text:
    The Department of Public Works and Buildings of the State of Illinois, Petitioner-Appellant, v. Howard E. Dixon, et al. (Don Frey and Dorris Frey), Defendants-Appellees.
    Gen. No. 65-53.
    Fifth District.
    March 28, 1966.

      William G. Clark, Attorney General, of Chicago (Harold G. Andrews and Richard E. Quinn, Special Assistant Attorneys General, of counsel), for appellant.
    A. F. Melvin and Charles D. Winters, of Marion (R. W. Harris, of counsel), for appellees.
   GOLDENHERSH, P. J.

Petitioner, the Department of Public Works and Buildings, appeals from the judgment of the Circuit Court of Williamson County in the amount of $16,000, entered upon a jury verdict in an action to condemn land owned by defendants, Don and Dorris Frey. The jury found the value of the land taken to be $4,000, and the damage to land not taken to be $12,000.

The evidence shows that defendants owned a 115 acre farm, that petitioner took 16.08 acres for the right of way of a highway and 1.5 acres for effecting a change in the channel of a creek, the change in the creek being made in order to better locate a bridge which carries the new highway over the creek bed. As the result of the construction of the highway and the change in the creek channel, defendants’ formerly almost rectangular parcel of land was trisected, leaving one parcel of 21 acres, west of the highway and north of the creek bed, a 14-acre parcel, west of the highway and south of the creek bed, and a parcel of 68 acres lying east of the highway. Title to the land taken was vested in petitioner in a “quick take” proceeding (Ill Rev Stats c 47, § 2.1 et seq. 1965), and at the time of trial the highway construction had been completed.

Four valuation witnesses testified for petitioner and five for defendants. Petitioner’s testimony as to the value of the farm ranged from a low figure of $12,500 to a high of $20,000; as to the value of the 17.58 acres taken, petitioner’s testimony ranged from a low figure of $1,500 to a high of $3,150. After the close of defendants’ case, petitioner offered rebuttal testimony as to the damage to that portion of defendants’ land which was not taken; this testimony ranged from a low figure of $3,750 to a high of $8,500.

Defendants’ witnesses valued the entire farm between $24,000 and $25,500, and each of them valued the 17.58 acres taken at $5,250. As to the damage to defendants’ land not taken, the testimony of defendants’ witnesses varied from a low of $12,500 to a high figure of $13,-700.

The petition for condemnation is in the usual form. Defendants filed a cross petition for damages to land not taken, and that there was such damage was not denied, the only issue being the amount of damage suffered.

Petitioner complains of a number of errors, only one of which need be considered in the decision of this appeal. At the close of all the evidence defendants filed a written motion seeking the right to open and close the argument to the jury. Over petitioner’s objections, the court granted defendants the right to open and close, and argument to the jury was had in that manner. Petitioner contends that this was reversible error and we agree.

In Liptak v. Security Benefit Ass’n, 350 Ill 614, 183 NE 564, the Supreme Court, at page 618, said: “The right to open and close is a substantial right coexistent with the burden of proof and is corollary thereto. Whenever the plaintiff has anything to prove in order to secure a verdict the right to open and close belongs to him. It is generally held that the right to open and close is not a matter resting merely in the discretion of the trial judge but is a substantial right in the person who must introduce proof to prevent judgment against him. The party who asserts the affirmative of an issue is entitled to begin and reply. (Citing cases.) ”

Whether, in an eminent domain proceeding, there is actually a burden of proof, as that term is ordinarily defined, has been the subject of considerable discussion. In Department of Public Works & Bldgs. v. Bloomer, 28 Ill2d 267, at page 270, 191 NE2d 245, the Supreme Court said: “While the condemnor bears the burden of proving the value of the land actually taken, the owner bears the burden of proof in seeking to recover for damage to the remainder.”

In the 1965 Additions and Revisions to Illinois Pattern Jury Instructions, in the Committee’s Comments at page 175 is found this statement “An analysis of the decisions stating that the condemnor had the burden of proving the value of the land actually taken, e. g., Department of Public Works & Bldgs. v. Bloomer, 28 Ill 2d 267, 270, 191 NE2d 245, 248 (1963), indicates that in using the term, ‘burden of proof,’ the courts mean only the duty to introduce competent evidence of value. No fllinois case places a burden upon the condemnor to persuade the jury that its evidence of market value is more probably true than not true or that a particular value must be proved by a preponderance or greater weight of the evidence. An Ohio court has specifically considered the problem and stated: ‘It has been established in Ohio that with reference to compensation for land taken there is no burden of proof.’ In re Appropriation by the Director of Highways, 201 NE2d 889, 120 Ohio App 273 (1963).”

In IPI instructions 300.31 and 300.32, there is placed upon the defendant in a condemnation case, the burden of proving that the taking of a portion of his property, or subjecting it to an easement, will cause damage to the land not taken. The language is almost identical to the burden of proof instruction to be used in other civil proceedings. (IPI 21.01).

In this case, since petitioner admits that there was damage to the land not taken, the burden, whether it be deemed to be the burden of proof, or as stated in IPI, the burden of introducing competent evidence of the value of the land taken, on the one hand, or competent evidence of the extent of damage to the land not taken on the other, the burden was equal. Petitioner, however, was required to introduce evidence of the value of the land taken, and had it failed to do so, the petition should have been dismissed, Mauvaisterre v. Wabash R. R. Co., 299 Ill 299, 132 NE 559. Had such dismissal occurred, there would have been no requirement that defendants offer evidence, since no land would have been taken.

In McReynolds v. Burlington & O. Ry. Co., 106 Ill 152, the petitioner, a railroad company, sought to condemn 614/ioo acres of a 256-acre tract and 9 acres of a 420-acre tract. The defendant owners filed cross petitions claiming damage to the remainder of both parcels. In considering whether defendants should be given the right to open and close, the Supreme Court, at page 157, said: “The general rule, as laid down in Wharton on Evidence, sec 357, is: ‘It may be stated, as a test of universal application, that whether the proposition be affirmative or negative, the party against whom judgment would be given as to a particular issue, supposing no proof to be offered on either side, has on him, whether he be plaintiff or defendant, the burden of proof, which he must satisfactorily sustain.’ The present proceeding is not one by the land owner to have an assessment made of his damages or compensation for the taking of his land, but it is a proceeding instituted by the railroad company to ascertain what is a just compensation for the land sought to be appropriated. By our State constitution the land can not be acquired without just compensation to the land owner, to be ascertained by a jury. The statute upon the subject contemplates that the jury are to ascertain the compensation ‘after hearing the proof offered.’ Should there, then, be no proof offered, the petitioner would be defeated. It would fail of having an ascertainment by the jury upon proof offered of what was a just compensation for the land, without which it would be unable to acquire the land sought to be appropriated. Under the rule, then, that the party entitled to begin is he who would have a verdict against him if no evidence were given on either side, we think the court below properly ruled that the petitioner should open and close.”

An examination of the annotation found at 73 ALR2d 618, leaves no doubt that the holding of the Supreme Court of Illinois that the petitioner has the right to open and close is the minority view, and the majority rule is to the contrary. Counsel for defendants have ably presented cogent arguments that the majority rule should be applied, but we are governed by the edict of the Supreme Court so clearly stated in Agricultural Transp. Ass’n v. Carpentier, 2 Ill2d 19, 116 NE2d 863, wherein at page 27, the court said: “Where the Supreme Court has declared the law on any point, it alone can overrule and modify its previous opinion, and the lower judicial tribunals are bound by such decision and it is the duty of such lower tribunals to follow such decision in similar cases.”

The judgment of the Circuit Court of Williamson County is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

MORAN and EBERSPACHER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GOLDENHERSH.

license: Public Domain

text:
    Dorothy Wagner, Plaintiff-Appellee, v. Mendell Wagner, Defendant-Appellant.
    Gen. No. 65-86.
    Fifth District.
    March 29, 1966.
    Henry G. Walker, of Carmi, for appellant; Kern and Pearce, of Carmi, for appellee.
   Opinion by

PRESIDING JUSTICE GOLDENHERSH.

Not to be published in full.


author: TRAPP, P. J.

text:
    Leroy Larsh, Plaintiff-Appellee, v. Green Gold Farms, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 10,682.
    Fourth District.
    March 10, 1966.
    Rehearing denied March 31, 1966.

      Brown, Hay and Stephens, of Springfield, for appellant.
    J. Waldo Ackerman, of Springfield, for appellee.
   TRAPP, P. J.

Plaintiff obtained a judgment in the amount of $38,928.90 by confession upon a note. Defendant appeals from the order of the trial court denying its motions to open the judgment by confession and to quash the writ of execution issued and denying motions to take the evidence deposition of the plaintiff, Leroy Larsh, and the discovery depositions of Frank W. Young and John M. Drennan, each of whom will be hereinafter referred to.

The defendant corporation was organized by one Frank W. Young on or about March 14, 1956, with the purpose of taking title to some 3,500 acres of land in Greene County, for which he had negotiated a contract of purchase. The corporate capital structure included the issuance of 3,500 shares of stock, all held by Frank W. Young, except one share issued to John M. Drennan, and one share issued to a Mr. Finger, who never again appears upon the scene. Young became the president of the corporatio2i and Drennan became its secretary. From the divers motions and supporting affidavits, it may be taken that all parties to the case agree that upon the advice of his accountant, Young also took 5 notes of the corporation, each in the sum of $30,000, with interest at 5 per cent due in 5 years. Frank W. Young is the payee in each note executed in behalf of the defendant, Green Gold Farms, Inc., by Young as corporate president and John M. Drennan as corporate secretary. As payee, Young is not described in any capacity other than individually.

Having engaged in substantial corporate borrowing from various sources, on October 30, 1960, the original shareholders sold their shares to Bankers Life & Casualty Co., and Young and Drennan resigned their respective corporate offices. It is set forth, by affidavit, that as a part of the transaction Young surrendered and delivered to the corporation the 5 corporate notes made payable to him.

On October 28, 1965, plaintiff obtained a judgment by confession upon a note purporting, on its face, to be executed by Green Gold Farms, Inc., through Frank W. Young as president, and John M. Drennan as secretary. The note, as shown by the photographic copy attached to the complaint, is dated March 14, 1956, and is in the principal sum of $30,000, due in 5 years, payable to Frank W. Young. Upon the reverse side, it bears the endorsement:

“Frank W. Young without recourse Nov. 16, 1959.”

On March 25, 1965, defendant filed a motion, which it is urged is sufficient as a motion to set aside a judgment as by default, and as a motion within the purpose and scope of sec 50 (6) of the Civil Practice Act (Ill Rev Stats c 110, § 50(6), 1963), and sec 83 of the Judgments Act (Ill Rev Stats c 77, § 83, 1963). Plaintiff moved to strike this motion upon the grounds that neither the motion nor the accompanying affidavits satisfied the requirements of Supreme Court Rules 23 and 15.

On April 7, 1965, defendant filed a motion designated as a motion to open the judgment by confession and to quash the execution, together with divers affidavits and a verified form of answer which it asked to be permitted to file. Plaintiff thereupon moved to strike this motion of the defendant, together with its affidavits, for failure to comply with Supreme Court Rules 23 and 15, (Ill Rev Stats c 110, §§ 101.23 and 101.15), and plaintiff in turn filed a series of affidavits. Defendant filed supplemental affidavits with an array of documents attached, and the parties exchanged motions to strike the other’s affidavits for failure to comply with the Eules designated.

On July 13,1965, the trial court entered the order from which this appeal is taken.

There is authority that an order denying a motion to vacate a judgment by confession is an appeal-able order. Conaghan v. Estes, 16 Ill App2d 373, 148 NE2d 8; Pickard v. Rice, 329 Ill App 185, 67 NE2d 425. These cases seem to parallel the rule, stated in Gebhard v. Brewers Malting Co., 185 Ill App 254, that where a motion to vacate a default judgment is denied, both the judgment and the order denying the motion to vacate the judgment are final orders and that the defendant has a right to appeal from either or both, but that appellate review is limited to that one which is appealed.

We believe that the disposition of this matter must be decided upon aspects which have not been directly referred to by counsel in their several briefs and arguments. In the latter, both parties agree that incident to the initial formation of the corporation, only 5 notes were issued on the date and in the amounts set forth, payable to Frank W. Young, as consideration for the land conveyed to the corporation. Plaintiff so describes the 5 notes as a part of the corporate capital structure and supports the position with the affidavit of the plaintiff and of one Turnbull, an accountant who advised Young upon the transaction. Defendant’s motion to open judgment alleges that only the 5 notes were issued by the corporation, and this is supported by the affidavit by one E. H. Weig, now president of the corporation, who asserts that the 5 notes were delivered to the corporation by Young and are now in its possession, and further asserts that the corporation is not now indebted to Young, the plaintiff, or any other endorsee of Young.

Plaintiff’s complaint has attached a photocopy of the note in the amount, dated and executed as the parties agree the fact to be. Defendant’s motion to open the judgment has attached photocopies of 5 notes, each in the amount, dated and executed as so agreed. Upon examination of the record it is patent that the note plaintiff relies upon is a small printed form with various blanks filled in, while each of the notes in defendant’s possession are on a large sheet and appear to be tailor-made as typewritten instruments. The wording of the conventional portions of a note with warrant of attorney varies between the instruments of the respective parties. Recalling that the parties agree that only 5 corporate notes, payable to Frank W. Young, were executed, it must be accepted that one party or the other does not possess a genuine instrument.

As stated in Sucher v. Nabenkoegl, 13 Ill App2d 248, 141 NE2d 648, the requirements of the Supreme Court Rules were intended to clarify established practice with regard to opening judgments by confession and were not designed to permit the trial of the case by affidavit. See also Walrus Mfg. Co. v. Wilcox, 303 Ill App 286, 25 NE2d 132. In determining whether or not the motion to open the judgment presents a defense which entitles the defendant to a trial upon the merits, the trial court should not inquire into controverted issues of fact to determine whether the defense is proven. Barrick v. Barnes, 46 Ill App2d 172, 196 NE2d 526; Freudenthal v. Lipman, 320 Ill App 681, 51 NE2d 794. In Walrus Mfg. Co. v. Wilcox, 303 Ill App 286, 25 NE2d 132, it is said that the reason for the rule stated is that otherwise a party may be deprived of his right to trial by jury, or that, in any event, there would be no opportunity to see, hear or cross-examine the witnesses if the merits of the defense were to be considered at the hearing upon the motion.

The motion itself is to be considered under liberal, equitable principles and the right to present the defense upon the merits is to be considered an exercise of the conscience of the court. Podbielniak v. Podbielniak, 60 Ill App2d 357, 208 NE2d 625; Alter & Associates, Inc. v. Zylvitis, 36 Ill App2d 195, 183 NE2d 750.

In this court, and apparently in the trial court, the argument of the respective parties has been directed to whether plaintiff is a holder in due course under the Negotiable Instruments Law and his rights as such, and whether Young was a corporate fiduciary so that under the provisions of the Uniform Fiduciaries Act, § 4 (Ill Rev Stats c 98, §237, 1963), the plaintiff was upon some notice in the transaction.

We believe that it first must be determined which instruments appearing in the pleading are genuine. In Krueger v. Dorr, 22 Ill App2d 513, 161 NE2d 433, it is said, at page 527:

“Under the Negotiable Instruments Law, so far as now material, Ch 98, Ill Rev Stats 1957, par 43, where a signature is forged or made without authority on a negotiable instrument, it is wholly inoperative. A forged note is by the common law absolutely void, unless it has in some way been ratified by the payor: Vannatta v. Lindley (1902), 198 Ill 40; Kolmar, Inc. v. Moore (1944), 323 Ill App 323;......”

See also Feltinton v. Rongetti, 337 Ill App 383, 86 NE2d 292.

The respective parties have a common source of title for the several notes, and from the pleadings before the court it seems fair and equitable to say that the issue of whether or not the plaintiff has a genuine instrument has been raised.

We find nothing in the record, or in a contemplation of the dates of the several transactions between Young and the respective parties in this cause, which justifies any judicial presumption as to which instrument or instruments constitute the genuine obligations of the corporation.

We find no substantial claim that defendant has failed in diligence and in prosecuting his motion to open the judgment. (Ill Rev Stats c 110, § 101.23.)

The order of the trial court denying defendant’s motion to open the judgment by confession is reversed and the cause remanded for further proceedings not inconsistent with the views as expressed herein.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: JUSTICE CRAVEN.

text:
    Leon Hall, Plaintiff-Appellee, v. Oliver Gerdes, Defendant-Appellant.
    Gen. No. 10,666.
    Fourth District.
    March 10, 1966.

      Anderson Law Offices, of Charleston (Jack H. Anderson, of counsel), and Roberts and Kepner, of Springfield (Maurice Kepner, of counsel), for appellant; Massey, Anderson, Gibson & Pearman, of Paris,' for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


author: STOUDER, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioner-Appellee, v. Al C. Hufeld, et al., W. James Patton, Trustee, Jefferson Trust and Savings Bank of Peoria, a Banking Corporation, Trustees, County of Peoria, and Unknown Owners, Defendant-Appellants.
    Gen. No. 65-7.
    Third District.
    March 11, 1966.

      Mathis, Sloan & Littler, and Cassidy & Cassidy, both of Peoria, for appellants.
    William G. Clark, Attorney General, of Chicago, for appellee.
   STOUDER, J.

This action was commenced by Appellee, Department of Public Works and Buildings of the State of Illinois, under the provisions of the Eminent Domain Statute. The Circuit Court of Peoria County entered judgment on the verdict of a jury awarding Appellant $102,828 for land taken and $36,838 for damage to land not taken.

In November 1958, Appellant purchased the approximately 100 acre tract involved. The tract is generally rectangular extending on its northern boundary 1,010 feet along Farmington Road. The tract extends southerly %o of a mile to Illinois Route 116. The property is located 3 miles west of the city limits of the city of Peoria and is 5 miles from the Peoria County courthouse. At the time Appellant purchased the property, a small racetrack was located on the northern portion of the premises and the balance was used for agricultural purposes. The property was zoned for residential use, a part for % acre residential sites and the balance for smaller residential lots. Appellant, a licensed real estate broker, purchased the property solely for residential real estate development purposes. After the purchase, the zoning of the premises was modified, permitting the entire tract to be used for the smaller residential lots, excepting two areas along Farmington Road, which were reclassified to permit commercial uses. The neighborhood is either residential or undeveloped land, one residential subdivision being located immediately to the west of the property and several others being located on the north side of Farmington Road.

In its plan for development of the tract, Appellant divided the property into three areas. A plat of area 1, being the most northerly 16 acres, was prepared and recorded. Area 1 was divided into 31 residential lots and 2 out lots, designated for commercial uses, said out lots fronting on Farmington Road and being located in the northeast and northwest corners of the property. At the time of the institution of this proceeding on October 10, 1961, the lots had been staked out, streets and curbs constructed and utility service extended into the area. Three houses had been constructed and fourteen of the lots had been sold, reducing the acreage, then owned by Appellant, to approximately 8% acres.

A plat of the middle portion of the tract consisting of 37 acres, which we shall refer to as area 2, was prepared and recorded. At the time of the institution of this proceeding nothing had been done in area 2 except rough grading.

Although a plat was prepared of the most southerly 47 acres, which we shall refer to as area 3, it was never recorded. Appellant claims that the plat was not recorded in order to avoid assessment of real estate tax on an individual lot basis. It appears however, that this plat was not prepared until approximately one month before the institution of this proceeding. At the time of the institution of this proceeding nothing had been done in area 3.

The above plans for the development of the entire area contemplated 193 residential lots, 2 commercial lots and a park of approximately 5 acres along the southern portion of the tract.

This proceeding was instituted on October 10, 1961, to acquire approximately 62 acres of the tract owned by Appellant to construct a highway. The part to be taken crosses all four boundaries of the property. The remainder of the property, after the taking and improvement, consists of a landlocked area in the southeast corner, an area in the southwest corner with no practical access and areas in the northeast and northwest corners with limited access, rendering each inappropriate for the original intended commercial use.

At the hearing, each party presented four valuation witnesses. All witnesses agreed that the highest and best use of the property was that of residential use and residential subdivision development either actual or potential.

Each of Appellee’s valuation witnesses used the same approach in arriving at his opinion of value. The individual characteristics of each area were considered in arriving at a value of the whole tract. Although the values expressed by Appellee’s valuation witnesses presented a range of difference of approximately thirty percent, the testimony of witness Thiemann is illustrative. He testified that in his opinion the entire tract had a value of $140,000. He arrived at this opinion by considering that the 17 lots still owned by Appellant had a completed value of $3,500 each or a gross value of $59,500. He then deducted his estimated cost of development of $26,000 leaving a net value, of area 1, of $33,500. He considered areas 2 and 3, a total of 83 acres, to be worth $1,000.00 per acre or $83,000 and that the two commercial lots were worth a total of $23,500. In his opinion the value of the 62 acres taken was $80,000 and the value of the remainder $60,000. His estimate as to the total damage to the remainder was $30,000, based on diminution in value of each of the four portions comprising the remainder.

Appellee’s valuation witness Maurer, placed a value on area 1 of $65,750. He considered the value of area 2 to be $1,000 per acre and that of area 3, $700 per acre. His value of the part taken was $92,375 with the remainder being damaged in the amount of $32,650.

Summarizing the testimony of Appellant’s valuation witnesses, the opinions of each concerning the value of the land taken and damage, ranged from $482,056 to $580,496. Each of Appellant’s witnesses, other than Weinstein, testified in terms of present market value. In arriving at a valuation of the entire tract they estimated the value of each lot in the entire tract on a fully developed basis, including the developed lots in area 1, the platted lots in area 2 and the proposed lots in area 3. Each then deducted his estimate of development cost and an allowance for the period of time during which the lots would be sold in arriving at his present value.

Appellant, in seeking a reversal of the judgment of the lower court, contends: first, that under the circumstances it was error for the court to hold that the constitutional right of Appellant to just compensation for property taken or damaged, was satisfied by measuring such compensation in terms of fair cash market value; second, that the court erred in failing to strike testimony of Appellee’s valuation witnesses when the opinions were based on hearsay; third, that the court erred in its rulings on evidence of comparable sales; fourth, that the court erred in admitting evidence of the price paid for the property by Appellant; fifth, that the court erred in excluding the valuation opinion of one of Appellant’s witnesses; sixth, that the court erred in restricting Appellant’s cross-examination of Appellee’s valuation witness and seventh that the court erred in the giving and refusal of instructions.

Appellant strenuously urges that his right to just compensation was violated because, under the circumstances, his recovery based on the fair cash market value of his property did not constitute just compensation. Appellant argues that the “subdivision theory of valuation” is the only approach which produces just compensation. Under this theory once a subdivision has been planned, the value of the subdivision is to be determined by estimating the sales price of each lot as and when completed and sold, the gross value of the subdivision being the total of the values of the individual lots. From the gross value are deducted estimated cost of development, expenses of promotion, taxes, and an adjustment relating to the expected period required to sell the lots. Under this theory the net value so produced is the value of the subdivision. Appellant concedes by his argument that this value is not the fair cash market value of the subdivision. Rather he argues that the subdivision approach is the only appropriate method of determining just compensation.

In Illinois, our courts have frequently considered the principle that private property shall not be taken for public purposes except on payment of just compensation. Courts of review have repeatedly held that in the interest of protecting both the property owner and the public, this principle requires that after the taking and improvement the property owner shall be neither worse off nor better off. In other words, the property owner must be recompensed for any loss that he sustains. City of Chicago v. Farwell, 286 Ill 415, 121 NE 795. The property owner’s loss is measured by the value of the property taken or damaged, namely its fair cash market value. The term “fair cash market value” has been so often defined by our courts and the principles and methods of its determination have been so often enunciated, they do not require restatement. Suffice it to say the uses of real estate both actual and potential, insofar as they relate to present value, are important and appropriate considerations. Every person owning real estate, particularly that devoted to business purposes, ordinarily expects to realize some gain, benefit or advantage in the future from the continued ownership of such property. However, the amount of the expected or hoped for gain, benefit or advantage is not the present value of the property. It is only to the extent such factors bear on present value that they are properly considered.

In examining the “subdivision theory of valuation,” as proposed by Appellant, we find it is basically a projection of future values and advantages which in and of themselves are considered to be the value of the property. Although such valuation or method thereof may be appropriate for some purposes, such as the apportionment of cost or profits, we do not deem it to be either an actual or appropriate measure of just compensation.

Appellant contends that because Appellee’s valuation witnesses employed the “subdivision theory of valuation,” in their opinions of the value of area 1, this is an admission of the validity of the valuation approach and it logically follows the same method should have been applied to the tract as a whole. Valuing a group of developed lots, taking into account the individual values and cost of development, does not necessarily involve the approach proposed by Appellant. In any event, the character of the actual use and potential use of areas 2 and 3 was markedly different from that of area 1 and under these circumstances different considerations were involved. Testimony of Appellee’s witnesses appropriately considered the actual and potential uses of areas 2 and 3 on a different basis than those of area 1.

The only exception to the “market value” concept by our courts is the “special use doctrine.” Under this exception it is well recognized that the use of property may be so unique or special that it is not ordinarily bought or sold and that therefore no “market” exists. City of Chicago v. Farwell, 286 Ill 415, 121 NE 795. Appellant does not contend that a subdivision or a subdivision development is such a use nor does he rely on Illinois cases discussing this principle; Appellant relies instead on U. S. v. Miller, 317 US 369, 374, 87 L Ed 336, 345; U. S. v. Toronto, 338 US 396, 94 L Ed 195 and U. S. v. Cors, 337 US 325, 332, 93 L Ed 1392, 1399.

These cases do recognize that market value may not always be an appropriate measure of the loss to which a property owner is entitled as compensation but they are not inconsistent with the “special use” exception as applied by our Illinois courts. The use of property for a subdivision or subdivision development is not a unique or special use of property. On the contrary, it is a frequent, common and ordinary use thereof.

Appellant contends that the court erred in failing to strike the testimony of Appellee’s valuation witnesses since their opinions were based on hearsay. These witnesses testified that they had examined court records, talked with other realtors and confirmed other sales by talking to buyers and sellers. However they considered such investigations as part of their general knowledge and experience. Each of the witnesses testified that he was familiar with the property in question as well as with the general real estate business in the Peoria area. Any person acquainted with a particular property may testify as to its value even though he is not engaged in the buying and selling of similar properties in that locality. Department of Public Works and Buildings v. Divit, 25 Ill2d 93, 182 NE2d 749. That the general knowledge and experience of an expert witness may be based in part on hearsay does not make such opinion incompetent. No error was committed by the court in its admission of the testimony of Appellee’s valuation witnesses.

We next consider the alleged error committed by the court in admitting and refusing evidence of sales of other properties, in permitting testimony of the purchase price paid by Appellant, and in permitting Appellee’s valuation witnesses to testify as to value of areas 2 and 3 on an acreage basis. The McCluggage tract, about 130 acres, was sold in 1959 for approximately $400' per acre. The tract is located one mile farther west from Peoria than the subject property on the same side of Farmington Road. Mrs. McCluggage testified that in 1958 a plan to plat the northern portion was made by an engineer in conjunction with the proposed sale of lots by a broker. Apparently the lots were staked out but after the death of the broker the project was abandoned. Appellant argues that neither the McCluggage property, at the time of its sale in 1959, nor the subject tract, at the time of its purchase by Appellant, were similar in that the actual use of each was for agricultural purposes. Appellant relies on City of Chicago v. Pridmore, 12 Ill2d 447, 147 NE2d 54, which holds that the sale of a developed subdivision was not a proper comparable sale relevant to the determination of value of raw undeveloped acreage. Appellant argues that the converse of this rule is applicable to the instant case. However the validity of this argument depends on an assumption which is not necessarily controlling under the facts in the record, namely that areas 2 and 3 were developed subdivisions. Merely planning or platting land does- not change the character of the land to the extent that valuation witnesses are limited to such considerations. Union Elec. Power Co. v. Sauget, 1 Ill2d 125, 115 NE2d 246. The actions of the owner of the McCluggage tract prior to its sale in 1959 indicate that the tract had residential subdivision development potential. Likewise Appellant’s admitted sole purpose in buying the subject tract was for its residential subdivision development potential. Areas 2 and 3 were also characterized as having the same residential subdivision development potential. Under these circumstances we believe that the court did not abuse its discretion in admitting this evidence and for the same reasons that it did not act improperly in failing to exclude testimony of Appellee’s valuation witnesses. We likewise believe that the court did not abuse its discretion in denying admission of evidence concerning the sale of property known as the “Hickory Hills” property. The evidence shows that “Hickory Hills” was dissimilar in that it was only 3% acres located 5 miles north of Peoria in a faster developing area.

Appellant contends that it was error to exclude the opinions of his valuation witness, Weinstein. We have examined the record of his testimony and can only agree with the Trial Court, that in the context of the issues to be determined by the jury, his testimony was so confusing that no clear conclusion could be drawn therefrom.

We consider Appellant’s objection to the court’s ruling on his cross-examination of Appellee’s valuation witness Manning not well-founded. Manning, a real estate broker, had developed a subdivision known as “Ward-cliff,” located northwest of Peoria. Examination of this witness revealed the dissimilarities between “Wardcliff” and the subject property. It was neither contended in the court below nor is it contended in this court that the purchase of “Wardcliff” was admissible as a comparable sale. On cross-examination Manning, in explaining his reasons for his opinion of value, made statements concerning the price he would or would not pay for property under certain conditions, some of such conditions being applicable to “Wardcliff.” To contradict his assertions Appellant then asked the witness what he had paid for “Wardcliff.” Appellee’s objection to the question was sustained. Appellant now contends that since Manning’s prior purchase of “Wardcliff” contradicted his assertions now made, the question was proper impeachment. We do not believe that the introduction of evidence of dissimilar sales under the guise of discrediting or impeaching a witness’s testimony is proper (Chicago & St. L. R. Co. v. Kline, 220 Ill 334, 77 NE 229). Permitting such testimony would allow the jury to consider evidence otherwise improper and irrelevant to the issues.

Lastly, we consider objections to instructions given and refused. The objections to the instructions, given at the request of Appellee, are that they limit and define just compensation in terms of fair cash market value. Since we have discussed this argument elsewhere in this opinion it will suffice to say that the instructions, to which objection was made, correctly stated the law applicable to the case. Likewise Appellant’s disagreement with the court’s refusal to give his instruction Number 1 is basically the same argument which we have heretofore decided adversely to Appellant. Instruction Number 1 was a correct statement of the constitutional requirement concerning just compensation. However the subject was adequately covered in other instructions and Appellant’s objection is essentially that he was not permitted to support his theory of compensation based on values other than fair cash market value.

Appellee’s instruction Number 3 provided “The Court instructs the jury that the highest and best use of the property in question in this case is its present actual use and you have no right to consider it for any lesser or lower use.” In other instructions the jury was appropriately instructed concerning the highest and best use of the property, in its relation to the jury’s determination of fair cash market value. Since potential residential subdivision development was an appropriate consideration in determining the highest and best use of the property we believe that an instruction referring only to the actual use of the property is misleading and properly refused.

Finding no error in the judgment of the Circuit Court of Peoria County the judgment is affirmed.

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


author: JUSTICE ABRAHAMSON.

text:
    Chester D. Meister, et al., Plaintiffs-Appellants, v. City of Wheaton, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 65-41.
    Second District.
    March 14, 1966.
    Gordon Moffett, of Wheaton, for appellants; Hartman E. Stime, City Attorney, and John R. Maekay, both of Wheaton, for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas A. Sauber, Defendant-Appellant.
    Gen. No. 65-79.
    Second District.
    March 14, 1966.

      Thomas 0. Flack and Jay M. David, of Chicago, for appellant.
    C. Robert Ohse, State’s Attorney, of Yorkville, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

We granted the Petition For Leave to Appeal of defendant-appellant, wherein he sought to reverse the judgment of the Circuit Court of the 16th Judicial Circuit, Kendall County, entered upon the jury verdict finding him guilty of the crime of burglary. The defendant was sentenced by the court to serve not less than three nor more than five years in the penitentiary.

The defendant urges that the judgment be reversed because the court erred in certain evidentiary rulings and in denying his motion for a continuance; that defendant was denied his constitutional right to a fair trial by the denial of his motion for continuance and by the incompetency of his counsel due to ill health; and that the proof submitted was not sufficient to sustain the verdict of the jury.

Ten witnesses testified on behalf of the People on direct examination and one in rebuttal: one witness testified on behalf of the defendant. Donald K. Espeland, his wife, 16 year old son, and daughter, came to a tavern known as the “Shamrock” about 6:00 a. m., on February 16, 1964. Espeland was employed to clean the tavern on Sunday morning of each week. Snow had fallen the night before and it was not yet light when he parked his car at the east rear of the tavern, prior to entering the front door on its west side.

Upon opening the door, he saw two men in the tavern, who later ran out the back door. Espeland closed the door and something struck it, breaking the glass portion thereof. He called to his son to catch one of the men. His son pursued and ultimately caught the man — who was later identified as Fred Larsen.

The other man escaped in a white compact car parked 60 to 70 feet south of the Corral Restaurant, which is adjacent to and west of the Shamrock. This man, according to two witnesses, was about 5 feet, 7 or 8 inches tall, of medium build, and weighed about 150 to 160 pounds— the same height, weight and build as the defendant. Two witnesses at the scene of the burglary saw the car; it passed one of them three times. This witness described the car as a ’62 or ’63 white Valiant. In making his getaway in the white car, the man drove across a vacant lot east of the Shamrock and turned north — through a deep depression — onto Route 34.

The Shamrock had been entered through a window next to the west door. The jukebox was smashed; the front was torn off the cigarette machine; the money-box had been pried from the pool table, and the cash register was damaged. Near the back door was a cardboard box packed with frozen meat, expensive whiskey and a portable radio. The cardboard box and the locks were bloodstained.

Fred Larsen — who was captured, subsequently convicted on a plea of guilty and sentenced for the crime of burglary — had known the defendant for ten years, and they had a sister-in-law in common, in Chicago. The defendant and Larsen drank together in an area tavern for about one and one-half hours the night before the burglary, having parted about 9:00 p. m. While in jail, Larsen told Sheriff Mundwiler that the man who was with him had a father-in-law in Millington, who had a business in Sandwich; and that the white car had been rented from the Econo Car Rental somewhere around Highland Park.

George Hoff testified that he operated the Econo Car Rental in Highland Park, and that on January 25, 1964, he rented a 1964 white Valiant car to the defendant, which was to be returned the next day. The car was recovered by Hoff on February 27, 1964, in a damaged condition, particularly the right front fender.

Sheriff Mundwiler talked with Larsen at the penitentiary and asked him if he would come back and testify. Larsen would not answer, but suggested then that Mundwiler get the other man’s son, “Randy,” who, he said, was with them at the time. The defendant had a nine-year-old son named “Randy” who was in the white compact Valiant car which was damaged at the front and driven by defendant to the home of his father-in-law at Milling-ton, a distance of about ten miles from the scene of the burglary, within an hour and a half after a man of similar size, weight and build fled from the scene of the burglary in such car.

Bernard C. Porter testified that he lived in Millington and had an accounting business in Sandwich; that the defendant was his son-in-law; that he saw the defendant at Millington between 7:40 and 8:00 a. m., on February 16, 1964; that the defendant was in a small white or grey car; that the bumper and front axle was full of mud and weeds; that defendant’s son “Randy” was in the car; that one of defendant’s hands was bandaged, and that defendant told Porter that he had hit a bridge and hurt his hand.

Joseph Sehleuker, another son-in-law of Bernard C. Porter, testified that the defendant came to Porter’s home in Millington at about 7:15 or 7:30 a. m., on February 16, 1964; that he was driving a white or cream-colored Chrysler, compact car; and that Sehleuker filled the radiator, and the defendant told him there was a hole in it.

Marion Elaine Sauber, stepdaughter of Bernard C. Porter and divorced wife of the defendant, testified on his behalf. She stated that the defendant picked her up in a white compact car, after midnight on Sunday, February 16, 1964; that they went to his father’s apartment and stayed there until about 4:30 a. m., at which time the defendant drove her back to the hotel where she worked, leaving her there at about 5:30 a. m.; and that the defendant had hurt his hand on the vent of the car window and had wrapped it in a handkerchief. However, on cross-examination, Mrs. Sauber testified that in a telephone conversation with her stepfather about 8:25 a. m., on February 16, 1964, she said she had not seen the defendant for two weeks.

In the direct examination, the State’s Attorney asked Larsen if he first met the defendant in the penitentiary and Larsen answered, “No.” After Larsen had so answered, counsel for defendant objected to the question on the basis that it implied that the defendant had been in the penitentiary. The court noted the objection and proceeded with the trial. The defendant urges that the court committed reversible error in permitting the State’s Attorney to ask, and the witness to answer this question. We note that the defendant offered no objection to the question until after it was answered in the negative; that no motion was made to strike the answer; and that the court never ruled on the objection. The negative answer would indicate an inference that defendant had not previously been in the penitentiary. Consequently, we find no prejudicial error in the foregoing sequel of evidentiary procedures.

Error is further urged by defendant in that the court permitted the People’s witness, Sheriff Mundwiler, to testify concerning statements made by Fred Larsen out of the presence of the defendant — when Larsen was not under oath, or subject to cross-examination. However, this testimony now complained of was not elicited from the witness on direct examination by the State’s Attorney, but rather was brought out by the attorney for the defendant on cross-examination, and he neither offered an objection thereto nor made any motion to strike it. The defendant, having asked for this information, cannot now object thereto (The People v. Villalobos, 20 Ill2d 315, 319, 169 NE2d 745 (1960); The People v. Henry, 3 Ill2d 609, 614, 122 NE2d 159 (1954)), and in addition, since no objection was made to the admission of such testimony in the trial court, objection thereto cannot be raised for the first time on review. The People v. Songer, 28 Ill2d 433, 436, 192 NE2d 861 (1963).

Defendant likewise contends that it was error to permit the People to cause Fred Larsen to be called as the court’s witness. Larsen, a known eyewitness to the crime, had expressed a reluctance to testify against the defendant, and it was not contested that the People could not vouch for his testimony. The People believed and requested that he should be made the court’s witness and subjected to cross-examination by both the defendant and the People.

The defendant’s objection to the request that Larsen be called as the court’s witness was:

“I object to Mr. Larsen being called as a court witness on the grounds that without Larsen there is no case against Sauber. It goes to the essence of the proof of the statement of the charge against this defendant. Any litigant, putting a witness on the stand, vouches for his client and the truth he is going to testify to. By having him called as a court witness, he is in doubt. He, the State’s attorney, is in doubt and, if he has any doubt, he should not have him on at all. I have nothing further to say.”

In The People v. Robinson, 14 Ill2d 325, 153 NE2d 65 (1958), at pages 333 and 334, the court stated:

“Since Carle v. People, 200 Ill 494, it has been the established law of this State that where the State’s Attorney, for a sufficient reason shown to the court, doubts the integrity or veracity of a witness, he is not required to call him as a witness for the People and vouch for his testimony, but such witness may be made the court’s witness and cross-examined by either side. (People v. Hundley, 4 Ill2d 244.) The purpose of this rule is to prevent a miscarriage of justice by having an eyewitness to a crime, for whose veracity neither party will vouch, fail to testify. (People v. Cardinelli, 297 Ill 116.)”

Under the law and the facts of this case, Larsen was properly called as the court’s witness.

We find no error in the trial court’s denial of defendant’s motion for continuance. Counsel of defendant’s choice appeared with the defendant in the circuit court on October 9, 1964, when defendant waived prosecution by indictment and consented to prosecution by information. On a plea of not guilty, the court set the case for jury trial on October 26, 1964. On that date, defendant’s counsel filed a motion for continuance which was granted, and the case was then set for jury trial on November 16, 1964. At that time, the case came on for trial. After empanelling a jury, defendant’s counsel again moved for a continuance, and the court granted in part and denied in part such motion, and continued the case for trial on November 18,1964.

The matter of continuance is within the sound discretion of the trial judge, and it is only where the record shows an abuse of such discretion that the conviction will be reversed. The People v. Harper, 31 Ill2d 51, 57, 198 NE2d 825 (1964); The People v. Clark, 9 Ill 2d 46, 49, 137 NE2d 54 (1956). We find no abuse of discretion and find that the cases cited by defendant are readily distinguishable factually from the case at bar— a single defendant case — which was neither complicated nor embraced novel points of law. The time elapsing between plea and trial was adequate for the preparation of this case. We also take judicial notice of the fact that Kendall County is small, and that petit juries are called in such counties only infrequently. The People v. Meyering, 345 Ill 449, 452, 178 NE 80 (1931); Worcester Nat. Bank v. Cheney, 94 Ill 430, 432 (1880).

It is also contended that the defendant was denied his constitutional right to a fair trial by the incompetency of his counsel due to ill health. However, any facts concerning the health of defendant’s chosen attorney are dehors the record and cannot properly be considered.

The record disclosed that the defendant’s defense was that of alibi, and that the testimony of his alibi witness was not convincing. Without factual support, the best of counsel cannot establish a defense to a charge. However, where, as here, the defendant had little or no defense, his counsel may have been inclined to gamble in connection with trial procedures, hoping to find the weakness of the case for the People, and to gain an acquittal thereby. Consequently, a retroactive appraisal of the trial strategy of defense counsel is a futile gesture, absent representation of such low caliber as to require a reversal, or such that the court, by failure to intervene, violates defendant’s right to a fair trial.

In The People v. Stephens, 6 Ill2d 257 (1955), at pages 259 and 260, 128 NE2d 731, the court stated the law on this subject, as follows:

“Where a defendant in a criminal case employs counsel of his own choice, his judgment of conviction will not be reversed merely because his counsel failed to exercise the greatest skill or for the reason that it might appear, in looking back over the trial, that he had made some tactical blunder. (Citations.) This court has said that ordinarily a defendant who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interests; that any other rule would put a premium upon pretended incompetence of counsel, for if the rule were otherwise a lawyer with a desperate case would have only to neglect it in order to insure reversal or vacation of the conviction. (Citations.) In People v. Reeves, 412 Ill 555, 562, 563, this court quoted with approval the language of Mr. Justice Minton in United States v. Ragen, 166 F2d 976, in which he pointed out that the best of counsel makes mistakes and that his mistakes, although indicative of lack of skill or even incompetency will not vitiate the trial unless on the whole the representation is of such low caliber as to amount to no representation and to reduce the trial to a farce.
“An examination of the record presented here leads to the conclusion that the most that can be said of the conduct of defense counsel is that he may have made some mistakes, particularly with regard to his failure to interpose objections when some should have been made. Few records examined in the light of sober second sight and calm reflection would fail to reveal situations where it might be said that counsel had not made the most of his opportunities. Human error is easily observed by those having the benefit of the second guess. ... On the whole record it cannot be said that the representation of defendant was of such low caliber as to require a reversal or that the court, by failing to intervene, violated defendant’s right to a fair trial.”

We adopt this statement and believe it applies to the situation in the case at bar.

Defendant also urges that the proof submitted was not sufficient to sustain the verdict of the jury. However, the case was well tried and the jury was properly instructed. It found the evidence of such clear and convincing nature as to establish defendant’s guilt of the crime charged beyond all reasonable doubt. From our examination of the record, we find no reason to substitute our judgment for that of the jury. It was within the province of the jury to believe the People’s witnesses and to disbelieve the defendant’s witness. People v. Nicholson, 55 Ill App2d 361, 370, 204 NE2d 482 (2nd Dist 1965).

Direct evidence of identification, or of any other fact, is not required. Such facts may be proven, and a conviction may be sustained by circumstantial evidence. The People v. Brown, 27 Ill2d 23, 25, 26, 187 NE2d 728 (1963).

Lastly, the defendant contends that the combined alleged errors, even though imperfectly presented or not properly preserved, deprived him of a fair trial; that under the doctrine of The People v. Coulson, 13 Ill2d 290, 296, 149 NE2d 96 (1958), the evidence in the case is so unsatisfactory as to raise a serious doubt of his guilt; and that under the theory of The People v. Burson, 11 Ill2d 360, 370, 371, 143 NE2d 239 (1957), the alleged errors should all be considered on the merits and the judgment reversed. The frailty of the defendant’s argument is that the evidence totally refutes his contention. Factually, this is not a Coulson type case. The errors alleged herein pertained largely to evidentiary and procedural rulings and not to novel, substantial questions, constitutional in nature, as in Burson.

In the case at bar, the evidence — direct and circumstantial — and the inferences therefrom, establish defendant’s guilt beyond all reasonable doubt. Consequently, the judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    School District No. 46, Kane, Cook and DuPage Counties, Illinois, a Body Politic and Corporate, Plaintiff-Appellee, v. A. J. Del Bianco, et al., Defendant-Appellant.
    Gen. No. 65-153.
    Second District.
    March 14, 1966.

      Gordon F. DeHart, of Aurora, and Leibman, Williams, Bennett, Baird & Minow, of Chicago, for appellant.
    Carbary, Carbary & Chapski, of Elgin, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This case involves the propriety of the order of the circuit court denying defendant’s motion, pursuant to section 2 of the Uniform Arbitration Act (Ill Rev Stats 1963, c 10, § 102), for an order on plaintiff and defendant to proceed to arbitration and to stay proceedings in said cause, and the appealability of such order.

Plaintiff, a School District, on March 1, 1962, entered into a standard form owner-architect agreement with defendant architect, whereby the defendant was to perform professional services in connection with the erection of the Streamwood Elementary School. The agreement outlined the basic services to be rendered by defendant; specified the extra services of the architect and the plaintiff’s responsibilities; defined construction costs as well as the architect’s expense; provided for payments to the architect and other routine matters; and provided for arbitration, as follows :

“Arbitration of all questions in dispute under this Agreement shall be at the choice of either party and shall be in accordance with the provisions, then obtaining of the Standard Form of Arbitration Procedure of The American Institute of Architects. This Agreement shall be specifically enforceable under the prevailing arbitration law and judgment upon the award rendered may be entered in the court of the forum, state or federal, having jurisdiction. The decisions of the arbitrators shall be a condition precedent to the right of any legal action.”

The Standard Form of Arbitration Procedure of The American Institute of Architects, by agreement of the parties, established the procedure to govern any arbitration conducted pursuant to the agreement.

Plaintiff filed a three-count complaint against the general contractor, the architect and the bonding company in connection with the construction of the Streamwood Elementary School. Count II, against the defendant architect, alleged the execution of the aforesaid agreement; performance by plaintiff; the duty of defendant to exercise the degree of skill and diligence contracted for in preparing plans, specifications and in superintending the construction of the building; his negligence in so doing to the extent that the building settled, causing cabinets, doorways and floors to become uneven and plumbing facilities to malfunction; that the school building has never been completed as a result of defendant’s failure to exercise such reasonable skill and diligence; demanded of defendant that he rectify such defective and improper work; alleged his failure and refusal to make repairs or replacements; and stated that plaintiff would be obliged to employ labor and procure materials to complete said school under proper plans and specifications, to its damage in the sum of $150,000.

After service of summons, defendant filed the aforesaid motion to stay the proceedings and for an order directing the plaintiff and defendant to proceed to arbitration. This motion alleged the execution of the contract; the arbitration clause therein; that the defendant had requested the plaintiff to submit to arbitration the disputes between them as alleged in Count II of the complaint ; and that defendant had failed and refused to comply with defendant’s request within a reasonable time.

The trial court denied this motion, and defendant filed motion for its reconsideration and a motion for finding pursuant to section 50(2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 50(2)), that there was no just reason for delaying an appeal from the order denying defendant’s original motion. These motions were denied and this appeal followed. The trial court properly denied defendant’s motion for such finding, but under our view of this case, such ruling was without consequence.

Defendant urges that jurisdiction lies here in that this is an interlocutory appeal under Supreme Court Rule 31 (Ill Rev Stats 1963, c 110, par 101.31) from the order of the trial court denying defendant’s motion for a stay order; and that the trial court should have ordered the plaintiff and defendant to arbitrate.

Plaintiff contends that the appeal is piecemeal, not authorized by Supreme Court Rule 31, and should be dismissed; and that the order denying the motion for arbitration was properly entered pursuant to sections 1 and 2 of the Uniform Arbitration Act (Ill Rev Stats 1963, c 10, pars 101 and 102).

The threshold consideration is the propriety of this appeal. It does not fall precisely within the interlocutory orders named as appealable in paragraph (1) of Supreme Court Rule 31. Defendant recognizes this circumstance, but argues that the motion for a stay was in effect a motion for an injunctional order, and that the order denying such stay constituted an appealable interlocutory order refusing an injunction under Supreme Court Rule 31(1).

This question was considered in Valente v. Maida, 24 Ill App2d 144, 164 NE2d 538 (1st Dist 1960). At pages 149 and 150, the court stated:

“Valente asserts that the order entered on October 23, 1959, in the first case is an injunctional order and appealable under Section 78 of the Civil Practice Act. The insurer says that the stay order is not an injunctional order and therefore not appealable. . . . In cases involving the interpretation of a statute providing for the reviewability of interlocutory injunctional orders the Supreme Court of the United States holds that a ‘stay’ order is synonymous with an injunctional order and therefore appealable. Enelow v. New York Life Insurance Co., 293 US 379; Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 US 449; Ettelson, et al. v. Metropolitan Insurance Co., 317 US 188. The acceptance of insurer’s argument would place a litigant who obtained a ‘stay’ in a better position than a litigant who obtained an ‘injunction.’ The courts will look to the substance rather than to the form. We are of the opinion that the ‘stay’ order entered in the first case is an in junctional order and appealable under Section 78 of the Civil Practice Act.”

Section 78 of the Civil Practice Act referred to in Valente was repealed, effective January 1, 1964, and Supreme Court Rule 31 was revised, effective on said date, to replace such repealed section.

In Shanferoke Coal & Supply Corp. v. Westchester Service Corp., 293 US 449, 55 S Ct 313 (1934), the Supreme Court had before it facts similar to the case at bar. At pages 451 and 452, Mr. Justice Brandéis pertinently stated:

“The order of the District Court denying the stay was not a final judgment appealable under section 128 of the Judicial Code, as amended (28 USCA Sec 225). Being an interlocutory order, it was appealable to the Circuit Court of Appeals under section 129, as amended (28 USCA Sec 227), only if the denial of the stay should be deemed the denial of an injunction. Compare General Electric Co. v. Marvel Co., 287 US 430, 432, 53 S Ct 202, 77 L Ed 408. That question we must determine. . . . For the reasons stated in Enelow v. New York Life Insurance Co., 293 US 379, 55 S Ct 310, 79 L Ed 440, decided this day, an order granting or denying a stay based on an equitable defense or cross-bill interposed in an action at law under section 274b (28 USCA Sec 398) is appealable under section 129, as amended (28 USCA Sec 227). We are of the opinion that the special defense setting up the arbitration agreement is an equitable defense or cross-bill within the meaning of section 274b, and that the motion for a stay is an application for an interlocutory injunction based on the special defense.”

Likewise, we conclude that the order denying plaintiff’s motion for stay was not a final order or judgment appealable to this court under section 7 of article VI of the Illinois Constitution, but rather it was an interlocutory order appealable to this court under Supreme Court Rule 31 only if the denial of the stay should be deemed a denial of an injunction; and that the motion for stay was, in substance, an application for an interlocutory injunction based on the affirmative defense of arbitration.

The power to grant or refuse such stay appertains to equity in the enforcement of equitable principles, and amounts to granting or refusing injunctive relief. The use of injunctions to stay actions at law was almost coeval with the establishment of chancery jurisdiction. Pomeroy, in his work on Equity Jurisprudence, 3rd Edition, Volume III, section 1360, page 393, stated:

“It is no exaggeration to say that, during its formative period, the equitable jurisdiction was built up through the instrumentality of the injunction restraining the prosecution of legal actions, where the defendants sought the aid of chancery which alone could take cognizance of the equities that would defeat a recovery at law against them. This was not accomplished, however, without a long and severe opposition from the common law judges, which continued until the reign of James I. The jurisdiction then firmly established by judicial authority, has never since been questioned.”

In the case at bar, it matters not that the application for stay order was heard in the pending proceeding rather than in a separate suit for injunctive relief. Under the broad principles of the Civil Practice Act (Ill Rev Stats 1963, c 110), there is an unlimited power to join and plead claims and defenses without reference to their legal or equitable character, subject to the power of the court to order separate trials on any of the issues when it is deemed expedient.

The application was for a stay order, injunctive in nature, and its denial was in effect the denial of an im terlocutory injunction. Consequently, such order was appealable under Supreme Court Rule 31 and the plaintiff’s motion to dismiss the appeal — which was taken with the case — is denied.

The Uniform Arbitration Act (Ill Rev Stats 1963, c 10, pars 101-123), adopted in 1961, substantially follows the Uniform Act promulgated by the National Conference on Unform State Laws, adopted in 1955. The prior Illinois Act related only to existing controversies (Cocalis v. Nazlides, 308 Ill 152, 139 NE 95 (1923)), and it had been under criticism for a considerable time because of its failure to provide a modern framework within which the arbitration mechanism could function. Under both the common law and the prior Illinois Act, the restrictive pressures of judicial decisions had rendered arbitration practically nonexistent. (A Uniform Arbitration Act for Illinois? U of Ill Law Forum, Vol 1965, Summer No. 2, page 297, et seq.)

Section 1 of the Illinois Uniform Act granted legal validity and enforcement to arbitration agreements to settle future, as well as existing disputes. Section 2(a), (b), (c) and (d) of the Act, empowered the court upon application of a party, to compel arbitration; to stay arbitration; to stay court action pending arbitration; and section 2(a) and (b) expressly authorized a court to protect a party from being compelled to submit to arbitration in the absence of an agreement to do so. See: Historical and Practice Notes, Herbert B. Olfson, SH Ill Anno Stat, Chap 10, sec 102; and Some Comments on Arbitration Legislation and the Uniform Act — Maynard E. Pirsig — 10 Vanderbilt Law Review, page 685, et seq. (1956-1957).

To our knowledge, there are neither Illinois legislative records disclosing specific legislative intent underlying these statutory provisions, nor cases construing this Uniform Act with reference to the conflicting contentions of the parties concerning the arbitrability of disputes such as the one in litigation. Under such circumstances, it has been properly held that “the records of the National Conference of Commissioners on Uniform Laws, and particularly the writings of the chairman of the subcommittee that undertook the drafting of the Act, disclose that the problem of judicial interference with the question of arbitrability was intended to be governed by section 2 of the Uniform Act. . . .” Layne-Minnesota Co. v. Regents of University of Minnesota, 266 Minn 284, 123 NW2d 371, 376 (1963).

In the case at bar, the parties expressly agreed to submit to arbitration “all questions in dispute under this Agreement.” However, plaintiff argues that the agreement to arbitrate does not require it to submit those controversies arising out of the relationship of the parties, and that the questions in dispute so arose and are not within the terms of the arbitration agreement. This case is before us on Count n of the complaint and the aforesaid motions, and under this posture it may be said that the intention of the parties, as to the scope of the arbitration agreement, is fairly debatable. This poses a question of construction of section 2 of the Act and the contract as to whom, under these circumstances — the court or the arbitrators — shall make this determination.

If the dispute is clearly within the arbitration clause, the court should order arbitration. However, if the dispute is clearly not within the clause — as in the case where the agreement was limited to disputes as to the quantity requirements of the purchaser, and the claim sought to be arbitrated was for damages due to the inferior quality of merchandise delivered — then there is no agreement to arbitrate, and the court should deny arbitration.

However, if the dispute is over the scope of the issues intended to be submitted to arbitration and they are not clearly defined in the arbitration clause or agreement, as in the case at. bar, then a construction by the court of the clause or contract in the light of section 2 would end in destroying the agreement of the parties that a specific term or the terms and meaning of the arbitration clause should be determined by the arbitrators. See: Arbitrability and the Uniform Act — Maynard E. Pirsig— 19 Arbitration Journal, page 154, et seq. (1964); and Some Comments on Arbitration Legislation and the Uniform Act, supra.

If such terms and meaning are determined by the court in defining the scope of the issues to be arbitrated, then there is only the limited factual question left for the arbitrators to consider. We believe it within the contemplation of section 8 of the Act (Ill Rev Stats 1963, c 10, par 108), unless the arbitration agreement provides otherwise, that the parties are presumed to agree that everything — both as to law and fact — necessary to a decision, is included within the authority of the arbitrators. See: Continental Materials Corp. v. Gaddis Min. Co., 306 F2d 952, 954 (CA 10th, 1962).

Where there is an agreement to arbitrate and its scope is reasonably in doubt, the issue of arbitrability should be initially determined by the arbitrators, subject to the protective reservations of section 12 of the Act— under which the court may vacate an award under the varying conditions therein specified. Layne-Minnesota Co. v. Regents of University of Minnesota, supra, pp 377, 378.

This view is further buttressed by the fact that under section 11 of the prior Act (Ill Rev Stats 1959, c 10, par 11), fraud, corruption or other undue means, misbehavior by the arbitrators, and legal defects, were the only grounds for vacating an award, while under section 12 (a) (5) of the new Uniform Act (Ill Rev Stats 1963, c 10, par 112(a)(5)), upon application of a party, the court shall vacate an award where: “There was no arbitration agreement and the issue was not adversely determined in proceedings under section 2 and the party did not participate in the arbitration hearing without raising the objection; . . . .” If it was intended that the court should initially determine such issue of arbitrability, there would be little reason for placing authority in the court to vacate an award where the arbitrators, in making an award, exceeded the scope of the arbitration agreement.

It is also significant that section 2(b) of the Act provides that upon preliminary application, the court shall summarily determine the issue of arbitrability, and section 2 (e) specifies that the court is barred from refusing arbitration “on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown,” while upon application to vacate the award under section 12(a) (3) — which provides for the vacation of an award where the “arbitrators exceed their powers” — there is no statutory restriction upon the power of the court.

The foregoing provisions of the Act militate against the contention that a party to an arbitration agreement may choose between the judicial or arbitration forum. The sole issue under the Act on the preliminary hearings to compel or stay arbitration, is whether there is an agreement to arbitrate. If so, the court should order arbitration; if not, arbitration should be refused. Upon this simple formula, the preliminary hearings on such issue should be determined. See: Some Comments on Arbitration Legislation and the Uniform Act, supra.

If arbitration fails to dispose of the controversy, the parties may then litigate the issues of arbitrability, and the arbitration proceeding which took place should be an aid to both the litigants and the Court in the subsequent court hearings. Layne-Minnesota Co. v. Regents of University of Minnesota, supra, p 377.

Arbitration — as settlements, releases and covenants not to sue — simply removes controversies from the area of litigation. It is looked upon with favor by federal, state and common law. Reserve Min. Co. v. Mesabi Iron Co., 172 F Supp 1, 9 (DC Minn 1959), affirmed 270 F2d 567 (CA 8th, 1959). Further reason for such view is found in the crowded condition of court dockets throughout the nation.

Even though resort to courts is authorized, the basic intent of the Act is to discourage litigation and foster the voluntary resolution of disputes in a forum created, controlled and administered by the agreement to arbitrate. (Layne-Minnesota Co. v. Regents of University of Minnesota, supra, pp 374, 375.)

The Uniform Act contemplates that arbitrators will be men who understand the terminology, practices, customs and usages of the trade, business or profession involved in the dispute — men, who can bring knowledge, expertise and understanding to the solution of the controversy. It encourages the self adjustment of minor disputes, subject to court supervision, with due recognition of the right to present material evidence, to cross examine witnesses, to have the aid of counsel, and to all procedural safeguards of an orderly hearing, including notice. It vests in the arbitrators power to subpoena witnesses and records, administer oaths, and to permit the taking of evidence depositions in a proper case. Ill Rev Stats 1963, c 10, pars 105, 106 and 107. It was designed to meet the dynamic commercialism of today. (A Uniform Arbitration Act for Illinois ? supra.)

When the plaintiff and defendant executed the contract in question, containing the aforesaid arbitration clause, the Uniform Act was in force in Illinois, and it was deemed a part of the contract the same as though expressly incorporated therein. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 544, 165 NE2d 286 (1960). The parties were then irrevocably committed to arbitrate “all questions in dispute under this agreement.” (Ill Rev Stats 1963, c 10, par 101.)

In view of these circumstances, the trial court erred in denying defendant’s motion to stay the proceedings and erred in refusing to direct the plaintiff and the defendant to proceed to arbitration. Consequently, such orders of the trial court are reversed and the cause is remanded with instructions to proceed in accordance with the views expressed herein.

Reversed and remanded with instructions.

MORAN, P. J., concurs.

ABRAHAMSON, J., dissenting.


author: MR. JUSTICE MORAN

text:
    Kenneth Cobb, et al., Plaintiffs-Appellants, v. Uplands Hardware Corp., Nelson Kuntz, and Jefferson Trust & Savings Bank of Peoria, Defendants-Appellees.
    Gen. No. 65-36.
    Third District.
    March 17, 1966.

      McConnell, Kennedy, McConnell & Morris, and Thomas A. Loose, all of Peoria, for appellants.
    Davis, Morgan & Withered, of Peoria, for appellees.
   MR. JUSTICE MORAN

delivered the opinion of the court.

The sole question presented by this appeal is whether the defendant-appellee bank is, under the particular facts of this case, an underwriter as defined by the Illinois Securities Law of 1953.

Plaintiffs-appellants filed suit against Uplands Hardware Corp., Nelson Kuntz, president of the corporation, and Jefferson Trust and Savings Bank of Peoria to recover the purchase price of certain corporate securities allegedly sold to them in violation of the Illinois Securities Law. A bench trial was had resulting in a judgment against the corporation and Kuntz; however, the court found in favor of the defendant bank against plaintiffs. Plaintiffs have appealed from that portion of the judgment in favor of the bank.

From the evidence it is disclosed that in 1959 the male plaintiffs were part-time employees of the defendant corporation. Early that year defendant Kuntz, the corporation president, offered to sell each of them, and to other employees, twenty of his shares of the common stock of the corporation for Five Thousand ($5,000) Dollars each or Two Hundred Fifty ($250) Dollars per share. At this time the stock had a book value of Eighty ($80) Dollars per share. Kuntz advised them that he had arranged financing for them and that a portion of their wages would be deducted to pay for the cost of the shares. After accepting the proposal, the plaintiffs were presented with personal financial statement forms. The forms were filled in and returned to Kuntz who gave each of them a promissory note payable to defendant bank in the amount of Five Thousand Five Hundred ($5,500) Dollars. The plaintiffs were told to sign the notes and have their wives sign them.

After the notes were signed and returned each of the plaintiffs was presented with a cashier’s check in the amount of Five Thousand ($5,000) Dollars, payable to his order, a stock certificate for twenty shares in the corporation and a- stock repurchase agreement. Each plaintiff endorsed his check and stock certificate in blank and executed the repurchase agreement. The checks were deposited in the corporation account and the stock certificates were delivered to defendant bank as collateral security for the loans. In addition the notes were guaranteed by the corporation and Kuntz and credit life insurance on each borrower was obtained by the bank.

Thereafter, wage deductions were made until plaintiffs left their employment with the corporation in 1961. Then plaintiffs made monthly payments on the notes directly to the bank and executed renewal notes.

In 1962, after the corporation suffered financial reverses, plaintiffs notified defendants of their intention to declare the sale of the securities void in accordance with the Illinois Securities Law and they filed this action for the return of the purchase price of the shares and for interest and attorney’s fees.

It would appear that at the time of the transaction the corporation was indebted to the bank in the amount of Ten Thousand ($10,000) Dollars against an established line of credit of Fifteen Thousand ($15,000) Dollars. It would also appear that an officer of the bank was fully informed about the transaction and the proposed use of the funds to be borrowed by plaintiffs.

The original transaction was voidable under the Illinois Securities Law of 1953 for the reasons that the securities were not “exempt securities” under section 3 of the Act, ch 121½, § 137.3, Ill Rev Stats; the sale was not reported to the Secretary of State as required by paragraph G of section 4 of the Act, ch 121½, § 137.4, Ill Rev Stats; and the shares were not registered by the Secretary of State under ch 121½, section 5, Ill Rev Stats. However, had the corporation or Kuntz reported the sale to the Secretary of State within thirty days after the sale and paid the two dollar filing fee in accordance with paragraph G of section 4, the transaction would have been valid and plaintiffs would have had no cause to complain.

Plaintiffs charged that defendant bank was liable as an underwriter as defined by section 2 of the Securities Act. The trial court held in favor of plaintiffs against the corporation and Kuntz, but found the bank not to be an underwriter. This appeal tests the trial court’s finding in favor of the bank.

The statutory definition of “underwriter” as it was worded at the time of the transaction in 1959 was:

“The word ‘underwriter’ shall mean any person who has purchased a security from an issuer or a controlling person with a view to, or sells a security for an issuer or a controlling person in connection with, the distribution thereof, or participates or has a participation in the direct or indirect underwriting of such distribution; but such term shall not include a person whose interest is limited to a commission or discount from an underwriter or dealer not in excess of the usual and customary distributors’ or sellers’ commission or discount. An underwriter shall be deemed to be no longer an underwriter of a security after he has . completely disposed of his allotment of such security or, if he did not purchase the security after he had ceased to sell such security for the issuer or controlling person.”

Chapter 121½, § 137.2F, Ill Rev Stats (1957).

A similar provision amended in form only may now be found in Chapter 121½, § 137.2-6, Ill Rev Stats (1965).

Although the statutory definition both before and after the amendment suffers from lack of clarity, we may determine that, with certain exceptions set forth in the latter part of the section, an underwriter is one who either (1) purchases a security from an issuer or controlling person with a view to selling it for the issuer or controlling person, (2) sells a security for an issuer or controlling person, or (3) participates, or has a participation in the direct or indirect underwriting of a distribution.

Defendant Kuntz was a “controlling person” under the statute; however, the bank neither purchased the securities nor did it sell them, so neither of the first two meanings apply here. The third meaning, that of participation, is more difficult to analyze in light of the facts of this case. The use of the words “participates” and “underwriting” and the unfortunate grammatical usage found in the statute do not greatly aid us in this task.

Nor do we find any help in the cases cited in the briefs submitted by counsel. Both parties agree that there are no decisions by Illinois courts of review interpreting this statutory definition and the federal cases and other decisions mentioned are not sufficiently similar in factual background to assist in this determination.

It is true that the definition of “underwriter” in the Illinois Securities Law is similar to the definition found in the Federal Securities Act of 1933. 15 USCA 77b (11) (1963).

The Securities Act of 1933 states:

“The term ‘underwriter’ means any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking, or participates or has a participation in the direct or indirect underwriting of any such undertaking; but such term shall not include a person whose interest is limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors’ or sellers’ commission. As used in this paragraph the term ‘issuer’ shall include, in addition to an issuer, any person directly or indirectly controlling or controlled by the issuer, or any person under direct or indirect common control with the issuer. ‘Securities Act of 1983,’ 15 USCA 77b (11) (1963).”

Counsel have referred us to Securities & Exchange Commission v. Chinese Consol. Benevolent Ass’n, Inc., 120 F2d 738 (1941); Securities & Exchange Commission v. Guild Films Co., 279 F2d 485 (1960); and also to a New York decision, Hyman v. Gregory & Sons, 44 Misc2d 102, 252 NYS2d 919.

In the Chinese case the Second Circuit Court of Appeals, in an opinion by Judge Augustus N. Hand, held that where a benevolent association, composed of Chinese, solicited offers to buy bonds of the Kepublic of China and received funds therefor which it transmitted to China through the Bank of China, the association was acting as an “underwriter” under the Federal Securities Act. Since the securities were not registered an injunction was ordered to issue.

The court found that the benevolent association solicited the orders, obtained the cash from the purchasers and caused funds to be forwarded so as to procure the bonds. The court held that a contractual relationship between the benevolent association and the Chinese Government was not necessary and that the words “sells for an issuer in connection with the distribution of any security” should be read as covering continual solicitations regardless of any contractual relationship between the issuer and the party securing the offers.

In the Guild case there was a long and complicated financial transaction involving two banks, two individuals and the securities of five different corporations. Under somewhat questionable circumstances the banks became pledgees of certain corporate shares of Guild Films, Inc. The certificates bore the following restriction as shown on page 487:

“The shares represented by this certificate have not been registered under the Securities Act of 1933. The shares have been acquired for investment and may not be sold, transferred, pledged or hypothecated in the absence of an effective registration statement for the shares under the Securities Act of 1933 or an opinion of counsel to the company that registration is not required under said Act.”

Notwithstanding the lack of registration and the written restriction, the banks took these certificates as pledges and after default the banks attempted to sell the unregistered securities and did in fact sell a portion of them. An injunction proceeding was filed by the Securities and Exchange Commission. The opinion finds that the bank “purchased” the securities within the meaning of the Federal Securities Act and was therefore an underwriter.

The opinion reasons that the term “purchase” although not defined in the Act should be interpreted in a manner complementary of “sale” which is defined at page 489 as including:

“Every . . . disposition of ... a security or interest in a security, for value. . . .”

The court points out that Congress had refused to accept a proposed provision of the Securities Act which expressly exempted sales by or for the account of a pledge holder or mortgagee selling or offering for sale or delivery in the ordinary course of business and not for the purpose of avoiding the provisions of the Act, to liquidate a bona fide debt, a security pledged in good faith as collateral for such debt.

The court also held that privity with Guild Films was not required.

We feel that the Chinese Benevolent Association case is in no way similar with the case at hand and we cannot equate the actions of the Benevolent Association in that case with the actions of the defendant bank in the present case.

With respect to the Guild case we note that the Illinois Securities Law contains a provision specifically excluding:

“the sale of securities by an executor, administrator, guardian, conservator, receiver or trustee in insolvency or bankruptcy, or at any judicial sale, or at a public sale by auction held at an advertised time and place, or the sale of securities in good faith and not for the purpose of avoiding the provisions of this Act by a pledgee of securities pledged for a bona fide debt.”

Chapter 121½, § 137.4E, Ill Rev Stats.

This provision so distinguishes the Illinois Securities Law from the Federal Securities Act as to render inapplicable the rationale of the Guild decision.

The Hyman decision is likewise of little help to us since the factual situation there involved the bank acting as a subscriber for a new issue of shares at the request of the plaintiff. The court held that the bank was not an underwriter and in no way solicited the transaction but did so only as an accommodation to its depositors.

We feel this case must be decided upon an analysis of the actions of the defendant bank to determine whether it participated in the distribution of the securities to the plaintiffs. The bank was informed as to the financial situation of the corporation at the time of the transaction; it was informed as to the intended use of the borrowed funds; however, the bank did not look to a profit from the transaction other than by its ordinary charge of commissions and interest for loaning money. The bank checked the credit applications of each of the plaintiffs and, in addition to the pledging of the securities, the bank took the guarantee of both the corporation and Kuntz. It also obtained credit life insurance. After default by the plaintiffs on the notes the bank has taken no action to sell or otherwise dispose of the shares. We do not believe that these actions constitute a participation in the selling so as to render the bank an underwriter under the Illinois Law.

Our decision is supported by a recent decision of the Tenth Circuit Court of Appeals interpreting the definition of “underwriter” under the Federal Securities Act. In Can-Am Petroleum Co. v. Beck, 331 F2d 371 (1964), the court held a party who had invested over $27,000 in an undivided 1%2 interest in an oil and gas lease, who had encouraged others to purchase interests in the lease and who was rewarded for her services with another %6 interest not to be an “underwriter” under the federal law. The opinion states at page 374:

“Her isolated endeavor to join with Can-Am in disposing of their entire interests did not change her relationship from that of investor to underwriter.”

The judgment of the circuit court is affirmed.

Judgment affirmed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MR. PRESIDING JUSTICE MORAN

text:
    Interlake Iron Corporation, a Corporation, Plaintiff-Appellant, v. Dravo Corporation, a Corporation, and Aetna Casualty & Surety Company, a Corporation, Defendants-Appellees.
    Gen. No. 65-38.
    Second District.
    March 18, 1966.
    Peterson, Lowry, Rail, Barber & Ross, and Kenneth A. Knutson, all of Chicago, for appellant.

      Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This case has followed a long and tortuous path.

In May of 1959, the plaintiff, Interlake Iron Corporation, and the defendant, Dravo Corporation (hereinafter referred to as Dravo), entered into a written agreement wherein Dravo undertook certain construction for the plaintiff and agreed to hold it harmless from all losses, damages, injuries and deaths arising out of the construction work. Dravo also agreed to procure and keep in effect comprehensive liability insurance including contractual liability protection covering the agreement. Subsequently, Dravo procured an insurance policy in the amount of $1,000,000 from the defendant, Aetna Casualty & Surety Company (hereinafter referred to as Aetna).

The complaint alleges that five separate law suits have been filed for injuries or death arising out of the work covered by the construction contract.

This is not the first litigation relative to declaratory judgment relief. In 1962, the plaintiff commenced a declaratory judgment action in the Superior Court of Cook County against the same defendants. That action was subsequently dismissed pursuant to defendants’ 'motion, with prejudice, but, however, with the notation that the plaintiff was not precluded from pursuing such other relief it may be entitled to in other pending litigation. No appeal was taken from this order.

In 1963, the same plaintiff filed a declaratory judgment action against Dravo in the United States District Court for the Northern District of Illinois, Eastern Division. This time Aetna was not joined but the same issues were raised. The Federal Court dismissed the second action pursuant to Dravo’s motion “without prejudice with regard to any claim for relief as asserted in Complaint.”

In 1964, this action for declaratory judgment was filed in the Circuit Court of DuPage County. Parties were the same as in the first action and the same issues were raised. The trial court dismissed plaintiff’s complaint, whereupon the plaintiff filed a motion to amend by adding a count for breach of contract. The trial court denied the motion to amend and this appeal followed charging an abuse of discretion in dismissing the original complaint, and a further abuse in denying the motion to amend.

The good purpose of the Declaratory Judgment Act is clear. The Act was passed to provide expedient relief and to prohibit a multiplicity of suits. It was not designed to supplant existing remedies. (See historical and practice notes to Ch 110, Sec 57.1, Smith-Hurd Illinois Annotated Statutes.)

The Statute is clear and the parties agree that the declaration of rights is within the sound discretion of the trial court. Therefore, the issue before us is not whether the court should have declared the rights of the parties, but rather, was the trial court’s failure so to do an abuse of discretion requiring this court to intervene. State Farm Mut. Automobile Ins. Co. v. Morris, 29 Ill App2d 451, 173 NE2d 590 (1961).

It appears to this court that no abuse of discretion occurred. This was the third suit raising the same issues. Plaintiff has gone from forum to forum seeking a favorable decision. It can hardly be argued that the declaratory judgment under these circumstances will avoid a multiplicity of suits, since a multiplicity has already occurred.

While the plaintiff has the right to be heard, it does not have a right to a particular type of proceeding. Plaintiff has every right to raise this issue in the cases presently pending and to have an adjudication.

We now come to the question of whether or not the trial court should have permitted plaintiff to amend its complaint. It must be remembered that this motion was not made until after the court had indicated that it was going to dismiss the original complaint. It has been held many times that the trial judge has broad discretion in connection with amendments and that his discretion will only be reviewed where there is a manifest abuse, Deasey v. City of Chicago, 412 Ill 151, 156, 157, 105 NE2d 727 (1952), Lowrey v. Malkowski, 20 Ill2d 280, 285, 170 NE2d 147 (1960). In this case the trial judge had already made his decision before the attempt to amend was made. He had already decided that plaintiff’s grievances could be raised in litigation even then pending. The proposed amendment did not raise any new issues which could not be resolved in pending litigation, therefore, it can hardly be said that the trial court’s refusal to permit the amendment amounted to a manifest abuse of discretion.

In view of our decision on the principal questions involved, it is not necessary for us to reach the other matters raised by the parties.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.