text:
    Richard J. Daley, Mayor and Local Liquor Control Commissioner, Plaintiff-Appellant, v. Milton Rifkin, Licensee, License Appeal Commission of the City of Chicago, A. L. Cronin, Chairman, Defendants-Appellees.
    Gen. No. 51,263.
    First District, First Division.
    June 26, 1967.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Thomas F. Strubbe, Assistant Corporation Counsel, of counsel), for appellant.
    No appearance made for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

On October 4, 1965, the Mayor of the City of Chicago, as Local Liquor Control Commissioner, revoked the retail liquor license issued to Milton Rifkin for the premises commonly known as 1122 W. Granville Avenue, Chicago, Illinois, known as Red Kelley’s Lounge. This order of revocation was reversed by the License Appeal Commission on October 29, 1965. The Mayor’s application for rehearing was denied on November 8, 1965. The Mayor then filed an Administrative Review Action, to review the order of the License Appeal Commission. The Circuit Court of Cook County sustained the decision and order of the License Appeal Commission. Plaintiff appeals from this judgment.

Section 5, article VII, of the Liquor Control Act (Ill Rev Stats 1965, c 43, § 149) provides in part as follows:

“The local liquor control commissioner may revoke or suspend any license issued by him if he determines that the licensee has violated any of the provisions of this act or of any valid ordinance or resolution enacted by the particular city council.

The evidence presented before the Local Liquor Control Commissioner established that the defendant’s bartender, Meyer Berger, used the licensed premises to steer a patron on said premises, one Kurt Mecklenburg, to a female on said premises, one Tracy Ricco, for purposes of prostitution in violation of the ordinances of the City of Chicago and Statutes of the State of Illinois.

Section 192-2 of the Municipal Code of Chicago provides :

“No person knowingly shall direct, take, transport, or offer to direct take or transport, any person for immoral purposes to any other person or assist any person by any means to seek or to find any prostitute or other person engaged in immoral practices, or any brothel, bawdy house, or any other place of ill-fame.”

Chapter 38, section 11-15 of the Criminal Code (111 Rev Stats 1965), provides in part as follows:

“(a) Any person who performs any of the following acts commits soliciting for a prostitute:
“(1) Solicits another for the purpose of prostitution ; or
“(2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; or
“(3) Directs another person to a place knowing such direction is for the purpose of prostitution.”

The evidence before the Local Liquor Control Commissioner consisted of testimony of a police officer, Edward A. Adorjian. He and his partner, officer Thomas O’Malley, arrived at the premises at 2:15 a. m. Adorjian testified that there were about 15 people present; that a bartender, one Meyer Berger, was on duty; that a customer, Kurt Mecklenburg was seated near the officers; a man and a woman named Tracy Ricco entered and sat at the far end of the bar; that the bartender said to Mecklenburg: “You can have that girl for $20.” The witness further testified that Tracy Ricco talked with Mecklenburg and that the bartender said to Mecklenburg: “I will fix it up for you tomorrow”; that Mecklenburg replied: “Can’t you do it tonight? I have got an apartment nearby.” The bartender talked to Tracy Ricco who then left the premises with Mecklenburg. The officers followed and arrested Mecklenburg and Tracy Ricco. Officer Adorjian returned to the tavern and placed Meyer Berger under arrest.

Kurt Mecklenburg testified that he did meet Tracy Ricco for the first time at the tavern and that they left together, but denied that they went out of the tavern for the purpose of an act of prostitution or an act of intercourse. There was a variance between his testimony before the local liquor commissioner and the statement he made to the police.

Meyer Berger denied at first that he introduced Mecklenburg to Tracy Ricco, but later admitted that he did. The other witnesses for the defendant testified that they did not hear any of the conversation testified to by officer Adorjian.

On October 22, 1965, the License Appeal Commission reviewed the transcript of evidence and heard counsel for the defendant and plaintiff and reversed the order of revocation.

Section 8, article VII of the Liquor Control Act, (Ill Rev Stats 1965, c 43, § 153), provides in pertinent part as follows:

“The review by the license appeal commission shall be limited to the questions:
“(a) Whether the local liquor control commissioner has proceeded in the manner provided by law;
“(b) whether the order is supported by the findings;
“(c) whether the findings are supported by substantial evidence in the light of the whole record.
“No new or additional evidence in support of or in opposition to such order or action under appeal shall be received other than that contained in such record of the proceedings.”

The evidence before the Local Liquor Commissioner was sufficient to sustain the order of the Commissioner. In Daley v. Perez, 81 Ill App2d 478, 226 NE2d 676, this court said:

“The Deputy Commissioner, having seen and heard the witnesses, was in the best position to evaluate whether the testimony, . . . was probable or believable.”

See also Daley v. Kilbourn Club, Inc., 64 Ill App2d 235, 211 NE2d 778 and Daley v. License Appeal Commission, 11 Ill App2d 421, 138 NE2d 73.

We find that the order of the local commissioner followed the statutes and was supported by substantial evidence.

The trial court was limited by the Administrative Review Act which provides that the findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. The judgment of the Circuit Court is reversed, and the cause remanded with directions to reinstate the revocation order.

Reversed and remanded with directions.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE MURPHY

license: Public Domain

text:
    Estate of Olive Cline Meskimen, a/k/a Olive Cline, Deceased. Lawrence L. Meskimen, Respondent-Appellant, v. Continental Illinois National Bank and Trust Company of Chicago, Petitioner-Appellee.
    Gen. No. 51,472.
    First District, First Division.
    June 26, 1967.
    Rehearing denied July 24,1967.

      Boodell, Sears, Foster, Sugrue & Crowley, of Chicago (Barnabas F. Sears and Gerald M. Sheridan, Jr., of counsel), for appellant.
    Hubachek, Kelly, Miller, Rauch & Kirby, and J. Glenn Bonnefoi, of Chicago (Thomas W. Bloss, of counsel), for appellee.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Respondent, Lawrence L. Meskimen, appeals from the admission to probate of the will of Olive Cline Meskimen, his deceased wife, who died December 23, 1965, without descendants. A so-called “pour-over” will and a separate trust agreement were both executed by the decedent on September 8, 1965. The will was admitted to probate over respondent’s objections that the will should not be admitted without the admission of the trust agreement.

On appeal, respondent contends that (1) the purported will should not have been admitted to probate without admission of the trust agreement because the trust agreement was incorporated into the will by reference and contains part of the terms of the testamentary disposition of decedent; (2) admission of the purported will without admission of the trust agreement effectively deprived respondent of his statutory marital rights under the Probate Act; (3) construction of section 69 of the Probate Act so as to effectively deprive respondent of his statutory marital rights was an unconstitutional application of that section, contrary to the Illinois Constitution, article H, sections 1 and 2, article III and article IV, section 1; (4) petitioner-appellee failed to prove the purported will by two or more credible attesting witnesses; and (5) the court failed to notify beneficiaries of a testamentary trust imposed by the purported will of the hearing on and objections to admission of the will to probate pursuant to section 64 of the Probate Act.

The will was admitted to probate on March 23, 1966, and letters testamentary were issued to the Continental Illinois National Bank and Trust Company, the named executor. The will was witnessed by three persons, who testified at the hearing — James J. Kilgallon, who drafted the will; Edna H. Long, who typed it; and Joseph J. Berzin, an attorney. Kilgallon and Berzin were office associates of J. Glenn Bonnefoi, who had been decedent’s attorney prior to the date of the will. During the hearing, the court ruled that the trust agreement executed by decedent under date of September 8, 1965, “has no part of this proceedings.” Respondent’s attorney then made an offer of proof of the trust agreement and objected to the admission of the will to probate, stating, “Well, I object to it, in the first place, to admitting this will to probate without also admitting to probate the trust instrument referred to in Article 6 of the will, as a trust instrument is a part of the will, and the instrument which is offered for probate is an incomplete instrument.” The provisions of the will included:

“Article IV: I give and bequeath to my husband, Lawrence Lee Meskimen, my library books and music records, and the sum of Five Thousand ($5,-000.00) Dollars in cash.
“This provision for my said husband in no wise affects the operation or effect of an antenuptial agreement heretofore entered into by me with my said husband.”
and
“Article VI: All the rest, residue and remainder, real, personal and mixed and wherever situated, I give, devise and bequeath to the trustee under a Trust Agreement dated September 8th, 1965, between me as Grantor and Continental Illinois National Bank and Trust Company of Chicago, as Trustee, to be added to and commingled with the trust property of that trust and held, managed and distributed by the Trustee thereof in accordance with the terms and provisions of that Trust Agreement and any amendment made to it pursuant to its terms before my death.”

Respondent’s initial contenten is that the will should not have been admitted without admitting the trust agreement — “The document admitted to probate was not the entire ‘will’ of decedent; all documents which together constitute the testamentary disposition by decedent must be admitted.” Respondent asserts that “the ‘will’ to be admitted under Section 69 is the document or documents which show the entire testamentary disposition made by decedent,” and “If the entire testamentary disposition is embodied in more than one document, all must be admitted to probate. The court then regards all the documents as one instrument disclosing the entire testamentary disposition.” (Abdill v. Abdill, 295 Ill 40, 45, 128 NE 741 (1920).) Respondent also cites Bottrell v. Spengler, 343 Ill 476, 175 NE 781 (1931), where it is said (p 478):

“The law is well settled in this State that a will may by reference incorporate into itself, as completely as if copied in full, some other paper which in itself is not a will for lack of execution.”

Respondent argues, “The purported will itself contains only part of the requisites for a valid express testamentary trust. It designates the trustee, identifies the trust property and transfers it to the trustee. In order to ascertain the beneficiaries of the trust and the method of distribution, it is necessary to refer to another document, the trust agreement. Since the trust agreement purports to have been executed on the same day as the purported will, is clearly identified therein, and contains part of the terms of the testamentary trust created in the purported will, it complies with the requisites of the cases cited above. It contains part of the terms of decedent’s testamentary disposition and therefore must be admitted to probate as part of the ‘will’ of decedent.” Also, “The purported will admitted here is incomplete on its face. As was said in Wagner v. Clauson, 399 Ill 403, at 411: ‘. . . It [the purported will] is one instrument if the memorandum is a part of it, and quite another instrument if the memorandum is no part thereof.’ ”

Respondent further asserts that “in other jurisdictions, it is the rule that documents incorporated into a will must be filed for probate.” Citations include Newton v. Seaman’s Friend Society, 130 Mass 91, 93 (1881); In re Dreisbach’s Estate, 384 Pa 535, 121 A2d 74, 77 (1956); In re Dimmitt’s Estate, 141 Neb 413, 3 NW2d 752, 758 (1942) ; Merrill v. Boal, 47 RI 274, 132 A 721, 725 (1926).

Respondent next contends that as surviving spouse, he has several important marital rights under the Probate Act, which cannot be effectively exercised by him “unless the entire testamentary disposition of decedent is before the probate court where they must be exercised. Here, only $75,000 worth of personalty passed under the purported will. The remaining estate, valued at roughly $280,000 was included in the purported trust agreement executed on the same day the will was executed. Decedent obviously attempted to put four-fifths of her estate beyond the reach of Respondent’s statutory marital rights using a trust to make dispositions testamentary in nature which would not pass through probate.”

The marital rights referred to by respondent are (1) his right to renounce the will of the decedent, which would entitle him to take one-half of the personal estate of decedent, which right can be exercised only by filing a written renunciation in the court in which the will was admitted to probate (sections 16 and 17 of the Probate Act); (2) under section 90, respondent has the right to file a will contest “in the proceeding for the administration of the testator’s estate,” and if successful, he would be entitled to take all decedent’s personalty under the laws of intestacy; and (3) under section 178, he is entitled to an award as surviving spouse, the amount of which is based in part on the condition of the estate.

In support of the contention that the trust cannot be utilized to deprive respondent of his statutory rights as surviving spouse, Smith v. Northern Trust Co., 322 Ill App 168, 54 NE2d 75 (1944), is cited, and at p 176 the court said:

“. . . the transfer of title to the trustee, although absolute in form, was merely colorable and illusory. It was therefore invalid as to plaintiff, who is entitled to a widow’s award and to one third of the estate of her deceased husband, including the trust estate, after payment of all proper expenses of the trust and all just claims.”

Respondent asserts, “Under the Smith case, a trust agreement such as the one here is regarded as a testamentary disposition or will as to the surviving spouse and his statutory marital rights. If it were otherwise, the statutory rights of a surviving spouse, which must be exercised in the probate proceeding, could be totally defeated at the will of any predeceasing spouse, thereby frustrating the intention of the legislation to prevent just such an inequitable result. The probate judge cannot determine the effect of renunciation without the illusory trust agreement being filed as part of the probate proceedings.”

Respondent also contends that “failure to admit the alleged trust agreement to probate as part of the testamentary disposition of decedent for purposes of allowing exercise of the above statutory rights, results in circumvention and total defeat of those statutory rights. It is also an unconstitutional application of section 69 of the Probate Act contrary to article II, sections 1 and 2 of the Illinois Constitution,” and “the statutory marital property rights granted Respondent under the Probate Act are property rights of which Respondent cannot be deprived without due process.”

Considered first is respondent’s contention that the will should not have been admitted without the admission of the trust agreement, “which together constitute the testamentary disposition by decedent.”

An examination of this record indicates the trial court adhered to the procedure provided in section 69 of the Probate Act for the “Admission of Will to Probate.” Respondent was permitted liberal cross-examination of all of the witnesses to the will, and there was no “proof of fraud, forgery, compulsion, or other improper conduct,” which, in the opinion of the court, was deemed sufficient to invalidate or destroy the will. In Shepherd v. Yokum, 323 Ill 328, 154 NE 156 (1926), it is said (p 332):

“The probate of wills is governed entirely by the statute, and when the statutory requirements are complied with, no others can be prescribed. . . . [P 333.] When a will is offered for probate in the probate court the only testimony to be heard in that court as to the due execution of the will and the competency of the testator to execute it is that of the attesting witnesses.”

See, also, Schaefer v. Mazer, 359 Ill 621, 623, 195 NE 442 (1935).

We are not persuaded that admission of the trust agreement is part of the procedure for the admission of a “pour-over” will to probate. (McClanahan, “The Pour-Over Device Comes of Age,” 39 Southern California Law Review 163 (1966); McClanahan, “Bequests to an Existing Trust — Problems and Suggested Remedies,” 47 California Law Review 267 (1959).) Section 43a of the Probate Act provides for “testamentary additions to trusts” and does not require that such a trust agreement be presented for probate with the will. The provisions of section 43a are as follows:

“By a will signed and attested as provided in this Act a testator may devise and bequeath real and personal estate to a trustee of a trust which is evidenced by a written instrument in existence when the will is made and which is identified in the will, even though the trust is subject to amendment, modification, revocation or termination. Unless the will provides otherwise the estate so devised and bequeathed shall be governed by the terms and provisions of the instrument creating the trust including any amendments or modifications in writing made at any time before or after the making of the will and before the death of the testator.”

The instant will does not incorporate the trust agreement by reference. The will follows the procedure provided for in section 43a and devises and bequeaths “all the rest, residue and remainder, real, personal and mixed,” to a trustee of a trust which is evidenced by a written agreement in existence when the will was made and which is identified in the will.

Respondent was not deprived of any of his “marital rights” by the admission of the will to probate without the simultaneous admission of the trust agreement. If evidence of the trust agreement and personalty covered by it are essential for the complete determination and disposition of respondent’s “marital rights,” the Probate Act provides adequate statutory means for respondent’s use in the protection of these rights. Respondent’s right to renounce the will (§ 17) is to be accomplished after the admission of the will to probate and “in the court in which the will was admitted to probate.” His right to file a will contest (§ 90) must be filed “in the proceeding for the administration of the testator’s estate.” His right to a surviving spouse’s award (§ 178) depends upon “the condition in life of the surviving spouse and to the condition of the estate and such additional sum of money as the court deems reasonable for the proper support, during such period . . . .” On the determination of the award, “the court may hear evidence and may increase or diminish the award as justice requires.” We believe this provision can be used by a surviving spouse to petition the court for the inclusion in its consideration of a proper award all of the alleged assets of a decedent within his control at the time of death, as in the instant case.

The execution of the trust agreement was part of a procedure and plan provided for by statute. The agreement does not come within the ambit of the Illinois authorities which cover incorporation by reference in a will of a separate instrument. The trial court did not usurp any legislative powers by refusing to admit the trust agreement to probate. See In re Estate of Webster, 21 Ill2d 54, 171 NE2d 24 (1961).

Respondent next contends that “the purported will was not attested by two credible witnesses as required by section 43 of the Probate Act.” Respondent asserts that the test of whether a witness is a competent witness under a will is whether the witness will either gain or lose financially as the direct result of the proceedings to establish the will. Respondent states, “In this case, J. Glenn Bonnefoi, attorney for [the executor] is a beneficiary of an outright 10% interest in the net principal of the trust into which the residuary clause of the purported will pours over. Bonnefoi represented the decedent prior to the execution of the will and trust agreement. . . . [A]lthough Kilgallon drafted the will, it was not he who was engaged to represent Petitioner as executor. Bonnefoi drew that plum. . . . The three witnesses attesting the purported will were all from Bonnefoi’s office. . . . Bonnefoi himself has a direct financial interest in the will. Its validity directly affects the amount of his distributive share under the trust.”

On this point, respondent argues that “it is the duty of the court under Section 43 to ascertain if any attesting witness is not competent by virtue of financial interest. The only way the interests involved could be shown is through introduction in evidence of the trust instrument and testimony bearing on the interest of the attesting witnesses by virtue thereof.”

It is not denied that J. Glenn Bonnefoi is a beneficiary of a 10% interest in the trust agreement or that Edna M. Long is his employee. These facts alone do not demonstrate that any one of the witnesses to the will would benefit financially from the probate of decedent’s will or the administration of her estate. If any beneficial interest was shown to be given by the will to any of its witnesses, section 44 of the Probate Act makes it clear that such an interest does not disqualify a witness to the will, and the interest, if any, will be found void unless “the will is otherwise duly attested by a sufficient number of witnesses as provided by this Article exclusive of that person.”

Although all three witnesses to the execution of the will were office associates of the attorney representing the executor in the probate of the estate of the decedent, this, of itself, does not demonstrate any beneficial interest in the will so as to affect their credibility. Section 44 also provides, “No attorney or partnership of attorneys is disqualified to act or to receive compensation for acting as attorney for any fiduciary by reason of the fact that such attorney or any employee or partner of such attorney or partnership attests the execution of the will or testifies thereto.” Respondent was permitted to cross-examine the witnesses at length at the will hearing. The determination of the validity of any financial interests of Bonnefoi, arising out of the will of the decedent, was not a matter for disposition at the will hearing. We hold that the record shows that the attesting witnesses were credible, as required by section 43.

Finally, respondent contends that “under Section 64 the court was under the duty to require some notice to be given to the beneficiaries of the trust who were not all the same as the beneficiaries under the ‘will.’ Counsel for Respondent brought this matter to the attention of the court. However, nothing was done to comply with the statute. This matter is jurisdictional and the court had no power to admit the will to probate until notice had been given pursuant to Section 64 of the Probate Act.”

The provisions of section 64 include:

“If any person objects to the admission of the will to probate, the court may require that such notice of the time and place of the hearing as it deems expedient be given to any beneficiary of the trust not previously notified.”

This is not a mandatory requirement, and it calls for the exercise by the court of sound legal discretion. We find no abuse of that discretion here. It was proper for the court to admit the will to probate without notice to the beneficiaries of the trust.

We conclude that the will of the decedent was properly admitted to probate. The court was correct in rejecting proof of or the admission of the trust agreement in the “Admission of Will to Probate” proceeding. It was not part of the decedent’s “will.”

For the reasons given, the orders of the Circuit Court of Cook County admitting the will of the decedent to probate and appointing the Continental Illinois National Bank and Trust Company of Chicago as executor are affirmed.

Affirmed.

BURMAN and ADESKO, JJ., concur.


author: MR. JUSTICE BURMAN

text:
    Fred E. Busbey, Plaintiff, v. Chicago Athletic Association of Chicago, a Not-For-Profit Corporation, Defendant-Appellee, Julia M. Busbey, Executrix of the Last Will and Testament of Fred E. Busbey, Deceased, Appellant.
    Gen. No. 51,498.
    First District, First Division.
    June 26, 1967.

      Crowley, Sprecher, Barrett & Karaba, of Chicago (Robert A. Sprecher, of counsel), for appellant.
    Gann, McIntosh, Stead and O’Shaughnessy, and Gilmartin & Wisner, of Chicago (Paul E. Flaherty and Richard S. Wisner, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

In this action, Fred E. Busbey filed a bill of complaint seeking to enforce his rights in a perpetual, assignable Life Membership Certificate in the Chicago Athletic Association. The Chancellor, after considering the complaint, answer, defendant’s motion for summary judgment with supporting affidavit and the plaintiff’s motion for summary judgment with two affidavits, entered summary judgment on April 1, 1966. He also found that “[t]here is no just reason for delaying enforcement or appeal of and from this judgment and decree, or any part thereof,” and this appeal and cross-appeal was filed.

The essential facts are undisputed and indicate that the defendant, Chicago Athletic Association, an Illinois not for profit corporation, issued 200 life memberships about the year 1900, including Certificate No. 199 issued to Axel Lonquist as a bona fide life member. In April of 1941, the plaintiff, Fred E. Busbey, purchased Lonquist’s Membership Certificate from the receiver of a bank. On June 10, 1963, plaintiff filed a complaint against the Chicago Athletic Association (hereinafter referred to as “the Club”) in which he sought an order directing the Club to transfer the Certificate to his name or in the alternative to direct the Club to purchase the Certificate at the price at which such certificates are currently being sold and purchased.

The Chancellor decreed, and it is not disputed, that Fred E. Busbey was the lawful holder and owner of Certificate No. 199 and had the right to convey or assign his interest in the Certificate to any person. Fred E. Busbey died on February 11, 1966, his widow and executrix being substituted as party plaintiff, and the attempt to have the court direct the Club to transfer the Certificate to him is now moot by reason of his death.

The plaintiff appeals only from certain numbered Findings of Fact and part of the order by the Chancellor, which are as follows:

8. If the person who becomes the assignee of Certificate No. 199 is, at the time, a resident or non-resident member of the Chicago Athletic Association, the defendant shall recognize the transfer of Certificate No. 199, to such assignee :
(1) Upon the payment by him to the defendant of Four Hundred Dollars ($400.00) as set forth in that Certificate . . .
11. The defendant, Chicago Athletic Association, is not hereby and cannot be required to purchase said Certificate No. 199 from the plaintiff, his legal representatives, heirs or assigns.
12. The defendant, Chicago Athletic Association, is not hereby and cannot be required to elect the plaintiff, his legal representatives, heirs or assigns to Life Membership in the Association.
D. If the person who becomes the assignee of Certificate No. 199, is, at the time, a resident or nonresident member of the Chicago Athletic Association, the defendant shall recognize the transfer of Certificate No. 199, to such assignee:
(1) Upon the payment by him to the defendant of Four Hundred Dollars ($400.00) as set forth in that Certificate and . . .
G. Insofar as plaintiff’s complaint prays that this Court (a) order and direct the defendant to transfer the Certificate No. 199 into the name of the plaintiff, or, (b) in the alternative, order and direct the defendant to purchase said certificate, the same is hereby dismissed with prejudice for failure to set forth a claim upon which relief can be granted.

The defendant cross-appeals from the Findings of Facts, paragraph 9, and from paragraph E of the order, which are as follows:

9. If the person who becomes the assignee of Certificate No. 199 is, at the time, not a member of the Chicago Athletic Association, the defendant shall recognize the transfer of Certificate No. 199 to such assignee: (1) Upon the payment by him to the defendant of Four Hundred Dollars ($400.00) as set forth in that Certificate and (2) Upon the election of the assignee by the Board of Directors of the defendant to a Life Membership as provided in the by-laws of the Chicago Athletic Association at the time of said assignment.
E. If the person who becomes the assignee of Certificate No. 199 is, at the time, not a member of the Chicago Athletic Association, the defendant shall recognize the transfer of Certificate No. 199 to such assignee: (1) Upon the payment by him to the defendant of Four Hundred Dollars ($400.00) as set forth in that Certificate and (2) Upon the election of the assignee by the Board of Directors of the defendant to a Life Membership as provided in the by-laws of the Chicago Athletic Association at the time of said assignment.

Mr. Victor Tuccy, the Executive Secretary and Comptroller of the Club, testified in a discovery deposition that no new life memberships were created after the 200 were issued in 1900; that upon the death of any life member the legal representative is required to offer the certificate for sale to the Club and if the Club rejects the offer of sale, the legal representative has the right to sell the certificate to any person acceptable by the Club as a member; that the Life Membership Certificate exempts the life member from dues, assessments and imposts of any kind; that the policy of the Club is to purchase and retire Life Membership Certificates, but that the Club does not encourage transfers to new life members.

Plaintiff concedes that the Club may select and choose its own members, but argues that she is seeking (1) either to assign the Certificate to a person who already is a member of the Club as a resident or nonresident member or (2) to be paid the value of the Certificate by the Club. The Certificate in question recites that a vote of the Board of Directors is required for election to life membership, and further provides that:

Upon the refusal of the Board of Directors to purchase said membership, the holder thereof desiring to transfer the same must present the name of the transferee in the regular way and for the same action as is prescribed for candidates for Resident or Non-Resident membership. (Emphasis added.)

It is clear from a reading of the Certificate that the Chancellor properly found that an assignee or transferee of the certificate becomes a life member upon his election by the Board of Directors of the Club as provided in the bylaws of the Club at the time of said assignment. It is argued by plaintiff that this conclusion by the Chancellor means that the Club would then have the right to vote again upon the right of the existing resident or nonresident member to become a member and that the Club has indicated that it will arbitrarily vote against any transferee of Certificate No. 199. From a reading of the record we do not find that any request has been made by the plaintiff to transfer the Certificate to a named resident or nonresident member or that any request was made to the Club to purchase the same. When a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are raised on appeal, it will dismiss the appeal. LaSalle Nat. Bank v. City of Chicago, 3 Ill 2d 375, 121 NE2d 486. We think this issue is premature. We may not speculate as to what the Club would or would not do in a situation not presented by this record, neither can we consider the rights of a theoretical assignee or transferee who is not before this court. Accordingly, as no actual controversy is presented to this court the plaintiff’s appeal is dismissed. Harney v. Cahill, 57 Ill App2d 1, 206 NE2d 500.

We next consider the cross-appeal by the defendant that the Chancellor improperly held that the defendant cannot amend its bylaws to increase the amount of the transfer fee, payable as a condition to election to life membership, to an amount more than that which is recited on the instant Certificate. The Chancellor found that the transferee or assignee of the life membership shall pay to the Club the sum of $400 as was stated on the certificate. The defendant argues that while the Chancellor acknowledges the right generally of the defendant to amend its bylaws and lawfully require an assignee of the certificate to comply with the current bylaws concerning election to life membership, he, for no ascribed reason, held that the defendant could not increase the transfer fee. We disagree with this theory.

It is true that the front side of the Certificate recites that Alex Lonquist was a life member of the Club subject to the bylaws of the association. But on the reverse side it recites, in part, that life members shall be exempt from dues, assessments and imposts and a Life Membership Certificate may be transferred upon the payment of Four Hundred Dollars to the Association by the transferee.

The defendant concedes that the relationship between the defendant and its members is a contractual one, but they say the contract is subject to the reserved power in the corporation to amend its bylaws, citing Westlake Hospital Ass’n v. Blix, 13 Ill2d 183, 148 NE 2d 471. In that case the plaintiffs claimed that the articles of incorporation and the bylaws enacted thereunder constituted a contract. The court stated that while they agreed generally with this position it was nevertheless subject to the statutory right of the corporation to amend its bylaws. Westlake is inapplicable on the facts to the instant case where the transfer or assignment of a preexisting contract, the Life Membership Certificate, is involved. The power of the Club to amend its bylaws does not include the power to impair preexisting contracts.

In our opinion the $400 requirement for a transfer of a life membership is fixed by the Certificate and the Chancellor was correct in holding that the defendant cannot increase the transfer fee. In the same portion of the Certificate wherein $400 for a transfer fee is contracted by the Club we note it also states that “a Life Member shall be exempt from dues, assessments and imposts of every kind.” When Mr. Tuccy, the Club’s Comptroller, was asked whether this latter provision is a true statement as of today, he replied, “Yes, except for the classification of the tax. At the present time, Life Membership holders are subject to the twenty percent Federal Excise Tax, equivalent to that paid by a Resident Member.” The Club does not contend that this last aforementioned clause is subject to amendment by the Club through its bylaws, for indeed it cannot be changed, and, by the same token neither can the transfer fee be amended to a sum greater than the $400 contracted for by the Club.

For the reasons stated the decree of the Circuit Court was correct on all questions that are the subject of review on this appeal.

Decree affirmed.

MURPHY, P. J. and ADESKO, J., concur.


author: PRESIDING JUSTICE CRAVEN.

text:
    Daniel D. Canale, as Attorney for Hulcher Soya Products, Inc. (Now Prairie Mills, Inc.), Plaintiff, v. Norman E. Hulcher, Frank W. Young and Prairie Mills, Inc., (Formerly Hulcher Soya Products, Inc.) a Corporation, Defendants, Springfield Auto Leasing, Inc., Intervenor. Norman E. Hulcher, Defendant-Appellee, v. Prairie Mills, Inc., (Formerly Hulcher Soya Products, Inc.) a Corporation, Defendant-Appellant, and Springfield Auto Leasing, Inc., Intervenor-Appellant.
    Gen. No. 10,803.
    Fourth District.
    June 26, 1967.
    Rehearing denied July 21,1967.
    Jack A. Alfeld, of Carrollton, and Casey and Casey, of Springfield (Edward F. Casey, of counsel), for appellants;
    Jasper S. Gullo, of Springfield, for appellee.
   Opinion by

PRESIDING JUSTICE CRAVEN.

Not to be published in full.


author: STOUDER, P. J.

text:
    State Farm Mutual Auto Insurance Co., a Corporation, Plaintiff-Appellant, v. Richard Mohan, Public Administrator, etc., et al., Defendants-Appellees.
    Gen. No. 66-29.
    Third District.
    June 28, 1967.
    Rehearing denied August 3,1967.

      Zwanzig, Lanuti, Bower, Zwanzig, of Ottawa, for appellant.
    Peter Ferracuti, Berry & O’Conor, Harland Warren, and James Waring, of Ottawa, Peterson, Johnson & Martin, of Princeton, and Dixon, Devine, Ray & Morin, of Dixon, for appellees.
   STOUDER, P. J.

Plaintiff-Appellant, State Farm Mutual Insurance Company (hereinafter referred to as SFM), commenced this action for a declaratory judgment in the Circuit Court of LaSalle County, praying for a construction of various policies of liability insurance and a declaration of rights thereunder. In addition to the insurance policy issued by Plaintiff, the action involves policies issued by three other companies, Universal Underwriters Insurance Company (hereinafter referred to as Universal), General Casualty Insurance Company (hereinafter referred to as General), and U. S. Fidelity and Guaranty Company (hereinafter referred to as USF & G). Each of the aforementioned insurance companies was named a party Defendant as was the insured under each policy.

The facts as set forth in the pleadings and as presented by the evidence are not substantially in dispute. Prior to February 29, 1964, Stevenson Sales and Services of Ottawa, Illinois (hereinafter referred to as Stevenson), sold and delivered an automobile to Midway Tobacco Company (hereinafter referred to as Midway), whose principal business was located in Chicago, Illinois. On February 28, 1964, Stevenson picked up the automobile in Chicago from an employee of Midway for the purpose of giving the automobile its 1,000-mile checkup and inspection and also for the purpose of having a dent in the hood removed. Stevenson did not have a body repair shop and it was customary for its body work to be done by the Gordon Lowery Body Shop (hereinafter referred to as Gordon), of Newark, Illinois, Newark being located approximately 20 miles Northwest of Ottawa. When body work was required, Donahue, a partner in the Gordon Lowery Body Repair Business, picked up the automobile from Stevenson, drove it to Newark and returned it to Stevenson after the work had been completed. On February 28, 1964, at 9 p. m. Donahue picked up the car owned by Midway from Stevenson at the latter’s place of business so that he could take the automobile to Newark, repair the dented hood and return it to Stevenson. After picking up the car from Stevenson, Donahue drove the car to the home of his girl friend, Jeanne Fitzpatrick, and thereafter Donahue drove the automobile, with his girl friend as passenger, on a tour of the night spots in the Ottawa area. In the early morning hours of February 29, 1964, the automobile, while being driven by Donahue, was involved in a collision in which his passenger, Jeanne Fitzpatrick, was killed and the automobile sustained serious damage. As a result of the collision Richard Mohan, Administrator of the estate of Jeanne Fitzpatrick, commenced an action for wrongful death against Donahue, in the Circuit Court of LaSalle County.

At the time of the occurrence, Plaintiff had in effect a liability policy in which Donahue was the named insured. The policy included the operation of Donahue’s personal car (not herein involved) and included Donahue’s use of a nonowned vehicle used with the permission of the owner or person in lawful possession thereof. Coverage was excluded with respect to the use of a nonowned automobile while being used in an automobile business.

USF & G had a liability policy in effect, with Midway being its named insured and describing the automobile involved herein. The policy contained the usual and customary omnibus clause which included coverage while the described automobile was being used by another with the permission of the named insured and excluding coverage while the automobile was being used in the automobile business.

Universal had a liability policy in effect, with Stevenson being the named insured, and the insuring clauses of the policy including losses resulting from the operation of automobiles owned by Stevenson and nonowned automobiles when operated by agents or employees of Stevenson.

General had a liability policy in effect, with Gordon being the named insured, which covered losses resulting from the operation of the garage business as well as losses occasioned by the operation of motor vehicles whether owned or not owned when primarily used in the garage business.

In its complaint for declaratory judgment, Plaintiff, SFM, alleged in two counts that its coverage was not applicable because the automobile was being used for garage purposes and was being operated without the permission of the owner. The complaint further alleged that each of the other three insurance companies was primarily Hable under the terms of the individual policies. The three Defendant insurance companies filed affirmative defenses, each alleging lack of coverage.

After evidence was heard and briefs presented the trial court found that the policy issued by SFM did provide coverage and that no coverage was afforded under the policies of the other three insurance companies.

Stevenson in his testimony described the receipt of the automobile from Midway and its delivery to Donahue. In addition he also testified concerning the damages to the automobile and exhibits were offered in substantiation thereof. These exhibits included sales invoices and repair estimates. A general objection was made to the admission of such exhibits by SFM which objection was denied. The trial court, in its memorandum advising counsel of its decision on the coverage afforded by the policies, recommended that Stevenson file a petition for judgment for damages to the automobile. A petition was filed and although SFM answered such petition denying that Stevenson was entitled to judgment on the basis of the law and the facts, the trial court entered judgment in favor of Stevenson and against Donahue in the amount of $2,560. On this appeal the principal question raised is the coverage afforded by the policies and secondarily the propriety of the entry of the judgment for property damages in the declaratory action.

SFM argues the trial court erred in finding that: One, the automobile was not used in the automobile business within the exclusionary provision of the SFM policy; Two, the automobile was not being used in the garage repair business within the coverage of the General policy; and Three, no coverage was afforded by the USF & G policy. Initially we note that neither SFM, General or USF & G argue that any coverage is afforded by the Universal policy, it being conceded that Donahue was neither an employee nor an agent of Stevenson nor was the automobile owned by Stevenson as required under the insuring provisions of the Universal policy. For that reason the Universal policy will not be further discussed and the trial court’s conclusion that no coverage was afforded by such policy is approved.

The issues in this case depend upon the application of principles relating to the use of motor vehicles with the permission of others. The development of rules concerning permission has been occasioned by the common use of omnibus clauses in insurance policies whereby persons using motor vehicles described in the policy with the permission of the named insured are declared to be additional insureds under the policy. Another provision also commonly employed is an additional insuring clause which affords coverage when the loss arises from the named' insured’s use of a motor vehicle of another with the latter’s permission. The two provisions are complementary and designed to afford broad coverage. Permission is a common element of both provisions since each depends either on the permission of the named insured or the owner of the vehicle. In applying rules relating to permission, three views are possible. First, that coverage exists only as long as there is strict compliance with the express permission and intended purposes of the owner. Second, that coverage will exist as long as deviations from these purposes are minor. Third, that once permission is granted coverage exists in spite of any deviation from the original permission. Fireman’s Fund Indemnity Co. v. Freeport Ins. Co., 30 Ill App2d 69, 173 NE2d 543. Illinois has adopted the last or more liberal rule namely that initial permission once given is not affected by subsequent deviation. Konrad v. Hartford Accident & Indemnity Co., 11 Ill App2d 503, 137 NE2d 855, analyzes the prior Illinois authorities on this subject. Most of the Illinois cases in which the principles of permission were developed are concerned with the omnibus clause and although in some contexts distinctions may arise between an omnibus clause and an additional insuring clause, we believe that in the context of the instant case no distinction need be made between the permission required in each of such clauses. When permission has once been given by a person entitled to give the permission for use of a motor vehicle, and the person receiving such permission deviates therefrom, Illinois follows the initial permission rule to the effect that the user need only have received permission to take the vehicle in the first instance. Any use while it remains in his possession is with permission though that use may be for a purpose not contemplated under the terms of the permission.

SFM admits that its insured received permission to use the automobile from a person in lawful possession thereof within the provision of its policy. However SFM argues that its insured also received permission to use the automobile from the named insured under the provisions of the USF & G policy. With respect to the USF & G policy, Stevenson, having received permission from an agent of Midway and having given permission to Donahue to use the motor vehicle, the question arises whether Donahue as second permittee was using the automobile with the permission of the named insured. In Hayes v. Country Mut. Ins. Co., 28 Ill2d 601, 192 NE2d 855, the court stated, “The interest both of the insured and of the insurance company center upon the identity of the permittee, his relation to the insured and his ability and responsibility as a driver. The use to which he puts the vehicle while it remains in his control may be regarded as of secondary importance to the question of coverage. Decisions holding that coverage persists despite a deviation from the permitted scope in route, purpose, or duration of use do not therefore compel the conclusion that coverage should also extend to third persons whom the original permittee has, without authority, allowed to use the car. The rule that initial permission will suffice applies in reason only when that permission was granted to the user sought to be brought within the coverage of the policy. Of course the named insured may by express authorization delegate to his permittee the power to grant permission to others, and circumstances surrounding the original permission may support an implication of such an authorization. Thus where the permittee is in every practical sense the owner of the car, and the named insured holds title for convenience, the general custody and control of the permittee is usually held to empower him to grant permission to others within the scope of an omnibus clause, at least in the absence of express prohibition. (See, e. g., Hinchey v. National Surety Co., 99 NH 373, 111 A2d 827 (1955); Fireman’s Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill App2d 69, 173 NE2d 543; cf. Norris v. Pacific Indemnity Co., 39 Cal2d 420, 247 P2d 1 (1952).) If the original permittee retains control of the car, but turns over its physical operation to a third person while remaining a passenger, an implied permission has been found in the continued use and control of the original permittee. (See Standard Accident Insurance Co. v. New Amsterdam Casualty Co., 249 F2d 847 (7th Cir 1957); Fireman’s Fund Indemnity Co. v. Freeport Insurance Co., 30 Ill App2d 69, 173 NE2d 543.) Even where the original permittee is not a passenger, an inference of permission has been sustained where the third person is engaged on some errand or activity for the benefit, advantage, or purpose of the original permittee. (See Aetna Life Insurance Co. v. Chandler, 89 NH 95, 193 A 233 (1937).) A course of conduct, establishing that the original permittee was allowing third persons to drive with the knowledge of the named insured and without his objection, may also support a finding of implied permission. See, e. g., Odden v. Union Indemnity Co., 156 Wash 10, 286 P 59, 72 ALR 1363 (1930); Shoup v. Clemans, (Ohio App), 31 NE2d 103, 28 OL Abst 467 (1939); cf. Goff v. New Amsterdam Casualty Co., 318 Ill App 586, 48 NE2d 584.”

In Inter-Insurance Exchange of the Chicago Motor Club v. The Travelers Indemnity Co., 57 Ill App2d 12, 206 NE2d 518, the court concluded that the named insured’s efforts to halt or stop his automobile as it was being driven away from the filling station revoked both the permission of the original permittee and that of the second permittee to operate such vehicle, thereby destroying the implication of permission otherwise found to exist by the court.

In applying the rules announced in the Hayes case to the facts in the instant case it is clear that no agent of Midway expressly authorized delegation of the operation of the motor vehicle to a third party. It is also clear that Midway did not either expressly or by necessary implication prohibit such delegation. According to Stevenson, Midway knew that Stevenson did not do any body work in its own shop. Although Midway’s knowledge that Stevenson had no body repair facilities does not necessarily indicate that persons other than Stevenson had used or would use the automobile such knowledge does support Stevenson’s uncontradicted testimony that he had discretionary authority with respect to the means employed to accomplish the purpose of repairing the car. Permission was granted by Stevenson to Donahue for that purpose. Donahue’s permission for the use of the automobile was for the benefit, advantage or purpose of Stevenson, the original permittee. In Hanegan v. Horace Mann Mut. Ins. Co., 77 Ill App2d 142, 221 NE2d 669, the court had occasion to consider an argument that the second permittee was using the automobile for some purpose or advantage to the first permittee. The court although not rejecting the principle, concluded that the use of the automobile by the second permittee to go to a restaurant while the first permittee was in a barber shop was of no benefit or advantage to the first permittee. Thus in the instant case we find evidence that the original permittee had discretionary authority with respect to the use of the automobile, that the permission for use by the second permittee was for the benefit and advantage of the first permittee and in addition such permission was also for the benefit and advantage of the named insured. On the basis of the record we believe that the trial court’s finding that Stevenson had implied authority from Midway to grant permission to a second permittee to use the automobile is amply supported by the evidence and that consequently Donahue’s original possession of the automobile was with the permission of Midway the named insured under USF & G’s policy.

Permission may be either express or implied and in either event the nature or legal effect of the permission is the same. If permission be once established the application of rules concerning permission is not affected by the fact that such permission is implied rather than express. Goff v. New Amsterdam Cas. Co., 318 Ill App 586, 48 NE2d 584. If permission be given for a particular purpose or use, the fact that the vehicle was used by the permittee for a different or prohibited purpose or use does not. affect the permittee’s status as a user of the vehicle with permission.

We must next consider the question of whether the automobile was being used in the automobile business and hence excluded from coverage under both the SFM and- USF & G policies. It is the actual use of the vehicle by the driver, rather than the original purpose for which possession was granted by the owner or party in rightful possession of the vehicle, which determines the applicability of policy exclusions. 18 ALR2d 721. Although the parties have directed our attention to many cases from other jurisdictions which both affirm and reject the view that a vehicle being delivered to a repair shop is being used in an automobile business such question is immaterial to our present considerations. The evidence amply supports the finding of the trial court that Donahue at the time of the mishap was on a personal lark of his own and his use of the automobile was not in the automobile business. Whether he might have been engaged in the automobile business while delivering the car from Ottawa to Newark is of no concern since his use of the vehicle at the time of the mishap was not merely a minor or incidental deviation from an excluded use as in Walker v. State Farm Mut. Automobile Ins. Co., 40 Ill App2d 463, 190 NE2d 121, but on the contrary was completely unrelated to the automobile business. For the foregoing reasons we find that coverage was afforded by both the SFM and the USF & G policies and the trial court erred in finding to the contrary with respect to the USF & G policy.

Even though the insuring clauses of the General policy might involve considerations according to their terms not necessarily applicable to the exclusions in the USF & G and SFM policies we have examined such provisions and find that they are not applicable in view of the actual use by Donahue of the vehicle for personal reasons rather than for a purpose related to the operation of the garage repair business. Bergmann v. Multi-State Inter-Insurance Exchange, 39 Ill App2d 468,189 NE2d 49. Consequently no coverage was afforded under the General policy.

Lastly we consider the propriety of the trial court entering judgment in favor of Stevenson and against Donahue for the property damage to the automobile. Judgment was entered in reliance upon chapter 110, Civil Practice Act, § 57.1, subparagraph (3), Ill Rev Stats (1965) which provides, “If further relief based upon a declaration of right becomes necessary or proper after the declaration has been made, application may be made by petition to any court having jurisdiction for an order directed to any party or parties whose rights have been determined by the declaration to show cause why the further relief should not be granted forthwith upon reasonable notice prescribed by the court in its order.” Although there are few Illinois cases which have applied the foregoing section, both from the nature of the declaratory judgment procedure and the section itself, the trial court, after declaring the rights of the parties should and does have authority to make such declaration of rights effective. It is clear that the statute contemplates further relief based on the rights determined and does not purport to include relief with respect to issues not resolved by the declaration of rights. In Burgard v. Mascoutah Lumber Co., 6 Ill App2d 210, 127 NE2d 464, the court stated “. . . it is apparent that no counterclaim is necessary as to the controversy presented by a complaint for declaratory judgment. It is essential that the complaint disclose an actual controversy, i. e., that Defendant opposes the position asserted by Plaintiff.” We believe that the trial court erred in this case in entering the judgment against Donahue. The only apparent basis for the award of damages in favor of Stevenson and against Donahue is the latter’s negligence. The only controversy revealed by the complaint for declaratory judgment relates to coverage under four insurance policies. Donahue’s negligence is neither proposed nor opposed and neither his negligence nor the amount of the damages to the car were related to the coverage afforded by the policies or the declaration of rights with respect thereto.

Since the trial court found that coverage was afforded only by one policy the question of the relative coverage afforded by more than one policy did not arise. However we believe that such question should be answered in order to resolve any conflict which might arise. The provisions of each policy with respect to other insurance are substantially similar. The substance of each of the provisions is that if the insured has other insurance covering the liability or loss the company will be liable in proportion to the limits of liability of such insurance. Further, each policy provides that with respect to coverage applicable to non-owned vehicles the liability of the company is excess only. The rule in Illinois is that such provisions will be given effect according to their terms as they may apply to a given factual situation. New Amsterdam Cas. Co. v. Certain Underwriters at Lloyds, London, 34 Ill2d 424, 216 NE2d 665; Jenson v. New Amsterdam Ins. Co., 65 Ill App2d 407, 213 NE 2d 141. Since Donahue, the insured of SFM, was the driver of an unowned automobile according to the provisions of the policy the coverage under such circumstances is excess in relation to the coverage of the USF & G policy applying to a described automobile owned by its insured.

For the foregoing reasons, the judgment of the Circuit Court declaring that coverage is afforded by the SFM policy and that coverage is not afforded under the Universal and General policies is affirmed. Judgment of the Circuit Court declaring that no coverage is afforded by the USF & G policy is reversed and remanded with directions to proceed consistent herewith. The judgment of the Circuit Court in favor of Stevenson and against Donahue in the sum of $2,560 is reversed and remanded without prejudice to the rights of the parties to have the merits of the controversy determined in an appropriate proceeding.

Affirmed in part, reversed and remanded in part.

ALLOY and CORYN, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    The People of the State of Illinois, Appellee, v. George W. Rockett, Appellant.
    Gen. No. 66-147M.
    Second District.
    June 30, 1967.
    Rehearing denied and opinion modified July 27, 1967.
    Supplemental opinion July 27, 1967.

      John R. Snively, of Rockford, for appellant.

      William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This is an appeal by the defendant, George W. Rockett, from a judgment finding him guilty of the unlawful use of weapons, in violation of section 24-1 of the Criminal Code (111 Rev Stats 1965, c 38, par 24r-l).

The defendant was taken into custody on September 25, 1965, for the offenses of being drunk and disorderly and possessing a concealed weapon. The next day he was admitted to bail, and on the 19th day of October, 1965, a criminal complaint was signed and sworn to by LaVeme Pickett, before a magistrate, charging the defendant with the criminal offense of unlawful use of weapons in violation of the aforesaid paragraph of the Criminal Code.

On October 22, 1965, the defendant was arraigned; entered a not guilty plea and the case was set for jury trial. On February 25, 1966, he filed a motion to dismiss the complaint alleging that the complaint was fatally defective; that it did not state an offense or set forth the nature and elements of the offense; and that the charge did not state the date and county of the offense. Subsequently, he filed a motion to dismiss the complaint and for his release from the obligations of his bail, and for discharge, in that he had not been tried within 120 days from the date he demanded a trial, as required under section 103-5 of the Criminal Code (Ill Rev Stats 1965, c 38, par 103-5). These motions were denied.

The defendant thereafter waived jury trial and the case was heard by the court. He was found guilty of the unlawful use of weapons, as charged in the complaint, and was sentenced to pay a fine of $100 and costs.

On appeal, the defendant asserts that the charge did not state an offense, the time and place or county where the alleged offense was committed, and cites sections 107-9 and 111-3 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, pars 107-9 and 111-3) as authority to sustain his contention. The complaint follows, as nearly as possible, the language of section 24-1 (a) (4) of the Criminal Code (Ill Rev Stats 1965, c 38, par 24-1 (a) (4)). The heading of the complaint bears the designation, “State of Illinois” and “County of Winnebago,” and specifies “That on the 25th day of September 1965, in said County,” the defendant, “knowingly carried concealed on or about his person, a firearm, namely: a certain Colt .38 caliber Detective special, when not on his land, or in his own abode or fixed place of business,” in violation of section 24-1 of the aforesaid Code provisions.

Cases construing the Code provisions in question indicate that no further specificity is required. People v. Williams, — Ill2d —, 228 NE2d 501 (1967); People v. Blanchett, 33 Ill2d 527, 532-535 incl., 212 NE2d 97 (1965); People v. Pride, 16 Ill2d 82, 86, 156 NE2d 551 (1959). Thus, we hold that the complaint fully complied with sections 107-9 and 111-3 of the Code of Criminal Procedure.

The defendant also contends that the Constitution of the State of Illinois, and section 103-5 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 38, par 103-5), guarantees to him the right to a speedy trial. We agree with this general statement of principle. The point of controversy arises in this case because the record reflects only that “The defendant being arraigned in open court enters his plea of not guilty and this case is set for jury trial.” Such record makes no reference to the defendant making a demand for jury trial. However, the defendant filed a motion to dismiss the complaint and for release from bail and discharge for failure to bring him to trial within 120 days, which was supported by his affidavit wherein he stated that he demanded trial when arraigned on October 22, 1965, and that he was not brought to trial within 120 days from the date of such demand.

We believe that section 103-5 of the Code of Criminal Procedure, which states that every person on bail shall be tried within 120 days from the date the defendant demands trial unless the delay is occasioned by him, requires some affirmative act on the part of the accused, either in form of a written or an oral demand for trial, as reflected in the record in order to invoke the 120-day period. Such demand must be communicated to the State, preferably by written notice, but certainly by a formal motion which is preserved in the record. The only record of any demand for trial by the defendant is found in his affidavit which supported his motion.

There was no transcript of the proceedings at the trial in the record. It consisted solely of the matters in the files and records of the clerk, which are usually designated as the common-law record. Ill Rev Stats 1965, c 110, par 74(2); Supreme Court Rule 321. The transcript of the proceedings is in lieu of the old bill of exceptions, which was formerly required to review questions not arising on the common-law record. In the light of these facts, the case of People v. Iasello, 410 Ill 252,102 NE2d 138 (1951) is quite pertinent.

In Iasello, the defendant, on review, also asserted that he had been denied a speedy trial as provided in section 18 of Division XIII of the Criminal Code (111 Rev Stats 1949, c 38, par 748). The cause came before the Supreme Court on the common-law record with no bill of exceptions. At pages 254 and 255, the court stated:

“In cases of this nature we have repeatedly held that where a defendant makes application for discharge to the court where the indictment is pending, he must, in case of unfavorable action, preserve in the record, by bill of exceptions, the proceedings had upon such application, which then may be reviewed on writ of error. (People v. Sweeney, 409 Ill 223; People v. Farley, 408 Ill 194; People v. Economac, 243 Ill 107.) There is no bill of exceptions before us in the present case and, without it, this court is left to determine the facts relating to the date of confinement from conjecture and from matters de hors the record. In order to bolster his contention, plaintiff in error has attached to the common-law record a copy of his motion for discharge, and a copy of a supporting affidavit. These, we are not at liberty to consider, for, where review is had upon the common-law record, the sole matter that may be considered by the reviewing court is error appearing on the face of the record, and matters may not be added by argument, affidavit or otherwise, to supply or expand the record. People v. Loftus, 400 Ill 432.”

Under the doctrine of Iasello, we may unfavorably consider the defendant's affidavit and argument alleging that he demanded trial at the time of the arraignment, since both the argument and affidavit are self-serving. Where no report of proceedings is included in the record on appeal, the presumption is that there was sufficient evidence to sustain the decision of the trial court. Skaggs v. Junis, 28 Ill2d 199, 201, 202, 190 NE2d 731 (1963); People v. Cloutier, 64 Ill App2d 177, 184, 185, 212 NE2d 266 (1965). Also, in the absence of a report of proceedings, no issue of fact may be reviewed. People ex rel. Rose v. Craig, 404 Ill 505, 508, 89 NE2d 409 (1950); Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 295, 296, 210 NE2d 614 (1965).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN and ABRAHAMSON, JJ., concur.

Supplement to Opinion on Denial of Petition for Rehearing

The defendant filed a petition for rehearing herein urging, among other things, that the defendant was not granted a speedy trial in compliance with the Constitution of the State of Illinois and the Code of Criminal Procedure in that the docket entry “The defendant being arraigned in open court enters his plea of not guilty and this case is set for jury trial,” in itself was a sufficient demand to invoke section 103-5 (b) of said Code. He also contends that the allegations of his motion to dismiss the complaint and for his release, and his affidavit in support thereof, must be considered on appeal since section 74(2) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 74(2)), former Supreme Court Rule 27 (Ill Rev Stats 1965, c 110, par 101.27(8)), and present Rule 608, abolish all distinctions between the common-law record and the bill of exceptions and certificate of evidence — which bill and certificate are called the report of proceedings in our present procedures— for the purpose of determining what is properly before the reviewing court.

We disagree with the defendant’s contention that he was not granted a speedy trial for the reasons set forth in the original opinion and herein. However, we are in accord with his assertion that the Civil Practice Act and pertinent Court Rules abolished all distinctions between the common-law record and the report of proceedings for the purpose of determining what is properly before the reviewing court. It was not for this reason that we refused to favorably consider the allegations of the defendant’s affidavit and the argument of his brief alleging that he demanded a trial at the time of arraignment. People v. Iasello, 410 Ill 252, 102 NE2d 138 (1951), was not cited for this point.

Rather, we refused to consider the allegations of the defendant’s affidavit and his argument in that: no report of proceedings was included in the record and in its absence no issue of fact may be reviewed (People ex rel. Rose v. Craig, 404 Ill 505, 508, 89 NE2d 409 (1950); Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 295, 296, 210 NE2d 614 (1965)); the affidavit and argument were self-serving and could not override the presumption that there was sufficient evidence to sustain the decision of the trial court (Skaggs v. Junis, 28 Ill2d 199, 201, 202, 190 NE2d 731 (1963); People v. Cloutier, 64 Ill App2d 177, 184, 185, 212 NE2d 266 (1965)); and where the record on appeal is incomplete, the reviewing court will indulge every reasonable presumption favorable to the judgment appealed from (People v. Allen, 411 Ill 582, 583, 104 NE2d 768 (1952) ; People v. Lisle, 390 Ill 327, 329, 61 NE2d 381 (1945) ; People v. Zimmerman, 57 Ill App2d 190, 192, 206 NE 2d 741 (1965)).

Our position is further sustained by present Supreme Court Rule 323(c) and former Rule 36-1(3) (c) which provide a procedure whereby an appellant-defendant may obtain a bystander’s report of proceedings if no verbatim transcript is available. The Rules provide that the trial judge, under such circumstances, shall settle any differences with reference to the report of proceedings. Such procedure also existed under the common law (People ex rel. Hall v. Holdom, 193 Ill 319, 61 NE 1014 (1901); Weatherford v. Wilson, 2 Scam (3 Ill) 253, 256 (1840)), and it affords an appellant-defendant an opportunity to preserve in the record, by a transcript of proceedings, the errors which he relies upon on review. However, the defendant did not see fit to seek the benefit of the foregoing rules.

In the case at bar, the common-law record as prepared from the clerk’s notes, showed the docket entry-made at the arraignment which set the case for jury-trial. This portion of the record contained no indication or memoranda of the defendant making any demand for trial. The defendant was then out on bail and so remained, which fact would minimize the probability of such demand. However, this common-law record was augmented by the defendant’s motion for discharge and his affidavit in support thereof wherein the defendant asserted that such demand had been made. Such pleadings were self-serving and, in our opinion, should not override the portion of the record which rests on the accuracy, veracity and trustworthiness of a disinterested clerk. This is the pronouncement of People v. Iasello, supra.

The presumption in favor of the regularity of proceedings in court will obtain until overcome by a showing that error has been committed. The judgment of the trial court is presumed to be correct until the contrary is shown. Simpson v. Simpson, 29 Ill2d 49, 51, 193 NE2d 10 (1963); Hickey v. Spring Creek Drain. Dist., 356 Ill 204, 207, 190 NE 282 (1934); People v. Glasgow, 301 Ill 394, 395, 134 NE 19 (1922). The burden was on the defendant, in case of an unfavorable action on his application for discharge, to preserve in the record, by a transcript of proceedings, the error sought to be reviewed, People v. Iasello, supra.

For the foregoing reasons, we adhere to the opinion as adopted and the petition for rehearing is denied.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Oparka, Defendant-Appellant.
    Gen. No. 51,783.
    First District, Second Division.
    June 30, 1967.

      Lee A. Levin, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

At a jury trial defendant, Fred Oparka, and his brother, William Oparka, were found guilty of the crime of rape and were each sentenced to 60 years in the Illinois State Penitentiary. Fred Oparka prosecutes this appeal wherein he maintains that the evidence was insufficient to establish his guilt beyond a reasonable doubt and, secondly, that certain conduct and remarks of the prosecuting attorney during final argument misled and confused the jury, prejudicing defendant and depriving him of a fair and impartial trial.

On June 12, 1959, at approximately 10:45 p. m., Joyce Ray, the prosecuting witness, was seated in a parked car with Mr. Louis Iavarone, in the 9200 block of South Yates Avenue in Chicago. Miss Ray at that time was a student nurse at the South Chicago Hospital and resided in the nurses’ quarters one-half block from where the car was parked. Two men, later identified by Miss Ray as defendant and his brother, approached the Iavarone automobile, William Oparka approaching from the driver’s side carrying a gun and defendant approaching from the passenger side. Iavarone was ordered into the back seat of the automobile and told to keep down and keep quiet. The Oparka brothers entered the front seat and forced Miss Ray to sit between them. With defendant holding the gun on Miss Ray and Iavarone, William Oparka drove the automobile across 93rd Street to a secluded place on 94th Street between Paxton and Merrill Avenues. William Oparka entered the back seat of the automobile, took a small brown bottle containing either chloroform or ether, poured some of its contents over a handkerchief which he requested and received from Iavarone and rendered Iavarone unconscious. Defendant then proceeded to rip the clothes off Miss Ray and, as both men hit and choked her, defendant had sexual intercourse with her. The two men then changed places in the automobile and William Oparka had sexual intercourse with Miss Ray. During the course of both acts, one or the other of the men held the pistol on Miss Ray. She struggled with the two men and succeeded in kicking the automobile door open several times but it was finally closed and locked.

After the rape the two men bound and gagged Miss Ray with her torn clothing and attempted to use the chloroform or ether on her, but she caused the contents of the bottle to spill on the front seat of the automobile. The men then wiped the inside of the automobile with Miss Ray’s torn clothing, disconnected the horn and left, stating to Miss Ray that they had Iavarone’s wallet and that they would “get him” if she told anyone of what had occurred. After they left Miss Ray succeeded in removing the gag from her mouth and awakened Iavarone who untied her hands. Miss Ray then went to the nearest house, about a block from the scene, where she made complaint. Iavarone was still feeling the effects of the chloroform or ether and had to be helped to the house. The police were summoned and both Miss Ray and Iavarone were taken to the hospital for treatment.

At the hospital Miss Ray was examined by Dr. Weiss, who testified that he observed a large bruise and redness on the back of her neck. He also observed fresh blood coming from a tear in her hymen membrane and stated that the tear occurred within 24 hours of the time he treated her. A smear test was performed which revealed the presence of blood and sperm. The doctor stated that Miss Ray was also treated for “marked nervousness.”

A Chicago police officer testified that he retrieved Miss Ray’s torn clothing from the automobile where the incident had occurred and further that he noticed a “medicinal odor” in the automobile which he identified as being chloroform or ether.

Miss Ray testified that she gave a description of the two men to the police. She stated she was unable to see them very well when they first confronted her and Iavarone on Yates Avenue due to poor lighting conditions on the street, but that she could see them plainly when the automobile was being driven across 93rd Street, a busy thoroughfare, to 94th Street between Paxton and Merrill Avenues, due to the lights of oncoming traffic and the Iavarone automobile’s dashboard lights. Iavarone testified he was unable to identify either of the defendants as being the men who confronted him and Miss Ray because he was ordered to keep down in the automobile, the result of which he was unable to see the men’s faces and after which he was rendered unconscious.

On August 11, 1959, Sergeant John Glas of the Sex Division of the Detective Bureau stopped defendant in an automobile on an unrelated matter in the vicinity of 103rd and Torrence Avenue, a short distance from where Miss Ray had been raped. The officer noticed that defendant matched the description of one of the men who accosted Miss Ray. The automobile, which belonged to William Oparka, was searched and the officer recovered a loaded Luger pistol in the glove compartment, a loaded shotgun in the trunk and numerous shells laying on the front seat of the automobile. The Luger pistol was identified by Miss Ray at the trial as the gun which was held on her during the rapes. Defendant was arrested and taken to the 8th District Police Station where he was shown in a police lineup with five or six other men on the following morning. Miss Ray viewed the lineup and stated that she thought defendant was one of the men who raped her, but that ghe was confused and wanted to be certain and that she wanted to have a little time to think it over. Miss Ray viewed a second lineup later that day at 11th and State Streets and positively identified defendant as one of the men who raped her. Miss Ray stated that her confusion at the first lineup was occasioned by the very bright lights shining on the men in the lineup, that she had seen defendant in dimmer lighting on the night of the rape, and that the lighting at the lineup at 11th and State Streets was much closer to the lighting on the night of the rapes, enabling her to make her positive identification of defendant.

William Oparka was arrested at his place of employment, The Applied Immunology Laboratory, later that day and was taken to the Sex Bureau at 26th and California Avenue, shown in a lineup which included defendant, and was identified by Miss Ray as one of the men who accosted her. At the time of William Oparka’s arrest, he asked the arresting police officer, “Are you out here to arrest me for the rape of that girl on the south side?” The arresting officer testified that prior to this statement he did not inform William Oparka of the nature of his business.

Mildred Peters, a registered nurse and a fellow employee of William Oparka, testified that Oparka showed her a nurse’s wristwatch sometime during the week of August 5, 1959, and that Oparka said that he found it in the ashtray of his automobile. The jury was instructed that anything said by William Oparka outside the presence of the defendant was to be considered only as to William Oparka and not as to defendant. Mrs. Peters further testified that there was a supply of ether at the laboratory where Oparka worked and that it was kept in an unlocked cabinet and was easily accessible to employees. The trial court refused to allow into evidence a small brown bottle which was allegedly similar to the type used in the laboratory where Oparka worked and allegedly similar to the one used by him on the night of the rapes.

Buss West testified on behalf of defendants and stated he was a bartender in a tavern in the 5700 block of Indiana Avenue in Chicago. He testified that William Oparka frequented the tavern and that he remembered Oparka being in the tavern on the night in question until closing time, after which he and Oparka went out for breakfast. He stated that William Oparka never left his presence until approximately 4:30 a. m. the following morning.

Shelby Landini, a friend of defendant’s sister, testified for the defense that she talked to Miss Ray in a bowling alley after July 12th and that Miss Ray told her she was connected with the Oparka case. Mrs. Landini testified that she asked Miss Ray if Miss Ray could identify “the boys” and that Miss Ray replied that she could not because of the fact that it was dark. Gerald Sajeak, another defense witness, testified that he and defendant were in the Escape Tavern at 107th and Torrence Avenue on the night of the rapes.

Defendant’s first point, that the evidence fails to show him guilty beyond all reasonable doubt, is based primarily on the position that' Miss Ray had little opportunity to observe her assailants and that she failed to give a positive identification of them.

The question of the accuracy of a description given by a witness connecting a defendant with a crime and the weight to be given thereto are matters to be determined by the trier of fact, and a reviewing court will not interfere with the determination unless it is clearly or manifestly erroneous. A positive identification given by a single witness, where credible, will be sufficient to justify a finding of guilty. People v. Boney, 28 Ill2d 505, 192 NE2d 920. Miss Bay had ample time and opportunity to observe both of her assailants. Although she stated she did not get a good look at them when they first confronted her and Iavarone due to the poor lighting conditions on the street, she sat next to both men and did have adequate opportunity and light to observe their physical and facial features from the time they drove from 92nd and Yates until the men left the scene after the rapes. We are unable to say that the jury could not have found Miss Bay to have had ample time and opportunity to adequately observe her assailants.

Secondly, the descriptions given to the police by Miss Bay conform almost precisely with the physical makeup of both Oparkas. William Oparka was described to the police as being 5 feet 9 to 5 feet 11 inches tall, 160 to 170 pounds, short brown hair worn in a crew cut and a pockmarked face. Defendant was described as 5 feet 9 to 5 feet 11 inches tall, 150 to 180 pounds, brown or dark blonde hair with a reddish cast which was darker than William Oparka’s hair and heavily pockmarked face. The only difference between the descriptions given by Miss Bay and the actual physical makeup of the Oparkas was the shade of the hair color, a triviality when considered in view of the dimly lit environment in which Miss Bay first observed the men. Minor imperfections in an identification does not render the identification invalid and the existence of such imperfections is a matter for the jury. People v. Davis, 70 Ill App2d 419,218 NE2d 3.

Defendant’s attack on the identification of defendant by Miss Ray is likewise groundless. He claims that Miss Ray’s hesitation in identifying defendant at the first police lineup indicates that she was uncertain defendant was one of her assailants. However, Miss Ray explained at the trial that the reason why she was confused at the first lineup was due to the bright lights shining on the men in the lineup. When she viewed defendant later at a more dimly lit lineup, the lighting more closely conforming to the environment in which she observed her assailants, Miss Ray made a positive identification of defendant.

Defendant cites several cases in support of his position that the evidence failed to prove him guilty beyond a reasonable doubt. In People v. Ricili, 400 Ill 309, 79 NE2d 509, the prosecuting witness stated at the time she first saw defendant in the lineup that she was not certain he was her assailant and that she wanted to take a better look; this fact, in addition to several other matters casting doubt upon her identification of defendant as her assailant, prompted the court to hold defendant’s identity as the assailant not proven beyond a reasonable doubt. In People v. Fiorita, 339 Ill 78, 170 NE 690, nine people were eyewitnesses to a killing which occurred so quickly that most of the nine were confused as to the identification of the defendant as one of the killers; many of the witnesses related different stories of the occurrence at the time of trial. In People v. Cullotta, 32 Ill2d 502, 207 NE2d 444, the only evidence connecting defendant with the burglary for which he was being tried was the testimony of two police officers who had observed the defendant in a laundromat while cruising in their squad car some four hours and again some two hours prior to the time they observed the burglary in progress in the laundromat; the reviewing court held that because it was snowing at the time, because the officers’ observations of defendant prior to the burglary were fleeting, and because defendant was not found inside the laundromat at the time of the burglary, defendant’s identification as one of the burglars was not established beyond all reasonable doubt. These cases are clearly distinguishable from the situation in the case at bar, in that Miss Ray had ample time and opportunity to observe both of her assailants while traveling to the location where the rapes occurred and also during the time that the rapes were occurring.

Defendant’s second contention is that the prosecuting attorney raised certain improper matters during final argument which prejudiced the jury against defendant and deprived him of a fair trial. The first point most strongly urged by defendant is that the prosecuting attorney argued that the nurse’s wristwatch taken from Miss Ray on the night in question, which was shown by William Oparka to Mrs. Peters a few weeks later, was corroborative of the rape and connected William Oparka with the incident, whereas the record is devoid of any evidence that Miss Ray’s watch was taken on the night in question. While it is true the record does not contain evidence that a wristwatch was taken from Miss Ray, it appears that the trial judge, the prosecuting attorney and the defense attorney all assumed the fact to have been in evidence. Nonetheless, the prosecuting attorney attempted to use the matter of the wristwatch as corroborative of the fact that the Oparka brothers were involved in the rapes. The evidence was merely cumulative and did not constitute an integral or material link in the chain of guilt. Where the evidence shows a defendant guilty beyond all reasonable doubt the verdict of a jury will not be set aside where a different verdict would not have been reached had no error intervened. People v. Baker, 365 Ill 328, 334, 6 NE2d 665. While it was error for the prosecuting attorney to have argued the matter of the wristwatch to the jury, this was in no way prejudicial to the defendant in view of the other, substantial, evidence of guilt in the record. The case of People v. Blockburger, 354 Ill 301, 188 NE 440, cited by defendant in support of this position is not in point. The questions asked by the prosecuting attorney in that case related to similar acts performed by the defendant with the sister of the complaining witness as well as questions relating to defendant’s activities some 30 years prior to the trial. Those lines of questioning were clearly prejudicial to the defendant, unlike the situation in the case at bar.

Defendant points to another matter raised by the prosecuting attorney in closing argument as being improper which was a comment to the effect that it would be a long time before Miss Ray recovered from the shock to her nervous system resulting from the rapes, whereas no evidence to this effect was adduced at trial. While there is evidence that Miss Ray was suffering from “marked nervousness” and was “very hysterical” after the incident, this matter falls into the same category as the comments made in closing argument concerning the nurse’s wristwatch. Defendant cites People v. Egan, 331 Ill 489, 163 NE 357, as standing for the proposition that it is improper to introduce evidence of the condition of the prosecuting witness at the time of trial. The Egan case is not in point for the reason that the evidence was close on the question of guilt; such evidence could easily have swayed the jury and was therefore held to be improper.

The other contentions advanced by defendant concerning remarks made by the prosecuting attorney in closing argument are baseless. First, it was not improper for counsel to characterize defendants as “savages” in view of the evidence of their overall behavior on the night of the rapes. People v. Burnett, 27 Ill2d 510, 190 NE2d 338. Secondly, it may be properly inferred from the evidence that Miss Ray was a virgin before the rapes. Dr. Weiss testified that there was fresh bleeding coming from the tear in Miss Ray’s hymen membrane, which tear occurred within 24 hours of his examination of Miss Ray. The prosecuting attorney, furthermore, did not misstate the evidence when he referred to the rape of a “17- or 18-year-old girl” in view of the evidence that Miss Ray was 18 years old at the time of the rape, although she was 19 years old at the time of trial. Finally the prosecuting attorney did not argue, as defendant maintains, that defendant should have testified in his own behalf. Defendant attaches innuendo to the prosecuting attorney’s remarks which is uncalled for when viewed in the context of the argument.

The remaining points raised by defendant have been considered and are found to be without merit.

The judgment is affirmed.

Judgment affirmed.

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