author: MORAN, P. J.

text:
    Estate of Joseph E. Sacks, Deceased. Jo Ann Whitlock, et al., Petitioners-Appellants, v. Ethel Sacks, as Administrator of the Estate of Joseph E. Sacks, Deceased, and Ruth Fischer and Mildred Sorosky, Respondents-Appellees.
    Gen. No. 50,861.
    First District.
    November 8, 1967.

      Joseph B. Gilbert, and Morris Gordon Meyers, of Chicago, for appellants.

      Jack Edward Dwork, and Harry G. Fins, of Chicago, for appellees.
   MORAN, P. J.

Jo Ann Whitlock, Judith Nay, Joseph Sacks and John Sacks, the children of Joseph E. Sacks by a prior marriage, appeal from the denial of their petition filed in the Probate Division of the Circuit Court of Cook County against his widow, Ethel Sacks, as the administratrix of the estate of Joseph Sacks, seeking an order that she be compelled to list in the inventory of his estate some 19,000 shares of stock which she had claimed as the survivor of an alleged joint tenancy with said Joseph E. Sacks, and from the denial of their petition against Ruth Fischer and Mildred Sorosky, sisters of the decedent seeking an order to compel them to surrender to the administratrix, as an asset of the estate, the payments due on the sale of an apartment house through a Bond for Deed. This property had been the subject matter of a land trust and appellants contend that the sale terminated the trust and thereby destroyed the sisters’ beneficial interest.

We first discuss the issues concerning the shares of stock. In April, 1957, Joseph E. Sacks and Ethel Griffin (now Ethel Sacks) signed an agreement with the brokerage firm of Bear, Stearns & Co., entitled “Joint Account with Right of Survivorship” which gave each of them the power to buy and sell securities on margin or otherwise, and which also provided that:

In the event of the death of either or any of the undersigned, the entire interest of the joint account shall be vested in the survivor or survivors on the same terms and conditions heretofore held .... The undersigned request that the said Joint Account be carried under the following designation: Joe E. Sacks and Mrs. Ethel Griffin as Joint Tenants with the Right of Survivorship and not as Tenants in Common.

In June, 1960, the same parties entered into a similar agreement with the brokerage firm of H. Hentz & Company. Paragraph 2 of this agreement reads:

We hereby state that we are: (a) joint tenants with right of survivorship and not tenants in common. In the event of the death of either or any of us, the entire interest in the account shall be vested in the survivor, or survivors . . . and the estate of the decedent shall have no interest in the assets at the date of death or its operation thereafter.

At the time of the death of Joseph E. Sacks, the shares of stock in the accounts with the two brokerage firms exceeded 20,000 in number, with a net value in excess of $115,000. Except for 1537 shares issued directly by certain corporations in the names of Joseph E. Sacks and Ethel Sacks as joint tenants, the remainder of the shares were carried in the name of the brokerage firm. Such stock is referred to as being in the street name; a common practice when the parties are buying on margin, as the Sackses were.

The petitioners concede that the 1537 shares issued in the names of Joseph E. Sacks and Ethel Sacks as joint tenants belong to Ethel Sacks and are not part of the estate. They contend, however, that the remainder of the shares, issued in the two brokerage firms’ names, belong to the estate of Joseph E. Sacks on the ground that the parties did not create a valid joint tenancy under the general provisions of the statute governing joint tenancy (c 76, § 2, Ill Rev Stats 1965) or subsection (b) of section 2 of said statute which concerns stock issued by corporations or other entities.

The general provisions of section 2 of the aforementioned statute state that joint tenancy with right of survivorship is abolished except as to executors, trustees, or where by will or by other instrument in writing there is expressed an intention to create a right of survivorship in personal property. The appellants contend that the signed agreements do not come within the exceptions and rely primarily on In re Estate of Wilson, 404 Ill 207, 88 NE2d 662 (1949), and Illinois Public Aid Commission v. Stille, 14 Ill2d 344, 153 NE2d 59, arguing that under the authority of these cases, in order to create a right of survivorship within the exceptions of the general provisions of the statute, there must be an actual transfer of personal property to the joint tenants by a written agreement ; that the parties failed to effectuate such transfer and therefore Ethel Sacks did not meet the burden of establishing the existence of a joint tenancy in personal property with the right of survivorship.

The general rule is that title to stock passes directly to the customer on a purchase by his broker for the customer’s account, and this is true even though the broker retains possession of the stock. Murphy v. Sincere, 299 Ill App 580, 582,20 NE2d 610 (1939).

According to most of the cases, the title to securities purchased by a stockbroker vests immediately in the customer whether the purchase is on margin or otherwise, and even though the broker retains possession of the stock certificate or the customer has paid nothing on the purchase price. Under this rule, the customer for whom a broker purchases stock is the owner thereof from the time of purchase, whether purchased in his name or not. There is some authority, however, that upon receiving the stock, title is in the broker with beneficial ownership in the customer. 12 Am Jur2d, § 131.

In either event there is a transfer which vests at least an equitable title in the customer. There is a transfer from the last owner to the customer with the title vesting in the broker in his fiduciary relationship. The transfer in the present case is recorded on the brokerage firms’ accounts for the Sackses and these accounts are listed as accounts with right of survivorship.

The appellants’ comparison of the agreement in this case with the application for a safety deposit box in In re Estate of Wilson, supra, and Illinois Public Aid Commission v. Stille, supra, is not valid. In those cases the parties signed a card which was stamped with the words “Joint Tenancy with Right of Survivorship.” Such joint tenancy was held to be a mere joint tenacy for access to the box. There was not sufficient evidence to show that there had been a delivery of the contents into joint possession. In the present case each time a purchase was made the brokerage firm made an entry crediting the Sackses’ account with the number of shares purchased. The agreements signed by the Sackses could be considered as an agreement between them on the one side and the brokerage firm on the other. However, they may also be considered as an agreement between them — an agreement spelling out that they desire that a joint tenancy with right of survivorship be established. The agreements state that upon the death of one, the entire interest shall vest in the survivor and, in addition, the agreement with H. Hentz & Co., further specifies that the decedent’s estate shall have no interest in the assets of the account.

The transfer of the stock from the seller to the broker and the subsequent credit entry in the account of the Sackses together with the signed agreements, clearly expressing the parties’ intentions, is ample evidence of a written instrument to comply with the general provisions of the aforesaid statute.

Was there also statutory authority for the creating of a joint tenancy under section (b) of the aforesaid statute? Section (b) provides as follows:

When shares of stock, bonds or other evidence of indebtedness or of interest are or have been issued or registered by any corporation, association or other entity in the names of two or more persons as joint tenants with the right of survivorship, such corporation, association or other entity and their respective transfer agents may, upon the death of any one of such registered owners, transfer said shares of stock, bonds, or other evidences of indebtedness or of interest to or upon the order of the survivor . . . without inquiring into the existence, validity or effect of any such will or other instrument in writing or the right of such survivor ... to receive the property, and without liability to any other person whomsoever might claim an interest in or a right to receive . . . the property so transferred.

Frey v. Wubbena, 26 Ill2d 62, 185 NE2d 850, declared that registration of stock in the joint names on the books of a corporation is sufficient to vest title in the survivor whether an agreement has been signed by the parties or not; that the provisions of section (b) were broad enough to uphold a right of survivorship in a savings and loan account since the act extended to evidence “of interest” issued by an association; that “promissory notes when drawn in appropriate language, are instruments in writing within the meaning of Section 2, (Ill Rev Stats 1961, c 76, par 2,) and constitute exceptions to the provision, abolishing joint tenancy in personal property”; and that where a statutory right of survivorship exists it is unnecessary to follow the common law principles of joint tenancy.

Appellants contend that since the shares were registered in the names of the brokerage firms and not the Sackses, section 2(b) of the statute does not apply. To our knowledge this question has never been considered by this or any other jurisdiction. However, we believe that a reasonable interpretation of section (b) must impel us to conclude that the credit accounts of the brokerage firms were “other evidences ... of interest” issued by an “entity” in the names of two or more persons. To hold that every share of stock must be registered in the individual tenant’s name would lead to harsh and undesirable results.

Shares of stock are purchased through a broker, in the “street name” for two reasons — for the convenience of the parties, and out of necessity and convenience in the case of a margin account. In a recent New Jersey case the court held that the owners of stock registered in a “street name” could object to a proposed plan of reorganization and seek appraisal of the stock. Bohrer v. United States Lines Co., 92 NJ Super 592, 224 A2d 348 (1966).

The presently prevailing philosophy demands a recognition of the realities of modern stock practices and the necessity to afford such protection to stock beneficially owned as is not inconsistent with protection of the corporation rights. Id. at 351.

There are undoubtedly many people who have entered agreements similar to the ones in the instant case, fully expecting that upon the death of one of them the shares will pass immediately to the survivor. Brokerage firms have the same expectations and, as in the present case, at the time of death transferred the shares to the survivor in compliance with their expressed wishes. The appellants wish to change this practice because the legislature did not specifically mention this manner of owning stock. Without straining the ordinary meaning of the words of the statute a joint tenancy with right of survivorship may be created in shares of stock issued in the “street name.” We next discuss the question concerning the proceeds of the “land trust.” In 1958 Joseph E. Sacks entered a trust agreement with the Cosmopolitan National Bank of Chicago, appointing the bank as Trustee of a twelve-unit apartment building. The trust agreement provided :

The following named persons shall be entitled to the earnings, avails and proceeds of said real estate according to the respective interests herein set forth, to wit:
The entire interest in JOSEPH E. SACKS. Upon the death of the said JOSEPH E. SACKS, then to MILDRED SOROSKY and RUTH FISCHER, in equal shares.

It is UNDERSTOOD AND AGREED . . . that the interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title . . . and to manage and control said real estate . . . , and the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said real estate and that such rights in the avails of said real estate shall be deemed to be personal property, . . . and that no beneficiary hereunder at any time shall have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds as aforesaid.

The agreement also provided:

While The Cosmopolitan National Bank of Chicago is the sole owner of record of the real estate referred to herein, and so far as the public is concerned, has full power to deal therewith, it is understood and agreed by the parties hereto . . . that said The Cosmopolitan National Bank of Chicago will . . . convey title to said real estate, execute and deliver deeds for or otherwise deal with the title to said real estate only when authorized to do so in writing and that it will ... on the written direction of JOSEPH E. SACKS or on the written direction of such person as may be beneficiary or beneficiaries at the time, make deeds for, or otherwise deal with the title to said real estate. ... If any property remains in this trust twenty years from this date it shall be sold at public sale by the Trustee on reasonable notice, and the proceeds of the sale shall be divided among those who are entitled thereto.

At the direction of Joseph E. Sacks the Bank entered into Articles of Agreement for Trustee’s Deed with a third party. This agreement was for the sale of the subject property for the sum of $80,000; $15,000 down and $548.52 per month, until the balance, including interest, was paid. In accordance with the agreements, these sums were paid to the Lake Shore National Bank for credit to the checking account of Joseph E. Sacks. At the death of Joseph E. Sacks the unpaid balance was approximately $61,000. Since his death, the payments have been made to his sisters, Ruth Fischer and Mildred Sorosky.

Appellants contend that the Articles of Agreement for Trustee’s Deed were improperly turned over to Ruth Fischer and Mildred Sorosky and seek to compel them to turn over the agreement to Ethel Sacks, administratrix, so that it may be inventoried in the decedent’s estate. They argue that the sale of the property was the sale of the trust res which would terminate the trust and divest the appellees of their remainder; that since the original conveyance to the trustee included both the legal and equitable title to the property, the equitable title passed to the vendees at the time of the contract for sale of the property; that therefore there is nothing in the trustee but the naked legal title, which is held for the benefit of the vendees and nothing remaining in the trust which could attach to the appellees’ interest.

The sole question for consideration is whether the articles of agreement for Trustee’s Deed terminated the trust and thereby destroyed the appellees’ interests. In the case of Schumann-Heink v. Folsom, 328 Ill 321, 159 NE 250 (1927), involving a business trust, the court stated:

If the declaration of trust . . . creates a trust and there is nothing in it which is against the public policy of this state, then the decision . . . depends upon the application of well established principles of the law of contracts and trusts. Id. at 326-327.

General rules of construction of written instruments apply to the construction of trusts. The purpose in construing a trust is to determine the intent of the settlor.

In the case of a trust based on a written instrument, the intention of the trustor is to be ascertained from the language thereof, and the court may not go outside the language in an effort to give effect to what it conceives to have been the actual intent or motive of the trustor. If the language is unambiguous and perfectly clear, there is no field for the play of construction; if the trustor has clearly expressed an intention, the court cannot impute to him another .... 54 Am Jur 35.

The trust agreement clearly states that the beneficiaries have “the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said real estate. . . .” Thus, by the agreement itself, proceeds from the sale or other disposition of the property were to be paid to the deceased during his lifetime and thereafter to the appellees.

The appellants’ argument that the sale of the property was the sale of the trust res is in conflict with the expressed intention of the settlor. “In general, any right, interest or thing which may be the subject of property may be granted in trust.” Burke v. Burke, 259 Ill 262 at 268, 102 NE 293. The trust res was the apartment building and upon its disposition, the proceeds of this disposition becomes the subject matter of the trust. This was the expressed intention of the grantor.

The only evidence showing his intention is the trust agreement itself, and the intention there stated is that upon his death proceeds from the sale or other disposition of the property is to vest in the appellees. Where the words used in a trust agreement are plain and their meaning clear, the plain intention will prevail over the presumed intention. Storkan v. Ziska, 406 Ill 259, 94 NE2d 185 (1950).

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

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    Irene Rago, as Administrator of the Estate of Joseph L. Rago, Deceased, Plaintiff-Appellant, Cross-Defendant-Appellee, v. Cosmopolitan National Bank, as Trustee, Chicago Title & Trust Company, as Trustee, Roberta E. Dale, John R. Winterbotham, as Trustee, and Unknown Owners, Defendants-Appellees, Roberta E. Dale, Cross-Plaintiff-Appellant.
    Gen. No. 51,557.
    First District, Second Division.
    November 10, 1967.

      Dominic Rossi, of Chicago (Alphonse Cerza, of counsel) , for appellant.
    Torme & Horwich, of Chicago, for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This was an action in equity to foreclose a junior mortgage brought by plaintiff, Irene Rago as administratrix of the estate of the decedent-mortgagee, Joseph Rago, her husband, wherein the mortgagor and principal defendant, Roberta Dale, filed a cross-complaint to have her promissory note, together with the mortgage securing it, declared void and removed as a cloud upon title. Defendant, Roberta Dale, was the beneficial owner of the encumbered premises, an apartment building located at 2128 North Cleveland Avenue in the City of Chicago, pursuant to a land trust agreement with the defendant, Cosmopolitan National Bank under Trust No. 10143.

Plaintiff appeals from that portion of the decree which overruled her exceptions to the Master’s Reports dismissing the foreclosure for want of equity, which granted the prayer of defendant’s cross-complaint, and which assessed certain costs and fees against plaintiff. It is the theory of plaintiff’s case: (1) that defendant failed to rebut plaintiff’s prima facie case under the applicable provisions of the Uniform Commercial Code, and (2) that the Chancellor erred in assessing improper as well as excessive elements of costs against plaintiff.

Defendant cross-appeals from that portion of the same decree which assessed one-half of the Master’s fee ($600) against her. Relative to plaintiff’s appeal, it is the theory of defendant’s case: (1) that the evidence offered manifestly supports the decree entered, and (2) that the charges assessed plaintiff for attorney’s, trustee’s and court reporter’s fees were reasonable in amount and proper. As to her separate cross-appeal, it is defendant’s theory that the Chancellor erred in assessing one-half of the Master’s fee against her.

No questions are raised on the pleadings. Save the errors assigned to the assessment of costs and fees, the pivotal issue involved in this appeal is, essentially, whether or not defendant has proven a failure of consideration for the junior trust deed. The facts as they pertain to that single question will be limited accordingly.

The extent of the evidence offered by plaintiff in support of her contentions before the Master consisted of Plaintiff’s Exhibits 1 through 5 inclusive. Exhibit 4 is a letter of direction, dated November 7, 1962, authorizing Cosmopolitan, as trustee, to sign the installment note and subject trust deed, with an attached receipt for said documents’ delivery, all bearing defendant’s signature. Exhibit 3 is the trust agreement with Cosmopolitan, dated August 23, 1960, which designates defendant as the sole beneficiary thereof. Exhibits 1 and 2 are the junior trust deed and installment note respectively, both of which are dated November 7, 1962, and made payable to bearer in the principal sum of $22,000. The mortgage and note recite that the first payment thereunder was due on January 1,1963.

Plaintiff testified that she had first become cognizant of the note and mortgage about a month after the mortgagee’s death on January 16,1964, but admitted, on cross-examination, that she did not know whether the decedent had paid any money for the mortgage. Thereupon, plaintiff rested her case.

Defendant admits execution of the mortgage and note by and through Cosmopolitan. She alleges, however, that both instruments are null and void for failure of consideration. In support of that contention by defendant, the following testimony was offered.

John Iacono, the attorney who had prepared the trust deed and note in behalf of the decedent, Joseph Hago, testified that after he had delivered the instruments in their final form to his client, he had never been requested to collect any payments thereunder.

Phillip Dindia testified to having known both the decedent and the defendant for several years. He stated his relationship with the two stemmed primarily from periodic social engagements he and his wife would share with the decedent and defendant, whom the witness stated were having a love affair. Dindia acknowledged that he had been aware of the mortgage between the two, and that he had understood it had been intended to finance some remodeling work in defendant’s multidwelling apartment building. Defendant, in this conjunction, offered into evidence Defendant’s Exhibit 2, a set of plans for the proposed renovation. Thereafter, Dindia testified to certain remarks made by the decedent-mortgagee in response to Dindia’s inquiries regarding the mortgage.

These conversations were alleged to have taken place in May and December of 1963, at which times the decedent is purported to have said:

“Phil, I am afraid of losing Bobbie (the defendant). Her and I aren’t getting along too well, .... I created the mortgage scheme or bit, ... in order to hold some sort of clout or object over her head .... Phil, I don’t want to lose her.”

Responding to a further inquiry by Dindia, the decedent was alleged to have said:

“No, I did not give her any money. ... I am holding this, and I am going ahead and going to make her suffer.”

Subsequently accused by Dindia of never having made any payment to the defendant under the mortgage, the witness stated that the decedent replied:

“I know that, I don’t intend to collect the mortgage, and someday I may release it.”

Dindia’s wife, Paula, testified to essentially the same sequence of events and corroborated her husband’s account of the relationship between the parties. She, however, stated that she had been unable to overhear the substance of any of the conversations had between the decedent and her husband in regard to the mortgage.

Marie Donnelly, who lived with defendant, similarly testified as to the relationship of the defendant and decedent, both of whom she had known for several years. The witness purported to have overheard a conversation between the two parties in November or December of 1963, that when the defendant asked decedent why he made her sign the mortgage without giving her any money for it, the decedent replied:

“I’ve got you where I want you. Wait until Marie (the witness) leaves, and I’ll tell you more.”

This was the extent of the evidence offered by defendant before the Master. Nothing was offered by plaintiff in rebuttal, nor did plaintiff, at any juncture in the proceedings below, submit any receipts or memoranda to evidence the receipt of payment/s from the decedent-mortgagee.

On April 29, 1966, a decree was entered overruling plaintiff’s exceptions to the Master’s Reports and approving the findings and conclusions therein. The Master had found that while plaintiff had established a prima facie case, defendant had proven by uncontésted testimony and documentary evidence that the agreed consideration for the trust deed had never been paid. It was his recommendation that the trust deed be declared void and removed as a cloud upon defendant’s title. The Master fixed his fee at $1,400. The Chancellor subsequently reduced the Master’s fee to $1,200 taxing one-half to each of the two principal litigants. Plaintiff, in addition thereto, was ordered to pay $154.40 to defendant, for certain stenographic expenses incurred; $60 to Cosmopolitan for a trustee’s fee; and $342.80 to John H. Winterbotham (attorney for the trustee of the senior mortgage, Chicago Title and Trust Company) for attorney’s fees. It is from this decree that the cross-appeals are taken.

The litigants are in agreement in regard to the applicability of the Uniform Commercial Code, the instruments having been executed after July 1, 1962. (Ill Rev Stats (1965) c 26, par 10-101.) They do disagree, however, as to whether article 3 (Commercial Paper) or article 8 (Investment Securities) is controlling in this particular case. By their admissions, the choice is not decisive to the issue presented. While we are in agreement, in the interests of consistency, a choice nonetheless must be made. Inasmuch as the instant trust deed makes specific reference to the indebtedness as evidenced by defendant’s note, of even date, and the mortgage is generally treated merely as a security for and incident of the note, we feel that it can be reasonably said, for our limited purpose of discussion here, that the instant case falls within the provisions of the article relating to Commercial Paper. Lundy v. Messer, 25 Ill App2d 513, 167 NE2d 278 (1960); Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433 (1959). Cf. Marks v. Pope, 370 Ill 597, 19 NE2d 616 (1939). No violence to the language of article 8, section 102(1) (b) however is intended.

Plaintiff below affirmatively established her prima facie right to foreclosure of the mortgage. The long established rule, which has remained substantially unchanged since the inception of the Code, is that the mere possession and production into evidence by the holder of a note and trust deed, the execution and default in the performance of which is established, entitles that holder to a prima facie basis for recovery thereon, unless and until, the defendant interposes and establishes a defense. See section 3-307 (2) plus comment to subsection (2), Miller v. Swanson, 66 Ill App2d 179, 213 NE2d 294 (1965); In re Estate of Ruebush, 53 Ill App2d 54, 202 NE2d 344 (1964).

The questioned trust deed and note, both payable to bearer, were in the possession of and offered into evidence by plaintiff. Plaintiff was a “Holder” within the meaning of the statute (Ill Rev Stats (1965) c 26, par 1-201(20)) and thereby legitimately entitled, prima facie, to recovery on her prayer, with the burden of preponderating on the defense of failure of consideration shifted to defendant. See section 3-307(2), Miller v. Swanson, 66 Ill App2d 179, 213 NE2d 294 (1965); In re Estate of Ruebush, 53 Ill App2d 54, 202 NE2d 344 (1964).

As to defendant’s defense, plaintiff has exhaustively attacked both the credibility and probative value of the testimony so offered. With citation to authorities, plaintiff emphasizes the definition of legal consideration, in its broader or more generic sense. Plaintiff submits that the evidence, at best, established the absence of payment in money only and not the failure of a consideration in one of its many other forms.

We disagree with plaintiff’s contention because it attempts to view consideration in a vacuum, rather than as it relates to the entirety of the evidence adduced. Plaintiff, herself, admits that she did not know of the mortgage until a considerable time after Joseph Rago died, and that she similarly did not know whether any money had been paid for it. The mortgagee’s attorney, Iacono, had never been requested to collect any payments in any form thereunder. The uncontradicted and corroborative testimony of defendant’s witnesses, moreover, established that the mortgage was a continuing scheme or plan to perpetuate the decedent’s relationship with defendant, not simply, as plaintiff suggests, that no money was paid. Such a conclusion is further buttressed by the fact that the decedent took no legal action on his security interest during his lifetime, notwithstanding the default in payments for in excess of a year on the date of his death, with the total indebtedness thereby becoming due under an acceleration clause. This again lends credence to the decedent’s purported admission that he did not intend to collect on the mortgage. We feel the evidence established that no payment in any form was ever made or ever intended to be made.

Plaintiff further assails the suspect nature of the proffered extrajudicial statements of the deceased, again with citation to authority. Unlike the cases relied upon however, the testimony being scrutinized, when analyzed in its totality, was not improbable, was corroborative in nature, and of particular significance, could have easily been discredited by the production of signed receipts for value received, or other evidence of consideration.

Defendant’s witnesses were clearly shown to have been disinterested nonparties, their testimony not serving any particular personal gain. There is no merit in plaintiff’s contention that the witnesses were incompetent to testify under the Dead Man’s Statute (Ill Rev Stats (1965) c 51, pars 1 and 2), Huff v. State Bank & Trust Co., 414 Ill 111, 110 NE2d 449 (1953). Accordingly, the findings and conclusions of the Master as approved by the Chancellor, were resolved solely upon the question of the credibility of the witnesses, a determination which cannot be disturbed by this court absent a showing that the findings were contrary to the manifest weight of the evidence. Miller v. Swanson, 66 Ill App2d 179, 213 NE2d 294 (1965); Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433 (1959).

A valid defense being established, the burden was upon plaintiff to show wherein she was unaffected by failure of consideration; viz., she, or someone under whom she claimed, was in all respects a holder in due course of the note evidencing an indebtedness. (Section 3-307 (3) plus comments to subsection (3).) This plaintiff failed to do, offering no testimony or documentary evidence in rebuttal whatsoever. Eldred v. Williamson, 33 Ill App2d 10, 178 NE2d 414 (1961). Nor can it be urged that plaintiff acquired the status of a holder in due course simply by virtue of taking over as the administratrix of decedent’s estate. See section 3-302(3) (b). Such a rule has long been established, founded upon the theory that the representative of an estate is not a purchaser for value before maturity without notice, hence acquiring no greater rights than those possessed by the decedent during his lifetime. Eldred v. Williamson, 33 Ill App2d 10, 178 NE2d 414 (1961); Kuhlmeyer v. Butz, 215 Ill App 414 (1919). The evidence offered by defendant supports that portion of the decree which dismissed the foreclosure action and granted the prayer of defendant’s cross-complaint.

Regarding her objections to the fees and costs assessed, plaintiff submits that by virtue of the repeal (effective August 24, 1965) of paragraph 38 of the Fees and Salaries Act (Ill Rev Stats, c 53), the Master below was without his statutory and exclusive power to charge for fees or expenses of court reporting and transcription, or that in the alternative, such fees and expenses were excessive under the statute.

It appears that the Master below was commissioned, by order of the Circuit Court, to act in his official capacity until December 6, 1965, a date subsequent to his final disposition of the instant case, and thus within the provisions of the savings clause of paragraph 8 of the new Judicial Article (Ill Const (1964) art VI, par 8). That clause provides for the continuation in office of a Master under certain limited conditions, notwithstanding the general abolition in Illinois of the Office of Master in Chancery. While the clause does not so provide expressly, it is our opinion, that a fair construction of the language therein would entitle a Master continuing in office under its terms to a reasonable compensation for services rendered. See House of Vision, Inc. v. Hiyane, 37 Ill2d 32, 225 NE2d 21 (1967). With plaintiff’s second argument as to the costs of reporting and transcription, we similarly disagree. The reason being as to either alternative offered, that the contention is simply inapposite on the point of law urged. Plaintiff relies upon paragraph 38 of the Fees and Salaries Act which purports only to regulate the maximum expenses which can be charged by the Master and made payable to him. Here, plaintiff has evidently overlooked the fact that the costs were ordered payable to the defendant, not to the Master.

We do find merit, however, in plaintiff’s contention that the $1,400 charged by the Master for his fee was excessive and unreasonable. It does not appear from the record that plaintiff was afforded a full and formal hearing on the subject by the Chancellor, who upon plaintiff’s objection, summarily reduced the sum to $1,200. Moreover, the Master’s certificate of charges was not properly itemized, so that this court could ascertain the propriety of each specific service or expense. While there were but two hearings conducted involving the depositions and testimony of only seven witnesses and 73 pages of transcribed testimony or argument, it would be impossible, upon the record before us, to determine the fee to which the Master was entitled. Basinski v. Basinski, 20 Ill App2d 336, 156 NE2d 225 (1959). Accordingly, there should be a hearing conducted below so that the amount can be accurately and justiciably determined. Cf. Galler v. Galler, 45 Ill App2d 452, 196 NE 2d 5 (1964), (reversed on other grounds) 32 Ill2d 16, 203 NE2d 577 (1964).

We further find that the $342.80 fee to the attorney for the trustee of the senior mortgage as well as the $60 trustee’s fee to Cosmopolitan were improperly assessed against plaintiff and should be disallowed. The rule has long existed that in the absence of some statute or an agreement or stipulation between the parties which specifically authorizes the allowance thereof, a court of Chancery cannot tax the costs incident to litigation against the unsuccessful party. Rasch v. Rasch, 278 Ill 261, 115 NE 871 (1917); Ritter v. Ritter, 381 Ill 549, 46 NE2d 41 (1943). As to fees of the attorney representing the senior mortgage, it was stipulated from the onset of hearings below, that the instant case would be unaffecting as to the superior rights of that first mortgage. As to Cosmopolitan’s fee as trustee, contrary to defendant’s suggestions, we can find no language in the subject trust deed which would import any obligation upon the holder thereof to assume any expenses incidental to a foreclosure on his or her security. Metropolitan Life Ins. Co. v. Kinsley, 269 Ill 529, 109 NE 1011 (1915). Cf. Sentry Royalty Co. v. Craft, 79 Ill App2d 410, 226 NE2d 282 (1967).

Finally, as to her separate cross-appeal, defendant submits that having prevailed in her positions in both the complaint and her cross-complaint, the Master’s fee should have followed the decree and been borne en toto by plaintiff. We disagree. The power to assess costs is vested in the sound discretion of the Chancellor, absent a showing of wherein that discretion has been abused, it should not be disturbed. Clearly, the Chancellor below was not without justification in taxing one-half of the Master’s fee (as it will stand in its reduced sum upon remandment and hearing) against defendant. Her cross-prayer was unnecessary, it being an ancillary form of relief which would have come on a determination of the case in chief. Lee v. City of Chicago, 31 Ill2d 252, 201 NE2d 361 (1964).

For the above reasons that portion of the decree which dismissed plaintiff’s foreclosure complaint for want of equity, declared the junior trust deed void and removed as a cloud upon defendant’s title, and directed that one-half of the Master’s fee be paid by defendant, is affirmed; that portion of the decree which assessed the $342.80 attorney’s fee and the $60 trustee’s fee against plaintiff is reversed; and that portion of the decree which allowed $1,200 as fees to the Master is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Affirmed in part, reversed in part and remanded with directions to proceed in a manner not inconsistent with this opinion.

BURKE and BRYANT, JJ., concur.


author: MR. JUSTICE BURKE

text:
    Tau Delta Phi, Tau Eta Chapter, Building Association, an Illinois Not for Profit Corporation, Plaintiff-Appellee, v. Sophie Gutierrez, Defendant-Appellant.
    Gen. No. 51,756.
    First District, Second Division.
    November 10, 1967.

      John H. Galgano and Patrick A. Barton, of Chicago, for appellant.
    Morgan, Halligan, Lanoff & Cook, and James A. Forkins, of Chicago (Samuel M. Lanoff, John A. Cook and Edmund Gronkiewicz, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court:

This was a complaint for specific performance of an option for the sale of real estate owned by defendant. A summary decree was entered for plaintiff and defendant appeals.

On January 22, 1960, plaintiff Tau Delta Phi, as lessee, and defendant Sophie Gutierrez, as lessor, entered into a lease agreement covering the premises at 6000 North Sheridan Road in Chicago. The realty, improved with a two-story dwelling and a two-car garage, was to be used as a fraternity house for Loyola University students. The term of the lease was to run through January of 1963 at a monthly rental of $350. The lease was drawn in the presence of defendant and her attorney, the president and the secretary of plaintiff, and Mr. James Forkins, attorney for plaintiff.

In addition to the standard form of lease, a rider was attached giving plaintiff an option to purchase the premises for the sum of $51,500 upon due notice to defendant. The agreement provided that upon the exercise of the option the parties were to execute a contract for the sale at the stated price, the terms of which were to be $10,000 in cash and a purchase money mortgage in the amount of $41,500 with interest at 6 percent per year, payable monthly over a fifteen year period. The rider also provided for the payment by defendant of $350 to a real estate broker as commission for obtaining the lease and the payment of an additional commission of $1,500 if the option was exercised.

On January 22, 1963, nine days prior to the expiration of the 1960 agreement, a second lease and option was executed by the parties. It is upon this latter document that the instant suit is predicated. The second lease and option differed from the first in the following respects: the term of the lease was to run through May of 1966, the end of the year’s school term; the rent was increased from $350 to $400 per month; the purchase price under the option was reduced to $50,000 and the mortgage amount reduced to $40,000; and the real estate broker’s commission was eliminated. The option was to be exercised, if at all, at any time during the duration of the lease before January 1, 1966. Both the first and the second leases described the premises demised as “6000 North Sheridan Road”; the 1960 option reserved the right to the lessee to insert the legal description, whereas the 1963 option made no such reservation.

On December 27, 1965, the members of plaintiff voted to exercise the option and authorized attorney James Forkins, who had represented plaintiff in the negotiations for the two leases and options, to exercise the option on behalf of plaintiff. At the same time, a check was drawn to the order of Mr. Forkins, as attorney for plaintiff, covering the $10,000 cash payment called for upon the exercise of the option. Mr. Forkins then sent a letter to defendant on December 28th stating plaintiff was thereby exercising the option, but defendant failed to respond to the communication. A second letter was sent to defendant on January 10th urging defendant to cooperate, but defendant again failed to respond. This complaint for specific performance was filed on January 27,1966.

Defendant filed a motion to strike the complaint alleging that the option agreement and lease failed to definitely describe the real estate involved; that the language of the option agreement was so uncertain and ambiguous that a court of equity could not decree its specific performance; that the contract for sale which was contemplated by the option and which the complaint sought to have executed in accordance therewith contained terms which were not ascertainable until some later date; and that the alleged notice of exercise of the option lacked mutuality and was insufficient to bind plaintiff to the execution of the contract for sale. The motion to strike was dismissed and defendant was ordered to file an answer.

Defendant’s answer stated that the legal description set forth in the complaint encompassed the common addresses of 6000, 6002 and 6004 North Sheridan Road, not simply 6000 North Sheridan Road as alleged in the complaint; that the plaintiff’s attorney drew the lease and option in question contrary to the agreement entered between the parties in that the purchase price should have been $51,500; that the option agreement is ambiguous and uncertain in that the seller is required to give a mortgage to the buyer; that the monthly mortgage payment item in the document was left blank; and that the alleged notice of exercise of the option was insufficient to bind plaintiff inasmuch as it was not signed by plaintiff through its duly authorized officers. The answer further alleged that in June of 1965, the officers of plaintiff advised and informed defendant that plaintiff had no intention of exercising the option; the answer also denied that plaintiff tendered the down payment in accordance with the option requirements.

Plaintiff thereafter filed a motion for summary decree based upon the affidavit of its president, James Moreno, stating facts relating to the exercise of the option on December 28, 1965, and the tender of the $10,000 down payment as contemplated by the option. Also attached to the motion was plaintiff’s written authorization to Mr. Forkins to exercise the option to purchase.

Defendant filed a counter-affidavit stating that she was unacquainted with Mr. Moreno and that she never had dealings with him; that on or about January 22, 1963, she negotiated for the 1963 lease with John Hannan, plaintiff’s then secretary, and it was specifically agreed that the new lease would be exactly in accordance with the 1960 lease except that the duration of the lease and the monthly rental would be changed; that she relied upon the understanding thus arrived at and signed the 1963 lease without a close examination of the same; and that it was only after the present controversy arose that she learned for the first time that the option price was $50,000 instead of $51,500. The counter-affidavit further alleged that on or about June 1, 1965, she had been informed by plaintiff’s then president, Thomas Murray, that plaintiff had no intention of exercising the option and that John Hannan, by telephone, confirmed this fact and advised defendant to make plans for the premises accordingly; that on June 23, 1966, John Hannan confirmed the aforesaid telephone conversation of 1965, but that Hannan said he would not execute an affidavit to that effect. It was further alleged that the purported notice of exercise of the option was not accompanied by a written authorization of plaintiff; that on November 17, 1964, defendant assigned the lease to a savings and loan association as additional security for a mortgage note; that defendant was 73 years old, not conversant with the English language and relied upon plaintiff to draw the 1963 lease in accordance with the oral agreement reached with plaintiff’s officer; and that pursuant to plaintiff’s statement that the option would not be exercised, defendant incurred considerable expense in having plans prepared in connection with the future use of the premises and sold her home in Central America in order to raise funds necessary to carry out the plans.

Defendant caused depositions to be taken from Thomas Murray and John Hannan. It was stipulated between the parties to this action that the depositions could be used as evidence at the hearing on the motion for a summary decree. John Hannan testified that he was secretary of plaintiff from November of 1959 to May 31, 1965. To the best of his recollection he did not receive a telephone call from defendant in June of 1965 advising him of a conversation between defendant and Thomas Murray concerning plaintiff’s unwillingness to exercise the option. Hannan testified that defendant came to his business office on June 3, 1966, and asked him to execute a prepared affidavit concerning the alleged telephone conversation, but that he told defendant that the matters contained in the affidavit were untrue and that he would not sign it. Hannan further testified that on June 9, 1966, he had a discussion with defendant’s son at which time he again refused to sign the affidavit. Hannan stated that defendant and her son threatened to expose him before his employer; that they stated they had influential friends, who were politicians and judges, who said defendant had a “very good case” against plaintiff; and that another friend who was the real estate editor of a local newspaper was interested in the case and “wanted to blow the whole thing up in the city newspaper.” Concerning the negotiations for the 1963 option and lease, it was further testified by Hannan that it was agreed upon that the duration of the lease and the monthly rentals would be different from the 1960 lease, that the $1,500 broker’s commission would be eliminated from the 1963 lease, and that the purchase price under the option was to remain the same as in the 1960 lease, namely, $50,000, the amount due defendant after deduction of the broker’s commission.

Thomas Murray testified that he was the newly elected president of plaintiff at the time Hannan resigned as secretary in May of 1965. He stated that he was authorized by plaintiff sometime in June of 1965 to discuss with defendant the rental of the premises and-the exercise of the option. It appears the plaintiff found the building somewhat difficult to maintain and too expensive at the time for its budget. Murray stated he discussed the situation with defendant and testified, “I never had a conversation with Mrs. Gutierrez in which I agreed that the option would be released without her also cancelling the lease.” The conversation was had in the presence of defendant’s son, William, who suggested that “things be left as they are.” Murray further testified that in January of 1966 defendant requested him to pre-date a letter as of June of 1965 wherein Murray was to state that plaintiff relinquished its right to exercise the option. Murray refused, stating he would then be liable to legal action by plaintiff. After the June 1965 meeting between defendant and Murray, it appears plaintiff continued to occupy the premises and to pay the rents required under the lease. It further appears that nothing was thereafter done or said with respect to the lease or the option agreement until December 28, 1965, when plaintiff exercised the option.

Also filed by defendant were the affidavits of her son and two grandsons to the effect that John Hannan was presented with a form of affidavit which Hannan stated contained true facts concerning plaintiff’s intention not to exercise the option, but that Hannan stated he was unable to sign it because he had been advised by his attorney not to sign anything in connection with the case, and that Hannan stated he recalled his conversation with defendant in June of 1965 which was to the effect that plaintiff was not going to exercise the option.

Defendant maintains on this appeal that an issue of fact existed as to whether or not plaintiff abandoned its right to exercise the option, or whether the parties had mutually rescinded or cancelled the option, and that the trial court was consequently without authority to enter a summary decree; that the description of the property contained in the lease was too indefinite to allow enforcement of the option agreement; and that the notice of exercise of the option was not binding upon defendant inasmuch as it did not bind plaintiff.

Defendant’s first contention, that the matters contained in the pleadings, affidavits, and depositions raised an issue of fact and that the trial court therefore erred in entering a summary decree, is without merit.

The purpose of the summary judgment proceeding is to test whether there exists a genuine issue of material fact and to summarily dispose of those cases wherein no such issue exists, thereby avoiding congestion of trial calendars and the expense of unnecessary trials. Ill Rev Stats 1965, Ch 110, Par 57; Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576; Giampa v. Sunbeam Corp., 68 Ill App2d 425, 429, 216 NE2d 233. Whether an issue of fact exists is to be determined from the pleadings, depositions, admissions and affidavits, if any, on file in the case. Giampa v. Sunbeam Corp., 68 Ill App2d 425, 216 NE2d 233. It clearly appears from the record that there exists no genuine issue as to any material fact.

Defendant claims there exists either a question whether the parties hereto mutually agreed to rescind the option agreement or a question whether plaintiff abandoned the option. The allegation is made that Thomas Murray informed defendant that plaintiff “had no intention of exercising the option to purchase” without any amplification of the context of the conversation between defendant and Murray. The allegation is also made that defendant made “plans” for the future use of the premises pursuant to the statement made by Murray, but again fails to allege what plans were made. These allegations amount to no more than conclusions of fact, unsupported by any facts admissible in evidence as required by Supreme Court Rule 191. A mere allegation that a triable issue of fact exists does not create such an issue.

The uncontradicted evidence given by Thomas Murray is that he never discussed the release of the option without discussing an immediate cancellation of the lease as well. When the question of the cancellation of the entire agreement arose, defendant’s son, in defendant’s presence, suggested that “things be left as they are.” Although the reason given by Murray for plaintiff’s election to discuss with defendant an immediate cancellation of the lease and option in June of 1965 was its financial difficulties, plaintiff nevertheless continued for six months after defendant’s refusal to cancel the lease to pay the monthly rental required under the lease which was accepted by defendant without question. Plaintiff furthermore continued to occupy the premises thereafter and it appears that nothing was done or said with regard to the cancellation of the lease or the option agreement until plaintiff elected to exercise the option in December of 1965. The defendant was unwilling to cancel the agreement when plaintiff offered to do so in June of 1965 and the lease and option remained in full effect thereafter and was acted upon by both parties; plaintiff was therefore within its rights under the agreement to exercise its option to purchase in December of 1965.

The cases cited by defendant in support of her position in this regard are inapposite to the factual situation herein. They involve either a mutual rescission or alteration of the agreement, or facts showing an outright repudiation of the contract, which is not true here. See Fisher v. Michigan Square Bldg. Corp., 328 Ill App 143, 65 NE2d 473; Printing Machinery Maintenance, Inc. v. Carton Products Co., 15 Ill App2d 543, 147 NE2d 443; Almar Forming Machine Co. v. F. & W. Metal Forming Machinery Co., 308 Ill App 151, 31 NE2d 415; Jones v. Dove, 382 Ill 445, 47 NE2d 447; Bonde v. Weber, 6 Ill2d 365,128 NE2d 883.

Defendant’s second contention is that the provisions of the option agreement are too uncertain to permit a court of equity to decree specific performance thereof. We disagree.

The first point raised is that the legal description of the premises ordered to be sold included the street addresses of 6000, 6002 and 6004 North Sheridan Road, whereas the agreement covers only 6000 North Sheridan Road. It appears that the 6000 North Sheridan Road address is the mailing address of the property and was employed by defendant when the 1960 lease was drawn by her attorney. The property is improved with a two-story dwelling containing twelve rooms or more and a two-car garage, and plaintiff has been in continuous possession thereof since 1960. The evidence is clear that the property referred to in the agreement and that referred to in the complaint and the decree are one and the same. See Macy v. Brown, 326 Ill 556, 563,158 NE 216.

Secondly, defendant claims the terms of payment of the mortgage are not fully set out in the option. However, the option provides for a $40,000 mortgage with interest of 6 percent per year amortized over fifteen years, including taxes. The monthly payments are, therefore, easily ascertainable.

Thirdly, defendant claims the agreement is ambiguous concerning the one who is to give the mortgage. The agreement has an obvious clerical error in calling for the lessor to deliver a mortgage to the lessee. Clearly the intent is that the lessee shall execute and deliver the mortgage. As stated in Welsh v. Jakstas, 401 Ill 288, 82 NE2d 53, at pages 294 and 295:

“The law enters into and forms a part of every contract, and a contract is sufficiently certain and definite to be enforcible if the court is enabled from the terms and provisions thereof, under proper rules of construction and applicable principles of equity, to ascertain what the parties have agreed to do. We are of the opinion the plain common-sense meaning of the option should prevail.” (Emphasis supplied.)

The remaining matters urged by defendant on this point have been considered and are found to be without merit.

Defendant finally maintains that the notice of exercise of the option was sent by plaintiff’s attorney, without any evidence of authority on his part to do so, and was consequently not mutually binding upon the parties. Plaintiff’s attorney, Mr. Forking, represented plaintiff with regard to the 1960 and 1963 leases and options, the letter exercising the option was signed by him as “General Counsel . . . Attorney for Lessees,” and defendant did not at any pertinent time question the authority of Mr. Forkins.to act for plaintiff.

Because we think that the court was right in allowing plaintiff’s motion the decree is affirmed.

Decree affirmed.

LYONS, P. J. and BRYANT, J., concur.


author: CREES, J.

text:
    Andrew Scott Keepes, a Minor Who Sues by Raymond Keepes, His Father and Next Friend, and Raymond Keepes, Plaintiffs, v. The Doctors Convalescent Center, Inc., a Corporation, Defendant. The Doctors Convalescent Center, Inc., a Corporation, Defendant Third-Party Plaintiff-Appellee, v. Great American Insurance Company, a Corporation, Third-Party Defendant-Appellant.
    Gen. No. 66-146.
    Fifth District.
    November 14,1967.

      Pope and Driemeyer, of East St. Louis (W. Thomas Coghill, Jr., of counsel), for appellant.
    Goldenhersh & Goldenhersh, of East St. Louis (Michael A. Katz, of counsel), for appellee.
   CREES, J.

This is an action for declaratory judgment on an insurance policy seeking to compel appellant Insurance Company to satisfy a judgment for personal injuries entered against appellee Convalescent Center in favor of plaintiffs, Andrew Scott Keepes, a minor, and Raymond Keepes. On motion of the Convalescent Center for summary judgment, the trial court entered judgment against the Insurance Company from which this appeal is taken.

On March 21, 1965, Andrew Scott Keepes, being then about 18 months old, was badly burned by coming into contact with a hot radiator. This infant had been mentally and physically retarded since his birth and had been living at the Convalescent Center for about four months prior to this occurrence.

The insurance policy had an endorsement labeled “Exclusion of Malpractice and Professional Service” which provided: “the policy does not apply to injury, sickness, disease, death or destruction due to

“1. The rendering or failure to render

“(a) medical, surgical, dental, x-ray or nursing service or treatment, or the furnishing of food or beverages in connection therewith,
“(b) any service or treatment conducive to health or of a professional nature.”

The principal point in dispute is whether or not this endorsement excludes coverage for this accident.

Plaintiff’s complaint in the original suit charged the Doctors Convalescent Center with the following acts of negligence:

“a) The defendant failed and omitted to exercise any supervision and control over said plaintiff when the defendant well knew the plaintiff, because of his age and disability, was totally unable to care for himself and to appreciate the dangers attendant upon coming in contact with a radiator.
“b) The defendant placed said child in a room where the danger of coming into contact with a hot radiator was well known to it, and because of plaintiff’s physical and mental handicap could not be appreciated by him.
“c) The defendant well knew that because of plaintiff’s physical and mental handicap constant care and attention of him was required and it failed to provide the same.
“d) After discovering the burns described in paragraph 6 above, the defendant permitted said child to remain in said premises unattended until the following day before giving the burns any medical care or attention, and thereby said burns were aggravated and the healing thereof was retarded.”

The insurance company defended this suit under a reservation of rights agreement.

At the trial of the principal case Cherry Keepes, the mother of Andrew, testified that doctors had told her there was nothing they could do for Andrew and he had been placed in the Convalescent Center in November, 1965, while waiting for an opening at the State Institution at Lincoln. The administrator of the Center testified that they took care of retarded children and that registered nurses, licensed practical nurses, nurses’ aids and doctors were employed for this purpose. A pediatrician had examined Andrew at the time he was admitted and found him to be mentally retarded and unable to move. A licensed practical nurse was supervising the building at the time of the accident. On the day of the occurrence, Susie McDonald, a nurses’ aid, took Andrew out of bed, laid him on a sheet on the floor and went to prepare his bath. She was gone from the room three or four minutes, leaving no adult in charge of the room, and when she returned Andrew had somehow gotten to the radiator. She then got the supervisor who sprayed something on the burns. The supervisor did not call the doctor although the nurses’ aid suggested this be done. On the basis of this evidence in the original trial, the court granted plaintiff’s motion for a directed verdict on the issue of liability.

Appellee’s motion for summary judgment in this case had attached the affidavit of Bernard Tureen, President of the Doctors Convalescent Center. It was in proper form and made the following fact allegations: Andrew was a resident in a home operated by Appellee which provided residential facilities for retarded children. Susie McDonald, the nurses’ aid, was employed as a maid and that, prior to her employment by Appellee, she had worked as an order filler for Alden’s a mail-order merchandise company. The affidavit also stated that Susie McDonald is not a nurse, has had no medical or nursing training, and does not perform any nursing services of any kind, her employment being limited to cleaning rooms, changing bedding and helping to feed and bathe the children. Professional services were to be rendered to Andrew only in event of illness and Andrew was not ill prior to the occurrence.

No counteraffidavits were filed.

Appellant contends that these facts bring the occurrence within the exclusion of the policy. We do not agree. No Illinois cases directly in point are cited by either side and the cases from other jurisdictions are in conflict.

The facts show that this was an injury caused by negligence. It was connected with normal living — the child was being prepared for a bath and the child was in what was then his home. While Susie McDonald was called a nurses’ aid, she was working as a maid. While the occurrence took place in the Doctors Convalescent Center, aside from the negligence which caused the injury, nothing was being done with the infant which would not be done in an ordinary home. A more difficult question arises as to subparagraph (d) of the complaint. While this is, in one sense, a failure to provide professional service, it is primarily a failure to perform a duty which devolves upon any person who has negligently injured another. Since we hold that the insurance company is liable for the negligence we hold they are also liable for the consequences of the negligence.

Appellant also objects to the allowance of attorney fees. The insurance company had a duty under its policy to defend the original suit. It did this except as to the motion for new trial. As to this third party action we find no duty on the insurance company to pay attorney fees unless it would come under c 73, § 767, Ill Rev Stats. Since counsel admits there are no Illinois cases in point, we hold the refusal to pay in this case is not vexatious and without reasonable cause.

Judgment affirmed except as to attorney fees; reversed and remanded as to attorney fees, with instructions to allow only reasonable attorney fees for preparing and presenting motion for new trial in the original suit.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis Bielecki, Defendant-Appellant.
    Gen. No. 51,213.
    First District, Fourth Division.
    November 16, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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 Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, Dennis Bielecki, was charged in a two-count indictment with indecent liberties with a child and attempted rape. He waived a jury and was tried by the court and found guilty of the indecent liberties charge. Judgment was entered on the finding and he was sentenced to a term of not less than two nor more than five years in the Illinois State Penitentiary. In this court defendant urges that the finding of the trial court was not supported by sufficient evidence.

Mrs. Linda Bielecki testified on behalf of the State that she was married to Dennis Bielecki, the defendant; that she had three children, two of whom were the defendant’s, and that he was not the father of her three-year-old daughter Jeanie. She continued her testimony as follows: She lived with her husband and the three children in a third floor apartment consisting of a living room, dining room, kitchen and three bedrooms. On June 10, 1965, the defendant, Mrs. Bielecki and the three children were present in the apartment. Mrs. Bielecki left at about 3 p. m. on that day to make a telephone call at a public booth two blocks away. When she returned in 10 or 15 minutes, her daughter Shirley was in the dining room and her son Dennis was on the couch. She walked through the house and into a bedroom where she saw her husband lying on the bed with Jeanie. She stated that she could not remember what clothing her husband had on below the waist; and that Jeanie “had a dress on. That is all.”

Mrs. Jean DeSalvo, the mother of Mrs. Bielecki, testified that her daughter was 19 years old and was married to the defendant in 1962; that on June 10, 1965, she had a telephone call from the defendant in the afternoon when he was out on bond after having been arrested; that she had talked to him before on the telephone and recognized his voice. She testified that the following conversation took place:

He said, “This is Dennis. I want to talk to you.” I said, “I don’t have anything to say to you.” He said, “No, listen to me.” He said, “Ask Linda to drop the charges.” And I told him, “No, I would not.” He said, “I cannot see why not, what all the fuss is about. After all, I didn’t have it all the way in her, . . .”

On cross-examination Mrs. DeSalvo stated that she was not called to testify before the grand jury, although she had testified before a hearing in Midlothian; that she did not talk to any police officers about the conversation with the defendant or the case. She was asked whether or not she liked the defendant, and she stated she did not like him for what he did and that she would like to see her daughter get a divorce from him.

Dr. John F. Ryan, a physician and surgeon, also testified. He stated that on June 10, 1965, he was serving in the emergency room at Ingalls Hospital at 15500 South Page, in Harvey, Illinois; that on that date he examined Jeanie Bielecki at approximately 4 p. m. He stated that the child was approximately three years old; that the examination was a general physical and in particular an examination of the genitalia and a vaginal smear. He stated that the examination disclosed “contusions, that is bruises; redness; edema, that is, swelling about the introitus which is the opening, the orifice of the vagina; and a vaginal smear which I performed and inspection of the internal, or most presenting part of the vagina, and an attempted visualization of the perforation of the hymen, which I did not find.”

On cross-examination Dr. Ryan testified that the bruises and redness, and swelling of the vagina could have come from the insertion of a male penis; that it could also come from a number of things, such as sliding down a banister, or from daily play where she had been straddling something like a chair. He then stated concerning the preceding testimony: “It is possible, but unlikely without contusion of the perineum as well, which is not present, the perineum being a portion of the body between the anus and the introitus or the vaginal opening, which is usually seen in a straddling injury.” The doctor was then questioned as follows: “If perhaps sliding forward in a chair or something like that?” Answer: “Usually a pointed object to produce this particular thing.” Question: “It is possible?” Answer: “I concede that.”

Richard Graham, a police officer of the City of Harvey, testified that on June 10, 1965, he was on duty and had occasion to go to the apartment of the defendant. On arriving at the third floor rear porch he was met by Mrs. Bielecki. He then left the apartment with Mrs. Bielecki and her child, Jeanie, and went to Ingalls Memorial Hospital where they stayed approximately half an hour, after which they went to the Harvey police station. He returned alone to the defendant’s apartment at approximately 10 p. m., and called for assistance when he saw the defendant’s car. Two other officers arrived three or four minutes later and they all went up to the third floor apartment; after receiving no answer to a knock on the door they entered the apartment through an open window; they found no one in the apartment, but found a small window open, leading onto the roof. They went through the window out onto the roof and searched the area, where they found the defendant “around the chimney.” The defendant made no statement.

The testimony of Mrs. Linda Bielecki was given unwillingly. She stated that she did not want to testify against the defendant, and finally the court ruled that she be declared a court’s witness, subject to cross-examination both by the State and by the defendant, because of her evasive answers and her repeated statement that she did not remember many things which had happened and could not remember whether she had testified before the grand jury, definitely fixing the crime upon the defendant.

No evidence whatsoever was offered on behalf of the defendant. He here argues that the confession which Mrs. DeSalvo testified was made to her by the defendant should not be believed, because her testimony indicated that she was prejudiced against him. She had stated that she did not like him for what he did and would like to See her daughter get a divorce from him. The question is solely one of credibility. It is Well-established law that the credibility of witnesses is a matter for the trial court to determine.

The defendant also argues that outside the confession there was no proof of a corpus delicti. This cannot be seriously entertained because there was testimony in the record that Mrs. Bielecki found the defendant in bed with her daughter, who was wearing only a dress and no other clothing. In People v. Nachowicz, 340 111 480,172 NE 812, it is said, at page 495:

“While it has been held that a defendant’s confession, when the corpus delicti is not otherwise proved, is insufficient for a conviction, this does not mean that the corpus delicti must be proved by the evidence, aside from the confession, beyond a reasonable doubt. On the contrary, it was early held that it is the mere naked confession, uncorroborated by any circumstance inspiring belief in its truth arising out of the conduct of the accused or otherwise, which is held insufficient to convict, and the corroborating fact or facts in proof need not necessarily, independent of the confession, tend to prove the corpus delicti. (Bergen v. People, 17 Ill 426.) Direct and positive evidence is unnecessary to prove the corpus delicti, (Campbell v. People, 159 Ill 9,) and it is not essential that it should be established by evidence independent of that which tends to -connect the accused with its perpetration. The same evidence which tends to prove one may also tend to prove the other, so that the existence of the crime and the guilt of the defendant may stand together inseparable on one foundation of circumstantial evidence. (Carroll v. People, 136 Ill 456.) ”

In the case before us the evidence shows that the defendant was found in bed with his lightly-clad stepdaughter. When Mrs. Bielecki was being examined she was asked the following question by the State’s Attorney: “Isn’t it true that you saw your husband on the bed holding your daughter next to him with no clothes on?” An objection to the question was overruled, and the witness replied: “I can’t remember.” She was asked: “Mrs. Bielecki, isn’t it also true that your daughter’s pants were pulled down from her waist?” She answered: “I can’t remember. I just seen her laying on the bed.”

Dr. Ryan had testified as to the bruised condition in which he found the sexual organs of the child at the time of his examination on the same day the alleged crime was committed. Officer Graham testified with reference to taking Mrs. Bielecki and the child to the hospital, and later returning to the defendant’s apartment and arresting him on the roof of the building.

In People v. Dixon, 81 Ill App2d 330, 225 NE2d 445, at 343 the court said:

“The rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both may be considered in determining whether the corpus delicti is sufficiently proved in a given case. People v. Perfecto, 26 IU2d 228, 186 NE2d 258. The question is whether the whole evidence proves the facts that a crime was committed and that the accused committed it.”

In the instant case the corpus delicti was established. It is the law that an unexplained flight by an accused raises an inference of guilt. People v. Woods, 26 Ill2d 557, 188 NE2d 1; People v. Wright, 30 Ill2d 519, 198 NE2d 316. From the evidence the inference could be drawn that the defendant in the instant case had left the apartment for the purpose of avoiding arrest. In People v. Autman, 393 Ill 262, 65 NE2d 772, at 266 the court said that “Proof of flight by the accused in a criminal case is admissible as a circumstance tending to show consciousness of guilt.” The court cited People v. Herbert, 361 Ill 64, 196 NE 821, where it was held that flight, in criminal law, is defined as “the evading of the course of justice by voluntarily withdrawing oneself in order to avoid arrest or detention, or the institution or continuance of criminal proceedings. The term signifies, in legal parlance, not merely a leaving, but a leaving or concealment under a consciousness of guilt and for the purpose of evading arrest.”

In this court the defendant argues that an equally reasonable explanation of his presence on the roof, behind the chimney, was that he went there to avoid the heat, as it was a warm night. Even assuming, sub arguendo, that such a conclusion could properly be drawn, it was a question for the trial court to determine, and if the court concluded that the defendant was on the roof for the purpose of evading arrest, it could properly be considered as indicating a consciousness of guilt on the part of the defendant.

The defendant also argues that the statement made by Mrs. DeSalvo concerning her conversation with him does not constitute a confession. It is difficult for this court to see how it could be construed in any other way.

Examining the record as a whole, it is apparent that the defendant was convicted beyond a reasonable doubt of the crime of taking indecent liberties with a child. The judgment of the Circuit Court is affirmed.

Affirmed.

ENGLISH, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE ENGLISH

text:
    People of the State of Illinois, Appellee, v. J. B. Boston, Appellant.
    Gen. No. 51,337.
    First District, Fourth Division.
    November 16, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn 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, James Veldman and Richard Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged Robbery.

Judgment

After a bench, trial, the court found defendant guilty- and sentenced him to a term of two to five years. He had previously served a term of one to five years for a similar offense.

Point Raised on Appeal

Defendant was improperly denied the right to hire counsel of his own choosing.

(Defendant introduced no evidence at the trial and does not contend here that the evidence was insufficient to establish his guilt. He could hardly do so since, after taking a woman’s purse from her by force in an elevator at Marina Towers late at night, he was apprehended within a few minutes, still on the premises and with the money from the purse ($487) in his hand.)

The Record

At arraignment on March 8, 1966, the Public Defender was appointed to represent defendant when, in answer to the court’s question, he said he did not have a lawyer. Defendant made a request for reduction in bond, but, in view of defendant’s prior record, the judge said he could not grant it but would give defendant an early trial. The case was therefore set for trial on March 29.

When the case was called on that date before Judge Napoli, the State answered “ready” but defendant himself (though his attorney was present) said that he was not ready. His reason, as then stated, was:

“Your Honor, look it here, I have some sickness in my family. My grandfather passed and my auntie came out to visit me the day before yesterday and she was going to get me out on bond to go to the funeral, and that is why I was wanting a continuance.” (Emphasis supplied.)

When the court ascertained that the funeral was not to be held until the following Sunday, defendant was told that arrangements would be made for his attendance at the funeral, but that the trial would proceed. The case was then assigned to Judge Egan for immediate trial.

When both the State’s Attorney and the Public Defender announced themselves ready for trial, defendant advised the court for the first time that he was going to get a lawyer; that he did not want to be represented by the lawyer assigned to him; that his auntie, who was not present, was going to get a lawyer for him. The judge told defendant that the Assistant Public Defender representing him was “a very fine lawyer.” After considerable discussion on this point between court and defendant, the latter again sought a continuance on account of the funeral of his grandfather. The court then directed that the trial commence. Defendant waived a jury, and at the conclusion of the evidence he was found guilty.

Opinion

First it is contended that it was error for the court at the time of arraignment to have appointed the Public Defender to represent defendant because there was no showing that he was indigent, only that he had no lawyer. This is a perfect example of the type of weightless argument which appointed counsel find themselves forced to present when every indigent defendant is furnished with a free record and a free lawyer for the purpose of appealing his conviction. While the mere statexnent of the point could be considered as demonstrating its insufficiency as a ground for reversal, it has nevertheless been made the subject of rather complete comment in a number of cases. See People v. Montville, 393 Ill 590, 591, 66 NE2d 861; People v. Mitchell, 33 Ill2d 603, 604213 NE2d 514; and People v. Solomon, 24 Ill2d 586, 182 NE2d 736.

Secondly, defendant relies on People v. Ritchie, 66 Ill App2d 417, 213 NE2d 306, in arguing that the court abused its discretion in not granting defendant a continuance to permit him to employ private counsel. We think that this point, too, is without merit and that reliance on Ritchie under these circumstances is misplaced. In that case there was a specifically named attorney who had requested the Public Defender to obtain a continuance as he expected to file his appearance and represent defendant at trial. The Public Defender then requested the continuance and moved to vacate his own appointment, advising the court that he thought he should not try the case under the circumstances. None of these facts was present here. There appears no substantial reason to believe that any arrangements for private counsel had been or would have been made through defendant’s auntie. The possibility was not mentioned at arraignment nor before Judge Napoli when the case was called for trial. Defendant was then relying upon an upcoming funeral as a ground for continuance. Nor was there any showing that in the representation of defendant by the Public Defender (who was prepared and ready for trial, and did a competent job of cross-examining the State witnesses) anything took place which “embarrassed” or “prejudiced” defendant’s rights. People v. Solomon, 24 Ill2d 586, 182 NE2d 736. See also People v. Jones, 51 Ill App2d 391, 394, 201 NE2d 194 as to the untimeliness of defendant’s objection to the Public Defender as his counsel.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

DRUCKER and McCORMICK, JJ., concur.

       It is of interest to note that defendant made no objection to the appointment of the Public Defender and after the trial, on a representation of indigence, a transcript was ordered for defendant without charge, and the Public Defender was appointed to handle his appeal.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Shokunbi, Defendant-Appellant.
    Gen. No. 51,597.
    First District, Fourth Division.
    November 16, 1967.

      Salvatore J. Bongiorno, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court.

Crime Charged

Practicing medicine without a license.

Judgment

After a bench trial, defendant was found guilty and sentenced to a term of six months in jail.

Contentions on Appeal

(1) The evidence did not prove defendant guilty beyond a reasonable doubt.

(2) The information was defective for want of specificity.

(3) The court erred in admitting into evidence products of an unlawful search and seizure.

Evidence

Robert Savage, for the state.

He was the police officer who arrested the defendant on January 31, 1966. He went to defendant’s office, knocked on the outer door, was admitted, announced his office and “related to defendant that he was mentioned in a letter from the sheriff of Freeport, Illinois in reference to his conduct down there.”

The office was located in one of Chicago’s downtown office buildings. “Reverant Shokumbi” was printed on the outer door. The office consisted of one large room and two smaller rooms. The large room contained a desk, a telephone, a typewriter and one chair.

Savage observed no activity in the office at that time which led him to believe that any crime had been committed. Nor had he a warrant for defendant’s arrest. In answer to his inquiry as to the type of business he was in, defendant stated that he was a metaphysician and that “he treats and cures people.” Defendant stated he was not licensed to do this.

After this colloquy Savage arrested defendant for practicing medicine without a license, searched the premises, and found “various patent drugs, some zodiac stamps, and so forth.” In addition “various books and literature,” “some medicines,” and “some herbs and drugs” were found in the office defendant occupied.

On cross-examination Savage testified that he did not “confiscate” any medical books, that he never saw anyone treated in that office, and that never in his presence did defendant make suggestions or recommendations or give treatments for injuries or ailments.

Samuel Shokunbi, defendant.

He is an ordained minister in the Universal Spiritual Union. For the two years prior to his arrest he had been in the business of importing and selling to the general public all types of merchandise under the name of “[I] imports and exports, Nigerian, sales and services.”

The building where he had held religious services had been sold, so he had brought the articles used in the service to his office. These were the articles found by Savage along with candles and oil. The herbs, which were found, were ground and used as incense. When asked by the policeman what business he was in, defendant had answered, “import and export.”

Opinion

Defendant is charged with having committed the offense of “Chapter 91 of the Medical and Surgery Act in that he That [sic] the defendant did let himself out to the public as being engaged in the diagnosis or tretement [sic] of ailments of human beings and did in fact suggest, recommend or prescribe certain forms of tretements [sic] for the relief or cure of any physical or mental ailment without first having obtain [sic] a license from the State of Illinois.” The first five clauses of the pertinent section of the Medical Practice Act define five different crimes. See People v. DeYoung, 378 Ill 256, 38 NE2d 22. The information in this case charges only a violation of the first of these clauses. We are limited in review, therefore, to consideration of the charge that defendant held himself out to the public in a manner prohibited by the first clause of the statute. Defendant contends that the State failed to adduce sufficient evidence to prove the essential elements of this offense beyond a reasonable doubt.

“Various patent drugs, some zodiac stamps, and so forth”; “some medicines”; and “some herbs and drugs” were found in defendant’s office at the time of his arrest. Although controverted, the State’s only witness testified that defendant told him that he “treats and cures people” or that he was in the “business of curing people.” The State characterizes these statements by defendant as a confession, and contends that, if taken as true, they are relevant to establish defendant’s guilt.

In People v. Gordon, 194 Ill 560, 571, 62 NE 858, decided under the Medical Practice Act of 1899, the court stated, “we all agree that the objects and purposes of this and similar statutes are to protect the sick and suffering and the community at large, against the ignorant and unlearned who hold themselves out as being possessed of peculiar skill in the treatment of disease; from holding themselves out to the world as physicians and surgeons without having acquired any knowledge whatever of the human system or the diseases and ailments to which it is subject.” The objects and purposes of the statute here questioned are the same, and in that context the issue is whether the State adequately proved that defendant had held himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings. We think it did not. We believe that the holding out to the public proscribed by the statute must involve some assertive conduct directed towards the public which would indicate or imply that one was engaged in the diagnosis or treatment of human ailments, and with a view to establishing a physician-patient relationship. For example: an advertisement was thought to be a holding out to the public by the Illinois Attorney General (1929 Op Atty Gen 289); and in People v. Kabana, 388 Ill 198, 57 NE2d 460, the causing of one’s name to be printed on booklets having to do with human ailments was characterized as a holding out to the public.

In the case on appeal, the statements were allegedly made by defendant to a police officer who had announced his office and asked, “What type of business are you in?” The responses in no way implied an offer to treat ailments of the officer or of anyone else. Furthermore, defendant’s replies were not, in this circumstance, directed towards the public. There was no assertion that defendant was possessed of such special skills or ability in diagnosing or treating as would imply an invitation for one to seek his services.

There is no evidence in the record that defendant did any advertising or distributed any kind of printed matter asserting that he was a healer. The sign on his office door referred to him as Reverend, not Doctor. No medical books or medical equipment were found in his office. In short, there is no evidence tending to prove any assertive conduct on his part directed towards the public — an essential element of the offense, as we read the statute.

Since the statements made by defendant to the officer did not constitute, of themselves, a holding out, the State’s contention that these statements constitute an acknowledgment of having engaged in the prescribed conduct on a former occasion, corroborated by the articles found in defendant’s office, is without merit. If taken as true, the language only asserts that he cures or is in the business of curing people. Without some assertion that he holds himself out to the public as a healer, this element of the offense remains unproved. Therefore, the State’s evidence was insufficient to prove beyond a reasonable doubt that defendant had committed the charged offense. A discussion of the other errors assigned by defendant thus becomes unnecessary.

The judgment of the trial court is reversed.

Reversed.

DRUCKER and McCORMICK, JJ., concur.

       Ill Rev Stats, 1965, c 91, § 16i (Medical Practice Act):
      Penalty for doing certain acts without license.
      If any person shall hold himself out to the public as being engaged in the diagnosis or treatment of ailments of human beings; or shall suggest, recommend or prescribe any form of treatment for the palliation, relief or cure of any physical or mental ailment of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; or shall diagnosticate or attempt to diagnosticate, operate upon, profess to heal, prescribe for, or otherwise treat any ailment, or supposed ailment, of another; or shall maintain an office for examination or treatment of persons afflicted, or alleged or supposed to be afflicted, by any ailment; or shall attach the title Doctor, Physician, Surgeon, M.D., or any other word or abbreviation to his name, indicative that he is engaged in the treatment of human ailments as a business; and shall not then possess in full force and virtue a valid license issued by the authority of this State to practice the treatment of human ailments in any manner, he shall be guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by confinement in the county jail not more than one year, or by both such fine and imprisonment, in the discretion of the court.

       During the hearing on the motion to suppress which immediately preceded the trial, Savage testified that defendant’s answer to the same question was that “he was a metaphysician and that he was in the business of curing people.” At the trial Savage’s testimony at the hearing was stipulated.

       See footnote 1, above, for full text of the section. The fourth and fifth clauses involve the maintaining of an office and the use of a medical title, respectively. The third clause refers to one who diagnosticates, attempts to diagnosticate, operates upon, professes to heal, prescribes for or otherwise treats, while in the case on appeal defendant is charged only with suggesting, recommending or prescribing treatments. While this latter is the language of the second clause of the statute, the second clause requires also the intention of receiving, either directly or indirectly, a fee, gift or other compensation for the treatment. Since such an intention is not set forth in the information, a violation of this clause is not here charged. Nor was there any evidence of such intention.


text:
    Walter J. Sokolowski, Plaintiff-Appellant, v. Board of Election Commissioners of the City of Chicago and Theodore Kwasniewski, Defendants-Appellees.
    Gen. No. 52,511.
    First District, Fourth Division.
    November 16, 1967.
    Rehearing denied December 12, 1967.
    Edward L. Stepnowski, of Chicago, for appellant.
    Stanley T. Kusper, Jr., of Chicago, for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

On October 10, 1967, the Board of Election Commissioners of the City of Chicago and Theodore Kwasniewski (hereafter referred to as defendants) filed a motion in this court to dismiss the appeal. The suit was originally brought on February 3, 1967, in the Circuit Court of Cook County. Walter J. Sokolowski (hereafter referred to as plaintiff) filed a complaint for mandamus in which he alleged he had filed petitions for nominations for the office of alderman of the 32nd ward of the City of Chicago, and that subsequently an objector’s petition was filed by Theodore Kwasniewski.

Plaintiff further alleges that on January 19, 1967, the Board of Election Commissioners conducted a hearing, and on January 20 entered a rule sustaining the objector’s petition; that the hearing was improperly conducted and the decision by the electoral board was improperly entered; and he prays that a writ of mandamus may be issued by the court requiring the defendant Board of Commissioners to certify the name of the plaintiff as a candidate for the office of alderman of the 32nd ward of Chicago at the election to be held on February 28,1967.

The defendants filed an answer to the complaint.

This court is entitled to and does take judicial notice that the election for alderman was held on February 28, 1967. People ex rel. Furlong v. Board of Election Com’rs of City of Chicago, 404 Ill 326, 88 NE2d 864. In People ex rel. Chancellor v. Sweitzer, 329 Ill 380,160 NE 747, the Circuit Court sustained demurrers to an application for a writ of mandamus to compel the county clerk to print the names of petitioners as candidates for judges on the ballot for an election to be held on June 6, 1927, and entered judgment for respondents.

An appeal was taken from that decision and the court, in an opinion filed on February 24, 1928, said:

“The election has been held. A reversal of the judgments could result in no advantage to the petitioners and would subserve no useful purpose. They no longer have an existing cause of action. If they ever had the right to have the ballots printed in accordance with their demand they have no such right now. The writ of mandamus will not issue to compel the doing of a useless act or one which would prove unavailing, fruitless or nugatory. [Citing cases.] The court will not decide questions that no longer exist merely to make a precedent or settle a question of costs. [Citing cases.] ”

In People ex rel. Lawrence v. Village of Oak Park, 356 Ill 154,190 NE 286, the court said, at 156:

“It is obvious that the date of the election at which the appellee sought to be voted for as a candidate for clerk of such municipal court has passed. If the writ should issue it could not recall time that has become history nor recreate November 8, 1932. The purpose for which the writ was originally sought could not possibly be attained now nor in the future by the awarding of the writ. The writ of mandamus is an extraordinary writ. It is granted only when a clear right to the writ is shown. Where its purpose cannot be accomplished it will be denied. (Jones v. Clark, 355 Ill 527; People v. Sweitzer, 339 id. 28; People v. Sweitzer, 329 id. 380.) Where by the passing of time or the happening of some other cause the circumstances have so changed that the writ will be of no practical benefit to the petitioner the court will refuse the writ. (Gormley v. Day, 114 Ill 185.) It is obvious that in this case if the writ were awarded no real benefit could accrue to the relator, and for all practical purposes the defendants could not comply with the writ since the date of the election at which the relator sought to be a candidate has passed. The purpose for which the writ was sought has failed, and there remains no reason for deciding the case on its merits, and the appeal should be dismissed. Cutcamp v. Utt, 61 Iowa 156; Gormley v. Day, supra.
“ ‘The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare premises or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment but will dismiss the appeal.’ Mills v. Green, 159 US 651, 40 L Ed 293.
“The practical issues in this case by the immutability of time have vanished. Only moot questions remain. The issues that once existed are no longer alive. They are now mere abstract issues. In that situation non-existent issues will not be decided merely for the purpose of setting a precedent or adjudicating the costs. [Citing cases.]
“The appeal is dismissed.”

Under the authorities heretofore cited and quoted, the appeal in this court must be dismissed. The appeal of Sokolowski v. Board of Election Commissioners, et al., will be and is dismissed.

Appeal dismissed.

ENGLISH, P. J. and DRUCKER, J., concur.