text:
    W. F. Megan, Sr., Plaintiff-Appellee, v. L. B. Foster Company, Defendant-Appellant.
    (No. 70-274;
    Second District
    November 3, 1971.

      F. Stanley Rodkey, of Freeport, for appellant.
    Kroeger, Burt & DeMik, of Freeport, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

As a result of an automobile accident on February 7, 1970, the appellee herein filed suit in the small claims division of the circuit court in Stephenson County, cause #70 S.C. 383 on July 31st, 1970. On August 7, 1970, process in that case was served upon one Jolyn Reimann, a receptionist in the appellant’s company at One East Wacker Drive in the city of Chicago. On September 1st, 1970, defendant corporation was defaulted and a default judgment was entered on September 10th. On September 29th, 1970, defendant’s attorney mailed the attorney for appellee a motion to vacate. During this period the appellant had likewise filed a complaint against the appellee apparently in the small claims division of the circuit court of Stephenson County on September 2nd, 1970, and service was had upon the appellee on September 3rd. It can thus be seen that at the time of the entry of the default judgment the appellee had been served in the counter suit, that being cause #70-336 in Stephenson County.

The motion to vacate the judgment was denied on October 7th, 1970. Again, defendant filed a written motion to vacate on October 20th, 1970, and on November 12, 1970, the motion to vacate was again heard and denied. This appeal is from the default judgment entered in the sum of $909.75 on September 10th, 1970.

Appellant first contends that sendee upon the clerk-receptionist Jolyn Reimann is not proper service within the meaning of section 13.3 of the Civil Practice Act. (Ill. Rev. Stat. 1969, ch. 110, par. 13.3.) In support of his contention appellant has cited Jansma Transport Inc. v. Torino Baking Co. 27 Ill.App.2d 347. In the Jansma case service was had upon an eighteen year old immigrant girl working in a bakery and the court there held that service upon her was not sufficient. In the opinion of this court service upon an intelligent clerk of a company who acts as a receptionist and who understood the purport of the service of summons was sufficient under the above quoted statutory provision dealing with service upon an agent. Millard v. Castle Baking Co. 23 Ill.App.2d.

The second contention of appellant is that in a small claims action based upon negligence, that it is necessary that the plaintiff allege the acts of negligence upon which he relies, in substance setting forth a duty, a breach of the duty, and an alleged resulting injury, and further that an allegation be included in the complaint stating that the plaintiff was free from contributory negligence and in the exercise of due care. Attention is directed to Griffin v. Bilberry, Case #71-20, Appellate Court, Second District, where this question was decided by this court. In that case we stated:

“Defendant’s attack on the sufficiency of the complaint is based upon the argument that Supreme Court rule 282 (Ill. Rev. Stat. 1969, ch. 110A, par. 282) in its requirement that the nature of plaintiff’s claim be stated, necessitates, in a cause of action based on negligence, that facts be set forth which raise a duty, show a breach of duty and show an alleged resulting injury. However, the authorities cited (Donehue v. Duvall, 90 Ill.App.2d 472 (1967); Fannie v. Lemay, 78 Ill.App.2d 166 (1966); and Church v. Adler, 350 Ill.App. 471 (1953) are not applicable to small claims actions. The provisions of the Small Claims Act ch. 110A, supra, pars. 281 — 288) are meant to provide a simplified and inexpensive procedure for small claims, and the rules are complete in themselves without reference to other rules (except as to the form of summons). See Smith-Hurd Annotated, ch. 110A, par. 282 — Committee Comments; Daily Journal v. Smith, 118 Ill.App.2d 411, 415 (1969). The complaint was sufficient to clearly notify defendant of the nature of plaintiff’s claim and thus to state a cause of action under which he could prove negligence and the resulting injury.”

The last question before this court is as to whether or not the trial court abused its discretion in refusing to set aside the default judgment. We believe that it did.

In the instant case the notice of motion to vacate the default judgment was served nineteen days after the entry of the judgment. In addition to this the appellee had been served with summons in a separate suit filed by appellant based upon the same occurrence on September 3rd, 1970, one week before the default judgment was entered. It would thus appear that, at best, the appellant has contended not only that it has a meritorious defense but that it is entitled to judgment by the filing of its separate suit. It is no longer necessary to set forth a meritorious defense where the motion to vacate a default judgment is made in term time. (Widucus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill.App.2d 102, 167 N.E.2d 799.) The motion to vacate the judgment included a motion to consolidate both cases #70 S.C. 383 and #70 336. A motion to vacate a default judgment is addressed to the sound discretion of the trial court; only in the abuse of that discretion will this court interefere. (Stackler v. Village of Skokie (1964), 53 Ill.App.2d 417, 203 N.E.2d 182.) However, in view of the circumstances outlined above it would appear that furtherance of justice requires that the appellant have its day in court. Counsel for the appellee has cited Lynch v. Illinois Hospital Services Inc. (1963), 38 Ill.App.2d 470, 187 N.E.2d 330 for the authority that the trial court has broad discretionary powers to set aside a default judgment, primarily relying upon the statement that the authority so to do is permissive, not directory. However, further examination of that case shows that the default judgment therein was entered on September 5th, 1961. On September 18, 1961, within the term time, defendant filed his motion to set aside the default judgment. The court in citing Widucus stated:

“The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits.”

The Widucus case and the statements therein reflect the present thinking of our courts on the question of setting aside default judgments. As stated in Lynch, supra:

“We believe the overriding rule that should determine cases of this character is whether or not justice is being done.”

See also Adams v. Grace (1970), 128 Ill.App.2d 69, 262 N.E.2d 489 and Libert v. Turzynski (1960), 129 Ill.App.2d 146, 262 N.E.2d 741.

The basic principle of the small claims court Act is a procedure by which litigants with a minimum of legal expertise can present their grievances to the trial court. This principle is not promoted or furthered by default judgments where it is obvious there is a serious dispute as to the question of liability as would appear from the facts herein. Substantial justice requires that this case be reversed, that the default judgment order entered be set aside, and that the trial court either consolidate the two cases and hear them on their merits, or proceed to hear them individually if in its discretion it deems it wise, to do so.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose Francisco Estrada, Defendant-Appellant.
    (No. 70-238;
    Second District
    November 2, 1971.

      John F. McNamara, of Rockford, for appellant.
    John Maville, State’s Attorney, of Belvidere, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. JUSTICE SEIDENFELD

text:
    Maja A. Clauson, Plaintiff-Appellant, v. Lake Forest Improvement Trust, Defendant-Appellee.
    (No. 70-192;
    Second District
    November 11, 1971.

      Barclay, Damisch & Sinson, of Chicago, for appellant.
    John F. Grady, of Waukegan, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Maja A. Clauson sued the Lake Forest Improvement Trust, claiming injuries from a fall on ice adjacent to defendant’s building. Defendant’s motion for a directed verdict at the close of all the evidence was granted. On this appeal, plaintiff argues that it was error to grant the motion because there was ample evidence in support of her claim to require submission of the issues to the jury. She also urges that the trial court erred in excluding certain photographs from evidence.

On February 2, 1966, defendant owned and maintained a building at 653 North Bank Lane, Lake Forest, Illinois. That morning, plaintiff was walking north on the east sidewalk of Bank Lane. As she crossed an alley which intersected the sidewalk in an east-west direction, she fell on an accumulation of ice near the north curb of the alley. Defendant’s building is located north of and adjacent to said alley.

At the trial, plaintiff testified that she did not see the ice before she fell because it was covered with a coating of snow; that after her fall, while awaiting aid, she sat and looked east into the alley, and saw two downspouts coming from defendant’s building with “ice coming out from them” and flowing down the alley to Bazik Lane; that the downspouts were located about ten feet and twenty feet, respectively, east of the point where she fell; that the ice flow was approximately one and one-half feet in width; that she could see the downspouts and “could see the ice coming from there”; that both downspouts were visible to her as she sat in the alley, and she could see the bottom parts of the spouts as well as they could be seen in Plaintiff’s Exhibit 2; that the ice was coming out from the “downspout” like squeezed from a toothpaste tube. She later said it was coming from the “spouts” like from a toothpaste tube, and “flowing together, these two,” and that she did not know whether the ice extended past the second drainpipe, to the east end of the alley.

Plaintiff’s witness, Barbara AIdzich, testified as an occurrence witness that she saw plaintiff fall on the ice. However, she knew nothing about the ice where plaintiff fell except that it was very slippery and everyone was slipping. She stated that, as far as she could remember, it was slippery all over town that day.

Dr. Paul Burgert, who was passing and stopped to treat plaintiff, said that he did not see her fall, but that there was ice in the alley in the area where she fell. He did zzot know whether there was a light covering of snow over the ice, or where the ice came from.

Defendant’s first witness, Melville Lackie, was the president of the management company which maintained and operated the defendant’s building. He testified that, to his knowledge, the building and drainage system were the same at the time of trial as at the date of the accident, and that he thought the spout closest to Bank Lane was not operational at the time of the accident. He also stated over plaintiff*s objection that during the time he managed the building, from 1923 to 1968, he never received a report of anyone slipping and falling on ice in the alley, nor a complaint about the drain system on the building.

Defendant then called Robert Post who testified over plaintiff’s objection that he examined the area on June 23, 1970, and discovered the supposed downspout closest to Bank Lane to be no more than a piece of tile whose opezzing faced directly up rather than toward the alley. He stated that the opening led nowhere and had no cozmection with anything inside the building, but he did not know whether there had been water coming out of the spout at one time. He was also permitted to testify as to the pitch of the alley in November, 1968, and stated that there was a slight slope from the downspout toward the center of the alley; and then down' the center to the storm sewer located at the mouth of the alley. He said that the tile closest to the sidewalk was higher than the other downspout, but he had no idea whether the physical premises were the same in November, 1968, as in February, 1966, when the accident took place.

In deciding whether the directed verdict was proper, we must view all of the evidence in its aspect most favorable to the plaintiff and determine whether it so overwhelmingly favors the defendant that no verdict for the plaintiff could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.

We first determine whether the testimony of Robert Post was improperly admitted into evidence. Testimony based on an inspection after the event in question is not competent unless evidence is also introduced to show that the conditions inspected had remained unchanged in the interim. (Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 37; LaSalle Nat. Rank v. Feldman (1966), 78 Ill.App.2d 363, 372.) While Post’s testimony as to the drainage system of defendant’s building was based on an examination made more than four years after the injury to plaintiff, a proper foundation was laid by Melville Lackie’s statement that the building and drainage system remained unchanged from the time of the accident to the date of trial. Therefore, this evidence was properly admitted.

However, Post’s testimony concerning the slope of the alley as it appeared thirty months after the time in question was unaccompanied by evidence that conditions had remained constant, and in fact Post had no idea whether the premises had changed or not. While admittedly the nature of an alley is such that its slope would not readily vary, thirty months is too long a period for this court to presume that no change has occurred. It was thus error to admit this evidence, and it must be disregarded in determining whether the Pedrick rule was properly applied.

Generally, a property owner is not liable for injuries sustained in a fall on snow or ice which has accumulated as the result of natural causes, but there may be liability if the snow or ice was produced artificially or unnaturally due to defendants use of the area, where it has been there long enough to charge the responsible party with notice and knowledge of the dangerous condition. Graham v. City of Chicago (1931), 346 Ill. 638, 641, 643, 644; Riccitelli v. Sternfeld (1953), 1 Ill.2d 133, 136; Zide v. Jewel Tea Co. (1963), 39 Ill.App.2d 217, 225, 226.

Although much testimony was heard that the spot where plaintiff feH was icy, only plaintiff stated that the ice came from the area of defendant’s downspouts. Several factors cast doubt on her testimony. First, evidence was introduced that the more westerly of the two downspouts, the one closest to her, was in fact inoperative in 1966, and was no more than a piece of tile. Thus it would have been impossible for her to have seen ice coming from both downspouts. Yet, she stated several times that ice was emerging from both spouts. Plaintiff’s contention that the import of her testimony was only that ice came from the farther spout and passed the nearer one as it flowed to the place where she fell is untenable. Second, plaintiff testified that at the time of the accident she could see the bottoms of the downspouts as clearly as they appear in plaintiff’s exhibit 2, showing the area with no snow on the ground. But she then stated that plaintiff’s Exhibit 3 truly and accurately depicted the area at the time she fell. An examination of this Exhibit reveals that the bottoms of the spouts are covered with snow and cannot be seen. Finally, plaintiff did not know whether the ice extended past the two spouts to the east end of the alley. If it did, this would indicate that the ice was not emerging from the downspouts.

While the credibility of witnesses is generally a question for the jury, this is not determinative of whether a verdict was properly directed since, even if the ice was an unnatural accumulation, plaintiff has not met the further burden of showing that this condition resulted from defendant’s negligence. Plaintiff presented no testimony as to the pitch of the alley or the direction the water would have flowed had the alley been clear of snow and ice, but predicates defendant’s liability on the unsupported hypothesis that the existing conditions in the alley caused the water to flow as it did and then freeze. To hold defendant liable on this theory, it would still be necessary to show that after creating the unnatural condition, defendant had actual or constructive knowledge of it and failed to take reasonable precaution to avoid injury to others.

Neither Loyd v. City of East St. Louis et. al. (1925), 235 Ill.App. 353, nor Petrokas v. Atlas Furniture Co. (1951), 344 Ill.App. 209 (Abst.), cited by plaintiff, is on point, since in both the normal flow of water from defendants’ drainspouts was directly over the sidewalks, causing depressions or great accumulations of water, and the defendants knew or should have known of these conditions.

The only evidence bearing on knowledge of the condition of the drainspouts was favorable to defendant. Melville Lackie testified that in over forty years of maintaining the building, he had never received a complaint about the drainage system or a report of anyone falling on ice in the alley. The trial court did not abuse its discretion in permitting testimony of this nature. See Hardman v. Helene Curtis Industries, Inc. (1964), 48 Ill.App.2d 42, 51-52; Wolczek v. Public Service Co. (1930), 342 Ill. 482, 500, 501.

Viewing all of the evidence in its aspect most favorable to plaintiff, we find that it so overwhelmingly favors defendant that no verdict for plaintiff could ever stand. Therefore, the trial court properly directed a verdict for defendant.

Plaintiff also argues that the trial court erred in excluding two photographs which plaintiff testified truly and accurately depicted the scene at the time of her fall. In order to have a photograph admitted in evidence it is only necessary that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue and verified by such witness on personal knowledge as a correct representation of the facts. The witness need not be a photographer, nor need he know anything of the time or condition of the taking, but he must have personal knowledge of the scene in question and testify that it is correctly portrayed by the photograph. (Kooyumjian v. Stevens (1956), 10 Ill.App.2d 378, 388; Brennan v. Leshyn (1964), 51 Ill.App.2d 132, 139.) Applying this test, the trial court erred in excluding these photographs from evidence. However, after examining the photographs, we find that they contain no indication either that the ice came from defendant’s downspouts or that defendant was negligent in any way. Thus their exclusion constituted harmless error.

The judgment of the trial court is affirmed.

Judgement affirmed.

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


author: Mr. JUSTICE CRAVEN

text:
    Rhody Hager, Plaintiff-Appellant, v. Jerome Hager, Defendant-Appellee.
    (No. 11311;
    Fourth District
    October 8, 1971.

      Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, (John E. Pick, of counsel,) for appellant.
    Greanias, Booth and Lieberman, of Decatur, (Edward Booth and Marvin Lieberman, of counsel,) for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Plaintiff, Rhody Hager, brought action against her husband, Jerome Hager, to recover alleged alimony arrearage under a Decree of the Athens Court of First Instance of One Judge, Athens, Greece, and for other relief concerning certain personal property of plaintiff.

Plaintiff’s complaint consists of two counts. The first count prayed that the Court adopt the decree of the Athens Court as its decree, that defendant be directed to pay plaintiff the sum of $2800 as the alimony in arrears, court costs and a reasonable attorneys’ fee, direct defendant to return to plaintiff her personal property, and further direct defendant to pay alimony to the Clerk of the Court for plaintiff of $400 per month and to grant a lien on all of defendant’s real and personal property as security for such payments. The second count realleged Count I and based upon Chapter 40, Section 19, Illinois Revised Statutes, 1967, prayed for alimony to be decreed of $400 per month and for court costs, reasonable attorneys’ fees and that defendant be directed to return to plaintiff her personal property.

Defendant filed a Motion to Dismiss the Complaint, or in the alternative to strike certain portions of the Complaint, contending that neither count stated a cause of action, nor a theory of law warranting the relief prayed.

The Court granted the motion to dismiss and by a nunc pro tunc order entered judgment dismissing the Complaint with prejudice and finding that there was no just reason for delaying appeal.

The facts as alleged in the Complaint are: Plaintiff, Rhody Hager, and defendant, Jerome Hager, both citizens of Greece, were married July 21, 1968, in Athens, Greece, where plaintiff then resided. Defendant was a resident of Decatur, Macon County, Illinois. Shortly after the marriage, the parties came to Decatur to reside. Upon arrival in Decatur, plaintiff discovered that defendant’s mother and sister lived in the same residence with her husband, despite representations the husband made to her prior to the marriage that his mother and sister were moving to another state. Plaintiff alleged that the mother and sister conducted themselves so as to make her life miserable and that defendant acquiesced in their conduct. On the promise of her husband that if she would leave the marital home and return to Greece, he would provide more acceptable living arrangements in her absence, she returned to Greece September 15, 1968. After her return to Greece, defendant had an attorney write her proposing divorce. Defendant thereafter refused to pay her transportation costs to return to Decatur and failed to provide her any support or return her personal property.

Based on the foregoing facts, plaintiff on March 31, 1969, filed a suit for support against defendant in Athens, Greece. Defendant was personally served with a copy of the Complaint by the Sheriff of Macon County, Illinois, on April 29, 1969.

The Athens Court of First Instance of One Judge on July 19, 1969, entered a decree in favor of plaintiff, awarding her provisional alimony of $400 per month, beginning March 31, 1969. Plaintiff alleged that no part of such alimony payments had been made; that $2800 had accrued; that plaintiff was in need of support, being dependent on relatives; and that defendant was gainfully employed, owned real estate from which he obtained income, and owned other assets. A true copy of the decree of the Greek Court was attached to the Complaint, including certain minutes and the decision of that Court.

The issue presented by Count I has little direct authority in Illinois. Plaintiff urges that equity and comity requires Illinois to establish the Greek Alimony Decree as its own and to then enforce it as such. The decree is not one for divorce or for separate maintenance as we know such proceedings in Illinois. The full faith and credit clause of the Federal Constitution (Art. IV, Sec. 1, U.S. Constitution) does not require an Illinois court to recognize or enforce the decree of a foreign country. Clubb v. Clubb, (1949 ) 402 Ill. 390, 84 N.E.2d 366; Tailby v. Tailby (1951), 342 Ill.App. 664, 97 N.E.2d 611; Nardi v. Segal (1967), 90 Ill.App.2d 432, 234 N.E.2d 805. Thus, in Clubb v. Clubb, supra, where a divorce decree was entered in the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce), London, England, with a subsequent order requiring the husband to pay alimony and where both parties resided in England at commencement of the proceedings but while the same were pending, defendant was sent by his employer to Chicago, the Illinois Supreme Court held that the full faith and credit clause did not apply to judicial proceedings of other countries. In that case, plaintiff previously had obtained a judgment in the Superior Court of Cook County for an amount representing back alimony and then filed a petition for a rule to show cause why defendant should not be held in contempt for failure to comply with the decree. The decree was held to be a money judgment and not enforcible by contempt under the general equity powers of the Court.

In the absence of a treaty providing the effect to be given a decree rendered in another country, its recognition is dependent upon the somewhat nebulous doctrine of comity. As a rule, a foreign country’s decrees will be recognized, not by reason of any obligation to recognize it, but upon considerations of utility and the mutual conveniences of nations. Recognition may be withheld for various reasons, as where it is contrary to the public policy of the state where the recognition is sought, where the country in which it was rendered does not recognize American decrees, where it is invalid or wanting in integrity by reason of lack of jurisdiction in the foreign court, lack of domicil in the foreign country, where it was obtained in bad faith, by fraud or by taking advantage of the foreign law on the part of one who left the state and went to the foreign country for that purpose, where the operation of the decree would do wrong or injury to the citizens of the state, or where its recognition would work injustice to an innocent party. Nelson, Divorce and Annulment, 2d Ed., Vol. 3, pages 440-441.

We do not deem the Clubb case to be necessarily decisive of the question here involved. Indeed that case pointed out that plaintiff had not asked that the English decree be adopted as a decree of the Illinois Court. Plaintiff requests that very action here. However, the principles reviewed in that case persuade us that there is no power in a court of equity to assume jurisdiction to enforce a foreign country’s decree for alimony. The Supreme Court at page 400 of the Clubb case stated:

“There being no statute conferring specific authority on courts of equity to enforce decrees of a foreign country, we have considered whether or not under its general powers a court of equity might assume such jurisdiction. We have heretofore held that jurisdiction of courts of equity to determine divorce cases and all matters relating thereto is conferred only by statute, and that these courts may exercise their powers in such matters within the limit of the jurisdiction conferred by the statute and not otherwise, as the jurisdiction depends solely upon the grant of the statute and not upon general equity powers. Arndt v. Arndt, 399 Ill. 490, Smith v. Smith, 334 Ill. 370; Smith v. Johnson, 321 Ill. 324.
If a court of equity in our State has no general powers over divorce cases and all matters relating thereto, and citizens of our State cannot procure relief in such matters unless statutory authority so permits, it would not be just for us through claimed comity or alleged general powers to allow enforcement by our equity courts, through civil contempt, of a decree of a foreign country for the payment of alimony to one of its subjects. In our opinion comity does not require us to go that far."

In the subsequent case of Nardi v. Segal (2nd Dist. 1967), 90 Ill.App.2d 432, 234 N.E.2d 804, the court reviewed the language above of the Clubb case and refused to enforce a judgment for child support based upon a divorce decree entered by the Rabbinical Court of Tel-Aviv-Jaffa between parties living in that country at the time of entry of the judgment. As pointed out in that case also the Uniform Foreign Money-Judgments Recognition Act (Ill. Rev. Stats. 1965, ch. 77, Secs. 121-129) specifically excludes a judgment of a foreign state for support in matrimonial or family matters. Likewise, a judgment of a foreign country cannot be registered under the Uniform Enforcement of Foreign Judgments Act Ill. Rev. Stat. 1969, Ch. 77, par. 88(a).

The Illinois Statutes granting jurisdiction to an iUinois Court to enter an order for alimony (Ill. Rev. Stats. 1969, Ch. 40, pars. 16 and 19) pertain only to the granting of such an order as incident to a pending divorce action. Likewise, the authority to grant support and maintenance to married men or women living separate and apart from their wives or husbands, without their fault, is provided by section 22 of chapter 68 of the Illinois Revised Statutes. The present action is not one under either of these statutory provisions. In the absence of a like authority, we do not feel that comity requires us to grant relief to a resident of a foreign country not afforded by our laws to our own residents and citizens, regardless of the unfortunate circumstances which plaintiff alleges occurred.

Another matter urging us to this opinion is that the Greek Court here did not have personal jurisdiction over the person of defendant in rendering its decree. An order for the payment of alimony is in personam. Gleiser v. Gleiser (1949), 402 Ill. 343, 83 N.E.2d 693. The processes of service of summons have no extraterritorial effect. This was established long ago in Pennoyer v. Neff (1877), 95 U.S. 714, 24 L.Ed. 565, where the court said 24 L.Ed. 570:

“Process from the tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them * * ® process sent to him out of the state and process published within it, are equally unavailing in proceeding to establish his personal liability.” See Bickerdike v. Allen (1895), 157 Ill. 95, 41 N.E. 740.

So-called “long-arm” statutes have been adopted in modern practice acts to permit such service in limited types of actions under circumstances where contacts, ties or relations with the state are such that traditional notions of fair play and substantial justice are not offended and where reasonable assurance is made of actual notice of the suit. (See Ill. Rev. Stat. Ch. 110, par. 17; International Shoe Co. v. Washington (1943), 66 S.Ct. 154, 326 U.S. 310, 90 L.Ed. 95). However, the record here fails to disclose that the laws of Greece contain such provisions giving extraterritorial effect to its processes. It is also noted that the record discloses only service of the Complaint and no service on defendant of a summons showing date of hearing appearance or default time. Thus, for ought that the record here shows, the Greek Court did not have personal jurisdiction of defendant. An in personam judgment of a foreign court which did not have personal jurisdiction will not be enforced in Illinois.

The second count of plaintiff’s Complaint seeks a judgment for alimony to be entered directly by the Court based upon Section 19 of the Divorce Act. (Ill. Rev. Stat. 1967, Ch. 40, par. 19.) As has been stated above, this statutory authority to a court of equity is limited to a proceeding for divorce by its language:

“When a divorce shall be decreed, the Court may make such order touching the alimony and maintenance of the wife or husband.”

The Complaint does not seek divorce or even allege a cause of action for separate maintenance and support incidental thereto. There is no inherent jurisdiction in a court of equity, apart from statute, to grant alimony. This count clearly was an attempt to obtain a “bare” alimony order which the court had no jurisdiction to grant.

The Court below properly granted the motion to dismiss and the judgment dismissing the complaint.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. PRESIDING JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lenroe Taylor, a/k/a Lenore Taylor, Defendant-Appellant.
    (No. 54568;
    First District
    September 10, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Marvin Lanzel, Senior Law Student, and Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and John A. Gibaitis, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSE CHARGED

Murder. Ill. Rev. Stat. 1967, ch. 38, par. 9 — 1.

JUDGMENT

After a bench trial, defendant was found guilty and sentenced to a term of 20 to 35 years.

CONTENTION RAISED ON APPEAL

Defendant was not proven sane at the time of the crime.

EVIDENCE (HEARD AT THE TRIAL ON JULY 8, 1969)

Darlene Stevens, for the State:

She was 12 years old at the time of the trial and lived with her father and three brothers at 844 W, 78th Street. On August 27, 1967, about 10:00 P.M., she went to bed in the bedroom with her three brothers. Her mother was in the front room watching television. She went to sleep, but awakened later. Defendant, whom she knew because he used to stay with her mother, knocked on the door, and her mother answered it. After he came in the door, he took a knife out of his back pocket while he was in the back room. He went into tire front room,where there was a light on, and knocked her mother down. Her mother had not done anything prior to being knocked down. He then stabbed her many times. The witness ran into the hallway and tried to summon the people next door, but no one answered. While she was in the hall, defendant ran out. Her mother came out and fell in the hallway. Her brother had gone for the police.

William Boreczlcy, for the State:

He is a police officer who was present when defendant entered the police station and surrendered himself and a pair of scissors on August 28, 1967. Defendant said he killed Maude Stevens, but did not want to talk about it further.

Stipulation, for the State:

If a coroner’s pathologist were called, he would testify that he examined the body of the deceased and found multiple stab wounds; that her death resulted from a stab wound of the chest and heart.

Lenroe Taylor, defendant, in his own behalf:

He was brought up by various aunts, friends, and a stepfather in Alabama, where he also spent three years in a reform school. He was in the Marine Corps for one year and was discharged after being examined by some doctors who told him he was unfit for duty because he was a schizophrenic. He then returned to a ghetto where he tried to escape from Negrophobia, a fear of being black. Subsequently, he joined the Air Force, but was court-martialed and dishonorably discharged nine months later after he got drunk and shot up the Airmens Club.

He had been released on sick leave from his job at American Can. He was going to have an operation for a rupture on August 28, 1967, and was afraid of the pain. This fear resulted from the fact that when he was small, he received many whippings from his stepfather and various people. On one occasion, his stepfather pulled a knife on him. He also had a knife and fought with his stepfather, who was killed as a result of this, he thought, but did not remember. He was under the influence of alcohol at that time.

On the night of August 27, 1967, he received a phone call from Maude Stevens and went to her house that night. He had a key and let himself in the front door. The children were sleeping, and he and deceased were sitting up talking. He was afraid of the operation and had been drinking for three or four days. The deceased got him a beer and they talked some more. Then he told her that he was sleepy and wanted to lay on the couch. She told him if he could not sleep in the bed with her, he should leave. He had lived with her “common law” for six years and they had one child. They started to argue and deceased woke up her son, telling him to go get the police because defendant would not leave. Defendant had snatched out the telephone. She was screaming and hoUering, and he was shaking her, and the next thing he knew, he felt a severe shock of pain as she kicked him with her knee in the groin area where the operation was supposed to be, and he saw a blinding flash of light. He also remembered her coming at him with a sharp object, which he later realized were scissors. The next thing he knew, he heard deceased’s daughter screaming, “You cut my mother.” When he looked around, he saw blood spots on deceased. He picked up the scissors, which he had heard drop to the floor, and left the scene. He took the scissors so that if she said anything to the police he could say she tried to stab him with the scissors. He saw her son standing on the corner, and told him to go home. When the daughter had screamed, he discovered he had a knife in his hand. He threw the knife in an aHey, and went to a friend’s house. The foUowing morning he learned on the radio that Maude Stevens had died, so he turned himself in to the police. He wanted to die himself.

He was in jail waiting trial for almost two years. Once, while in jail, he attempted to commit suicide by taking about 50 piHs he had been given for a rash. He thought all hope had been lost for “our cause” on account of the assassination of President Kennedy, Robert Kennedy, and Martin Luther King; he had no money or friends. Also, while in jail, he had some mental disturbance, thought he was in the Marines again, and was put in a cell with what tihey called “psychos” for about four months. There, he began writing poetry. He attempted to seU some of his poetry, and corresponded with Reader’s Digest and Look Magazine. He also wrote to various high ranking government officials (Senators, members of the Cabinet and the U.S. Supreme Court), “A letter to America, a voice from the ghetto by way of the Cook County Jail,” about an organization he caHed “King’s New Breed of Brotherhood,” dedicated to achieving peace and brotherhood through love and support of the United States Constitution.

In response to a question on cross-examination as to what happened during the knife fight with his stepfather, he answered:

“You know, seemingly like I got discharged from the Marine Corps but I never discharged the Marine Corps, I always had that feeling, what you call semper fldehs, that’s a Latin expression meaning always faithful and always true, and the gung ho expression means togetherness. It seems that there was two of us, me and the Marine that never was, but I still retained that gung ho attitude, you understand, and then to get a job well done the Marine Corps adopted a Japanese attitude which is called a bonzai attitude, you understand, to get a job well done if you believe it’s right.

When he fought with his stepfather, after they both pulled out knives, “confession prevailed.” He was drunk at the time. When he drinks, he sometimes has different illusions. Sometimes he thinks he is a politician, sometimes a preacher, and he wonders if it was a “dream or was it so.” He drank for four days and nights before killing Maude Stevens, so that his operation would not hurt so badly. Fear forced him to drink. He felt confusion at that time. When asked on cross-examination if he were still confused, he replied: “I feel like standing up and being counted now. I feel like an eagle now."

While in the service, he had been in the neuro-psycopathic ward but had never been committed to a mental institution. He had been picked up by the police on numerous occasions for drunkenness.

Robert De Vito, for the defense:

After establishing his qualifications as an expert witness, he testified that he is a psychiatrist who examined defendant for more than two hours on April 17, 1969. Defendant was disheveled, anxious, and suspicious, thinking the witness might in reality have been a lawyer. He did, however, settle down and relate the facts of the case.

He found defendant to be a “very disturbed man,” showing signs of grandiose thinking. Defendant also exhibited “loosening of associations,” in that his thoughts did not follow in logical sequence. He was extremely suspicious and showed delusions of persecution. He also was easily irritated and, although he used words rather well, he had an unusual way of expressing himself, in that he misused words and used neologisms, which are nonexistent words or words he made up, having special meaning to him but which are hard for other people to understand. An example of this would be his use of the word, “immaculated,” in the term, “immaculated law.” In response to a hypothetical question (supplemented in a minor way, but otherwise without objection by the State) which included events from defendant’s past to which he had testified, and the circumstances surrounding Maude Stevens’ death, the witness testified that, in his opinion, based on a reasonable degree of medical certainty, the person described was suffering from mental illness; that he was suffering from a mental disease on August 28, 1967, as a result of which he lacked the substantial capacity to “form the intent to commit the act,” to appreciate the criminality of his conduct, or to conform his conduct to the requirements of the law. The witness also stated:

“A mental disease is a condition which by definition is an aberration from normality and it has a whole range of aberrations from normality, from very mild to very severe. In this particular case what we are referring to is that this man did not have the capacity to think logically, to recognize reality as it is, and to conform his behavior to law and reality as we know it.”

There was a long-standing mental aberration on which was superimposed the effects of lack of sleep and heavy drinking. The fact that the man appears lucid and could answer questions in a courtroom would not affect the witness’ diagnosis, since the lack of contact with reality may relate only to certain areas of deep concern or conflict in his life.

On cross-examination, the witness testified that he gave defendant a memory test which he performed capably. He also gave him various other tests. All of his information concerning defendant’s past came from defense counsel and from defendant himself. He found that defendant related abnormally to his prison environment in that defendant considered himself as the poet in the cell block; that he was not really certain as to why he was in jail, regarding his purpose there to help the Negro problem in the United States, although he did know the charge he was facing. As a result of tests given, he found the defendant to exhibit dereistic thinking, which is the misinterpretation of reality with a delusional system built upon that misconception. For example, defendant’s creed for King’s New Breed of Brotherhood appears normal in general kinds of ways but in its specifics is incoherent if read carefully.

He did not agree that it would be difficult to determine a specific mental condition at a given point of time in the past. He felt that defendant was suffering from a functional non-organic psychotic illness. In the case of defendant, even though the facts as related by the hypothetical person with respect to both homicides were to be eliminated, he could still tell whether defendant was in contact with reality by his examination of defendant, and his diagnosis would have been the same. Nor would there be any difference if the drinking and lack of sleep were omitted. He based his opinion on both the hypothetical question and his examination of defendant. Also, his observation of defendant in court led him to believe that defendant, at the time of trial, was still suffering from the mental disease of delusions of grandeur and persecution which rendered him incapable of appreciating the criminality of his acts or conforming his conduct to the requirements of the law.

William H. Haines, for the State:

He is a physician and director of the Behavior Clinic of the Criminal Division of the Circuit Court of Cook County. He examined defendant twice, once on July 17,1968, for a half hour and again on March 12,1969, for 45 minutes. Both examinations were for the purpose of determining whether defendant was competent to stand trial. No tests were given to defendant. As a result of those interviews, he was of the opinion that defendant was not suffering from delusions of grandeur or persecution at those times. When asked on cross-examination whether, in his opinion based on his examinations, defendant was suffering from a mental disease or defect on August 27, 1967, the witness replied: “I have no crystal ball that I can look into to see the past.” When asked if he could give an opinion as to defendant’s sanity or insanity at the time of the offense, he answered, “I was not there at that time.” He found defendant to have a schizoid personality make-up, which meant like a schizophrenic but not a schizophrenic, and “not entirely responsive to the situation.” This did not mean that defendant was out of touch with reality. At the times of his interviews with defendant, his condition would have classified as a mental disease or defect in the diagnostic manual, but not one which rendered him unable to appreciate the criminality of his acts or to conform his conduct to the requirements of the law.

OPINION

Defendant’s contention is that the State did not prove beyond a reasonable doubt that defendant was sane at the time of the crime. The defense of insanity is provided for under Ill. Rev. Stat. 1967, ch. 38, par. 6 — 2(a): A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. It is also declared to be an affirmative defense by Section 6 — 4. Further, section 3 — 2 provides: “(a) Affirmative defense” means that unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon, (b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all other elements of the offense. See also People v. Gold, 38 Ill.2d 510, 514.

Defendant, through his own testimony and that of Dr. De Vito, properly introduced “some evidence” of his affirmative defense, enough, in our opinion, to raise a reasonable doubt as to his sanity at the time of the crime. (People v. Skeoch, 408 Ill. 276, 280.) The only issue for us to decide, therefore, is whether the State sustained its burden of proving beyond a reasonable doubt that defendant was sane at the time of the crime. Defendant urges that not only did the State fail to meet this burden, but that it offered no evidence whatsoever of defendant’s sanity at the critical time in question. The State called Dr. Haines, who testified that he had no crystal ball which would permit him to see the past; that he “was not there at that time,” and therefore, by inference, that he could not testify as to defendant’s sanity or lack thereof at the time the offense was committed. This constituted the State’s sole evidence in rebuttal to the positive testimony of defendant’s qualified medical witness to the effect that defendant was not legally sane when he killed Maude Stevens.

The State relies principally on People v. Count, 106 Ill.App.2d 258, 262, in which Dr. Haines had testified for the State that no doctor could make an accurate assessment of defendant’s impulses at the time of a crime committed 11 months earlier. The court there held this testimony was sufficient to support submission of the issue to the jury as against earlier defense testimony of a psychiatrist to the effect that the defendant was suffering from an irresistible impulse which deprived him of substantial capacity to appreciate the criminality of his conduct or to conform it to the law. For two reasons, the rationale in Count is not applicable here. First, in the instant case, Dr. Haines’ testimony that he could not determine defendant’s sanity at the time of the offense did not constitute an impeachment of Dr. De Vito’s testimony that he could and did make such a determination and his opinion was that defendant was not sane. The State cannot at this time rely on the testimony of Dr. Haines in some earlier case and argue that such testimony now rebuts and impeaches Dr. De Vito’s diagnosis and opinion. The court in the Count case found also that the defense testimony of irresistible impulse was rebutted by testimony of witnesses to the crime who described defendant’s behavior and appearance at the time of the crime, and their description was contrary to the characteristics of a person suffering from the claimed mental defect as described by the defense psychiatrist who had also testified that such an irresistible impulse would last very briefly, “perhaps only a second or two.” This latter testimony added immeasurably to the witness’ difficulty or impossibility of diagnosis under the circumstances. Furthermore, the court pointed out that the fact that the defendant had arranged for a getaway car indicated that the crime had been preplanned and that defendant was not acting under any sudden irresistible impulse. Based on all of this evidence, the court concluded a jury could find the defendant was sane at the time of the crime beyond a reasonable doubt. People v. Count, supra, p. 263.

We consider that the Count case does not proclaim a rule of law that no doctor can properly testify to his opinion of a defendants sanity at the time of the crime, based upon a subsequent examination. Surely, there are many cases where this has been done and upheld. See, for example, People v. De Pompeis, 410 Ill. 587, 590-592, in which the conviction was affirmed on the apparent proposition that a defense psychiatrist’s opinion of insanity was countered (sufficiently to raise a jury question) by the testimony of Dr. Haines as to the defendant’s sanity based upon his examination of the defendant made at a time substantially after the date of the crime.

Another case which we cite by way of example is People v. Skeoch, 408 Ill. 276, 280, in which a conviction was reversed for failure of the State to meet its burden of proof after a defense psychiatrist had testified to the defendant’s insanity on the basis of a hypothetical question. In the instant case, the defense interposed was founded upon both a hypothetical question and a psychiatric examination after the event.

The State argues also that since Dr. De Vito did not make an independent investigation to substantiate the facts related to him by defendant, his diagnosis based on those facts was untrustworthy, again citing People v. Count, supra, p. 262, where the court said: “He [Dr. Haines] was of the opinion that anything defendant told a psychiatrist in an examination made for the purpose of determining his legal sanity would be self-serving and unreliable. This finds support in common sense and in People v. Hester, 39 Ill.2d 489 * * This alleged flaw in the defense testimony as to insanity cannot be of assistance to the State unless we were to hold as a matter of law that all evidence based on such psychiatric examinations are, in effect, inadmissible. This we are not prepared to do, since the defense burden is to present only some evidence sufficient to raise the issue of insanity, with the burden then falling on the State to prove sanity beyond a reasonable doubt. Furthermore, the court’s statement in the Hester opinion was concerned with testimony as to diagnosis on the basis of subjective symptoms described by a patient to a nontreating physician, citing two personal injury cases which recognized this general rule (Jensen v. Elgin, Joliet and Eastern Ry. Co., 24 Ill.2d 383, 389; and Bowman v. Illinois Central R.R. Co., 11 Ill.2d 186, 214.) In the instant case, Dr. De Vito based his opinion, in part, on his objective observation of defendant during the examination and coupled that with his opinion elicited through the hypothetical questioning. In Hester, there was no hypothetical question, as there was no proper evidentiary basis upon which it could have been propounded. Additionally, the doctor’s preferred testimony in Hester was excluded by the trial court on objection by the State, whereas, in the instant case, there were no objections to the testimony of Dr. De Vito as to either his examination of defendant or the hypothetical questions.

Finally, the State cites People v. Davidson, 82 Ill.App.2d 245, 248-49, for the proposition that an examination of defendant long after the offense is not “by itself # * a proper basis for an opinion as to defendant’s condition” at the time of the crime. There, the court found that “there was no evidence upon which the psychiatrist could have based an opinion that the stress on the date of the homicide could have ‘triggered’ the response because of an underlying mental disease or defect.’ ” The court found that the doctor’s testimony at best showed that defendant had a psychosis which fell short of proof that he had a mental disease or defect as defined by Section 6 — 2 of the Criminal Code, and as found by both doctors in the instant case. The court in Davidson also noted that the doctor testified that he did not have sufficient facts upon which to base an opinion of the defendant’s temporary insanity at the time of the offense. This being the case, the statements of the court in Davidson concerning the efficacy of the doctor’s examination of defendant are inapplicable to the instant case.

We conclude, therefore, that the affirmative defense having been properly raised, the State failed to meet its burden of proving beyond a reasonable doubt that defendant was sane at the time of the crime. Consequently, the judgment is reversed and the cause is remanded to the Circuit Court with direction to find defendant not guilty by reason of insanity, and for such further proceedings under sections 115 — 3(b) and 118 — 2 of the Code of Criminal Procedure as may not be inconsistent with this opinion. Ill. Rev. Stat. 1967, ch. 38, pars. 115 — 3(b) and 118 — 2.

Judgment reversed; cause remanded with directions.

DRUCKER and LORENZ, JJ., concur.

       On motion of defendant, the court entered an order on April II, 1969, permitting Dr. De Vito to conduct a psychiatric examination of defendant “for competency and possible defense.”


author: Mr. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Terrence J. Vodicka, Defendant-Appellant.
    (No. 54438;
    First District
    September 27, 1971.

      Anthony J. Murray, Jr., of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Roger S. Matelski, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

Complaints were filed against defendant charging him with the offenses of battery, unlawful use of weapons and disorderly conduct. At a bench trial defendant was found guilty of the offenses of batteiy and unlawful use of weapons, and was placed on probation for a period of two years, the first ten days of which were to be served in the House of Correction. He appeals. (Defendant was found not guüty on the disorderly conduct charge.)

Relative to the battery complaint, complaining witness Janice Mousel testified that at about 5:00 P.M. on January 14, 1969, she and several girlfriends boarded a northbound Ravenswood Chicago Transit Authority elevated train at the station near the Merchandise Mart in Chicago. Miss Mousel testified that after boarding the train, she situated herself in a standing position in the aisle near the center of the car. Shortly thereafter, the defendant, who was seated next to the aisle and behind Miss Mousel, took hold of her arm and attempted to puH her down, repeatedly asking her to sit in his lap. Miss Mousel testified that she refused the advances and that the defendant then threatened that on the foHowing day he would slash her chest with a knife. Miss Mousel further testified that she was frightened and that she then moved to the rear of the car. The witness stated that she had not known the defendant prior to the incident.

Relative to the unlawful use of weapons and disorderly conduct charges, complaining witness James Schwank, a Chicago Transit Authority police officer, testified that at about 5:30 P.M. on January 15,1969, he observed the defendant at the Damen Avenue station of the Ravenswood elevated train line. He testified that his attention was drawn specificaUy to the defendant because the defendant was brushing against the leg of a woman whffe descending a stairway. The officer further testified that he had received a description of Miss Mousel’s assailant, and that the defendant matched that description. Officer Schwank testified that he and his partner stopped the defendant and the woman whom he was brushing against, and that he asked the woman if she wished to take action in the matter. The officer testified that the woman “seemed to be annoyed,” but that she declined to pursue the matter because of the late hour and she wished to proceed home. Defendant was then placed under arrest and a search of his person revealed that he was carrying a switchblade knife in one of his pants pockets.

Defendant testified in his own behalf and related that the reason he was carrying the knife was that he used it in his work as a construction laborer. One of defendant’s co-workers testified that the knife was owned by the co-worker, but that it was left at the job site for use by all who worked at the site; he stated that defendant was permitted to use the knife as were any of the other workers. There is also evidence in the record that defendant had not worked at the job site in question for several days prior to January 15, 1969. (Defendant offered no direct evidence in connection with the incident involving Miss Mousel.)

Defendant initiaUy contends that the trial court erred in denying his motion to suppress the knife as evidence. He argues that his arrest was made without probable cause and that the search incident thereto, which disclosed his possession of the knife, was consequently fflegal. We disagree.

An officer of the law may arrest without a warrant where a criminal offense has been committed and where he has reasonable grounds to believe that the person to be arrested has committed the offense. (Ill. Rev. Stat. 1969, ch. 38, par. 107 — 2(c); People v. Wilson, 45 Ill.2d 581.) In the instant case the officers had probable cause to effect the arrest of the defendant. At the time of the arrest the officers knew of the attack upon Miss Mousel and had a description of her assailant. The defendant, when observed by the officers the day following the Mousel incident, matched the description of the assailant and was in the area of the Ravenswood elevated train line where the Mousel incident occurred. The officers also observed the defendant brushing against the leg of a woman descending a stairway, apparently annoying her; the fact that the woman declined to take action against the defendant has no bearing on the legality of the arrest. Under the circumstances, the arrest of the defendant was lawful, and the subsequent search of the defendant and the seizure of the knife were legal. The trial court properly denied defendant’s motion to suppress the knife as evidence.

Defendant next contends that he did not knowingly and understandingly waive his right to a trial by jury.

The colloquy at the trial between the trial court and defendant’s privately retained counsel reveals that the court, on three separate occasions, inquired of defense counsel whether there would be a plea of not guilty and a jury waiver. In the presence of the defendant, defense counsel responded in the affirmative, and defendant stood mute.

In People v. Sailor, 43 Ill.2d 256, the Supreme Court held that an accused who permits his counsel to waive a jury trial, in the accused’s presence and without an objection on his part, is deemed to have acquiesced in and is bound by his counsel’s action. The Court went on to adopt reasoning from the case of People v. Melero, 99 Ill.App.2d 208, stating that the trial court is entitled to rely on the professional responsibility of the defense counsel, and that a defendant will not be permitted to complain of an alleged error which was invited by his own behavior and that of his counsel,

In support of his position defendant relies on the cases of Boykin v. Alabama, 395 U.S. 238 and People v. Baker, 126 Ill.App.2d 1. The Boykin case was decided after the trial of this cause and has been determined to have no retroactive effect; for that reason it has no applicability to this case. See People v. Williams, 44 Ill.2d 334.

In the Baker case, the court held that the single statement made by defendant’s court appointed counsel, “Ready for a hearing” and “Not guilty, jury waived,” standing alone, did not constitute a competent jury waiver. In a supplemental opinion induced by the subsequent rendition of the Sailor case, the Baker court, while adhering to its original determination of the incompetency of the jury waiver, noted that the feature distinguishing the Baker case from the Sailor case was the fact that Bakers defense counsel was appointed by the trial court and it did not appear that defendant had an opportunity to confer with him prior to the attempted waiver. The court further noted that a waiver by a defense counsel of the defendant’s own choosing would be considered valid inasmuch as counsel and the defendant would have the opportunity to confer long before the waiver is made. As in the Sailor case, defendant here was represented by counsel of his own choosing, and the Baker case is therefore inapposite on its facts from the case at bar.

Defendant contends that the People failed to prove him guilty of the offense of battery beyond a reasonable doubt, because the proofs did not conform to the battery complaint and, secondly, because no evidence was introduced showing that defendant’s conduct was in any way insulting or provoking.

The complaint for battery recites that defendant committed battery upon Miss Mousel “aboard CTA El Train, at Addison-Ravenswood,” but defendant contends that the evidence shows that the incident occurred at least five miles from that location. The record shows that the incident occurred on the “Ravenswood El Train.” The complaint sufficiently informed the defendant of the charge he was called upon to meet. (People v. Gilmore, 101 Ill.App.2d 447.) Further, although defendant did not testify concerning the events which transpired on January 14, 1969, statements made by his counsel in open court reflect that defendant knew of and was aware of the incident and the location thereof.

There was sufficient evidence from which the trier of fact could conclude that a battery in fact occurred. Miss Mousel testified that the defendant took hold of her arm and attempted to pull her into his lap, that she refused to sit in his lap, that defendant threatened to slash her chest, and that she became frightened and moved to the rear of the car, away from the area where defendant was seated.

Defendant finally contends that the unlawful use of weapons statute was unconstitutionally applied to him under the circumstances, since the knife he was carrying was allegedly used by him in his employment as a construction worker. (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1.) The facts, however, show that defendant had not worked for several days prior to his arrest at the site where the knife was normally kept, yet he had the weapon in his possession on the day of his arrest. There was evidence that on January 14, 1969, defendant threatened that on the following day (January 15, 1969) he would slash Miss Mousel’s chest with a knife. It is to be noted that on January 15, 1969, the officers arrested defendant and on searching him found the switchblade knife.

Finally, the statute covering unlawful use of weapons expressly prohibits the carrying of a switchblade knife. (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a)(1).) Defendant further does not fall within the exceptions provided in the statute. Ill. Rev. Stat. 1969, ch. 38, par. 24 — 2.

For these reasons the judgment is affirmed.

Judgment affirmed.

LYONS and GOLDBERG, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Gaddy, (Impleaded), Defendant-Appellant.
    (No. 54636;
    First District
    October 1, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Michael Weininger, Ronald P. Katz, and James J. Doherty, of Defender Project, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Brent F. Carlson, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Nathaniel Gaddy and Robert Woods were charged with the murder of Robert Hughes, Jr. In a bench trial, defendant Gaddy was found guilty and defendant Woods not guilty. The court sentenced defendant Gaddy to a term of forty (40) to fifty (50) years. On appeal defendant contends: (1) the prosecution failed to prove defendant guilty beyond a reasonable doubt; (2) there was no probable cause for defendant’s initial detention and questioning and, therefore, the court erred by admitting into evidence statements made by defendant during this period; (3) the court erred by admitting into evidence oral statements made by defendant following his arrest; (4) the sentence was excessive.

Michael N. Smith testified for the State that on October 18, 1968, at approximately 8:45 P.M. he was in front of Spencer School, 214 N. Lavergne, with Robert Hughes, Jr. when some shots were fired. He dropped to the ground, and while on the ground he looked across the street and observed defendant Gaddy with a rifle. He not only could identify Gaddy by his clothing and characteristic green hat, but he could even see defendant’s forehead. Defendant Woods and one Charles Williams were with Gaddy. Smith knew defendants Gaddy and Woods prior to this incident. After the shots were fired, Smith noticed other people fall to the ground. Closest to him were Howard Fort and Calvin Stennis. Robert Hughes was also on the ground. Immediately thereafter all ran into the school where Smith observed the injured Hughes run upstairs and onto the fire escape. Approximately fifteen (15) minutes later the police arrived. Later that evening Smith gave a statement to the police at the Austin District Police Station. On the night in question Smith had in his possession a .45 automatic pistol. He also testified that on one occasion prior to the incident, while walking in an alley behind Gaddy’s house, he observed defendant cleaning a rifle.

Charles Williams, originally indicted as a co-defendant in the case, but subsequently discharged, testified for the State that on October 18, 1968, at about 9:00 P.M. he looked out of the school entrance window and saw flashes come from a gangway across the street. He recognized defendant Gaddy as the individual who fired the fatal shot by the green hat defendant characteristically wore and which the gunman was then wearing. Earlier that evening he had been with Gaddy and, therefore, could recognize defendant by his clothing. Williams ran from the school after the shooting and saw Gaddy and two companions, Robert Woods and Wilbur Lee run from the alley behind the gangway from where the shots were fired. Williams was reluctant to give police his statement, and at trial, at the request of the State, he was declared a court’s witness.

Officer Claude Erwin, who arrived at the school shortly after the shooting occurred, testified for the State that on the night in question the lighting conditions in the area were fair.

Catherine McKinney, landlady of defendant Gaddy, testified for the State that on October 18, 1968, at about 5:30 P.M. her dog was shot in the backyard of the building in which defendant lived. She had had an argument with defendant no more than a week prior to this incident. Defendant stipulated that the bullets removed from the dog and from the deceased Robert Hughes were from the same .22 caliber rifle. On occasions previous to October 18, she had seen defendant Gaddy wearing a green hat, but she did not remember if he wore it that evening.

Calvin Stennis testified for the State that on October 18, 1968, approximately thirty (30) minutes before the shooting occurred, he saw a boy who was wearing an army jacket standing on the curb in front of Spencer School. That boy might have been Michael Smith. When tire shooting occurred Stennis was with Hughes on the school steps; he did not notice where the boy in the army jacket was standing. Howard Fort was inside at the school dance at the time.

Detective Lanners testified for the State that he arrived at Spencer School on October 18, 1968, at about 10:45 P.M. The school floodlights were on and the lighting conditions were very good. He received a description of the offenders from Detective Rooney who was already on the scene interviewing witnesses. Other police officers were also present. Later that evening at 15th District Police Station, Lanners interviewed several witnesses. That evening police questioned defendant Gaddy but he was released. On October 22, 1968, Detective Lanners, after receiving a description of defendant Gaddy from Michael Smith, arrested Gaddy and advised him of his rights. After being advised, defendant denied being present at the scene of the murder. On December 2, 1968, Lanners saw defendant at Cook County Morgue, at which time defendant threatened him. On January 15, 1969, Lanners was present in Branch 43 (Judge Eptons Courtroom) when defendant Gaddy, defendant Woods and Charles Norris were called.

Charles Norris testified for the State that in February of 1969, in Judge Eptons Court (Branch 43), he had a conversation with defendant Gaddy, wherein defendant admitted kiHing Robert Hughes.

Frank Hundrieser testified for the defense that area photographs presented by defense were authentic, and truly represented the lighting conditions of the area as of the night they were taken, April 27, 1969. He believed the State photographer achieved a lighter effect by using a flashgun when he took his photographs.

Ernest Harris testified for the defense that on October 18, 1968, he saw defendant Gaddy at 7:00 P.M. and 10:00 P.M. Between that time Harris was in a pool room located at Cicero and Maypole with Michael Horn, WHbur Lewis, Jeffrey Johnson and defendant Woods. Woods never left the poolroom during this period. Also, during this period Michael Horn had in his possession defendant Gaddy’s green hat. At approximately 10:00 P.M. Gaddy came into the poolroom.

Wilbur Lewis testified for the defense and confirmed Harris’ testimony.

Ledora McDonald testified for the defense that on October 18, at about 9:15 P.M. she was with defendant Gaddy when she heard a shot. However, on cross-examination she testified that she thought the shot occurred after she had talked to defendant. Also, on both direct examination and cross-examination she testified that she was on the east side of Lavargne (across the street from Spencer School) when she heard the shot. However, on redirect examination she faltered even as to this point.

“Q. Were you on the east side of Lavergne at that time (of the shooting) ?
A. Yes.
I said I don’t know exactly where I was standing when I heard this noise.
Q. Were you on the school side or the other side of the street when you heard this noise?
A. I don’t know.
Q. You don’t know?
A. No.”

Mrs. Martha Gaddy, mother of defendant Nathaniel Gaddy, testified that she did not know what defendant did between the hours of 8:00 P.M., when defendant left home, and 11:00 P.M., when he returned.

Percy Gaddy, brother of defendant, testified that he was at defendant’s house at approximately 8:30 P.M. when defendant left. He did not see defendant again until 9:30 P.M. when he left defendant’s house and found defendant waiting in his car. They drove to Percy’s home and arrived at approximately 10:00 P.M. They left shortly thereafter and drove to a pool hall at 15th and Pulaski where they arrived at approximately 10:20 P.M. Defendant did not enter the pool hall. They left the pool hall and drove around Maywood until midnight but made no other stops.

Bobby Harris testified for the defense that on October 18, 1968, at approximately 9:00 P.M. he was leaving Spencer School when two shots were fired. The blaze from the shots wounded his sister. The shots came from a gangway across the street. However, he did not see anyone in the gangway. He did see defendant Gaddy and Miss McDonald standing on the cornei". Gaddy was not wearing a hat. Harris did not remember seeing Michael Smith present at the time of the shooting.

Robert Woods testified in his own behalf that he was at the poolroom at Cicero and Maypole from 7:30 P.M. to 10:00 P.M. During this period one Michael Horn had in his possession Gaddy’s green hat. Gaddy came to the poolroom at approximately 10:00 P.M.

Howard Fort testified for the defense that he was inside at the dance when the shooting occurred. He did not remember seeing Michael Smith that evening.

Nathaniel Gaddy testified in his own behalf that on October 18, 1968, at approximately 7:00 P.M. he was on the corner of Lavergne and Maypole with Sonny Harris, Wilbur Lewis, Jeffrey Johnson, Robert Woods and Michael Horn. Initially, he was wearing a green hat, but during “horseplay” it fell off, and when he left the comer at approximately 7:30 P.M. he no longer had the hat in his possession. At about 9:00 P.M. he was with “Pumpkin” (Miss McDonald) on the corner of Lavergne and Maypole when he heard shots. After the police arrived, he left “Pumpkin” and went home where he noticed Percy’s car. He left with Percy, but they did not drive directly to Percy’s house. They went to the poolroom on Cicero and Maypole first. They arrived at Percy’s house at approximately 10:20 P.M., not at 10:00 P.M. as Percy had testified. In later testimony, defendant charged the time of arrival to 10:40 P.M. On cross-examination defendant’s statement of October 20, 1968, was used to impeach his testimony. In that statement defendant stated that (1) on October 18, 1968, at about 7:00 P.M. he was with “Pumpkin” on the corner of Lavergne and Maypole; (2) he was not at Spencer School at 9:00 P.M., but rather he was at home arguing with his mother’s landlord; (3) he went to his brother’s house at 9:10 or 9:15 P.M. Defendant testified that the police first came to his house at about 1:00 or 2:00 A.M., Saturday, October 19.

Opinion

(1) Defendant first maintains that he was not proved guilty beyond a reasonable doubt. After considering the testimony, we believe this contention is without merit. The State presented Michael Smith who identified defendant Gaddy as having a rifle in his hands immediately after the shots were fired, and across the street in the area from which the shots had come. His observations were corroborated by the testimony of Charles Williams and by defendant’s admission made to Charles Norris. Additionally, both Williams and Smith were sure that the boy firing the rifle wore a green hat similar to the one commonly worn by defendant, and which defendant had in his possession at the time of his arrest. In an attempt to support his claim of innocence, defendant Gaddy testified that he was with Ledora McDonald on the comer of Lavergne and Maypole when the shooting occurred. However, his testimony was impeached by his statement of October 20, which he gave to police during a period of questioning prior to his arrest. Ledora McDonald testified as an alibi witness, but her testimony was confused and self-contradictory. Wilbur Lewis and Ernest Harris testified for the defense that on October 18, at approximately 10:00 P.M. they saw defendant Gaddy in a poolroom on Cicero and Maypole. However, Percy Gaddy, defendant’s brother, testified that he and defendant were at Percy’s house at 10:00 P.M., not at the pool hall. The trial judge believed the testimony of the State’s witnesses, and their testimony, if believed, was sufficient to establish guilt beyond a reasonable doubt. Where a cause is tried without a jury the law commits to the trial judge the determination of the credibility of the witnesses and the weight to be given to their testimony, and where the evidence is merely conflicting the reviewing court will not substitute its judgment for that of the trial court. (People v. Dillon (1962), 24 Ill.2d 122 at 127.) As was said in People v. Novotny (1968), 41 Ill.2d 401 at 411-412:

“When the trier of facts renders a decision based upon credible and substantial evidence which is sufficient to convict, that verdict is not subject to question on review merely because the judge or jury chose to believe the consistent testimony presented by the State. (citations omitted).” It is neither the duty nor the privüege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses; (citations omitted) and we will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt, [citations omitted.]”

(2) Defendant’s second and third contentions concern the admission of the foHowing evidence at trial: (1) a written statement defendant made prior to his arrest and which the State introduced to impeach defendant’s in court testimony; (2) an oral statement defendant made while in custody and subsequent to being advised of his rights in conformity with the requirements of Miranda v. Arizona (1966), 384 U.S. 436, and which the State used in its case in chief. As to the written statement, defendant contends that there was no probable cause for his initial questioning and detention and, therefore, the court erred in admitting into evidence the statement made during this period. As to the oral statement, defendant contends that since he did not make a statement that he fully understood and voluntarily waived his rights after admittedly receiving the appropriate warnings, his subsequent answers were automatically rendered inadmissible.

Admissions or confessions may be chaHenged either by preliminary hearing on a motion to suppress or by appropriate objection made at trial. However, not once during the course of the proceedings did defendant raise the point that either of these statements was improperly admitted. The failure to make a proper and timely objection to the admission of evidence, or to move to strike it out after its admission, constitutes a waiver of the right to argue these points on appeal. See People v. Trefonas (1956), 9 Ill.2d 92 at 98 and People v. Payton (1970), 124 Ill.App.2d 78 at 88-90.

(3) Defendant lastly contends that forty (40) to fifty (50) years imprisonment is excessive. After the court rendered its decision a lengthy hearing on aggravation and mitigation was held wherein the foHowing was established: defendant had been found guilty of crimes of a violent nature, battery and assault, within two years prior to the murder charge; defendant had served thirty days in the House of Correction for auto theft; defendant had been convicted of disorderly conduct; defendant had previously violated probation; defendant was on probation at the time he murdered Robert Hughes. In light of the aforementioned facts, it cannot be said that the penalty is at variance with the purpose and spirit of the law, or that it is in excess of the proscriptions found in the Illinois Constitution. (People v. Taylor (1965), 33 Ill.2d 417; People v. Miller (1965), 33 Ill.2d 439.) Because the sentence is within the limits set by the legislature and meets the standard set by the Supreme Court we find no reason to reduce it.

The judgment is affirmed.

Judgment affirmed.

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

       Ill. Rev. Stat. 1967, ch. 38, par. 9 — 1(b). MURDER.
      “(b) Penalty.
      A person convicted of murder shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years. If the accused is found guilty by a jury, a sentence of death shall not be imposed by the court unless the jury’s verdict so provides in accordance with section 1 — 7 (c) (1) of this Code.”


author: Mr. JUSTICE DRUCKER

text:
    William Witkowski, Plaintiff-Appellee, v. Covenant Security Insurance Company, now known as Twentieth Century Insurance Company, Defendant-Appellant.
    (No. 54910;
    First District
    October 1, 1971.

      Rosenfeld, Hafron & Shapiro, of Chicago, (Howard H. Rosenfeld, and Norman L. Hafron, of counsel,) for appellants.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant appeals an order of the Circuit Court compelling arbitration of plaintiff’s claim under the uninsured motorist clause in an automobile public liability insurance policy. On appeal defendant contends that the order should not have been granted because the plaintiff was not “legally entitled” to recover against the uninsured motorist due to the running of the statute of limitations on plaintiffs cause of action.

Although plaintiff has filed no brief, we shall consider the appeal on its merits. Daley v. Jack’s Tivoli Lounge, Inc., 118 Ill.App.2d 264.

On April 22, 1967, William Witkowski, plaintiff, was injured in an automobile accident with an uninsured motorist. On May 17, 1967, Covenant Security Insurance Co., now known as Twentieth Century Insurance Company, (hereafter “Covenant”), defendant, received a lien filed on behalf of Witkowski by his attorney, Hyman Schechet. This was forwarded to Covenant by the Joseph J. Johnson Insurance Co., the agency which sold Witkowski’s insurance policy. Johnson was not an agent of Covenant.

On June 1, 1967, Covenant sent two letters and a form to Witkowski. One letter reserved Covenant’s rights under its policy with Witkowski. The other letter was a request to fill out and return an enclosed form in order to complete the investigation of plaintiffs claim. Covenant claims it had no further communication with Witkowski until Covenant was served with the motion to compel arbitration on July 21, 1969.

Witkowski’s attorney, Hyman Schechet, testified that he sent four letters demanding arbitration. Covenant admitted receiving the first letter (sent by Schechet on May 16, 1967), on May 17, 1967. On page five of its brief Covenant states the following: “The accident in question occurred on April 22, 1967; plaintiff did not attempt to compel or seek arbitration under the terms and conditions of his insurance policy until July 24, 1969.” This statement is not consistent with page eight of the report of proceedings wherein Mr. Schechet reads from his letter of May 16, 1967, as follows:

“THE WITNESS: Gentlemen: Enclosed here please find original demand for arbitration, together with photostatic copies of that portion of the above designated policy under which relief is sought for this uninsured motorist’s claim. Same is being sent to you in accordanee with the regulations of the American Arbitration Association.”

The next three letters demanding arbitration were sent on February 23, 1968, October 14, 1968, and March 21, 1969, respectively. These letters were sent to Covenant at 4849 North Western Avenue. Covenant moved from that address to 2550 West Peterson Avenue in April 1967. Schechet testified that he used the address listed under Covenant in the 1967 telephone directory.

Although the demand for arbitration in the letter of May 16th was for an American Arbitration Association arbitration, which was incorrect, the letter at least put Covenant on notice that Witkowski was making a claim and was demanding arbitration.

The relevant policy provisions read:

“(C) Such person shall do whatever is proper to secure and shall do nothing after loss to prejudice such rights.
Coverage D-Uninsured Motorists Coverage:
The company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; provided, for the purposes of this coverage, determination as to whether the insured or such representative, is legally entitled to recover such damages, and if so the amount thereof, shall be made by agreement between the insured or such representative and the company, or if they fail to agree and tire insured so demands, by arbitration.” Emphasis supplied.

According to defendant, no suit was ever filed by plaintiff against the uninsured motorist, and the instant suit was filed more than two years after the accident.

Opinion

The defendant contends that the order to compel arbitration was improper since the two year statute of limitations (Ill. Rev. Stat. 1963, ch. 83, par. 15) on plaintiff’s cause of action against the uninsured motorist had run when the court ordered arbitration and therefore plaintiff was not “legally entitled” to recover. In support of his contention defendant cites the following from Country Mutual Insurance Company v. National Bank of Decatur, 109 Ill.App.2d 133,140:

“It is manifest that when appellants filed their demands for arbitration, no cause of action for wrongful death existed. At that time they were not “legally entitled” to recover damages from the owner or operator of the uninsured automobile within the meaning and requirements of the policy endorsement. Hence, as a matter of law, no cause of action existed and the arbitrator had no power or authority to do anything but deny the claims. The awards made by the arbitrator exceeded his power. The circuit court properly vacated the awards.”

However, this rule is limited to wrongful death cases. The Country Mutual case does not go beyond dealing with the right to sue within two years under the wrongful death act. This is apparent in the foUowing passage at page 139:

“The Illinois courts consistently have held that the right of action for wrongful death is wholly statutory and that the provision in the statute creating the right that requires the action to be brought within the specified time is a condition attached to the right to sue and is not merely a statute of limitations. Hartray v. Chicago Rys. (1919), 290 Ill. 85, 124 N.E. 849. This is unlike a general statute of limitations which may serve as a defense to an action which a defendant may interpose or waive as he sees fit, but it is a condition of the statute of any right to liability whatsoever.”

In Hartford Accident and Indemnity Co. v. Holada, 127 Ill.App.2d 472,481, the same principle was reiterated:

“Moreover, in the nature of a true statute of limitations, such as the one for personal injuries involved in this case, a defense based thereon must be affirmatively raised to be successful, and, if not so raised, the insured could stiH be “legaHy entitled” even though his lawsuit were filed after the running of the statute.”

Furthermore, as set forth above, there was evidence that plaintiff had demanded arbitration as early as May 1967, and less than a month after the accident.

We therefore find that the order compelling arbitration was proper even though no suit for personal injuries had been brought by plaintiff against the uninsured motorist within the statute of limitations for personal injuries.

The order compelling arbitration is affirmed.

Judgment affirmed.

ENGLISH, P. J., and LORENZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Davis, Defendant-Appellant.
    (No. 55108;
    First District
    October 1, 1971.
    Fred R. Kimmel, and Thomas Grippando, of Chicago, for appeHants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Richard Pezzopane, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal from a conviction for unlawful use of weapons under Ill. Rev. Stat. 1969, ch. 38, par. 24 — l(a)4 which reads as follows:

“(a) A person commits the offense of unlawful use of weapons when he knowingly:

(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm; * *

On December 9, 1969, at 10:00 P.M. Officer Brooks, while on routine patrol, observed two male negroes standing near the open trunk of a parked car. Brooks circled the block and returned to the aHey where he observed the defendant with what appeared to be a shotgun. Brooks announced his office and defendant dropped the shotgun. Brooks arrested the defendant.

Defendant contends that he did not violate Section 24 — l(a)4 because there was no evidence of concealment.

The State contends that there was sufficient evidence of concealment and in support cites two cases in which convictions for carrying com cealed weapons were upheld. Both of these cases may be distinguished on their facts.

In People v. Russell, 23 Ill.App.2d 13, the defendant was ordered by a police officer to drop the gun he was pointing at three persons. Instead of dropping the gun he placed it in his pocket with his hand covering the handle. The court in Russell made the following observation at page 15:

“The arresting officer in the present case saw defendant with his revolver drawn, and for obvious reasons had a very active interest in what next happened to it. We think that whether the arresting officer ever lost sight of the gun is of minor importance. Defendant had the barrel of the gun in his pocket and his hand on the handle. This is not the sort of open, conspicuous arming of the person that would be readily noticed by the casual observer.”

The State also cites People v. Euctice, 371 Ill. 159, in which the defendant was in the back seat of a car which was stopped at a roadblock. A police officer observed him attempt to kick a pistol under the front seat. The court in Euctice interprets concealment at page 162 as follows:

“The statute does not mean that the firearm shall be carried in such manner as to give absolutely no notice of its presence. It merely requires that the firearm shall be concealed from ordinary observation.” In the case at bar the weapons were never concealed from ordinary

observation. There is no evidence that defendant attempted to put the gun under, in or behind anything — he just dropped it. On cross-examination Officer Brooks testified as follows:

“Q. And at no time were these guns concealed, is that correct? They were always visible to you.
A. Yes.”

The State has failed to prove the element of concealment, therefore we reverse.

Judgment reversed.

ENGLISH, P. J., and LORENZ, J., concur.


text:
    Ruth Larsen, et al., Petitioners-Appellants, v. Ben Lejcar, et al., Respondents-Appellees.
    (No. 55157;
    First District
    October 1, 1971.

      Harry Goodgold, of Chicago, (John D. Vosnos and James B. Martin, of counsel,) for appellants.
    Elliott, Carrane, Uraba & Wayt, and Richard Altieri, of Chicago, (Richard Altieri and Glynn J. Elliott, Jr., of counsel,) for respondentappellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This appeal is from an order dismissing the petition and amended petition of Ruth Larsen and Wallace Simmers seeking to vacate a judgment for a tax deed entered on October 15, 1965.

Ruth Larsen filed her petition on August 11, 1969, and on September 22,1969, she and Simmers (hereinafter referred to as petitioner) obtained leave to file an amended petition naming, among others, Ben Lejcar, Helen and John Marlas as defendants.

The amended petition recited that the tax assessment was void because the property was exempt by reason of certain condemnation proceedings which remained in effect until May 8, 1964; that by reason thereof the assessment and forfeiture “was in error and resultingly fraudulent to fact”; that the affidavit in support of the deed was false and untrue in that Ruth Larsen occupied a house, bam and house trailer on said premises; that no proof was offered to support the obtaining of a tax deed; that there was a recorded, existing mortgage; that neither of the petitioners had “any knowledge of the processing by way of services as required by law in proceedings of this type”; and that the certificate of forfeiture was not properly filed and recorded under the Torrens System.

On November 24, 1969, the Marlases filed an answer alleging they were bona fide purchasers in 1967 and that by agreement with Ruth Larsen there was a judgment for possession on January 6, 1969. They also filed a motion to strike the petition. Lejcar filed his motion to strike and dismiss on March 10, 1970, alleging many insufficiencies in the petition, the primary one being that the petition was barred by law. On April 14, 1970, after hearing arguments and “admissions of counsel” (which do not appear in the record), the court sustained the motion of defendants to strike and dismiss the amended petition.

On appeal petitioners first contend that the magistrate did not have the power to hear and determine this type of case because Paragraph 628 of Chapter 37 of the Illinois Revised Statutes is unconstitutional. It reads:

“All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to colateral attack merely because rendered pursuant to improper assignment to a magistrate.”

This issue was never raised in the trial court and therefore cannot be urged for the first time on appeal. Meyers v. Board of Education, 121 Ill.App.2d 186.

Petitioners next argue that since issues of fact had been presented by the pleadings the court erred in dismissing the amended petition. In their brief the petitioners state these issues as follows:

“1. Was there jurisdiction of the parties in accordance with the statute in the tax judgment proceeding?
2. Were the 1961 real estate tax assessments levied against exempt property?”

Relief from tax deed judgments is governed by Paragraph 266 of the Revenue Act (Ill. Rev. Stat, 1969, ch. 120, par. 747) which provides in part:

“Tax deeds issued pursuant to this Section are incontestable except by appeal from the order of the court directing the county clerk to issue the tax deed. However, relief from such order may be had under Section 72 of the “Civil Practice Act”, approved June 23, 1933, as heretofore or hereafter amended, in the same manner, upon the same grounds and to the same extent as may be had under that Section with respect to final orders, judgments and decrees in other proceedings and the court shall consider defenses relating to questions of the notices required by Section 263 and the proof presented in the hearing required by this Section. This Section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title.”

In Urban v. Lois, Inc., 29 Ill.2d 542, 546, the court stated:

“We think it clear that the entire tax-sale proceeding is one in rem rather than in personam. (People ex rel. Astle v. Chicago and Eastern Illinois Railway Co. 315 Ill. 536, 539; People ex rel. Thaxton v. Coal Belt Electric Railway Co. 311 Ill. 29, 33.) It is the jurisdiction over the land itself, acquired in the original application for judgment and order of sale that gives to the county court the power to act. (Shapiro v. Hruby, 21 Ill.2d 353, 358; Cherin v. The R. & C. Company, 11 Ill.2d 447, 454.) Once acquired the county court retains jurisdiction to make all necessary findings and enter all necessary orders supplemental to the original tax sale. We, therefore, hold that the county court had jurisdiction to enter its order of December 3, 1962, finding all notices required by law had been given and directing the issuance of tax deeds to Lois, Inc. (Cherin v. The R. & C. Company, 11 Ill.2d 447; People v. Altman, 9 Ill.2d 277.) Such order could thereafter be attacked only by direct appeal or by appropriate proceedings under section 72 of the Civil Practice Act * *

As we said in Cherin v. The R. & C. Company, 11 Ill.2d 447, 454-455:

“It was the purpose of the legislature to provide a method for obtaining merchantable tax titles. This end is attained by adjudging the conclusive effect of the county court’s determination. This construction of the statute in question conforms to the legislative admonition that ‘This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title.’ Ill. Rev. Stat. 1955, ch. 120, par. 747.”

If we were to hold otherwise, we would abrogate the efficacy of the 1951 amendments to the Revenue Act, and would defeat the desired conclusiveness of the county court’s order for the issuance of a tax deed. The consequent effect upon the merchantability of tax titles would place the annual tax sale in the same status as existed before the 1951 amendments and which the legislature intended to change. See Cherin v. The R. & C. Company, 11 Ill.2d 447, and Shuck v. Guarantee Bank and Trust Co. 26 Ill.2d 123.

In the instant case the record discloses that the court had jurisdiction over the land itself, acquired in the original application for judgment and order of sale. Therefore, the trial court had jurisdiction to enter its order of October 15, 1965, finding that aU notices required by law had been given, that aU provisions of law had been complied with and that a tax deed issue. This judgment was not appealed. The petition, filed almost four years after the entry of the judgment, does not qualify as a petition under Paragraph 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 72) which in sub-paragraph (3) provides for the filing of a petition not later than two years after the entry of the judgment.

Therefore, since the order was not void for lack of jurisdiction, then under Paragraph 266 of the Revenue Act, supra, the tax deed judgment is incontestable and the court properly sustained the motion to dismiss.

Judgment affirmed.

ENGLISH, P. J., and LORENZ, J., concur.