI LYNN DANIELS, Defendant-Appellant.
    Fifth District
    No. 82—546
    Opinion filed April 27, 1983.

      Burger, Fombell, Dvorak, Baxter & Zachry, P.C., of Decatur, for appellant.
    Meyer & Meyer, of Greenville, for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Tami Lynn Daniels appeals from the judgment of the circuit court of Fayette County denying her petition to increase the $100 per month child-support allowance made pursuant to the December 1981 judgment of dissolution of her marriage to Bradley Wogmon Daniels. Tami claims that the trial court did not apply the proper law in determining whether modification was warranted.

Tami and the parties’ only child live with Tami’s parents. Tami does not pay rent or utilities but has estimated her expenses for food, clothing, and gas of $325 a month. She has diaper expense of $25 per month. Other than this expenditure it is apparent her estimate of expenses include her expenses as well as the child’s. Tami secured temporary employment at $750 per month, replacing an employee on maternity leave at the county courthouse for three months, shortly after the dissolution but is now unemployed. There was no evidence of the child’s expenses at the time the original support order was made.

Bradley earns $300 a month on a farm owned by his father and grandfather which he supplements with part-time work when available. At the time the original decree was entered he earned $700 a month. Bradley is furnished a home and is not required to pay rent or utilities. He expends $50 a month for food and has additional expenses for clothing and two horses which he owns as a hobby. He spent approximately $800 to attend a horse breeding school in Texas. He purchased a Honda motorcycle in May 1981, prior to the entry of the dissolution decree.

Under section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)), child support may be modified only upon a showing of a substantial change in circumstances. The burden of proof is on the party seeking modification. (Gaines v. Gaines (1969), 106 Ill. App. 2d 9, 245 N.E.2d 574.) The trial court’s order stated that no showing of a substantial change in circumstances had been made as to Bradley Daniels’ financial situation to warrant the requested increase in support. Tami argues the order makes it clear that the trial court’s decision was based on the reasoning of Kelleher v. Kelleher (1966), 67 Ill. App. 2d 410, 214 N.E.2d 139, which she argues is no longer good law.

In Kelleher the court held that an increase in monthly support payments is warranted when the evidence establishes an increased need by the children and a corresponding ability of the noncustodial parent to pay. (67 Ill. App. 2d 410, 414, 214 N.E.2d 139, 141.) The court reversed the lower court’s decision to deny modification, citing evidence of special educational needs for one child and a substantial increase in the father’s income. In Swanson v. Swanson (1977), 51 Ill. App. 3d 999, 367 N.E.2d 512, the same court stated that child support should be determined by “ ‘accommodating the needs of the children with the available means of the parties.’ ” (51 Ill. App. 3d 999, 1000, 367 N.E.2d 512, 513.) Both decisions were reviewed in In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279. There the court stated:

“It is still incumbent upon the court to consider both the needs of the children and the ability of the former spouses to pay when considering a petition to increase child support. But, instead of marching in step to some precise equation of percentage change, the court considers the children’s needs as ranging from the bare necessities to the practical, to the useful, to the luxurious. Similarly, the court considers whether the means of each spouse has changed absolutely, has changed relative to the other, and has changed relative to the children’s needs. The court must then accommodate, or adapt, or harmonize all these considerations to determine whether an increase in support is justified. Child support payments must necessarily reflect a balance of the intensity of the child’s need with the ability of the parents to provide for that need. When a material change has occurred creating a substantial imbalance between the child’s needs and the parent’s support capabilities, then the Marriage and Dissolution of Marriage Act as well as the Swanson decision requires modification.” 65 Ill. App. 3d 945, 949, 382 N.E.2d 1279, 1282-83.

It was noted that Swanson was a more flexible standard. The court’s discontent with Kelleher, requiring both increased need and increased ability to pay, was reiterated in In re Support of Luthy (1981), 95 Ill. App. 3d 987, 420 N.E.2d 764.

We believe that section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)) and the case law make clear that the paramount consideration of the court is to determine whether a substantial and material change has intervened since the original support allowance was made. While the needs of the child and the financial status of the noncustodial parent are important factors in making the decision, the court must also consider the financial resources of the child, the financial status and needs of the custodial parent, the standard of living the child was accustomed to prior to dissolution, and the physical and emotional needs and educational needs of the child. (Ill. Rev. Stat. 1981, ch. 40, par. 505; In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 160, 408 N.E.2d 1021, 1023.) Finally, a trial court’s decision to deny modification of child-support payments will not be disturbed on review unless it involves a clear abuse of discretion. Winter v. Winter (1978), 69 Ill. App. 3d 359, 364, 387 N.E.2d 695, 699.

Here, the trial court’s order stated that section 510 of the Act permits modification only when there is a showing of substantial change in circumstances. The court then stated that respondent’s financial circumstances had not changed to warrant an increase in support.

We believe that the court may have erred in applying the incorrect standard. Admittedly, there was no evidence that the financial status of either party has changed significantly. Bradley’s income is apparently lower than at the time of dissolution, or at least has become unpredictable due to his reliance on part-time work for income. It is immaterial that Tami lost her temporary job since she was unemployed when the original support allowance was made. There was no showing of educational needs or a concern for the child’s health. In fact, the record is devoid of evidence of the child’s expenses at the time the support allowance was determined. The current expenses Tami testified to were, by her own admission, merely estimates.

Without expressing an opinion on an amount we would consider proper, we reverse and remand for a reconsideration of child support applying the proper standard herein stated.

Reversed and remanded.

HARRISON, P.J., and JONES, J., concur.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE CITY OF PEORIA, Petitioner-Appellant and Cross-Appellee, v. HARRIETT L. FEUCHTER et al., Defendant-Appellee and Cross-Appellant—(Township of Medina, Intervening Appellee and Cross-Appellant; Chillicothe Township Park District, Intervening Appellee).
    Third District
    Nos. 82—521 through 82—524 cons.
    Opinion filed June 3, 1983.
    HEIPLE, J., specially concurring.
    Tim Swain, Beth Johnson, David L. Thomas, and Eric Margolis, all of Peoria, for appellant.
    Michael T. Mahoney, John P. Edmonds, and Richard V. Laukitis, all of Edmonds, Laukitis & Mahoney, Ltd., of Chilicothe, for appellees Harriett L. Feuchter et al.

    Kehr Law Offices, of Chillicothe, and Cassidy & Mueller, of Peoria, for appellee Chillicothe Township Park District.
    Timothy L. Bertschy, of Heyl, Royster, Voelker & Allen, of Peoria, for appellee Township of Medina.
   JUSTICE BARRY

delivered the opinion of the court:

This consolidated appeal arises from a condemnation proceeding filed by the city of Peoria to condemn for park purposes certain land located beyond the city boundaries. The city planned to transfer title of the land to the Pleasure Driveway and park district of Peoria for development as a park and natural conservation area. In the four condemnation actions involved in this appeal the circuit court of Peoria County ruled that the city had no authority to condemn the land in question in the absence of referendum approval as required by section 11 — 95—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 11 — 95—1). Summary judgment was entered in favor of defendant land owners and the intervenors (Chillicothe Township Park District and Medina Township). The city of Peoria has appealed.

In a companion case decided today, City of Peoria v. Keehner (1983), 115 Ill. App. 3d 130, we ruled that the city of Peoria may not acquire land beyond its borders by eminent domain without referendum approval as required by statute. That case arose out of separate condemnation actions which were a part of the same park development plan as this case. The facts and issues here are identical to the facts and issues in that case. Our ruling in that case controls here, and we, therefore, affirm the result arrived at by the trial court.

In its judgment order, the trial court stated that the only ground for entering judgment in favor of the landowners was that the city failed to obtain referendum approval as required by the statute authorizing extraterritorial condemnation. The trial court further held however that a city may condemn land which is not contiguous and adjacent to its borders, and that the agreement between the city and the park district was lawful. Both rulings were the basis for a cross-appeal by the landowners and by intervenor Medina Township. Since we have affirmed the judgment entered by the trial court, the issues raised by the cross-appeal are moot and need not be considered by us.

For the reasons stated, we affirm the judgment of the trial court in favor of the landowners.

Affirmed.

SCOTT, J., concurs.

JUSTICE HEIPLE,

specially concurring:

While I concur with the bottom line of the majority opinion in favor of the landowners, I would add that the majority opinion fails to deal with the core issue of the right of the city to condemn property extraterritorially. The city does not have the power it seeks to exercise in this case. The rationale for this special concurring opinion is fully delineated in the companion case of City of Peoria v. Keehner (1983), 115 Ill. App. 3d 130, wherein I also specially concurred.


author: PRESIDING JUSTICE STOUDER

text:
    FRANCIS J. HERMAN, Plaintiff-Appellant, v. MICHAEL R. SWISHER et al., Defendants-Appellees.
    Third District
    No. 82—590
    Opinion filed June 7, 1983.
    William J. Harte, of William J. Harte, Ltd., and Herbert F. Stride, of Herbert F. Stride, Ltd., both of Chicago, for appellant.

      Raymond E. Header and George F. Mahoney III, both of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, for appellee Jerry Hilgendorf.
    John F. Wols, of Stefanich, McGarry & Wols, Ltd., of Joliet, for appellees Michael R. Swisher and Doris J. Swisher.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff, Francis Herman, brought this action against defendants, Michael Swisher, Doris Swisher and Jerry Hilgendorf, seeking damages for injuries allegedly caused by the defendants’ violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) and by their negligent conduct.

On June 16, 1978, Michael and Doris Swisher were in the process of adding a room to their house. In connection with this project, the Swishers’ had excavated and poured four cement walls and the cement floor of the proposed basement leaving a large opening in the ground unbarricaded. The Swishers were being assisted in the construction work by defendant, Jerry Hilgendorf, Mr. Swisher’s brother-in-law.

The plaintiff resided next door to the Swishers. As he had done on several previous occasions, he walked over to the Swishers’ house on the afternoon of June 16, 1978, in order to observe the progress of his neighbor’s construction project.

At the time the plaintiff entered the Swishers’ property, Mr. Swisher and Mr. Hilgendorf were engaged in the task of installing a wooden joist or beam in the floor area of the addition which was being erected adjacent to the main building on the premises. Immediately prior to the accident, the plaintiff was standing on the ground near the basement opening. In an attempt to aid Hilgendorf in maneuvering the joist into place, the plaintiff was bumped by Hilgendorf and fell into the basement opening. As a result of the fall, the plaintiff suffered external and internal injuries.

On June 9, 1980, the plaintiff brought an action against the Swishers and Hilgendorf alleging negligent conduct and in count II of the complaint wilful violation of the Structural Work Act by reason of the defendants’ failure to provide planks, boards, guard rails or other barricades around the basement opening. On June 11, 1982, the Swishers filed a motion for summary judgment and dismissal of count II of the second amended complaint, stating that because the plaintiff was standing on the ground, the Structural Work Act had no application to this case. On June 14, 1982, the trial court held a hearing on the motion for summary judgment and subsequently granted the motion. In addition, the plaintiff was granted a voluntary nonsuit for the remainder of the complaint.

On July 13, 1982, the plaintiff moved to reinstate the case and to vacate the order granting the summary judgment as to count II on the grounds that the court had left the plaintiff no choice at the time but to take a voluntary dismissal since he was not prepared to proceed and that by setting the hearing date three days after service of notice of motion for summary judgment, the plaintiff had not been given an opportunity to file a response to the motion pursuant to local rule. On July 22, 1982, the trial court held a hearing on the motion to reinstate and subsequently denied it.

The following issues have been presented to this court for review: (1) whether the trial court erred in granting the defendants’ motion for summary judgment as to count II in that there was a genuine issue of material fact as to the application of the Structural Work Act to this case, and (2) whether the trial court erred in denying the plaintiff’s motions for a continuance, to reinstate the case and to vacate the order granting the defendants’ summary judgment in that it arbitrarily and unjustly deprived the plaintiff of his right to a hearing on the merits.

In order to maintain a cause of action under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69), the plaintiff must establish that his injury has some connection with the hazardous nature of one of the devices named in the Act. Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.

In section 1 of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 60) the following devices are listed: “scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed.” The courts have held that even though the Act is to be liberally construed, certain structures such as a cement form on a garage floor and the ground floor of a building are not “scaffolds” within the contemplation of the Act. Thon v. Johnson (1961), 30 Ill. App. 2d 317, 174 N.E.2d 400; Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011.

The court in Thon stated that the inclusion of cement forms within the coverage of the Act would be tantamount to holding that everywhere a worker stands is a “scaffold” within the meaning of the statute. We believe the same reasoning applies to the case at hand. The plaintiff was standing on the ground near the basement opening at the time the accident occurred. To so freely construe the Act as to include the ground within the definition of any of the devices named therein, would defeat the legislative intent inherent in the provision of a statutory remedy for injuries occurring on a construction site in connection with scaffolds or other supportive devices. Thus, no genuine issue of material fact existed to prevent the trial court from granting the defendants’ motion for summary judgment. As a matter of law, the ground in this situation was not a “scaffold” within the meaning of the Act.

The plaintiff next contends that he should have been granted a continuance to argue the defendants’ motion for summary judgment and to try the remainder of the case instead of being forced to take a voluntary nonsuit. The plaintiff contends the trial court erred in not reinstating the negligence cause of action and in not vacating the order granting the summary judgment as to count II of the complaint.

Where the plaintiff has been granted a voluntary nonsuit, the court has no power to vacate an order of dismissal and reinstate the cause of action, unless, at the time the nonsuit was taken, leave was given the plaintiff to move to set the dismissal aside. Absent this, the plaintiff’s only recourse is to begin the action anew. Bettenhausen v. Guenther (1944), 388 Ill. 487, 58 N.E.2d 550.

The plaintiff in this case did not request leave, nor was leave granted by the trial court to later move to set the dismissal aside. Thus, the trial court did not have the power to vacate its order of dismissal and to reinstate the negligence cause of action.

As for the trial court’s denial of the continuance to argue the merits of the defendants’ motion for summary judgment, we believe the court did not err in this respect. According to local rule, the defendants’ motion for summary judgment should have been heard at least 10 days after service of the notice of the motion. The motion was actually heard only three days after receipt by the plaintiff of the notice.

It is within the sound discretion of the trial court to allow the filing of motions to dismiss after the time for filing has passed. (Uretsky v. Baschen (1977), 47 Ill. App. 3d 169, 361 N.E.2d 875; 87 Ill. 2d R. 183.) The motion for summary judgment was set to be heard on the date the trial was to begin. The practice of filing motions for summary judgment a short time before a case is set for trial should not generally be approved. However, because we do not see any clear abuse of discretion in the case at hand, we hold that the trial court did not err in failing to grant the plaintiff’s motion for a continuance.

Accordingly, for the reasons set forth above, the judgment of the circuit court of Will County granting the defendants’ motion for summary judgment as to count II of the complaint and denying the plaintiff’s motion to vacate its order of dismissal and to reinstate the cause of action is affirmed.

Affirmed.

ALLOY and SCOTT, JJ., concur.


text:
    DU QUOIN STATE BANK, Plaintiff-Appellee, v. WILLIAM R. DAULBY et al., Defendants-Appellants.
    Fifth District
    No. 82—138
    Opinion filed April 26, 1983.
    Darrell Dunham and John Womick, both of Carbondale, for appellants.

      Jerry B. Smith, of Hohlt, House, DeMoss & Johnson, of Du Quoin, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

On April 14, 1979, appellants William and Catherine Daulby entered into a contract of guaranty with appellee Du Quoin State Bank. This instrument, denominated as a “continuing, absolute and unconditional guaranty,” was given in consideration of any credits or advances made or to be made to Alfred and Wanda Atwood and the Egyptian Music Company, and was limited to $17,463.45. The contract provided that “liability hereunder shall in no wise be affected or impaired by *** any sale *** or other disposition of any of said indebtedness.”

The bank eventually loaned a total of $97,740.68 to the Atwoods, which loans were secured by mortgages on the Atwoods’ home and place of business in Du Quoin. The Atwoods defaulted on their loans, and on November 6, 1979, the bank filed a complaint in the circuit court of Perry County to foreclose the mortgages. Although these proceedings were stayed by the Atwoods’ filing of a bankruptcy petition, that stay was modified in 1980, allowing further prosecution of that action.

In April 1980, the real estate belonging to the Atwoods was appraised at $90,000 by an appraiser hired by the bank. The bank wrote the Daulbys on April 28, notifying them of the pending sheriff’s sale and informing them that the bank intended to bid $108,438.18 on the properties, which amount constituted the principal, interest and costs on the Atwoods’ indebtedness through the date of the sale. The bank further stated that if its bid were accepted, it would resell the real estate and look to the Daulbys for any deficiency realized upon that sale, up to the amount of the guaranty. At the sheriff’s sale, the bank, as the sole bidder, purchased the properties for $108,438.18.

On November 5, 1980, the bank informed the Daulbys that it intended to attempt to sell the properties at a public sale. No bids were received, and the bank then offered both parcels for private sale. The Atwoods’ former residence sold in February 1981 for $50,000, and their place of business sold the following month for $38,000. These sales left the bank with a deficiency of $24,087.82 on the loans made to the Atwoods, and, on March 12, 1981, the bank demanded that the Daulbys pay the amount of their guaranty. They refused, and the present action, on that guaranty, was instituted in the circuit court of Perry County. It was agreed by the parties that the pleadings, which set forth the chronology presented above, posed no disputed issues of material fact, and both sides moved for summary judgment. The court granted the bank’s motion, entering judgment for the full amount of the guaranty, and the Daulbys have appealed.

It is a basic principle of guaranty law that payment or satisfaction of the principal obligation will operate to discharge the liability of a guarantor of that obligation. (Baxter v. Continental Illinois National Bank & Trust Co. (1940), 304 Ill. App. 117, 26 N.E.2d 179; Mazur v. Stein (1942), 314 Ill. App. 529, 41 N.E .2d 979; Holm v. Jamieson (1898), 173 Ill. 295, 50 N.E. 702.) The Daulbys contend, and the bank agrees, that the purchase of mortgaged property by the mortgagee, following foreclosure, for the total amount of the indebtedness secured by that property is considered to be full payment of that debt. (Liberty Loan Association v. Bosen (1927), 246 Ill. App. 362.) This result is merely a specific application of the rule that the amount received for property at a foreclosure sale is a conclusive measure of its value. (First Granite City National Bank v. Champion (1970), 130 Ill. App. 2d 970, 268 N.E.2d 35; Chicago Joint Stock Land Bank v. McCambridge (1931), 343 Ill. 456, 175 N.E. 834; Loeb v. Stern (1902), 198 Ill. 371, 64 N.E. 1043.) It is argued by the Daulbys that, because the bank’s purchase of the Atwoods’ properties for the full amount of the indebtedness satisfied the Atwoods’ liability to the bank, their obligation on the guaranty should likewise be discharged.

The bank does not dispute these principles, but maintains that the satisfaction of the principal obligation does not extend to the guarantors in this case. It points out that the guaranty signed by the Daulbys specifically provided that it would not be affected or impaired by “any sale *** or other disposition of any of said indebtedness *** or of any security or collateral therefor.” The language of this provision, it is stated, means that the result of the foreclosure sale should not prohibit the bank from recovering from the Daulbys its ultimate loss upon prompt resale.

An action to recover from the guarantors of a note is separate from the remedy of foreclosure and sale. (Emerson v. LaSalle National Bank (1976), 40 Ill. App. 3d 794, 352 N.E.2d 45; Berea College v. Killian (1940), 304 Ill. App. 296, 26 N.E.2d 650.) Since those actions are separate, the liability of the guarantors must be determined from the instrument of guaranty (Mazur v. Stein (1942), 314 Ill. App. 529, 41 N.E.2d 979). The rules of construction applicable to contracts generally also apply to contracts of guaranty (State Bank v. Cirivello (1978), 74 Ill. 2d 426, 386 N.E.2d 43), and if such a contract is unambiguous, it must be enforced as written. (Barrett v. Shanks (1943), 382 Ill. 434, 47 N.E.2d 481; Bank of Naperville v. Holz (1980), 86 Ill. App. 3d 533, 407 N.E.2d 1102.) These principles apply even in cases such as this where the guaranty agreement contains broad statements of guarantor liability. Bank of Naperville v. Holz.

We believe that the clause relied upon by the trial court to establish the liability of the Daulbys is not ambiguous. There can be no doubt that the reference to “any sale” includes a foreclosure sale (Blackhawk Hotel Associates v. Kaufman (1979), 80 Ill. App. 3d 462, 400 N.E.2d 12, rev’d, on other grounds (1981), 85 Ill. 2d 59, 421 N.E.2d 166), and the terms “affected” and “impaired” should be given their normal meanings as reducing, altering or eliminating that liability. This broad language indicates that the parties intended the guaranty to prevent the bank from suffering any actual loss in connection with its loans to the Atwoods, and did not mean that the Daulbys’ obligations would be discharged through any presumed, but merely technical, satisfaction of the indebtedness, as occurred at the foreclosure sale.

Furthermore, even if we would consider the provision in question to be ambiguous, the conduct of the parties to this dispute shows our interpretations of the contract to be correct. (Telegraph Savings & Loan Association v. Guaranty Bank & Trust Co. (1978), 67 Ill. App. 3d 790, 385 N.E.2d 97.) Following the default of the Atwoods, the bank, in its dealings with the Daulbys, consistently informed them, even prior to the foreclosure sale, that it intended to look to the guaranty for recovery of any actual losses after that sale. To hold that the Daulbys’ liability was discharged by the amount paid by the bank at the foreclosure sale would not effectuate the intent of the parties, as expressed through these transactions. It would also allow the Daulbys, who had notice of the bank’s interpretation of the guaranty and remained silent until the present action was instituted, to benefit from their own inaction. We do not believe that such a result was contemplated by the parties.

Consequently, the trial court correctly granted the bank’s motion for summary judgment for the full amount of the guaranty. The judgment of the circuit court of Perry County is hereby affirmed.

Affirmed.

JONES and KARNS, JJ., concur.