author: Mr. JUSTICE NASH

text:
    DENNIS J. KONICKI, Counterplaintiff-Appellant, v. THE VILLAGE OF HINSDALE et al., Counterdefendants-Appellees.
    Second District
    No. 81-36
    Opinion filed September 30,1981.

      Kathleen P. Konicki, of Willowbrook, for appellant.
    Jay Judge, of Judge, Drew, Cipolla & Kurnik, Ltd., of Park Ridge, for appellees.
   Mr. JUSTICE NASH

delivered the opinion of the court;

Counterplaintiff, Dennis J. Konicki, appeals from an order of the circuit court of Du Page County which dismissed his counterclaim against counterdefendant Village of Hinsdale for not stating a cause of action. Count I of the counterclaim was directed against the village and its count II against counterdefendant, Charles Schmidt, the village building commissioner. While both counts were dismissed, Konicki appeals solely from the dismissal of count I.

The village filed a complaint for injunction against Konicki on March 2, 1976, in which it was alleged that he had violated certain setback provisions of the village zoning ordinance by constructing an overhead “tennis bubble” to enclose an existing tennis court located at 232 East Eighth Street in Hinsdale. The village sought to enjoin Konicki permanently from using the overhead structure and, further, prayed for an order requiring the removal of the tennis bubble. Konicki filed an answer in which he asserted as an affirmative defense that the village was estopped from maintaining the injunctive action by reason of certain statements which Schmidt, the village building commissioner, had made to him upon which Konicki had relied in undertaking the construction. Subsequently, Konicki filed a counterclaim against the village and Schmidt in which he sought monetary damages in the sum of $30,000.

Count I of the challenged counterclaim, which was entitled “COUNTERCLAIM FOR MONEY DAMAGES,” alleged the following pertinent facts. On September 15,1975, Konicki’s agent, William Ahmen, approached the village “for the purpose of obtaining whatever authority was necessary to erect an air structure known as a ‘tennis bubble’ ” within the village. Ahmen was directed to speak with Charles Schmidt, the village building commissioner. During the conversation which ensued, Ahmen asked Schmidt if there were any zoning restrictions which would prevent the use of an air structure over an existing tennis court situated at 232 East Eighth Street. Schmidt replied that there were no zoning restrictions which would preclude that use. Ahmen then asked Schmidt if the erection of the air structure would violate any setback or height restriction of the village zoning ordinances and also if there were any other procedures required by the village ordinances prior to the erection of the overhead structure. Schmidt responded that the air bubble would not violate any such restrictions and, further, that Ahmen had complied with all the necessáry zoning requirements. Konicki’s agent Ahmen also advised Schmidt that the tennis bubble would cost approximately $30,000 to purchase and install and would be ordered and erected as a result of the conversation with Schmidt. In response, Schmidt stated that there were no zoning restrictions which would prevent the erection of the structure or would require its removal once installed. In reliance upon the statements of the building commissioner, Konicki purchased the overhead structure on October 3, 1975, at a cost of $24,500; it was installed a few months later at additional expense and was used until the filing of the village’s action seeking injunctive relief. As a result of the village’s suit, Konicki has been unable to use the air structure for the purpose intended and consequently has been damaged in the sum of $30,000.

In dismissing count I of the counterclaim, the trial court determined that Konicki had failed to allege therein any duty which the village owed to him or any breach thereof and, consequently, had failed to set forth a cause of action in tort. Both in his motion for reconsideration of the.court’s ruling granting the motion to dismiss, which was denied, and in his brief on appeal, Konicki contends that the village owed him a duty of due care and that the village had breached its duty by negligently creating a condition which proximately injured him. Thus, our sole consideration on review is whether the trial court properly concluded that count I of the counterclaim did not allege sufficient facts to state a cause of action in tort.

While Konicki’s counterclaim does not specifically so state, it appears from Konicki’s motion for reconsideration and the arguments raised in his brief on appeal that the counterclaim attempts to set forth a cause of action sounding in negligence. It is axiomatic that in a negligence action there must be a sufficient allegation of facts establishing the existence of a duty of reasonable care owed the plaintiff by the defendant, a breach of that duty, and injury proximately resulting from such breach. (Holton v. Resurrection Hospital (1980), 88 Ill. App. 3d 655, 658, 410 N.E.2d 969, 972; Gartley v. Chicago Housing Authority (1975), 28 Ill. App. 3d 705, 708, 329 N.E.2d 252, 254.) In determining the legal sufficiency of a pleading on a motion to dismiss, all facts which are well pleaded are accepted as true for purposes of the motion (McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100,101; Kuch &Watson, Inc. v. Woodman (1975), 29 Ill. App. 3d 638, 641, 331 N.E.2d 350, 353), and a court of review must determine whether the allegations of the pleading, when interpreted in the light most favorable to the pleader, are sufficient to set forth a cause of action upon which relief may be granted. Rinck v. Palos Hills Consolidated High School District No. 230 (1979), 82 Ill. App. 3d 856, 863, 403 N.E.2d 470, 474; McCauley v. Chicago Board of Education (1978), 66 Ill. App. 3d 676, 677, 384 N.E.2d 100, 101.

Before addressing the particular issue raised on appeal, we note that Konicki’s counterclaim seeks solely an award of monetary damages. In determining that the counterclaim failed to state a cause of action for monetary damages, the trial court noted that equitable relief, not money damages, may be granted in certain circumstances in zoning cases where an applicant for a building permit or zoning change substantially alters his position, as shown by the expenditure of money, in reliance on the acts of the municipality. (See, e.g., Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 160-61, 171 N.E.2d 605, 607-08; Marziani v. Lake County Zoning Board of Appeals (1980), 87 Ill. App. 3d 425, 427, 409 N.E.2d 118, 121; Lake Shore Riding Academy, Inc. v. Daley (1976), 38 Ill. App. 3d 1000, 1002-03, 350 N.E.2d 17, 19; Kirk v. Village of Hillcrest (1973), 15 Ill. App. 3d 415, 417, 304 N.E.2d 452, 454.) The trial court granted Konicki leave to file an amended counterclaim and on his failure to do so, the court dismissed count I with prejudice. As noted earlier, Konicki did plead equitable estoppel as an affirmative defense in his answer to the village’s complaint for injunctive relief. Given the above facts, we need not and do not here address the question whether Konicki’s counterclaim states a cause of action for equitable relief on the basis of an estoppel theory. And, as neither party has raised an issue of whether the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 1 — 101 et seq.) might affect count I of the counterclaim, we will not consider that further.

In support of his argument on appeal that the trial court erred in dismissing his counterclaim for failure to state a cause of action, Konicki asserts that his pleading alleges sufficient facts to establish that the village owed him a duty of due care and breached its duty. His contention here is two-fold. He first postulates that, although the village may not have had any duty to interpret its zoning ordinance or building code for him, once the village undertook an affirmative course of conduct, by interpreting its ordinance and by assuring him that his intended structure did not violate the ordinance, the village was bound to exercise due care in its actions. Consequently, he concludes that where, as here, the village negligently interprets its ordinance, thereby creating a condition which proximately causes injury, it must respond in damages for that injury. In this regard,' Konicki relies upon cases which indicate that while a city may have no duty to erect devices, such as signal lights, overhead lights and stop signs, to guide, direct or illuminate traffic, once having elected to erect them a city has an affirmative duty to maintain those devices in a condition conducive to the safe flow of traffic. (Greene v. City of Chicago (1978), 73 Ill. 2d 100, 382 N.E.2d 1205; Baran v. City of Chicago Heights (1969), 43 Ill. 2d 177, 251 N.E.2d 227; Johnston v. City of East Moline (1950), 405 Ill. 460, 91 N.E.2d 401; Smith v. Godin (1978), 61 Ill. App. 3d 480, 378 N.E.2d 218.) Thus, in the cases relied upon by Konicki, the courts have held a city liable for damages where it breaches its duty of due care by acting in a negligent manner.

Konicki maintains that the principle enunciated in these cases should be applied with equal force to the case now before us. We disagree. The cases upon which Konicki relies are clearly distinguishable in that they involved the creation of defective conditions on land with respect to the direction and management of vehicular traffic. In each case, the city negligently created a condition which resulted in physical harm or property damage to the plaintiffs. By contrast, the allegations set forth in the counterclaim here indicate that the present case involves a building commissioner’s negligent interpretation of a zoning ordinance and his oral assurances or representations that the structure intended to be erected conformed to or met the appropriate zoning restrictions. We perceive a substantial difference between the two situations and accordingly decline to extend the rationale of the cases upon which Konicki relies to the case at bar. Cf. Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 369 N.E.2d 917.

In the alternative, Konicki also argues that the village owed him a “special duty” of care with respect to the interpretation of its zoning ordinance. In support of this contention, he relies principally on Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, appeal after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cert, denied (1971), 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230, and Schuster v. City of New York (1958), 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534. The above cases are also distinguishable from the case now before us; they involved unique factual settings, and we believe they are limited to their particular facts. Hence, they do not control the present case. In Gardner, the court determined that the plaintiff stated a cause of action against the municipalities because the police had a duty to exercise reasonable care for the safety of the plaintiff and, as a result of the officers’ negligence in failing to perform that duty, the plaintiff was injured. The plaintiff in Gardner had alleged in his complaint that four individuals had beaten him; that the police later apprehended the four suspected attackers and requested that the plaintiff accompany them to the scene of the apprehension so that the plaintiff might identify them; that when the plaintiff came to the point of apprehension, the officers allowed the four individuals to remain in close proximity to the plaintiff; and that, as a result, the four again attacked him, in the presence of the police officers, whereby the plaintiff sustained severe injuries. Similarly, in Schuster, the complaint alleged that the plaintiff’s intestate had been shot and killed after having supplied the police with information that led to the arrest of a known criminal. The role the intestate had played in the arrest received wide publicity, and he had received threats upon his life which he had reported to the police. The court determined that the complaint stated a cause of action against the city, because the police had a duty to protect a private person where the municipality used him in making an arrest.

We conclude that Konicki has failed to set forth a cause of action for monetary damages upon which relief may be granted. Count I of the counterclaim does not contain allegations establishing that the village owed Konicki a duty of due care with respect to the interpretation of its zoning ordinance. We have not been directed to any case, nor has our independent research discovered any, which has permitted a party to recover monetary damages against a municipality in a similar factual setting. See, e.g., Rafel v. City of Elmhurst (1956), 10 Ill. App. 2d 64, 134 N.E.2d 121 (abstract).

Accordingly, we affirm the order of the trial court dismissing count I of the counterclaim for failure to state a cause of action.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE JONES Mr. JUSTICE KARNS,

license: Public Domain

text:
      In re ESTATE OF MARY WORRELL, Deceased.—(DENNIS BARNES, Claimant-Appellant, v. DAWSON M. COOPER, Adm’r of the Estate of Mary Worrell, Defendant-Appellee.)
    Fifth District
    No. 80-271
    Opinion filed September 4,1981.
    Rehearing denied October 13, 1981.
    KARNS, J., dissenting.
    Dennis A. Brandt, of Mateyka, Hill, Hill and Armstrong, of Granite City, for appellant.
    John A. Farrell, of Farrell, Heil, Long and St. Peters, P. C., of Alton, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

In dispute is a claim by Dennis Barnes against the estate of Mary Worrell. The claim arose out of a dramshop action brought by him against her doing business as Mary’s Lounge. Barnes had brought the action while Mary Worrell was alive, but she died intestate during the pendency of the suit. Before Barnes filed his claim against her estate, letters of administration had been issued, an inventory had been filed four months later and the six-month claim period for creditors provided by section 18 — 12 of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. IKK, par. 18 — 12) had expired. Section 18 — 12(a) provides in pertinent part that “[a]ll claims against the estate of a decedent * 0 * not filed within 6 months from the issuance of letters of office are barred as to the estate which has been inventoried within 6 months from the issuance of letters.” In addition to the tavern, decedent had operated, as sole proprietor in this instance as well, a motel known as Holiday Manor. Both of the businesses were listed on the inventory filed during the six-month claim period. After Barnes filed his claim, the administrator filed a supplemental inventory of newly discovered assets, which were of relatively slight value and insufficient to satisfy the claim of Barnes. Several months after Barnes had filed his claim, the administrator petitioned for distribution of that part of the estate included in the initial inventory. Approximately 15 months had elapsed between Mary Worrell’s death and the administrator’s petition for partial distribution. During a considerable part, if not all, of that time the administrator had continued the operation of both of decedent’s businesses at a profit. In response to the attempt by Barnes to reach these profits, the administrator maintained and the court agreed that the claim could not be satisfied from “income” generated by assets inventoried during the six-month claim period. The court ordered that his claim could be satisfied “only from assets and the income of assets inventoried after the * six-month claim period.” From a later order approving the final report of the administrator for the assets listed on the supplemental inventory, Barnes appeals. He contends, inter alia, that his claim should have been satisfied out of the profits generated by the administrator’s operation of the decedent’s businesses after her death.

Barnes had instituted suit against Mary Worrell on September 17, 1976, complaining that an intoxicated patron of Mary’s Lounge had, while driving, collided with the automobile driven by Barnes and caused him personal injury. Over three years later, on October 23,1979, a jury found in favor of Barnes and assessed damages in the amount of $25,000. That judgment was subsequently reduced to the sum of $15,000 in order that it accord with the limits set forth in the Dramshop Act (Ill. Rev. Stat. 1979, ch. 43, par. 135). Barnes was awarded costs in the amount of $349.15. According to Barnes in his brief to this court, decedent’s dramshop insurance paid him $5,000 plus the costs of $349.15.

A little over a year before the jury verdict and almost two years after the institution of suit by Barnes, Mary Worrell died on July 19, 1978. Letters of administration were issued on August 22, 1978. Approximately four months later, on December 19,1978, the administrator filed the initial inventory, which included, as Item No. 5, the “[tjavern business” and, as Item No. 6, the “[m]otel business.” Notice to claimants was published, and on February 22, 1979, the six-month claim period of section 18 — 12 expired. Two months later Barnes, having learned of the death of Mary Worrell, made a claim, dated April 30,1979, against the estate. On May 4, 1979, he filed a motion in the dramshop action to substitute the administrator of the estate as party defendant in place of the decedent. On May 29,1979, the administrator moved to dismiss the claim of Barnes “as to the estate inventoried within six months from the issuance of letters and as to all of the estate listed in the aforesaid inventory.”

Approximately three months after Barnes filed his claim, the administrator on July 3, 1979, filed a “report of his acts and doings * “ 0 from August 22, 1978, through June 30, 1979.” There is a notation to the effect that the “[rjeceipts for tavern and motel operations are through April 30, 1979; only.” The first item of receipt is in the amount of $19,068.77 “[f]or tavern business operation known as ‘Mary’s Lounge’ and motel business known as ‘Holiday Manor.’ ” There is a direction to “see monthly statements for the period August, 1978, through April 1979, attached hereto.” The first item of disbursement is in the same amount of $19,068.77 “[f]or tavern business operation known as ‘Mary’s Lounge’ and motel business known as ‘Holiday Manor.’ ” The direction to see the same monthly statements follows, together with this statement:

“Except for current balances for each of the businesses, net has been distributed to William Wilkinson, Robert Wilkinson and Barbara Cooper [decedent’s children] who devote a substantial amount of their time to the tavern and motel operations.”

Each monthly statement includes under the heading of “Overhead Expenses” an item for “Wages,” which varied in amount from month to month from as little as $542 in one month to as much as $1,300.50 in another. The report contains a summary of the monthly statements for each of the two businesses. That summary indicates a total profit from the tavern business for the period from August 1978 through April 1979 of $10,631.15 and a total profit from the motel business for the same period of $8,437.62. The profits combined total $19,068.77. In this summary the administrator notes parenthetically as follows:

“(The above figures are not income tax statements; have not been adjusted to give consideration to the services of William Wilkinson, Robert Wilkinson and Barbara Cooper who devote a substantial amount of time to the business operations; also, note that the heirs have advanced substantial sums to the Administrator for the payment of funeral expenses, administration expenses and debts.)”

We note listed under “Deductions” on the Illinois Inheritance Tax Return filed April 30, 1979, a single debt in the amount of $28.40 owed to the Illinois Department of Revenue as the balance of decedent’s 1978 income tax; expenses of administration in the sum of $6,603.40, of which $5,600 constitutes the fee of the attorney; and funeral expenses in the amount of $1,390.25. The return indicates that no Federal estate tax is due. The total gross estate is listed on the return as $300,180.87.

Also on July 3, 1979, the administrator filed a first supplemental inventory listing assets not inventoried within six months of the date of issuance of the letters of administration. The combined value of the four items listed there was $993.68. The supplemental inventory did not include as assets any of the profits realized from the administrator’s operation of either of the two businesses. On November 28, 1979, the administrator petitioned for leave to make partial distribution of the estate. That same day an order was entered authorizing distribution of nearly all of the items included in the inventory filed on December 19, 1978, including items Nos. 5 and 6, that is the tavern and motel businesses. Over the objection of Barnes, the court ordered on January 17,1980, that his claim could be satisfied only from assets and the income of assets inventoried after the expiration of the six-month claim period. On April 1, 1980, the administrator filed a final report for the assets listed on the supplemental inventory. On May 16, 1980, an order was entered approving the final report for those assets on the supplemental inventory. It is from this order that Barnes appeals. Prior to entry of this order the parties had negotiated an agreed value of $1,000 as to the assets listed on the supplemental inventory. Barnes subsequently received that amount. Since Barnes has received from the estate the amount of $1,000 and the dramshop insurer $5,000, the amount of his unpaid claim against the estate stands at $9,000 plus interest.

The issue presented is whether profits generated by an administrator’s operation of a decedent’s business, inventoried within the six-month claim period, may be used to satisfy a creditor’s claim filed after the six-month claim period has elapsed but before the administrator has filed a petition for distribution of the estate so inventoried,

It is well settled that where a claim against an estate is filed and allowed after the expiration of the claim period, an order or judgment allowing such a claim must be special, ordering payment only out of assets which have not been inventoried within the claim period. (Messenger v. Rutherford (1967), 80 Ill. App. 2d 25, 225 N.E.2d 94.) As was said in In re Estate of Bird (1951), 410 Ill. 390, 396-97, 102 N.E.2d 329, 333:

“[I]t appears that although section 204 [repealed; now section 18 — 12] of the Probate Act is similar in a limited aspect to a statute of limitations in that claims filed after the 9-month [now six-month] period following the issuance of letters of administration may not be satisfied out of assets inventoried within that period, and has consequently been loosely referred to as a statute of limitations in some of the early cases, nevertheless, the courts have uniformly recognized that this section does not totally bar claims, as do general statutes of limitations, and that even if the claim is filed after the statutory period, it may be asserted against after-discovered assets, (People v. Small, 319 Ill. 437; Pufahl v. Estate of Parks, 299 U.S. 217;) or heirs and distributees of the estate, (Syndacker v. Swan Land and Cattle Co. 154 Ill. 220; Durflinger v. Arnold, 329 Ill. 93;) or other security. (Waughop v. Bartlett, 165 Ill. 124.)”

It is also well established that courts are not at liberty to create exceptions to section 18 — 12 or to provide late claimants relief through the application of equitable principles. As was said in In re Estate of Ito (1977), 50 Ill. App. 3d 817, 820, 365 N.E.2d 1309, 1311:

“No exceptions to section 204 [repealed; now section 18 — 12] may be engrafted upon it by judicial decision (Pratt v. Baker (1964), 48 Ill. App. 2d 442, 199 N.E.2d 307, cert, denied (1967), 389 U.S. 874, 19 L. Ed. 2d 157, 88 S. Ct. 165), and its application may neither be waived nor may the doctrine of estoppel be applied (In re Estate of Newcomb (1972), 6 Ill. App. 3d 1094, 287 N.E.2d 141). Moreover, where a legal claim should have been, but was not, filed against the estate within the statutory period, relief will not be accorded by the application of equitable principles. Wingate v. Pool (1860), 25 Ill. 102; Abrams v. Schlar (1960), 27 Ill. App. 2d 237, 169 N.E.2d 583; Austin v. City Bank of Milwaukee (1936), 288 Ill. App. 36, 5 N.E.2d 585; Alderson v. Estate of Alderson (1922), 226 Ill. App. 176.”

The purpose of the statutory claim period is to promote the early settlement of estates. Quoting, the court in Messenger v. Rutherford stated, “ ‘The purpose of the act in regard to the administration of estates was to facilitate their early settlement, and the limitation for the exhibition of claims 0 e e had that particular purpose in view.’ ” 80 Ill. App. 2d 25, 29, 225 N.E.2d 94, 97.

Although in our research we have discovered no case law treating the issue before us, we think that in view of the purpose of the claim period to facilitate the early settlement of estates, the position of the claimant here is well taken. Protecting profits derived from an administrator’s operation of a decedent’s business from any late claim — no matter how long such operation might be continued by an administrator — would not provide incentive to an administrator to seek early distribution of an estate. Distribution, by its nature, deprives an administrator of any further opportunity to operate a decedent’s business. Making profits derived from an administrator’s operation of a decedent’s business subject to a creditor’s claim that was filed after the six-month period would encourage an administrator to petition for distribution of an estate as soon as possible after the six-month claim period expires. For this reason we think that business profits generated by an administrator’s operation of a decedent’s business should be deemed in the nature of newly discovered assets for purposes of satisfying a valid claim against an estate filed after the expiration of the six-month claim period, in which the business itself was inventoried, but before the filing by the administrator of the petition for distribution of the business so inventoried. Indeed, we can think of no policy reason against such a holding.

The record is unclear as to whether the administrator operated the decedent’s businesses for the entire 15-month period between the decedent’s death and the filing by the administrator of his petition for distribution of the estate inventoried within the six-month claim period. But we know from the administrator’s report filed July 3, 1979, that he operated decedent’s businesses for a period of at least nine months after the decedent’s death at a declared profit of $19,068.77. There is in that report a notation to the effect that part of this sum, all of which the administrator had distributed to the decedent’s three children, was in the nature of compensation for their time spent on “the tavern and motel operations.” We note, however, that any compensation due the three for their efforts with respect to these businesses could have been listed as a business expense under the heading of “Overhead Expenses,” as was, for example, the item for “Wages.” The amount of profits declared would have been reduced accordingly.

It goes without saying that those who take under a will or by the law of descent and distribution receive whatever remains of an estate after payment of, among other things, legitimate debts against it. By our decision today Mary Worrell’s heirs receive no less than the law contemplates that heirs or legatees should receive, i.e., the tavern business whole and intact, undiminished in value. The claimant here presents a valid claim, a legitimate debt, against the estate, which apparently contains assets, by virtue of the administrator’s successful operation of decedent’s businesses prior to distribution, sufficient to pay that claim. We think that our holding accords not only with the purpose of the six-month claim period but also with the letter and the spirit of the law of descent and distribution.

Because of our disposition of this issue, we do not address the other issues raised by Barnes on appeal. We note that the effective date of section 18 — 12 of the Probate Code as it is set forth in the Illinois Revised Statutes published in 1979 (Ill. Rev. Stat. 1979, ch. llOM, par. 18 — 12) is January 1,1980. Thus, the statute as amended has no bearing on the case at bar, in which letters of administration were issued on August 22,1978.

In consequence of our holding we reverse with directions to allow the claim of Dennis Barnes to be paid from any profits derived from the administrator’s operation of decedent’s businesses, and we remand the cause for a hearing to determine the amount of such profits.

Reversed and remanded.

KASSERMAN, P. J., concurs.

Mr. JUSTICE KARNS,

dissenting:

This case may present an issue on which there is no precise precedent; however, the statute, as amended, and case law (see, e.g., Messenger v. Rutherford (1967), 80 Ill. App. 2d 25, 225 N.E.2d 94) persuade me that the claim filed here is barred as to the earnings of assets inventoried within the six-month claim period. It seems to me improper to separate the earnings from these assets any more than it would be to separate the interest earned on a bond inventoried within the six-month claim period.

The effect of the majority holding will be to discourage operation of decedent’s businesses by personal representatives, which benefit both claimaints, whose claims are timely filed, and heirs and legatees, who have a proper interest in the efficient administration of decedent’s estates, and to whom the personal representative owes the primary duty of prudent administration. I know of no reasoning that would support the majority’s statement that the early winding up of an estate is always indicated or desirable when it involves the operation of a successful business. In fact, section 19 — 6 of the Probate Act contemplates the necessity and desirability of continued operation of a decedent’s business. Ill. Rev. Stat. 1979, ch. 110/2, par. 19 — 6.

I would note that the majority holding allows the claim to be satisfied from earnings accruing within the six-month claim period even though these earnings were realized through the efforts of decedent’s children and only heirs, who quite understandably made no claim for wages inasmuch as no claim was filed against the estate and they were the sole beneficiaries. During the six-month claim period this claim was an unliquidated cause of action, not reduced to judgment. The solution reached by the majority does not seem to me to reach an equitable result.


author: Mr. JUSTICE WHITE

text:
    DONALD PAULIK, Plaintiff-Appellee, v. THE VILLAGE OF CASEYVILLE, Defendant-Appellant.
    Fifth District
    No. 80-482
    Opinion filed September 18,1981.
    David Vaught, of Dan Walker Law Offices, of Fairview Heights, for appellant.
    Stephen R. Rice, of Rice, Durso and Rice, of Belleville, for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

This is an appeal from the Circuit Court of St. Clair County, Illinois, in a mandamus action wherein the trial court granted plaintiff’s motion for summary judgment, ordered the plaintiff reinstated as a sergeant on the Village of Caseyville’s police department and awarded him back pay because of his wrongful discharge.

The Facts

The plaintiff, Donald Paulik, was a member of the Caseyville Police Department for a number of years. He was promoted to sergeant, then chief of police of the department on October 1, 1973.

On December 4, 1975, plaintiff was removed from the position of chief of police by action of the mayor and the board of trustees of the village. He was returned to the department as a sergeant.

Subsequently, charges were filed against the plaintiff by the then acting chief of police, Darrell Raymer, before the board of fire and police commissioners. The charges were set for hearing on May 17,1980. At this hearing the plaintiff, his attorney, an attorney for the Village and an attorney for the Board were present. At that time the plaintiff’s attorney filed motions attacking, among other matters, the jurisdiction of the board to hear the charges. He was successful in convincing the board of his position. The board held they did not have jurisdiction to hear the charges and all pending charges were dismissed by the board.

On May 22, 1980, the mayor and the trustees of the village held a hearing in the presence of the plaintiff and his attorney, heard evidence and discharged the plaintiff from his position as sergeant.

On June 23, 1980, the plaintiff filed his complaint for mandamus praying that the village reinstate him as a member of the village police department with a minimum rank of sergeant and compensate him for back pay.

Both parties in the mandamus action filed motions for summary judgment, hearings were held, the plaintiff prevailed and this appeal ensued.

Issues Before the Court

1. Since the plaintiff was successful in challenging the jurisdiction of the Board of Police Commissioners, is he now estopped from challenging the jurisdiction of the mayor and the Village Board of Trustees.

2. Should the trial court have awarded back pay.

Opinion

The defendant argues that since the plaintiff was successful in convincing the board of fire and police commissioners of the Village of Caseyville, Illinois, that they did not have jurisdiction to hear the charges filed before the said board, the plaintiff now is estopped to challenge the jurisdiction of the mayor and the board of trustees of the said village in discharging the plaintiff on May 22, 1980.

In this proceeding at the trial court level, the attorney for the plaintiff admits the board was in error on the jurisdictional ruling. We agree. Under the Illinois Municipal Code, the board of fire and police commissioners is given jurisdiction over matters such as this. The controlling statute is section 10 — 2.1—17 (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17). This statute states, “Except as hereinafter provided, no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.” It further states, “The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay.” The law in Illinois is well settled that when a municipality becomes subject to the provisions of the board of fire and police commissioners division of the Illinois Municipal Code (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—1 et seq.), the commissioners appointed under such provisions have exclusive jurisdiction to consider charges against a police officer which might subject him to discharge. (See Le Desma v. Village of Burr Ridge Fire & Police Com. (1978), 60 Ill. App. 3d 768, 377 N.E.2d 319; Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129, 302 N.E.2d 313.) Having determined that the board of fire and police commissioners of Caseyville had jurisdiction to hear the charges, we must now decide if the doctrine of estoppel is applicable and, if so, will estoppel confer jurisdiction upon the mayor and the village board where the plaintiff was instrumental in convincing the board it did not have jurisdiction.

“The general rule is that where a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts.” Dill v. Widman (1952), 413 Ill. 448, 455-56, 109 N.E.2d 765, 769.

The supreme court in Young v. Illinois Athletic Club (1923), 310 Ill. 75, 84, 141 N.E. 369, 372, stated that, “If both parties are equally cognizant of the facts and one has acted under a mistaken idea of the law, the other party cannot say he has been deceived thereby and is entitled to an application of the rule, but will be considered as having acted upon his own judgment solely.”

There is no question that both parties in this case were cognizant of the facts; the only dispute was on the law. The village’s attorney argued before the board that the board had jurisdiction, therefore the village should not be allowed to argue they have been misled or relied upon the plaintiff’s erroneous position.

It is a familiar rule in Illinois that if the court does not have jurisdiction over the subject matter, then the parties cannot confer jurisdiction by consent. (Toman v. Park Castles Apartment Building Corp. (1940), 375 Ill. 293, 31 N.E.2d 299.) We hold further that jurisdiction over the subject matter cannot be conferred by estoppel. (See 20 Am. Jur. 2d Courts §95 (1965).) Since the defendants did not have jurisdiction over the subject matter, any order entered was void. Toman.

The question of back pay is discretionary with the trial court. Absent abuse of discretion, we will not disturb the trial court’s finding.

The evidence shows the plaintiff has been unemployed since the date of his wrongful discharge; therefore, he is entitled to full back pay. People ex rel. Siegal v. Rogers (1947), 397 Ill. 187, 73 N.E.2d 316.

Affirmed.

KASSERMAN, P. J„ and JONES, J., concur.


author: Mr. JUSTICE JONES

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUANE MEDDOWS, Defendant-Appellant.
    Fifth District
    No. 80-187
    Opinion filed September 22,1981.

      John H. Reid and Brian D. Lewis, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Gillum Ferguson and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

A jury found the defendant, Duane Meddows, guilty of the murder of his father, Cletus Meddows, who died as a result of serious injuries sustained when dynamite exploded beneath him. The victim died on August 27, 1975. After having been found, first, fit and, later, unfit to stand trial, defendant was on February 1, 1977, once again found fit to stand trial. Thereafter the State brought an interlocutory appeal (People v. Meddows (1978), 67 Ill. App. 3d 995, 385 N.E.2d 765, cert, denied (1979), 444 U.S. 950, 62 L. Ed. 2d 320,100 S. Ct. 422), from an order of the trial court suppressing certain statements of the defendant and physical evidence seized from the trunk of his car. In that appeal we found that the suppressed evidence had not been “come at by exploitation” of an interrogation that occurred without benefit of Miranda warnings, and we reversed the suppression order of the trial court accordingly. In this appeal defendant raises two issues: (1) whether his consent for the search of his automobile and bedroom was voluntary, and (2) whether comments of the State’s Attorney during closing argument, in which he referred, according to defendant, to the accused’s failure to take the witness stand, served to deny defendant the opportunity for a fair trial.

We consider first the search of defendant’s bedroom. At the time of the explosion the victim and defendant were hunting along a dry creek bed. Investigating the incident, police found at the site evidence of a booby trap, including a 40-foot length of wire, a battery and 14 sticks of undetonated dynamite. As a deputy sheriff and a Federal agent were questioning defendant at the sheriff’s department two days after the incident occurred, they received a telephone call from another officer saying that one of defendant’s relatives, Clarence Buddy, had reported the presence of dynamite in the house trailer where the victim had lived with his wife, Carolyn Meddows, and defendant, her stepson. Also reported to be in the trailer were small children who had come with their family to attend the victim’s funeral. The officer calling with this information believed that the “Mr. Meddows” to whom Clarence Buddy referred as having dynamite in the trailer was the victim rather than his son. By the time this officer called the ones who were questioning defendant at the sheriff’s department, he had gone to the funeral home where Carolyn Meddows was and had obtained from her, after “a bit of a fainting spell,” oral consent to search the trailer. At the time she told the officer that she had seen dynamite in the defendant’s room, to which she had access.

At the hearing to suppress illegally seized evidence defendant did not testify, but one of the two officers who had been questioning him testified that upon receiving this information they believed they needed defendant’s consent to search his bedroom in the trailer. This officer said that prior to receiving defendant’s consent the two officers informed him that they had obtained Carolyn Meddows’ consent to search the trailer and that officers were on their way to the trailer but that they could not search defendant’s room without his consent. The officer testified that defendant, asked by the two officers what they would find at the trailer, responded that they would find dynamite, which defendant thereupon admitted having stolen from the coal mine where he worked as a “dynamite shooter.” Arrested for theft of the dynamite and advised of his rights, defendant then gave his written consent to search both his bedroom and his automobile. Thereafter, he indicated that at the trailer were relatives from out of town, including children, one of whom — four or five years of age — had, he said, helped clean defendant’s room from time to time. In response to questioning, defendant said that in the room, in addition to the dynamite, were blasting caps. At that juncture one of the two officers questioning him got on the dispatcher’s radio to advise those officers on their way to conduct the search of the trailer “to be careful, that there was definitely dynamite in his room and we asked them to wait until we got there.” According to the officer, when they arrived at the trailer they found “four or five” people in it, “a husband and wife and three children or two children, I’m not sure how many.”

At the suppression hearing the officer who had learned from Clarence Buddy of the presence of the dynamite in the trailer testified, “After he [Buddy] had given us this information, our main concern was an emergency type situation, if there was dynamite in that trailer.” The officer later reiterated this concern, at one time stating, “I know our main concern was to get to that trailer because of these children,” and at another testifying as follows:

“Q [State’s Attorney]: * * * [W]hen you went to the funeral home to get consent, you wanted to get into the trailer for the prime motive of the safety of the people there, is that correct?
A: To get * * * the dynamite out of that trailer with these kids being in the trailer, that was our number one concern.
Q: And in that regard, when you went there, you were going there assuming that that was Cletus Meddows’, the victim’s, dynamite and had no relationship to the defendant.
A: Yes, sir.
Q: So you weren’t motivated by gathering evidence as much as the safety of the people inside?
A: That was the main thing at the time was the safety of anybody around that trailer.”

The search of defendant’s room revealed 90 blasting caps, a roll of detonating cord and 96 sticks of dynamite. In the hallway of the trailer police found shot firing wire, numerous rolls of tape, including electrical and friction'tape, and several batteries.

Although defendant contends that the search of his bedroom was illegal because not obtained as a consequence of his voluntary consent, the State maintains that the warrantless search was legal for several reasons, including the existence of exigent circumstances, namely, the presence of dynamite in a residence where young children were visiting.

In Illinois the emergency exception to the warrant requirement is recognized. (People v. Lewis (1979), 75 Ill. App. 3d 259, 393 N.E.2d 1098. See also Bacigal, The Emergency Exception to the Fourth Amendment, 9 U. Rich. L. Rev. 249 (1975); Mascolo, The Emergency Doctrine Exception to the Warrant Requirement under the Fourth Amendment, 22 Buff. L. Rev. 419 (1973); Note, The Emergency Doctrine, Civil Search and Seizure, and the Fourth Amendment, 43 Fordham L. Rev. 571 (1975); ALI Model Code of Pre-Arraignment Procedure §§260.5 (1975).) It is well established that, under this exception, police may make a warrantless entry into private premises if they reasonably believe an emergency exists. (People v. Householder (1980), 81 Ill. App. 3d 31, 400 N.E.2d 988; Lewis; People v. Kepi (1978), 65 Ill. App. 3d 327, 382 N.E.2d 642.) The purpose — to offer assistance to a citizen possibly imperiled, not to obtain evidence of a crime — justifies such a search. (People v. Elders (1978), 63 Ill. App. 3d 554, 380 N.E.2d 10; People v. Swansey (1978), 62 Ill. App. 3d 1015, 379 N.E.2d 1279; People v. Lovitz (1976), 39 Ill. App. 3d 624, 350 N.E.2d 276, cert, denied (1977), 434 U.S. 842, 54 L. Ed. 2d 107, 98 S. Ct. 141.) As was pointed out in Lovitz, “Generally speaking, the entry and search of a private dwelling without a warrant is constitutionally prohibited except under circumstances where the police are confronted with an emergency which dictates the need for immediate action” (39 Ill. App. 3d 624, 629, 350 N.E.2d 276, 279), the need for immediate action precluding an opportunity to obtain a search warrant. The reasonableness of the belief that an emergency, a situation requiring immediate action, existed is determined by the entirety of all of the circumstances known to the police at the time of the entry. (People v. Clayton (1975), 34 Ill. App. 3d 376, 339 N.E.2d 783; People v. Brooks (1972), 7 Ill. App. 3d 767, 289 N.E.2d 207.) In Mincey v. Arizona (1978), 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408, the court stated,

“We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. * * * ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ Wayne v. United States, 115 U.S. App. D. C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” (437 U.S. 385, 392-93, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.)

Quoting Terry v. Ohio (1968), 392 U.S. 1, 26, 20 L. Ed. 2d 889, 908, 88 S. Ct. 1868, 1882, the court in Mincey continued with the caution that “a warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation.’ ” 437 U.S. 385, 393, 57 L. Ed. 2d 290, 300, 98 S. Ct. 2408, 2413.

In the case at bar the officer who had first learned of the presence of dynamite in the trailer testified unequivocally that the purpose of searching the trailer was to protect the young children in it from possible harm. At the time he learned about the dynamite in the trailer, the officer was under the impression that the dynamite had belonged to the victim and did not associate the defendant with it. The purpose of the warrant-less search, then, was not to obtain evidence of a crime in circumvention of the fourth amendment but to prevent possible disaster. The police had been told by three persons, Clarence Buddy, Carolyn Meddows and defendant himself, that dynamite was in the trailer where the victim, who died as a consequence of an explosion of dynamite, had lived and where defendant, who had just admitted stealing dynamite from the coal mine where he worked as a “dynamite shooter,” still lived. Police had also been told that young children, one of whom had helped to clean defendant’s room in the past, were staying at the trailer. The child who had previously helped defendant in his room could well have believed that he could go into defendant’s things on this occasion as well. Under the entirety of the circumstances known to police at the time of entry, the belief that an emergency existed was eminently reasonable. In our view the ensuing search for the dynamite, which revealed a vast array of explosive paraphernalia, was, as is required, strictly circumscribed by the extraordinary exigencies justifying its initiation. We therefore hold the search of defendant’s bedroom legal and the evidence seized as a result of it properly not suppressed. Because the search fell within the emergency exception to the warrant requirement, we need not consider whether defendant’s consent to search his bedroom in the trailer was voluntary.

We turn now to the search of defendant’s automobile. As has already been said, after the officers who had been questioning defendant received the telephone call with respect to Clarence Buddy’s information, they notified defendant that the trailer was to be searched pursuant to Carolyn Meddows’ consent. They advised him, however, that they could not search his room without his consent. Thereafter defendant consented in writing to the search of his bedroom and his automobile. Although the search of the trailer took place as soon as possible after police were notified of the presence of dynamite in the trailer where small children were, the search of the automobile did not take place until four days later. During that four-day period defendant’s late model automobile was at an automobile repair shop for work pertaining to the warranty, and those at the shop had access to all parts of the vehicle. The automobile was then towed to the basement of the jail, where, in defendant’s presence, several officers searched it, including the trunk. The officers testified at the suppression hearing that they wanted defendant to be present during their search of the automobile in case the vehicle contained a booby trap. The search of the trunk revealed part of a cardboard box used for shipment of motor oil. A lettered piece of cardboard that was used in the booby trap, and found at the site of the explosion, proved to be the segment torn from the cardboard box found in the trunk of defendant’s automobile.

In view of the fact that the defendant’s automobile was not searched for four days after police acquired the information about the dynamite in the trailer and the further fact that during this time workers at the automobile repair shop apparently could have had access to any part of the vehicle, there were no exigent circumstances with respect to the warrantless search of the automobile, nor does the State in its brief suggest that there were.

For defendant’s contention that his consent to the search of his automobile was not voluntary he relies heavily upon Bumper v. North Carolina (1968), 391 U.S. 543,20 L. Ed. 2d 797,88 S. Ct. 1788, in which the court held that there can be no consent when it is given only after the official conducting the search has asserted that he possesses a warrant. There the court said,

“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (391 U.S. 543, 548-49, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788,1792.)

In the instant case the defendant maintains that he merely acquiesced to a claim of lawful authority as indicated by the testimony of the officers at the suppression hearing. That testimony, defendant states in his brief, “clearly indicated that defendant gave his consent to search only after they had told defendant that agents were going to search the trailer with or without his consent.” Defendant omits any reference to the unequivocal and unrebutted testimony that the officers advised defendant that though they had obtained Carolyn Meddows’ consent to search the trailer, they could not search defendant’s bedroom in it without his consent. Rather than representing that they had lawful authority to search defendant’s bedroom without his consent, these officers represented that they did not have such authority and were, for that reason, seeking his consent. This consent was, of course, for the search of defendant’s bedroom. However, nothing in the record suggests that the officers at any time indicated to defendant that they had lawful authority to search his automobile without his consent.

Whether a consent has been voluntarily given and is not the result of duress or coercion, either express or implied, is a question of fact to be determined from all the circumstances. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) In his brief, citing People v. Shaver (1979), 77 Ill. App. 3d 709, 396 N.E.2d 643, defendant states that one of the circumstances to be considered is “the very atmosphere, or setting, where the alleged consent was obtained.” In Shaver the defendant was handcuffed and transported in a locked police van to the police station. The court held that these circumstances together with the surroundings at the station created a coercive atmosphere invalidating the defendant’s consent. Defendant in the case at bar likens his situation to that of the defendant in Shaver, saying,

“Similarly, the defendant in the instant case was transported to the station in a police car, was then interrogated for hours, and finally was confronted with the fact that the search to which he was being asked to consent was going to take place regardless of his own actions. Under these circumstances, defendant acquiesced to a search of his bedroom and his automobile. Clearly the atmosphere was not conducive to a free and voluntary consent.”

As we have just said, contrary to defendant’s assertions, defendant was not told that the search of either his bedroom or his automobile would occur with or without his consent. Furthermore, defendant neglects to mention that, according to the testimony, he was transported from the funeral home to the sheriff’s department in a police car because his own automobile was at the time in the repair shop and unavailable to him. Unlike the defendant in Shaver, this defendant was at no time handcuffed or in a locked vehicle. In fact, the officers testified that defendant was free to leave at any time during the afternoon of questioning until they arrested him apparently a few moments before he consented in writing to the search of his bedroom and automobile. In the middle of the afternoon, prior to his arrest, he was advised of his rights.

In United States v. Watson (1976), 423 U.S. 411, 424, 46 L. Ed. 2d 598, 609, 96 S. Ct. 820, 828, where the defendant had been arrested and was in custody when he gave his consent on a public street, though not in the confines of a police station, the court remarked,

“[T]he fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance.”

Our examination of all the circumstances in the case at bar discloses that the defendant’s consent was not the result of duress or coercion, either express or implied, but was freely and voluntarily given. We therefore hold the search of defendant’s automobile legal and the evidence seized during that search properly not suppressed.

With reference to the issue defendant raises as to the State’s Attorney’s comments during closing argument, the State argues — and this argument is borne out by the record — that the defendant failed to object to the remarks at the time they were made and likewise failed to include the point in his extensive written post-trial motion. The general rule is that the failure by a defendant to raise an issue in the written motion for a new trial constitutes a waiver of the issue so that it cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Furthermore, even if the prosecutor’s comments were, in fact, objectionable, the overwhelming evidence of defendant’s guilt in this case would have rendered any such error harmless.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.


author: Mr. JUSTICE HARRISON

text:
    CARL McVEY, Plaintiff-Appellant, v. UNKNOWN SHAREHOLDERS OF INLAND COAL AND WASHING COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 80-588
    Opinion filed September 22,1981.

      James W. Morris, of Barrett, Morris and Broom, of Carbondale, for appellant.
    George M. Twomey, of Twomey & Hines, of Carbondale, for appellees.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff Carl McVey appeals from an order entered November 6, 1980, dismissing a second amended complaint against the defendants Illinois Central Gulf Railroad Company (ICGR) and Central Illinois Public Service Company (CIPS). Plaintiff sued to quiet title to certain parcels of land located in Jackson County. The order dismissing the suit set forth various findings which plaintiff now challenges on appeal. We find each challenge well taken, and thus reverse and remand.

McVey’s second amended complaint alleged ownership of two parcels of land through which a railroad track runs. The parcel referred to by the parties as parcel No. 2 was conveyed to plaintiff by Alex Yankevich in 1958. In the 1958 warranty deed, parcel No. 2 was fully described with this clause appended: “Except the railroad right-of-way as now surveyed over said land.” Defendant ICGR acquired its interest in the disputed property in 1952 from Illinois Central Railroad (ICR), who obtained it 100 years earlier from grantor Jane Stephenson in an instrument entitled “Deed for Right-of-Way.” CIPS, co-defendant, whose interest derives from the interest of ICGR, claims under the terms of an easement which it acquired from ICGR and which runs adjacent to the railroad’s right-of-way.

On appeal, McVey characterizes the first issue as a construction of the grant of parcel No. 2 in his deed. The deed either excepts completely that strip of land over which the railroad right-of-way crosses (ICGR’s position), or it includes the entire tract in fee, “subject to” the railroad’s right-of-way over that strip (appellant’s position). After examining the exhibits attached to the complaint, the trial court held that the deed from Yankevich to McVey conveyed no title or interest to the right-of-way strip through parcel No. 2. Crucial to our determination that the trial court erred in its holding is our construction of the deeds, attached as exhibits to the second amended complaint. This case is before the court only on the pleading issue, and we are not making any determination on the merits; however, since the trial court may have relied on the exhibits attached to the complaint regarding the conveyances to the railroad in dismissing the complaint, it is necessary to point out that the language in these conveyances is not inconsistent with the position taken and pleaded by the plaintiff.

The question whether a particular deed to a railroad company conveys a fee or an easement requires construction of the instrument to determine whether the granting clause conveys a designated strip or piece of land, or whether it refers to a right or privilege with respect to the described premises. (See Spierling v. Ohl (1908), 232 Ill. 581, 584-85, 83 N.E. 1068.) In those instances in which the deed to the railroad conveys a definite strip or parcel of land with no language in the deed relating to the use or purpose of the grant or no language limiting the estate conveyed, the deed will be construed to convey a fee simple title. However, if the deed refers to a right-of-way to the railroad, particularly in its granting clause, then the deed will invariably be construed to convey an easement rather than a fee. (Walker v. Illinois Central R.R. Co. (1905), 215 Ill. 610, 615, 74 N.E. 812; Branch v. Central Trust Co. (1926), 320 Ill. 432, 442, 151 N.E. 284; Joseph v. Evans (1929), 338 Ill. 11, 20, 170 N.E. 10.) Even when the deed purports to grant a strip, piece, or parcel of land, but contains additional language referring to a right-of-way, the courts have held that the deed conveyed a mere easement rather than a title in fee. (Tollman v. Eastern Illinois & Peoria R.R. Co. (1942), 379 Ill. 441, 451-52, 41 N.E.2d 537.) In Tollman, a deed entitled “Right-of-way Deed” which provided that the grantors “convey and warrant” to the railroad for its right-of-way a strip of land along a line “located across and upon” certain described real estate was held to convey a right-of-way or easement. (See also Cleveland, Cincinnati, Chicago & St. Louis R.R. Co. v. Central Illinois Public Service Co. (1942), 380 Ill. 130, 135, 43 N.E.2d 993.) Thus, even when other language in the document appears to create an estate in fee simple, the court generally takes the position that such provisions do not operate to transform the easement conveyed by the granting clause into an estate in fee. (Tollman, 379 Ill. 441, 453.) It is, therefore, well settled in Illinois under language conveying a right-of-way that the railroad takes merely an easement. (Department of Public Works b Buildings v. Schmauss (1972), 6 Ill. App. 3d 470, 472, 285 N.E.2d 628.) This position has been recently confirmed in People ex rel. Carson v. Mateyka (1978), 57 Ill. App. 3d 991, 996, 373 N.E.2d 471.

Turning to the 1852 deed from Stephenson to ICR, we note by the caption of the deed (“Deed for Right-of-way”) that the grantor and the grantee contemplated a mere easement “over and through the following tract * * * for the purposes of constructing, maintaining and operating thereon a single or double track railroad.” The deed speaks several more times of conveying a “right-of-way,” and of such right-of-way being “over and through” the premises described. We cannot ignore the plain meaning and intent evidenced by this language. The 1852 deed to ICR conveyed easement rights only. These rights, and nothing more, were subsequently transferred to ICGR.

Reading the deed from Yankevich to appellant as compatible with our construction of the deed granting the railroad’s easement over parcel No. 2, we must properly construe the language in appellant’s deed to convey fee simple title to appellant, subject to the easement held by the railroad company across the tract. Our construction of the phrase “except railroad right-of-way as now surveyed over said land” not only accords with existing case law on the subject, it also conforms to the general use and purpose to which the land has been subjected over the past 130 years. We are not suggesting that the conveyance to the railroad indicates weakness in the railroad’s title, and therefore, strength in appellant’s title. We are only stating that for purposes of pleading, when considering all the exhibits attached to the subject complaint, the plaintiff has stated a cause of action.

ICGR quotes extensively from Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 360 N.E.2d 1115, where, in construing a deed from the plaintiff, we held that the phrase “excepting a strip of land of Lot 6 herein described as follows 9 9 did in fact operate to withhold from the grantee any interest or title to that excepted portion. ICGR mistakenly relies on this holding as support for its position that the phrase in Yankevich’s deed operates to prevent any interest or title to the right-of-way from passing to appellant. There is a critical distinction that should be drawn between the two deeds. In Pfeffer, the deed excepted a definite strip of land. It contained no references to right-of-way, easements, or right-of-way uses. In contrast, McVey’s deed excepts a right-of-way. It specifically refers to the strip of property in terms denoting an easement over the land. The former deed designated a “strip of land” which was not conveyed to the grantee; the latter recognizes a “right-of-way” or servitude upon the land, and conveys that land with the burden attached^ This distinction justifies a result opposite from that reached in Pfeffer.

Appellant next challenges the court’s third finding: that the legal description of parcel No. 3 was vague, indefinite, ambiguous, and failed to allege well-pleaded facts. McVey acquired his interest in parcel No. 3 from quitclaim deeds which described the parcel as 28 acres in the “east part of the southeast quarter of the southeast quarter of section 8.” Appellant concedes that the portion of the description is somewhat vague but maintains that, for purposes of a complaint in equity to quiet title, the allegations are sufficient to comply with Illinois civil practice requirements. (Ill. Rev. Stat. 1979, ch. 110, par. 42(2).) Pleadings must be liberally construed with a view to doing substantial justice between the parties. (Dinn Oil Co. v. Hanover Insurance Co. (1967), 87 Ill. App. 2d 206, 211, 230 N.E.2d 702.) Thus, a cause of action should not be dismissed on the pleadings unless it appears that no evidence could be adduced which would entitle the pleader to relief. O’Fallon Development Co. v. City of O’Fallon (1976), 143 Ill. App. 3d 348, 351, 356 N.E.2d 1293.

Finally, in McVey’s second amended complaint, he alleged that he owned parcel No. 2, except the railroad right-of-way over said land. He further alleged that he acquired title to the premises by the 1958 deed from Yankevich. The trial court found these allegations to be mere conclusions unsupported by well-pleaded facts. Of course, this finding hinged on the court’s erroneous construction of the Yankevich deed. Because we rejected its construction and decided that the deed transferred a fee simple title subject to the railroad’s easement, we also reject the trial court’s finding that the allegations were conclusory. Allegations of ownership such as those set forth by appellant in paragraphs 1 and 2 of his complaint are factual allegations adequate to support his claim.

In addition, the trial court concluded that because the allegations in appellant’s complaint failed to plead ownership of the property, he lacked standing to bring a quiet title action. (Ill. Rev. Stat. 1979, ch. 110, par. 48(1)(b).) Both parties agree that the rule set forth in Aebischer v. Zobrist (1977), 56 Ill. App. 3d 151, 154, 371 N.E.2d 1003, should apply here (i.e., a mere stranger to the title cannot complain about a cloud upon the title). Because McVey’s pleadings were sufficient to allege ownership of the disputed property, he did in fact have standing to sue. Thus, the trial court’s last finding is also erroneous.

The judgment of the circuit court of Jackson County is reversed, and this cause is remanded with instructions to reinstate the second amended complaint and for further proceedings not inconsistent with this opinion.

Reversed and remanded with instructions.

JONES and WELCH, JJ„ concur.


text:
      In re ESTATE OF MARGUERITE MORGAN, Deceased.—(EARL HIEBER, Petitioner-Appellant, v. SHERMAN EDWARDS, Ex’r of the Estate of Marguerite Morgan, Respondent-Appellee.)
    Fifth District
    No. 80-394
    Opinion filed September 25, 1981.
    Jack Williamson, of Vienna, for appellant.
    Lahr & Sibley, of Metropolis, for appellee.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

Earl Hieber, claimant below, appeals from a final order of the circuit court of Johnson County, denying Hieber’s claim against the estate of Marguerite Morgan, deceased, for the return of a $9500 down payment paid pursuant to a written sales agreement representing 10% of the purchase price of certain real property. Hieber also appeals the trial court’s denial of his claim for $9500 as liquidated damages for breach of the sales contract. Appellee has abandoned its cross-appeal. This appeal raises the issues of whether the trial court erred in holding that a deposit receipt and sales agreement executed by the parties was a legally enforceable contract; whether it was erroneous for the trial court to hold that Marguerite Morgan had complied with the terms of the contract; and whether the court erred in failing to hold that neither party was ready to complete the contract at the stipulated time. We affirm.

On October 5, 1978, Marguerite Morgan agreed to sell her land to Earl Hieber for the price of $95,000. The agreement was memorialized in a writing signed by both parties. The written agreement had been prepared by Mack Akins of Cox Real Estate Company of Vienna, Illinois. Hieber paid Morgan $9500 as a down payment.

The written agreement provides, in pertinent part, that “the seller, on receiving such payment at the time and in the manner above mentioned, shall at his own proper cost and expense execute, acknowledge, and deliver to buyer or to buyer’s heirs or assigns a proper deed with usual covenants accompanied by an abstract or title insurance policy evidencing marketable title * * (Emphasis added.)

The agreement further provides that delivery of a contract for deed would occur on the day of closing and that if either party failed or neglected “to perform his part of this agreement he shall forthwith pay as liquidated damages to the other party a sum equal to ten percent of the agreed price of sale.”

On October 9,1978, Cox Real Estate Company mailed an abstract of title to John W. Yoder, attorney for Hieber. On October 12, 1978, Yoder wrote Cox Real Estate Company requesting a more detailed description of the land and on October 16, 1978, Akins mailed Yoder a deed with the description of the property as transferred to Morgan. On October 19, 1978, Yoder mailed Hieber and Cox Real Estate Company a title opinion, in which he stated that the title was not merchantable. A commitment for title insurance was subsequently issued by Chicago Title Insurance Company which indicated that a missing deed existed; however, an endorsement to the original policy was issued on November 9, 1978, deleting the missing deed exception. On November 15,1978, Hieber indicated that he was unable to obtain financing, and Morgan agreed to extend the date of closing for 30 days. According to the testimony of Orlan Cox, of the Cox Real Estate Company, Hieber indicated on December 15, 1978, the extended closing date, that he was still unable to obtain financing and could not close the deal. Hieber did not make a demand for the contract for deed or the title.

Morgan died testate on August 18,1979, and her will was admitted to probate on October 10, 1979. Hieber commenced the action below on October 31, 1979. The circuit court of Johnson County denied Hieber’s claim on June 18, 1980. That court on July 7, 1980, denied Hieber’s post-trial motion for a new trial or vacation of the original order. This appeal followed.

Appellant’s first assertion of error is that the deposit receipt and sales agreement do not constitute a valid contract because the description of the property is too vague and therefore void for indefiniteness. The terms of the contract indicate that the description will be supplemented by the description in the deed. A contract for the sale of real estate is not void if extrinsic evidence will clarify the uncertainty. “It has been held that to satisfy the requirement of certainty in a real estate contract, ‘that is certain which can be made certain.’ (Guyer v. Warren (1898), 175 Ill. 328, 51 N.E. 580.)” (Ashline v. Verble (1977), 55 Ill. App. 3d 282, 284, 370 N.E.2d 613.) To establish that a contract for the sale of real estate is not void for indefiniteness, the trial court must be able to determine the parties’ intent. (See Ashline v. Verble (1977), 55 Ill. App. 3d 282, 284; Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 1052, 408 N.E.2d 496.) Our review of the trial court’s disposition of this issue is limited to whether the trial court had a basis for its determination consistent with the manifest weight of the evidence. (See In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57, 378 N.E.2d 800.) In view of the description in the deed, the trial court’s determination that the intent of the parties was certain is amply supported by the evidence.

Appellant also argues that to be valid and enforceable, a contract must be susceptible to specific performance. This court’s decision in Stevens v. Wilson (1980), 86 Ill. App. 3d 1047, 1050-51, vitiates this argument and differentiates an action for specific performance from an action challenging the mere validity of a land sales contract.

Appellant next raises the issue of Morgan’s compliance with the terms of the contract. Specifically, appellant contends that Morgan owed a duty under the contract to furnish evidence of marketable title without respect to Hieber’s payment of the purchase money. This is erroneous; the trial court could easily have found that the contractual language, reproduced above, did not give rise to a duty to transfer the deed or furnish evidence of marketable title until the purchase money had been received by Morgan. Further, Morgan owed no duty imposed by law to tender title before being paid. (See Haas v. Cravatta (1979), 71 Ill. App. 3d 325, 329, 389 N.E.2d 226.) Since Hieber failed to pay the purchase price, no duty to convey marketable title had arisen under the contract. Thus, appellant’s reliance on Swearingen v. Beyer (1934), 275 Ill. App. 152, 157, is misplaced because the contract in that case involved mutual covenants where neither party was obligated to perform before the other. The terms of the contract in the case sub judice are distinguishable in that payment by the purchaser is a clearly contemplated precondition to the seller’s duty to furnish marketable title.

Appellant’s final contention is that the trial court erred in failing to hold that neither party was ready to complete the contract at the stipulated time. Apparently, appellant again relies on Swearingen v. Beyer for the proposition that evidence of merchantable title was a precondition to the seller’s right to declare a forfeiture. As indicated above, the contract in the instant case differs from that in Swearingen in that, in the instant case, payment of the entire purchase price was the precondition to the transfer of deed. The rule governing our disposition of this issue was announced by our supreme court in Christopher v. West (1951), 409 Ill. 131, 98 N.E.2d 722.

“[H]e who desires to rescind the contract need only show nonperformance or inability to perform by the other. * * *. If [the buyer] at the time of the attempted rescission had a right to rescind and was correct in his position as to any of the claimed defects in title, tender of performance by him then would be meaningless, for [the seller] on that date could produce no better abstract than the one he delivered to the purchaser ” e °. If any claimed defect was such as to affect the merchantability of the title and one which was not cured or curable within a reasonable time as provided in the contract, no tender of the full purchase price was necessary. On the other hand, if the same was not material or was curable within a reasonable time, [buyer] had no correct basis in law for a rescission of the contract.” (Emphasis added.) (Christopher v. West (1951), 409 Ill. 131, 136-37.)

The trial judge could easily have found from the evidence that any defects in Morgan’s title were cured by her acquisition of the endorsed commitment for title insurance, and because time was not of the essence in this contract, that any defects were cured within a “reasonable time,” under Christopher. “A contract for merchantable title protects the buyer only from such defects as would cause a prudent purchaser to be apprehensive of future trouble. It does not provide him with a defense in the form of technical and unsubstantial objections, permitting him to renounce * * * and escape liability.” (Wilfong v. W. A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 338, 406 N.E.2d 828.) Morgan procured title insurance when notified of Hieber’s objection to the title. (See Christopher v. West (1951), 409 Ill. 131, 136.) Morgan took those steps reasonably necessary to correct the defects complained of by appellant. Therefore, no right of rescission existed in appellant’s favor.

Likewise, appellant’s claim for liquidated damages is dependent on a determination that Morgan breached the contract. Since we have found that appellee owed no duty under the contract which could have been breached by a failure to tender marketable title before full payment of the purchase price, we therefore uphold the decision denying appellant liquidated damages under the contract.

Accordingly, the judgment of the circuit court of Johnson County is affirmed.

Affirmed.

KASSERMAN, P. J., and WELCH, J., concur.


author: Mr. JUSTICE KARNS

text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE CO., Plaintiff-Appellant, v. GRINNELL MUTUAL REINSURANCE CO. et al., Defendants-Appellees.
    Fifth District
    No. 80-429
    Opinion filed September 25,1981.

      Craig & Craig, of Mattoon (Stephen L. Corn and Wesley J. Coulson, of counsel), for appellant.
    John E. Jacobsen and Mark J. Ballard, both of Campbell, Furnall, Moore & Jacobsen, P. C., of Mt. Vernon, for appellee Grinnell Mutual Reinsurance Co.
    Amling & Beyers, of Pana, for appellee D. J. McDermith and Roger McDermith.
    Carl W. Lee, of Gundlach, Lee, Eggmann, Boyle & Roessler, of Belleville, for appellee Bode Trucking, Inc.
    Dunham, Boman & Leskera, of East St. Louis, for appellees Shelby D. Null, Kathleen Null, Shelby Null, Jr., Dawn Null, and Charles Null.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

Plaintiff, Industrial Fire & Casualty Insurance Company, appeals from a declaratory judgment in the Circuit Court of Fayette County. The plaintiff sought a determination of liability coverage under a farmownersranchowners insurance policy it had issued to the defendant, Dr. D. J. McDermith. The court found that the policy covered an accident involving vehicles and cattle that occurred adjacent to the farm of McDermith’s son, Roger. The court found that the coverage extended to both Dr. McDermith and Roger, although the primary coverage for Roger was found to be the responsibility of defendant, Grinnell Mutual Reinsurance Company. The other defendants herein were parties in the lawsuit arising from the accident. The plaintiff has appealed the judgment-determining that its policy’s liability provisions cover the accident and that this coverage extends to both Dr. McDermith and Roger McDermith.

Plaintiff issued the policy to Dr. McDermith on September 15, 1972, for a term of 3 years. The policy provided both liability and casualty coverage. Dr. McDermith raised cattle on the premises listed in the policy. In September 1974, he deleted the casualty coverage on his cattle from his policy with plaintiff and replaced it with like coverage from Shelbyville Mutual Insurance Company. Dr. McDermith retained his liability coverage with plaintiff.

Roger McDermith purchased his farm in 1974. He obtained a policy of casualty and liability insurance covering the farm from Shelbyville Mutual, which was reinsured by defendant, Grinnell Mutual. Although Dr. McDermith cosigned a note to assist in his son’s purchase of the farm, Dr. McDermith did not take title to the farm, and it was not listed as an insured premises in his policy with plaintiff.

Prior to moving to his own farm early in 1975, Roger McDermith kept cattle owned by him on his father’s farm. Several of Roger’s cows were bred to bulls owned by his father. They had agreed that they would each receive half of the calves at the time the calves were weaned.

Several calves remained unweaned when the cows and calves were moved to Roger’s farm. He assumed possession and control of the animals. However, Dr. McDermith went to Roger’s farm periodically to see that Roger was looking after the cattle properly. Dr. McDermith assisted his son with fencing and other work on Roger’s farm.

On July 4,1975, a vehicular collision occurred on a road adjacent to Roger’s farm. In a lawsuit arising from this occurrence, it was alleged that a proximate cause of the collision was the presence on the highway of a cow and two calves from Roger McDermith’s farm.

Roger and Dr. McDermith made claims for their casualty losses through Shelbyville Mutual. Roger received compensation for the cow and his interest in the calves killed in the collision. Dr. McDermith was compensated for his interest in the calves.

Plaintiff contends that Roger was not an “insured” within the meaning of that term as defined in the policy. The policy section in dispute provided as follows:

“When used in this policy the following definitions apply: a. ‘insured’ means
O #
(3) Under Coverage G-Personal Liability and Coverage H Medical Payments to Others:
(a) with respect to animals or watercraft to which this insurance applies, owned by any Insured, any person or organization legally responsible therefor, except a person or organization using or having custody or possession of any such animal or watercraft in the course of his business or without permission of the tt a a » owner .

Under this provision, liability coverage is extended to a person who is legally responsible for animals to which the policy applies and which are owned by an insured. However, the person will not be covered if he has custody of the animals in the course of his business or without permission of the owner.

Plaintiff contends that the animals involved in the collision were not animals “to which the policy applies.” Plaintiff argues this phrase refers to whether or not casualty coverage was maintained on the animals in question. It is argued that Roger McDermith was not an insured under this provision because his father had deleted the casualty coverage under the policy prior to the occurrence.

We do not agree that this interpretation is necessary to give independent significance to the phrase “to which the policy applies” if in fact the expression was ever intended to be anything more than the drafter’s use of words in constructing the sentence in question in grammatical English. A less selective reading reveals that we are in fact confronted with the phrase “animals or watercraft to which this insurance applies.” There is an ambiguity as to whether the limiting words even apply to animals, rather than to watercraft alone. The latter interpretation is reasonable because a full reading of the policy reveals that exclusions are made pertaining to watercraft, while none are made pertaining to animals. Ambiguous expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer. (Canadian Radium & Uranium Corp. v. Indemnity Insurance Co. of North America (1952), 411 Ill. 325, 104 N.E.2d 250.) More to the point, we find nothing in the language of the policy to suggest that the existence of liability coverage in any way depends on the existence of casualty coverage.

Plaintiff also contends that the animals in question were not “owned by any Insured,” on the theory that Dr. McDermith’s only interest was a mere expectancy in the calves. Plaintiff relies on the rule that, in the absence of contrary agreement, the increase of all domestic animals belongs to the owner of the mother, with such ownership continuing until divested by some contract between the owner and some other person. 3A C.J.S. Animals §9 (1973).

Here the existence of a “contrary agreement” was established by the testimony of Dr. McDermith and Roger McDermith. In consideration of breeding services, care and housing provided by Dr. McDermith, he was to receive a half interest in the calves born of Roger’s cows. Possession was to be transferred by selecting half the calves after they were weaned. The fact that the calves involved in the accident had not yet been weaned, nor had selection been made, would not negate the existence of Dr. McDermith’s ownership in them.

Because Dr. McDermith, the named insured, was a part owner of the calves being kept on Roger’s farm, Roger was a person “legally responsible” for animals “owned by any Insured” within the meaning of the policy provision in question. The only remaining question is whether Roger was exempted from the definition of an insured by reason of his having possession of the animals “in the course of his business.” In the general conditions of the policy, farming was excluded from the definition of business. Defendants contend that the raising of cattle constitutes farming. Plaintiff, in its reply brief, concedes that the course of business exclusion does not apply here. Therefore, we hold that Roger McDermith was an “insured” as defined in the policy.

Finally, plaintiff contends that the following special exclusion to liability coverage applies:

“SECTION II OF THIS POLICY DOES NOT APPLY:
«#«
(3) to any act or omission in connection with premises, other than as defined, which are owned, rented or controlled by an Insured 0 0 0 ”

“Premises” for purposes of liability coverage are defined to include 0 ” all premises which the Named-Insured or his spouse owns, rents or operates as a farm or maintains as a residence and includes private approaches thereto and other premises and private approaches thereto for use in connection with said farm or residence, except business property 0 °

The defendants contend that Roger’s farm constituted “other premises 0 * 9 for use in connection with” Dr. McDermith’s farm. They note that Dr. McDermith assisted in work on his son’s farm and sought to assure that Roger properly cared for the calves. They rely on Davis v. Sheehan (1976), 43 Ill. App. 3d 449, 357 N.E.2d 690, which held that an insured’s right to use premises, together with actual use of them, rendered those premises within a definition identical to that in the policy here. Davis indicated that the “other premises” language extends the definition to premises other than those actually owned, leased or operated by the named insured, contrary to plaintiff’s argument here.

We find Davis persuasive and believe that on the evidence here, the trial court could have correctly concluded that Roger’s farm constituted other premises for use in connection with Dr. McDermith’s farm.

The trial court properly concluded that Roger McDermith was an additional insured under his father’s policy and that Dr. D. J. McDermith was covered as part owner of the calves. The judgment of the Circuit Court of Fayette County is accordingly affirmed.

Affirmed.

JONES and HARRISON, JJ., concur.


author: Mr. JUSTICE ALLOY Mr. JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID B. REIMOLDS, Defendant-Appellee.
    Third District
    No. 80-296
    Opinion filed September 30,1981.
    BARRY, J., dissenting.
    Warren T. McNeil, State’s Attorney, of Monmouth (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Craig E. Collins, of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

The State appeals from an order of the Circuit Court of Warren County granting the defendant David Reimolds’ motion to dismiss for failure to bring him to trial within 160 days of his demand for a speedy trial. (Ill. Rev. Stat. 1979, ch. 38, pars. 103 — 5(b) and 114 — 1(a)(1).) The State contends that the running of the 160-day period had been tolled by delays occasioned by the defendant.

On November 11, 1979, an information was filed, charging the defendant with armed robbery. Bond was set and posted. On November 21, 1979, demand for speedy trial was made. On November 29, a preliminary hearing was held, probable cause was found, and defendant entered a plea of not guilty, demanding a jury trial. On December 20, a pretrial conference was held, pretrial discovery order signed, and the cause placed on both the February pretrial conference calendar and the February jury calendar. On February 6, 1980, a pretrial conference was held, and the cause was placed on the April pretrial calendar. The State then indicated its intention of filing a motion to join related prosecutions and such motion was filed on March 20. On April 2, 1980, the following entry was made on the circuit court records:

“Asst. State’s Attorney present and Defendant’s Attorney present for pre-trial conference pursuant to notice. Following conference, by direction of Court, cause ordered to be palced [sic] upon the May, 1980, Jury Calendar.”

On April 15,1980, the defendant filed a response to the State’s motion to join related prosecutions, and a hearing was held on the issue on April 17. The defendant argued, inter alia, that “[j joining this cause with others for trial may result in delay, not only in actual trial itself, but also in the commencement of the trial.” The State’s motion to join related prosecutions was granted. On May 19, 1980, the defendant filed a motion to dismiss, along with an accompanying affidavit, maintaining that 160 days has passed since the defendant entered his demand for trial, that he has at all times been ready for trial, and that he has never requested or agreed to a continuance of this cause. On May 19,1980, a hearing was held, before a different judge, on the motion to dismiss. Only arguments of counsel were heard at that proceeding. On June 11, an order of dismissal was entered in the circuit court based upon the defendant’s speedy trial motion. The 160-day period subsequent to the November 21 trial demand expired on April 29, 1980.

The State contends on appeal that the 160 days had not lapsed, because the period had been tolled by delays occasioned by the defendant. (See Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b), (f).) The State argues that three such delays had, or may have, occurred.

“[A] defendant will be held to have waived his right to a speedy trial where by his affirmative act he has contributed to actual delay of the trial or where there has been an express agreement to the continuance on the record.” (People v. Cunningham (1979), 77 Ill. App. 3d 949, 952, 396 N.E.2d 876.) Where a continuance has been requested or agreed to by the defendant, no actual delay in the trial need occur in order to toll the statutory period. People v. Gooding (1975), 61 Ill. 2d 298, 335 N.E.2d 769.

The State contends that the defendant first occasioned delay when, on December 20, 1979, at a pretrial conference, the cause was set for further pretrial in February. The State contends that the defendant again occasioned delay when, at the February 6, 1980, pretrial conference, the cause was set for further pretrial in April. The State contends that the defendant also occasioned delay when he and his counsel sat silently at the April 2 pretrial, while the court set trial for the May jury calendar, a time beyond the running of the 160-day period.

The mere setting of dates for pretrial, on the court’s own motion, is not a delay attributable to the defendant. If, however, motions for continuance (including a motion by the court), are either made or affirmatively agreed to by the defendant, the rescheduling may be considered a delay “occasioned by the defendant.” (See People v. DeCarlis (1980), 88 Ill. App. 3d 634, 638, 410 N.E.2d 677.) No verbatim transcripts of the pretrial conferences were made and no bystander’s reports were prepared. The only record of these conferences is the court’s record sheet, which is silent as to whether there were any motions made, by either of the parties or by the court, to continue the cause.

The State contends that, because plea negotiation was ongoing throughout the course of these proceedings, the statutory period was tolled.. We cannot agree that the mere entrance into plea negotiation, a practice to be encouraged, tolls the statutory period. However, it has been held that actual delay resulting from the defendant’s activity in plea negotiation will toll the statutory period (People v. Ruple (1980), 82 Ill. App. 3d 781, 403 N.E.2d 129), as will any continuances asked for or agreed to by the defendant for the purpose of plea negotiation (People v. Santa (1976), 36 Ill. App. 3d 289, 343 N.E.2d 512).

The State further contends that the silence of defendant’s counsel on April 2, while the court set trial for May, i.e., beyond the 160 days, should be viewed as acquiescence in the scheduling and, therefore, a delay occasioned by the defendant. The only record of the April 2 proceeding, the court’s record sheet, quoted above, is ambiguous as to whether or not the trial date was set in the presence of defense counsel.

It has recently been held that “mere silence on [defendant’s] part did not amount to an agreement or to a waiver of his right to a speedy trial” when the court set trial for a date beyond the statutory period. (People v. Cichanski (1980), 81 Ill. App. 3d 619, 622, 401 N.E.2d 1315; People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876.) As such silence does not constitute an agreement by the defendant when the court sets trial for a date beyond the statutory period, it follows that silence does not constitute an agreement by defendant when the cause is continued, on the court’s own motion, to a date within the statutory period. See People v. House (1957), 10 Ill. 2d 556, 559-60, 141 N.E.2d 12, wherein continuances on the court’s own motion were held not attributable to the defendant, even after counsel had been appointed.

The record does not show any affirmative act by defendant which contributed to the actual delay of the trial. Nor does the record show any motion for continuance by the defendant or any express agreement to a continuance granted on motion of either the State or the court. No presumption can be raised from the silence of the record on this issue. (People v. Williams (1975), 27 Ill. App. 3d 778, 780, 327 N.E.2d 69.) However, if “it is not clear that a delay is attributable to the defendant, the court will inquire into the circumstances surrounding the granting of the continuance to ascertain if the delay was occasioned by the defendant.” (People v. Beyah (1977), 67 Ill. 2d 423, 427, 367 N.E.2d 1334; People v. Gooding (1975), 61 Ill. 2d 298, 301, 335 N.E.2d 769.) “When an issue of fact is presented by a motion to dismiss and the answer of the State the court shall conduct a hearing and determine the issues.” (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 1(d).) The affidavit of defendant’s attorney in support of defendant’s motion to dismiss, and the argument of the Assistant State’s Attorney at the hearing on defendant’s motion to dismiss, raise questions of fact which cannot be resolved by the record now before the court. Therefore, the record should be supplemented by a hearing to determine the actual events at the disputed proceedings. Accordingly, the judgment is reversed and the cause remanded to the Circuit Court of Warren County for an evidentiary hearing. Following such hearing, and based upon the complete record as supplemented thereby, the court shall rule on the defendant’s motion to dismiss.

Reversed and remanded.

HEIPLE, J., concurs.

Mr. JUSTICE BARRY,

dissenting:

I disagree with the majority’s decision reversing the trial court’s order dismissing defendant Reimold’s armed robbery charge and remanding this cause for a hearing to determine whether any pretrial delay was attributable to the defendant.

The majority writes: “The record does not show any affirmative act by defendant which contributed to the actual delay of the trial. Nor does the record show any motion for continuance by the defendant or any express agreement to a continuance granted on motion of either the State or the court.” (People v. Reimolds (1981), 100 Ill. App. 3d 598, 601.) With this observation I concur. However, I do not believe the record’s silence as to whom the pretrial delays in this case are attributable warrants a remandment for an evidentiary hearing on this subject. On a motion to dismiss criminal charges in the trial court due to a violation of the 160-day speedy-trial rule (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b)), the burden is upon defendant to show that he is not responsible for any pretrial delay. (People v. Cunningham (1979), 77 Ill. App. 3d 949, 396 N.E.2d 876; People v. Wilkins (1979), 77 Ill. App. 3d 179, 395 N.E.2d 1036.) According to the trial court, the defendant met this burden. In addition, where the record is silent a presumption arises that the delay is not attributable to the defendant (People v. Yates (1974), 17 Ill. App. 3d 765, 308 N.E.2d 679; see People v. Cichanski (1980), 81 Ill. App. 3d 619, 401 N.E.2d 1315). A complete reading of the motion to dismiss indicates the State was given every opportunity to rebut this presumption at the hearing on defendant’s motion to dismiss the charges, but failed to do so. In fact, the State’s only argument of note at that hearing, which was presented at the completion of the State’s argument, was that an additional evidentiary hearing should be held to determine what was in the mind of the judge that heard the earlier aspects of the case. I do not see the justification in presenting the State with yet another opportunity to refute defendant’s contentions. Put succinctly, the State had its chance to present such evidence. It received adequate notice of the hearing and was given sufficient time to respond to defendant’s allegations. A ruling in the State’s favor opens the door to unnecessary hearings, wastes judicial talent and the time and effort of judicial system personnel, and adds further costs, in this case as well as future cases.

On the basis of the record before us, I cannot find that the trial court abused its discretion in finding no pretrial delay attributable to defendant Reimolds (People v. Arch (1975), 33 Ill. App. 3d 331, 337 N.E.2d 221). Therefore, I would affirm.