text:
    Ideal Trading Corporation, an Illinois Corporation, and Brochon Engraving Co., an Illinois Corporation, Plaintiffs-Appellants, v. 237 E. Ontario Corp., an Illinois Corporation and Browne and Storch, Inc., a Foreign Corporation, Defendants-Appellees.
    Gen. No. 50,822.
    First District, Third Division.
    April 13, 1967.

      Charles J. Rothbart and Gerald L. Pollack, of Chicago (J. S. Krakauer and Seymour Schriar, of counsel), for appellants.
    Seibert and Daniels, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court dismissing the amended complaint for want of equity after exceptions to the master’s report had been overruled.

The plaintiffs raised two points on appeal, (1) that the court erred in finding that the plaintiffs did not have an irrevocable license, and (2) that the court erred in finding that the agreement of June 25, 1948, was valid and binding in all respects.

The defendant, Browne & Storch, Inc., managed the premises at 235 East Ontario Street, Chicago, Illinois. No evidence was offered against this defendant and the case was dismissed in the trial court as to this defendant. No appeal is taken from that part of the decree.

The facts adduced at the hearing before the master in chancery, who heard the case, are voluminous and an effort will be made to set forth only those facts which are pertinent to the issues here.

The action was brought by the plaintiffs to establish that they had a right to use the rear of defendants’ property for purposes of ingress and egress to plaintiffs’ premises by virtue of an easement by necessity, an easement appurtenant, an easement by prescription, or, in the alternative, that the plaintiffs have an irrevocable license to use defendants’ premises. Plaintiffs on appeal abandoned their claim of right to use the premises of the defendant based on an easement of necessity or by prescription, or easement appurtenant by a grant, but only raised the point that plaintiffs have an irrevocable license to use defendants’ property.

The parties to this action entered into a stipulation as to some of the facts, and as to the others, evidence was heard and admitted. The following facts were either stipulated to or brought forth from testimony of witnesses.

In the year 1938, Brochon Engraving Co., a corporation, (Brochon) was in possession of the premises at 233 East Ontario Street (233 premises), Chicago, Illinois, as a tenant of the Trust Company of Chicago, as Trustee under Trust No. 309, which was then the owner of the property. The 233 premises contained a three-story brick building built on the front part of the lot. A vacant yard behind the building extended from the building to the rear alley. Brochon also occupied the premises at 235 East Ontario Street (235 premises), Chicago, Illinois, which adjoin the 233 premises to the east. The 235 premises at that time were owned by one Ella Lawes. Brochon was in sole occupancy and possession of the two premises as a tenant and conducted its business from both properties in 1938. In that year, while in possession as a tenant of both premises, Broehon constructed a one-story brick building on the vacant yard that existed at the rear of the 233 premises and connected it to the existing building in the front of the 233 premises. The building then became a single unit on the 233 premises. The addition extended from the rear of the building then on the 233 premises to the alley line and covered the full width of the lot.

At the time that Broehon, as a tenant, built this one-story brick extension building in the rear of the 233 premises, for its use as tenant thereof, it also built a loading dock or platform on the rear of the 235 premises, the building on which premises did not extend to the alley, and which premises were also in the possession of Broehon as the sole tenant. The loading dock was built up against the new extension building and level with two large sliding doors which had been built into the east wall of the newly constructed extension building. The loading dock was level with the rear door of the building on the 235 premises, so that the dock would service both the 235 premises and the 233 premises for the use and benefit of Broehon, which was in sole possession of both parcels as tenant of two separate owners of the properties. At the time Broehon constructed the new one-story addition to the rear of the building on the 233 premises it was necessary to remove the lower half of the fire escape on the rear of the existing building on the 233 premises. The old fire escape from the third floor to the second floor was permitted to remain and Broehon built the roof of the new addition to the 233 premises up to the fire escape and continued the fire escape across the roof of the new building to the rear of the building on the 235 premises and proceeded to construct the fire escape across the rear of the 235 premises and down the east side of said building to the alley.

All of the improvements constructed by Broehon were for its sole use and convenience at a time when it was in possession of both parcels and had the exclusive right of use and occupancy as to both.

In 1942 Brochon terminated its lease of the 285 premises, but remained in possession of the 233 premises by entering into a new lease with Northwestern University, the then owner of the 233 premises.

Neither the stipulation of facts nor the evidence discloses what, if any, arrangements were made by Brochon for the continued use of the loading platform constructed on the rear of the 235 premises.

In July of 1943 one Carl C. Waterbury acquired title to the 235 premises.

On August 31, 1946, the plaintiff, Ideal Trading Corporation, purchased the 233 premises from Northwestern University. At the time of this purchase Brochon was the sole tenant in possession of the 233 premises. At the time of the purchase of the 233 premises, Ralph Pollack, President of Ideal Trading Corporation, purchased the business and stock of the tenant in possession, Brochon, and took over the name of this corporation and continued operating the business which had been conducted by Brochon. Brochon, now under the ownership and control of Pollack, became the tenant of Ideal Trading Corporation.

On or about September 27, 1946, Mr. Pollack, who had purchased the assets and stock of Brochon, wrote a letter to Mr. Carl Waterbury, the then owner of the 235 premises, in which he purportedly asked permission from Mr. Waterbury to allow him to build a doorway in the east basement wall of the 233 premises under the loading dock for the purpose of permitting Pollack, on behalf of Brochon, to bring heavy machinery into the basement of the 233 premises. On October 1, 1946, Mr. Waterbury acknowledged receipt of Pollack’s letter of September 27, 1946, a portion of which reads as follows:

“October 1st, 1946
MR. RALPH POLLACK
233 East Ontario St
Chicago, Illinois
Re yours of Sept 27
We are always pleased to cooperate with a neighbor. We will be glad to permit you to cut through our retaining wall within the well at the rear of our building. . .

While Mr. Waterbury referred in that letter to a retaining wall, the facts reveal that the wall is not a retaining wall as such, nor is it a party wall, but merely a wall that is built within the lot line of plaintiffs’ property, 233 premises.

It is the contention of the plaintiffs, based upon the above facts, that they have acquired an irrevocable license to use the 235 premises.

In 1948 Mr. Waterbury, the owner of the 235 premises, conveyed that property to Liberty National Bank of Chicago, as Trustee, under which trust Sidney Gold-stein, an attorney, was a beneficiary.

Thereafter, on June 25, 1948, an agreement was entered into between Liberty National Bank of Chicago and Ideal Trading Corporation, the owner of the 233 premises, wherein the bank represented and warranted that it held title in fee simple to the real estate known as the 235 premises, and Ideal Trading Corporation represented and warranted that it was the owner of the real estate adjoining the 235 premises to the west. The agreement recited that Ideal Trading Corporation desired to afford itself ingress and egress through the easterly wall of its premises and upon the 235 premises; that Ideal Trading Corporation has a door through their easterly wall leading to and upon the shipping dock in the rear of the 235 premises, and has a door in said easterly wall through its basement leading into and upon the rear of the 235 premises; that the owner of the 235 premises desired to permit the owner of the 233 premises to use the existing method of ingress and egress upon certain terms. In that agreement, giving permission to use the 235 premises, the owner of the 233 premises acknowledged that except for the license contained in the agreement it was “not possessed of or vested with any claim of right, or color of title, or title, or to any part of the said land or building,” on the 235 premises. The owner of the 233 premises covenanted in that agreement that the use of that portion of the 235 premises, permitting it ingress and egress, could not at any time be deemed or construed to be a hostile possession of any portion of the land or real estate of the 235 premises. The license granted in this agreement was given on a month to month basis, and the agreement further provided that the license would cease and terminate upon a thirty day written notice sent by the owner of the 235 premises to Ideal Trading Corporation, the owner of the 233 premises.

During 1961 the defendant, 237 E. Ontario Corp., acquired ownership in fee simple to the 235 premises. During the latter part of 1961 the defendant, 237 E. Ontario Corp., served written notice upon both plaintiffs purporting to terminate all of their rights in and to or upon the 235 premises.

Plaintiffs thereafter filed this suit on December 22, 1961.

As heretofore mentioned, the claims of the plaintiffs based upon various types of easements have not been raised on this appeal, and the plaintiffs only contend that they have an irrevocable license to the use of the 235 premises. The theory of the plaintiffs is that the permissive letter from Mr. Waterbury constituted a license upon which the plaintiffs acted in good faith and expended large sums of money in improving the 233 premises.

One of the cases upon which plaintiffs rely is Russell v. Hubbard, 59 Ill 335. That case, however, is not controlling here. The facts in the Russell case were that a party had intended to build a frame house on a lot adjoining that upon which a brick building was standing. The owner of the lot on which the brick house was standing induced the owner of the adjacent lot to build a brick instead of a frame house, and the owner of the existing brick house permitted the adjoining lot owner to use a wall of that house as a party wall. It was contended later that this constituted merely a revocable license. The court in deciding that case, on page 340 stated: “Money had been expended upon the faith of the license, and a different and more expensive building erected.” In that case the licensor was benefited by getting the licensee to change his building from a frame building to a brick building, and is therefore not applicable here. In the case before us the 235 premises were not in any way benefited by the use of those premises by the owner or occupant of the 233 premises.

The plaintiffs also cite Petersen v. Corrubia, 21 Ill2d 525, 173 NE2d 499. In that case the court concluded that more than twenty years of adverse, exclusive and uninterrupted use invested the plaintiff with an easement by prescription. In the case at bar there is no easement by prescription, and all of the work and expenditures made by the plaintiffs were for their sole benefit. In the letter from Waterbury to Pollack, dated October 1, 1946, Waterbury merely said he would be glad to permit Pollack as a neighbor to cut through the wall. As near as we can determine, the wall did not belong to Waterbury but was wholly on the 233 premises. Waterbury further, in that letter, cautioned Pollack to instruct the men to keep the rear of the premises clear of dust. He explained that they manufactured a transparent item and all of their worries were due to dirt, and further said: “Therefore, will you please see to it that there is a minimum of dirt and dust when the break through is made.” The 235 premises received absolutely no benefit from the permission given by Waterbury, but, on the contrary, received a detriment due to dirt and dust which necessarily had to be created by the breaking through of the wall on the 233 premises.

It will be noted that the letter of October 1, 1946, did not refer to the installation of a doorway but referred only to a permit with reference to a retaining wall. We heretofore pointed out that there was no retaining wall.

In Baird v. Westberg, 341 Ill 616, 620, 173 NE 820, the court said:

“Forbes v. Balenseifer, 74 Ill 183, was a driveway case, where a driveway arrangement between the parties was held to be a mere license, revocable at any time, and did not constitute an easement. In that case the rule enunciated in Russell v. Hubbard, supra, was distinguished and the doctrine of estoppel limited to that class of cases where large sums of money had been expended under the license, partly for the benefit of the licensor, and where the position of the licensee had been so changed at the request of the licensor that he could not by revocation be restored to his original position or be compensated in damages.” (Emphasis supplied.)

Since the specific work involved was cutting the door in the east wall of plaintiffs’ own property, it cannot be considered a license. The only permission that Waterbury could have given was to enter upon the 235 premises so that the workmen could cut through the wall of the 233 premises. In any event, since the work in question was for the sole benefit of the 233 premises and involved a detriment to the 235 premises, the plaintiffs have failed to prove that an irrevocable license was created. At the time of the construction of the loading dock on the 235 premises, which was used also for the benefit of the 233 premises, the plaintiffs were in complete possession and control of both premises, and no right was established in favor of one of the premises over the other. When the plaintiffs made the expenditures for the construction of the addition to the 233 premises, there is no evidence that any license was granted to the plaintiffs by the then owner of the 235 premises, namely, Ella Lawes. The addition was built for the sole benefit of the plaintiffs, and, certainly, an irrevocable license cannot be predicated upon expenditures made without a license. The claim of the plaintiffs to an irrevocable license must be denied.

The next point urged by the plaintiffs is that the court erred in finding that the agreement of June 25, 1948, was valid and binding in all respects. The agreement of June 25, 1948, has been referred to in the factual statement regarding this case.

The agreement as noted was made between the Liberty National Bank of Chicago as Trustee under Trust No. 372, and plaintiff, Ideal Trading Corporation. It recited that the parties each owned one of the parcels of real estate in question. The Liberty National Bank owned the 235 premises and Ideal Trading Corporation owned the 233 premises. The agreement set forth that Ideal Trading Corporation as owner of the 233 premises covenanted that it had no claim of right, or color of title, or title, to any part of the land or building at 235 East Ontario Street other than the license, meaning the letter which had been written by Waterbury to Pollack. The agreement further stated that the plaintiff covenanted that its use of the property in question should not at any time be deemed or construed to be a hostile possession of any portion of the land or real estate of the 235 premises, and that Ideal Trading Corporation wished to obtain ingress and egress through the east wall of the 233 building from the premises of the 235 building. It recited the presence of a door in the east wall of the new addition of the 233 premises leading to the shipping dock installed at the rear of the 235 premises, and described the door in the east wall of the basement portion of the addition to the 233 building below the loading dock. The substance of the agreement was that the owner of the 235 premises consented to the use by the owner of the 233 premises of the shipping dock which was the sole property of the 235 premises, and consented to ingress and egress from the basement and first floor doors on the east wall of the addition to the 233 premises. The owner of the 235 premises licensed all said use on a month to month basis and provided that it could be terminated upon thirty days written notice.

The facts and circumstances with reference to the execution of the agreement are as follows:

Sidney J. Goldstein testified that he was one of the beneficial owners of the 235 premises from July 5, 1947, to July 9, 1961, and that the plaintiffs had never claimed any right to the use of the loading dock, the basement door or the fire escape. He had spoken to Ralph Pollack after he took possession of the 235 premises. He discussed the loading dock and the basement doors with Pollack and told Pollack that he could continue to use the entrance for ingress and egress subject to termination at will, and that Pollack agreed with this arrangement. Goldstein then prepared the agreement dated June 25, 1948, and readily obtained Pollack’s signature. Pollack denied that he had such a conversation with Goldstein; he stated that Goldstein tendered the agreement to him and he signed it on the strength of Goldstein’s statement that it did not mean anything; that it was not important, and if he did not sign it Goldstein could close up those openings. Pollack, however, testified that he read the agreement before signing it. The master in chancery concluded to accept the version advanced by Mr. Goldstein after weighing the testimony. The findings of the master, when approved by the trial court, cannot be disturbed by the reviewing court unless manifestly against the weight of the evidence. Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587, and cases therein cited. We do not consider the findings of the master manifestly against the weight of the evidence.

The plaintiffs, in support of their argument that the agreement was not valid, cite Moehling v. W. E. O’Neil Const. Co., 20 Ill2d 255, 170 NE2d 100, wherein the court on page 265 said:

“One of the essential requirements of law for the formation of a contract is a valid consideration, the general rule being that consideration must flow from both parties, (Corbett v. Cronkhite, 239 Ill 9), and it is likewise elementary that an executory contract without consideration cannot be enforced either in a court of law or one of equity.”

Plaintiffs overlooked the fact that the consideration involved, which flowed to the plaintiffs in this agreement, was the use of the 235 premises by the owners of the 233 premises under a written license. Without this agreement the owners of the 235 premises could have immediately deprived the 233 premises of that use. The master concluded that the agreement in question was signed by the parties in good faith and without duress, undue influence or threats, and that the agreement is binding upon the parties without any legal or equitable impediment. The forbearance of the owner of the 235 premises from terminating the use of its premises by the adjacent owner, and the agreement of the owner of the 233 premises to cease from its accustomed use upon thirty days written notice, we find to be good and valuable consideration.

The 235 premises were purchased during 1961 by the defendant, 237 E. Ontario Corp. The attorney who represented the defendant testified that after the inspection of the 235 premises in relation to the 233 premises, he contacted attorney Sidney J. Goldstein and obtained from him a copy of the written agreement of June 25, 1948. He further testified that he and defendant, 237 E. Ontario Corp., his client, relied upon this agreement in consummating the purchase of the 235 premises. The agreement had been signed more than twelve years prior to the purchase of the property in 1961 by the 237 E. Ontario Corp. During all of that time the plaintiffs did nothing to rescind the agreement, which they claimed was obtained by duress. We agree with the findings and conclusions of the master in chancery, and the decree of the trial court, that the agreement of June 25, 1948, was a valid and binding agreement, and the finding in this respect is not contrary to the manifest weight of the evidence.

The plaintiffs attempted to prove that Mr. Goldstein, who became one of the beneficial owners of the 235 premises, had been employed by the owner of the 233 premises at the time of the execution of the agreement of June 25, 1948, and had perpetrated a fraud on his client. We have thoroughly examined the evidence and conclude, as did the master and the court, that the evidence not only fell far short of proving a fraud but that it even failed to prove that attorney Goldstein was in the employ of the owner of the 233 premises at the date of the signing of the written agreement of June 25, 1948.

The decree of the trial court herein must therefore be affirmed.

Decree affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: STOUDER, P. J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Mathis, Defendant-Appellant.
    Gen. No. 66-22.
    Third District.
    April 14, 1967.

      Jack A. Brunnenmeyer, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney, of Peoria, for appellee.
   STOUDER, P. J.

Defendant, William Mathis, was found guilty by a jury of the offense of murder. Judgment of conviction was entered by the Circuit Court of Peoria County and the Defendant was sentenced to the Illinois Penitentiary for a term of from 35 to 50 years.

Defendant, in seeking a reversal of his conviction, contends first that his conviction was based on incompetent prejudicial testimony, second that error occurred in the giving and refusing of instructions and third that the evidence is insufficient to sustain the jury’s conclusion that he was guilty beyond a reasonable doubt.

Defendant spent the evening of August 20, 1965, visiting taverns with his friends. After leaving his friends he went to the home of his girl friend. After leaving her home he encountered Alleane Ceaser who lived nearby and an argument ensued. During the argument Alleane Ceaser’s daughter called the police. The police arrived but did not stay since Defendant had already left the premises. What transpired after Defendant left the premises is substantially in dispute. Defendant testified that he went to his apartment about two blocks away and then to a store accompanied by two other residents of his apartment building. He was arrested upon his return to the apartment building, offered no resistance and cooperated with the arresting officers. According to other witnesses, Defendant returned to the scene of the argument where he shot and killed Alleane Ceaser.

With respect to Defendant’s contention that his conviction is based on incompetent prejudicial testimony it appears from the record that about three hours after the offense occurred, the assistant state’s attorney questioned Robert McKinley under oath, his statement being recorded by a court reporter. McKinley, after stating that he had seen Defendant immediately after the shooting, was asked whether he saw a gun in Defendant’s hand. McKinley’s response was “yes, I could say it was a gun but I didn’t actually see no gun, I couldn’t say.” At the trial McKinley testified that he saw a gun in the Defendant’s hand and described it as black with brown handles, being the same description as that of a revolver introduced into evidence. The pretrial statement of the witness McKinley was presented to and considered by the jury together with his testimony given at the trial.

Defendant insists that in view of witness McKinley’s pretrial statement his testimony given at the trial constitutes perjury and hence is incompetent. We do not agree with this contention of Defendant. We are not aware of any rule whereby contradictory or inconsistent statements of a witness whether made during the course of a trial or otherwise, thereby render the testimony incompetent. The pretrial statement of McKinley was contrary to his testimony given at the trial and was properly introduced for the purpose of impeachment as was the testimony that McKinley had previously been convicted of a felony. Evidence which tends to impeach the testimony of a witness affects the credibility of the witness and not his competence to testify. That impeachment of a witness does not affect competence is illustrated by those cases wherein motions for a new trial based on newly discovered evidence tending to impeach a witness have been denied. People v. Johnson, 286 Ill 108, 121 NE 246. Both the complained of testimony and the impeaching statement were presented to the jury and it was the duty of the jury to assess the credibility of the testimony considering both its contradictions and its reasonableness in relation to all other evidence presented.

This brings us to Defendant’s next assignment of error, namely that the evidence is insufficient to support the jury’s verdict. Witness McKinley testified that he was sitting on the porch next to the house wherein the death occurred. He heard the original argument, saw the Defendant leave, saw the police arrive and leave, heard three shots and immediately thereafter saw the Defendant walking on the sidewalk with a gun in his hand and had a brief conversation with him. As is indicated in the foregoing paragraphs, McKinley’s testimony concerning the gun in the Defendant’s hand is impeached to some extent and his testimony standing alone would not support the verdict. However other witnesses heard and saw the first argument and two witnesses other than McKinley testified concerning Defendant’s presence at the scene of the offense at or about the time of its occurrence. One of the witnesses who was well acquainted with Defendant testified that he saw Defendant on the sidewalk in front of the house of Alleane Ceaser and that he heard three shots fired and saw flashes at Defendant’s side. The witness did not, however, see at whom or at what Defendant was shooting. Upon a search of Defendant’s apartment, made with his consent, police officers discovered a revolver in a bag containing dirty clothes. Two ballistics experts testified and each expressed the opinion, based on comparison tests, that the fatal bullet was fired from the revolver found in the Defendant’s apartment. Another witness testified that he had seen a revolver in Defendant’s possession an hour and one half before the occurrence. Defendant, while admitting his argument with deceased, denied he returned to the scene of the occurrence and presented evidence in support of his contention that he was elsewhere at the time of the offense. Defendant denied ownership or any knowledge of the revolver.

Defendant argues that there are inconsistencies in the testimony of the witnesses. The testimony of the witnesses does reveal inconsistencies or inaccuracies concerning such facts as to whether the door of the Ceaser house was open or closed at particular times as well as some conflict as to who was present at various times. However in examining such testimony we do not find that it is inherently improbable or palpably erroneous and the argument of Defendant is primarily one of credibility of the witnesses the resolution of which is primarily the province of the jury. Conflicting inferences could be drawn from the evidence offered in support of the defense of alibi since the time periods were narrow and not possible of precise determination. Considering the record as a whole we believe that the conclusion of the jury was amply supported by the evidence.

Defendant contends that his instruction Number 15 was improperly refused. In substance, Defendant’s instruction 15 is an alibi instruction and is similar to Defendant’s instruction number 11 except that it includes not only Defendant’s presence at the scene of the offense but also Defendant’s participation in the offense. We do not believe that Defendant’s admitted presence at the scene of the offense at some time prior thereto furnishes any basis for concluding that any prejudice resulted to Defendant for failure to give an instruction at his request including both the elements of presence and participation. All theories of defense were adequately presented by the instructions. Although other errors in instructing the jury are urged by Defendant they have no merit and we do not believe they require discussion.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


text:
    In re the Application of Paul T. Soldwedel, County Treasurer and Ex Officio Collector of Taxes, for Judgment and Order of Sale for Taxes and Special Assessments of Delinquent Lands and Lots, and for Judgment Fixing the Correct Amount of Any Tax Paid Under Protest, in the County of Tazewell and State of Illinois. Marguerite Hunt, Petitioner-Appellant, v. Clarence C. Short, et al., Defendants-Appellees.
    Gen. No. 66-86.
    Third District.
    April 14, 1967.

      Moehle, Moehle & Reardon, of Pekin, for appellant.
    John A. Slevin, of Peoria, for appellees.
   STOUDER, P. J.

Appellant, Marguerite Hunt, executor of the estate of Verne Reed, petitioned the Circuit Court of Tazewell County under section 72, chapter 110, Ill Rev Stats 1965, hereinafter referred to as sec 72, to set aside and vacate an order for tax deed and the deed issued pursuant to such order in favor of Appellees, Clarence Short and Franklin Hess. Verne Reed, during his lifetime, owned the premises which are the subject of this proceeding and which were sold for nonpayment of general real estate taxes. Redemption from such tax sale not having been made, application was made for a tax deed which deed was ordered in the customary form including the usual jurisdictional findings. Appellant’s petition, filed eleven months after the entry of the order for tax deed, alleged numerous grounds for vacating the order, including two paragraphs with respect to the insufficiency of notice to a mortgagee. Appellees moved to strike the two paragraphs concerning notice to the mortgagee which motion was allowed by the trial court. The court then proceeded to hear evidence concerning the other allegations of the petition which resulted in a ruling adverse to Appellant. Only the trial court’s ruling on the motion to strike is before us on this appeal, no assignment of error being urged with respect to other rulings of the trial court.

The paragraphs of the petition which were stricken by the trial court are as follows, “9. That the Commercial National Bank of Peoria, Illinois, is the assignee of a mortgage executed by Verne Reed, deceased, to Mid City Construction Company, as is set forth in a copy of said mortgage and assignment, which is attached hereto and made a part hereof and marked “Exhibit C”; that said mortgage and assignment was recorded in the Recorder’s Office of Tazewell County, Illinois, on March 18, 1959, and is recorded in Volume 600, pages 266 and 267 therein.

“10. That the said Commercial National Bank was not made a party to the proceedings to secure the issuance of said Tax Deed as appears from the record herein; that the said Commercial National Bank is a necessary party.” The motion to strike was directed solely at the aforementioned paragraphs 9 and 10 and alleged that such paragraphs were insufficient as a matter of law to support relief under sec 72.

On this appeal Appellant insists that the allegations of paragraphs 9 and 10 are legally sufficient in that the facts stated supported the conclusion that the order for tax deed was void and that the failure of the record to show notice to a mortgagee is an error of fact which if brought to the attention of the trial court would have prevented the entry of the order.

Section 268 of the Revenue Act (Ill Rev Stats 1951, c 120, § 744) in describing the persons to be notified before a tax deed shall be ordered, includes mortgagees and by virtue of such section, the Commercial National Bank was entitled to notice. Assuming as we must from such petition that the record fails to disclose specific notice to such mortgagee, the question remains whether relief may be afforded under sec 72 more than 30 days after the entry of the tax deed order upon the request of the owner of the premises.

The trial court had jurisdiction of the subject matter and acquired jurisdiction of the land in question in this proceeding by publication in the county collector’s application for judgment and sale of delinquent lands, and retained jurisdiction to enter order for issuance of deed and writ of assistance, upon proof of notice as provided in section 263 of the Revenue Act. (Ill Rev Stats 1955, c 120, par 744.) Cherin v. R. & C. Co., 11 Ill2d 447, 143 NE2d 235. It is well settled that upon an appropriate showing, relief from an order for tax deed is available under sec 72. Freisinger v. Interstate Bond Co., 24 Ill2d 37, 179 NE2d 608 and People ex rel. Wright v. Doe, 26 Ill2d 446, 187 NE2d 222. From such cases it can be concluded that fraud is an appropriate basis for considering relief under sec 72. It is equally clear from such cases that issues once litigated may not be relitigated, fraud being deemed such an exceptional circumstance that the interposition of the equitable power of the court is required. Urban v. Lois, Inc., 29 Ill2d 542, 194 NE2d 294 and Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 155 NE2d 308. In Urban v. Lois, supra, a mortgagee of record sought relief under sec 72 alleging fraud and also that notice was not given to him. The court ruled that there was no evidence of fraud and further, that even though the petitioner as a mortgagee of record was entitled to notice, the failure to give him notice in the absence of fraud was insufficient to warrant relief under sec 72. We believe that the principle of the Urban case is applicable to the facts of this case. When it is claimed there is no notice to a mortgagee of record and where no allegations of fraud are made, it is immaterial whether such claim be made by the mortgagee as in the Urban case or by the owner of the premises as in the instant case. Likewise, although the court in Urban found that the mortgagee had actual notice, it did not predicate its opinion on such actual notice and in any event Appellant’s paragraphs 9 and 10 do not allege absence of actual notice to the mortgagee.

For the foregoing reasons we believe that the trial court properly dismissed paragraphs 9 and 10 of the petition and the judgment of the Circuit Court of Tazewell County is affirmed.

Judgment affirmed.

ALLOY and CORYN, JJ., concur.


author: JUSTICE CORYN.

text:
    Wilfred Wierman, Plaintiff-Appellee, v. Bird Provision Co., a Corporation, Defendant-Appellant.
    Gen. No. 66-96.
    Third District.
    April 14, 1967.

      Moehle, Moehle & Reardon, of Pekin, for appellant; Kenneth L. Ott, of Peoria, for appellee.
   Opinion by

JUSTICE CORYN.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis Ruiz, Defendant-Appellant.
    Gen. No. 50,478.
    First District, Fourth Division.
    April 14, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn, James N. Gramenos and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward and John J. Stamos, State’s Attorneys of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Two indictments were returned against the defendant, each containing two counts. Count I of the first indictment charged that Louis Ruiz, a person of 17 years and upwards, committed the offense of indecent liberties with a child, in that he performed an act of sexual intercourse with Barbara Parks, a child under the age of 16 years. The second count alleged that Ruiz committed the offense of rape in that he had sexual intercourse with Barbara Parks, not his wife, by force and against her will.

Count I of the second indictment charged that Ruiz committed the offense of aggravated battery in that he intentionally and knowingly, without legal justification, committed a battery on Dorothy Ruiz, which caused great bodily harm to her. Count II of the second indictment alleged that Ruiz committed the offense of attempt in that he, with intent to commit murder, attempted to kill Dorothy Ruiz without legal justification. The indictments were consolidated and a bench trial was held.

The court found him guilty and sentenced him to a term of 10 to 25 years on the rape charge, and 2 to 10 on the indecent liberties charge, both sentences to run concurrently. He was found guilty and sentenced 5 to 10 years on the aggravated battery charge, and 5 to 10 years on the attempted murder charge. Both of these sentences were to run concurrently. The sentences under the first indictment and the second are to be consecutive, and the court ordered that the defendant will serve the rape and indecent liberties term first and then the aggravated battery and attempted murder sentence.

Evidence: Dorothy Ruiz testified as follows: She had been married to the defendant for 14 months; she has six children, two of whom, Barbara and Brenda Parks, are daughters of her former husband, Frank Parks, now deceased. She testified that she and her present husband, Ruiz, had traveled in a number of states, accompanied by the two girls; that it had been a happy marriage and the defendant had never before beaten her; nor had he, prior to the instant occasion, ever shown any physical interest in either of the two girls. She continued her testimony as follows: On November 1, 1964, she worked on a farm with her husband until 6:00 p. m., after which time they went to her stepson’s home in St. Anne, to pick up the two girls. She does not remember what happened after leaving St. Anne on November 1, 1964, until December 1, 1964, when she discovered she was in Cook County Hospital, where she underwent six brain operations.

Barbara Parks testified that she was 12 years old; that she was the daughter of Mrs. Dorothy Ruiz; that on November 1, 1964, at about 7:30 p. m., her mother and Ruiz picked her and her sister up at their brother’s in St. Anne, after which they went to a farmhouse near Matteson, Illinois, and went to bed; that they all slept in the same bed, her mother on the outside and she, her sister and stepfather at the foot. She testified that while she was asleep her stepfather hit her in the mouth; that he then pushed her mother out of bed, picked her up by the hair and beat her head against the floor four or five times, then dragged her to the living room and began beating her with a stick (People’s Exhibit No. 1), hitting her over the head three or four times. She stated that her mother was unconscious during the beating.

Barbara further testified that Ruiz then said they were going to leave; that he dragged her mother outside and went to the car; that she and her sister dragged their mother back into the house and put her on a couch; that the defendant returned and began to beat her mother on the throat with his fist. She testified that the three of them then took her mother to the car and they drove away; that during the ride the defendant continued to hit Dorothy and also hit Barbara’s head against the car window; that he then stopped the car at about 4:30 a. m., and told Brenda to get into the front, that they were all going to sleep. Barbara stated that she jumped out of the car and tried to get to the highway, but Ruiz stopped her and brought her back to the car; that Ruiz then took her into the back seat, continued to hit her, and she fought him; that he lifted up her dress, pulled down her underwear, hit her again, then had intercourse with her at least two times. She testified that at that time the police came, opened the door, and arrested Ruiz. Barbara stated that the first beating Ruiz inflicted on her mother was in Kankakee County, but that the last time he struck her and the time he had intercourse with Barbara occurred in Cook County.

Brenda Parks testified that she was 11 years old; that she was awakened at the farmhouse on November 1,1964, when her stepfather knocked her mother out of bed and began beating her and dragged her into the living room; that later they put her mother into the car; they drove for a time, then stopped and her stepfather told her to get into the front seat; that she then fell asleep and had no knowledge of what occurred in the back of the car until the police arrived.

William Lembeke, a police officer from Matteson, Illinois, testified that on November 2,1964, just before dawn, he was patrolling in his squad car when he noticed an automobile parked in a driveway about 150 feet from Route 30; that he pulled up behind the car to check it, thinking it was abandoned; that he turned his flashlight into the car and saw Ruiz in the back seat having intercourse with a young girl; that he then saw a woman on the front seat with her face covered with blood. He stated that he then drew his revolver, ordered the man out of the car, and told him he was under arrest, at which time the defendant told the officer that everything was all right; that the woman was his wife, and that he was just playing with the little girl.

Wilbur M. Ellis, chief of police of the Village of Matteson, testified that he went to the area of Glen Ridge Water Tower Road and Route 30, about 6:25 a. m., on November 2, 1964, where he was given a report by the arresting officer of what had happened. Ellis testified that he went to the farmhouse where the beating of Mrs. Ruiz began; that he saw blood in some of the rooms in the house and discovered a curtain rod broken in several pieces (this rod was marked as People’s Exhibit No. 1). He testified that he could smell alcohol on the breath of Ruiz.

Dr. Edgar G. Wygant testified that he had examined Dorothy Ruiz at St. James Hospital, in Chicago Heights, at about 7:00 a. m. on November 2, 1964. He described her appearance as follows:

“She was in shock. There was laceration all over her forehead. That was bleeding. Both eyes were black and blue and swollen and there were multiple injuries over her entire skull, face, neck and shoulders, black and blue, swollen, and abraded condition, the chest wall was black and blue and swollen; the shoulders on both sides were black and blue and swollen and her abdominal wall, particularly the left lateral side and the pelvis was black and blue. Both thighs were very badly abraded and contused, swollen and black and blue, and the peritoneal area was all swollen and black and blue and contused.”

Dr. Wygant further testified that Mrs. Ruiz was in shock and unconscious; that she was in the hospital approximately 20 days; that because of apparent localized brain injury she was transferred to the neurosurgical section of Cook County Hospital, where she stayed for six weeks.

Dr. Wygant also testified that he had examined Barbara Parks on November 2; that she was disturbed, upset and frightened; that her mouth was swollen and puffed, and there was evidence of rape.

In his own behalf Louis Ruiz testified that he was 32 years old, was born in Mexico, and was an agricultural worker. He stated that about the middle of October he had a disagreement with his wife; that she had told him she went to Tennessee to visit her father, but later when he asked the girls where they had been they said they had gone to the Crescent Hotel in Minnesota with a man named Bruni; that he beat his wife because of this lie.

The defendant first contends that all of the indictments are defective in that the commission of the crimes is stated to have been in Cook County, and that under People v. Williams, 30 Ill2d 125, 196 NE2d 483, there should be a more specific location indicated in the indictment. In People v. Blanchett, 33 Ill2d 527, 212 NE2d 97, People v. Williams is specifically overruled. Also see People v. Reed, 33 Ill2d 535, 213 NE2d 278; People v. Petropoulos, 34 Ill2d 179, 214 NE2d 765.

The defendant argues that the court improperly imposed two sentences on the charges of rape and indecent liberties since both these crimes resulted from the same conduct, and that concurrent sentences may be imposed under the Criminal Code (Ill Rev Stats 1963, c 38, § 1-7 (m)) only when a person is convicted of two or more “offenses which did not result from the same conduct.” In People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299, the defendant was found guilty of forcible rape and incest. The two offenses were charged in separate counts of a single indictment. The court fixed a penalty for each offense and provided that the two sentences should run concurrently. The two offenses of which the defendant was found guilty involved a single act — the defendant’s forcible rape of his 10-year-old daughter. The Supreme Court pointed out that it was proper to join the two charges in a single indictment and to try them together. The court cited People v. Schlenger, 13 Ill2d 63, 147 NE2d 316, where the defendant had pleaded guilty to an indictment that charged armed robbery in the first count and grand larceny in the second. Both counts related to the same occurrence. The defendant was convicted and sentenced on both counts and the sentences were to run concurrently. In Schlenger the court reversed the judgment entered on the count for larceny. In Duszkewycz the court held that in accordance with the holding in the Schlenger case the judgment of the criminal court was affirmed on the count of the indictment charging rape, and its judgment on the count charging incest was reversed.

From the evidence in the case before us there is no question that the defendant was convicted beyond a reasonable doubt of both rape and indecent liberties. The judgment of the Circuit Court is affirmed on the first count of the indictment charging rape. Under the holding in Schlenger and Duszkewycz, the judgment of the Circuit Court finding the defendant guilty on the count of the indictment charging indecent liberties is reversed.

The first count of the second indictment charges that Ruiz committed the offense of aggravated battery upon Dorothy Ruiz, and the second count alleges that he committed the offense of attempted murder. The evidence was that the first and most severe attack with a curtain rod, in which a savage beating was inflicted upon Dorothy Ruiz, occurred in Kankakee County. It is well established law that the charge that a crime was committed in a particular county is a material averment and must be proved to sustain a conviction. People v. Allen, 413 Ill 69, 107 NE2d 826. In the case before us, in the second count of the second indictment, the defendant was charged with committing the offense in Cook County. The State failed to prove venue as laid in the indictment; hence, the judgment of the trial court finding the defendant guilty of attempted murder must be reversed. The testimony in the record is that while Dorothy Ruiz, bleeding and unconscious from the effect of the first beating, was lying unconscious in the automobile in Cook County, the defendant again attacked her and beat her. The Criminal Code provides (Ill Rev Stats 1963, c 38, § 12-4(a)):

“A person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.”

This attack upon the helpless, injured woman would be an aggravated battery in Cook County, and the defendant was properly found guilty and sentenced.

The judgment of the Circuit Court finding the defendant guilty of indecent liberties is reversed; the judgment that the defendant is guilty of attempted murder is reversed. The judgment of the Circuit Court finding the defendant guilty of rape and sentencing him to 10 to 25 years in the penitentiary is affirmed. The judgment of the Circuit Court finding the defendant guilty of aggravated battery and sentencing him to 5 to 10 years in the penitentiary is affirmed. The further judgment of the Circuit Court that the two sentences shall run consecutively — the sentence for rape being served first — is affirmed.

The defendant argues that the sentences are too severe. We do not feel this argument requires any further answer than a reading of the statement of fapts in this opinion.

Reversed in part, affirmed in part.

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


author: MR. JUSTICE MCCORMICK

text:
    People of the State of Illinois, Appellee, v. Alvin Garrett, Appellant.
    Gen. No. 51,380.
    First District, Fourth Division.
    April 14, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Truman Larrey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Charge : Robbery.

Defense at Trial : Defendant was not proved guilty beyond a reasonable doubt.

Judgment: After a bench trial, the court found the defendant guilty and imposed a sentence of one to four years.

Point Raised on Appeal : Defendant was not proved guilty beyond a reasonable doubt.

Evidence: The complaining witness, Woodrow Flient, testified that he lived at 2430 South State Street with his wife and family; that on the night of February 27,1965, he had been visiting his aunt who lived at 13255 South Evans, where he had stayed four or five hours; that while he was there he had nothing to eat or drink; and that he had gone there to pay her rent. He stated that he left about 1:00 a. m. (February 28), and drove to the Cut Rate Liquor Store located at 31st and Indiana Avenue, where he bought two bottles of beer, a half pint of Johnny Walker whiskey and some pop; that the items were put into two bags. He testified that he had not had a drink; that he started walking to his car which was parked nearby on 31st Street, when he felt someone touching his pocket; that he turned to his left and was struck in the face by a man who had been following him. He testified that he could not see very well what the man had in his hand; that it looked like a stick (on cross-examination he said he could not see it); that he was struck a second blow and fell down, letting the packages drop; that as he lay there the defendant went through Flient’s pockets and took ten or twelve dollars, the keys to his car, and a pair of glasses. He stated that he then saw two other men with the defendant.

The witness further testified that when the police came he told them what had happened. He said that he described the three men and “identified one.” At the trial he described the defendant as a dark-skinned Negro, about 5'8" or 5'9", weighing about 169 pounds, wearing dark pants, and something like a sweater with an emblem on it over his shirt, and a dark jacket. Flient then described the other two men in great detail. He further testified that the defendant had a scar about an inch long on the side of his face.

Flient said he did not tell the police that he could not describe two of the three men, and on cross-examination the following took place:

Q. And if the police said that you told them that the man had taken a half a pint of Johnny Walker whiskey from you, that would be incorrect; . . .
A. That would be incorrect, because everything—
Q. You didn’t tell the police that they took a half a pint of Johnny Walker whiskey from you, did you?
A. No, I did not. Could I tell what happened ?
Q. That’s all I want to know.

On direct examination the witness testified that when he was struck he fell and dropped the bottles of beer, the half pint of whiskey, and the six bottles of Coca Cola. He stated, “They took my belongings.” It is apparent from his testimony that he never saw the bottles again.

Flient further testified that he had not said one of the three men wore a gray-checked sport jacket; that he did not tell the police that one of the men had a scar; and that he next saw the defendant the following day in the same vicinity. He stated that he was never at a hotel located at 3116 Indiana on the 25th of February 1965, nor any other day, and that he did not have a fight with the defendant on that date. He stated that he had never heard of the Corporate Liquor Store, nor did he tell the police he had been to the Corporate Liquor Store; that if the report so indicated it would be incorrect. He further testified he told the police that one of the men had a gun.

Ralph Anton, a police officer, testified that on February-28, 1965, while in the company of two other policemen— one of whom was Robert Johannes — he talked with the defendant, who denied committing the robbery; that on March 1, at about 1:30 a. m., he had a further conversation with the defendant, at which time Flient was present. Officer Anton testified that the defendant said he had struck Flient, but denied taking any part in the robbery, denied taking any money; that the defendant said there were two other men there and that possibly they “took this.” Officer Anton said he did not make out a report, but his partner, Johannes, did, and that he had the report with him. This report does not appear in the record.

The defendant, Alvin Garrett, testified that he lived at 3116 Indiana Avenue; that on February 25, between 6:00 and 7:30 p. m., Woodrow Flient came to his room on the second floor and asked for some person who was supposed to be living on the same floor; that Garrett told him the people he asked about did not live on that floor. According to Garrett’s testimony, Flient was intoxicated at the time; he started cursing loudly; Garrett told him to cut it out, and when he continued cursing, Garrett hit him. Garrett testified that he took no money from Flient’s person at that time, nor any property from Flient; nor did he then try to take any money or property from Flient. He stated that he did not strike Flient on the evening of February 27 or the early morning hours of February 28,1965, nor did he take any money or property from him at that time; that he told the police he had hit Flient; that there were two other men who might have robbed Flient, and gave the police their names; that when he told the police he had hit Flient he was referring to February 25. He said that one of the men — Earl Hawkins —came to his room and gave him a jacket which was gray with black stripes in it; that it was the jacket Flient said Garrett was wearing at the time of the robbery. He further testified that he does not have a scar on his face, but above his left eye there is an enlarged vein which protrudes.

At the close of Garrett’s testimony his counsel offered Defendant’s Exhibit 1 (a police report based on information from Flient), which was admitted in evidence. Among other things the report stated that it referred to the alleged robbery of Woodrow Flient on February 28, 1965; that Flient had been drinking at the time; that $15 in money was taken from him; that three men were involved with the robbery, and that the men displayed weapons — a knife and a pipe. The report further stated that Flient described only one of the three male Negroes who were involved in the alleged robbery, that one being described as 27 to 35 years old, 5'9" or 5'10" in height, 190 to 200 pounds in weight, stockily built, wearing a gray-checked sport jacket and no hat. The report further set out that Flient stated one of the men had taken a half pint of Johnny Walker whiskey from him, together with his wallet containing “$15.00 USC and driver’s license.” The report stated: “Offender had a lead pipe with which he hit victim on head causing a laceration of eye of victim.”

Opinion : It is, of course, the law that in a criminal case the People must prove beyond a reasonable doubt not only the commission of a crime alleged but also its perpetration by the accused. People v. Ashley, 18 Ill2d 272, 164 NE2d 70; People v. Davis, 14 Ill2d 196, 151 NE2d 308.

In the case before us the defendant strongly argues that the testimony of Flient was impeached by the copy of the report which it is admitted was made to a police officer. Flient stated on the stand that the defendant testified he had told the police that one man had a gun. This does not appear in the report. On the stand Flient testified he did not see what he was hit with; that it looked like a stick, while in the report he allegedly stated he was hit with a lead pipe. There was a variance between his testimony and the report with reference to the amount of money which was taken ($12.00 and $15.00) ; and the report indicated he had been drinking, while he testified on the stand that he had nothing to drink during the evening. The testimony concerning the defendant’s height and weight varies from the report, but not to any material extent. While testifying Flient said the defendant, at the time of the alleged assault and robbery, was wearing a sweater with an emblem; nothing to this effect appears in the police report. Flient’s testimony on the stand was that the defendant was wearing a dark jacket, and that no one at the time of the occurrence had a gray-checked sport coat; that if that appeared in the police report (which it did) it was incorrect. On the stand Flient testified that the defendant had a one-inch scar on the side of his face; the police report gives no information concerning a scar. Flient testified on the stand as to complete descriptions of the appearance and dress of the two other men he said were with the defendant at the time of the occurrence, and said he had given these descriptions to the police, but the police report states “no description on #2 and #8 male Negroes.”

The State argues that before a witness may be impeached by his prior statements, a proper foundation must be laid in order to alert the witness, avoid unfair surprise, and to give the witness an opportunity to explain. People v. Moses, 11 Ill2d 84, 142 NE2d 1. The State also urges that no proper foundation was laid for the introduction of the police report. The report which was introduced in evidence bears the names of W. Brown and S. Martin as reporting officers. The only reference to Defendant’s Exhibit 1 appearing in the abstract is as follows:

“Defendant’s Exhibit No. 1 marked for identification. Defendant’s Exhibit No. 1, which purports to be a report made by Officer W. Brown, Star 4493, received in evidence — ”

In his reply brief the defendant argues that the State waived any objections it might have to the report since at the time it was offered the State’s Attorney made no objections to the introduction of the report in evidence. That is not apparent from the abstract, and a reviewing court is not required to go to the record in order to reverse a case. Under the rule laid down in Moses, a proper foundation was not laid for the introduction of the police report, and it was improperly admitted in evidence. Consequently, the report is not properly before us on this appeal, and even though it was before the trial court, it is apparent that the trial court believed the evidence of Flient in spite of the alleged impeachment.

The defendant’s testimony with reference to the two men is not persuading. Garrett testified that after he was arrested he told the police that he had hit Flient and he also told them “about two other possible persons who might have at one time robbed Mr. Flient.” His testimony was:

“After they told me I were booked for robbery, so I didn’t want them to put the robbery on me, so I said I believe I know the two fellows they were looking for . . . One of the boys named Earl, he came up to my room one morning, woke me up. And he bought a jacket the day before that, and I asked him what happened to his right hand jacket pocket, and the guy say he stuck a knife in the pocket. And he give it to me.”

Officer Anton had already testified that Garrett had told him that when he hit Flient, two other men were there and that possibly they committed the robbery; this in the face of Garrett’s testimony that the only time he had any contact with Flient was the night of February 25 in the building in which Garrett lived.

Garrett further testified that he told the police that the other man was named James Austin. The testimony of the defendant that he had a quarrel with Flient and that the two other men might have been engaged in the robbery was, as the defendant himself stated, an attempt to get out of the robbery charge. In spite of the attempt of the defendant to exonerate himself, we believe the testimony of Flient was sufficient to establish the guilt of the defendant beyond a reasonable doubt. It is the rule that where the only question is one of identification, which would appear to be the fact in the case before us, the testimony of one credible witness, if positive, is sufficient to convict, even though contradicted by the accused. People v. McCall, 29 Ill2d 292, 194 NE2d 222.

Where a case is tried by the court without a jury, the determination of the credibility of witnesses and the weight to be accorded their testimony is committed to the trial judge, and unless the judgment is found to rest on doubtful, improbable or unsatisfactory evidence or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below. People v. Spencer, 81 Ill App2d 344, 225 NE2d 407, citing People v. Clemons, 26 Ill2d 481, 187 NE2d 260; People v. Smith, 57 Ill App2d 74, 206 NE2d 463.

In People v. Williams, 12 Ill2d 80, 145 NE2d 29, the Supreme Court points out that “The trial judge, as trier of the facts, has many advantages in determining the credibility of witnesses.”

In the case before us, even had the police report been properly admitted and considered by the court, nevertheless the trial judge in determining the credibility of the witness, was not at liberty to disregard the testimony of a witness merely because evidence tending to impeach had been introduced, nor on the ground that the witness had made an erroneous statement. It is only where he has been successfully impeached and where the statements are willfully and corruptly false in regard to material facts that the trier of fact is authorized to disregard the entire testimony. Beedle v. The People, 204 Ill 197, 68 NE 434.

There was no question that in the case before us the corpus delicti was proved; the only question was the identification of the defendant as one of the robbers. When we consider the entire record it is clear that the guilt of the defendant was proved beyond a reasonable doubt.

Decision : The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Ill Rev Stats 1963, c 38, § 18-1 (a). A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

        (b) Penalty. A person convicted of robbery shall be imprisoned in the penitentiary from one to 20 years.


author: MR. JUSTICE DRUCKER

text:
    In the Matter of the Estate of Stella Manikowski, Deceased. Jerry Paluta, et al., Appellees, v. Emmett J. McCarthy, Special Administrator, etc., Appellant.
    Gen. No. 51,384.
    First District, Fourth Division.
    April 14, 1967.

      Emmett J. McCarthy, pro se, of Chicago, appellant.
    Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellees.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from an order directing that the residual estate of the decedent, Stella Manikowski, be distributed to the claimants-appellees, Jerry and Marlene Paluta. The order was based upon a finding by the trial judge that the decedent entered into an oral contract with the aforesaid claimants in which she agreed to devise and bequeath the residual estate to them in return for the performance of specified services.

Stella Manikowski died testate on October 10, 1964. Her will, which named Jerry Paluta (one of the claimants) as executor, contained certain bequests of money (none of which were in behalf of claimants) and a direction that all of her personal and real property be sold. In accordance therewith all of the property was sold and the bequests, funeral expenses and creditors’ claims were satisfied out of the proceeds. Remaining in the residual estate was approximately $15,000 (most of which represents the proceeds from the sale of decedent’s house). However, the decedent made no disposition of the residual estate in her will. The appellees claimed the residuary on the basis of an oral contract. A Special Administrator (appellant) was appointed to defend the estate against this claim.

In their claim Jerry and Marlene Paluta allege that the oral contract was consummated in the spring of 1961, immediately prior to decedent’s visit to Poland to visit relatives. They further allege as the basis for the contract that:

[A]t the time of her leaving for Poland, she asked the claimants to take charge of her house . . . and explained to them that, by reason of her age she would be unable to take care of the home herself and orally requested claimants to undertake the maintenance of her home together with the lawn, garden, fences, sidewalk, etc., and that in consideration therefor, decedent orally promised to make a Will leaving specific bequests and leaving the residual estate to claimants.

After the death of her husband, John, in 1958, Stella Manikowski lived alone in a two-flat building at 8608 South Essex Avenue in Chicago, Illinois. She resided there until her death at age 75. In 1949 John and Stella Manikowski were instrumental in bringing Marlene Paluta, a claimant herein who was also John Manikowski’s grandniece, to America from Poland and she resided in their house until her marriage to Jerry Paluta in 1954. According to the uncontradicted testimony the Palutas lived two or three blocks from the Manikowski home, visited there socially before the death of decedent’s husband, and thereafter visited as often as twice weekly. Jerry Paluta cared for the landscaping and gardening, and Marlene shopped and drove the decedent to the doctor and to church.

Since claimants were barred from testifying by the provisions of section 2 of the Evidence Act (Ill Rev Stats 1965, c 51, § 2), and Stella Manikowski was dead, they adduced the testimony of various friends and neighbors of the decedent in order to establish the existence of the alleged oral contract. All of the testimony related to the two-flat building on Essex Avenue. Olga Kuk testified that decedent said to her:

Mr. and Mrs. Paluta, they help me, and when I go I leave the home for them.

Walter Jakacic testified as to his conversations with the decedent relative to purchasing the building:

I mentioned to her that the home was a burden. I mentioned to her that I would like to purchase the home .... She said as long as the Palutas were giving her a hand and taking her to the doctor, she would make provisions in a will [that] the home would be theirs. Again I approached her on the same subject .... She said the home would be provided to the Palutas for being so good to her.
She said, as far as having them [the Palutas] to depend on it, she made a will out and the home would go to the Palutas for all they did for her.
In both conversations, Mrs. Manikowski mentioned a will. She spoke of the provisions of the will. She said that the home was to go to Mr. and Mrs. Paluta.

Jane Trzcinski also testified as to her conversations with the decedent:

She said she had a will. She was real modern. She kept saying how modern she was. She had her house taken care of. She was going to leave it to the Palutas, not that they need the house, they could use the money. They would sell the house for the children’s education.
There was another conversation in November or December, 1963 .... [S]he wasn’t feeling good. She says she is OK, all prepared to die. She has funeral arrangements made, the will made. Everything is provided for. She provided for the Palutas. They are to get the house.

No evidence was adduced by the defendant.

Even though none of the witnesses used the word “contract” in describing the alleged testamentary arrangement the decedent had with the claimants, this is not a requisite to establish the contract’s existence. Anson v. Haywood, 397 Ill 370, 74 NE2d 489. In that case it was alleged in the complaint that the decedent had orally agreed to devise to plaintiff and his wife all of his property if they would move into his home and generally care for him; and that contrary to the aforesaid agreement plaintiff was not made a beneficiary under the decedent’s will. Plaintiff adduced testimony to show that the decedent requested a neighbor couple to live in his home and care for him, stating that he would give them the property “after he passed,” but this request was turned down. Subsequently, the decedent told them “Luther and Lutie [referring to plaintiff and his wife] are going to take the proposition I offered you.” Decedent’s barber also testified and stated that in response to his inquiry as to the decedent’s proposed disposition of his property, the decedent informed him that “I have made provision for Luther to have everything that I have,” and “Luther and his wife have taken good care of me and I am leaving everything to them.” Similar testimony of various other witnesses was adduced by the plaintiff. Various acquaintances of the decedent testified in behalf of the defendants and stated that they were unaware of any arrangement with the plaintiff whereby plaintiff was to receive the decedent’s property upon death. We would point out that the court in Haywood, supra, held that the existence of an oral contract had been established, notwithstanding that the decedent had executed a will which was entirely in conflict with the provisions of the alleged contract. In the instant case, however, the decedent’s will was not inconsistent with the alleged contractual provisions since there was no testamentary disposition of the residual estate.

We would point out that while claimants allege an oral contract to devise and bequeath the entire residuary estate, the evidence which was adduced went only to the existence of a contract relating to the decedent’s house. Therefore, under the evidence adduced, the claimants could not possibly have established an oral contract to devise and bequeath the entire residuary estate. However, we find that the claimants have established the existence of a contract to devise the decedent’s house. The evidence adduced by the claimants as to the alleged contract was uncontradicted and, under all of the circumstances of this case, was corroborated in two important and necessary respects: first, the decedent’s appointment of Jerry Paluta as executor; and, second, the fact that even though the decedent died testate there was no disposition in her will of the house, which was her primary asset, or of the residual estate.

Therefore the order directing that the residual estate of the decedent be distributed to the claimants, Jerry and Marlene Paluta, is reversed and the caused remanded with directions that the trial court enter an order that: (1) the proceeds from the sale of the decedent’s house on Essex Avenue be distributed to the claimants, and (2) the proceeds from the sale of the decedent’s personal property be distributed as intestate property subject to all of the fees and expenses attributable thereto.

Reversed and remanded with directions.

ENGLISH, P. J. and McCORMICK, J., concur.

       If the claimants are not entitled to the residual estate the property passes intestate to the decedent’s half-brother, a resident of Poland.

       Defendant does not contend that the alleged contract, even if established, was in violation of the Statute of Frauds. Nor would that contention be meritorious since there has been performance by the claimants. An oral contract, even for the future conveyance or devise of land, is not within the Statute of Frauds if it has been completely performed by one of the parties thereto. Anson v. Haywood, 397 Ill 370, 74 NE2d 489.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Jackson, Defendant-Appellant.
    Gen. No. 51,534.
    First District, Fourth Division.
    April 14, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MCCORMICK

delivered the opinion of the court.

Charge: Burglary.

Judgment: After a bench trial the court found the defendant guilty and imposed a sentence of not less than one nor more than three years.

Point Raised on Appeal : Defendant was not proved guilty beyond a reasonable doubt.

Evidence : Augustine Molina testified as follows: He had a place of business on the first floor at 1816 North Halsted Street in the City of Chicago, where he sold records, jewelry, and phonographs. On Friday, February 25, 1966, he closed his store about 8:00 or 9:00 p. m. There was only one door to the shop and that was protected by a gate in the front. When he returned to the store on February 26, at about 9:30 a. m., he saw that the left side of the wall was broken; there was a big hole in it, about 1%' to 3' — big enough for a person to crawl through — and a window in the back of the basement was broken. There was a lot of plaster lying around on the floor inside the shop. Molina stated that he checked the goods in his store and found 20 rings and 8 earrings missing. He said he did not know the defendant, Robert Jackson, nor did he give him any authority to enter his store; he had never seen Jackson before and Jackson had never purchased anything from him. He stated that the wall was not an outside wall, and if a person crawled through it he could go to the stairs to the basement where there was a broken window with a hole about to 2%' large. He testified that the missing rings were worth $10 each and the earrings $4 each; that he did not have any insurance to cover loss by theft.

Police Officer Philip Duhr testified that he went to 1816 North Halsted Street at 6:55 a. m., on February 26, 1955; that it was a 2-story building with a record shop on the ground floor; that he saw a hole in the inner wall leading into the shop, and found an open window leading into the basement on the north side of the building, through which window he and his partner entered. He stated that he and his partner searched the basement, then found a second stairwell and an open door which lead to a rear apartment of four or five rooms, occupied by Jose Soto, his wife and four children, all of whom were sleeping when the police entered. He testified that they woke the family, then went into a side room used for hanging laundry, and found the defendant, Robert Jackson, hiding behind a dresser in the room. Officer Duhr stated that he asked Soto if he knew the defendant and he said he did not; the defendant said nothing. Officer Duhr further testified that on the stairs leading from the basement towards the hole in the shop wall they found a screwdriver and a crowbar.

On cross-examination Officer Duhr reiterated his testimony that he got into the basement from the outside through a window which was pushed up; there was no glass in it and it was boarded up on the inside; that the window was about 18 inches high and 2 and a half feet wide; that the hole in the wall leading into the record shop was large enough for a person to crawl through. He further testified that when the defendant was arrested his clothes were covered with the plaster dust from the hole.

Robert Jackson testified in his own behalf that at the time of his arrest he was living at 1154 East 62nd Street, but he gave his mother’s address of 1526 South Drake, because he was living with a girl friend at the other address. He stated he worked off and on for a man who owned Christian Home Furniture at 3122 West Madison. He stated that he had been in Molina’s store three or four times and had known Molina for quite a few years; that he believed Molina used to have a store at LaSalle and Division; that occasionally he bought things from Molina and resold them, which he called horsetrading; and these items were usually bongo drums and record players. Jackson testified that on February 25, 1966, at about 9:00 p. m., he talked to Molina in his store; that Molina brought up the subject of a deal which had previously been discussed between them, in which the defendant was to make it appear that a burglary had been committed in the store. He stated that he did not know what Molina expected to gain from it, but that he was told to stay in the store and some time during the night to make it look as though the store had been broken into; that he was then to put some rings into a brown case, put them aside, and when Molina came to open up that morning, Jackson was to take the articles to a public locker and bring the key back to Molina. He testified that for going through with the deal he was to receive from Molina “one Olson amplifier, between thirty-five and forty-five watts, . . . also one turntable, and about $200 in cash.” He stated that it was daylight when he knocked the hole through the wall from the inside; he saw a woman outside the store looking in and he went behind a case to take out the rings and put them in the case which was on the floor; that a car drove up outside with several occupants in it who began waving to him and honking the horn, and he indicated to them that the store would open at nine or nine-thirty. He stated that about 5 minutes later the police arrived, at which time Jackson went through the hole in the wall to the basement; that he was trying to open the boarded-up window when he heard footsteps, and when the policeman turned his flashlight inside, the defendant saw the other stairwell which he entered and which led into the Soto apartment where he was discovered by the police. He later testified that he had left the brown case on the floor when he left the store; that when he was arrested he did not tell the police about the “deal” he made with Molina, and that he did not have any rings on him when he was arrested.

The defendant testified that he had gone to sleep in the rear of the store while looking at television and did not waken until daylight; that he had knocked the hole in the wall with his feet, and was wearing boots with heavy heels, so he used no tools; that he had seen the screwdriver and crowbar before, and that they belonged to Molina; that the defendant had taken the tools from the back room of the store and placed them on the stairwell to make it appear that they had been left there by the burglar.

It is worthy of note that the defendant testified on direct examination that when he went out of the store through the hole, the police had arrived, and that he crouched down, going along slowly. He testified that the first time he told anyone the story about his agreement with Molina to make his visit to the store look like a burglary, was after he was indicted and went into court for the first time.

Molina was recalled to the stand as a witness for the defendant. On cross-examination he stated that when he first talked to the police he did not report his loss because he first had to check his stock. On cross-examination by the Assistant State’s Attorney he stated that he dealt only in new merchandise and did not enter into any horsetrading with anyone for old merchandise. On redirect examination by counsel for the defendant, Molina testified that he found an empty case on the floor and that the total value of the missing rings and earrings would have been $232 or $234; that he had owned a store at LaSalle and Division and had moved to his present address the previous year. In response to a question by the judge, the Assistant State’s Attorney stated that the articles alleged to have been taken were never recovered.

Opinion : The defendant argues in this court that the controlling fact to prove his innocence is that the rings were never recovered, and he bases the argument upon a statement in his brief which is not in accord with the evidence. In the brief he states: “The police testified that they caught the defendant right in the store.” All of the testimony is that the defendant was caught hiding in an apartment above the store; that he had been in the basement after he left the store; and, while the testimony of the police officer is that the tenant of the apartment said he did not know the defendant, that again becomes a question for the trier of the fact to determine. What happened to the rings and other articles alleged to have been taken by the defendant is unknown, but certainly there is evidence that the defendant had both time and opportunity to dispose of them.

The defendant testified that while in the County Jail he had made two diagrams showing the layout of the store. These do not appear in the record. From this testimony the defendant argues it can be inferred that he became absolutely familiar with the store while planning the fake burglary. In negating this argument the trial judge relied on 1) Molina’s testimony that there was no insurance; 2) that it was economically not feasible for a man to pay someone $200 plus other articles of value for stealing $232 worth of merchandise; 3) that the defendant, according to his testimony, was in the store all night and could have acquired his knowledge of the layout then. To this could be added the further reason that a burglar would become acquainted with the premises before planning any burglary. It seems to this court that the reasoning of the trial court was sound and that there was ample justification for his having believed Molina and disbelieved the defendant.

The defendant stresses his argument, again misstating the evidence, by saying, “Where did the rings go in view of the fact that the defendant was apprehended inside the store?” However, the evidence does not show that the defendant was so apprehended. Again, the defendant stresses the fact that the merchandise allegedly stolen had never been recovered, and, reiterating the misstatement previously pointed out in his brief says, “Since the defendant was apprehended in the store by the police; . . .”

In the defendant’s brief the statement is made that “Defendant testified that he agreed with complainant to fake a burglary in return for merchandise and $200.00 in cash (R. 32-34). Defendant’s testimony was unrebutted.” Again, an absolute and inexcusable misstatement of fact, since Molina had testified that he had never seen the defendant before in his life, nor had he given him any authority to enter his store.

From reading the defendant’s brief this court gets the impression that he was arguing about an entirely different record from the one in the case before us; the defense set up by the defendant borders on the fantastic. The court heard the witnesses and believed the evidence of Molina, and disbelieved that of defendant.

In People v. Oatis, 74 Ill App2d 103, 220 NE2d 71, the court said:

“In a bench trial in a criminal case, the reviewing court, in view of the opportunities for observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt as to a defendant’s guilt. . . .”

In People v. Ritchie, 36 Ill2d 392, 222 NE2d 479, the court said:

“To reverse a conviction on the evidence only, thereby substituting our judgment for that of the trial judge sitting without a jury, it is necessary that we find a clearly reasonable and well-founded doubt of the guilt of the accused. (People v. Cox, 20 Ill2d 458.)”

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

Affirmed.

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

       Ill Rev Stats 1963, c 38, § 19-1. Burglary.
      (a) A person commits burglary when without authority he knowingly enters into, or without authority remains within a building, housetrailer, watercraft, aircraft, railroad car, or any part thereof, with intent to commit therein a felony or theft.
      (b) Penalty. A person convicted of burglary shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than one year.


author: MR. JUSTICE ABRAHAMSON

text:
    John C. Tuite and Central National Bank, as Trustee, Plaintiffs-Appellees, v. City of Loves Park, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 66-82.
    Second District.
    April 17, 1967.

      Harold H. Pahlas and Philip A. Nicolosi, of Rockford, for appellant.
    Tuite, Shaw, Barden and Morrisey, of Rockford, and Biestek & Facchini, of Chicago, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Winnebago County. A declaratory judgment was brought by plaintiffs praying that the court declare the zoning ordinance of defendant, City of Loves Park, unconstitutional and void as applied to plaintiffs’ property, and further that the court enter an order permitting plaintiffs to use any part or portion of the premises for multiple dwellings or apartments similar in character to those uses located to the east and north of plaintiffs’ property. At the close of the trial the court entered judgment on March 7, 1966, in favor of the defendant city and against plaintiffs, finding that the matter of allowing said change of zoning was in the exercise of the legislative powers of the city council of the City of Loves Park. Plaintiffs on March 8, 1966, filed a motion to vacate the judgment and for permission to present additional testimony. The court granted this motion. After hearing additional testimony offered by plaintiffs, the court entered a new judgment on April 15, 1966, which in substance, held that the ordinance which prevented plaintiffs from using the land for construction of three multiple-family apartment buildings of 12 units each was unconstitutional and void. After entry of this decree defendant filed a motion to vacate this judgment and sought leave to present additional testimony. The court denied defendant’s motion, whereupon defendant made an offer of proof. Thereafter the defendant filed this appeal.

The City of Loves Park is located in Winnebago County and lies on the east side of the Rock River. East Drive south of River Park Road is the first dedicated street east of the River. The area from River Park Road, south and west for a distance of approximately six blocks has been zoned for single-family residences. The area north of River Park Road, on both sides of East Drive, has been zoned multiple-family with some commercial in the area of the toll bridge. The area east of East Drive and south of River Park Road is zoned multiple-family. The three lots of the plaintiffs front on the west side of East Drive and are approximately one and one-half blocks south of River Park Road in the area zoned as single-family. There appear to be three nonconforming uses on the west side of East Drive north of the plaintiffs’ property: a nursery school, a residence with two apartments and a residence used in part for saw repairs. The structures on these properties appear to be single-family residences.

To the east of East Drive in the multiple-family area there are several multiple-family structures now occupied or in the process of being constructed. Between the plaintiffs’ property and the Rock River is Martin Park which is on the east shore of the Rock River which has a lagoon for fishing, various baseball diamonds, a concession stand and a boat dock. These facilities are maintained by the Park Board.

There is testimony that the granting of the rezoning for multiple-family use would increase the value of the property approximately $10,000 with minimum effects on the adjacent property.

On the original petition the Zoning Board of Appeals recommended that the subject property be rezoned but that only one 12-unit building be erected. After hearings before the City Council at which proponents and opponents of the rezoning were permitted to speak, the Council unanimously voted not to allow the rezoning classification.

On March 7, 1966, after a full hearing, the court entered judgment in favor of the defendant against the plaintiffs. Plaintiffs were permitted to reopen proofs and to call two witnesses who had been aldermen at the time the City Council voted to refuse the plaintiffs’ petition to rezone. The substance of the testimony of the witnesses indicated that the then mayor influenced their judgment in casting their vote in opposition to the rezoning, interjecting the political affiliation of plaintiff Gerald Tuite. The court then reversed its decision and found in favor of the plaintiffs. After the entry of an order reversing the original judgment the defendant sought to vacate and made an offer of proof that four of the aldermen who had voted against the change were not influenced and that their votes were based on the merits of the petition. The court denied this motion.

The City contends that the court erred in: 1) finding there was no substantial relationship between the existing zoning classification and the health, safety, morals and welfare of the community; 2) finding the action of the City Council was arbitrary and discriminatory; 3) allowing additional testimony after the entry of the original judgment; 4) disallowing the evidence sought to be presented by the appellant for the purpose of contradicting the additional testimony of the plaintiffs; and 5) permitting the zoning that would be in effect spot zoning.

It is a long and well established principle that zoning ordinances are presumed to be valid and should be disturbed only if, by clear and convincing evidence, they are shown to be arbitrary or unreasonable. Bennett v. City of Chicago, 24 Ill2d 270, 273, 274, 181 NE2d 96; Jans v. City of Evanston, 52 Ill App2d 61, 67, 68, 201 NE2d 663.

The fact that property would be more valuable to the owner if the use restriction was removed is a factor to be considered in evaluating the reasonableness of the particular zoning ordinance. Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 402, 176 NE2d 771. However, it is only one of the numerous significant factors to be considered in the determination of the validity of the restrictions and is not, by itself, decisive. Hartung v. Village of Skokie, 22 Ill2d 485, 494, 177 NE2d 328. In LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46, 47, 145 NE2d 65, are detailed factors to be taken into consideration in determining the validity of a zoning ordinance. In River Forest State Bank & Trust Co. v. Maywood, 23 Ill2d 560, 563, 179 NE2d 671 appears the following:

“This court has always considered of paramount importance the question whether the subject property is zoned in conformity with surrounding existing uses and whether those uses are uniform and established. (Citation omitted.) There can be little doubt here that the surrounding area is predominantly residential in character, that this has been its long-established classification and use, and that the subject property is not inappropriate for such use. This, we think, is sufficient to sustain the restriction. The fact that the plaintiff’s property might be worth more if a more intensive use were permitted is true in nearly every case where the use of private property is restricted by zoning laws and is not of itself sufficient to invalidate the ordinance.” (Citations omitted.)

In the application of these principles to the instant case we must agree with the Trial Court’s original judgment in favor of the validity of the ordinance. We are unable to find that the restrictions imposed are unreasonable and invalid. A zoning restriction, otherwise valid, will not be set aside where, as here, it realistically limits the use of the property in conformity with the character and uses of the surrounding area.

We agree with the appellant City that the admission into evidence of the additional testimony after the entry of the original judgment, directed solely to the motives and reasons for the action of the City Council was error. Courts cannot investigate into the motives of the legislative branch. This is clearly an inappropriate area for judicial inquiry. Deerfield Pk. Dist. v. Progress Development Corp., 22 Ill2d 132, 140, 174 NE2d 850; 2700 Irving Pk. Bldg. Corp. v. City of Chicago, 395 Ill 138, 147, 69 NE2d 827.

The judgment of the Trial Court is reversed with directions to enter a decree in conformance with the original judgment.

Reversed and remanded with directions.

DAVIS, P. J. and MORAN, J., concur.