author: MR. JUSTICE DAVIS

text:
    Vito Fiore and Della Fiore, His Wife, Plaintiffs-Appellees, v. City of Highland Park, a Municipal Corporation and Body Politic of the State of Illinois, Defendant-Appellant.
    Gen. No. 67-130.
    Second District.
    March 6, 1968.
    Rehearing denied April 4,1968.

      Thomas H. Compere, Corporation Counsel, of Highland Park (Berle L. Schwartz, Assistant Corporation Counsel, of counsel), for appellant.
    John F. Grady, of Waukegan, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

After giving due consideration to the peripheral contentions advanced by the appellant City, we are of the opinion that the issue on this appeal is whether the decree below conforms to the mandate of this court in Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323 (1966).

In that case the plaintiffs’ basic contention was that their property was rendered virtually useless by the G-l zoning, herein called O & R (Office and Research), and that such zoning ordinance bore no substantial relationship to the public welfare. The restrictive effect of defendant’s O & R zoning restrictions was graphically portrayed by the exhibit set forth on page 70 of the opinion which indicated the size and location of O & R buildings permitted under such ordinance with reference to plaintiffs’ land and the adjoining properties. At page 73 we stated:

“It is fair to conclude from the record that there is a need for additional apartment facilities in the community. . . . Clearly, in view of the apparent lack of need and interest in O & R land in the community, coupled with the severe effects of the setback restrictions on plaintiffs’ land, there cannot be anticipated any reasonably immediate use of plaintiffs’ land for O & R purposes. Under these circumstances, the zoning classification given plaintiffs’ land serves no public purpose and most certainly deprives the plaintiffs’ land of considerable value.”

And at page 74, the court considered the City’s contention that the plaintiffs’ land was equally suitable for single-family residential development, in these words:

“Such fact, if true, would not be determinative of any issue in this case. When the plaintiffs first sought to have their property rezoned, it was zoned for single-family residential use. Had the property remained so zoned, the validity of such zoning, measured by the standards to which we have referred, would properly have been an issue in determining whether the plaintiffs’ petition was rightly denied. By the time this matter came to trial, however, the legislative body had already made a determination as to the classification of this property. It had decided that it was in the interest of the general welfare that this land be zoned O & R — not single-family.”

We there held that insofar as the trial court decreed that the single-family zoning restriction was void as applied to plaintiffs’ land, its decree was obiter dicta and invalid; and that the further part of the decree which provided that “The defendant is hereby ordered to permit the said portions of plaintiffs’ property to be used for multiple-family dwellings under the classification ‘F’ of the Highland Park Zoning Ordinance . . . ,” was likewise improper and void in that it was too broad. It was our belief, and we stated, that the most that a court may do after declaring an existing zoning ordinance void as applied to certain property is to find that the specific use contemplated by the owner is reasonable and may be permitted.

At pages 76 and 77 we stated:

“In the case at bar, the plaintiffs presented evidence as to the nature of the apartment complex they intended to construct on these premises. The decree of the trial court should be framed with reference to the evidence of this intended use and permit such use only, rather than any permitted under the applicable multiple-family zoning restriction. If the court finds that such evidence is not sufficient to enable it to intelligently frame its decree, it should hear additional evidence pertinent to such use.
“That part of the decree of the trial court which declared the existing zoning void, as applied to the property in question, is affirmed; and that part of the decree which adjudged the single-family zoning restriction void as applied to plaintiffs’ land, and which ordered the defendant to permit the said portions of plaintiffs’ property to be used for multiple-family dwellings under the *F’ classification of the zoning ordinance, is reversed; and the cause is remanded to the trial court with directions to frame its decree pertaining to the permissive use of the land in question with reference to the evidence of plaintiffs’ contemplated use and to hear further evidence in this regard, if necessary.
“Affirmed in part and reversed in part; and remanded with directions.” (Emphasis ours.)

On November 16, 1966, while the Petition for Rehearing was still pending before this court, the City published a notice that a hearing would be held before the Plan Commission on December 6, 1966, for the purpose of considering a rezoning of plaintiffs’ property back to a single-family classification. The Petition for Rehearing was denied on November 30, 1966. The scheduled “hearing” before the Plan Commission was held on December 6, 1966, at which time the plaintiffs appeared by their counsel, and filed objections to the jurisdiction of the Plan Commission to take any action with respect to the property. No witnesses appeared at the “hearing,” no one spoke in favor of the “rezoning,” and the Plan Commission simply announced that it would take the matter under advisement.

Meanwhile, the City filed a Petition for Leave to Appeal to the Supreme Court, and there again sought to uphold the validity of the “O & R” Zoning Ordinance. The plaintiffs answered this petition and, on March 28, 1967, the Supreme Court denied it. Thereafter, on April 10, 1967, the City passed an ordinance purporting to “rezone” plaintiffs’ property back to the same single-family classification it had in 1963. On May 18, 1967, the trial court entered its supplemental decree, providing for a specific type of multiple-family use for the property and holding that the ordinance of April 10, 1967, purporting to rezone the property to single-family, was invalid.

On this appeal the City contends that under the doctrine of separation of powers between the three branches of government, the courts do not have the power to prevent an act of legislative discretion by a City Council exercised pursuant to a specific grant of authority from the state legislature; that the General Assembly of the State of Illinois has granted to municipal corporations specific powers to enact ordinances creating zoning classifications and regulations pertaining to the use of land within the municipality; and that the supplemental decree of the trial court entered May 18, 1967, violates the constitution of the State of Illinois in adjudging a zoning ordinance invalid on the grounds that the City Council of the City of Highland Park did not have the authority to enact such an ordinance.

The City further asserts that plaintiffs’ property is suitable for use under its present single-family residential classification, and the burden is upon them to show by clear and convincing proof that the ordinance of April 10, 1967, is arbitrary and unreasonable; that there is no vested right in the continuance of a zoning ordinance; that the disposition of this case should be based upon the zoning classification of the subject property on the date of the supplemental decree; and that the increase in intensity of use allowed in the supplemental decree does not conform to the mandate of the Appellate Court.

The plaintiffs urge that their rights were crystallized by the original decree, and that the City had no right to “rezone” the property by its ordinance of April 10, 1967; that the suitability of plaintiffs’ property for single-family use is irrelevant; and that the supplemental decree is in accordance with the mandate of this court and should be affirmed.

The differences in the contentions of the parties arise because they reason from fundamentally different premises. The City has manifested a complete disregard for the opinion and mandate of this court except in the one area where it may benefit therefrom — the matter of the increase in intensity of use allowed in the supplemental decree. Otherwise, it has proceeded in a cavalier manner, oblivious to the language, intent and meaning of the opinion and mandate.

We see no valid separation of powers problem in the entry of the supplemental decree. Under Article 6, section 9 of the Illinois Constitution, the Circuit Court has original jurisdiction of all justiciable matters. The jurisdiction of a court over the subject matter and parties in a case, once fully attached, as in the case at bar, continues until all issues of fact and law have been finally determined. In general, the jurisdiction ceases on the rendition of a final judgment or decree, except for such purposes as the enforcement or correction of the judgment or decree. Kovac v. Kovac, 26 Ill App2d 29, 47, 48, 167 NE2d 281 (1960).

In Tindall v. Meeker, 1 Scam (2 Ill) 137 (1834), at page 139, the court stated:

“The rule ... is, if an inferior court has jurisdiction ab origine, no subsequent fact arising in the case, can defeat it, when it was lawful in the inception.”

Likewise, in Irmegar v. County of Tazewell, 264 Ill 172, 106 NE 227 (1914), at page 174, the court stated:

“The general rule is, that the jurisdiction of a court over a cause depends on the state of facts at the time the action is brought; that after jurisdiction has once vested it cannot be divested by subsequent events. Change of residence or of the condition of the parties or of the amount in dispute cannot take away jurisdiction that has once attached. (Tindall v. Meeker, 1 Scam 137; Alley v. McCabe, 147 Ill 410; Mullen v. Torrance, 22 US 536; Clarke v. Mathewson, 37 id. 163; United States v. Dawson, 56 id. 467; State v. Wilkins, 67 NH 164; Hawes on Jurisdiction of Courts, sec 23.) ” (Emphasis ours.)

Also see: In re 431 Oakdale Ave. Bldg. Corp., 28 F Supp 63.

The trial court acquired jurisdiction of the parties and of the subject matter in the case at bar under the state of facts existing when the action was brought. However, before the matter came on for trial the City had rezoned the plaintiffs’ land to O & R. The jurisdiction which the court had acquired continued, and at the trial the validity of the O & R zoning was challenged, and determined adversely to the City. (76 Ill App2d 62, 74, 75, 221 NE2d 323.) Also see: Ridgewood Air Club v. Board of Adjustment, 136 NJL 222, 55 A2d 100, 101, 102 (1947).

The City was aware of the import of the decision and mandate of this court as is reflected in the report of its Plan Commission dated February 2, 1967, which stated, in part, as follows:

“In June, 1964, before the Commission had concluded its hearings, the original petitioner instituted legal proceedings which he amended after the Council acted in September, attacking the G-l zoning with respect to a part of his parcel as arbitrary and unreasonable and requesting multiple family use for that portion. After trial, the Circuit Court of Lake County granted the requested relief.
“The Appellate Court affirmed the part of the decree voiding the G-l classification, but reversed that part which held single-family zoning void and which ordered the City to permit use under the F classification. The Appellate Court remanded the cause to the trial court with directions to reframe its decree relating to the permissive use of the land with reference to the evidence of the contemplated use for multiple family, and directed the taking of further evidence, if necessary. The apparent purport of the Appellate Court decision was to allow the use of the premises for multiple-family purposes provided the decree was framed in terms of particular use and not in terms of the F classification. The City has petitioned the Illinois Supreme Court for Leave to Appeal, contending, inter alia, the (sic) the lower courts erroneously voided the G-l zoning and that in any event the effect of such voiding would be to reinstate the prior B-l single-family zoning.”

In the light of the language, intent and meaning of the opinion and mandate, and the understanding of it, as indicated in the report of the Plan Commission, the act of the City in rezoning plaintiffs’ property to the same single-family classification which it had in 1963, indicated a complete disregard for, and constituted an attempt to thwart, the opinion and mandate of this court. We have utmost respect and deep regard for the philosophy embodied in the principle of the separation of the powers of the three branches of our government. However, a City which is an appellant in zoning litigation, cannot parlay the doctrine of separation of powers into an authorization to exercise its delegated legislative powers after the case is decided adversely to it and remanded to the trial court with directions, and thereby frustrate and void the opinion and mandate of the reviewing court to which it submitted its case for decision.

The question on the original review of the case at bar was the constitutionality of the zoning ordinance as applied to the plaintiffs’ property. The construction, application or constitutionality of an ordinance rests with the courts, and not with the legislative branch of the City, which is the creature of the General Assembly.

We completely recognize that the General Assembly has delegated to the City the power to enact a zoning ordinance. However, it is also beyond dispute that the courts have the jurisdiction to determine the application and constitutionality of such ordinance with reference to the plaintiffs’ property. City of Aurora v. Burns, 319 Ill 84, 149 NE 784 (1925). Jurisdiction is the power of the court to make a wrong, as well as a right decision. Pope v. United States, 323 US 1, 14 (1944).

In general, the legislative department of the government is prohibited from encroaching on, or unduly burdening the judicial department in the exercise of its functions. Agran v. Checker Taxi Co., 412 Ill 145, 148-150 incl., 105 NE2d 713 (1952) ; People v. Scott, 383 Ill 122, 126, 48 NE2d 530 (1943). Specifically, the legislature may not, by legislation passed after causes of action have been adjudicated by a reviewing court, control or effect the result of the litigation. People v. Owen, 286 Ill 638, 641, 642, 122 NE 132 (1919); People v. New York Cent. R. Co., 283 Ill 334, 335, 119 NE 299 (1918) ; Chicago & E. I. R. Co. v. People ex rel. McCord, 219 Ill 408, 410, 411, 76 NE 571 (1906).

When we, as a reviewing court, affirmed the judgment in part and reversed it in part and remanded the cause to the trial court with directions, our opinion and mandate was binding on the parties litigant who had submitted the matters to us for decision. It did not enhance the stature of the City, its officers or counsel, because of their disappointment in the outcome of the litigation, in our Court and the Supreme Court, to seek to overrule the force and effect of the opinion and mandate of this court by further legislative action after the cause had been adjudicated by us, and our opinion finalized by the Supreme Court by its denial of the City’s petition for Leave to Appeal.

Likewise, the trial court was bound by the decision and mandate of this court. In Berry v. Lewis, 27 Ill 2d 61, 187 NE2d 688 (1963), at pages 62 and 63, the court stated:

“After a judgment is reversed and the cause is remanded the inferior court can take only such further proceedings as conform to the judgment of the reviewing court. (People ex rel. Bauer v. Henry, 10 Ill2d 324; Ptaszek v. Konczal, 10 Ill2d 326.) When the court of appellate jurisdiction, in considering a case, determines the issues and decides the questions involved on their merits, reversing the judgment and remanding the cause with directions to proceed in conformity with the views expressed in the opinion, there is no power in the court below except to enter a final order or judgment without retrial. Nye v. Nye, 411 Ill 408; In re Estate of Naher, 210 Ill 160.”

Thus, the trial court had no choice upon remand, other than to enter a supplemental decree in accordance with the mandate of this court. A fair consideration of: Sinclair Pipe Line v. Richton Park, 19 Ill2d 370, 167 NE2d 406 (1960); Franklin v. Village of Franklin Park, 19 Ill2d 381, 167 NE2d 195 (1960); Fiore v. City of Highland Park, 76 Ill App2d 62, 221 NE2d 323 (1966); and Harshman v. City of DeKalb, 64 Ill App2d 347, 212 NE2d 146 (1965), cannot but lead us to the conclusion that the City, deliberately or otherwise, misconstrued the meaning of the word “unzoned” as used herein. By construing the word out of context with the substance of those opinions, the City sought to justify its unwarranted act of rezoning the plaintiffs’ property after its appeal had been adjudicated by the reviewing courts. In the light of the cases cited and the principles set forth, the adoption of the ordinance of April 10, 1967, was unwarranted, and it was necessary that the trial court declare it invalid in the supplemental decree, as an act beyond the power of the City. To hold otherwise, under the circumstances of this case, would relegate the decisions of reviewing courts to the status of an exercise of futility.

In Franklin v. Village of Franklin Park, supra, 385, the court, in delineating why the trial court should frame its decree so as to permit a particular use when it finds the existing zoning invalid, stated:

“If the ordinance was declared unconstitutional and the land left unzoned, the plaintiff would be free to use, his land for heavy industrial uses not contemplated at the trial, or the village might rezone to another classification that would still exclude most commercial and industrial uses. In either case the true holding of the court would be flaunted. The court may frame its judgment to effectuate its findings as to the rights of the parties.”

Our opinion, and the City’s understanding of it — as reflected in the Plan Commission report — has heretofore been set forth. A reasonable construction of our opinion could not possibly lead the City to the conclusion that it was free to force the plaintiffs into “further litigation due to further rezoning by the municipality” after adjudication by Illinois reviewing courts. Such conclusion would put the hallmark of approval on one of the evils which the decisions in Village of Richton Park, Village of Franklin Park, City of Highland Park and City of DeKalb pointed out and sought to avoid.

We heretofore adjudicated the issues of the applicability of the single-family zoning classification as it existed prior to the O & R zoning. We held that the City, prior to the decision in the trial court, removed the single-family classification from consideration by its determination that it was in the interest of the general welfare that this land be zoned O & R. The pleadings at the trial challenged the O & R zoning and such issue was before the trial court. Thus, at this stage of these proceedings, the suitability of the plaintiffs’ property for single-family use is not in issue and is irrelevant.

The only matter before the trial court on remand was the framing of “its decree pertaining to the permissive use of the land in question with reference to the plaintiffs’ contemplated uses. . . If necessary, it could hear further evidence in this regard.

The City may properly raise in this review the propriety of the trial court’s action in increasing the intensity of use as allowed in the supplemental decree. We regard the change in construction plans as reflected in the supplemental decree as reasonable. The changes with reference to underground parking, a decrease in the number of buildings, and the increase in the number of units from 144 to 168, will result in more open space on the land involved and a greater intensity of its use. We do not regard this as any change in the concept of the development of the property.

Time has passed due to this litigation, the needs of the area have changed with the delay, and construction costs have increased, as have the prices of equipment and furnishings. Also, under the “F multiple-family” use classification, approximately 288 units would be permitted on the land in question. In view of all the testimony on the question of intensity of use, as well as on the total issue of the permissive use to be made of the land in question, we cannot say that the use specified in the supplemental decree is against the manifest weight of the evidence.

It is our duty to review the evidence, and to reverse the verdicts of juries or the judgments of courts whenever we find such verdicts or judgments clearly against the manifest weight of the evidence. Elgin Lumber & Supply Co. v. Malenius, 90 Ill App2d 90, 232 NE2d 319, 323 (1967); Revcor, Inc. v. Fame, Inc., 85 Ill App2d 350, 356, 228 NE2d 742 (1967). Such circumstance is not present in the case at bar.

Accordingly, the supplemental decree of the trial court is affirmed.

Decree affirmed.

ABRAHAMSON, P. J. and MORAN, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George J. Sibley, Defendant-Appellant.
    Gen. No. 51,764.
    First District, Third Division.
    March 7, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

A jury found George Sibley guilty of armed robbery and he was sentenced to the penitentiary for a term of fifteen to twenty-five years.

On appeal he contends that reversible error was committed by the trial judge in limiting the cross-examination of a State’s witness concerning the circumstances of his identification, and that the closing argument of the assistant State’s attorney deprived him of a fair trial.

Mrs. Katherine Axelrod was returning home about 9:00 p. m. when she noticed a woman walking behind her. The woman followed her into the entrance of her apartment building, pulled out a gun, grabbed her, demanded her money and keys and struck her on the head with the gun. After learning that a babysitter was attending her children, the robber (who turned out to be a man dressed in women’s clothing) accompanied her to her second-floor apartment. Mrs. Axelrod twice managed to mouth the words “call the police” as she paid the sitter and said good-by to her. Linda Arnold, the sitter, a girl in eighth grade, lived across the street from the Axelrods. She went home and called the police who responded at once.

In the apartment the robber took some more money, made Mrs. Axelrod lie facedownward on a bed, threatened to shoot her children if her cries awakened them, tied a scarf around her mouth and her hands behind her back. He took off his white shoes and put on her blue ones. He picked up a pair of scissors and was about to cut her hair when there was a knock on the front door. He told her to be still and went to the rear of the apartment; but she got up, went to the front door and, upon hearing that the police were there, told them through the door that the robber was going out the back way and was dressed like a woman.

A policeman ran around the building, saw a woman walking away from the rear steps and told her to stop. She started to run and he caught her after a block and a half chase. As he seized her, her wig came off and the officer, realizing that it was a man, drew his gun. After a struggle he subdued the defendant, handcuffed and searched him. Sibley was wearing women’s undergarments and the officer found a gun in his girdle. He had on a pair of ladies’ blue shoes and had in his possession a pair of scissors and one five-dollar bill and nine singles.

Sibley was taken back to the building. Neighbors and policemen had gathered in the hallway and Mrs. Axelrod identified him. She also identified her blue shoes, the pair of scissors and the gun which had been used to rob her. The money found on Sibley corresponded in denomination and amount to that which had been taken from her.

Linda Arnold had directed the police to the Axelrod apartment and she saw Sibley when the police brought him back to the building. She recognized him as the same person she had seen in the apartment.

The arresting officer testified on cross-examination that there was a lineup of some type in the hallway when Mrs. Axelrod identified the defendant but that he did not know who was in it. He was again asked:

Defendant’s Attorney: “Who was in this lineup
at that time, Officer ?”
Assistant State’s
Attorney: “Object, asked and an-
swered.”
Defendant’s Attorney: “He was present, Judge, I
think — ”
State’s Attorney: “He said he didn’t know.”
The Court: “Sustained.”
Defendant’s Attorney: “Who was in the lineup, if
you know, Officer?”
Officer: “That I know?”
Defendant’s Attorney: “Yes.”
Officer: “I don’t know anyone in
the lineup, or I didn’t.”
Defendant’s Attorney: “Were some of the neigh-
bors in the lineup, Officer ?”
State’s Attorney: “Objection, asked and an-
swered.”
The Court: “Sustained.”
Defendant’s Attorney: “Your Honor, I don’t feel
it has been asked and answered. I asked if any of the neighbors — if you know — ”
Officer: “I’m not sure.”

The defendant complains that by sustaining the objections the court restricted his cross-examination in an area essential to his defense: the circumstances surrounding his identification. The cross-examination was not unreasonably restricted. The officer was asked five times who was in the lineup. Three times he answered that he did not know and two times objections were sustained to repetitive questions. The defense was allowed liberal latitude in its cross-examination.

The defendant did not testify and no evidence was presented in his behalf. In their opening and closing arguments the prosecutors stated that the State’s evidence was uncontradicted. The defendant contends that these statements constituted comment on his failure to testify. The fact that a defendant does not take the witness stand raises no adverse presumption, and reference to his not testifying is not permitted. Ill Rev Stats 1965, c 38, § 155-1. However, a prosecutor may call the jury’s attention to the State’s uncontradicted evidence and may do so even if the defendant is the only person who could deny it. People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963). From the record it is clear that the prosecutors’ statements were addressed to the evidence and therefore were not improper.

The defendant also complains that other portions of the prosecutors’ final argument were prejudicial. One of these was the remark that “counsel for the defense is playing a game with you in this lawsuit.” This remark was in response, to a story told by the defendant’s counsel about a game he played in school in which something would be whispered to one child and by him to another and so on, and that the last version was completely different from the first. The prosecutor’s reply was a fair response to the defense counsel’s story and did not reflect upon the latter’s integrity.

The other remarks complained about were also fair comments on the evidence. The prosecutor said that an armed person who talked and acted as Sibley did was a potential murderer; that it was fortunate for Mrs.

Axelrod and her husband that a robbery instead of a murder case was being tried and that Sibley pistol-whipped Mrs. Axelrod. Sibley threatened to kill the Axelrod children and he did strike Mrs. Axelrod with a pistol. Mentioning her husband and children did not inject them into the case for the purpose of calling attention to her family, as the defendant contends. Mrs. Axelrod testified that her hands had been bound behind her back with her husband’s neckties, and her children had been referred to several times in the testimony.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Appellant, v. James E. Graf, Appellee.
    Gen. No. 51,911.
    First District, Third Division.
    March 7, 1968.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Alvah Morse, and James Zagel, Assistant State’s Attorneys, of counsel), for appellant.

      Marshall Kaplan, Kaplan and Kaplan, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal taken by the People of the State of Illinois from an order dismissing the complaint on the ground that the section under which the defendant was charged does not in any way prescribe a penalty. It is the State’s theory that the Illinois Liquor Control Act (commonly called the Dram Shops Act) (Ill Rev Stats 1965, c 43) is a penal statute, and that in this case section 140 of the Dram Shops Act is an offense as defined in section 2-12 of the Criminal Code (Ill Rev Stats 1965, c 38, § 2-12). The State contends that where there is a violation of a penal statute and no penalty is prescribed in that statute, that section 1-7 (j) of the Criminal Code applies.

On July 14, 1966, the defendant was arrested while driving his car at the comer of Isabella and Ashland, Evanston, Cook County, Illinois, and was charged with having “committed the offense of transporting an open bottle of liquor in a motor vehicle in that he did then and there possess an open bottle of alcoholic liquor in a certain motor vehicle, to-wit: % quart of Gilbey’s Gin, with seal on said bottle broken in violation of Chapter 43, sec 140.” A more accurate description of the section with which the defendant was charged is section 19, article VI of the Dram Shops Act (Ill Rev Stats 1965, c 43, par 140). That section reads as follows:

“No person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken.”

We will refer to the foregoing statute for the purpose of this opinion as section 140 of the Dram Shops Act.

The State contends that even though section 140 of the Dram Shops Act does not prescribe a penalty for a violation of this section, nevertheless, section 1-7(j) of the Criminal Code does provide a penalty because the State contends that the Dram Shops Act is a penal statute and that said section applies where the penalty is not otherwise provided. That section provides the following:

“Penalty Where not Otherwise Provided.
“The court in imposing sentence upon an offender convicted of an offense for which no penalty is otherwise provided may sentence the offender to a term of imprisonment not to exceed one year or a fine not to exceed $1,000, or both.”

In support of its contention that the Dram Shops Act is a penal statute the State cites Lichter v. Scher, 11 Ill App2d 441, 138 NE2d 66; Canadian Ace Brewing Co. v. Swiftsure Beer Service Co., 17 Ill App2d 54, 149 NE2d 442, and Butler v. Wittland, 18 Ill App2d 578, 153 NE2d 106. In Butler, supra, the court stated on page 582:

“The Dramshop Act as a part of the law governing the sale of liquor in Illinois is therefore essentially disciplinary and regulatory in its character. Robertson v. White, 11 Ill App2d 177. However, because the remedy therein provided is made available without regard to fault or negligence of the dramshop keeper, the Act is also penal in character . . .”

The above are all civil cases and in them the act has been described as having penal import “and penal character” in deciding civil suits for damages. It may be described as a penal statute only insofar as it imposes a civil liability for damages upon the dramshop keeper and the owner of the real estate wherein the dramshop is located without proof of fault. The Dram Shops Act is not a penal statute in the same sense as is a criminal statute. Both the State and defense agree that section 1 of article X of the Dram Shops Act (Ill Rev Stats 1965, c 43, par 183) applies only to manufacturers, importers, distributors and sellers of liquor. The defendant argues that since no penalty is provided anywhere in the Dram Shops Act for a violation of section 140, and since a violation of section 140 is not made an offense, there is no other penalty provision that can be attached to section 140, including section 1-7(j) of chapter 38, which applies only to offenses.

It is significant to note that section 140 of the Dram Shops Act does not use the words “it shall be unlawful” or words of similar import.

Section 1-3 of the Criminal Code (Ill Rev Stats 1965, c 38, par 1-3) reads as follows:

“No conduct constitutes an offense unless it is described as an offense in this Code or in another statute of this State. However, this provision does not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order, civil judgment, or decree.”

Nowhere in chapter 43 (Dram Shops Act) is a violation of section 140 described as an offense. Section 2-11 of chapter 38 (Criminal Code) defines a misdemean- or as “any offense other than a felony, and includes conduct prohibited by a statute which provides no penalty for its violation.” Section 2-12 of chapter 38 (Criminal Code) provides that “ ‘Offense’ means a violation of any penal statute of this State.” Section 102-15, chapter 38, defines offense as follows: “ ‘Offense’ means a violation of any penal statute of this State or of any penal ordinance of its political subdivisions.” Prohibited conduct cannot be penal in nature without being an offense. Prohibited conduct is a criminal offense if the statute specifically says that such prohibited conduct is a criminal offense. Prohibited conduct may also be made an offense by providing a penalty within the statute prohibiting the conduct. Where the statute either makes an act unlawful or imposes a punishment for its commission, it is sufficient to make the act a crime.

It has been long recognized that criminal statutes must provide for a penalty and a conviction for violation of a statute containing no penalty cannot stand. State v. Tessier (RI), 213 A2d 699 (1965).

In ILP, Criminal Law, section 5, we find the following:

“It has been held that where an act is a crime solely by statute, and no penalty is prescribed in the statute, an indictment will be quashed, or a judgment arrested; or in other words, that a description, definition and denouncement of acts necessary to constitute a crime do not make the commission of such act or acts a crime unless a punishment is annexed, for punishment is as necessary to constitute a crime as its exact definition.”

The State can receive no comfort from section 1-3 of chapter 38 (Criminal Code) which provides that no conduct constitutes an offense unless it is described as an offense of this code or in another statute of this State. We have found no statute in Illinois, nor has our attention been called to any, which describes the conduct set forth in section 140 of chapter 43 as an offense.

No statute makes an act an offense unless the statute expressly describes it as an offense, or unless punishment for the act is expressly prescribed. U. S. v. Seibert, 2 F2d 80; Holmes v. U. S., 267 F 529, cert den, 254 US 640, 41 S Ct 13.

Section 140 of the Dram Shops Act provides only that no person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken. This statute only describes prohibited conduct. Such prohibited conduct, however, must be made an offense in the Criminal Code or in some other statute. Section 1-3 of chapter 38 (Criminal Code) provides that prohibited conduct is not an offense unless described as such in either the Criminal Code or another statute of this State. Since the act prohibited in section 140 of the Dram Shops Act did not specifically describe such prohibited conduct as an offense, and did not describe it anywhere else in chapter 43, or any other Illinois statute as an offense, and since no penalty for violation of section 140 is made a part of said section, nor in any other section of the Dram Shops Act, such prohibited conduct cannot be a crime.

Section 1-7(j) of chapter 38 is a catch-all misdemean- or or penalty statute, but a violation of section 140 of the Dram Shops Act has not been made a misdemeanor by any statute.

In State v. Tessier, supra, the defendant was convicted of violating the following ordinance of the City of Woonsocket, Rhode Island:

“No person shall revel, use obscene language, quarrel or commit any manner of mischief or otherwise behave in a disorderly manner in any street, highway, gangway, or in any other public place in the city or near any dwelling house or other building therein to the disturbance or annoyance of the peaceful inhabitants thereof or any portion of them, or shall aid, assist, encourage or promote the same to be done by any other person or persons.”

The words “no person shall . . .” are the identical words used in the Illinois statute in question, chapter 43, section 140.

In the Tessier case the defendant did not raise the failure to provide a penalty either in the trial court or on appeal. The Rhode Island Supreme Court in the Tessier case said on page 699:

“That question finds its answer in the hornbook principles that every criminal statute must provide for a penalty and that a conviction for a violation of a statute containing none cannot stand. State v. Pirlot, 20 RI 273, 38 A 656; State v. Fair Lawn Service Center, Inc., 20 NJ 468,120 A2d 233; 1 Wharton, Criminal Law & Procedure (12th ed), Sec 10, p 14. Bishop in his treatise of criminal law (9th ed) at Sec 6, p 3, says: ‘Indeed, law, without punishment for its violation, is in the nature of things impossible.’ ”

There can be no doubt that a statute containing prohibitive language without a penalty clause or without describing the conduct as an offense is a nullity. It also cannot be doubted that if a statute creating the prohibition is not a criminal statute then the penalty provided elsewhere cannot be the basis for punishment.

Chapter 43 of the Dram Shops Act is not a criminal statute. The prohibited conduct in section 140 is not made an offense as required by the Criminal Code. As a result thereof, no separate statute can provide a penalty. A criminal statute cannot rest on an uncertain foundation. People v. Cooper, 366 Ill 113, 7 NE2d 882.

It is highly significant that section 140 of the Dram Shops Act was on July 20, 1967, repealed by the Illinois Legislature, and after adding a penalty provision was transferred to the Motor Vehicles Act, as section 47.2 of article V of the Motor Vehicles Act (Ill Rev Stats 1967, c 95½, par 144.2). That section now reads as follows:

“No person shall transport, carry, possess or have any alcoholic liquor in or upon or about any motor vehicle except in the original package and with the seal unbroken. A person convicted of violating this Section shall be fined not less than $25 or more than $500.”

The second sentence of said section was added and provides a specific penalty in the new statute itself. Apparently the legislature recognized that it had not provided a penalty, or made a violation of such prohibitive conduct an offense in section 140 of the Dram Shops Act. If section 1-7(j) of chapter 38 were to be applied to the repealed section 140 of the Dram Shops Act, an offender could be punished by imprisonment up to one year, whereas after the repeal of section 140 provision was made for a penalty and a violator could be fined no more than $500.

We conclude the trial judge properly sustained the motion to dismiss the complaint and the judgment is affirmed.

Affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: SCHEINEMAN, J.

text:
    Clyde Diefenbach, Plaintiff-Appellee, v. Chester Gorney, Defendant-Appellant.
    Gen. No. 67-23.
    Third District.
    March 7, 1968.

      Krusemark & Bertani, of Joliet, for appellant.
    Fredrick E. Huber, of Kankakee, for appellee.
   SCHEINEMAN, J.

The plaintiff was a tenant farmer closing out term. He held a sale at auction with terms announced as “Cash Before Removal.” Defendant was the high bidder on approximately 2,500 bales of hay, at 41$ each. After the gavel had fallen, defendant told plaintiff he had only $500 at that time. Plaintiff permitted defendant to remove $500 worth of bales. Some months later defendant returned to pick up the rest of the hay, only to find it was gone. Neither party knows what happened to the hay, plaintiff no longer living on the farm. Plaintiff sued for the balance of the purchase price. The case was tried before the court, without a jury, and resulted in a judgment for plaintiff, from which the defendant appeals.

The appellee contends that tender of delivery of the goods was to be simultaneous with payment therefor. This is often the way the law is applied to ordinary sales, as this is likely to be the intention of the parties.

However, from the very early history of Illinois, a distinction was recognized in sales at auctions, especially in farm sales where the goods sold are standing ready for removal.

At a public auction, as soon as the property is “knocked down” to the bidder, the title to the property passes to the bidder, subject however, to a lien on the property in favor of the seller for the amount of the bid. Lucas v. Wallace, 42 Ill App 172. An auction sale is complete when the property is knocked down to the bidder. Chamberlain v. Bain, 27 Ill App 634. Similar result reached in Wade v. Moffett, 21 Ill 110, and in the more recent case of Shilling v. Campbell, 38 Ill App2d 180, 186 NE2d 782. The rule has now become statutory by reason of adoption of the Uniform Commercial Code, Ill Rev Stats c 26, § 2-328(3).

Other related sections are § 2-607(1) and § 2-401(1), (3) (b). The general result is that loss of the goods falls on the buyer.

The trial court correctly applied the law in this case, and the judgment is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: ALLOY, P. J.

text:
    Donald J. Chonowski, Plaintiff-Appellant, v. Joseph S. Sikora, Defendant-Appellee.
    Gen. No. 67-47.
    Third District.
    March 7, 1968.

      Roger V. Pierson, of Princeton, and Joseph B. Lederleitner, of Chicago, for appellant.
    McNeilly & Olivero, of Peru, for appellee.
   ALLOY, P. J.

Donald J. Chonowski filed an action in which he sought recovery of 26 head of cattle under the first count of the complaint, and under a second count he sought double the value of 17 unreturned cattle under the provisions of the Estrays Act (1965 Ill Rev Stats, c 50). The case was tried by a jury and two special interrogatories were submitted to the jury. One recited “Do you find from a preponderance of the evidence that the defendant was guilty of wrongful-taking or detaining the cattle of plaintiff?” The second interrogatory read “Do you find from a preponderance of the evidence that the defendant violated the Estray Statute of the State of Illinois?” The jury answered both of these interrogatories “No” and the jury also returned verdicts for defendant on both counts and made the following special finding:

“We further find that the defendant is entitled to the right to possession of no steers replevied by the plaintiff.”

Under the first count which was couched as a replevin action, the sheriff had picked up nine cattle from defendant’s farm and delivered such nine cattle to plaintiff. It was such nine steers to which the jury referred in the special finding. Judgment was entered upon the verdicts and the findings. Plaintiff’s post-trial motion with respect to the judgment was denied.

On appeal in this court, plaintiff Donald J. Chonowski asserts that the verdicts and answers to the interrogatories are against the manifest weight of the evidence and are also inconsistent with the special finding as to plaintiff’s right of possession under the evidence and the law; and plaintiff likewise asserts that the Replevin Act and the Estrays Act are in pari materia and that defendant Joseph S. Sikora’s possession of cattle without giving statutory notice, knowing the cattle to be strays, was “wrongful” under both statutes.

Apparently, neither plaintiff nor defendant had taken seriously the oft repeated adage popularized by Robert Frost, that “good fences make good neighbors.” They had adjoining farms and their fences were apparently rather porous. The record discloses that plaintiff contended that he had no cattle on his farm in 1965 until April of that year and that during April and May of that year he purchased 74 head of cattle. The births and deaths of cattle kept the number at 74 until the fall of 1965. Plaintiff testified that he missed nine of his cattle in May or June of 1965 and that around November 1965, he counted and found that he was missing 26 head at that time. While plaintiff attempted to locate the missing cattle, at no time did he make a demand on defendant for any of his cattle which he may have suspected that defendant was keeping. The cattle were not marked with any distinctive brand and the only cow which plaintiff could, with reasonable certainty, identify was a cow with a “red mask” — or red markings upon its face. Plaintiff had asked a deputy sheriff to check the property of defendant to see if he was holding any of these 26 cattle but the deputy sheriff reported he found none. Plaintiff then asked a neighbor to check on this and the neighbor reported seeing a few cattle on defendant’s land, 12 to 14 head at the most, including nine which were locked in defendant’s barn. Plaintiff could see defendant’s farm from his land and stated that the maximum number of cattle of any kind that he observed on defendant’s farm during the year 1965 between February until December of 1965 was between 11 to 14 in total. Nowhere in the record was there any testimony of anyone who had observed defendant in possession of more than 14 cattle at any one time during 1965. Plaintiff also testified that before he sold the remainder of his group of 74 cattle, he had purchased 10 more head of cattle from his son and sold them as part of that group. The testimony of plaintiff as to the disputed extra 10 head was rather vague but he did state that he sold 67 head of cattle in January of 1966 (of which he stated that 10 were purchased from his son). The net result was that plaintiff claimed that out of his original 74 head, 26 were lost at one time, reducing his total to 48, but that nine were replevied bringing his total back up to 57 and these 57 were sold in January of 1966. After deducting the 57 from the 74 which left a remainder of 17, plaintiff claims that this is the total number of cattle which he lost or were still missing.

The defendant, his wife and his son all testified that they had some of their own cattle on the farm from the spring of 1965 through the end of the year. They also testified that some cattle broke into their cornfield and strayed upon their farm in October or November of 1965. They locked these cattle in the barn and defendant requested the sheriff of Bureau County to come to his farm to see the cattle that came upon his land. The sheriff came to the farm in the fall of 1965 but he did not attempt to advise defendant as to what could be done with the estray cattle. On November 30, 1965, the sheriff went to defendant’s land under a replevin writ and took possession of the nine cattle that defendant was holding and served the writ upon defendant for the return of 26 cattle. Defendant was at work in the City of Peru, Illinois, when the writ was served and there was some vague testimony as to the conversation between the sheriff and defendant. The sheriff testified he was not sure if defendant meant by selling the “others” that he sold cattle that the defendant owned or a neighbor’s cattle. Defendant specifically denied in his testimony that he told the sheriff that he sold any cattle belonging to anyone else but only referred to cattle belonging to him, the defendant. Defendant testified that he sold 18 head of cattle which were partly his cattle and partly his son’s cattle during the year 1965 during which they had 40 to 45 head of cattle on the farm.

On the record before us, in view of the testimony which was presented, it cannot be stated that either the general verdict finding for the defendant on both counts or the answers to both special interrogatories were against the manifest weight of the evidence. The answers to the interrogatories found that the defendant was not guilty of wrongful taking or detaining plaintiff’s cattle and also that defendant did not violate the Estrays Act. The evidence, as indicated in the recital of facts, was such that the jury could reasonably have determined that plaintiff could lose a total of 17 head of cattle and likewise affirmatively, that defendant was not holding any of plaintiff’s cattle. There were no identifying marks on any of plaintiff’s cattle with the exception of the so-called “red mask” on one of the cows. No such cow was found in possession of defendant. There was no testimony in the record that the cattle on defendant’s land were the cattle of plaintiff. When the nine cattle were picked up by the sheriff as a result of the replevin writ, plaintiff asserted that they were his, but there was no showing in the record as to how he identified them. Defendant knew the nine cattle were not his, but testified that he did not know to whom they belonged and did not assert any right in himself as to such nine cattle. It is unnecessary to review in detail the evidence which was presented by plaintiff and defendant other than to state that it was conflicting. The finding of the jury, therefore, was obviously not against the manifest weight of the evidence. In considering jury verdicts we must adhere to the principle that the jury was justified in considering the evidence in a light most favorable to defendant (Danile v. Oak Park Arms Hotel, Inc., 55 111 App 2d 2, 203 NE2d 706).

The Estrays Act referred to by plaintiff establishes a procedure whereby the owner of land, upon which livestock estrays, can post notices and have the estray recorded in the township “town estray book” with the ultimate objective of claiming ownership of said cattle; provided no one claims the estrayed cattle within one year and pays the expense of keeping the cattle. A further provision in § 35 of the Estrays Act provides a penalty for selling any such cattle in the amount of double the value of the property to be recovered in a court of competent jurisdiction in the name of the owner. It is thus apparent that the purpose of that statute was to establish a procedure whereby a person upon whose land cattle has strayed could eventually obtain ownership after he followed the statutory requirements. If he does not follow such procedure he is subject to a fine (§ 34) and if he sells the livestock, the owner can recover double the value of the property sold. The case before us was not a proceeding for a fine and the jury did not find that plaintiff was the owner even of the nine cattle returned to him or that he was the owner of an additional 17 cattle which plaintiff claimed defendant sold. All the jury found was that the nine cattle returned under the replevin writ were not the property of defendant. On the basis of the record, since plaintiff was not found by the jury to be the owner of the nine cattle or of the additional cattle as he claimed, plaintiff had no standing in the civil action under the Estrays Act to contend that defendant violated the act. "Under § 35 the civil action for double the value of the property must be maintained in the name of the owner of the livestock. Plaintiff did not establish that he was the owner, so he could not take advantage of the Estrays Act. The jury was, therefore, justified in determining that defendant did not violate that act. The failure to give a proper notice under the act may have been punishable by a fine but we are not here confronted with a criminal action.

The attempt to link the Estrays Act and the Replevin Act together under the theory that the statutes relate to the same subject and are in pari materia is based upon the case of Spring Hill Cemetery of Danville v. Ryan, 20 Ill2d 608, 170 NE2d 619. The Spring Hill case involves statutes relating to cemeteries and both statutes were construed together since they both dealt with the same subject. There is no basis for applying such a concept to the two separate statutes on Replevin and Estrays for the purpose of construing these statutes together. As a matter of fact, it is rather difficult to determine what advantage plaintiff would be seeking by having the two statutes construed together, other than to conclude, if defendant held the livestock without giving the proper notice under the Estrays Act, that this would be a violation of the Replevin Act. Since the jury did not determine that plaintiff was the owner of the cattle, it is difficult to see what, if anything, could be gained by construing the two statutes together as suggested by plaintiff. In any event, we see no basis for so construing the two acts.

Special interrogatories and special findings, if they are inconsistent with the general verdict, can sometimes operate to set aside a general verdict (Todd v. Borowski, 25 Ill App2d 367, 375, 166 NE2d 296). In the Todd case, the court stated:

“Special interrogatories are used for the purpose of testing the general verdict against the jury’s conclusions as to the ultimate controlling facts — the statute expressly provides that the answer to the special interrogatory controls the general verdict when inconsistent, and it may not be nullified by disregarding its mandate: Wise v. Wise, et al., supra. The affirmative or negative answer of the jury to a proper special interrogatory of either party as to a material question of ultimate fact, such as the alleged wilful and wanton acts of either party, is binding on the trial court (upon the other party’s motion to set it aside) unless such is not supported by any competent evidence, or unless it is against the manifest weight of the evidence: Paul v. Garman, et al., supra.”

We have also approved this rule (Kubajak v. VerBrugge, 59 Ill App2d 344, 207 NE2d 344).

In the case before us, however, the jury found the issues for defendant under both the replevin count and the estray count. They also made a special finding that defendant was not entitled to possession of nine steers replevied by the plaintiff. It is notable that at no time did defendant claim ownership of the nine cattle which were replevied by the plaintiff. He did not seek a return of these cattle in his answer or during this trial. Defendant and his family all testified that these cattle wandered upon defendant’s land and they had to lock them in the barn to keep them from destroying the crops. The jury, therefore, recognized that these nine cattle were not defendant’s cattle, but that they were merely a nuisance to defendant. The jury did not find, in such special finding, that the nine cattle belonged to the plaintiff, but simply that they should not be returned to defendant. The possession was, therefore, left with the plaintiff, but plaintiff would still have had the burden of proving his ownership of these nine cattle if such ownership was questioned in the future in any action.

In this connection, plaintiff argues that a consistent finding in a replevin action, where the jury finds for the defendant, would be for a return of the replevied property to the defendant. This would be true in most cases since defendant would ordinarily request a return of the property to him. In the case before us, however, defendant admitted, by his failure to request a return of the property, that the nine cattle were not his. Under the Replevin Act (1965 Ill Rev Stats, c 119, § 22) it is provided that if the right of property is adjudged against the plaintiff there should be a judgment for a return of the property. In the case before us, the right of property was not adjudged against plaintiff or against defendant in either case so that there was nothing inconsistent in the jury finding that defendant was not entitled to a return of the nine cattle.

The judgment of the Circuit Court of Bureau County was, therefore, proper and should be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


author: CULBERTSON, J.

text:
    W. M. Libman, Assignee of Barry Chevrolet Sales, Inc., Plaintiff-Appellee, v. Harvey Gipson, Defendant-Appellant.
    Gen. No. 67-73.
    Third District.
    March 7, 1968.
    Rehearing denied April 9,1968.

      Clarence W. Shoemaker, of Aledo, for appellant.
    William B. Schroeder, Jr., of Rock Island, for appellee.
   CULBERTSON, J.

This was a small claims action in the Circuit Court of Mercer County wherein the plaintiff, W. M. Libman, as assignee of Barry Chevrolet Sales, Inc., was awarded a judgment of $180.57 against the defendant, Harvey Gipson. The latter has appealed contending that the trial court erred in failing to follow and apply certain provisions of “An Act in relation to retail installment sales,” (Ill Rev Stats 1965, e 121½, pars 223 through 253), having to do with the reclamation and resale of personal property sold at retail on installment contract.

To support his appeal defendant has presented a record consisting solely of the pleadings; orders of the court; a memorandum opinion by the magistrate who heard the evidence; a conditional sales contract note and a letter which had apparently been received into evidence ; the notice of appeal; and the praecipe for record. So far as pertinent here, the complaint was based on a note given by defendant in return for an automobile part and service and, although the statute was not expressly pleaded, it may be agreed that defendant’s answer advanced a defense that the part had been installed in an automobile, (itself being purchased under an installment contract), which had later been reclaimed and resold for an amount in excess of that owed by defendant to plaintiff’s assignor. In our view, however, even if it is conceded that defendant’s theory is legally sound, the record filed is not sufficient to allow us to determine the issue sought to be raised.

Despite the broad and liberal provisions of Rule 323 of the Illinois Supreme Court Rules (Ill Rev Stats 1967, c 110A, par 323), subparagraphs (c) and (d) in particular, defendant has included no report of proceedings or excerpts from the record in the appeal record, leaving us powerless to ascertain if the allegations of his answer were supported by competent proof. Similarly, nothing contained in the opinion of the magistrate or the exhibits included in the record, suggests or permits us to infer that defendant’s theory of reclamation and resale was proved. The burden is on the party who brings a cause to a reviewing court to present a record which fairly and fully presents all matters necessary and material for a decision of the questions raised (Herbst v. Paul, 339 Ill App 301, 89 NE2d 843; Vick v. Illinois Banker’s Life Ass’n of Monmouth, 276 Ill App 432) and, in the present case, without a record showing reclamation and resale at a figure in excess of defendant’s indebtedness, defendant’s contentions here cannot be decided.

Where a party fails to present a proper record a court of review will, of its own motion, dismiss the appeal (Flemming v. Burks, 63 Ill App2d 300, 211 NE2d 546; People ex rel. McDonough v. Sherwin, 361 Ill 403, 198 NE 343), and in our opinion such a course of action is dictated in this case.

Appeal dismissed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE MORAN

text:
    Ann Hession, as Administratrix of the Estates of James Hession and Daniel Hession, Deceaseds, Plaintiff-Appellant, v. Liberty Asphalt Products, Inc., a Corporation, and Lorton B. Coleman, Defendants-Appellees.
    Gen. No. 67-121.
    Second District.
    March 7, 1968.

      Cohn and Kier, of Chicago, for appellant.
    Caldwell, Berner and Caldwell, of Woodstock, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is a wrongful death action brought by the plaintiff as administratrix of the estates of her son, James Hession, and her husband Daniel Hession, who were killed in a motor vehicle accident at the intersection of Route 134 and Grub Hill Road, in Lake County, on August 17, 1965. James was driving and his father, Daniel, who owned the car, was riding as a passenger in the front seat. They were the only occupants of the car.

The case was tried before a jury, and, at the close of plaintiff’s evidence, the court directed a verdict against her. Plaintiff assigns this as error, claiming that there was sufficient evidence of negligence or wilful and wanton misconduct on the part of defendants, and of due care on the part of the decedents, to require submission of the case to the jury. We disagree and for the reasons indicated below, feel that the trial court was correct in directing a verdict.

Grub Hill Road, which runs north and south, is controlled by stop signs and Route 134 is an east-west through highway, not controlled by stop signs. In this rural area there was no posted speed limit, so the statutory limits of 65 miles per hour for automobiles and 50 miles per hour for trucks applied. (Ill Rev Stats 1965, c 951/a, § 146(b) (1) and (c) (2).)

Just prior to the accident, the Hession auto had been traveling north on Grub Hill Road. The defendant, Lorton B. Coleman, was driving a dump truck owned by the defendant, Liberty Asphalt Products, Inc., in a westerly direction on Route 134.

The only eyewitness to the accident was defendant Coleman who was called as an adverse witness by plaintiff, pursuant to section 60 of the Civil Practice Act (Ill Rev Stats 1965, c 110, § 60). He testified that he was driving the dump truck in a westerly direction on Route 134, and, as he approached the intersection of Grub Hill Road, was traveling at a speed of 35 to 40 miles per hour. He stated that when he was about 200 feet from the intersection, he saw the Hession car, traveling north on Grub Hill Road, enter Route 134 without stopping. The car continued across Route 134, made a “U” turn north of 134, and again entered Route 134 without stopping. Coleman testified that he applied his brakes as hard as he could, just as the Hession car was entering Route 134 the second time. He stated that the truck left 30 feet of skid marks before colliding with the left side of the Hession car in the westbound lane of Route 134, at a point 27 feet west of the center line of Grub Hill Road. Both of these roads are two lanes and are approximately 22 feet wide.

At the time of the accident, the weather was clear and the roads dry. Each of the roads was substantially level and there were no obstructions to the vision of either driver as he approached the intersection.

The investigating police officer testified that he found the two vehicles locked together at the point where they came to rest, with the front end of the truck approximately 283 feet west of the center line of Grub Hill Road. He testified to having found what appeared to him to be skid marks leading from the point of impact to the point where the vehicles came to rest, but did not state how heavy these marks were or whether they were continuous or interrupted.

Another witness called by the plaintiff was Maynard Docka, who had been driving his automobile in an easterly direction on Route 134 just before this accident. He did not notice decedents’ car before the accident, according to his testimony, but he did pass the truck at a point about 150 feet east of Grub Hill Road. On cross-examination by the defendant, he stated that he estimated the speed of the truck, at that point, to have been 30 to 35 miles per hour. He was not asked about the speed of the truck on direct examination. Docka did not see the accident, but heard a crash and saw a cloud of dust when he looked back.

One of plaintiff’s allegations was that the truck was traveling at an excessive speed, yet the only two witnesses who gave direct evidence on this subject, Coleman and Docka, obviously tend to establish a reasonable speed for the truck. Although Coleman testified as an adverse witness, plaintiff is bound by his testimony unless it is rebutted or contradicted by other evidence. Kapraun v. Kapraun, 12 Ill2d 348, 355, 146 NE2d 7 (1957); Piacentini v. Bonnefil, 69 Ill App2d 433, 447, 217 NE2d 507 (1966). Plaintiff does not contend that Docka’s testimony on cross-examination exceeded the scope of the direct examination, so, again, it would appear that plaintiff’s own direct evidence tends to establish a reasonable speed for the truck.

Plaintiff attempted to prove excessive speed by the testimony of an expert, Paul C. Box, a traffic engineer and accident reconstruction specialist. Mr. Box stated that, if he were given the distance the truck had skidded after impact and if he knew the “coefficient of friction” of the pavement involved, he could, from these two factors, compute the speed of the truck at the moment of impact. The witness first saw the actual pavement involved in 1967, a year and a half after the accident, but did examine photographs of the scene, taken shortly after the accident, and stated that the pavement, when he saw it, appeared substantially the same as in the 1965 photographs. The court indicated that he felt this was a sufficient foundation in this particular respect, and we are not called upon to decide the propriety of that ruling. A series of questions was directed to this witness in an attempt to elicit his opinion of the “coefficient of friction” for the pavement in question. Mr. Box stated that a “typical” coefficient of friction for asphalt pavement of the type here involved would be “.5 and up,” but did not indicate that the particular pavement involved would specifically be placed in this typical range, nor was the ambiguous “up” defined to indicate the highest limits of the typical range. After a careful reading of the record, we find that Mr. Box never specifically stated the coefficient of friction for the pavement involved, what the probable range for this pavement might be, nor how much variation in the computed speed would result if one coefficient rather than another were used.

On the second element necessary to Mr. Box’s computations (the length of the skid) Box apparently assumed the distance skidded by the truck was established by the “skid marks,” without any evidence as to whether these marks were continuous or interrupted. In this connection, we note the defendant Coleman testified that, when his vehicle came to rest, the accelerator was stuck. This testimony was uncontradicted and, if true, could certainly indicate that the distance traveled by the truck, after impact, was not necessarily the sole result of momentum generated prior to impact. The matter of the jammed accelerator was not included in the hypothetical questions put to Box by plaintiff.

Defendants made repeated objections to the questions plaintiff asked of Box, and most of them were sustained. It appears to us that most of the rulings were correct, and, as to the remainder, we are unable to tell, because no proper offer of proof was made. We have no way of determining from this record whether Box, under any ruling from the trial court, could have given admissible testimony which would have established an excessive speed on the part of defendants. We find no question whose propriety was not at least debatable, simply because there was no evidence to establish what the coefficient of friction of this particular pavement actually was, and how far the truck actually skidded under its own momentum after impact. These are the two elements which were, according to Box, necessary to his computation. Moreover, because no proper offer of proof was made, the record does not satisfactorily establish just what speed Box would have testified to, even assuming that the length of the skid and the coefficient of friction had been proved.

In colloquy with the court, plaintiff’s counsel stated that, if Box were permitted to testify, he would say that the speed of the truck at impact was 59 or 60 miles per hour. Counsel did not specify what premises would lead Box to this conclusion. To some extent, the requisite formality of an offer of proof will depend upon the circumstances of the particular case. Where it is obvious that the witness is competent to testify to a fact, and it is obvious what his testimony will be if he is permitted to give it, a brief statement by counsel may suffice. Schusler v. Fletcher, 74 Ill App2d 249, 253, 219 NE2d 588 (1966). In a case such as this, however, where it is by no means clear what the witness will say, or what his basis will be for saying it, the offer of proof must be considerably more detailed and specific than the statement counsel made here. Only in this way can a reviewing court know what was excluded and determine whether the exclusion was proper. We agree with the statement in plaintiff’s brief that the testimony of Box and the related objections and colloquy, are “a morass of words and confusion.” This situation was not caused by the defendant or the trial court, and, on this state of this record, we can only hold that the objections to the testimony of the witness were properly sustained. Accordingly, there was no competent evidence offered or received to show excessive speed on the part of the defendants.

Plaintiff’s allegation of negligence or wilful and wanton misconduct relates to the brakes on the truck. Plaintiff’s abstract contains the following sentence, purporting to be from the testimony of the defendant Coleman:

“At the moment of impact, I had my brakes on very hard, but just as I hit the brakes, it broke a line.”

On the basis of this sentence, plaintiff claims that there was evidence that the truck had defective brakes, requiring submission of the case to the jury, notwithstanding the other testimony of Coleman to the effect that the truck had good brakes. However, the actual testimony of Coleman, of which the foregoing purports to be an abstract, was as follows:

“Q. At the moment of impact you had your brakes on?
“A. Yes, I did.
“Q. And you had your brakes on hard ?
“A. Yes, but just as I hit the brakes had broke a line.
“Q. It broke a line ? What do you mean ?
“A. Part of the car cut the brake line on the truck.”

An abstract should correctly and fairly give the actual substance of the testimony. There would seem to be no excuse for the inaccuracy which has occurred here, especially when we are dealing with only a few lines of testimony and the appellant seeks a reversal based upon that testimony. Defendant correctly argues that the actual testimony of Coleman indicates merely that the brake line was broken in the collision with the car, not prior to the impact with the car. Therefore, there was no evidence to support the allegation that a defect in the brakes was a proximate cause of the collision.

We conclude that the trial court correctly determined that there was insufficient evidence to justify submission of the negligence issue to the jury. Still less was there any evidence of wilful and wanton misconduct on the part of defendants.

Neither do we believe that plaintiff sustained her burden of proving that the decedents were free of contributory negligence. Had we disagreed with the trial court about the evidence as to defendants’ conduct, we would still affirm because of the contributory negligence issue.

While plaintiff testified to habits of due care on the part of the decedents, there is no evidence that they used any care at the time in question. On the contrary, all of the evidence indicates that they used no care for their own safety. Grub Hill Road, being controlled by stop signs, required James Hession to yield the right of way to any vehicle on Route 134 which was approaching so closely as to constitute an immediate hazard. (Ill Rev Stats 1965, c 95%, § 167(b).) The only direct evidence as to what he did under these circumstances indicates that he ran a stop sign on the south side of Route 134, crossed 134, made a “U” turn, ran another stop sign, and drove the vehicle directly into the path of a truck which was in such proximity that a collision occurred. There was no obstruction to his vision and, had he looked before he entered Route 134 from the north, he could not possibly have avoided seeing the truck. Thus, the conclusion is inescapable that he either did not look or, having looked and seen the truck, detided to cross the intersection anyway. Under these circumstances, James Hession was guilty of contributory negligence as a matter of law. Stop signs are erected for the obvious purpose of requiring motorists to yield to vehicles on through highways. If the motorist on the through highway had to travel at such a speed that he could stop his car in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose of having a through highway in the first place would be entirely thwarted. The driver who has the stop sign cannot assume the car on the through highway will stop. It is the other way around. We agree with the language from a federal decision recently quoted with approval by the court in Lamberes v. Northern Cartage Co., 86 Ill App2d 811, 314, 229 NE2d 901 (1967), a case which involved the directional right of way at an unmarked intersection, a situation not essentially different from the one at bar:

“. . . Obviously, two cars or other objects cannot occupy an intersection space at the same time and when both are approaching one or the other must yield or a collision will inevitably result. The law of Illinois has placed the duty of yielding upon the one approaching from the left, and a person who fails to recognize such duty without an excuse or reason, . . . should not be permitted to recover from a person approaching from the right who is entitled to assume that the right of way is his. Any other view would magnify the hazard which lurks at the point of intersecting highways.”

As regards Daniel Hession, the passenger, we believe the evidence is insufficient to establish that he was in the exercise of ordinary care for his own safety, even though he was not driving. Daniel, who was 48 years old, owner of the car and father of James (who was 17 years old and driving on a “learner’s permit”) had a right to control the operation of the car and a duty to supervise its operation by James. Simaitis v. Thrash, 25 Ill App2d 340, 351-352, 166 NE2d 306 (1960). See also, Illinois Motor Vehicle Law, 1957 (Ill Rev Stats 1965, c 95%, § 6-105 (a)). Any conclusion that Daniel was exercising due care for his own safety would have to be based on speculation. Furthermore, aside from the question of Daniel’s own lack of care, we believe that the negligence of James was imputable to Daniel under the circumstances shown by the uncontradicted evidence. Lilegdon v. Hanuska, 85 Ill App2d 262, 269, 229 NE2d 314 (1967); Simaitis v. Thrash, supra.

Plaintiff’s final assignment of error is that the court improperly allowed the police officer to testify, on cross-examination by defendant, that he found one open beer can and one unopened beer can in the Hession car. Inasmuch as the case was taken from the jury, and properly so, the admission of this evidence, whether proper or not, did not prejudice the plaintiff. Accordingly, we have no occasion to rule on its admissibility.

For the foregoing reasons, the judgment of the lower court is affirmed.

Affirmed.

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


author: GOLDENHERSH, J.

text:
    Brian A. Kronenberger, a Minor, by Cleo Kronenberger, His Mother and Next Friend, Plaintiff-Appellant, v. Mildred I. Husky and William Husky, d/b/a West Side Produce, Defendants-Appellees.
    Gen. No. 66-2.
    Fifth District.
    March 9, 1968.
    Cohn, Cohn and Korein, of East St. Louis (Sandor Korein, of counsel), for appellant.
    Wagner, Conner, Ferguson, Bertrand & Baker, of East St. Louis (Bernard H. Bertrand, of counsel), for appellees.
   GOLDENHERSH, J.

This cause was remanded to this court following reversal of the judgment previously entered. The facts and issues are stated in our prior opinion and are not here repeated.

The only contentions not considered in our prior opinion are that defendant’s instruction 15 did not follow the IPI form, was confusing, prejudicial to plaintiff, unduly accentuated the application of the statutes to riders of bicycles and would create the impression that the sections quoted therein were applicable only to bicycle riders.

Upon consideration of this instruction in the context of all of the instructions given, we are of the opinion that the jury could not have been misled, nor the plaintiff prejudiced thereby. The judgment of the Circuit Court of St. Clair County is affirmed.

Judgment affirmed.

EBERSPACHER and MORAN, JJ., concur.

       Kronenberger v. Husky, 38 Ill2d 376, 231 NE2d 385.

       Kronenberger v. Husky, 79 Ill App2d 161, 223 NE2d 712.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Wendell Thomas, Defendant-Appellant.
    Gen. No. 51,143.
    First District, First Division.
    March 11, 1968.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellant.
    Montgomery, Holt & Bolden, of Chicago (James D. Montgomery, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Wendell Thomas was indicted for the murder of Ernest Winters. The jury found the defendant guilty and fixed his punishment at imprisonment in the penitentiary for the term of thirty-three years. He prosecutes this appeal alleging the following errors:

(1) The evidence shows that the offense committed, if any, was manslaughter and not murder;

(2) The State’s attorney prejudiced the jury by improper and inflammatory argument; and

(3) The sentence of thirty-three years is excessive.

Beginning in the afternoon of August 27, 1958, Ernest Winters, Frank Sims and defendant were out drinking together. At about 8:00 p. m., Barbara Davis joined the group. Winters, Davis and defendant then drove to Winters’ house to pick up his wife Ernestine. Upon arriving there, Winters took offense to his wife referring to another man as “baby.” He slapped her across the face and she slapped him back. The Winters got back into the car with Davis and defendant and started driving around.

During the ride, the Winters began arguing again. Winters stopped the car near a vacant lot and jumped out. He picked up a stick and started chasing his wife, who had also gotten out of the car. Defendant intervened and tried to stop the Winters from fighting. Ernestine ran off down the street while the two men started pushing each other. After wrestling with Winters for a few moments, defendant ran off down the alley.

Winters and Davis started to get back into the car when defendant reappeared. He told Winters, “I am going to get my gun,” and also to wait for him at 42nd and Drexel. Davis convinced Winters to drive away and find Sims.

Davis and Winters drove to Sims’ home at 814 East 42nd Street, about 1 block from the vacant lot. Sims came outside and was talking with Winters for about 10 or 15 minutes when defendant emerged from an alley just up the block. Defendant approached with a pistol in his hand and asked Winters if he wanted to continue the fight. Winters said no. There is some conflict as to who pushed whom but defendant, standing about two feet from Winters, raised his pistol and shot Winters in the chest. Winters grabbed his chest with both hands and started bleeding profusely. He staggered across the street and into the back seat of his car. Sims drove him to a hospital where he died from the gunshot wound.

Defendant took the stand on his own behalf. He admitted all the details of the events leading up to the shooting. However, with respect to the shooting, he testified that after the first altercation he was in fear for his life. He therefore got a pistol which he put in his pocket. When he approached Winters and Sims in front of the latter’s house, Winters jumped up and said, “I’m going to teach you about interrupting family affairs.” Winters started pushing him. Defendant claimed he saw a knife in Winters’ hand and Winters cut him on the wrist. Defendant tried to walk away when Winters again came at him. Defendant removed the pistol from his pocket and fired.

Sims drove off toward the hospital and defendant just walked away. He started to return to the scene, but saw “the police there and became frightened.” He took a bus to Dixon, Illinois, to be with a relative. From Dixon he went to Rock Island, Illinois, then to Davenport, Iowa, and then to Detroit, Michigan, where was arrested.

Neither Sims, nor Davis, who were both present at the time of the shooting, saw any knife or other weapon in Winters’ hand. Barbara Davis further testified that the knife defendant claims the deceased bandied about was found in a pool of blood on the back floor of the car which took Winters to the hospital. Sims and a police officer, however, testified that the knife was found in a pool of blood on the street.

Defendant’s argument that he was provoked by the deceased into firing the fatal bullet is not supported by the facts. There is credible evidence to show that defendant obtained a pistol, sought out Winters and when Winters refused to continue a previous fight, defendant shot him. The question of whether this shooting was in any way justified or resulted from conduct which would constitute serious provocation is always a determination for the trier of fact. People v. Jordan, 18 Ill2d 489,165 NE2d 296 (1960).

As a reviewing court we will not reverse a finding of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967). We do not find the verdict of guilty erroneous.

The second allegation of error stems from the following comment by the prosecutor in his closing argument:

“Both witnesses testified, ladies and gentlemen — ■ when I say both witnesses, I mean Barbara Davis and Frank Sims — that never this night did Ernest Winters provoke this murder. Never. Did nothing. All they did was drive Thomas around all day; Thomas, the great hero, protecting the wife, Ernestine, who you saw sit on that stand and cry because her breadwinner — he might not have been such a swell fellow, but her breadwinner is gone and he’s not coming back.”

Defendant claims this statement is so prejudicial and inflammatory that reversal is required. In support of this argument he cites, People v. Bernette, 30 Ill2d 359, 197 NE2d 436 (1964), and seven prior similar cases. In each of these cases a member of the deceased’s family took the stand to testify that the deceased was a family man. The courts have continuously condemned such testimony as bearing no relationship to the defendant’s guilt or innocence. However, in the instant case, no such testimony is involved.

The only case cited by defendant which discusses comments on family during closing argument is People v. Gregory, 22 Ill2d 601,177 NE2d 120 (1961). In the Gregory case the defendant was granted a new trial because of improper evidence of unrelated crimes and the following improper closing argument by the Assistant State’s Attorney:

“How serious is it for five men to take up arms, to pack five guns and go into a man’s place of business where he is making a living for Jennie and for those three kids and just kill him ... he has as much right to see that Jennie and those kids aren’t left alone, as you and I have . . . Mrs. Ciavirelli, who was a widow on May 7,1950 — she’s going to be a widow on May 7, 1951, 1952, 1953, 1954 and every year thereafter. Lawrence and Joseph, and whatever his name is — the third one — they are going to be orphans this week, the next week, next year and forever after . . .
“And what’s their dessert? Death to the wheel-man. Death to the coverman. That’s the only thing that they deserve. That’s what you have got to give them. Either that or tell Jennie, tell Jennie, sitting out there that Joe isn’t important enough. If it had been somebody else maybe we would have given them the chair, but not with Joe — he’s just a little tavern owner.”

In the instant case, we do not have an extended commentary on the condition of the deceased’s family, nor do we have a plea for imposition of the death penalty. In fact, the State was not asking for the death penalty. We simply do not feel that saying “her breadwinner is gone and he’s not coming back” was so prejudicial or aggravated as to require reversal. People v. Brown, 30 Ill2d 297, 196 NE2d 664 (1964). The husband-wife relationship was an essential element of the original altercation between the deceased and defendant. It would have been impossible to exclude mentioning Mrs. Winters in the case. To say that her “breadwinner” was dead was nothing more than a truism.

The final point raised is that the 33 years that the jury imposed is excessive. We do not agree. Defendant admits that the time imposed is well within the statutory limits. The jury obviously did not believe the defense of provocation. Defendant, with a gun in his hand, sought out Winters and shot him. This would justify the imprisonment imposed here. The term of the sentence being proper under the facts, the above quoted closing argument of the Assistant State’s Attorney did not prejudice the defendant.

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

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    Van J. Paulus, Plaintiff-Appellee, v. Sidney D. Smith, Commissioner of Buildings of the City of Chicago, William P. Hogan, Chief Electrical Inspector of the Bureau of Electrical Inspection of the City of Chicago, Edward J. Boyle, Assistant Chief Electrical Inspector of the City of Chicago, and City of Chicago, a Municipal Corporation, Defendants-Appellants, Rite-Lite Neon Sign Co., an Illinois Corporation, and George Aloisio, Defendants.
    Gen. No. 52,382.
    First District, First Division.
    March 11, 1968.

      Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellants.
    Raymond I. Suekoff, of Chicago (Stuart C. Katz, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This appeal involves the erection of an electrical advertising sign and the revocation of the permit issued by the City for its erection. In a previous appeal between the same parties (70 Ill App2d 97, 217 NE2d 527), this court, in an opinion filed on April 25,1966, remanded the matter to the trial court for further proceedings after concluding (P 113):

“Therefore, considering the substantial expenditures of plaintiff made under the circumstances portrayed here, we think it equitable that visibility measurements should be made in accordance with the views expressed in this opinion and properly submitted as evidence to the trial court. If it is then determined that the sign now violates the ordinance, plaintiff should be given a reasonable opportunity to correct the violation.”

The pertinent facts are detailed in our previous opinion and need not be repeated here.

The record shows the permit for the erection of the instant sign was issued on June 25, 1963, and by August 17, 1963, the face of the sign had been installed. The letter of cancellation of the permit (dated August 21, 1963) was sent to plaintiff because the sign violated the ordinance in effect on June 25, 1963. In the proceedings after remandment, the City, with leave of court, filed on October 20, 1966, an amendment to its original answer, in which the City requested the court “to take judicial notice of an amendment to the Chicago Zoning Ordinance . . . adopted by the City Council on July 11, 1963.” This zoning amendment changed the measurement requirements for advertising signs adjacent to highways to such an extent that plaintiff concedes he cannot reconstruct the signboard to meet the requirements of the amended ordinance.

On remand, the trial court heard witnesses and received documentary evidence. Counsel for the City stated, “The City will stipulate if the sign were reduced in size [to be 800 feet] to where it met the formula provided by that section of the Municipal Code and if it were removed under the old ordinance to a point where it was 400 feet or greater from the center of the nearest lane of traffic ... it would . . . probably meet the ordinance.”

The trial court found (1) that the previous finding that no fraud was committed by the plaintiff in the obtaining of his permit “still stands,” and (2) “In view of the large expenditures by the plaintiff, relying on the permits issued under the zoning ordinance before the ordinance was amended, the 1963 amending ordinance is inapplicable in this cause and the issues must be decided under the ordinance in force at the time the permits were issued.”

The trial court decreed (1) that the plaintiff make specified changes in the sign, and (2) that a permanent injunction be issued, restraining the defendants from interfering with or preventing the plaintiff from proceeding with the changes and the completion of the sign or revoking the permit, and the court further found “that there is no just reason for delaying enforcement of or appeal from this decree.”

The City contends that “the law is settled that both the trial court and the reviewing court are bound by the ordinance as it presently exists and not as it was prior to the amendment,” and “the trial court was informed of and accepted the existence of the amendment and then improperly failed to apply it to the case before it for decision.” Cited authorities include Kinney v. Lindgren, 373 Ill 415, 420, 26 NE2d 471 (1940); Gibbons v. City of Chicago, 34 Ill2d 102, 105, 214 NE2d 740 (1966); Illinois Chiropractic Society v. Giello, 18 Ill2d 306, 310, 164 NE2d 47 (1960); and City of Chicago v. Zellers, 64 Ill App2d 24, 29, 212 NE2d 737 (1965).

Plaintiff asserts that the provisions of the instant decree come within the remanding directions of this court and the terms of the stipulation entered into by the City during the second proceeding. Plaintiff contends that the 1963 amendment to the ordinance in the instant case did not affect preexisting signs and, also, defendants’ construction, if applied, would render this court’s opinion and remanding order in the prior appeal of this case (70 Ill App2d 97, 217 NE2d 527) “meaningless and ineffective.”

Plaintiff further asserts, “The validity of the zoning ordinance in the case at bar was never attacked. Even though the new ordinance was in full force and effect prior to the filing of this suit, the trial court was not at any time during the original trial called upon to determine whether the sign violated the new ordinance, nor was that point raised by defendants in the prior appeal of this case. However, plaintiff in his prior brief (page 56) called this Court’s attention to the new ordinance and conceded that he could not comply with it.”

It is unnecessary to discuss defendants’ authorities because we find that defendants come too late with the contention that the present ordinance should be applied here. This point should have been made in the original proceedings, both at the trial and review levels. We think this case calls for the use of the rule set forth in Village of Oak Park v. Swigart, 266 Ill 60, 107 NE 158 (1914), where it is said (p 61):

“It is the settled rule, also, that where a cause is re-docketed after litigation is prosecuted to a court of review and passed upon, not only the questions that were raised and considered, but also all that could have been raised and passed upon, are res judicata whether they were raised or not, . -i . It would be an intolerable practice to permit objectors to have their legal objections heard by piecemeal. It is no hardship for them to.be compelled to bring forward all their objections at the same time. . . . If a judgment is reversed and the cause remanded, the inferior tribunal can only take such further proceedings as conform to the finding of the appellate tribunal, and if specific directions are given nothing can be done except to carry out such directions.”

See, also, Schneiderman v. Interstate Transit Lines, 401 Ill 172, 81 NE2d 861 (1948), where the court said (p 175):

“It is likewise a familiar rule ‘that when litigation is prosecuted to an appellate tribunal and questions of law are decided, all of such questions relating to the same subject matter which were open to consideration and could have been presented are res judicata, whether they were presented or not. This is true whether the judgment was reversed and the cause remanded or the judgment affirmed.’ ”

We conclude that the remanding directions of this court in 70 Ill App2d 97, 217 NE2d 527, must stand. Plaintiff “should be given a reasonable opportunity to correct the violation.” It is conceded that the sign changes provided for in the instant decree will meet the requirements of the original ordinance. Therefore, the decree appealed from conforms with the remanding directions of this court, and it is affirmed.

Affirmed.

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