author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Pennington, Defendant-Appellant.
    Gen. No. 50,173.
    First District, First Division.
    September 19, 1966.
    Rehearing denied October 11, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Steven L. Larson, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert J. Beranek, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Defendant Charles Pennington was indicted in three counts and charged with burglary with intent to commit theft, burglary with intent to commit rape, and rape. After he had pleaded not guilty and waived a jury trial, the defendant was tried and acquitted of the charge of burglary with intent to commit theft, but was convicted of burglary with intent to commit rape and of rape. He was sentenced to terms of eight to fifteen years in the penitentiary on each of the two convictions, the sentences to run concurrently.

On appeal, the defendant contends that, (1) the State failed to prove that the act of sexual intercourse was committed by force and against the will of the prosecutrix; (2) the identification of the defendant as the attacker was not established beyond a reasonable doubt; and (3) he was denied a fair trial because before the trial the judge was informed by the State as to the existence and result of certain medical tests made upon the prosecutrix on the morning in question.

The prosecutrix testified that on May 20, 1964, she resided with her husband in a four-room basement apartment in Chicago. After her husband had left for work about 3:30 a. m. that morning, the prosecutrix returned to bed. She was awakened about 4:45 a. m. by a man who was attempting to remove her pajama bottoms. She testified that it was then daylight in the room, and that she recognized the attacker as the defendant, who was caretaker of the building, lived in the room adjoining her apartment, and had visited the prosecutrix and her husband many times. She further testified: “When I woke up I screamed and he had something shiny in his hand. He put it around my neck, and told me don’t holler, he didn’t want to hurt me. Then we struggled. He finished taking off the bottom of my pajamas.” The attacker then had sexual intercourse with the prosecutrix. She testified that immediately thereafter she put on her coat and ran to her sister’s home a few doors away. The police were summoned, and the prosecutrix told them that her attacker was the defendant, giving his name, his description, and a description of what he was wearing. The police found the defendant sleeping fully clothed in his room. He was dressed as the prosecutrix had described. The prosecutrix was taken to Mount Sinai Hospital, where a vaginal smear examination was performed with a positive result. The parties stipulated that the doctor who performed the examination would have so testified. The prosecutrix testified that on the day and in the evening which preceded this examination she had not had sexual intercourse with her husband.

The prosecutrix also related that the door between her apartment and the defendant’s room was locked on the morning of the incident, but that one of her living room windows was not locked because the defendant, as caretaker, had not yet installed the lock.

The defendant testified in his own behalf that on the morning of May 20, 1964, he left his place of employment at about 1:45 a. m., receiving a ride part of the distance to his home, and then waited for a bus. He said he arrived home about 4:15 or 4:30 a. m., whereupon he went to sleep fully dressed, and remained asleep until awakened by the police. He testified that the clothes which the prosecutrix had described and which he was wearing when arrested were the only ones he owned at that time. He denied having sexual intercourse with the prosecutrix on that morning or any other time, but charged that she previously had made sexual advances toward him.

Defendant’s primary contention is that the State failed to prove beyond a reasonable doubt that the attacker used a degree of force sufficient to sustain a conviction for rape. The statute requires the State to show that the defendant had, “. . . sexual intercourse with a female, not his wife, by force and against her will. ...» (Ill Rev Stats, c 38, § 11-1 (a) (1963)). The testimony of the prosecutrix, if believed, provides ample proof of the use of force by her attacker and of the fact that the intercourse was against her will. She stated that the attacker held something shiny in his hand, which he held behind her neck during the act; that she screamed once; that the attacker warned her not to “holler” because he did not want to hurt her; that she struggled with the man; and that after the act she immediately sought help.

Defendant contends, however, that the prosecutrix’s testimony is improbable and unconvincing, and without corroboration is not sufficient to sustain his conviction. He draws to our attention the fact that while the prosecutrix described to the police in detail the clothing worn by her assailant, she was unable to identify the shiny object which he held; and that no weapon was ever found. In view of her testimony that the shiny object was placed behind her neck, and considering her probable state of extreme fear at the time of the act, we think it understandable that she was unable to identify the object. Defendant also points out that there was no evidence of bruises or other injuries to the prosecutrix; that the State did not introduce any torn clothing into evidence; and that according to the prosecutrix’s own testimony the defendant was able to subdue her with just one hand. All these arguments are directed to the credibility of the prosecutrix and of the defendant, and therefore we will not disturb the findings of the trial judge unless it is plainly apparent that an injustice has been done or that a reasonable doubt of guilt exists. People v. Hyman, 24 Ill2d 205, 208, 181 NE2d 65. Such is not the case here.

Defendant’s contention that the prosecutrix’s uncorroborated testimony cannot sustain his conviction is also without merit. First of all, our Supreme Court held in People v. Jenkins, 24 Ill2d 208, 181 NE2d 79, that immediate complaint by the prosecuting witness to the police constituted corroboration of the prosecutrix’s testimony of forcible rape. Secondly, the positive report of the doctor performing the vaginal smear examination also corroborates her testimony. Finally, our Supreme Court has held that where the testimony of the prosecuting witness is clear and convincing, there is no need for corroboration of that testimony. People v. Mack, 25 Ill2d 416, 420, 185 NE2d 154.

In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, cited by defendant, the court reversed a conviction for rape, holding that the testimony of the complaining witness as to her attacker’s use of force and her resistance was not sufficiently convincing to lead to an abiding conviction of the defendant’s guilt; and that the record did not contain the corroborating evidence required under such circumstances. That case is clearly distinguishable on the facts from the case at bar. In Faulisi, the court pointed out that there was no evidence of the use of any weapon by the attacker, and emphasized the prosecutrix’s failure to cry for help and the fact that neither the prosecutrix nor her husband saw fit to call the police.

In People v. Qualls, 21 Ill2d 252, 171 NE2d 612, cited by defendant, our Supreme Court reversed a conviction for rape, holding: “We are constrained to say, after a careful reading of the entire record, that the testimony of the prosecuting witness lacks verisimilitude. In such instance the evidence of a prosecutrix should be corroborated by some other testimony, fact or circumstance. (People v. Hiller, 7 Ill2d 465, 131 NE2d 25.) There is no corroboration of the material elements of force, and lack of consent. The prosecuting witness testified that she was afraid, but her actions belied her statements. At no time did she make any outcry.” (21 Ill2d at 257). The court went on to enumerate circumstances in that case which cast significant doubt upon the prosecutrix’s claim that she was afraid, including chances to call for help and to escape. No such opportunities were presented in the case at bar; and as pointed out above the prosecutrix’s testimony was corroborated by the fact that she immediately sought help, as well as by the doctor’s report.

Defendant’s next contention is that his identification as the attacker was not proved beyond a reasonable doubt. In view of the testimony that the prosecutrix knew the defendant and that the room was lighted by daylight, taken with the fact that the prosecutrix’s description to the police of her attacker’s clothing matched those worn by the defendant, we feel the trial judge was justified in finding that the identification of the defendant as the attacker was proved beyond a reasonable doubt.

The final contention made by the defendant is that he was denied a fair trial because the State informed the court, prior to the trial, of the existence and result of a physician’s report which was unfavorable to the defendant’s case. Certain remarks made by the trial judge at the commencement of the trial would suggest that he was aware that a vaginal smear examination was made upon the prosecutrix, and that the result was positive. Later in the trial, however, counsel for the defendant stipulated that if the doctor who performed the examination were produced, he would testify as to the examination and its positive result. He also agreed to the admission into evidence of the report of that examination. Under these circumstances, we fail to see how the defendant could have been prejudiced even if the trial judge did have prior knowledge of these facts. In the cases cited by the defendant in support of this contention, the decisions clearly rested at least in part upon matters within the knowledge of the trial judge, but not part of the record. Those cases are not applicable here, where the same information was introduced into evidence.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSE3, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE KLUCZYNSKI

license: Public Domain

text:
    People of the State of Illinois, on the Relation of Beverly Bank, Trustee Under Trust No. 8-0163 and 8-0046, Castle Rock Builders, Inc., an Illinois Corporation, and Major Development Corporation, a Delaware Corporation, Plaintiffs-Appellants, v. Raymond Hill, Jr., et al., and Village of Crestwood, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 50,540.
    First District, First Division.
    September 19, 1966.

      Joseph Ash and George J. Anos, of Chicago (Ben Goldwater, of counsel), for appellants.
    Patrick J. Kinnerk, Village Attorney, of Evergreen Park, for appellees.
   MR. PRESIDING JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Plaintiffs petitioned for a writ of mandamus to compel the Board of Trustees of the Village of Crestwood to adopt an ordinance rezoning certain Village property from single-family residential to multiple and commercial use, or in the alternative to apply the doctrine of estoppel and deny the Village the right to question the application of said property to multiple and commercial uses. Their petition was denied and, on appeal, they seek reversal of the ruling. The uncontroverted facts and circumstances in evidence are as follows:

In July 1961 plaintiff, Castle Rock Builders, Inc., contracted to purchase 37 acres consisting of four parcels of connecting farm land for the sum of $134,000. The purchase agreement provided that it was “conditioned upon the ability of the buyer to have the subject property annexed to the Village of Crestwood under proper multiple residential zoning.” Thereafter, the secretary of Castle Builders informed the president of Crestwood of the terms of the purchase agreement and discussed the contemplated annexation and zoning. An arrangement was made for an informal meeting to be attended by representatives of Castle Rock and a number of the Village trustees. The Village president testified that at this meeting he “expressed” what the secretary of Castle Rock “indicated” to him and that the trustees and he were in accord that “(T)here would be nothing detrimental to the Village in the annexation and rezoning of this property in the nature that they wanted it done.” He said their feelings were “that this was something the Village would need to progress and go forward.” The secretary of Castle Rock had also “expressed” to the group at that meeting that the property was being purchased subject to having it annexed to the Village. The Board members present were all in accord and each one answered in the “affirmative.” The Village president then informed Castle Rock, through its secretary, that he would submit the “plat” for zoning and annexation of the property. The subject property was formally annexed in November 1961, to an area of the Village classified as First Class Residential.

The Village president requested that Castle Rock deposit $200 to defray the costs of proceedings before the Plan Commission and to take up with it the matter of rezoning. The Plan Commission, after due notice and a public hearing, recommended to the Board of Trustees that the property be rezoned for commercial and multiple dwelling. The recommendation was taken up by the Board of Trustees and passed unanimously. The president testified that when the Board meeting was over, he told an officer of Castle Rock “Well Charlie, we have lived up to our agreement and what we had discussed and what we wanted and then I said, now I see no reason why you can’t go ahead and purchase the property and get the thing moving in the direction that you want it to go.” He further testified that to the best of his knowledge there was no ordinance drawn rezoning this property; that he was president of the Village for 18 to 20 years but had no professional knowledge as to the laws concerning zoning; that he was not aware of the fact that a formal zoning ordinance had to be adopted; that the Village Board had voted to rezone some six to eight other parcels without the formal passage of ordinances, and that some of those parcels have been put to the “rezoned” use.

The president advised Castle Rock to proceed with the purchase of the property in November 1961, and in reliance thereon it did so, paying the $134,000. However, later it encountered difficulty in obtaining the necessary financing for development of the property and placed in the early part of 1962 a “For Sale” sign on the premises indicating that the property was zoned for multiple housing and commercial structures. The sign remained on the premises until 1964 with no objection from the Village.

In fact, the Official Village Zoning District Map authorized by the Board and offered to the public indicated that it “exhibited the facts as they were” and showed the subject property to be zoned as “commercial and multiple dwelling.” It had been prepared by an engineer who used all the information that had been submitted by the Plan Commission and approved by the Board of Trustees. It carried the legend:

This map reflects the true and correct zoning of the Village of Crestwood as of April 1, 1962 and is hereby published in accordance with the Illinois State statute.

In April 1963, plaintiff, Major Development Corporation, having checked the above zoning map, entered into a contract to purchase the property in question for $288,-000. Major Development also, through its president, checked with the president of the Village and was informed that there were no changes. Cooper, of Major Development, then caused a tentative plat of subdivision to be submitted to the Village Plan Commission for approval. The Plan Commission accepted it with a few minor objections and transmitted its approval to the Village Board of Trustees in May 1963. About two weeks later, Cooper met with the Board of Trustees and was informed that a few more changes would be necessary in order to have the plan approved. At the next regular meeting of the Board of Trustees he submitted a plat of subdivision in conformance with the Board’s prior request and also included the tentative plat of subdivision. He was informed that the Board needed more time to study the plat and was requested to attend the next regular meeting. It was at this subsequent meeting that he was informed that the plat was officially disapproved; that the property was not rezoned.

Major Development had expended $4,000 in the preparation of the tentative plans but further attempts by it to cause a rezoning and acceptance of its plat were rejected by the Village Board.

Plaintiffs contend that the Village Board exercised all the necessary legislative discretion in that it held public hearings, received the recommendation of its Plan Commission and decided to approve the recommendation to rezone the property. There remained only the ministerial act of transcribing the decision of the Board into the ordinance sought.

Plaintiffs further rely on the theory of estoppel claiming that they relied on the conduct and representations made to them by the officers of the Village and thereby suffered substantial injury which would not have been incurred but for these acts and representations.

We consider first plaintiffs’ contention that the doctrine of estoppel in pais is applicable to the situation here. The doctrine is treated extensively in Cities Service Oil Co. v. City of Des Plaines, 21 Ill2d 157, 171 NE2d 605 (1961), where the court considered the propriety of an order enjoining a municipality from enforcing an ordinance prohibiting the location of a gasoline station within a specified distance of any school, etc. The court, on pp 160,161, said:

The general rule is that a city cannot be estopped by an act of an agent beyond the authority conferred upon him. (Citing authorities.) ... It has been stated that anyone dealing with a governmental body takes the risk of having accurately ascertained that he who purports to act for it stays within the bounds of his authority, and that this is so even though the agent himself may have been unaware of the limitations on his authority. (Citing cases.) In matters involving strictly public rights the courts do not interpose to hold the municipality estopped except under special circumstances which would make it highly inequitable or oppressive to enforce such public rights. (Citing authority.)
The general rule is qualified, however, to enable a party to invoke the doctrine where his action was induced by the conduct of municipal officers, and where in absence of such relief he would suffer a substantial loss and the municipality would be permitted to stultify itself by retracting what its agents had done.

The court, applying these principles to the special facts and circumstances before it, held that the city was properly estopped from enforcing an ordinance against property constructed in violation thereof.

People ex rel. Deddo v. Thompson, 209 Ill App 570 (1918), cited in Cities Service case, confirmed the issuance of a writ of mandamus directing a municipality to issue a license to keep, conduct and operate a public garage which was in violation of an ordinance. The court said (p 572) that it has been frequently held in this State that the doctrine of estoppel in pais is applicable to municipal corporations and that they will be estopped or not “as justice and right may require.” However, the court noted that it depends largely on the “special facts and circumstances in each case” whether the doctrine will be applied and further stated that:

The exposition of the doctrine is fully stated in People v. City of Rock Island, 215 Ill 488, and Dillon on Municipal Corporations (5th Ed), vol 3, sec 1191, and several Illinois cases are referred to where it was applied. In said case the court said what is particularly applicable to the facts here, that “where a party acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel will be applied.” The court also referred to two conditions of fact also present here, “affirmative action by the public authorities with the apparent approval of everyone interested” and a change of position and great expenditure which would not have been made but for the positive action of the city and its officers.

See also Wehrmeister v. Carlman, 17 Ill App2d 171, 149 NE2d 453 (1958) and Melin v. Community Consol. School Dist. No. 76, 312 Ill 376, 144 NE 13 (1924).

In the case at bar, there is no denial that the officers of the Village of Crestwood, knowing that plaintiffs would not enter into this substantial investment unless the tract was annexed and zoned for commercial and multiple residential uses, led them to believe that these conditions were effectively carried out. There were actions with the “apparent approval of everyone interested.” As the president testified “There would be nothing detrimental to the Village,” and “that this was something the Village would need to progress and go forward.” The Plan Commission, after a public hearing with no one objecting, recommended to the Board of Trustees the requested zoning after the effective annexation. The Board of Trustees passed upon the recommendation favorably and it was only after the Village president said that they have lived up to their agreement and that he saw no reason why Castle Rock couldn’t go ahead with their contract, that Castle Rock purchased the property for $134,000.

In light of these facts, we believe that the cause before us lends itself to an application of the doctrine of equitable estoppel. Clearly, it was the affirmative action by the public authorities with the apparent approval of everyone interested that caused plaintiff to change its position by making great expenditures which would not have been made but for the affirmative action of the Village and its officers. Plaintiffs’ actions were induced by the conduct and representations of the municipal officers, and justice and right require that plaintiffs be granted relief.

Having determined that plaintiffs are entitled to relief by way of equitable estoppel, we find it unnecessary to pass upon the contention that the Village be required to pass a formal ordinance granting plaintiffs relief.

The order of the trial court is, therefore, reversed and the cause remanded for the entry of an order or decree directing defendants be estopped from denying plaintiffs the right to apply the subject property to commercial and multiple residential use in accordance with the plans and specifications presented to the Plan Commission and approved by it and that the trial court retain jurisdiction of the cause for the purpose of seeing that the decree is accordingly complied with.

Reversed and remanded with directions.

MURPHY and BURMAN, JJ-, concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Dixon, Defendant-Appellant.
    Gen. No. 50,586.
    First District, First Division.
    September 19, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Carmen Speranza, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

¿delivered the opinion of the court.

The defendant was convicted by a jury of the charge of armed robbery, and sentenced to a term in the penitentiary of not less than five nor more than ten years. On appeal, he contends that he was deprived of a fair trial because the trial judge permitted the jury to take the defendant’s written and signed statement to the jury room with them when they retired to consider their verdict.

On December 20, 1963, a masked man armed with a rifle entered the second-floor office of the Sleepmakers, Inc. plant at 2434 South Western Avenue in Chicago. He first robbed the president of the company, Walter Kreider, and Mrs. Nancy Satek, the only other occupant of the office, of the contents of their wallets. Then, with his rifle at Kreider’s back, he said, “Go get the cashbox,” and nudged Kreider in the direction of the file cabinet in which the cashbox was kept. There was also a safe in the office; but the cashbox was kept in a file cabinet on the other side of the office. During the robbery, the man spoke repeatedly to Kreider and Mrs. Satek. After tying them up, he escaped with an estimated $336 and two checks from the cashbox, $20 from Kreider’s wallet, and $13 from that of Mrs. Satek. Kreider testified that when the police arrived he told them that he suspected the robber was defendant Charles Dixon, an employee of the firm. Kreider and Mrs. Satek both testified that they recognized the voice of the defendant as that of the robber and that the robber was of the same build as the defendant.

Defendant continued to work for Sleepmakers, Inc., and was first questioned about the robbery on August 12, 1964. He admitted to the police, in the presence of Kreider, that he had planned the robbery with a relative whom he knew only as “Eddy”; that he had waited in Eddy’s car while Eddy went into the office and committed the robbery, and that he had shared in the proceeds of the robbery. The police officers then reduced the defendant’s statement to writing, which the defendant voluntarily signed. Defendant’s relative, Eddy, was later located and arrested, but denied having taken any part in the robbery. Eddy was released after a hearing in Felony Court, at which Kreider testified.

Although defendant admitted that he voluntarily signed the written statement, he claimed that he had not been aware of all of its contents. He testified to a quite different version of the robbery, denying that he had participated in its planning or execution. His testimony was that as he left work on the day of the robbery he encountered Eddy outside the plant, and that Eddy told him that he was about to rob the office. The defendant testified he warned Eddy not to try it, and then when Eddy entered the building carrying a rifle the defendant caught a streetcar and went home. He said he didn’t inform his employer as to the identity of the robber because, “I didn’t think it was any of my business.”

The written statement, signed by the defendant, was introduced into evidence, read in its entirety to the jury, and taken to the jury room, all without objection by the court-appointed trial counsel for the defendant. Defendant now argues that our Supreme Court in People v. Spranger, 314 Ill 602, 145 NE 706, held it is error for the court to allow the jury to take with them to the jury room “confessions or other instruments of evidence depending for their value on the credibility of the maker.” 314 Ill at 612. He further argues that the failure of trial counsel to object does not preclude defendant from raising the point on appeal under the following provisions of Ill Rev Stats, ch 38, § 121-9 (1963) :

§ 121-9. The Cause on Appeal.
(a) Insubstantial and Substantial Errors on Appeal. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.

In People v. Allen, 17 Ill2d 55, 160 NE2d 818, the defendant argued on appeal that it was error for the trial court to allow the jury to take to the jury room several physical objects which had been admitted as exhibits into evidence. Trial counsel had objected only with respect to one of these items. Our Supreme Court held:

The alleged error in taking the other exhibits is therefore waived. It is well established that the matter of whether exhibits should be taken to the jury room is within the sound discretion of the trial judge and his ruling will not be disturbed unless there was an abuse of such discretion to the prejudice of defendant. (People v. Ciucci, 8 Ill2d 619.) We are of the opinion that no such abuse of discretion or prejudice is shown here. (17 Ill2d at 62, 63).

In the case at bar, Kreider and two police officers had all testified as to what defendant had admitted to the police. The statement embodying those admissions was admitted into evidence and was read in its entirety to the jury. While we feel that a trial judge should exercise great caution and consider the problem very carefully before permitting the jury to take a confession with them to the jury room, we hold that under the circumstances of this case the defendant could not have been prejudiced thereby. The contents of the statement had been thoroughly aired during the trial and there was persuasive independent evidence of the defendant’s guilt.

People v. Spranger, 314 Ill 602, 145 NE 706, relied on by defendant, differs from the case at bar in several relevant respects. First, there was a serious question in Spranger as to the voluntariness of the statement. Here, there is no indication whatever of any coercion; in fact, the testimony of the defendant himself indicates the opposite conclusion. He stated that while he was in police custody on August 12, 1964, the police were not guilty of any form of police brutality, and that he cooperated fully with them. A second distinction of Spranger is that the statement in that case was made by one of two co-defendants, and therefore was not even competent as against the other. There is no indication in the opinion that a limiting instruction was given. Finally, while in Spranger the statement was admitted into evidence, there is no indication that it had already been read to the jury or that witnesses had testified to its contents, as in the case at bar.

The judgment of the Criminal Division of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


text:
    Joseph Rotella, Plaintiff-Appellee, v. Civil Service Commission of the City of Chicago, and Milton Pikarsky, Commissioner of Public Works of the City of Chicago, Defendants-Appellants.
    Gen. No. 50,643.
    First District, First Division.
    September 19, 1966.
    Rehearing denied October 11, 1966.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Ronald S. Cope, Assistant Corporation Counsel, of counsel), for appellants.
    Michael F. Ryan and Richard F. McPartlin, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Joseph C. Rotella, a Supervising Timekeeper in the Department of Public Works of the City of Chicago, was charged in 1964 with “Conduct unbecoming an employee of the City of Chicago” and “Inefficiency in the Service.” After a hearing, the Civil Service Commission of the City of Chicago found him guilty and discharged him from his position. Plaintiff then filed this action under the Administrative Review Act (Ill Rev Stats, c 110, § 264 et seq., (1963)); and after a hearing the Circuit Court of Cook County held that the finding of the Commission was not supported by the evidence, was contrary to the manifest weight of the evidence, and reversed the Commission’s finding. The defendants appeal, contending that the Commission’s finding was amply supported by the evidence and that the plaintiff did not satisfy his burden of showing the Commission’s finding to be contrary to the manifest weight of the evidence.

The charge against the plaintiff, as amended, was based upon the following alleged conduct:

That the said Joseph Botella accepted the proceeds of City payroll checks covering the period of September 16, 1963, to September 30, 1963, and October 1, 1963 to October 15, 1963, which contained payments for overtime work which he had in fact not performed during the said periods.

Plaintiff was originally hired by the Department of Public Works in 1954, and held the position of Supervising Timekeeper from 1962 until he was suspended in 1964 pending disposition of these charges. The record reveals that while plaintiff did not work during the period of September 16-30, 1963, he was paid at regular rates for eleven seven-hour days of “compensatory overtime used,” and for 34 additional hours at overtime rates. During the period of October 1-15, 1963, plaintiff actually worked 49 hours at regular rates and 201/2 hours at overtime rates. He was paid not only for these hours, but also for 28 hours of “compensatory overtime used” at regular rates and for an additional 131/2 hours at overtime rates.

There is no dispute either as to the number of hours actually worked by the plaintiff during these periods, or as to the number of hours for which he received payment. Plaintiff contends that the difference represents compensation for overtime hours which he had accumulated more than four years earlier, and for which he had never been compensated; and that this method of compensation was proper under the circumstances of this case. The Commission concluded in part, however, that plaintiff was issued payroll checks in excess of the amount due him, and that he knew or should have known that he was not entitled to such overpayments. It is this finding which we must review.

The relevant rules governing payroll procedure, as read into the record from a document entitled, “Procedures and Forms for Standardized Time-keeping and Payroll Operations,” provided as follows:

CU — Compensatory time used — Use of compensatory time earned shall be so scheduled that it will not interfere with the operation of the department. Compensatory time may be used, either in part of in full, at the discretion of the department head concerned and reported through the Time-keeper, provided that compensatory time earned shall be used within three months after its accrual, unless extension of this period is specifically authorized in advance by the Comptroller.
Note: Before separation, employees will be compensated for earned time off credit that has not lapsed by equal time off. When the required amount of overtime accumulated in an emergency is excessive and compensating time off cannot be granted due to the heavy work load involved, payment of overtime may be made in cash, at not to exceed the overtime rate of 51 cents per hour for each $1,000 of annual salary, provided such action is authorized by the department head and provided budgeted funds are available.

When these rules, which plaintiff testified he knew, are applied to the facts in this record, several problems confront plaintiff’s contention that he was entitled to these payments as delayed compensation. With respect to the time for which plaintiff received pay at regular rates for “compensatory overtime used,” the rules provide that employees must use accumulated overtime within three months after it was accrued, unless specific authorization has been made in advance by the Comptroller. Here, plaintiff claimed to be using overtime hours accumulated at least four years earlier, and no evidence was offered as to any authorization by the Comptroller. There were also problems relating to the cash compensation plaintiff received for overtime hours not worked during the period, which amounted to 34 hours in the September period and 13% hours in the October period. As prerequisites to allowing cash compensation for overtime, the rules require the authorization of the department head, the showing that emergency circumstances and heavy workload prevent the granting of compensatory time off, and the availability of budgeted funds. Plaintiff testified that while his immediate supervisor, Mr. Stromback, had authorized the payment for overtime in cash, he did not know whether or not Stromback had received authority from the department head. (Plaintiff later testified that Stromback told him the department head had authorized the cash payment.) Plaintiff’s only other witness, Robert J. Karr, who was also a timekeeper and who was responsible for the payroll upon which plaintiff was listed, testified that the authority for those payments came only from Stromback, as far as he knew. We note that the department head, who was still employed by the City at the time of the hearing, was not called to testify. Furthermore, there was no showing that the work load was so heavy that it was impossible to grant the plaintiff time off for his accumulated hours of overtime. Finally, there was no evidence of the availability of budgeted funds for payment of overtime, either at the time the hours were worked or at the time of the payments.

In suits brought under the Administrative Review Act, the findings and conclusions of the administrative agency on questions of fact are prima facie true and correct. Ill Rev Stats, ch 110, § 274 (1963). The Circuit Court can set aside those findings only where the findings are against the manifest weight of the evidence. Bruno v. Civil Service Commission, 38 Ill App2d 100, 186 NE2d 108. Where the commission’s finding is supported by ample evidence and is not contrary to the manifest weight of the evidence, the fact that the court, if it had been hearing the case originally, would have from the evidence reached a conclusion different from that reached by the commission is immaterial. Adamek v. Civil Service Commission, 17 Ill App2d 11, 149 NE2d 466.

After a careful review of the record in this case, we conclude that there was substantial evidence, as discussed above, to support the Commission’s findings that plaintiff was issued payroll checks in excess of the amount due him, and that he knew or should have known he was not entitled to such overpayments. These findings were not contrary to the manifest weight of the evidence, and the Circuit Court erred in finding otherwise.

The judgment of the Circuit Court of Cook County is therefore reversed, and the findings and decision of the Civil Service Commission of the City of Chicago are affirmed.

Judgment reversed.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: JUSTICE BURMAN.

text:
    Highway Trailer Industries, Inc., a Corporation, Plaintiff-Appellant, v. H. A. Lowther, Jr., The Lowther Corporation, a Corporation, Empire Truck Leasing, Inc., a Corporation, and Fred Gary, Defendants, Fred Gary, Defendant-Appellee.
    Gen. No. 51,010.
    First District, First Division.
    September 19, 1966.
    Maurice M. Loman, of Chicago, for
    appellant; Herbert A. Ellis, Arthur A. Ellis and Morris W. Ellis, of Chicago (Ellis & Ellis, of counsel), for appellee.
   Opinion by

JUSTICE BURMAN.

Not to be published in full.


text:
    Nancy W. Schwinn, Plaintiff-Appellee, v. The Northern Trust Company, a Corporation, Individually and as Trustee; and David Waller Dangler, Individually and as Trustee, Defendants-Appellants.
    Gen. No. 51,069.
    First District, First Division.
    September 19, 1966.
    Rehearing denied October 18, 1966.

      Spray, Price, Hough & Cushman, of Chicago (Robert C. Keck, Winfield T. Durbin, James T. Otis and A. Carter Howard, Jr., of counsel), for appellants.
    Kalcheim & Kalcheim, Henry A. Kalcheim and Bernard Hammer, of Chicago, for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiff, Nancy W. Schwinn, brought this suit in July of 1965 for an accounting and for other relief against the trustees named under a trust agreement executed by her former husband, Frank V. Schwinn, in January of 1965. In their answer, defendants raised as an affirmative defense the contention that Schwinn had validly revoked the trust on March 8, 1965, and moved to dismiss the complaint. In her reply, plaintiff contended that under the terms of the trust agreement the power to revoke could only be exercised jointly by Schwinn and by plaintiff, and that his purported revocation without her consent was not valid. After memoranda of law were submitted by both sides and after hearing argument of counsel, the trial judge found as a matter of construction of the trust instrument that revocation could only be accomplished jointly by Schwinn and by plaintiff. Accordingly, he denied defendants’ motion to dismiss the complaint, and referred the case to a master for an accounting. He also appended the finding, “That there is no just reason for delaying enforcement or appeal of this court’s order of November 4, 1965, denying defendants’ motion to dismiss, pursuant to section 50 (2) of the Civil Practice Act.” Defendants have appealed.

Before reaching the dispute as to the proper construction of the trust agreement, we must consider plaintiff’s contention that the trial court’s order was not final and appealable, and that therefore this appeal should be dismissed. Plaintiff contends, and we agree, that an order which merely disposes of one of the issues in an action involving a single claim is interlocutory and not appealable; and that section 50(2) of the Civil Practice Act does not apply to such an order. Davis v. Childers, 33 Ill2d 297, 211 NE2d 364. We feel, however, that since the order in this case disposed of the only issue present in the case, it was therefore a final and appealable order. In Barnhart v. Barnhart, 415 Ill 303, 114 NE2d 378, our Supreme Court held:

The decree of the circuit court settles and determines the ultimate rights of the parties to the corpus of the trust and is, therefore, upon the above authority [Moore v. Moyle, 405 Ill 555, 92 NE2d 81] a final and appealable order. The remedy by way of an accounting is a mere incident which flows from a right established by the decree. We, therefore, hold that this court has jurisdiction to entertain this appeal. (415 Ill at 309).

The order of the trial court in this case denying defendants’ motion to dismiss and referring the case to a master resolved the only legal issue present in the case, establishing plaintiff’s continuing interest in the trust and her right to an accounting. All that remained was the accounting itself, for which the case was referred to the master. Upon the above authority, we conclude that the order of the trial court was final and appealable.

The dispute between the parties in regard to the proper construction of the trust’s provisions as to revocation turns upon the meanings to be attributed to two provisions in the trust instrument. The first, Section 1 of Article One of the instrument, reads in part as follows:

For so long as I or my wife, Nancy Wilson Schwinn, are living the Trustee shall permit us, or the survivor, or any person or persons whom we or the survivor may designate, to use and enjoy any real estate together with all improvements and appurtenances, which may from time to time form a part of the Trust Estate, rent free. ... In addition, the Trustee shall, upon the receipt of a written direction from my said wife and myself, or the survivor, dispose of any such real estate or any interest therein and/or shall purchase new or additional real estate or interest therein as so directed. It is my intention that while my said wife and I are both living we shall be joint beneficiaries hereunder and have joint and equal rights, powers and privileges with regard to this agreement and any property which may from time to time form a part of the Trust Estate; and upon the death of the first to die of my said wife and myself, the survivor shall be sole beneficiary hereunder and alone enjoy such rights, powers and privileges. (Emphasis supplied.)

The other pertinent provision is Section 7 of Article Two, which reads as follows:

I reserve the right at any time and from time to time, by instrument in writing delivered during my lifetime to the Trustee, to alter, amend or revoke this instrument, either in whole or in part. If my wife, Nancy Wilson Schwinn, survives me, then in that event and from and after the date of my death only, my said wife shall have the right at any time and from time to time, by instrument in writing delivered during her lifetime to the Trustee, to alter, amend or revoke this instrument, either in whole or in part. However, the powers, duties and responsibilities of the Trustee shall not be substantially changed without its consent. In case of revocation, the trust estate, or that part thereof as to which this instrument may be revoked, shall be conveyed by the Trustee to the party properly executing the revocation or in accordance with that party’s written directions.

Plaintiff contends that the language of Section 1 of Article One clearly indicates the settlor’s intention to grant to himself and to plaintiff joint and equal rights, powers and privileges with respect to the trust agreement and that these rights, powers and privileges include the power to revoke. But we feel that this position cannot be sustained in light of the clear and unambiguous expression of the settlor’s intention to the contrary contained in Section 7 of Article Two. The first sentence of that section unambiguously reserves the right to revoke to the settlor alone. The subsequent provision which directs the trustee, upon revocation, to convey the trust property to the “party” (not “parties”) properly executing the revocation indicates that he contemplated revocation by one person, not by himself and plaintiff jointly. In view of the clear meaning of this section, we must construe the section upon which plaintiff relies as not delegating the power to revoke, but merely as an expression of settlor’s intention to convey equal rights, powers and privileges as beneficiaries upon himself and plaintiff so long as the trust remained unrevoked. It follows that Schwinn’s revocation of the trust agreement was valid, and that the trial court erred in denying defendants’ motion to dismiss the complaint.

The order of the circuit court is therefore reversed and the cause remanded with directions to vacate the order referring the case to the master and to enter judgments in favor of the defendants.

Reversed and remanded with directions.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


author: CORYN, P. J. STOUDER, J.,

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Nancy Patrick, Defendant-Appellee.
    Gen. No. 65-56.
    Third District.
    September 20, 1966.

      STOUDER, J., dissenting.
    Robert E. Richardson, State’s Attorney, of Ottawa, for appellant.
    John Berry, of Streator, for appellee.
   CORYN, P. J.

The grand jury of LaSalle County returned an indictment against the defendant, Nancy Patrick, for the crime of theft charging that:

“Between the first day of April, 1963, and the 21st day of April, 1965, at and within the county of La Salle, Nancy Patrick committed the offense of theft in that she knowingly obtained unauthorized control over the sum of $21,513.04, the property of the Streator TV Cable Company, a corporation, situated at 607 East Main Street, Streator, LaSalle County, Illinois, Nancy Patrick thereby intending to deprive Streator TV Cable Company, a corporation, permanently of the use or benefit of said property, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the same people of the State of Illinois.”

The defendant thereafter filed a motion to quash this indictment for failure to specify the time of the commission of the alleged offense with sufficient particularity to enable her to know with what offense she is charged. “The State,” she argues, “might attempt [under this indictment] to prove that . . . she . . . obtained unauthorized control of the money in question on any one of 751 days. Again, it might attempt to prove that she obtained control of money on a large number of occasions within that two-year period. Is the indictment alleging one offense or a number of offenses?” she inquires. “It is very possible,” her argument continues, “that . . . [the State] . . . might attempt to prove a large number of offenses, each one of which imposes an amount less than the amount necessary to constitute grand larceny. It may attempt to add these together and claim they are one offense.” For failure to adequately designate a specific time, it is also suggested by defendant that the indictment is multifarious for aggregating a number of small thefts to charge a grand theft.

The trial court accepted defendant’s argument, and ordered the indictment dismissed, with the following observation :

“There is a presumption of innocence that attaches to all defendants charged with a crime, and that individual has a right to know whether he is being charged with one taking of twenty-one thousand dollars, on a specific date, or a series of takings over a period of two and one-half years, totalling twenty-one thousand dollars, and this you cannot tell by looking at this indictment.”

The State has perfected this appeal from the order dismissing the indictment, and argues that the indictment states one offense of theft; that the law does not require the State to allege in the indictment whether the theft charged was committed by a single act, or by a series of successive acts constituting one continuous offense; and that the order of the trial court requiring such specificity to sustain the validity of the indictment is erroneous.

At article II, § 9 of the Constitution of Illinois (1870), it is provided that, “In all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation and to have a copy thereof. . . .” This constitutional guaranty was designed “to secure to the accused such specific designation of the offense charged against him as will enable him to fully prepare for his defense, and to plead the judgment in bar of a subsequent prosecution for the same offense.” People v. Peters, 10 Ill2d 577, 580, 141 NE2d 9. To implement these requirements of the Constitution, the Legislature, by the Code of Criminal Procedure of 1963 (c 38, § 100-1 et seq., Ill Rev Stats) provided that, “A charge [indictment] shall be in writing and allege the commission of an offense by: (1) Stating the name of the offense; (2) Citing the statutory provision alleged to have been violated; (3) Setting forth the nature and elements of the offense charged; (4) Stating the date and county of the offense as definitely as can be done; and (5) Stating the name of the accused. . . .” (C 38, § 111-3 (a), Ill Rev Stats (1963).)

The nature and elements of the offense of theft are set forth at c 38, § 16-1, Ill Rev Stats (1963) as follows: “A person commits theft when he knowingly: (a) Obtains or exerts unauthorized control over property of the owner; or (b) Obtains by deception control over property of the owner; or (c) Obtains by threat control over property of the owner; or (d) Obtains control over stolen property knowing the property to have been stolen by another. ... A person convicted of theft of property from the person or exceeding $150 in value shall be imprisoned in the penitentiary from one to 10 years.”

The indictment here states the name of the offense, and we conclude that it also adequately describes its nature and elements by alleging, in the language of the statute, that Nancy Patrick knowingly obtained unauthorized control over the described property of another with the requisite intent. We do not think the indictment fatally defective for failure to cite “the statutory provision alleged to have been violated.” In People v. Hill, 68 Ill App2d 369, 216 NE2d 212, the court correctly held that where an indictment adequately informs the accused of the nature and elements of the charge against him, failure to cite the proper statutory provision alleged to have been violated is not a basis for dismissal under § 114-1, or for an arrest of judgment under § 116-2. It is, rather, a basis for sustaining a motion for a bill of particulars under § 111-6.

The question presented by defendant’s motion here, then, is whether this indictment complies with § 111-3 (a) (4), requiring that the date of the offense be stated as definitely as can be done, and if it does not, whether the indictment for that reason, fails to state an offense, and is accordingly subject to dismissal under § 114-1 (a) (8) or § 116-2 (b) (1).

Our Supreme Court of Illinois, in the cases of People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, and People v. Petropoulas, 34 Ill2d 179, 214 NE2d 765, has had recent occasion to interpret articles 111, 114 and 116 of the Code of Criminal Procedure of 1963, including §§ 111-3(a), 114-1 (a) (8), and 116-2 (b)(1), of c 38, Ill Rev Stats (1963). In Blanchett it was held that a pretrial motion, pursuant to § 114-1 (a) (8), to dismiss an indictment for failure to state an offense, and a post-trial motion, pursuant to § 116-2 (b) (1), in arrest of judgment for failure of the indictment to state an offense, are sustainable only where the defect in the indictment relates to noncompliance with § 111-3 (a) (3), which requires a description of the nature and elements of the offense. Such motions were held not sustainable where the alleged deficiency relates merely to the question of whether the time and place, or date and county, of the alleged offense are stated under § 111-3 (a) (4) as definitely as might have been done. The Supreme Court ruled further in Blanchett that the requirements of due process and those of the Code of Criminal Procedure (i. e., c 38, § 111-3 (a) (4), Ill Rev Stats) are met, so far as describing the time and place, or date and county, of the alleged offense, if the indictment alleges that the offense charged was committed within the county where the charge is brought, and at a time which falls within the period permitted by the statute of limitations.

Here, although its allegations as to time are broad, the indictment does allege a time within the statute of limitations, and where time is not the essence of, or an element of, the crime charged, this allegation is adequate to sustain the sufficiency of the indictment. People v. Blanchett, supra. This indictment purports to charge but one offense of theft and is therefore not duplicitous. We suggest, as did the Supreme Court in Blanchett, that this is an appropriate case for a motion for bill of particulars under § 111-6, for the purpose of ascertaining the exact time or times of the alleged theft, which would reveal, of course, whether the theft is alleged to have been committed by a single act, or by a series of successive acts comprising one continuous offense.

We conclude that the indictment here conforms with the requirements of § 111-3(a), and charges a criminal offense, and that the judgment of the trial court, on the pretrial motion, dismissing the indictment, was erroneous. Accordingly, the judgment of the trial court dismissing the indictment is reversed, and the case is remanded for further proceedings consistent with the opinions expressed herein.

Reversed and remanded.

ALLOY, J., concurs.

STOUDER, J.,

dissents.

I do not agree with the majority of the court since it is my opinion that the order of the trial court quashing the indictment was proper and its order should be affirmed.

In the revision of our system of criminal jurisprudence the draftsmen of the Criminal Code, chap 38, Ill Rev Stats 1963, endeavored to promote simplicity, reason and avoidance of technical distinctions, the reasons for which had long ago disappeared. The drafting committee fully recognized that its revisions were subject to constitutional principles and interpretations. In the committee’s comments following chap 38, § 111-3, Ill Rev Stats 1963, as referred to in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, it is said, “The charge must tell the accused the nature and cause of the accusation against him "(Ill Const art 11, § 9). Two general methods of drafting the charge formerly existed. The offense could be charged in the language of the statute or the facts which constitute the crime could be set out. (See People v. Barnes, 314 Ill 140, 145 NE 391 (1924).) It has been sufficient to charge the offense in the language of the statute when the words of the statute so far particularize the offense that by their use alone the Defendant is notified with reasonable certainty of the precise offense with which he is charged. (People v. Sims, 319 (393) Ill 238, 66 NE2d 86 (1946).)” It is therefore clear that there has been no diminution of the importance of the right of the accused to know the nature of the offense with which he is charged.

It should be noted that two sections, 16 and 17 of chap 38, Ill Rev Stats, 1963, dealing with theft and related offenses, replace 74 former sections dealing with the same offenses. Offenses heretofore known as larceny, larceny by trick, embezzlement, false pretenses, confidence game, as well as offenses dependent on the position of, or the relation between persons are now included under the offense of theft. The codification of the offenses against property under the single offense of theft, in broad and inclusive language, recognizes the common elements in offenses against property, namely the requisite mental state and the conduct with respect to the property itself. I do not agree with the majority that section 16 sets forth the nature and elements of the offense of theft in such terms that an accused will know the nature of the theft with which he is charged if the charge is in the terms of the statute. On the contrary the statute, in its effort to avoid technical distinctions, has left it to the drafter of the charge to particularize the offense coming within its terms.

The substance of the indictment in this case is that during a period of time A knowingly obtained unauthorized control over money of B. In effect, the indictment merely charges theft in general statutory language without in any way indicating the nature of the proscribed conduct or act. The failure of the indictment to reveal the nature of the offense is illustrated by the argument of Appellant. Appellant argues dehors the record of the indictment that the Defendant took money from her employer and that one act or a series of acts may be involved. If this be the gist of the proscribed offense it cannot be ascertained from the indictment. It is equally apparent that under the statutory language employed in the indictment, evidence that the Defendant entered the premises of the cable company and took the money from the cash register would be within the terms of the indictment. Surely an indictment which encompasses such divergent conduct cannot be said to advise the accused of the charges.

In addition the reference to a period of time indicates either a continuous offense or a series of acts or conduct thus characterizing the conduct itself, which characterization is not supported by the remainder of the charge. Characterization of the proscribed conduct relates to the nature of the offense and is not merely a description of the date of the occurrence of the offense as provided in section 111-1 (a) (4), chapter 38, Ill Rev Stats 1963. Therefore, I believe that People v. Blanchett, supra, is distinguishable on principle from the instant case. In Blanchett the court was concerned with the problem created when the indictment charged the commission of the offense on a date different to that of its actual commitment, the court reaffirming the principles that the date or time of an offense did not refer to the nature of the offense itself. In my view of this case, the characterization of conduct resulting from the language employed in the description of a period of time is a part of the nature of the offense charged and both repugnant to or unsupported by the remainder of the charge, thereby failing to sufficiently advise the accused of the offense charged.


author: JUSTICE LYONS.

text:
    Mutual National Bank of Chicago, a National Banking Association, as Trustee Under the Provisions of a Trust Agreement Dated March 30, 1960, and Known as Trust No. 3385, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,578.
    First District, Second Division.
    September 20, 1966.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellant; Haskins, Maguire & Haskins, of Chicago (Robert E. Haskins and C. W. Eckert, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Williams, Defendant-Appellant.
    Gen. No. 50,951.
    First District, Second Division.
    September 20, 1966.
    Wilson Frost, of Chicago, for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: CORYN, P. J. STOUDER, J.

text:
    People of the State of Illinois, Appellee, v. Viola Ann Pry, Alias Jane Doe, Appellant.
    Gen. No. 65-90.
    Third District.
    September 21, 1966.

      STOUDER, J., dissenting.
    Rubelle & Pratt, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney, of Peoria, for appellee.
   CORYN, P. J.

Following a trial without a jury, Viola Ann Pryor (a/k/a Viola Ann Pry) was convicted of being a keeper of a house of prostitution in violation of Ill Rev Stats, ch 38, § 11-17 (1965) and was thereafter sentenced to the Illinois Women’s Reformatory for the term of one year. Two other women, arrested with the defendant on the premises at 409 Aiken Street in Peoria, were charged with prostitution in violation of Ill Rev Stats, ch 38, § 11-14 (1965), were tried with defendant at a consolidated hearing and were acquitted. Viola Ann Pryor prosecutes this appeal claiming that there was no proof of the corpus delicti other than extrajudicial admissions allegedly made by her, and that in the absence of proof independent of such admissions, establishing that a crime was in fact committed, her conviction cannot stand.

We agree that no act of prostitution violative of Ill Rev Stats, ch 38, § 11-14 (1965) was proved, but we also conclude that proof of a violation of that section is not essential to sustain a conviction under § 11-17. The crime of which defendant is convicted is that of granting to others the use of premises in her control under circumstances showing her awareness that the place was to be used for prostitution.

All of the evidence adduced at the trial of this cause came from the testimony of Ray W. Trunk, Sheriff of Peoria County, the sole witness called by the prosecution. The defendant produced no evidence. Sheriff Trunk’s testimony consisted of three types of evidence, that is, his observation of what occurred on May 28, 1965, when he visited the premises at 409 Aiken Street; his recollection of the oral statements made to him by Barbara Ray and Holly Fontaine; and his recollection of the oral admissions made to him by the defendant.

Sheriff Trunk testified that Barbara Ray and Holly Fontaine signaled him through the window of the premises at 409 Aiken Street to come into the building. He entered, and in addition to the two girls, found the defendant. The three women were taken to the county jail where they were questioned by Trunk. He testified that Holly Fontaine stated that “she had been there a few days and was working as a prostitute at 409.” Barbara Ray told the Sheriff that she had been at 409 Aiken Street one day and was working there as a prostitute. Trunk testified that the defendant admitted to him that she and her husband were the sole proprietors of 409 Aiken Street, and “that they had been working at prostitution.”

The Sheriff’s observations just prior to and at the time of the arrest, as well as the oral statements made to the Sheriff by Barbara Ray and Holly Fontaine, constitutes evidence, independent of the defendant’s admissions to him, that the defendant gave use of her premises under circumstances showing she must have known that the place was being occupied by persons who intended to use it for purposes of prostitution. People v. Berger, 284 Ill 47, 119 NE 975.

We are satisfied that there is sufficient proof aliunde defendant’s statement to corroborate and inspire belief in the truth of her admissions that she was engaged, at her premises, in the business of prostitution. The conviction here, unlike that in People v. Lueder, 3 Ill 2d 487, 121 NE2d 743, upon which defendant relies, does not rest on a mere naked confession. The judgment of the Magistrate is accordingly affirmed.

Affirmed.

ALLOY, J., concurs.

Dissenting Opinion

STOUDER, J.

I cannot agree with the majority opinion. While there need not be proof of an act of prostitution to sustain a conviction under section 11-17, chap 38, Ill Rev Stats 1965, the elements of the offense as outlined by said section 11-17 must necessarily be proved and cannot be proved solely by Defendant’s admissions or confession. People v. Lueder, 3 Ill2d 487, 121 NE2d 743. The elements of this offense are (1) that Defendant must have or exercise control over the premises; (2) the premises must be such as to offer seclusion or shelter for the practice of prostitution; and (3) that the above conditions must exist in conjunction with one or more of the following, (a) actual knowledge of the purpose intended or (b) constructive knowledge of the purpose intended or (c) continued use after actual or constructive knowledge of the actual use.

In the instant case the only evidence contained in the record is the testimony of one witness who purported to testify as to the acts leading up to Defendant’s arrest and certain alleged admissions. From his testimony, it is possible with considerable difficulty to glean the following facts independent of Defendant’s admissions: 1. That he was invited to enter the premises in question by either or both of two women, neither of whom was the Defendant, and that he did so enter. 2. That he found the Defendant on the premises in a different room. 3. That he informed Defendant he was arresting the two women for “prostitution” and 4. That at some time at some place the two women stated that they were prostitutes. Nowhere does the record show for what purpose the witness was invited to enter. Little if any value can be ascribed to the testimony of the witness concerning admissions. Despite repeated objections by defense counsel, admonitions by the court and the efforts of the Assistant State’s Attorney, the testimony of the witness was unresponsive to the questions asked and did not purport to relate actual conversations, the substance, or the time and place thereof. The best that can be said of the testimony is that in the opinion of the witness, one woman admitted to being a prostitute and to living at the address in question for one day and the other to being a prostitute and living at the premises for a few days. The record is devoid of any evidence, aside from the claimed admissions of Defendant, that the latter knew or should have known that there was any activity or conduct within or on the premises from which she should reasonably infer that the premises were being used for prostitution or that she continued to allow the use of the premises for purposes of prostitution with actual or constructive knowledge of such use.

In addition, the record is likewise devoid of evidence of Defendant’s control of the premises in question aside from Defendant’s purported admissions. That this exercise of control is essential has been declared by this court in People v. Taylor, 57 Ill App2d 343, 206 NE2d 121.

Lacking any competent evidence as to two of the three essential elements of this offense, we are left with a conviction for being present in a place which could offer seclusion or shelter for the practice of prostitution.


author: PRESIDING JUSTICE CORYN.

text:
    People of the State of Illinois, Appellee, v. Mose Hardy, Appellant.
    Gen. No. 66-30.
    Third District.
    September 21, 1966.
    Morton S. Goldfine, of Peoria, for appellant; George R. Kennedy, State’s Attorney, of Peoria, for appellee.
   Opinion by

PRESIDING JUSTICE CORYN.

Not to be published in full.


author: JUSTICE MORAN.

text:
    Earl Gaither, Administrator of the Estate of Joyce M. Gaither, Deceased, and Earl Gaither, Plaintiffs-Appellants, v. Robert Stevenson, Defendant-Appellee.
    Gen. No. 66-12.
    Fifth District.
    September 17, 1966.
    Glenn & Logue, of Mattoon, for appellants; Jack E. Horsley and Richard F. Record, Jr., of Craig & Craig, of Mattoon, for appellee.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: GOLDENHERSH, P. J.

text:
    Earl Bilyeu, et al., Plaintiffs-Appellants, v. Grace Plant and “Unknown Owners,” Defendants-Appellees.
    Gen. No. 66-19.
    Fifth District.
    September 20, 1966.

      John R. Sprague and Ron Niemann, of Belleville, for appellants.
    Ralph A. Vandever, of Hillsboro, for appellee.
   GOLDENHERSH, P. J.

Plaintiffs, Earl Bilyeu, Perry Bilyeu, and Elizabeth Thomas, appeal from the judgment entered by the Circuit Court of Bond County, denying to plaintiffs any of the relief sought in their amended complaint.

Plaintiffs and defendant are the surviving brothers and sisters, and the only heirs, of Harry M. Bilyeu, deceased, who died on July 2,1959.

Plaintiffs’ amended complaint is in three counts. In Count I plaintiffs allege that in 1912 Harry M. Bilyeu took record title to certain described real estate, that a mortgage on said real estate was foreclosed, that the receiver for a Joint Stock Land Bank conveyed the real estate to Frank Doll and Chris Doll by deed dated July 19, 1937, and recorded on August 12, 1937; that the Dolls, and the spouse of one of them, conveyed the real estate to defendant, Grace Plant, by warranty deed dated July 30, 1937, and recorded August 12, 1937, that defendant held title to said real estate under a resulting trust for her brother, Harry M. Bilyeu, because he furnished the consideration for the conveyance with the intent that the resulting trust arise from the transaction; that since the death of Harry M. Bilyeu, and in violation of the resulting trust, she claims complete and sole ownership of the real estate, that during the entire period that defendant has held apparent record title to the real estate, the said Harry M. Bilyeu remained in possession thereof, that because of the resulting trust, the defendant’s interest in the real estate is apparent and not real.

As to Count I, plaintiffs pray that the court decree that defendant held record title in trust for Harry M. Bilyeu, that the plaintiffs and defendant be decreed to be the owners of the real estate, and that defendant have no right, title or interest therein superior to that of plaintiffs.

In Count II, plaintiffs repeat many of the above allegations, and allege further that defendant abused a confidential or fiduciary relationship, and pray that the court decree that she held title by virtue of a constructive trust.

In Count III, plaintiffs allege that Harry M. Bilyeu was in continuous, open, notorious possession of the real estate for more than 20 years, and while in such continuous, open, notorious possession, under color of title, paid taxes thereon for more than 7 years, and pray that the court decree that Harry M. Bilyeu was vested with title by virtue of such adverse possession.

The answer admits many of the allegations, denies that Harry M. Bilyeu furnished the consideration for the conveyance to defendant, denies the creation of a resulting trust, denies a fiduciary relationship or any abuse thereof, admits Harry M. Bilyeu was in possession of the real estate but states that it was not adverse to defendant, and was with her permission.

The parties stipulated that Harry M. Bilyeu acquired title to the real estate in 1912, that a mortgage on the real estate was foreclosed, that on the dates, and by means of the instruments, described in the amended complaint, it was conveyed to the Dolls, and by the Dolls to defendant, that the real estate taxes for the years 1937 through 1957 were paid by Harry M. Bilyeu, that income tax returns filed by Harry M. Bilyeu show he reported income from the real estate until his death, that in 1958, Harry M. Bilyeu paid the premium for fire and extended coverage on the house, in 1956 paid for corn insurance, and in 1957 paid for seed.

Chris Doll, called by plaintiffs, testified that Frank Doll was deceased, that he had knowledge of the subject real estate since 1912, and had known Harry M. Bilyeu since 1920, that Harry M. Bilyeu lived on the farm since at least 1920, that the total acreage of the farm occupied by Harry M. Bilyeu was 170 acres, of which 140 acres were in cultivation, that from 1920 until 1937, he and his brother were tenants on the farm, that a mortgage on the farm was foreclosed, that he and his brother, after discussion with Harry M. Bilyeu, bought the farm from the receiver for the Joint Stock Land Bank, that it was their intention, as discussed with Harry M. Bilyeu, to keep 90 acres, that Harry M. Bilyeu told the Dolls to convey the balance of the farm to defendant, that his deceased brother made the financial arrangements and he did not know whether defendant gave his brother any money, that she (the defendant) gave him no money, that after the conveyance to defendant, Harry M. Bilyeu continued to occupy the house on the farm until his death; that Harry M. Bilyeu, or his employees farmed the land, that part of it was fenced, and that Harry M. Bilyeu maintained and repaired the improvements. He and his brother were paid $2,500, but he had no knowledge as to where Harry M. Bilyeu obtained the money. When asked whether he received any money, Mr. Doll answered, “No, that arrangement was made at the bank.”

Guy Gillespie, Charles McClain, Henry Hollar and Florence Hollar, testified that Harry M. Bilyeu was in continuous possession of, and farmed the land, from 1920 to the time of his death.

Irving Iberg testified that since 1958, the property had been assessed for real estate taxes, in the name of defendant, that from 1937 to 1957, the land was assessed in the name of Harry M. Bilyeu.

George Clark testified that he was manager of, and had been bookkeeper for, a grain elevator, that payments for grain grown on the farm were divided two-thirds to a tenant and one-third to Harry M. Bilyeu.

Charles Woolsey testified that he had known Harry M. Bilyeu since before 1920, that Harry M. Bilyeu had always lived on the farm, that he frequently worked for him, that Harry M. Bilyeu had always paid him, that once when he repaired some windstorm damage, Harry M. Bilyeu told him he was going to send the bill to the insurance company.

Ralph Christian, an insurance salesman, testified that he sold Harry M. Bilyeu fire, windstorm and extended coverage insurance on the house and barn, and that losses were payable to Harry M. Bilyeu.

Ward Reynolds testified that he was formerly County Superintendent of Highways, that he had known Harry M. Bilyeu since 1938, that he had lived on the farm continuously from that time, and that Harry M. Bilyeu had executed a release which was marked for identification, offered, and admitted in evidence. The release grants permission to a road contractor to “deposit surplus trees and stumps” on the land. He also identified a letter written by him to Harry M. Bilyeu regarding the removal of some fences on the farm.

On cross-examination, Mr. Reynolds identified a document, not in evidence, described as a dedication of a right-of-way for highway purposes executed in 1952 by Harry M. Bilyeu, and an easement, executed on the same date, by defendant and her husband. The easement, not in evidence, is described by the witness as pertaining to land in Section 4.

An inventory of the estate of Harry M. Bilyeu, identified, offered and admitted in evidence, lists lands in Section 3, but none in Section 4. The real estate involved in this case is described as being in Section 4.

N. B. Schaeffer testified that some time after 1953 he sold fire and other insurance to Harry M. Bilyeu covering the buildings on the farm, that the policy named defendant as owner of the property, that Harry M. Bilyeu paid the premiums, and a loss was paid to him. He stated that Harry M. Bilyeu and defendant were always friendly in the years that he knew them, that shortly before Harry M. Bilyeu’s death, he was ill and unable to care for himself, and during that period lived with defendant.

Over defendant’s objection, the court admitted in evidence a warranty deed dated July 28, 1937, naming defendant and her husband as grantors, and Harry M. Bilyeu, as grantee, conveying the property here involved. It was stipulated by the parties that the signature on the deed is that of defendant’s husband. It is not signed by defendant, is not acknowledged, is not recorded, and there is no testimony as to when or by whom it was prepared, or in whose possession it has been since its preparation.

At the close of plaintiffs’ case, defendant moved for judgment on all three counts, the court allowed the motion, and entered judgment in favor of defendant.

Plaintiffs contend that the evidence adduced made a prima facie case for plaintiffs, and the court erred in allowing defendant’s motion and entering judgment for defendant.

Section 64(4) of the Civil Practice Act (c 110, § 64(4) Ill Rev Stats 1965) provides for motions for judgment or decree at the close of the plaintiff’s case in equity and non jury law cases. It provides that in ruling on the motion the court shall weigh the evidence, and if the ruling on the motion is favorable, enter judgment for the defendant or a decree dismissing the action. In Banks v. Gregory, 16 Ill2d 227, 157 NE2d 12, at page 231, the Supreme Court said: “The motion of the defendant at the close of the plaintiff’s case was a procedural means of submitting the whole case to the court for a determination on the merits. In ruling on the motion the court was required to weigh the evidence offered on the part of the plaintiff.” In McDonald v. Neale, 35 Ill App2d 140, 182 NE2d 366, the Appellate Court for the First District, in discussing the statute as amended in 1955, at page 146, said: “This change in the Civil Practice Act, expressly for the purpose of expediting trials, permits the trial judge, at the close of plaintiff’s case, to evaluate the evidence and determine the credibility of witnesses. Under such circumstances the trial judge must decide whether the inferences and conclusions adduced by Trim from the evidence result in a prima facie case before ruling on the motion.”

On appeal, the reviewing court must examine the evidence, and in the light of these holdings, determine whether the trial court, after weighing the evidence, erred in deciding that plaintiffs failed to make a prima facie case.

We shall first consider the evidence purporting to show the creation of a resulting trust. The only evidence with respect to payment of the consideration for the conveyance to defendant, is the testimony of Chris Doll. Plaintiffs contend that this testimony establishes that Harry M. Bilyeu paid the money received by the Dolls, and that an additional consideration was his foregoing the right to redeem the land after foreclosure.

In Kohlhaas v. Smith, 408 Ill 535, 97 NE2d 774, at page 538, the Supreme Court said: “A resulting trust arises by operation of law from the acts of the parties and is not based upon contract. . . . Where land is purchased with the money of one person and title taken in the name of another, and the acts of the parties establish an actual or presumed intention to create a trust, the law raises a resulting trust in favor of the person whose money was used. ... It arises, if at all, the instant the legal title is taken and the title vests. . . . The burden of proof rests upon the party seeking to establish a resulting trust, and the evidence, to be effective for this purpose, must be clear, convincing, unequivocal and unmistakable, and must establish beyond a doubt the payment by the claimed beneficiary at the time the title was taken in the alleged trustee. ... If the evidence is doubtful or capable of reasonable explanation upon any theory other than the existence of a trust it is insufficient.”

In considering defendant’s motion for judgment, and in weighing the evidence as required by section 64(4), unless the trial judge could find that the plaintiffs’ evidence was so clear, convincing and unequivocal as to enable him to draw the inferences and reach the conclusions necessary to a finding that there was a resulting trust, defendant’s motion for judgment was properly allowed.

In reviewing a case tried without a jury, an appellate court should not disturb the findings of the trial court unless such findings are manifestly erroneous. People ex rel. Penrod v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126. In determining the propriety of a trial court’s ruling on a motion based on section 64(4) the same rule should apply.

Plaintiffs contend that even assuming, arguendo, that the evidence of the payment by Harry M. Bilyeu of the money consideration paid to the Dolls falls short of being clear, convincing and unequivocal, the evidence shows an additional consideration, in that Harry M. Bilyeu agreed not to exercise his right of redemption in order that the Dolls could purchase the land from the receiver and convey the portion here involved, to the defendant. This contention is without merit for the reason that the record is barren of evidence as to when the decree of foreclosure was entered, or whether the transaction between the Joint Stock Land Bank receiver and the Dolls took place within the redemption period.

After a careful examination of the evidence seeking to establish a resulting trust, we cannot say that the trial court erred in allowing the motion for judgment.

We next consider plaintiffs’ contention that the evidence makes a prima facie case from which the trial court could find that the transaction created a constructive trust. In Kapraun v. Kapraun, 12 Ill2d 348, 146 NE2d 7, at page 350, the Supreme Court said: “Constructive trusts are of two classes: one, where there is a fiduciary or confidential relationship and the subsequent abuse of that confidence; and the other, where actual fraud is a basis for raising a constructive trust.”

The fact that Harry M. Bilyeu and defendant were brother and sister does not of itself establish a fiduciary or confidential relationship. Scherman v. Scherman, 395 Ill 574, 577, 71 NE2d 16. Where the relationship does not exist as a matter of law, it must be proved by clear" and convincing evidence in order to establish a basis for raising a constructive trust. Kester v. Crilly, 405 Ill 425, 432, 91 NE2d 419; Kapraun v. Kapraun, 12 Ill2d 348, 352, 146 NE2d 7. There is no evidence of fraud, and a review of the record does not enable us to say that the trial court erred in holding that the evidence fails to present a prima facie case from which he, as the trier of fact, could conclude that there was clear, convincing, strong, unequivocal evidence of a constructive trust.

In considering whether plaintiffs’ evidence makes a prima facie case that title vested in Harry M. Bilyeu by reason of adverse possession for a period of more than 20 years, the record must be examined in the light of the Supreme Court’s holding in Schwartz v. Piper, 4 Ill2d 488, 122 NE2d 535, wherein, at page 492, the court said: “It is well settled that the adverse possession which is required to constitute a bar to the assertion of a legal title by the owner must include these five elements : It must be (1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under claim of ownership. ... If the record does not establish all of those conditions plaintiff cannot prevail. . . . Furthermore, the doctrine of adverse possession is to be taken strictly. It cannot be made out by implication or inference. The presumptions are all in favor of the true owner, and the proof, in order to overcome such presumptions, must be strict, clear and unequivocal.” Again, we are not prepared to say that the trial court erred in holding that plaintiffs failed to make a prima facie case upon which he could base the findings necessary to support a decree favorable to plaintiffs.

Finally, plaintiffs contend that Harry M. Bilyeu acquired title by possession, under color of title, adverse to defendant, accompanied by payment of taxes for a period of 7 years. The testimony of N. B. Schaeffer is to the effect that Harry M. Bilyeu, when he purchased fire insurance some time after 1953, named defendant as owner. This was within 7 years of his death, and is not consistent with plaintiffs’ theory. As to the claim of color of title, there is no evidence that the deed upon which plaintiffs rely was delivered, and in the absence of proof of delivery an unacknowledged deed will not support a claim of color of title. Herrin v. McCarthy, 339 Ill 530, 171 NE 621.

For the reasons herein set forth, the judgment of the Circuit Court of Bond County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


text:
    Clyde H. Auten and Lorraine A. Auten, Plaintiffs-Appellees, v. Guaranty Abstract & Title Company, a Corporation, Defendant-Appellant.
    Gen. No. 65-120.
    Fifth District.
    September 22, 1966.

      Durr & Durr, of Edwardsville, for appellant.
    Meyer & Meyer, of Belleville, for appellees.
   GOLDENHERSH, P. J.

Defendant, Guaranty Abstract & Title Company, appeals from a judgment in the amount of $1,500, entered by the Circuit Court of Madison County after trial by the court, without a jury.

In the complaint plaintiffs allege that they purchased certain real estate situated in Madison County from one Helen K. Stevenson, that prior to closing the transaction, plaintiffs employed defendant to examine the title to the real estate and ascertain whether Helen K. Stevenson could convey fee simple title, free and clear of encumbrances, that defendant negligently and unskillfully failed to advise plaintiffs of a lien on the real estate arising from a judgment against the said Helen K. Stevenson, and that plaintiffs, in order to obtain a release of the lien, were required to pay the judgment.

The evidence shows that plaintiffs, who are husband and wife, purchased a parcel of real estate from one Helen K. Stevenson, that plaintiff, Clyde H. Auten, is a realtor with some 40 years of experience in the field, that he delivered to plaintiffs’ attorney a warranty deed executed by Miss Stevenson on July 2, 1961, that on July 17, 1961, plaintiffs’ attorney wrote defendant a letter, enclosing the deed, and instructing defendant as follows: “Please examine the records from December 28, 1960 at 1:00 P. M. and if no intervening liens or encumbrances appear, please record this deed. If something adverse is shown of record, please withhold this deed and advise me by telephone of the character of the encumbrance.”

The evidence further shows that the deed was recorded on July 19,1961.

Plaintiff, Clyde H. Auten, testified that a day or two after July 17, 1961, F. Ritchie Gibbons, president of defendant corporation, called him and told him the title was “clean as a hound’s tooth.”

Shortly thereafter, plaintiffs were advised that a judgment had been rendered and entered against one Helen C. Stevenson on July 6, 1961, and the judgment creditor claimed a judgment lien on the property here involved. Plaintiff, Clyde H. Auten, testified further that he settled the judgment upon payment of $1,500 and obtained a release of the lien. A copy of the judgment docket showing the entry of judgment on July 6, 1961, and a satisfaction of judgment, are in evidence.

Mr. Auten testified that he had known the grantor, Helen K. Stevenson, for some time, that he had prior business with her, and he had a note signed by her as Helen C. Stevenson, and another signed Helen E. Stevenson, that plaintiffs’ grantor, Helen K. Stevenson, and the Helen C. Stevenson, defendant in the case in which the above described judgment was entered, were one and the same person.

The only testimony adduced by defendant was that of a Miss Hosto, who testified that she was employed by defendant as an examiner of court records, that defendant regularly examined the court records including the indexes and judgment dockets, that she examined the records shortly after receipt of the letter from plaintiffs’ attorney. The witness testified over objection that when she examined the court records the entry showing judgment entered as of July 6, 1961, was not in the docket, and on motion of plaintiffs’ counsel, this testimony was stricken on the ground that it was an attempt to impeach the court records by parol testimony. Defendant also made an offer of proof that the witness had examined the dockets and records in the circuit clerk’s office several days prior to trial, and at that time the most recent entries were as of a date 13 days earlier. An objection to the offer of proof was sustained.

Defendant contends that the evidence shows that plaintiffs suffered no damage in that they had agreed with their grantor to assume her liabilities in consideration of her conveying the property, and settlement of the judgment was merely the payment of one of the grantor’s liabilities. An examination of the pleadings, the answers to interrogatories, and the evidence, shows clearly that plaintiffs and Miss Stevenson entered into an agreement for the sale of the property for the sum of $24,352.25, that plaintiffs were to take title subject only to an existing mortgage, and that it was not contemplated that plaintiffs assume liability for, or payment of, the judgment out of which the lien arose.

The court properly sustained plaintiffs’ objection to the testimony, and offer of proof, attempting to attack the date of entry of the judgment. The judgment was entered by the Circuit Court of Madison County, a court of general jurisdiction, no issue is made of whether the court had jurisdiction over the plaintiffs’ grantor in the case in which the judgment was entered, and the judgment of the circuit court, in a collateral proceeding, can be attacked only by the record itself. Parsons v. Lurie, 400 Ill 498, 81 NE2d 182.

Defendant contends that there is no competent evidence that plaintiffs’ grantor, Helen K. Stevenson, and the defendant against whom the judgment was rendered are one and the same person. The identity of the given and surnames, and the testimony of the plaintiff, Clyde H. Auten, that Helen K. Stevenson and Helen C. Stevenson were one and the same person, in the absence of any contrary evidence, is sufficient basis for the court’s finding.

The evidence shows that plaintiffs exercised diligence in settling the claim of the grantor’s judgment creditor, and in fact, settled it for $1,500, somewhat less than the amount of the judgment, costs and accrued interest.

In Chase v. Heaney, 70 Ill 268, the Supreme Court said: “The undertaking implied by the law, from appellants’ engaging in the business of searching the public records, examining titles to real estate and making abstracts thereof, for compensation, is, that they possessed the requisite knowledge and skill, and that they would use due and ordinary care in the performance of their duties. For a failure in either of these respects, resulting in damages, the party injured is entitled to recover.”

In reviewing a case tried without a jury, an appellate court should not disturb the findings of the trial court unless such findings are manifestly erroneous. People ex rel. v. Chicago & N. W. Ry. Co., 17 Ill2d 307, 161 NE2d 126.

The judgment of the trial court is amply supported by the evidence and the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.