author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW N. EDMONDSON, JR., Defendant-Appellant.
    Second District
    No. 80-1003
    Opinion filed May 12,1982.

      Mary Robinson, of State Appellate Defender’s Office, and Gary N. Topol, both of Elgin, and Patrick J. Hughes, Jr., of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant Andrew N. Edmondson, Jr., was tried by a jury and convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1)-, aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4), and robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18 — 1). He was sentenced to a term of 36 years: 26 years for rape, 5 years for robbery and 5 years for aggravated battery, to be served consecutively.

Defendant raises five issues on appeal: The first is the contention that the evidence of his guilt was entirely circumstantial and thus the trial court erred in refusing to include the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (hereinafter cited as IPI Criminal) in the jury instructions; second, that the trial court exceeded its authority in directing a verdict for defendant on a home invasion count of the indictment by implying that defendant was guilty of the remaining charges; third, that the trial court erred in reserving its ruling on defendant’s motion in limine regarding previous convictions until the close of the evidence in the defense’s case; fourth, that the trial court erred in imposing a sentence of 36 years in that it did not set forth the basis for imposing consecutive sentences, and in that the trial court sentenced the defendant pursuant to personal policy rather than statutory guidelines, and in that the sentence of 36 years was excessive; fifth, that the State’s failure to produce an inventory receipt during discovery resulted in surprise and prejudice to the defendant thereby denying him due process.

At trial, Esther Millim, aged 77, testified that at around 2:20 a.m. on July 5, 1980, she was home when she was awakened by shouts from her husband’s bedroom in their home at 711 Fifth Avenue in Aurora. She went to her husband’s bedroom, and saw a man’s form sitting on the bed. Believing it to be her husband, she put her arms around him to quiet him. Just as she realized the person was clothed and not her husband, the person said, “Give me some money.” At that point Esther Millim saw her husband lying on the floor in front of his bed. She began gathering money to get the intruder out of her house. She testified that she gave him a coin purse from her husband’s dresser, money from her billfold, and bills from her husband’s wallet.

At trial, Esther Millim identified, as People’s exhibits, her husband’s coin purse, its contents: a magnet, a pocket pen, and a key on a chain with the initial “M”. These were items her husband kept in the purse. She also identified, as a People’s exhibit, her husband’s Moose card which he kept in his wallet with his bills. The intruder told Esther Millim that if she turned on a light he would kill her and that he was going to rape her. She was then raped by the intruder.

When Esther Millim opened a side door to let the person out of her house, she saw lights in the driveway and three policemen approaching her house. The intruder fled in the other direction and escaped from the house. Paramedics then took Esther Millim and her husband to Copley Hospital.

A neighbor testified that she had called the police when she heard screaming from the Millim home around 2:20 a.m. She directed the police to the Millim home. She later observed Esther Millim open the side door and cry out. Shortly thereafter she saw a slender black man, with a dark cap or dark hair, a long-sleeved white shirt and dark pants running across the backyard. She did not notice if he wore a jacket or a vest.

At trial, Officers Koenke, Camic, Powell and Kahle testified. Their testimony was similar: They responded to a call made by a neighbor who had heard screams, and were directed to the Millim residence. When they approached the house Esther Millim was standing in the doorway, screaming that the intruder was still in the house.

Officer Camic went into the house and it became apparent that the intruder had left through a porch screen that had been cut. Camic gave chase through the backyards and observed a black male in a blue long-sleeved garment running north. He ordered the man to stop but the man kept running.

Officer Kahle testified that he responded to the call and had seen a tall slender male Negro wearing a brown hat, blue levi jacket and dark gray pants with the right side of his shirt still hanging out. He was wearing a light shirt and black vest, and his belt buckle was undone. Kahle identified himself as a police officer and told the man to freeze. The man did not stop. After again telling him to stop, the officer fired two warning shots. The man went around a garage at 727 Fifth Avenue and the officer lost sight of him. Kahle heard two other officers telling a man to freeze behind the garage. He ran behind the garage and saw defendant lying face down between the garage and a trellis. When Officer Kahle tried to grab him, his gun discharged accidentally into the ground.

The officers testified that the defendant had a coin purse in his pocket. The contents of the purse were identified by Esther Millim at trial. There was also testimony about John Millim’s injuries, including a broken collar bone.

At the close of the State’s case the trial judge granted defendant’s motion for a directed verdict on the charge of home invasion. Over objection by defendant, the court explained that the State had failed to introduce any evidence that defendant was not a police officer acting in the line of duty.

The jury found the defendant guilty of rape, robbery and aggravated battery. On December 4,1980, defendant Edmondson was sentenced to a total of 36 years: 26 years on the rape charge, and 5 years each for robbery and aggravated battery, to be served consecutively. His appeal was timely filed.

The first contention made by defendant is that because all the evidence against him was circumstantial he was prejudiced by the court’s failure to include in the jury instructions the second paragraph of the IPI instruction on circumstantial evidence (IPI Criminal No. 3.02). The instruction provides in its entirety:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

At the instructions conference the State tendered only the first paragraph and defendant tendered a version with both paragraphs. The court gave the State’s instruction to the jury.

Illinois courts have held that when proof of guilt is based entirely on circumstantial evidence the second paragraph of IPI 3.02 should be given. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520; People v. Garcia (1981), 95 Ill. App. 3d 792, 420 N.E.2d 482.) However, courts of review are reluctant to find reversible error in the trial court’s failure to give the second paragraph of IPI Criminal 3.02. (People v. Stokes (1981), 95 Ill. App. 3d 62, 419 N.E.2d 1181.) Thus, the failure to do so does not require reversal unless it appears that justice was denied or that the verdict resulted from such error. People v. Garcia; People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112; People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471, cert, denied (1976), 429 U.S. 1002, 50 L. Ed. 2d 614, 97 S. Ct. 534.

In the instant cause, the State first argues that the evidence was not completely circumstantial since the defendant’s own statements constituted direct evidence. (People v. Spataro (1978), 67 Ill. App. 3d 69, 384 N.E.2d 553.) In Spataro, the defendant had given two pretrial and one in-court statements explaining how the incident in question occurred. Although exculpatory, the court held that these statements were direct evidence and thus justified the trial court’s refusal to give the second paragraph of IPI Criminal 3.02. It is not clear that this is the Illinois rule, however, since in People v. Stokes the appellate court held that despite defendant’s own exculpatory statement in evidence, all evidence of guilt was circumstantial. See also People v. Garcia; cf. People v. Fletcher (1976), 40 Ill. App. 3d 537, 352 N.E.2d 10, where admissions made by defendant were seen as direct evidence and court upheld the trial court’s refusal to give the second paragraph.

Alternatively, the State asserts that the evidence was not entirely circumstantial since Esther Millim offered direct evidence regarding the aggravated battery, rape and robbery which was corroborated by the testimony of the others at trial. Identity is only one element of proof, and this may be established by circumstantial evidence. (People v. Sauber (1966), 68 Ill. App. 2d 133, 214 N.E.2d 918.) The other necessary element is the corpus delicti. In People v. Christiansen (1969), 118 Ill. App. 2d 51, 254 N.E.2d 156, this court held that testimony establishing that the crime had occurred was sufficient direct evidence to justify refusing to give the second paragraph of IPI Criminal No. 3.02, even though the evidence linking the defendant to the crime was entirely circumstantial.

In addition, the State cites People v. Cross (1981), 100 Ill. App. 3d 83, 426 N.E.2d 623, where the court noted that all evidence of guilt was circumstantial and that the trial court had refused to give the second paragraph of IPI Criminal No. 3.02. Nevertheless, since the jury had been instructed as to the presumption of innocence, the defendants were not required to prove themselves innocent, and the State was required to prove defendants’ guilt beyond a reasonable doubt, the court held that there was no reversible error, stating:

“The language of the omitted paragraph is essentially a restatement that defendants must be proved guilty beyond a reasonable doubt.” (100 Ill. App. 3d 83, 90.)

In the instant matter, the jury was properly instructed that the State had the burden of proving defendant guilty beyond a reasonable doubt. Thus, under the rule of Cross, the failure to give the second paragraph of IPI Criminal 3.02 was not reversible error.

Finally, defendant relies upon People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, in which the Illinois Supreme Court stated that the failure to give the second paragraph of IPI Criminal 3.02 required reversal where all evidence against the defendant was circumstantial, stating that in such a case, “the facts proved must be consistent with defendant’s guilt and inconsistent with any reasonable hypothesis of innocence.” 87 Ill. 2d 77, 83.

However, unlike Evans, the record here offers no reasonable hypothesis of innocence explaining Edmondson’s possession of the stolen coin purse shortly after the commission of the crimes in such close proximity to the Millims’ home. He was arrested only a short distance from the victims’ residence, and his possession of John Millim’s coin purse was testified to by at least three police officers. His explanation that it was “planted on him” was not convincing. There was also testimony from witnesses who gave descriptions of the man running from the scene of the crime. In contrast to the situation in Evans, there was sufficient direct evidence of fact before the jury to establish Edmondson’s guilt and no reasonable hypothesis of innocence.

This result is consistent with the well established rule that failure to give the second paragraph of IPI Criminal 3.02 does not require reversal unless it appears that justice was denied or that the verdict resulted from such error. (People v. Jones (1980), 84 Ill. App. 3d 896, 406 N.E.2d 112; People v. Hammers (1976), 35 Ill. App. 3d 498, 341 N.E.2d 471, cert, denied (1976), 429 U.S. 1002, 50 L. Ed. 2d 614, 97 S. Ct. 534.) Therefore, even if we were to assume that all evidence of Edmondson’s guilt was circumstantial and that the trial court erred in not giving the second paragraph of IPI Criminal No. 3.02, his conviction should not be reversed since it does not appear that justice was denied or that the verdict would have differed if the entire instruction had been given. We see no error in this regard.

The defendant’s next contention is that the trial court erred in explaining to the jury why it was granting defendant’s motion for directed verdict on the home invasion charge. The court read the home invasion statute to the jury and then stated:

“This offense, ladies and gentlemen, will not be presented to you for consideration in that it is the opinion of this Court that the State has failed to prove one of the necessary elements of the offense, that is that the Defendant is not a police officer, nor if a police officer, was acting in the line of duty.”

The defendant had objected to allowing an explanation to the jury. He now contends that this statement inferred that the defendant was guilty of the other charges.

This issue was not raised in defendant’s post-trial motion. (Ill. Rev. Stat. 1979, ch. 38, par. 116 — 1.) The general rule is that failure to specifically raise a claim of error in a post-trial motion constitutes a waiver precluding consideration of such issues on review. People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.

When a claim of error has not been so preserved it will only be considered by a reviewing court under the plain error doctrine set forth in Supreme Court Rule 615(a) (73 Ill. 2d R. 615(a)).

The Illinois Supreme Court observed in People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233:

“A significant purpose of the plain error exception to the waiver doctrine is to correct any serious injustices which have been done to the defendant. It therefore becomes relevant to examine the strength or weakness of the evidence against him; if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved. Thus, this court has held that where the evidence is closely balanced, a court of review may consider errors that have not been properly preserved for review.”

In the case before this court, the record and evidence overwhelmingly favor the State. We see no plain error. Defendant asserts that the waiver rule should not be strictly applied because, since his counsel did not have a transcript at the time of the post-trial motion, he expressly stated that he did not intend to waive or limit any claim of error not specifically included. However, the court addressed this issue in People v. Rogers (1975), 32 Ill. App. 3d 788, 790, 336 N.E.2d 784, and held, contrary to defendant’s argument, that to allow such a request would destroy the rationale behind post-trial motions.

Further, even if defendant’s contention was not considered waived, the same issue was resolved against defendant in the analogous case of People v. Davis (1974), 19 Ill. App. 3d 848, 312 N.E.2d 343. Thus, we see no error in this regard.

Defendant next argues that the trial court erred by not ruling on his motion in limine. The motion concerned defendant’s recent convictions for burglary, aggravated battery and intimidation (reduced from rape).

Defendant failed to preserve this issue in his post-trial motion. Therefore this contention will be considered under the plain error doctrine. (73 Ill. 2d R. 615(a).) At the close of the State’s evidence the defendant requested that the judge rule on his motion in limine. The court stated it would withhold ruling until the end of the defense’s cases. Defendant did not object at that time nor did he later request a ruling on the motion. Defendant did not testify. It is well established in Illinois that when a court reserves its ruling on admissibility of evidence, the objecting party must insist upon a later rule or risk waiving its objection unless substantial prejudice results. (People v. Waller (1977), 67 Ill. 2d 381, 367 N.E.2d 1283.) Defendant contends that he was prejudiced by the judge’s refusal to rule on his motion, alleging that this is why defendant did not testify. However, in People v. Leonard (1980), 83 Ill. 2d 411, 423, 415 N.E.2d 358, the Illinois Supreme Court specifically held that this argument is without merit. Thus, defendant’s arguments regarding this issue must fail. We see no plain error.

The defendant next makes three contentions regarding the sentence imposed on him. First he argues that the trial court did not properly set forth the basis for imposing consecutive sentences.

The defendant correctly states that under section 5 — 8—4(b) of Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—4(b)), a trial court is required to set forth its reasons for imposing consecutive sentences. We are of the opinion that this provision has been complied with in the instant case.

Immediately prior to sentencing the trial court stated that it had considered the presentence report and had noted the defendant’s history of prior felony convictions and the arguments of counsel. The court stated:

“That it’s my opinion, by reason of those prior convictions and the convictions in this incident, that Mr. Edmondson has a propensity to commit crimes and is not a suitable candidate for probation with respect to two of the offenses which are probationable.
That the past record of three probations followed in each instance by continued criminal conduct and felony convictions clearly indicates the failure of the efforts to rehabilitate this defendant. Further probation I feel, if it were to be considered, would deprecate the seriousness of the defendant’s conduct and would be inconsistent with the ends of justice.
That, therefore, the imprisonment of the defendant is necessary for the protection of the public.”

The court then imposed a sentence on each crime and stated, “It’s further ordered that the foregoing sentencing be served consecutively.” The trial court reconvened the parties the next day and again stated its reasons for imposing consecutive sentences.

In People v. Johnson (1981), 98 Ill. App. 3d 228, 424 N.E.2d 610, the court faced a similar issue. The defendant alleged that the trial court’s reasons for imposing a term of years did not satisfy the requirements of section 5 — 8—4(b) that a court must be of the opinion that consecutive terms are necessary to protect the public from further criminal conduct by a defendant.

The Johnson court held that to accept defendant’s arguments would result in promoting form over substance and a squandering of judicial resources. (People v. Johnson (1981), 98 Ill. App. 3d 228, 235-36, 424 N.E.2d 610, 617.) The record clearly indicates the court’s opinion that defendant should be imprisoned because of his propensity to commit crimes. We find no error.

The defendant also argues that the court sentenced him pursuant to personal policy rather than statutory guidelines.

Rape is a Class X felony with a minimum sentence of six years and a maximum sentence of 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1.) Furthermore, at defendant’s sentencing hearing the prosecutor repeatedly requested an extended term of 74 years. The court declined to impose an extended sentence, even after determining that the defendant so qualified.

The court then sentenced defendant to determinant terms of five years each on the aggravated battery and robbery convictions. In imposing the sentence for rape the trial court judge characterized the crime as the most reprehensible next to murder, a crime which would leave the victim with a permanent scar. He stated that rape is a crime for which no restitution is possible and that although a Class X crime this had had little effect as a deterrent. The judge stated his belief that there has been an increase in rape and went on to observe:

“That the day may very well come when our society may approve and may even demand more effective punishment too involving the invasion of the body of another, be that victim young or old, male or female.”

The judge then sentenced the defendant to a term of 26 years for rape to run consecutively with the other sentences of 5 years.

Even though the statements of the trial court display the court’s repugnance at defendant’s offense, this does not necessarily constitute prejudice since, as the State points out, this view is shared by the United States Supreme Court which held in Coker v. Georgia (1977), 433 U.S. 584, 597, 53 L. Ed. 2d 982, 992-93, 97 S. Ct. 2861, 2869, that “[s]hort of homicide, it is the ‘ultimate violation of self.’ ” The court’s repugnance could be seen as reasonable under these circumstances. We see no grounds for reversal.

Defendant next contends that his determinant sentence was excessive. We disagree. The correct standard of review in regard to sentencing is whether the trial court abused its discretion in determining the sentence. (People v. Cox (1980), 82 Ill. 2d 268, 412 RE.2d 541.) The sentence imposed was well within the statutory limits. It was not excessive. People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

Defendant’s final contention is that he was denied due process by the State’s failure to produce an inventory receipt. At trial, Officer Lawler was testifying as to the inventory of defendant’s personal property taken from him upon his arrest. He testified that he had defendant sign a list of the items. At this point counsel for the defense objected. Arguing both surprise and prejudice, he moved for a mistrial. Counsel for defense had filed a written discovery motion requesting items inclusive of a property receipt. Defense counsel had not been provided with a copy of the property receipt allegedly signed by Mr. Edmondson. The State responded (1) that the State did not plan on putting the signed property receipt into evidence; and (2) that defense counsel could cross-examine regarding the signed property receipt. The motion for a mistrial was denied and the testimony was allowed to stand although the property receipt was not introduced into evidence.

In People v. Hambrick (1979), 68 Ill. App. 3d 447,386 N.E.2d 455, the Appellate Court for the First District faced a similar issue. In that case the court held that a showing of prejudice is necessary to establish that the introduction of evidence not included in response to discovery constitutes reversible error. The defendant must demonstrate that he was thereby prejudiced. (People v. Green (1976), 42 Ill. App. 3d 978, 356 N.E.2d 947.) Furthermore, the claim of prejudice cannot be founded on mere conjecture. People v. Lewis (1975), 60 Ill. 2d 152, 330 N.E.2d 857.

In the instant matter, even if the signed property receipt had been introduced into evidence the defendant could not convincingly demonstrate that he was thereby prejudiced. The defendant complains that the property receipt established his possession of the coin purse stolen from John Millim. However, defendant’s possession of the coin purse was testified to at trial by at least three police officers. In addition, the coin purse was positively identified at trial by Esther Millim as the one that had been stolen from her husband. Therefore defendant’s contention is without merit.

For these reasons the judgment of the circuit court of Kane County is affirmed.

Affirmed.

SEIDENFELD, P. J., and VAN DEUSEN, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    HERBERT HANSON, a/k/a Herbert N. W. Hanson, Plaintiff and Counterdefendant-Appellee, v. GEORGE C. DUFFY, Defendant and Counterplaintiff-Appellant.
    Second District
    No. 81-614
    Opinion filed May 20,1982.

      Allan Goldberg and Glen Neuman, both of Allan Goldberg, Ltd., of Chicago, for appellant.
    Leo M. Flanagan, Jr., William H. Weir, and Karen J. Johnson, all of Brittain, Ketcham, Strass, Terlizzi, Weir & Johnson, of Elgin, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Herbert Hanson filed a forcible entry and detainer action to recover possession of a commercial building and rents and damages alleged to have resulted from the holding over of the tenant George C. Duffy. Duffy answered and counterclaimed, alleging that he properly exercised an option to purchase provided in the lease, but was wrongfully prevented from completion, seeking specific performance in one count (which he withdrew before trial) and in a separate count claiming damages. In a bench trial, the trial court ruled that the parties’ claims for damages offset each other, and dismissed both the complaint as amended and the counterclaim. Duffy appeals from the dismissal of his counterclaim. Hanson has not cross-appealed.

On March 8,1973, Hanson, who had previously conducted a laundry business on the premises, leased to Union Linen Supply, a commercial laundry, which later adopted the name Libco. The lease was for a five-year term beginning on the date the tenant took possession with a rental of $1,000 per month. The tenant used some of the laundry machinery which Hanson had left on the premises. The lease contained an option to purchase the premises in accordance with an attached purchase agreement for $100,000. The lease provided that if the tenant exercised the option, an amount equal to 30% of all rent paid by the tenant “up to the date of closing” shall be credited on the purchase price. Libco assigned the lease to Duffy on September 7,1977. Both parties agree that Duffy, on September 8, 1977, properly notified Hanson that he would exercise the option to purchase. The dispute as to the option arises from Hanson’s claim that the lease expired on March 8, 1978, and Duffy’s claim that the lease expired on March 26, 1978; and from conflicting claims as to the nature of negotiations between the parties following notice of exercise of the option. The real estate agreement attached to the lease failed to fix a date for closing or provide for payment of interest in the interval between the termination of the lease and the closing of the real estate purchase.

At trial there was evidence of correspondence between the parties through their attorneys between March and July of 1978. It appears that by June 23, 1978, Duffy had waived all earlier objections he had to title and survey, and the parties had agreed upon a purchase price of $75,310.25 in cash, but no progress had been made toward settling the rent or interest, if any, owing from the date of expiration to closing. Hanson believed the delays were caused by Duffy’s inability to procure financing and sought interest at rates varying between 8% and 9 1/4% calculated from March 8,1978. Duffy, believing he was a vendee, refused to pay any rent; he further rejected Hanson’s demands for interest, attributing the delays in closing following the end of the lease to Hanson’s inability to obtain a plat of survey.

Hanson testified that he refused for tax reasons to close when Duffy exercised the option in September 1977. Early in 1978, Duffy “suggested” that payment be made in installments over 2 years; Hanson, however, preferred the contract terms which provided for payment in cash, and declined Duffy’s proposal approximately one month prior to the expiration of the lease. On March 1,1978, Hanson offered Duffy a loan at 91/4% “with two points,” but Duffy refused to pay the two points and said he would pay in cash. He said that because Duffy was still in the process of procuring financing, the parties failed to close on March 8, 1978; the parties thereafter failed to settle on a date for closing. Hanson said that on April 30,1978, Duffy indicated that he still did not have the cash to close. He testified further that title was free of cloud but for 1977 real estate taxes owed by Duffy, and that he was ready to perform when the lease expired but that Duffy did not then or thereafter tender the purchase balance due.

Ben Rifken, the attorney who represented Hanson during negotiations with Duffy and his attorney, testified that the parties, after various calculations, did not agree on a purchase balance of $75,310.25, after deducting an $18,000 rent credit and a security deposit, until June 20, 1978. Rifken testified that by June 5, 1978, Hanson had completed the required survey and, in Rifken’s opinion, was then able to convey good title. He said the sale failed to close after June 20 because the parties could not agree on the rent or interest, if any, owing to Hanson after termination of the lease. In mid-July Rifken and Duffy’s attorney did agree to a compromise whereby the parties would place in escrow the warranty deed and unpaid purchase balance, and Hanson’s claim for rent or interest would.be determined in a lawsuit. The parties, however, did not agree to compromise, and Rifken on cross-examination added that his client, Hanson, in particular wanted a complete and final settlement.

Duffy testified that after conferring with Hanson about paying the balance over two years in installments, he rejected Hanson’s loan offer and chose by March 11,1978, to pay in cash. He admitted that on March 6, 1978, he did not know how much cash he had on hand but added that he intended to raise the funds for closing from selling stock holdings and bonds listed on major exchanges, in addition to the cash then available to him. More than a month later, on April 30,1978, he applied for a $110,000 loan at the Edgewood Bank which approved his application in the amount of $85,000 on June 7 or 17,1978. Interest on the loan was payable quarterly at the prime rate plus two percent floating monthly; Duffy testified that the loan was still good in August 1978. He testified that he was ready, willing, and able to perform on March 23, 1978, which he believed to be the date when the lease terminated. Finally, he testified that by letter of June 21,1978, he waived all objections to title and the plat of survey, other than to Hanson’s continuing demand for rent or interest.

The flurry of correspondence between the parties obscured the question as to who was in actual possession at the end of March 1978. Duffy testified that he had not been on the premises since March 1978. Hanson claimed that Duffy was the tenant. The assignor of Duffy’s interest, vacated the property at the end of March 1978, and at Duffy’s request sent the keys to the premises to Duffy’s attorney, rather than to Hanson. Hanson testified that Union’s lease began March 8, 1978. The manager of the Libco testified, however, that Union went into possession on March 26,1973, and rental payments confirm this.

The trial judge specifically found that the termination date of the lease was March 26, 1978, that Hanson’s demand for rent or interest for the intervening period was improper, that “the evidence is not clear that at any critical time * * * Duffy was ready, willing and able to perform in accordance with the contract” and that “neither party stands blameless.”

I

An option, when accepted and exercised according to its terms, becomes a present contract for the sale of the premises. (Welsh v. Jakstas (1948), 401 Ill. 288, 297.) Upon exercise of the option the former relationship of lessor and lessee terminates and the parties occupy the relationship of vendor and vendee. (Cities Service Oil Co. v. Viering (1949), 404 Ill. 538,554.) Thereafter, the land is regarded, in equity, as the property of the vendee subject to the rights of the vendor under the contract, and the lessor is not entitled to rent thereafter unless the lease expressly so provides. (404 Ill. 538, 554-55). Where there is a failure to specify a time of performance, the law will supply a reasonable time under the circumstances, particularly where time is not made of the essence of the agreement. Bladel v. Carroll (1929), 336 Ill. 168,171.

The finding of the trial judge that the lease terminated on March 26, 1978, is not against the manifest weight of the evidence and will be upheld. When Duffy exercised the option on September 8, 1977, an executory contract for the sale of the premises was complete pending termination of the lease on March 26. After that time the lessor-lessee relationship ceased and the parties’ rights were to be determined by the provisions of the real estate purchase contract attached to the lease. The March 26, 1978, date is a reasonable date from which performance could be considered due under the circumstances since this gave Duffy more than six months from the date of his exercise of the option to secure financing and to tender the unpaid balance.

The finding of the trial court that Duffy failed to tender payment is also not against the manifest weight of the evidence, and we therefore cannot disturb it. (Garrett v. Babb (1975), 24 Ill. App. 3d 941, 944-45.) While Duffy testified that he had sufficient funds available to buy the property there was contrary testimony by Hanson that Duffy told him as late as April 30, 1978, that he did not have the cash to close. It was also clear from the record up to June 7, 1978, that Duffy never went beyond the mere representation that he was ready, willing and able to perform as agreed. A notice that an option will be exercised is not, in itself, a legal tender. (Ortman v. Kane (1945), 389 Ill. 613, 621.) A party has the burden to prove that a tender of payment, to be the equivalent to actual production and tender of the money, is made by one who has the present ability to make the payment. (See Bembridge v. Miller (1963), 235 Or. 396, 404-05, 385 P.2d 172, 176.) Until Duffy obtained the loan commitment, he had not segregated any of his assets so as to be deprived of their beneficial use. (See In re Estate of Krotzsch (1977), 48 Ill. App. 3d 178, 181.) Once Duffy did obtain the loan commitment on June 7, it is apparent that the immediate availability of any money and Duffy’s readiness to close were still conditional in that Duffy was willing and able to perform the sales contract only on his terms. A purported tender is ineffective if made on conditions which the party has no right to attach. See Estreen v. Bluhm (1977), 79 Wis. 2d 142, 255 N.W.2d 473, 482; see also Sullivan v. Burke (1958), 15 Ill. 2d 101, 113-14; Arnold v. Leahy Home Building Co. (1981), 95 Ill. App. 3d 501, 507.

We have considered Duffy’s further argument that, in any event, his tender was excused because Hanson was guilty of an anticipatory breach of contract when he refused to convey unless Duffy paid rent, or interest at a rate unilaterally set by Hanson and above the legal rate of interest.

Initially, we reject Duffy’s claim that Hanson had no right to either interest or rent after the exercise of the option effective on the termination date of the lease. Duffy’s contention that Hanson’s demand for interest was wrongful is against the weight of authority. Although no Illinois case is precisely in point, the equitable rule elsewhere is that under an executory sales contract the vendor is entitled to interest at the legal rate on the unpaid purchase balance from the vendee in possession, even though the vendor has failed to deliver the deed as required, unless the vendee has placed the purchase money beyond his own use, or meanwhile incurred liability for payment of interest to a prospective mortgagee. (See Estreen v. Bluhm (1977), 79 Wis. 2d 142, 255 N.W.2d 473, 481-82; Kreider v. Brubaker (1952), 371 Pa. 279, 283-84, 89 A.2d 502, 504; Volk v. Atlantic Acceptance & Realty Co. (1948), 142 N.J. Eq. 67, 73, 59 A.2d 387,392. See generally Annot., 25 A.L.R.2d 951 (1952); 92 C.J.S. Vendor & Purchaser sec. 260(c) (1955).) The rule derives from an equitable proposition of greater application, long recognized in Illinois, that the vendee should not enjoy beneficial use of both the premises and the purchase money without compensating the vendor for either. (See Atchison, Topeka & Santa Fe R.R. Co. v. Chicago & Western Indiana R.R. Co. (1896), 162 Ill. 632, 653; Rankin v. Rankin (1905), 216 Ill. 132, 141; Bear v. Fletcher (1911), 252 Ill. 206, 221; In re Estate of Krotzsch (1977), 48 Ill. App. 3d 178, 181-82.) Accordingly, the interest accruing to the vendor is not an element of damages awarded for the vendee’s default in failing to pay money when due, but is rather compensation for the vendee’s use of money when the vendee in equity is trustee of the balance for the vendor. See Farnworth v. Jensen (1950), 117 Utah 494, 217 P.2d 571,575; Lund v. Larsen (1946), 222 Minn. 438, 440-41, 24 N.W.2d 827, 828-29.

Hanson wrongfully claimed interest for the period of March 8 to March 26, 1978, and further, did not establish any contractual or legal basis for charging 8-9 1/4 percent interest which he claimed was the rate charged by local banks. However, this was a partial breach, which in our view, did not amount to an anticipatory breach of the contract so as to totally excuse performance by Duffy. Whether a breach is substantial enough to discharge another’s duty to perform is to be decided on “general principles based upon the inherent justice of the matter.” Leazzo v. Dunham (1981), 95 Ill. App. 3d 847, 850. See also Restatement (Second) of Contracts sec. 241, and Comments (1981).

Here, there is no evidence that Hanson committed a total breach of the contract or that Duffy so believed. Hanson did not deny the validity of Duffy’s exercise of the option; he obtained the plat of survey, which was accepted by Duffy; he did not transfer the property or perform any other voluntary act which would make it impossible for him to perform.

No material breach was committed which would excuse Duffy’s tender or performance. Hanson’s demand for rent or interest was made early in the negotiations and did not prevent other performance required under the contract from going ahead; the breach arose from a situation not provided for in the contract, does not appear to have been advanced in bad faith, and involved only approximately $2,000 to $3,000 out of a $100,000 sales price. It should also be noted that Duffy had either constructive or actual possession of the premises for nearly three months rent-free while being able to draw interest or dividends on funds or stocks at his disposal. In these circumstances, we agree with the court’s assessment of the justice of the matter implicit in its finding that “neither party stands blameless.” The breach by Hanson was not a material breach under all the circumstances which would justify the failure of Duffy to perform. See Eager v. Berke (1957), 11 Ill. 2d 50, 55.

II

We also conclude that the trial court’s finding that the parties’ damages are completely offsetting is not against the manifest weight of the evidence. Duffy, in his counterclaim, sought damages of $100,000 for breach of the sales contract. However, the failures of both parties to perform in accordance with their agreement amounted to a waiver of the default by the other. (Cf. Ross v. Danter Associates, Inc. (1968), 102 Ill. App. 2d 354, 361.) Neither party can recover damages for the other party’s breach of contract in the circumstances before us.

As for the claims for damages under the lease, the trial court’s finding that the damages were offsetting appears to be within the range of the evidence. Duffy’s claim for the return of his security deposit in the amount of $5,000 with interest on the deposit and $2,900 in roof repairs would be offset by amounts due Hanson for legal interest between the date of the expiration of the lease by its terms of March 26, 1978, and the date Hanson reentered the premises, stipulated to be October 9, 1978, unpaid property taxes for 1977, and losses or damages to machinery on the premises.

We conclude that the trial court’s refusal to award damages to Duffy was not against the manifest weight of the evidence. We therefore affirm the judgment.

Affirmed.

HOPE and VAN DEUSEN, JJ., concur.


text:
    DEWEY J. PICKLE, Plaintiff-Appellant, v. DR. JOHN R. CURNS et al., Defendants.—(ST. THERESE HOSPITAL, Defendant-Appellee.)
    Second District
    No. 81-472
    Opinion filed May 12,1982.

      Michael S. Danian, of Waukegan, for appellant.
    Stephen R. Swofford and Michael F. Henrick, both of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

This is an appeal from an order which refused to reconsider the dismissal with prejudice of that part of plaintiff’s complaint seeking recovery from defendant St. Therese Hospital for personal injuries and which refused to allow plaintiff to amend his complaint after the dismissal. That part of plaintiff’s complaint seeking recovery from defendants John R. Curns and Barry Storter was not dismissed, and they are not involved in this appeal.

Plaintiff allegedly suffered injuries as a result of electroconvulsive therapy he received at St. Therese Hospital on September 9, 1979. He brought suit against Dr. Storter, who administered the therapy, Dr. Curns, who apparently was a consulting physician, and defendant hospital, which provided the facilities for the treatment along with nursing personnel.

Plaintiff’s first complaint, filed August 19, 1980, was dismissed in favor of the hospital on October 9,1980. He was given leave to amend the complaint, which he did on December 31,1980. The amended complaint was stricken on the hospital’s motion and leave was again given to file an amended complaint. He did so on February 20, 1981, and the hospital moved to dismiss this complaint. The record does not reflect the disposition of this motion to dismiss, but on March 24, 1981, the court granted plaintiff leave to file another amended complaint. This third amended complaint was dismissed on the hospital’s motion on April 7, 1981, this time with prejudice.

On April 29, 1981, plaintiff filed a “Motion for Reconsideration and Leave to Plead Over.” In it plaintiff requested the court to reconsider its order dismissing plaintiff’s last-amended complaint against the hospital and to allow plaintiff to plead over its amended complaint. Attached to this motion was a complaint amending the last dismissed complaint. On June 10,1981, the court denied plaintiff’s motion for reconsideration and leave to plead over with the amended complaint he had tendered on April 29. Plaintiff then appealed.

We first must resolve what matters are before us for review. Plaintiff’s notice of appeal stated that plaintiff appealed the June 10, 1981, order denying his motion to reconsider the dismissal of his third amended complaint and denying leave to plead over. The notice further stated plaintiff sought reversal of the order in favor of the hospital, or in the alternative, judgment in his favor notwithstanding the order or reversal of the order and an opportunity to plead over.

Plaintiff’s appellate brief alludes to allegations in the original and various amended complaints. With the filing of each amended complaint, however, plaintiff waived his right to attack the dismissal of each earlier filed complaint. (Henkhaus v. Barton (1977), 56 Ill. App. 3d 767, 371 N.E.2d 1166.) Therefore the allegations in the original and two subsequent amended complaints are not matters for our review.

The hospital argues that although for the most part plaintiff structures his appellate argument into a defense of his third amended complaint, plaintiff had not specified in his notice of appeal the dismissal of that order as a matter about which he was appealing. Therefore, the hospital contends, plaintiff cannot argue the merits of his third amended complaint.

A notice of appeal must “specify the judgment or part thereof appealed from.” (73 Ill. 2d R. 303(c)(2).) An appellate court may not review a matter not raised as an issue in the notice of appeal unless the deficiency is one of form and not of substance. (In re Estate of Malloy (1981), 96 Ill. App. 3d 1020,422 N.E.2d 76.) We think that, while plaintiff’s notice of appeal should have specified the April 7,1981, order dismissing his third amended complaint with prejudice, the error was merely one of form. The hospital was not prejudiced by the error. It was informed from the notice that plaintiff was appealing the denial of the motion for reconsideration which clearly implied a request for reversal of the dismissal of his third amended complaint. Plaintiff’s appellate brief focuses upon the dismissal of that complaint. We will consider plaintiff’s argument opposing the dismissal of his third amended complaint.

Counts III and IV of plaintiff’s third amended complaint are addressed to the alleged negligence of the hospital. Count III alleged in pertinent part:

“4. That at the time and place aforesaid, the employee, NADINE CASEY, of the Defendant ST. THERESE HOSPITAL, in the course of her employment was guilty of the following negligent and careless acts:
A. Undertook to obtain the consent of Plaintiff for ECT treatment without fully informing him of the probability of side effects and significant risks common to such therapy.
B. Undertook to obtain the consent of Plaintiff for ECT without clearly and in an explicit manner informing the Plaintiff of the reason for such treatment, that is, the nature and seriousness of his illness.
C. Undertook to obtain the consent of Plaintiff for ECT therapy without clearly and fully informing the Plaintiff of the risks of memory impairment and fracture of the spine from such therapy.
D. Undertook to obtain the consent of Plaintiff of the risks of brain damage and fear and panic from such therapy.”

This count alleges that it was the duty of the hospital to inform plaintiff of the risks that attend the administration of electroconvulsive therapy in order to obtain his consent to it. It is true, as plaintiff argues, that a hospital has a duty of care to the patient independent and apart from the duty of the physician to the patient. (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204; Brown v. St. Johns Hospital (1977), 51 Ill. App. 3d 1044, 367 N.E.2d 155.) It has been recognized, however, that informing a patient of a procedure in order that he might make a decision to give or withhold his consent to it is the duty of the patient’s physician. The special relationship between a doctor and his patient “vests the doctor with the responsibility of disclosure [of risks, and] requires the doctor to exercise discretion in prudently disclosing information in accordance with his patient’s best interests.” (Miceikis v. Field (1976), 37 Ill. App. 3d 763,768,347 N.E.2d 320.) Count III was thus properly dismissed for failing to allege a duty owed him by the hospital.

Count IV of the third amended complaint alleges that it permitted electroconvulsive therapy to be performed on plaintiff in violation of its policies, and specifies the omission of certain steps in the administration of the therapy. Count IV in pertinent part states:

“3. That at the time and place aforesaid, the Defendant, ST. THERESE HOSPITAL, allowed DR. BARRY STORTER to administer electroconvulsive treatment in a manner which did not fully comply with the policy of the hospital on providing such treatment so as to constitute negligence on the part of the hospital « « «
4. That at the time and place aforesaid, ST. THERESE HOSPITAL was guilty of the following negligent and careless acts:
A. Failure to administer a muscle relaxant.
B. Failure to physically examine the plaintiff before the administration of such treatment.”

It is recognized that absent a principal-agent relationship the misconduct of a treating physician may not be imputed to a hospital. (Johnson v. St. Bernard Hospital (1979), 79 Ill. App. 3d 709, 399 N.E.2d 198; Hundt v. Proctor Community Hospital (1972), 5 Ill. App. 3d 987, 284 . N.E.2d 676.) Plaintiff’s complaint does not allege a principal-agent relationship exists here, and he does not base this count on that theory.

Plaintiff relies upon Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 410 N.E.2d 969. In that case the plaintiff was found to have stated a cause of action, not through an allegation of vicarious liability, but in an allegation directly charging the hospital with negligence when an emergency room physician allegedly misdiagnosed the plaintiff. The duty allegedly breached by the hospital was the duty to use reasonable care to discern the medical qualifications of persons who perform medical services in the hospital and to review treatment rendered by such persons. (88 Ill. App. 3d 655, 659.) A hospital has a duty to know the qualifications and the standard of performance of the physicians who practice on its premises. To permit a physician on its staff whom the hospital knows or should have known is unqualified or negligent is a breach of the hospital’s duty of due care to its patients. To fail to periodically review staff physicians to determine whether they follow hospital procedures and render proper care would be a breach of a hospital’s duty to its patients. Holton v. Resurrection Hospital.

The hospital is not an insurer of a patient’s safety, but it owes him a duty of protection and it must exercise a degree of reasonable care towards him as his known condition requires. (Slater v. Missionary Sisters of the Sacred Heart (1974), 20 Ill. App. 3d 464, 469, 314 N.E.2d 715.) A hospital can be charged with negligence for failing to review and, in certain instances, supervise the medical care being given under a physician’s care within a hospital. Johnson v. St. Bernard Hospital.

Here, the complaint makes no suggestion that the physician was unqualified or that the hospital failed to review the performance of its staff physicians, by which reviews it would have known the treating physician would not follow its policy with regard to plaintiff. We do not recognize the existence of a duty on the part of the hospital’s administration to insure that each of its staff physicians will always perform his duty of due care to his patient. (Johnson v. St. Bernard Hospital; Hundt v. Proctor Community Hospital.) What plaintiff seeks is a ruling that a hospital must insure that physicians practicing on its premises never commit negligence. We agree with the New York Court of Appeals which stated in Fiorentino v. Wenger (1967), 19 N.Y.2d 407, 415, 280 N.Y.S.2d 373, 378, 227 N.E.2d 296, 299, that, although a hospital may be held liable for malpractice committed on its premises with its knowledge or under circumstances putting it on notice of the performance of wrongful acts, “a hospital will not be held liable for an act of malpractice performed by an independently retained healer, unless it had reason to know the act of malpractice would take place * * Here, the allegation does not allege that the hospital knew or should have known the physician would violate its policy.

The two specific allegations of deviation from hospital policy, that is the failure to administer muscle relaxant and the failure to conduct a physical examination, do not support the contention that the hospital breached its duty of due care to plaintiff. The failure of a hospital to follow its policy can be evidence of a breach of a hospital’s duty to a patient (Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946,16 L. Ed. 2d 209, 86 S. Ct. 1204), but the procedures specified in the complaint are matters within the duty of due care owed by the treating physician, not the hospital. As we stated above, there was no allegation that the hospital knew or should have known that the physician would ignore its policy.

Plaintiff also contends that the third amended complaint was sufficient to support an allegation of res ipsa loquitur. This doctrine must be pleaded before the trial court before it may be raised on appeal. (Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 407 N.E.2d 1067.) Plaintiff does not specifically plead the application of the doctrine. Moreover, reliance upon the doctrine cannot be inferred from the most liberal construction of the complaint.

With regard for the request for leave to file an amended complaint, we conclude that this was correctly denied. A dismissal of a complaint with prejudice is a final judgment, in spite of the fact of a motion to reconsider, which is permissible under section 68.3 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68.3). This section lists permissible post-judgment motions. It has been held that a motion to file an amended complaint is not encompassed by its provisions. (First National Bank v. City of Aurora (1978), 71 Ill. 2d 1, 8, 373 N.E.2d 1326; Fultz v. Haugan (1971), 49 Ill. 2d 131, 273 N.E.2d 403; People ex rel. Endicott v. Huddleston (1975), 34 Ill. App. 3d 799, 340 N.E.2d 622.) Only when there is a need to conform the pleading to the proofs may a complaint be amended after judgment. (Fultz v. Haugan.) The April 7 order dismissing the complaint with prejudice was entered pursuant to defendant’s motion to dismiss. No evidence was presented and thus there was no proof with which to make the complaint conform after judgment. Although the court could reconsider within 30 days, once it denied the motion to reconsider it was without authority to allow an amendment. The court was without authority to allow an amendment of the complaint after judgment and thus it properly denied the motion to plead over.

We conclude plaintiff’s motion for reconsideration and for leave to plead over was correctly denied, and we affirm the order of the circuit court of Lake County.

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HOPE JUSTICE REINHARD,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FREDERICK RODGERS, Defendant-Appellee.
    Second District
    No. 81-109
    Opinion filed June 10,1982.

      REINHARD, J., dissenting.
    Robert Morrow, State’s Attorney, of Geneva (Phyllis J. Perko and William L. Browers, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Randy K. Johnson, of Miller, Feda and Barbosa, of Elgin, for appellee.
   JUSTICE HOPE

delivered the opinion of the court:

The State appeals the dismissal on speedy-trial grounds of an indictment charging defendant with theft of a motor vehicle in violation of section 4 — 103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95M, par. 4 — 103(a)(1)), and theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(d)(1)).

On February 23, 1978, defendant was arrested in Cook County and charged by indictment with possession of a stolen vehicle in violation of section 4 — 103(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1977, ch. 95/2, par. 4 — 103(a)). Defendant was released on bond. On July 18,1978, on the State’s motion the charges were stricken with leave to reinstate. At that time defendant demanded immediate trial. The State never moved for reinstatement of the charges, and on July 31, 1979, defendant’s arrest record was expunged on his motion.

On June 24, 1980, defendant was indicted in Kane County for theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(d)(1)) and possession of a stolen motor vehicle in violation of section 4 — 103(a)(1) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95/2, par. 4 — 103(a)(1)). The indictment concerned the same vehicle involved in the Cook County charges and the parties stipulated that the Cook County matter related to the charges brought in Kane County. On November 12, 1980, defendant filed an amended motion to dismiss the charges in the indictment alleging that as over 160 days had passed since he demanded trial in the Cook County circuit court his statutory right to a speedy trial had been violated (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)). On January 21, 1981, the court dismissed the indictment concluding that defendant’s right to a speedy trial had been violated. The State appeals under Supreme Court Rule 604(a) (73 Ill. 2d R. 604(a)).

The question which we must first address is whether the charge brought in Cook County is the same as those brought in Kane County. If the Cook County indictment does not charge the same offense as those charged in Kane County, then speedy trial considerations do not apply.

It has been held that reindictment following dismissal of a prior indictment for the same offense is a restatement of the State’s original charge and an inquiry into an allegation of a speedy trial violation must consider the time which has elapsed since the first charge. (People v. Jones (1976), 37 Ill. App. 3d 515, 346 N.E.2d 430.) Apparently the same rule applies even when the second indictment is brought in a different county where, as here, the first county had jurisdiction to try the offense. Compare People v. Rogers (1953), 415 Ill. 343,114 N.E.2d 398, where the court held that speedy trial analysis cannot consider the time elapsed between the bringing of a charge in Cook County and the same charge in Lake County because Cook County did not have jurisdiction to try the offense.

The Kane County count charging possession of a stolen vehicle charges defendant with the identical offense for which he was charged in Cook County, except that in the Kane County indictment defendant was charged with possession in Kane County and in the Cook County indictment defendant was charged with possession of that vehicle in Cook County.

The fact that a crime was committed in a particular county is a material averment which must be proved beyond a reasonable doubt. (Ill. Rev. Stat. 1979, ch. 38, par. 1 — 6(a); People v. Toellen (1978), 66 Ill. App. 3d 967, 384 N.E.2d 480.) It might appear that commission of an offense of possession of a stolen vehicle in Cook County and of possession of that same stolen vehicle in Kane County are two distinct offenses for which two prosecutions are permissible. We believe, however, that the principles applicable to prosecuting for theft where the stolen property passes through more than one county have applicability to prosecutions for possession of a stolen vehicle where the vehicle is possessed by a defendant in more than one county. Theft may be prosecuted in any county in which the defendant exerted control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(d)), but a defendant may not be prosecuted for the same theft in more than one county. (People v. Stickler (1975), 31 Ill. App. 3d 977, 334 N.E.2d 475.) We believe these principles apply equally to the offense of possession of a stolen vehicle and conclude that although a defendant has possessed a stolen vehicle in a number of counties only one offense of possession may be charged. We do not think the possession count in the Kane County indictment should be distinguished from the Cook County charge for possession of the same vehicle. We conclude that the Kane County charge is a restatement of the original Cook County charge and that an inquiry into defendant’s allegation of a speedy trial violation must consider the time which has elapsed since the first charge. See People v. Jones; People v. Rogers.

We also conclude that the Kane County charge against defendant of theft by possession of stolen property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(d) (1)) must be considered in our speedy trial analysis. When a new and additional charge arises from the same facts as did the original charge and the State knew of these facts at the time of the initial indictment, the time within which trial is to begin on the additional charges is subject to the same statutory limitation that is applied to the original charges. (People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840; People v. Parker (1978), 59 Ill. App. 3d 302, 375 N.E.2d 465.) The parties stipulated that the Cook County and Kane County indictments involved the same matter. The trial court found that the indictments arose from the same facts. Speedy trial considerations thus are applicable to both the charge of theft and the charge of possession of a stolen vehicle.

Next we must consider whether the Kane County indictment brought more than two years after the Cook County indictment and over 160 days after defendant demanded a speedy trial violated defendant’s right to a speedy trial

The State argues that defendant was not on bail during the time between his demand for trial and his indictment in Kane County and that therefore his July 18, 1978, demand for trial in the Cook County circuit court had no effect. The State had not raised this argument in the circuit court. A party waives consideration on appeal of a theory it had not raised below. People v. McAdrian (1972), 52 Ill. 2d 250, 287 N.E.2d 688.

Even were we not to consider State’s argument as waived we would conclude that defendant’s statutory right to a speedy trial required dismissal.

A defendant is guaranteed a speedy trial by State statute (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5) and both the Illinois and Federal constitutions (Ill. Const. 1970, art. I, sec. 8; U.S. Const., amend. VI). Defendant contended before the Kane County circuit court that under the speedy trial statute he was entitled to dismissal of the charges against him because he had demanded a trial over 160 days earlier in Cook County. The trial court order dismissing the charges did not specify whether it did so on statutory or constitutional grounds, although in announcing its decision the court indicated that it made its decision on constitutional grounds.

We believe that dismissal of the charges was required by statute.

Section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5) provides in pertinent part:

“(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial # #
(d) Every person not tried in accordance with subsections (a), (b) and (c) of this Section shall be discharged from custody or released from the obligations of his bail or recognizance.”

The striking of a charge with leave to reinstate does not discharge defendant from the indictment or terminate the proceedings against him and prosecution of the charge may be reinstated on the State’s motion. (People v. Bryant (1951), 409 Ill. 467, 100 N.E.2d 598.) The speedy trial statute is not tolled by the striking of a charge with leave to reinstate and the charge must be dismissed on motion by defendant if more than the amount of time allowed by statute passes and none of the delay is attributable to defendant. People v. Baskin (1967), 38 Ill. 2d 141, 230 N.E.2d 208; People v. Sanders (1980), 86 Ill. App. 3d 457,407 N.E.2d 951; People v. Garcia (1978), 65 Ill. App. 3d 472, 382 N.E.2d 371.

A copy of defendant’s arrest record for the Cook County charge indicates that he was released on bond prior to his July court appearance when the State moved for leave to have the charge stricken and he made his demand for trial. Defendant therefore made his demand for trial while on bail in accordance with the statute (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)). The record does not disclose that he was released from the obligation of his bail before 160 days passed. It would be exceptional for one charged with an offense to be released from all constraints on his freedom while the charges are still pending. Apparently the Cook County charge was pending against defendant until he moved to have his arrest record expunged on July 31, 1979, over a year after he demanded trial. There is no reason to believe that defendant was released from the obligations of bail before the passage of 160 days from his trial demand. We will not accept the State’s argument that defendant was not on bail. We conclude that having demanded trial on the Cook County charge defendant was entitled to dismissal of the Kane County indictment.

We conclude that the trial court correctly dismissed the charges on speedy trial grounds. Accordingly we affirm the judgment of the Kane County circuit court.

Affirmed.

UNVERZAGT, J., concurs.

JUSTICE REINHARD,

dissenting:

I respectfully differ from my colleagues’ analysis of both the issues involved in this appeal and am compelled to dissent. On a motion for discharge under section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5) the defendant has the burden of affirmatively establishing facts which show a violation of his rights under the section. (People v. Beyah (1977), 67 Ill. 2d 423,427, 367 N.E.2d 1334; People v. Cunningham (1979), 77 Ill. App. 3d 949, 951, 396 N.E.2d 876; People v. Behning (1970), 130 Ill. App. 2d 536, 539, 263 N.E.2d 607, appeal denied (1971), 45 Ill. 2d 591.) If a defendant in a motion for his discharge under the statute relies upon facts dehors the record, such facts must be preserved in the record; otherwise the court will not recognize such facts as existing. (People v. Tamborski (1953), 415 Ill. 466, 473, 114 N.E.2d 649.) As the defendant has the burden to affirmatively show that he comes within the terms of the statute, the State cannot be deemed to have waived this requirement even though it failed to precisely articulate this before the trial court. Thus, finding nothing in the record to show that the defendant was on bond or recognizance while the charge remained on SOL status in Cook County, the crucial question then becomes whether section 103 — 5 is applicable in SOL cases where the defendant is not on bond or recognizance.

Section 103 — 5 expressly applies to persons either “in custody” or “on bail or recognizance.” (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5; People v. Leannah (1981), 94 Ill. App. 3d 628, 629-30, 418 N.E.2d 1054.) The majority opinion cites People v. Baskin (1967), 38 Ill. 2d 141, 230 N.E.2d 208; People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951; and People v. Garcia (1978), 65 Ill. App. 3d 472, 382 N.E.2d 371, appeal denied (1979), 72 Ill. 2d 582, as precedent for its position that the speedy trial statute is not tolled by the striking of a charge with leave to reinstate. In my opinion, a closer examination of these authorities does not warrant such a conclusion. In Baskin the defendant was “on bond at all times subsequent to the filing of the complaint.” (38 Ill. 2d 141,145, 230 N.E.2d 208.) Sanders involved a nolle prosequi, not an SOL, and furthermore held that the speedy trial provisions did not apply once a charge was nolle prossed. Similarly, Garcia held that the time provisions of section 103 — 5 cease to run if defendant is discharged after a finding of no probable cause. A case which does support the majority viewpoint is People v. Bauer (1979), 70 Ill. App. 3d 537,388 N.E.2d 1013. However, the authority relied upon by the Bauer court was People v. Baskin, which I have already referred to above as inapposite to the facts here since the defendant in Baskin was on bond.

There is nothing in the record which sets forth the current SOL procedure used in Cook County. SOL is not a statutorily authorized procedure but apparently is used in Cook County and some other jurisdictions as a procedural device to avoid having to nolle pros and then refile a new information or indictment; instead, the original charge may be reinstated upon the State’s motion. (See People v. Kidd (1934), 357 Ill. 133,191 N.E. 244; People v. Sanders (1980), 86 Ill. App. 3d 457, 467, 407 N.E.2d 951.) While such a procedure appears to be mainly an administrative method which avoids the necessity of filing an additional charge and the opening of a new case, a SOL also is significantly different from a nolle prosequi since a charge still continues to lie against the defendant, albeit in a dormant state. Yet even if a charge still is technically pending in the SOL procedure, the relevant provisions of section 103 — 5 plainly apply only to persons “in custody” or “on bond or recognizance.” Had the legislature intended section 103 — 5 to apply to cases where charges alone pend against a defendant, it could have expressly so provided. The evil intended to be prevented by the speedy trial provision is wrongful incarceration and restriction under bail or recognizance rather than wrongful accusation.

For the foregoing reasons, I would reverse the judgment below and reinstate the two dismissed counts. As my dissent from the majority opinion on this basis alone would require reversal, it is unnecessary for me to further lengthen this dissent by separately analyzing whether the charge brought in Cook County is the same as that brought in Kane County. It suffices to point out that from this record I cannot subscribe to the majority’s conclusion that the defendant has met his burden to show that he was charged in Kane County for the same offense on the same date for which he was charged in Cook County, nor do I concur in their analysis of the legal principles applicable in prosecution of theft by obtaining control over stolen property where such occurs in more than one county.


text:
    WILLIAM E. FRANK et al., Plaintiffs-Appellees, v. THE VILLAGE OF BARRINGTON HILLS, Defendant-Appellant.
    Second District
    No. 81-385
    Opinion filed June 2,1982.
    Rehearing denied June 24,1982.

      R. Marlin Smith and Wendy U. Larsen, both of Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellant.
    Joseph C. Owens, of Chicago, for appellees.
   JUSTICE HOPE

delivered the opinion of the court:

Defendant, the village of Barrington Hills, appeals from an order of the McHenry County circuit court disconnecting plaintiffs’ property from it. The village takes issue with the sufficiency of the evidence but also questions the procedure by which the Franks sought to correct the errors allegedly contained in the transcript of the trial.

Disconnection was sought pursuant to section 7 — 3—6 of the Illinois Municipal Code (Ill. Rev. Stat. 1965, ch. 24, par. 7 — 3—6), which provides that owners of land within a municipality may have such territory disconnected if it meets certain requirements. The parties’ dispute arose over two of these: the territory may not be “contiguous in whole or in part to any other municipality”; and if the territory is disconnected, “the growth prospects and plan and zoning ordinances, if any, of such municipality will not be unreasonably disrupted.” Ill. Rev. Stat. 1965, ch. 24, par. 7 — 3—6(1), (6).

Before we turn our attention to the findings of the court’s final order regarding these two requisites, we must first consider whether it was proper to permit the filing of what the village describes the Franks’ “second post-trial motion” requesting amendment of the transcript.

The history of this action begins on October 19, 1966, when the Franks filed a petition seeking disconnection of 82.75 acres from the village. A hearing was held on the petition on April 28, 1972. On August 23, 1973, the court dismissed the petition and on February 8, 1974, the court entered judgment for the village. The order entering judgment stated that the Franks failed to prove that if the tract were disconnected the growth prospects and the planning and zoning ordinances of the village would not be unreasonably disrupted. The court added that it made no finding as to whether the tract was contiguous to another municipality.

On March 8, 1974, the Franks filed a post-trial motion. In it they argued that there was substantial evidence that disconnection would not unreasonably disrupt the growth prospects and zoning and planning ordinances of the village. The Franks also contended that there was sufficient evidence to show their property was not contiguous with another municipality.

On August 3,1977, the trial court circulated to the parties a document entitled “Rulings” denying the Franks’ post-trial motion. In this document the court noted that the statute requires that growth prospects and planning and zoning ordinances must not be “unreasonably disrupted.” The court noted that an expert witness had testified on behalf of the Franks that disconnection would not “disturb” the growth of the village. The court suggested it found the evidence lacking because the witness stated growth would not be disturbed, instead of using the statutory word, disrupt. The court added, however, that the witness gave an opinion only on the effect disconnection would have on the village’s growth and not on its planning and zoning ordinances. The court then stated that considering the growth and the planning and zoning ordinances separately it found the weight of the evidence is that growth prospects would not be disrupted. However, it found the Franks had presented no evidence that the planning and zoning ordinances would not be unreasonably disrupted. The court found that the Franks failed to prove that “if disconnected, the growth prospects and plan and zoning ordinances ” * e, of such municipality will not be unreasonably disrupted.” Ill. Rev. Stat. 1965, ch. 24, par. 7 — 3—6(6).

The court then made a finding about contiguity of the property with another municipality. It found the boundary of the Franks’ land joined the boundary of the village of Algonquin for 40 to 50 feet within the intersection of Algonquin and County Line (Lake-Cook) Roads. Aside from the common boundary in the roadway the only contact between the village of Algonquin and the Franks’ property was at a corner. The court found that the property was not contiguous with the neighboring municipality.

The court concluded that it was not shown the growth prospects and zoning and planning ordinances would not be unreasonably disrupted and ruled “The post trial motion is denied and the evidence stands dismissed.” The court added, “Counsel for the village is requested to furnish for entry by the Court, a final order.”

In September 1979 the attorney for the village withdrew and the firm presently representing it was substituted. On October 10,1979, the village moved that the court enter an order denying the Franks their 1974 post-trial motion. That same day the Franks filed without notice a document entitled “Answer to Motion to Enter Judgment and Petition.” The petition requested reconsideration of the August 3, 1977, ruling, alleging that the court reporter had discovered an error in a transcript of the hearing: what had been transcribed as “disturb” in the witness’ testimony should have been “disrupt.” The testimony of plaintiffs’ expert witness, therefore, should have read that “[disconnection] in no way would disrupt said growth.” Submitted with the petition was an affidavit by the court reporter acknowledging the error.

On October 10,1979, the court entered its “Final Judgment.” Having considered the Franks’ post-trial motion and having reviewed the record the court found that the growth prospects and planning and zoning ordinances of the village would not be unreasonably disrupted by disconnection of the property, and that the property was not contiguous with any other municipality. The court did not state whether it considered the transcript of testimony as originally transcribed or as “corrected” by the court reporter’s affidavit. The court then ordered the Franks’ property disconnected from the village.

The village filed a post-trial motion on November 9, 1979, contending that the court had no jurisdiction to consider the Franks’ October 10, 1979, “Answer to Motion to Enter Judgment and Petition” and that even if the court had such authority and considered the record as “corrected” the manifest weight of the evidence still did not favor the Franks’ position.

The court denied the village’s motion and the village then appealed.

The village argues that the trial court erred by considering the Franks’ “second post-trial motion” as the village calls it, of October 10, 1979, entitled “Answer to Motion to Enter Judgment and Petition”; that the court erred in considering the court reporter’s affidavit regarding her error; that the court erred in reversing its prior ruling and finding that the village’s planning and zoning ordinances would not be disrupted; and finally, that the court erred in finding the Franks’ property was not contiguous with the village of Algonquin.

The village argues that the trial court’s August 3,1977, “Rulings” was a final judgment addressing the Franks’ 1974 post-trial motion. It further argues that the October 1979 “Answer to Motion to Enter Judgment and Petition” was an impermissible second post-trial motion, which a court has no authority to consider.

Clearly, one may not file successive motions to reconsider a judgment, each filed after the denial of the previous one. Rose v. Centralia Township High School District No. 200 (1978), 59 Ill. App. 3d 606, 375 N.E.2d 1039.

The “Rulings” of August 3, 1977, announcing the court’s decision regarding the Franks’ 1974 post-trial motion is not a final judgment, however. Supreme Court Rule 272 (36 Ill. 2d R. 272) provides that “If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed.” Here the court in its “Rulings” stated its decision with the words, “The post trial motion [of March 1974], is denied and the evidence stands dismissed.” The court added, however, that “[c]ounsel for the village is requested to furnish for entry by the Court, a final order.” This last sentence shows that the “Rulings” was not a final order.

The announcement of a judgment, without that judgment being yet filed, does not lessen the trial court’s jurisdiction to consider other motions or to enter other orders or judgments. (Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App. 3d 381, 383-84, 405 N.E.2d 379.) A trial court is recognized to have the discretionary power to allow a party to amend or supplement its post-trial motion with additional issues. City of Chicago v. Greene (1970), 47 Ill. 2d 30, 264 N.E.2d 163, cert, denied (1971), 402 U.S. 996, 29 L. Ed. 2d 162, 91 S. Ct. 2180.

The village argues that nonetheless the Franks’ “Answer * * * and Petition” should not have been considered because the village never received notice of it and there was no hearing on it.

In Chicago, Milwaukee & St. Paul Ry. Co. v. Walsh (1894), 150 Ill. 607, 37 N.E. 1001, the supreme court stated that after the term in which the record was made had expired an amendment to a record can be made only by bringing the parties into court by the service of proper notice.

In People v. Flannigan (1947), 398 Ill. 55,57-58,74 N.E.2d 801, where a party sought amendment of the certified transcript of the record the supreme court stated the rule on obtaining amendments to court records:

“It has repeatedly been held that court records are so conclusive and final that the existence of the record or facts recited therein cannot be contradicted or impeached by the affidavits of persons, either parties to the record or bystanders, or by the notes of a stenographer who reported the proceedings, or on the memory of the judge who presided when the record was made. [Citations.] The record as furnished in the transcript stands as the record of the court until it has been properly corrected. 000 Where the application is to amend the record of a judgment finally recorded, after the term of the rendition and entry of the judgment, there must be official memorandum made at the time of the proceedings from which the actual evidence of the prior proceeding can be clearly ascertained and known. A proper petition to the court to redocket the case with a full hearing would enable the court to determine from exhibits and documentary evidence, and from a complete investigation as to whether or not the minutes, notes or memorial paper appearing of record would justify a corrected judgment to show the real judgment in fact rendered. If there be an adverse ruling, an appeal might be taken from the order, while, on the other hand, if the suggested correction was shown, the judgment as corrected would stand and would come to [the reviewing] court properly certified for consideration on the common-law record.”

See also People ex rel. Sweitzer v. City of Chicago (1936), 363 Ill. 409, 2 N.E.2d 330; People v. Ambolo (1931), 343 Ill. 480,175 N.E. 776; People v. Fulimon (1923), 308 Ill. 235,139 N.E. 396.

The basis for any change made by or under the direction of the court must come from minutes, notes or other documents that have remained in the possession of the court. (People v. Weinstein (1921), 298 Ill. 264, 271-72, 131 N.E. 631.) The amendment of a record cannot rest upon the recollection of the judge or other persons or be based upon ex parte affidavit or testimony. People v. Weinstein.

Final judgment was rendered in the trial court on February 8, 1974. We think the fact that post-trial motions were filed and considered thereafter does not alter the rule that any decision upon a proposal to amend a record after judgment must be made pursuant to a hearing and the examination of documents, notes or other records in the court file. We think that particularly in a case such as this, where the post-trial proceedings were protracted for years, and where the party urging amendment sought a judgment to be altered to its favor on the basis of the proposed amendment, any procedure to amend a transcript must involve a hearing in which the court would determine from documents and notes kept in its files whether amendment of the transcript is warranted. The affidavit from the court reporter is insufficient basis for an amendment.

There was no hearing; in fact the court did not enter any order addressing the Franks’ motion. We do not know whether the court considered the transcript as originally rendered, or in “amended” or “corrected” form.

Although we conclude that a hearing must be held when a party seeks amendment of a record we think that here, where the proposed change involves only the substitution of the word “disrupt” for the similar term “disturb”, we can review the October 10, 1979, order with a view to whether it is supported by the manifest weight of the evidence. The use of the one or other word does not affect the weight of the evidence. If disconnection would not “disturb” the growth of the village, it surely would not “disrupt” it, either.

A map of that part of Barrington Hills containing the Franks’ property and showing how the Franks’ property adjoins the village of Algonquin is provided below:

The evidence shows that the village is planned and zoned mainly for large lot residences. The smallest permissible residential lot is one acre. Most of the area zoned for residences is zoned for five-acre or larger estates. Plaintiffs’ land is zoned in this way. A very small area is zoned for business and light industry. A planning and zoning consultant who testified for the village estimated that less than .5 percent of Barrington Hills is not residential.

The Franks’ land projects westward from the village. Land to the north, west and south of their land is unincorporated. The eastern edge of the parcel is bounded by Haegers Bend Road, an extension of Route 25. The southern boundary is in Lake-Cook Road. A city planning and zoning consultant testifying for the Franks estimated that the property consisted of .5 percent of the area of the village. If the property were disconnected county zoning would apply, and the Franks’ property could be used for 10,000 square-foot residential lots.

There is some commercial development along Algonquin Road, to the south and west of the property, and some light industry is to be found northwest of the property. There is little development in the village to the east of the Franks’ property.

The village clearly planned for a low-density slow-growth community. The village also apparently fears a growth of commercialization on its border should the property be disconnected. The evidence shows that under the county zoning ordinance, which would apply to the Franks’ property if it were rendered unincorporated land, the property would be zoned for 10,000-foot residential lots. Fears of commercialization appear unfounded. The density will, of course, be much greater than allowed by the village but disconnection would result in the five-acre zoned land to the east to be separated from the Franks’ land by Route 25, a logical dividing line. The growth of the village will clearly not be disrupted; the village plainly is not interested in a great increase in population. Moreover, as the property is zoned for five-acre residential parcels, at most the village would be potentially deprived of only 16 families.

We conclude also that the manifest weight of the evidence shows that the zoning and planning of the village will not be disrupted. The zoning map of the village shows over 90 percent of the land within the village is zoned for five-acre or greater residential parcels; the disconnection of the Franks’ land will remove a minute portion of the land so zoned. Further, the property is not zoned for use that would be unique in the village. The loss of the Franks’ land would not materially alter the proportions of village lands classified for various uses. Disconnection would take a small part of the village’s residential land, not a large proportion of the land planned for business, commercial or industrial uses. The planning and zoning of the village, therefore, would not be unreasonably disrupted by the disconnection of this property.

The village also disputes the court’s finding that the property was not contiguous with another municipality. The southwest corner of plaintiffs’ property extends into the intersection of Lake-Cook and Algonquin Roads. The village of Algonquin extends southeasterly down Algonquin Road, meeting the Franks’ property within the intersection for a short distance along the Franks’ western boundary. In his testimony William A. Frank admitted that he did not know the extent of the common boundary between his property and the village of Algonquin. Surveys of the property admitted into evidence show that the property extends southward to about the middle of Lake-Cook Road. The western boundary of the property adjoins the boundary of the village of Algonquin at the intersection for only the short distance from the edge of Algonquin Road southward to approximately the middle of Lake-Cook Road. Defendant argues that this common boundary makes the property contiguous with the village of Algonquin and thus makes disconnection impermissible.

Contiguity exists where tracts of land touch or join in a “reasonably substantial physical sense; * * * the line of demarcation between the reasonableness or unreasonableness of a contiguity must be determined on the facts of each case.” (In re Annexation to Village of Downers Grove (1981), 92 Ill. App. 3d 682, 684-85,416 N.E.2d 292; Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 352, 167 N.E.2d 169.) A substantial common boundary or common border of reasonable length satisfies the requirement of contiguity. (People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App. 2d 275, 256 N.E.2d 653; Wescom, Inc. v. Woodridge Park District (1977), 49 Ill. App. 3d 903, 364 N.E.2d 721.) The situation at the time of the hearing controls when determining for the purpose of disconnection whether two pieces of property are contiguous. (In re Village of Capitol Heights (1968), 41 Ill. 2d 256,258,242 N.E.2d 247.) The finding of the trial court as to contiguity or the lack of it will not be disturbed on review unless it is contrary to the manifest weight of the evidence. In re Annexation to Village of Downers Grove.

Adopting a “commomsense interpretation as to whether the tracts are contiguous as contemplated by the legislature” (People ex rel. Gray v. Village of Hawthorn Woods (1960), 19 Ill. 2d 316, 318, 167 N.E.2d 176), we conclude that the court’s determination that a common boundary whose length is no more than one-half the width of Lake-Cook Road does not make the property and the village of Algonquin contiguous is not against the manifest weight of the evidence.

The village points out that strips of land 50-feet wide and 33-feet wide were not found to be isolated from a village when another piece of land was disconnected, leaving the strips projecting outward from the village. (La Salle National Bank v. Village of Willowbrook (1963), 40 Ill. App. 2d 359, 189 N.E.2d 690.) To find that narrow strips of land 33 feet and 55 feet wide are not isolated from the rest of a village is different from finding that 30 or 50 feet of common boundary fits the description of contiguity: a “substantial common boundary.” (People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App. 2d 275, 284, 256 N.E.2d 653.) A determination that the narrow strips were not isolated is not necessarily a determination that a common boundary of those lengths would permit annexations or disconnections at those points. But cf. In re Village of Buffalo Grove (1970), 128 Ill. App. 2d 261, 268 n.l, where contiguity and nonisolation were likened to each other.

In People ex rel. Gray v. Village of Hawthorn Woods (1960), 19 Ill. 2d 316, 167 N.E.2d 176, two parcels of property joined by a common boundary of 128.7 feet were found to be contiguous. In People ex rel. Cherry Valley Fire Protection District v. City of Rockford (1970), 120 Ill. App. 2d 275, 286, 256 N.E.2d 653, a shared boundary of 20 feet was not a “substantial common boundary.” Here the trial court determined the short boundary between the Franks’ property and the village of Algonquin was not substantial enough to make them contiguous. We do not think this determination is against the manifest weight of the evidence.

We conclude that the findings that the conditions for disconnection were met are not against the manifest weight of the evidence, and we accordingly affirm the judgment of the McHenry County circuit court.

Affirmed.

UNVERZAGT and VAN DEUSEN, JJ., concur.


author: JUSTICE STOUDER

text:
    CRAIG E. THOMPSON, Plaintiff-Appellee, v. WALTER B. PLATT, JR., Defendant-Appellant.
    Third District
    No. 81-492
    Opinion filed March 19, 1982.
    Burrell Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellant.
    Lyle W. Allen and William J. Bryan, both of Heyl, Royster, Voelker & Allen, of Peoria, and Bernard G. Stutler, of Knoxville, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court;

The plaintiff, Craig E. Thompson, brought the instant action in negligence against the defendant, Walter B. Platt, Jr., in the circuit court of Knox County. Platt denied the allegations and moved for summary judgment, alleging that the plaintiff was contributorily negligent as a matter of law. On November 5,1980, the circuit court granted the motion and entered judgment in favor of the defendant, finding that no question of fact existed and that the plaintiff was contributorily negligent as a matter of law. On November 21, 1980, the plaintiff filed a motion to reconsider, arguing that a material question of fact remained to be answered. While the motion stood pending, the Illinois Supreme Court in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, rejected the common-law doctrine of contributory negligence and adopted comparative negligence. Two months later the circuit court set aside the judgment in favor of the defendant, saying: “[Alvis] has resurrected this case from the graveyard. The court finds that as a matter of law contributory negligence no longer bars recovery under the comparative negligence doctrine.” We then granted the defendant’s motion for leave for interlocutory appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308).

In the landmark case of Alvis v. Ribar, the supreme court declared that the doctrine of comparative negligence was to replace contributory negligence as follows:

“We hold that this opinion shall be applied to the parties before us on appeal and to all cases in which trial commences on or after June 8,1981, the date on which the mandate in this case shall issue. This opinion shall not be applicable to any case in which trial commenced before that date — except that if any judgment be reversed on appeal for other reasons, this opinion shall be applicable to any retrial.” (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28, 421 N.E.2d 886, 898.)

The sole issue presented for review is whether Alois applies to a cause in which summary judgment has been entered prior to June 8, 1981, but in which a motion to reconsider remains pending.

The plaintiff would equate the above quoted language of Alois as requiring the doctrine of comparative negligence to be applied to any cause in which judgment has not become final before June 8, 1981. He specifically contends that, because he moved to reconsider within 30 days after entry of judgment (Ill. Rev. Stat. 1979, ch. 110, par. 68.3), the judgment did not become final until the motion was heard, nearly eight months from the time it was filed and two months after the date of Alois’ mandate. Although we agree that the plaintiff’s post-trial motion postponed the effective date of judgment, we find nothing in Alois to support his argument that the date of final judgment determines whether Alois is to be applied. The opinion makes no reference to the date on which judgment becomes final. On the contrary, Alois expressly declares that its holding does not apply to any cause in which trial commences before June 8, 1981. Clearly, the operative occurrence is when trial actually begins, not when the trial court’s judgment becomes final, as the plaintiff argues. Had the supreme court intended to effect the plaintiff’s argument, it easily could have done so. But it did not. The court’s language is clear and unambiguous; we are bound accordingly.

Moreover the fact that the circuit court disposed of the cause by summary judgment instead of by trial does not affect our ruling that the court erred in applying Alois. As we recently said in Hulett v. Central Illinois Light Co. (1981), 99 Ill. App. 3d 211,424 N.E.2d 1366, a motion for summary judgment is the procedural equivalent of a trial. Here, following the equivalent of a trial, the court granted summary judgment in the defendant’s favor on November 5,1980, before the date of Alois. Thus the court erred in applying Alois. Nevertheless, we remand the cause to the circuit court to consider the other arguments submitted in the plaintiff’s motion for reconsideration for, although they were presented, the court apparently made no ruling on them.

For the foregoing reasons, we reverse the order setting aside judgment in the defendant’s favor and remand the cause to consider the merits of the plaintiff’s November 21,1980, motion to reconsider.

Reversed and remanded.

ALLOY and HEIPLE, JJ., concur.