author: ALLOY, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dale Husser, Defendant-Appellant.
    Gen. No. 67-32.
    Third District.
    March 29, 1968.
    Rehearing denied May 13, 1968.
    Carl Kuhn and Joseph F. Mirabella, Jr., of Wheaton, and John Lang, of Glen Ellyn, for appellant.
    C. Howard Wampler, State’s Attorney, of Princeton, for appellee.
   ALLOY, P. J.

Defendant Dale Husser was indicted on October 4,1966, on a four-count indictment charging theft of three automobiles and a motorcycle. The third count charging theft of a motorcycle was reduced to a misdemeanor charge. Defendant pleaded guilty to all four counts on October 18, 1966. Thereafter, on December 28, 1966, a hearing was had in aggravation and mitigation. An application for probation was also made. On January 11, 1967, the trial court sentenced defendant to not less than one nor more than three years in penitentiary on Counts I, H and IV of the indictment, and to pay a fine of $500 on Count in of the indictment. All of the penitentiary sentences were directed to run concurrently.

On appeal in this case, defendant contends that there was an abuse of discretion by the trial court in denying probation to defendant. Specific attention is directed to the provisions of chapter 38, § 117-1 (1967 Illinois Revised Statutes) with respect to probation. Defendant concedes that the trial court has broad discretionary powers in the granting of probation, but defendant contends that the basic principles which are set out for guidance of the trial court with respect to the granting of probation are fulfilled in the case before us. Defendant, therefore, asserts that there was an abuse of discretion by the trial court in denying probation. Defendant emphasizes that defendant had no prior criminal record and that, therefore, there would be no indication of a likelihood that he would commit another offense. It is asserted that there was no showing by the State that public interest requires the incarceration of defendant and, also, that his rehabilitation did not require incarceration. Defendant emphasizes that the discretion of the trial court in passing upon an application for probation is not an arbitrary discretion or an act growing out of will or whim, but must be based upon a sound legal discretion dependent upon a careful analysis of the facts of the offense as outlined in the case of People v. Donovan, 376 Ill 602, 35 NE2d 54, 56.

The State points out that defendant Husser is a mature businessman 31 years of age and that he pleaded guilty to three separate felony auto thefts and one misdemeanor committed over a period of several months. It is also pointed out that in People v. Donovan, supra, cited by defendant, a 20-year-old boy had pleaded guilty to forgery of a $10 check. In that case the trial court summarily denied the request for probation and sent that defendant to the penitentiary. There was no hearing at which evidence in mitigation could have been presented in that case. There was a contention there that the trial court should have granted probation and that it erred in not allowing defendant to withdraw his plea of guilty. The case was reversed in the Supreme Court of this State principally on the basis that the plea was not a voluntary one since defendant entered into it thinking he would be given probation. We recognize that the discretion of a trial court is not an arbitrary one and that although the case of People v. Donovan was modified by the court in later decisions, the principles emphasized therein were properly expressed by the court and are carried into the Illinois Criminal Code and its administration in the trial courts and in the reviewing courts.

The trial court had before it the report of the adult probation officer’s investigation and also heard the testimony of defendant and other witnesses before sentencing and before the court passed on the probation application. The judge was able to observe defendant and the other witnesses and was in a far better position to determine the question of whether or not probation should be granted than is a court of review. We do not believe that the record discloses any arbitrary action on the part of the trial court. We must, therefore, conclude that this court, on review, on the basis of the record in this cause would not be justified in concluding that there was an abuse of discretion by the trial court in the instant case.

Since we find no reversible error in the conduct of the trial court, the judgment of such court will, therefore, be affirmed.

Affirmed.

STOUDER and SCHEINEMAN, JJ., concur.


source: Caselaw Access Project

author: ME. JUSTICE McNAMAEA

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Tommie Knox, Defendant-Appellant.
    Gen. No. 51,522.
    First District, Second Division.
    April 2, 1968.

      Earl T. Medansky, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Donald J. Veverka, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE McNAMAEA

delivered the opinion of the court.

Defendant was indicted for murder and voluntary manslaughter. He was tried before a jury, found guilty of voluntary manslaughter and sentenced by the court to the penitentiary for a term of 6 to 12 years. In his appeal, he contends that the trial court erred in failing to discharge him under the four-month statute; that he was not proved guilty beyond a reasonable doubt; that the court erred in allowing certain witnesses to testify; and finally that the sentence imposed was excessive and should be reduced.

The record discloses that defendant was arrested on December 24, 1962. After indictment and arraignment, the case was continued from time to time until March 13, 1963, at which time defendant was granted a change of venue. On that date counsel for defendant told the new trial judge that April 24 “would be an agreeable date with us.” When the court announced that the continuance was upon motion of defendant, counsel “wondered” whether it should be by motion of defendant. The court then asked the Assistant State’s Attorney whether the order would be by agreement, and the Assistant assented. The matter was continued from time to time until July 1, at which time the State obtained a continuance until July 22. Thereafter, the court denied defendant’s motion for a discharge under the four-month statute. On July 22, State moved for a 60-day extension of time beyond the four-month period submitting an affidavit that a material witness was hospitalized and that there was reasonable ground to believe that his presence could be procured at a later date. The court granted the extension, and trial was commenced on September 20. The hospitalized witness died prior to trial. Defendant remained in custody during this time.

Where an accused has sought and obtained a continuance within the four-month period or has agreed to such a continuance, the four-month period ceases to run, and the defendant is not entitled to a discharge. People v. Williams, 27 Ill2d 327, 189 NE2d 314 (1963); People v. Canada, 81 Ill App2d 220, 225 NE2d 639 (1967). Furthermore, when defendant so agrees, the four-month period starts again from the date to which the case is continued.

People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687 (1965). The record is clear that defendant agreed to the continuance from March 13 to April 24. Consequently, the four-month period was tolled and resumed running from April 24.

If the State requests an extension beyond the four-month period of not more than 60 days, the statute requires “only that the court be satisfied that a due exertion has been exercised to obtain the relevant evidence on behalf of the State and that there is reasonable ground to believe that such evidence will be obtained in time for trial.” People v. Taylor, 82 Ill App2d 5, 226 NE2d 693 (1967); People v. Tamborski, 415 Ill 466, 114 NE2d 649 (1953). The State’s request for an extension on July 22 was timely made and fulfilled the requirements of the statute. Defendant was not entitled to a discharge under the four-month statute.

Defendant next urges that he was not proved guilty of the crime beyond a reasonable doubt.

Certain facts are undisputed. On December 24, 1962, at about 8:00 p. m., defendant shot and killed William Brooks in the washroom of a tavern in Chicago. Defendant fled the scene, but later that evening surrendered to police. Defendant entered the washroom of the tavern and, as he was leaving a few minutes later, pulled a gun out of his pocket and shot the decedent. The doorway from the washroom was open and unblocked.

In addition to those undisputed facts, Marvin Funville testified that, as defendant was leaving the washroom, he turned while in the doorway and shot the decedent. He also testified that he did not hear decedent say anything to defendant, and that he saw no weapon in the hands of the decedent.

The police officer who first came to the scene testified that he saw no knife in the hands of the decedent and that no knife was found in the area. The police officer who investigated the incident testified that nothing was said to him about the decedent having the knife, and that no knife was found. He also testified that defendant told him he had thrown the gun into a river after the occurrence.

Decedent’s brother testified that he never knew the decedent to carry a knife. Decedent’s employer Jacob Schwartz testified over objection as to decedent’s good reputation at work.

For the defense, Ben Lee and George Rogers testified that defendant shot decedent after he said “what the hell you got to do with it” to the defendant and started towards him with a knife in his hand. Ben Lee and another witness LeRoy Alexander testified that they had not seen Marvin Funville at the tavern that evening.

Defendant testified that he shot Brooks because he screamed at him and came towards him with a knife. He also testified that he lost the gun, and denied telling the police officer he had thrown the gun in the river.

It is fundamental that the credibility of witnesses and the weight to be given their testimony is for the jury, and the reviewing court will not substitute its judgment for that of the jury merely because the evidence is conflicting, unless guilt has not been established beyond a reasonable doubt. People v. Anderson, 30 Ill2d 413, 197 NE2d 24 (1964); People v. Paulson, 80 Ill App2d 44, 225 NE2d 424 (1967). The testimony of the State’s witness was that defendant stood in the doorway and shot •the decedent without any cause. Even if the triers of fact rejected that testimony and believed that defendant acted in defense of his person, the use of deadly force is lawful only if defendant reasonably believed that such force was necessary to prevent imminent death or great bodily harm. Ill Rev Stats c 38, § 7-1. People v. Millet, 60 Ill App2d 22, 208 NE2d 670 (1965). In view of the circumstances of this occurrence, the number of people in the washroom and the easy egress, there was ample evidence for the jury, even if they believed that defendant acted in self-defense, to determine that defendant’s conduct was unreasonable. There was sufficient evidence to establish guilt, and we will not disturb the verdict.

Defendant next urges that it was error to allow the witness Schwartz to testify because his name was not included on the list of witnesses, and because his testimony was improper. It is well settled that it is within the sound discretion of the court to allow a witness to testify, even though his name was not on the list of witnesses, and that discretion will not be disturbed on review unless defendant has shown prejudice or surprise. People v. Hopkins, 29 Ill2d 260, 194 NE2d 213 (1963). In the instant case, when the State indicated their intention to call a witness whose name had not been furnished to defendant, the court recessed so that defense counsel might interview Schwartz. There was no surprise, and defendant has shown no prejudice.

Defendant also urges that Schwartz’s testimony as to decedent’s reputation was improper because it was offered during the State’s case in chief rather than in rebuttal. The employer testified only after defense counsel had attacked the character of the decedent on cross-examination of two State witnesses. In view of the elicitation of evidence of decedent’s character by defendant, it was not necessary for the State to wait until the defense had rested to offer the testimony of the employer.

There is no merit in defendant’s contention that it was error to allow Marvin Funville to testify since his address as given by the State on its list of witnesses was incorrect. Funville testified without contradiction that he resided at the address provided on the list of witnesses. Further, the statute provides only that the State submit the name and last known address of the proposed witness.

Finally, defendant urges that the sentence of 6 to 12 years was excessive and should be reduced. While it is true that the 24-year-old defendant had no prior criminal record, yet armed with a gun he took the life of another. The sentence is well within the statutory limits. As was stated in People v. Valentine, 60 Ill App2d 339, 208 NE2d 595 (1965), at page 356:

“We believe the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so.”

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: MORAN, J.

text:
    Irving A. Levine, Plaintiff-Appellee, v. Jerome Pascal and Arlene L. Pascal, Defendants-Appellees, v. Palos State Bank and American National Bank of Chicago as Trustee Under Trust No. 15222, Third Party Respondents-Appellants.
    Gen. No. 51,628.
    First District.
    April 3, 1968.

      Nicholas T. Kitsos, of Chicago, for appellants.
    James A. Chatz and M. Leslie Kite, of Chicago, for appellee.
   MORAN, J.

This appeal arises from a judgment of the Circuit Court of Cook County in favor of the plaintiff, Irving A. Levine, in a supplementary proceeding by citation brought by plaintiff under section 73 of the Civil Practice Act, chapter 110, Illinois Revised Statutes 1965.

The facts leading up to the present litigation as stipulated to by the parties, reveal that in December, 1957, the defendants, Jerome Pascal and Arlene L. Pascal, his wife, purchased and became owners in joint tenancy of a lot improved with a single-family home situated in Highland Park, Lake County, Illinois. The property was encumbered at that time with a first mortgage in the sum of $18,000 in favor of the First Federal Savings and Loan Association, Chicago, Illinois. Neither party to this case challenges the priority of this mortgage to the claims and liens at issue.

On February 23,1960, defendants Jerome and Arlene L. Pascal entered into a written land trust agreement with the respondent, American National Bank of Chicago as Trustee, the trust being designated No. 15222. Under the terms of this land trust, Jerome Pascal and Arlene L. Pascal, his wife, were designated the beneficiaries of the trust as joint tenants with the right of survivorship and with the power of direction as to the beneficial interest. The agreement further designated the lot and home situated in Highland Park, Lake County, Illinois, as the subject matter and corpus of the trust. Defendants then deeded the property to American National Bank of Chicago as Trustee, who remains the title holder at this time.

A few years later, on May 22, 1964, the defendant, Jerome Pascal, assigned to his wife, Arlene L. Pascal, his beneficial interest and power of direction in Trust No. 15222, which was subsequently filed and noted by the Trustee.

In September of 1964, the Pascals negotiated with respondent Palos State Bank for a loan in the sum of $37,150.90. The defendants agreed to pledge as collateral the beneficial interest and power of direction of Trust No. 15222 then vested in defendant Arlene L. Pascal. Therefore, on September 25,1964, Arlene L. Pascal executed an assignment to the Palos State Bank of the beneficial interest in land Trust No. 15222 for purposes of securing the loan to be made to her and her husband by the respondent. Neither at this time nor at any subsequent date did respondent, Palos State Bank, file either a financing statement with the Secretary of State, pursuant to section 9-401 (c), chapter 26, Ill Rev Stats 1965, or a mortgage with the local recorder’s office, although all parties to this controversy admit that the defendants and the respondent did effectuate a binding security agreement between themselves.

Together with the assignment of the beneficial interest in Land Trust No. 15222 and the power of direction, Jerome and Arlene L. Pascal executed and delivered to the respondent, Palos State Bank, three promissory notes, following which the respondent loaned them the sum of $37,150.90. Thereafter, they .defaulted on their payments due under these notes and on January 18, 1965, respondent, Palos State Bank, gave notice to them that legal proceedings would be instituted if they did not make good on the notes.

However, on February 16, 1965, approximately four months after the respondent, Palos State Bank, had lent the sum of $37,150.90 to the defendants, the plaintiff, Irving A. Levine, secured a judgment against the defendants in the sum of $17,622.50. The plaintiff’s complaint in that action was based upon a promissory note dated April 21, 1962 and executed and delivered for value by the defendants in the principal sum of $18,000. Plaintiff sued on the note for the balance due plus interest and attorney’s fees, totaling $17,622.50. Following judgment, plaintiff instituted action to execute on the judgment and to discover assets belonging to the defendants. On February 18, 1965, a writ of execution was issued by the Circuit Court of Cook County on the judgment, and the court clerk issued a citation to discover assets under authority of section 73, chapter 110, Civil Practice Act, Illinois Revised Statutes 1965.

Discovery initially was directed to the defendants and the respondent American National Bank as Trustee under Trust No. 15222. On March 26, 1965 the plaintiff issued a citation against the Palos State Bank, returnable the 6th day of April, 1965. On April 6, 1965, the Circuit Court continued the proceedings to April 20, 1965.

That day, the plaintiff presented affidavits representing that Arlene L. Pascal is the beneficiary of Trust No. 15222, that she assigned the beneficial interest to the respondent, Palos State Bank, that the parties did not sign or file a financing statement with the Secretary of State of Illinois as required by the Commercial Code, that as a result, the purported transaction was void as to plaintiff, and prayed that the court find the interest of Palos State Bank in the land Trust No. 15222 subordinate to the plaintiff’s judgment lien.

On May 3, 1966, the Circuit Court of Cook County entered its final order finding the plaintiff, Irving A. Levine, to be the holder of a good and valid execution lien superior to the interest of Palos State Bank and ordering Arlene L. Pascal and the Palos State Bank to assign to the Sheriff of Cook County, the beneficial interest in land Trust No. 15222 for a subsequent sale for the benefit of the plaintiff.

Appellant, Palos State Bank, assigns error below on four separate legal issues. In the first place, appellant challenges any determination of this case under the provisions applicable to the Commercial Code of Illinois, chapter 26, Illinois Revised Statutes 1965. Palos State Bank argues that section 9-104 (j) of the Commercial Code exempts from coverage any interest in or lien on real estate, and cites authority for the proposition that the beneficial interest in the land trust assigned to it is a real property interest.

Appellant next argues that even should the Commercial Code apply, the plaintiff is not a lien creditor under the provisions of section 9-301 of the Code so as to strip the Palos State Bank of its security interest in the beneficial interest of land Trust No. 15222.

Thirdly, appellant urges that regardless of the court’s disposition of the question of plaintiff’s status as a lien creditor, Palos State Bank had a perfected security interest in the beneficial interest of the land trust on the theory that recording the security assignment of the Palos State Bank with the land trustee was an act of possession intended by the Commercial Code (section 9-305) as a perfection of a security interest without filing and good against a lien creditor.

Lastly, appellant cites Rule 24 of the Illinois Supreme Court Rules, as authority for its argument that plaintiff’s supplementary proceedings under section 73 of the Civil Practice Act terminated automatically after six months since the trial court attempted to extend the proceeding other than by successive thirty day continuances. Thus the final order was a nullity.

Appellant relies heavily, if not completely, on Gordon v. Gordon, 6 Ill2d 572, 129 NE2d 706, in support of its argument that under the facts of this case, the beneficial interest in land Trust No. 15222 is an equitable interest in real estate and therefore exempt from the Commercial Code. Gordon involved a separate maintenance action filed by Esther Gordon against her husband who had deserted her and moved to California. Mr. Gordon still owned substantial property in Illinois, among which was certain Kane County property held in trust by the American National Bank of Chicago for the benefit of Mr. Gordon. The Illinois Supreme Court upheld the Circuit Court’s decision, ordering discharge of the support payments out of the trust held by American National Bank. The court took note of the fact that the trust agreement had neither been pleaded nor offered in evidence and in concluding that the situs of Gordon’s interest was in Illinois since he possessed a beneficial interest in real estate, the court said: “The nature of a beneficiary’s interest is dependent upon the terms of the trust agreement. In the absence of an express provision to the contrary, the beneficiary is ordinarily the equitable owner of the trust res. If the corpus of the trust is real property, the interest of the beneficiary is also real property.” Id. at 575.

For the reasons set out herein, we find the rule laid down in Gordon v. Gordon, supra, inapplicable.

The Illinois land trust, by its very nature, is characteristically different from common-law land trusts. While the common law accomplishes a split between the legal title in the trustee and the equitable title in the beneficiary, in an Illinois land trust, the trustee has both legal and equitable title. (See Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 138, 178 NE2d 888.) By placing with the trustee the “full, complete and exclusive title to the real estate, both legal and equitable,” the beneficiary in an Illinois land trust is left with a personal property interest only. Chicago Federal Savings & Loan Ass’n v. Cacciatore, 25 Ill2d 535, 185 NE2d 670. Numerous other cases stand for the proposition that the interest of the beneficiary of an Illinois land trust is personal property. Chicago Title & Trust Co. v. Mercantile Bank, 300 Ill App 329, 20 NE2d 992; Horney v. Hayes, 11 Ill2d 178, 142 NE2d 94; Seno v. Franke, 20 Ill2d 70, 169 NE2d 335; Sterling Savings & Loan Ass’n v. Schultz, 71 Ill App2d 94, 218 NE2d 53.

Appellant contends that the failure to introduce the trust agreement between the Pascals and the American National Bank of Chicago into the trial record and show by the provisions of that agreement that the beneficiary of Trust No. 15222 held a personal property interest brings this case under the rule of presumption set down in Gordon v. Gordon, supra, that the beneficiary’s interest relates directly to the subject matter of the trust. In the first place, Gordon v. Gordon is not a case involving an Illinois land trust and therefore the rule evolved more appropriately applies to the general law of trusts than to the specific subject of the Illinois land trust. It is noted on page 575 of the Court’s opinion in the Gordon case that, “the answer of the defendant bank, the sole appellant, admits that Gordon owns the entire beneficial interest in the real estate being held in trust.” Such evidence of equitable ownership of real property is inconsistent with a conclusion that this case involved the Illinois land trust.

Furthermore, although the trust agreement of Trust No. 15222 was not pleaded by the plaintiff nor in any other manner made part of the trial court record, it appears from the Agreed Statement of Facts filed with the Circuit Court of Cook County on January 26, 1966 that the defendants, Jerome and Arlene L. Pascal, entered into a written land trust agreement with the American National Bank and Trust Company of Chicago as Trustee on February 23, 1960. This fact was therefore evidence before the court.

We know, also, from the trial court record that Trust No. 15222 remains in full force and effect. It was the beneficial interest of this land trust that Arlene L. Pascal acquired as full and complete owner on May 22, 1964 when Jerome Pascal assigned to her his undivided one-half interest. And it was the same beneficial interest which Arlene Pascal assigned to the Palos State Bank on September 25, 1964, as collateral for purposes of securing a loan. Appellant therefore admits as evidence before the court that Trust No. 15222 was a land trust and that it was the assignee of the beneficial interest of this land trust. It is a reasonable conclusion in this situation that Palos State Bank acquired an interest in personal property as collateral for its loan, since by the weight of authority in Illinois, a beneficial interest in a land trust is personal property.

Having determined that the assignment by Arlene Pascal to Palos State Bank on September 25, 1964, of her beneficial interest in land Trust No. 15222 created an interest in personal property, the provisions of the Commercial Code, section 9, chapter 26, Illinois Revised Statutes 1965, govern the transaction. The question before this court is, what are the rights of plaintiff, a judgment creditor as to defendants, Jerome and Arlene L. Pascal, in the beneficial interest of Trust No. 15222. Appellant claims superior title to the beneficial interest of this land trust by virtue of holding a security interest, though unperfected, in the trust as collateral for its loan of $37,150.90, to the defendants. Alternatively, appellant claims the status of a perfected security interest holder under appropriate provisions of the code.

Regarding appellant’s argument that it holds superior title to the beneficial interest as an unperfected security interest holder, plaintiff admits the validity of the security agreement between Palos State Bank and the defendants. On the basis of section 9-301(1) (b) of the Commercial Code, however, plaintiff urges that he is a lien creditor who acquired this position without knowledge of appellant’s security interest in the land trust, and before it was perfected. Palos State Bank answers by challenging plaintiff’s status as a lien creditor. Its argument proceeds on the theory that plaintiff does not fit the definition of a lien creditor advanced in section 9-301 (3) of the Commercial Code, since a beneficial interest in a land trust is a chose-in-action and not subject to a lien by a writ of execution. In support of its position, appellant cites Crawford v. Schmitz, 41 Ill App 357, which holds that choses-in-action are not subject to seizure and sale under execution. He then cites Citizens Nat. Bank of Chicago v. Grossman, 21 Ill App2d 578, 159 NE2d 22, for the proposition that a beneficial interest in a land trust is not the proper subject of a garnishment. Finally, appellant relies on Chicago Federal Savings & Loan Ass’n v. Cacciatore, 25 Ill2d 535,185 NE2d 670. In that case the court was called upon to determine priority between the beneficiary of a land trust and the federal government claiming interest in the land trust through a tax lien. The court observed on page 544, 25 Ill2d 535, that a creditor could reach the beneficial interest in a land trust “either by a creditor’s bill, or other appropriate and timely proceedings.” Appellant construes this language, together with the thrust of the previously mentioned cases, to imply that a writ >f execution is an inappropriate proceeding for reaching the beneficial interest of a land trust. Plaintiff, on the other hand, urges that a writ of execution comes within the heading of “other appropriate” proceedings, envisaged by our Supreme Court.

While appellant cites no direct authority and none has been discovered by this court for the principle that the beneficial interest of a land trust is a chose-in-action, such a conclusion might well be valid. The term “chose-inaction” is of very comprehensive import and includes the almost infinite variety of contracts, covenants and promises which confer on one party the right to recover personal property, chattels, or a sum of money from another by action, and is a right to receive or recover a debt or money due on a bond, note, or other contract or damages for breach of a covenant. See Chaffin v. Nichols, 211 Ill App 109. Furthermore, the concept of a chose-inaction does not appear inconsistent to this court with the Commercial Code definition in section 9-106 of a “general intangible.”

However, we need not decide the issue whether the beneficial interest of a land trust is a chose-in-action and thus untouchable by a writ of execution for purposes of this case because this appeal arises from a supplementary proceeding by citation brought by plaintiff under section 73 of the Civil Practice Act, chapter 110, Ill Rev Stats 1965. Subsection (2) (e) of this section vests the courts of this state with the power to “compel any person cited to execute an assignment of any chose'-in-aetion or conveyance of title to real or personal property in the same manner and to the same extent as a court of chancery could do in any proceeding by a judgment creditor to enforce payment of a judgment or in aid of execution.” (Emphasis added.) Subsection (5) further allows for an appearance and argument by any person other than the judgment debtor who claims an interest in the property or chose-in-action.

Plaintiff acquired the status of a judgment creditor as to defendants Jerome and Arlene L. Pascal on February 16, 1965. On February 18, the Circuit Court issued a Writ of Execution on the judgment. Citation proceedings under section 73 of the Civil Practice Act were commenced against the appellant, Palos State Bank on March 26, 1965.

Palos State Bank admits in its brief that a creditor’s suit in the nature of a bill in chancery under section 22, chapter 49 of the Illinois Revised Statutes 1965, would be an available remedy to plaintiff as a judgment creditor; appellant then proceeds on the basis of the Cacciatore case, supra, arguing that since the creditor’s bill was the proper remedy for a judgment creditor to reach the beneficial interest in a land trust, a writ of execution is not a proper method and therefore plaintiff is foreclosed as to a remedy. This argument ignores the fact that plaintiff pursued two remedies following the confession of judgment against the defendants. As well as procuring a writ of execution, plaintiff initiated citation proceedings under section 73 of our Civil Practice Act. Having the status of judgment creditor, this remedy was available to plaintiff and sufficient to establish his claim to the beneficial interest of Land Trust No. 15222. Clearly, plaintiff became a lien creditor as defined in section 9-301(3) of the Commercial Code when the writ of execution was placed in the hands of the sheriff. See chapter 77, section 9, Ill Rev Stats 1965, and Century Pipe & Supply Co. v. Empire Factors, 19 Ill App 2d 165, at 169, 153 NE2d 298. While it may be doubtful whether the plaintiff could effectively enforce his lien by means of the writ of execution, there is no doubt that he could do so through citation proceedings.

Thus it is of no materiality in this case whether the beneficial interest in a land trust be categorized as a chose-in-action or some other form of personal property. A judgment creditor may attach on either under chapter 73, subsection (2) (e) of the Civil Practice Act. Such proceeding may well have been what our Supreme Court had in mind in Chicago Federal Savings & Loan Ass’n v. Cacciatore, supra, when they said at page 544, 25 Ill2d 535, 185 NE2d 670, that a creditor could reach the beneficial interest of a land trust by a creditor’s bill, “or other appropriate and timely proceedings.”

Appellant’s final challenge to plaintiff’s status as a lien creditor concerns the requirements set out in section 9-301(1) (b) of the Code that plaintiff assume to the position of lien creditor without knowledge of appellant’s security interest in the collateral. Simply stated, Palos State Bank contends that plaintiff has the burden of proving his lack of such knowledge and that the evidence discloses a total failure of the plaintiff to meet this burden. Plaintiff counters with the argument that the burden rests with the appellant to prove such knowledge existed. For the reasons herein set out, we must agree with the plaintiff.

While this precise issue is one of first instance before our court, the law seems consistent on the point that one need not prove a negative averment, the burden of proof being on the party who asserts the affirmative. In re Estate of Sandusky and Appeal of Sandusky, 321 Ill App 1, 52 NE2d 285; Schmisseur v. Beatrie, 147 Ill 210, 35 NE 525; People v. Fusco, 397 Ill 468, 74 NE2d 531. Also helpful on the point at issue is the recent Pennsylvania case cited by plaintiff for the holding that actual knowledge is a question of fact on which a party trying to upset a lien creditor would have the burden of proof before the court. In re Komfo Products Corp., 247 F Supp 229 (1965). Though this holding from a foreign jurisdiction is not binding upon us, yet it is particularly persuasive in view of the recent intrusion of the Commercial Code as law in this state and the uniformity of our law compared with substantive provisions of the Commercial Code in Pennsylvania and other sister jurisdictions.

Based on the weight of this last holding and our prior determination in this case, we find that the plaintiff, Irving A. Levine, has sufficiently established himself as a lien creditor holding superior claim to the beneficial interest of land Trust No. 15222 against Palos State Bank’s claim as an imperfected security interest holder. We now turn to appellant’s argument that it holds a perfected security interest in the collateral.

Since Palos State Bank never filed its security agreement with the Secretary of State, no claim is raised under the appropriate Code sections for a perfection by filing. Section 9-305, however, permits perfection of a security interest in an instrument by the secured party taking possession of the collateral. Appellant argues it did just that when it placed itself on the records of the land trustee as the owner and holder of the beneficial interest of Trust No. 15222. Under this analysis, the written land trust agreement between the trustee and the original beneficiaries constitutes the instrument and all the requirements of section 9-105 (g) of the Code, defining “instrument,” can be found in a land trust agreement.

We must discard this argument which, though persuasive, conflicts with the interpretation that the beneficial interest of a land trust for purposes of the Commercial Code is more aptly described as a “general intangible.” Under the Code, “ ‘Instrument’ means a negotiable instrument (defined in section 3-104), or a security (defined in section 8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.” Section 9-105 (g). We know from the trial record that included in the beneficial interest of Trust No. 15222 is not only the “payment of money” but the power of direction of this personal property. Furthermore, the bundle of rights vested in a beneficiary of a land trust by virtue of the trust arrangement, as we have noted earlier in this opinion and as has been urged by the appellant, can be considered a chose-in-action.

Section 9-106 of the Code provides: “ ‘General Intangibles’ means any personal property (including things in action) other than goods, accounts, contract rights, chattel paper, documents and instruments.” (Emphasis added.) Also helpful on this issue are the comments of Mr. Davenport to section 9-106 contained in Smith and Hurd’s Illinois Annotated Statutes, chapter 26, wherein he illustrates the beneficial interest in a land trust as an example of a general intangible.

A security interest in general intangibles may be perfected only by filing. Section 9-302. Palos State Bank could very easily have availed itself of the filing procedure set out in section 9-401 of the Commercial Code and thereby attained a perfected security interest in the beneficial interest of land Trust No. 15222. We need not delve into the reasons for such omission.

For its final assignment of error, appellant contends that the citation proceedings against Palos State Bank automatically terminated before the entry of the Circuit Court’s final order. They cite Supreme Court Rule 24 regarding the conduction of a citation proceeding under section 73 of the Civil Practice Act which provides:

“(6) A proceeding under this rule continues until terminated by motion of the judgment creditor, order of the court, or a satisfaction of the judgment or decree, but in any event terminates automatically 6 months from the date of service of the citation by which it is commenced. However, the court may grant successive 30-day extensions.”

The Palos State Bank was served with a citation in these proceedings on March 29, 1965. The order entered from which an appeal was taken was entered on May 3, 1966. Appellant contends that while there exists a possibility that the proceedings could be extended beyond 6 months by order of the court providing for consecutive thirty-day continuances, that the trial court twice continued the proceedings for periods in excess of thirty days. The record discloses that on November 29, 1965, proceedings were continued to January 26, 1966, and subsequently continued from January 26, 1966 to April 22,1966.

In support of its position, appellant relies on Celano v. Frederick, 54 Ill App2d 393, 203 NE2d 774, wherein the court states at page 403, “The time limitation of paragraph (6) seems to have been adopted simply for the purpose of avoiding what could otherwise be a very real harassment, not only of the judgment debtor but also of third parties. It is our opinion that paragraph (6) limits the time for conducting a ‘proceeding’ under the rule, but does not limit the efficacy of a final order entered under the authority of Section 73.”

The thrust of this case in which reference is made to the purpose of Rule 24, of avoiding harassment to the litigating parties, is consistent with Illinois law that the Supreme Court Rules are to be construed liberally and not literally. People ex rel. Wilmette State Bank v. Village of Wilmette, 294 Ill App 362,13 NE2d 990. While rules of court are to be obeyed, “unswerving obedience” is not demanded where no material harm is done to any litigant. People v. Davis, 357 Ill 396, 400, 192 NE 210, 212. As far back as 1906 we have held, “Even when the court acts contrary to its rules, this will not be ground for reversal, unless it is apparent that injustice has been done.” Hunt v. Pronger, 126 Ill App 403, 407.

No injustice to or harassment of the appellant is evidenced by either the November 29 continuance order or the order of January 26, 1966, continuing proceedings to April 22, 1966. In the first instance, the court found that no factual issue had been presented by the parties to justify a final order and extended the proceedings to January 26, 1966, to allow preparation of an agreed statement of facts and submission of legal memorandums by both parties. This can hardly be countenanced as an injustice or harassment of appellant’s interests. And the continuance ordered on January 26 to April 22, 1966 was founded on the express consent of both parties to allow additional time for the filing of the legal memorandums which they had failed to prepare by the January 26 deadline due to a delay in obtaining a transcript of the record. Thus the evidence demonstrates a departure from the approved procedure based on good cause and the dictates of justice.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Camille A. Imbrie, Plaintiff-Appellee, v. Le Roy S. Imbrie, Defendant-Appellant.
    Gen. No. 52,131.
    First District, Fourth Division.
    April 3, 1968.

      Becker and Becker, and Mitchell Kilanowski, of Chicago, for appellant.
    Benjamin Daidone, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant appeals from a decree granting a divorce to plaintiff on grounds of physical cruelty. He contends (1) that the divorce should not have been granted because the acts alleged did not constitute physical cruelty and that there was insufficient evidence to support the decree; (2) that the vesting of a fee in the husband’s property as partial alimony was error; and (3) that it was error to make plaintiff the trustee of his life insurance policies in which the children were beneficiaries.

Defendant’s first contention is that the acts plaintiff complained of did not constitute grounds for divorce. The general rule is stated in Tuyls v. Tuyls, 21 Ill2d 192, 171 NE2d 779, at page 195:

To establish cruelty within the meaning of our Divorce Act (Ill Rev Stats 1959, chap 40, par I) it is necessary to prove by a preponderance of the evidence that the guilty party has on at least two separate occasions committed acts of physical violence against his spouse resulting in pain and bodily harm, (Curran v. Curran, 19 Ill2d 164; Wesselhoeft v. Wesselhoeft, 369 Ill 419; Farnham v. Farnham, 73 Ill 497,) ....

See also Stockman v. Stockman, 38 Ill App2d 186, 186 NE2d 547. Plaintiff testified that as she was saying goodbye to her lady friends outside her cousin’s home on February 4, 1962, defendant dragged her out of the car by the hair and into her cousin’s house and beat her across the face while yelling and swearing. She said that her face was swollen and her nose bled profusely for almost an hour and a half and that she was bedridden for two days following the incident. One witness said that when she came into the house:

... I saw blood all over Camille’s face, my refrigerator, stove, cabinet and floor. She was on the floor in a sitting position. She was covered with blood. Looked like blood was coming from her cheek and mouth. She was saying, help me. Mr. Imbrie was standing with his one hand on the cabinet. He looked like he was in a state of shock. He said, “Get off the floor and let’s go home.”

Plaintiff also testified that on November 10, 1965, while she and defendant and three of their children were driving on the expressway, plaintiff and defendant began arguing and defendant hit her on the arm with his fist, causing it to be black and blue and painful to move for about three days. We believe that these acts were sufficient, if proved, to sustain the granting of a divorce on the grounds of physical cruelty. See Berlingieri v. Berlingieri, 372 Ill 60, 22 NE2d 675.

Defendant argues that the act of cruelty allegedly occurring on November 10, 1965, was not adequately proved because it was uncorroborated. Two witnesses testified that on November 10, 1965, they noticed a large bruise on plaintiff’s arm and that she told them how it got there. Defendant on direct examination denied striking his wife on this occasion but on cross-examination said: “I believe when I put my hand out it was opened. I have no idea whether or not it left a mark or bruise upon her person.” We do not believe that the judge’s finding was against the manifest weight of the evidence. Berlingieri v. Berlingieri, supra.

Defendant next alleges errors in the award of alimony. Defendant is an airline pilot and at the time of trial was receiving $1,250 per month in take-home pay plus an expense account averaging between $100 and $125 per month. It was stipulated that he was soon to receive a raise to $2,300 per month before taxes. The parties had five children ranging from three to fifteen years of age. They owned their home in joint tenancy. The decree awarded $500 per month in child support and $150 per month in alimony. The decree also provided that the plaintiff, who retained custody of all five children, was to receive defendant’s interest in the home, subject, however, to a mortgage in excess of $10,000.

Defendant claims that it was error to award to plaintiff defendant’s interest in the home. He argues that a divorce decree should not transfer a fee in the husband’s realty to his wife unless justified by special equities (Byerly v. Byerly, 363 Ill 517, 2 NE2d 898) and that no special equities were shown in the instant case. In awarding the home to the plaintiff in the instant case the trial judge said:

That from the evidence regarding the needs of the plaintiff and her five children, the Court finds that a hardship would be created upon the entire family unless the marital home were awarded to the plaintiff as a partial award of alimony for the use of the plaintiff and the five minor children and to house and shelter them, ....

We believe that special equities sufficient to justify this conveyance were shown.

Defendant, however, argues that this is an award in gross and can only be in lieu of all other alimony under Section 18 of the Divorce Act. The sentence from that section which defendant relies upon reads:

The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by instalments as settlement in lieu of alimony, as the court deems equitable.

In Walters v. Walters, 409 Ill 298, 99 NE2d 342, the court discussed the definition of alimony in gross and said at page 302 that alimony in gross is “an amount agreed upon or determined in full or in lieu of all alimony and the amount is frequently payable in installments.” (Emphasis added.) Thus alimony in gross refers to those alimony arrangements where the entire award is a vested and determined amount and not subject to change. In referring to the conveyance of the home in the decree, the judge said: “[T]his award shall not be regarded as alimony in gross but only as a partial award of alimony in installments. . . .” He then proceeded to decree a monthly award of $150. We cannot find these awards to be alimony in gross. Although the statute permits transfers of property as settlements in lieu of all alimony, we believe that real property can be a part of an alimony award if the special equities requirement is satisfied. (Byerly v. Byerly, supra.) We see no need to engraft a requirement on the act that any conveyance of real property be considered to be in lieu of all other alimony.

Section 18 of the Divorce Act provides in part:

When a divorce shall be decreed, the court may make such order touching the alimony and maintenance of the wife or husband, the care, custody and support of the children, or any of them as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just.

Under the circumstances of this case we find the judge’s conclusions as to the awards to be fit, reasonable and just.

Defendant’s final contention is that the court erred in requiring him to name the plaintiff trustee of his life insurance policies on behalf of the children. He argues that he was a good father and provider and that there is no justification for not allowing him to dispose of the proceeds of the insurance policies as he sees fit. However, the evidence showed defendant was $455 in arrears in his payments of temporary alimony and child support at the time of the entry of the decree. Section 18 of the Divorce Act provides: “In any order entered pursuant to this section, the court may order the defendant to give reasonable security for such alimony and maintenance . . . .” This principle should certainly be applied as well to the support of children. Additionally, defendant testified that the children were the beneficiaries under a trust with his father as trustee; the court found that since defendant had the right to change the beneficiary, the children or a trustee on their behalf should be irrevocably named. We find no error in this finding.

The decree of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats, 1965, c 40, § 19, referred to as section 18 of the Divorce Act.


author: TRAPP, J.

text:
    No. 3 Oakland Suburban Heights, Inc., Edward Staulcup and Lenora Staulcup, Plaintiffs-Appellants, v. H. W. Bekermeier, Superintendent of Highways of McLean County, Illinois, and the County of McLean, Illinois, Defendants-Appellees, and Bloomington-Normal Airport Authority, a Municipal Corporation, Intervening-Defendant-Appellee.
    Gen. No. 10,888.
    Fourth District.
    April 3, 1968.

      Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (Frank M. Brady, of counsel), for appellants.
    Hugh A. Henry, Jr., State’s Attorney of McLean County, of Bloomington, and Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (William R. Brandt, of counsel), for appellees.
   TRAPP, J.

A defendant, Bekermeier, Superintendent of Highways of McLean County, entered an order vacating a portion of a highway known as Airport Road in McLean County, Illinois. Plaintiffs appeal from a judgment of the circuit court which dismissed their complaint for administrative review of such order.

The trial court found that no “appearance” was made for one of the three plaintiffs at a public hearing conducted by the County Superintendent of Highways, pursuant to chapter 121, § 6-306, Ill Rev Stats 1965, so that the plaintiffs failed to meet the requirements for obtaining a judicial review of the final administrative decision of the County Superintendent of Highways as provided in chapter 121, § 6-315a, Ill Rev Stats 1965:

“Any 3 persons who, at a hearing conducted by the County Superintendent of Highways . . . , have been permitted to appear, in person or by counsel, and to introduce evidence and cross examine witnesses, may . . . obtain judicial review of such final administrative decision of the Superintendent.”

Plaintiffs’ property does not abut the portion of the road which the County Superintendent determined to close. Such north and south road is a mile long extending between two major east and west roads. The County Superintendent determined to close the north half, while the plaintiffs’ property abuts the south half of such road. Access formerly existing to the north is cut off by such vacation.

Plaintiffs’ original complaint alleged that H. W. Bekermeier, as County Superintendent of Highways of McLean County, Illinois, held a hearing on March 15, 1966, on appeal from a decision of Everett Lapin, Bloomington Township Highway Commissioner, entered February 26, 1966. The complaint alleged that on the March 15, 1966 hearing, the County Superintendent reversed the decision of the Bloomington Township Highway Commissioner and entered a preliminary decision to close the Airport Road, and that on August 11, 1966, the County Superintendent made such order final. In such decision the County Superintendent of Highways recognized a certain stipulation with regard to the vacation of the road, which stipulation, as drawn, contemplated the signature of each of the three plaintiffs, and recited them as “undersigned” in paragraphs 4 and 5 of the stipulation. The stipulation contained a release of damages, and was signed by a number of persons, but not by any of the plaintiffs.

The complaint alleged that a request was made by plaintiffs for a determination of damages to plaintiffs’ property, and that such request was denied. It further alleged that the township highway commissioner had not filed the petition with the county superintendent, and that therefore the county superintendent was without jurisdiction to hear an appeal.

The complaint prayed an order that the order of the County Superintendent be set aside.

Plaintiffs asked leave to file Count II to the complaint which alleged additionally that closing of the road without providing for compensation for damages was in violation of the Constitution of Illinois and the Constitution of the United States, which prohibit the taking of property without just compensation. Count II contained a prayer for damages, an alternative prayer that no action be taken with regard to closing the road without determining damages and an alternate prayer that the proceedings be held void.

In this appeal the parties do not pursue the point that the proceedings before the County Superintendent of Highways of McLean County were void, but confine themselves to the claim that the statute, which was the basis of the denial of their administrative review, chapter 121, § 6-315a, Ill Rev Stats 1965, is unconstitutional and void.

If the statute provided judicial review only if three or more persons asserted that property was taken without just compensation or due process, but denied judicial review where one person asserted such deprivation, it would be held that judicial review could not constitutionally be made dependent upon the number of persons deprived of the right. Again, if the complaint for administrative review alleged that plaintiffs’ rights of access were, in fact, completely cut off, although the Highway official had found to the contrary, judicial review of the question could not properly be made dependent upon the fact that the rights of access of three or more persons were completely cut off. See Whitmer et al. v. Highway Com’rs, 96 Ill 289, 294. This appeal does not require such determination. Plaintiffs have assumed that a determination has been made that they have suffered no damage by reason of the closing of the road and that such determination is final as to them if they do not pursue the remedy of administrative review. They further assume that judicial review must provide relief either by a judicial order staying proceedings until damages are determined, or by a judicial order that the County Superintendent of Highways determine the damages, which determination it is presumed would again be subject to administrative review. Such presumptions are not supported by a review of the authorities under the pertinent statutes.

Persons whose land does not immediately adjoin a highway but who are affected by its vacation and, who in fact suffer an injury which is not common to the public generally, have a right of action against a public body which is subject to suit. City of Chicago v. Burcky, 158 Ill 103, 109, 110, 42 NE 178; Hill v. Kimball, 269 Ill 398, 409, 410, 110 NE 18; Gibbons v. Paducah & I. R. Co., 284 Ill 559,120 NE 500.

Under the statutes in question, which are similar to historic provisions for establishing and vacating highways, the assessment of damages is not jurisdictional when the proceeding is for vacation only. Assessment of damages is jurisdictional only when there is a taking of land. Fesser v. Achenbach, 29 Ill App 373 on 376. Damages need not be ascertained before a road is vacated. Commissioners of Highways of Town of Saline v. Klaus, 199 Ill App 108 (Abst.) headnote 9. The Supreme Court has held, in reference to the vacation of a highway, that the mere fact that damages were not ascertained in the proceeding is not jurisdictional for the reason that the damages, if any, suffered by the parties could be recovered in an action at law. Brown v. Robertson, 123 Ill 631, 15 NE 30; Stetson v. Chicago & E. R. Co., 75 Ill 74; People ex rel. Illinois Zinc Co. v. Lynch, 255 Ill App 601 on 608.

Chapter 121, § 6-309, Ill Rev Stats 1965, with which we are here concerned, follows the pattern of the historic decisions in this field of law. After providing that the County Superintendent of Highways may agree with the owners on the damages for taking, altering, widening or vacating highways, it provides in the second paragraph of § 6-309 that in case the superintendent cannot agree with the owners of the land “necessary for the laying out, widening or alteration of such road on compensation to be paid,” the superintendent may enter condemnation proceedings. In this second paragraph no mention is made of “vacation.”

Where land is taken, damage is presumed. Where a highway is vacated and there is no factor of land taken, persons claiming damages must prove injury not common to the general public. Damages suffered by a property owner are normally fixed by a jury. Where no part of a property owner’s land is actually taken, mandamus will not ordinarily lie to compel institution of eminent domain proceedings. An exception is made in the case of the sovereign state because it cannot be sued. People ex rel. Haynes v. Rosenstone, 16 Ill2d 513 on 515, 158 NE2d 577.

The statute does not authorize a county superintendent of highways to ascertain or determine damages in the absence of an agreement. Where land, is in fact, taken, he must institute condemnation. Where a highway is vacated without the taking of land, the statute does not provide for the determination of damages.

In this case there is nothing in the decision of the County Superintendent of Highways which specifically purports to determine damages except as to adjoining owners.

We hold that any determination by the County Superintendent of Highways that the plaintiffs suffered no damages by the closing of the road, if such be made by him, would be beyond the jurisdiction conferred upon him, and that such persons who suffer special damages which are distinguishable from those damages suffered by the general public are not barred from suing by reason of the determination of the County Superintendent of Highways.

Since we hold plaintiffs could not obtain the relief sought in the administrative review proceeding, i. e., determination of their special damages alleged to result from closing the road, and since such determination is not jurisdictional to closing the road, the judgment of the trial court dismissing the suit for administrative review is affirmed.

Affirmed.

SMITH, P. J. and CRAVEN, J., concur.


author: TRAPP, J. CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerry Ledferd, Defendant-Appellant.
    Gen. No. 10,903.
    Fourth District.
    April 3, 1968.

      CRAVEN, J., dissenting.
    J. Waldo Ackerman, of Springfield, for appellant.
    Raymond L. Terrell, State’s Attorney, of Springfield, and Richard A. Hollis, Assistant State’s Attorney, for appellee.
   TRAPP, J.

Defendant appeals his conviction of armed robbery following a jury trial. The trial court denied the post-trial motions filed, and imposed a sentence of 5 to 10 years to run consecutively to a sentence of 5 to 15 years for another armed robbery.

Defendant’s theory is that the denial of a motion to suppress witnesses violated his rights under the Constitution of the United States and the State of Illinois; that the evidence failed to establish guilt beyond a reasonable doubt; that the jury was improperly instructed by the court, and that the sentence is excessive.

Defendant was charged with the robbery of a drive-in restaurant at Pleasant Plains on March 4, 1966. Over the period of the next two weeks the investigating deputy sheriff showed a series of 15 to 20 pictures to the proprietor and three patrons present during the robbery. Each witness picked the picture of the defendant from the group of pictures shown. So far as it appears from the record the witnesses made such identification at different times and places, and separately from the other witnesses.

On March 25,1966, defendant was being held in the jail upon another charge of armed robbery, an offense not at issue here. A public defender had been appointed to represent him on such charge, but the two had not yet conferred. On that evening defendant was placed in a lineup at the City Jail with four or five other men. The proprietor, Richards, and a patron, Talbert, were present and identified defendant as the person committing the robbery on March 4th. Thereafter, on March 28th, defendant was charged with the robbery at issue and was indicted for such offense on May 3, 1966. Certain testimony of the defendant relates to a lineup held on March 27th, but the record does not disclose whether the witnesses in this case were present.

On January 10, 1967, a witness, Mrs. Douglas, went to the County Jail and defendant was placed in a room with the expectation that she might observe him. She was, however, only able to see the back of his head and attempted no identification.

Counsel for defendant, appointed and serving at the time of trial and upon this appeal, filed a “Motion to Suppress Witnesses” upon the theory that the identification procedures were so unfair as to deprive him of constitutional rights. The evidence was heard upon the motion and the trial court reserved ruling pending the trial of the case, which commenced immediately thereafter. Such motion to suppress witnesses was presented to the trial court upon the authority of Butler v. Crumlish, 229 F Supp 565, which held that there was invidious discrimination against one held upon failure to make bond who is required to submit to the investigative process of the police when a person who is financially able to make bond is not subject to such procedure. The trial court noted that such authority was repudiated in Rigney v. Hendrick, 355 F2d 710, from the same Federal District. In this court the motion is argued upon the authority of United States v. Wade, 18 L Ed2d 1149; Gilbert v. California, 18 L Ed2d 1178 and Stovall v. Denno, 18 L Ed2d 1199. In Gilbert and Wade, post-indictment lineups were staged without notice to counsel appointed to represent the several defendants. Noting at length the techniques and methods by which law enforcement officials might suggest to witnesses the identity of the accused in the lineup, or insure that the witness made a subsequent courtroom identification of the person charged, the United States Supreme Court held that such lineup without notice and opportunity for counsel to be present was a violation of the Sixth Amendment to the United States Constitution in that the accused was deprived of the right of counsel at a “critical stage of the proceedings.” Denial of due process is not an element in these opinions. In Stovall v. Denno, the court announced that the rule of Gilbert and of Wade affected only cases where confrontations for identification purposes were conducted in the absence of counsel after the date of the opinions in Gilbert and Wade, i. e., June 12, 1967, for the reason that law enforcement officers, as in this case, had long relied upon the acceptance by the courts of pretrial confrontations for the purposes of identifications. Upon the authority of Stovall and People v. Boney, 38 Ill2d 23, 230 NE2d 167, the constitutional rule asserted will not be applied retroactively.

Again, we have reviewed this record in the light of the standard stated in Wade to ascertain whether the courtroom identification had such origin independent of the lineup as to convince that it was made without improper influence of, or suggestion to, the witness through the process of confrontation.

The record shows an opportunity for the witnesses to observe the defendant, for the restaurant is described by all as brightly lighted, and each witness was in close proximity to the defendant — the distances in evidence range from 8 feet to as close as 3 feet. No substantial discrepancy in the prelineup descriptions given by the witnesses to the investigating deputy and defendant’s actual description has been pointed out, except a possible lower estimate of age made by one witness in conversation with defendant’s counsel. We have found no other discrepancy in our examination of the record. No witness testifying had identified another person as committing the offense. While each witness made an initial identification from a picture of the defendant, the record shows that each chose defendant’s picture from a group of some 20 pictures. In terms of time, such identifications were made within two weeks of the offense, and Richards and Talbert identified the defendant in the lineup on the 25th of March, 1966. From the record one can reasonably conclude that the photographs were employed to establish a basis for charging an offense and were not used to influence the witnesses in making a subsequent courtroom identification.

Finally, defendant testified at the motion to suppress that all persons in the lineup of four or five men held on March 25, 1966, put on the same garments and sunglasses and spoke the same words or phrases. The record fails to support the contention that the lineup confrontation was so unfair as to amount to a denial of constitutional due process.

Defendant urges that there was failure to prove him guilty beyond a reasonable doubt so that his conviction must be reversed as a matter of law. As opposed to the prosecution witnesses, and their identification of the defendant, the defendant and four witnesses testified to his presence at Bob’s Corner Tavern in Springfield from 6:00 p. m. on March 4, 1966, until 1:00 a. m. the following morning. Defendant was a part-time bartender at the tavern and his witnesses were more or less regular patrons of the business, as well as defendant’s acquaintanees. The occasion was recalled as a champagne birthday party for one of the witnesses. Defendant was not working as a bartender on that occasion, but allegedly purchased the champagne. The witnesses for the prosecution and the witnesses for the defense produced complete contradictions in their testimony as to defendant’s attire, appearance and degree of sobriety upon the evening in question. No alibi witness claims to have had defendant under continuous observation throughout the evening, but each speaks of seeing him from time to time.

The defendant testified that he gave an investigating deputy the names of three persons who would testify to his presence at the tavern and argues that there was no investigative attempt to determine whether such persons would corroborate the alibi. The deputy testified in rebuttal that defendant told him that he was at the tavern, but refused to discuss his acts and did not give the names of persons who would substantiate his presence there.

This case presents an issue of fact for the jury which includes the determination of the credibility of the witnesses. The trial judge, who also observed the witnesses, denied a motion for a new trial upon the sufficiency of evidence. The evidence upon which this conviction rests is not so unreasonable, improbable or unsatisfactory as to require this court to say that there is a reasonable doubt of guilt. People v. Scott, 38 Ill2d 302, 231 NE2d 441; People v. Ashley, 18 Ill2d 272, 164 NE2d 70. In the language of Ashley, it may be said that the identification of the defendant by the witnesses for the prosecution was positive and unhesitating, and indeed prompt.

Defendant complains of the refusal to give six tendered instructions severally directed to the defense of alibi, the presumption of innocence, and to the necessity of proof of material allegations beyond a reasonable doubt. Defendant filed a motion in writing for a new trial and an amendment thereto, neither of which made reference to the refusal of the tendered instructions. The Code of Criminal Procedure, chapter 38, § 116-1 (c), Ill Rev Stats 1965, provides that a motion for a new trial should specify the grounds for such. Our courts have determined that a party is limited to the claim of error set out in the motion for a new trial and that all other errors are waived. People v. Hunter, 23 Ill2d 177, 177 NE2d 138; People v. Whitehead, 35 Ill2d 501, 221 NE2d 256. In Hunter, error as to an instruction upon alibi is included in the doctrine of waiver. This case does not come within the fundamental fairness exceptions of the rule announced in People v. Cage, 34 Ill2d 530, 216 NE2d 805; People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295. The principles stated in the refused instructions were covered in other given instructions.

The trial court imposed sentence on February 23, 1967, to run consecutively to a sentence for armed robbery imposed in the same court on November 25, 1966. The latter offense occurred on March 25, 1966. It is urged that sentence imposed to run consecutively is excessive in that defendant had no prior criminal record.

At the hearing for sentence the court inquired concerning evidence in mitigation and aggravation. Defendant’s counsel advised that no evidence would be offered in mitigation. The court then inquired of defendant whether he wished to put in evidence of mitigation, which was explained by the court as evidence so that defendant could ask for “as light a sentence as possible.” Defendant stated that he understood and had no such evidence. The court requested the State’s Attorney to make a recommendation as to sentence. The latter advised the court of defendant’s recent conviction upon another charge of armed robbery and recalled that in the offense at issue, defendant had actually discharged a firearm. The record shows that defendant fired his weapon into the ceiling when a patron of the restaurant failed to produce his billfold with alacrity, and that four patrons of the restaurant were actually victims of the robbery, as well as the proprietor of the business. In fixing sentence the court commented that robbery, while armed with a weapon, created great danger.

The imposition of consecutive sentences upon conviction of two or more offenses which do not result from the same conduct is authorized in the Criminal Code, chapter 38, § 1-7 (m), Ill Rev Stats 1965. The statute makes such sentence a matter of judicial discretion. Prior to such statute, it was held that consecutive sentences could be imposed under the Common Law, People v. Vraniak, 5 Ill2d 384, 125 NE2d 513, and that such sentences were authorized where the accused had committed distinct offenses which merited separate penalties. People v. Heirens, 38 Ill2d 294 at 302, 230 NE2d 875; People v. Loftus, 395 Ill 479, 70 NE2d 573; People v. Decker, 347 Ill 258,179 NE 827.

Reviewing courts were first authorized to reduce sentences imposed by the trial court under the provisions of the Code of Criminal Procedure, chapter 38, § 121-9(4), Ill Rev Stats 1965. The authority is now exercised under Supreme Court Rule 615.

As tested in experience, the Appellate review of sentences alleged to be excessive or harsh has required reliance upon evidence of the offense in the record and the use of relevant evidence as to moral character, the life, family associations, occupation and criminal record of the defendant placed in the record through a hearing in aggravation and mitigation of the offense as authorized by chapter 38, § 1-7 (g), Ill Rev Stats 1967.

Such hearing in mitigation may be intentionally waived if such waiver is made understandingly. People v. Harris, 66 Ill App2d 46, 213 NE2d 588; People v. Spaulding, 75 Ill App2d 278, 220 NE2d 331. The record in this case clearly shows an express and understanding waiver of hearing in mitigation by both defendant and his counsel. People v. Smice, 79 Ill App2d 348, 223 NE2d 548.

In reviewing sentences as authorized, it has been determined that substantial reasons for reducing a sentence must be shown. People v. Johnson, 68 Ill App2d 275, 215 NE2d 144; People v. Stevens, 68 Ill App2d 265, 215 NE2d 147; People v. Valentine, 60 Ill App2d 339, 208 NE2d 595; People v. Shockey, 66 Ill App2d 245, 213 NE2d 107. This determination coincides with the pronouncement of the Supreme Court that reviewing courts should exercise restraint and caution in reducing sentences imposed in the trial court. People v. Taylor, 33 Ill2d 417, 211 NE2d 673. See also People v. Davidovic, 68 Ill App2d 216, 215 NE2d 474. The burden is upon the defendant to present such evidence to the reviewing court upon the issue of the severity of the sentence as will authorize a reduction. As stated in People v. Shockey, 66 Ill App2d 245, 213 NE2d 107, the defendant should tell us about the reasons for reducing the sentence. See also People v. Smice, 79 Ill App2d 348, 223 NE2d 548; People v. Smith, 62 Ill App2d 73, 210 NE2d 574; Halperin, Appellate Review of Sentence in Illinois, 55 Ill Bar Jour 300, p 313. Upon this appeal nothing is presented except an assertion that the sentence is excessive.

There is claim of error in the impeachment of defendant by introduction of his record of prior conviction while such was pending on appeal. This issue is controlled by the majority opinion in People v. Spears, 83 Ill App2d 18, 226 NE2d 67. Upon a companion issue, the transcript does not support the assertion that the criminal record introduced to impeach defendant failed to show the return of the indictment into open court.

The conviction is affirmed.

Affirmed.

SMITH, P. J., concurs.

CRAVEN, J., dissents.

CRAVEN, J.,

dissenting:

There are two aspects of this case that compel this dissent. I agree with the majority opinion generally as to its disposition in all matters except the approval of the consecutive sentence and the approval of the use of a prior conviction which was pending on appeal for purposes of impeaching the defendant. The reasons for my views on the latter point are set forth in the dissenting opinion in People v. Spears, 83 Ill App2d 18, 27-31, 226 NE2d 67, 72-73 (4th Dist 1967).

Section 1-7 (m) of chapter 38, Ill Rev Stats 1967, authorizes the sentencing court to impose concurrent or consecutive sentences for offenses not arising out of the same conduct. It has long been held that in the absence of a specific determination by the sentencing judge, multiple sentences were to be served concurrently. See People ex rel. Clancy v. Graydon, 329 Ill 398, 160 NE 748 (1928); People v. Kamrowski, 412 Ill 383, 107 NE2d 725 (1952). It seems clear from the statutory scheme of sentencing which provides for indeterminate sentences to be imposed by the trial judge and, for the first time in Illinois, appellate review of sentences, that while a sentencing judge is authorized to impose consecutive sentences, the act of so doing must find substantial basis in the record and must be done in the exercise of judicial discretion. No finding is made in this record sufficient to warrant consecutive sentence.

The consequence of the consecutive sentence is that the defendant must first serve the five to fifteen-year sentence and at the conclusion of that sentence he then must serve the five to ten-year sentence. It cannot be determined with certainty the time to be served, but it seems fitting to examine the possible consequences of the consecutive sentence with reference to the legislative framework for sentencing and enlightened penology.

The legislature has said it is the general purpose of the criminal law that sentences be imposed so as to provide penalties that are proportionate to the offense and which permit of recognition of differences in rehabilitation and to prevent arbitrary or oppressive treatment of persons convicted of offenses. (Ill Rev Stats 1967, c 38, § 1-2(c), (d).) Many factors must be considered in the imposition of a sentence. The ultimate objective of a sentence must involve punishment, isolation from society, rehabilitation, deterrence, consideration of the law violated, its immediate and long-range purposes, public attitudes toward the law, as well as all factors personal to the individual offender including his age, mental and physical health, education, occupational capabilities and previous good or bad conduct. (See Boldt, Recent Trends in Criminal Sentencing, Fed Prob, March 1963, p 3.)

A sentencing judge has a difficult and unenviable task. The imposition of a sentence necessarily involves prediction of human behavior. Professionals in the behavioral sciences are imperfect in their predictions after studied evaluation of offenders. A sentencing judge, without the benefit of the studies of the professionals, must, nonetheless, by his sentence, make a prediction. Indeterminate sentencing is provided and is designed to minimize the necessity for such prediction. Few could disagree with the observation of Dr. Karl Menninger that no man can tell in advance how long it will take to effect a change in a human being. (Address by Karl Menninger, M.D., Community Attitudes vis-a-vis the Offender, ABA, Proceedings of Section on Criminal Law 84 (1958).) The indeterminate sentence is designed to keep a defendant incarcerated until such time as his release is thought not to be a threat to the public safety. It is also designed to permit of release at the time of optimum rehabilitation.

This defendant is eligible for parole on the first sentence after the expiration of three years and nine months. Parole to the outside community is impossible by reason of the consecutive sentence. If he is held to do the maximum on the first sentence, without parole, he must serve ten years — then he would start service on the consecutive sentence and would be eligible for parole on that sentence after the total expiration of thirteen years and nine months. Such a period of incarceration is in excess of the statutory period of twenty years less good time or eleven years and three months for all offenses. (Ill Rev Stats 1967, c 38, § 123-2(a) (3).) The offense here involved is subject to an indeterminate sentence with a minimum of not less than two years. (Ill Rev Stats 1967, c 38, § 18-2 (b).)

The Tentative Draft (December 1967) by the Committee of the American Bar Association on Mmimnm Standards for Criminal Justice, in the area of Sentencing Alternatives and Procedures, after its study, concluded that consecutive sentences are “rarely appropriate.” The commentary on its recommendations for action in this regard is convincing.

There being no basis in this record for a consecutive sentence, the same should be vacated and remanded for further proceedings, or this court, under the authority-granted by Supreme Court Rule 615, should modify the sentence by deleting the requirement that it run consecutively.

       In People v. Barney, 89 Ill App2d 180, 232 NE2d 481 (1st Dist 1967), the court approved the use of a prior conviction on appeal that was ultimately reversed for purposes of impeachment, but held that sentencing the defendant as a subsequent offender by reason of the prior conviction entitled the defendant to re-sentencing. In the instant case, the conviction on appeal that was used for impeachment was ultimately affirmed (38 Ill2d 607, 232 NE2d 684 (1968)).


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leonard L. Davis, Defendant-Appellant.
    Gen. No. 51,494.
    First District, Third Division.
    April 4, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

About 2:00 p. m. on October 7, 1965, four men entered the Carson Pirie Scott & Company store at 71st Street and Cicero Avenue in Bedford Park. After looking around to see if anyone was watching each man took an armful of coats from the merchandise racks on the first floor and walked out the door. The supervisor of the store detectives, who was sitting in an upstairs lookout 15 feet from the coats, saw what they did and followed them into the store’s parking lot. They did not stop when he told them to and he fired his gun in the air. Two men dropped the coats they were carrying and ran. The other two stopped, cried “don’t shoot” and were taken into custody by the detective. One of these was the defendant Leonard Davis.

An off-duty Chicago policeman heard the shot as he was driving by. He stopped his car and arrested the two men who were running away. The four men and all the coats were brought into the store. The detective counted the coats, added up their sales tags and determined that their value was $800. He told the men that they would be charged with “grand theft.” Davis asked him to reduce the charge to petty larceny.

The men were indicted for theft. Three pleaded guilty; two received sentences of one to five years and the third a sentence of one to ten years in the penitentiary. Davis pleaded not guilty. He was tried by a jury and convicted. He was sentenced to a term of four to ten years in the penitentiary.

His contentions on appeal are that there was a reasonable doubt of his guilt and that there was a reasonable doubt that the stolen property was worth more than $150.

Davis did not testify in his own behalf but his codefendants did. Each of them testified that Davis was not with them when the coats were stolen — that the fourth man was Robert Baker. They said that they entered the store, saw that the clerks were in the back of the store watching television (a world series baseball game was being televised), took a few coats, then returned and took some more.

If their testimony was truthful, Davis was innocent; if the testimony of the store detective was correct, Davis was guilty. The jury chose to believe the detective who said he caught Davis red-handed, rather than the thieves who said he was not their accomplice. This is not surprising. The detective observed the four men for a minute and a half; he saw their faces and he pursued them; three of the four admitted by their pleas of guilty that he was right in his identification. He apprehended two of the men himself. These two had not gone far — they were stopped a minute or two after leaving the store — and they were carrying some of the stolen coats. One of the two was Davis. Although his associates tried to exculpate him after they themselves had been sentenced, they did not do so at the time of his arrest. Not one of them said that Davis was not a participant; not one of them said that he was an innocent bystander unknown to them. And, so far as that goes, neither did Davis. His guilt was proved beyond any doubt.

In his argument to the jury Davis’ counsel contended that the State had failed to prove that the stolen goods was over the value of $150. He told the jury that this was important because of the effect it would have upon Davis’ punishment in the event they found him guilty. He pointed out that only the detective had testified as to value and that his duties were far afield from those of a manager, buyer or merchandiser; that the coats were not in court and there had been no testimony as to their number or whether they were mink coats or raincoats. The same arguments are made in this appeal.

The indictment charged Davis and the others with the theft of 26 coats and 4 sweaters of the value of more than $150. The coats were not produced in court but a picture of them taken at the police station immediately after the theft was introduced into evidence and shown to the jury. The jurors knew what kind of coats were involved. The evidence showed that price tags were attached to the coats. The supervising detective, who had worked for Carsons for 13 years and who testified that he was familiar with the store’s merchandise both as detective and customer, inventoried the coats and tabulated the sales tags. He testified that the sales price was $800. The jury found Davis guilty of theft in manner and form as charged in the indictment. By this verdict they found that 26 coats and 4 sweaters had been stolen and that their total value was in excess of $150. The jury’s verdict was based on evidence and testimony which established the value of the merchandise beyond a reasonable doubt.

The judgment is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    Liberty Mutual Insurance Company, Plaintiff-Appellee, v. Seymour Gordon, d/b/a Webb Enterprises, Defendant-Appellee, and Fidelity General Insurance Company, Garnishee-Defendant-Appellant.
    Gen. No. 51,947.
    First District, Third Division.
    April 4, 1968.
    Rehearing denied April 30, 1968.

      Sullivan & Cooper, and Canel & Canel, of Chicago (Jay A. Canel, of counsel), for appellant.
    Sweeney and Riman, of Chicago (Marvin Riman, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is a garnishment action in which the plaintiff, Liberty Mutual Insurance Company (Liberty), claims that an Illinois workmen’s compensation policy issued by the garnishee-defendant, Fidelity General Insurance Company (Fidelity), to the defendant, Seymour Gordon, d/b/a Webb Enterprises (Gordon) covered a project undertaken by Gordon in Wisconsin.

In May of 1959 Gordon, a scrap metal dealer in Chicago, Illinois, called an insurance broker and requested workmen’s compensation insurance for his business. The broker wrote Fidelity stating that Gordon was a metal dealer with an estimated annual payroll of $7,000. In June, 1959, Fidelity issued a policy to Gordon for one year.

Four months later, Gordon entered into a written agreement with Lernor Iron & Metal Company, Inc. (Lernor) for the dismantling and scrapping of the metal components of a power station located in Beloit, Wisconsin. He asked Fidelity to certify to Lernor that he had workmen’s compensation coverage but, unlike other requests from Gordon for certificates of insurance for his customers, this one was refused. Gordon then commenced the project without securing other workmen’s compensation coverage.

In December of 1959 one of Gordon’s employees at the power station was injured. Gordon notified Fidelity, which denied liability and refused to defend him.

Thereafter, the Industrial Commission of Wisconsin made an award to the injured employee. The award was paid by Lernor’s insurer, Liberty, which then sued Gordon in Wisconsin for reimbursement and obtained a judgment against him. This judgment was recognized in Illinois in a suit against Gordon in the Circuit Court of Cook County. To recover on this judgment, Liberty then sought to garnish the debt which it claimed Fidelity owed Gordon under Fidelity’s policy. The trial court found that the policy covered the Wisconsin project and entered judgment in favor of Liberty.

Fidelity appeals from the judgment. It contends that it is not liable under its policy because (1) Gordon’s Wisconsin undertaking was of a different nature than his Illinois business, (2) that an endorsement in its policy . (termed the “All States Endorsement”) did not extend coverage to the Wisconsin undertaking under the circumstances of this case and (3) because Gordon made material misrepresentations of fact in obtaining the policy.

The policy described Gordon as an iron or steel scrap dealer with an estimated annual payroll of $7,000. In addition, just after the issuance of the policy, an engineer, who had been ordered by one of Fidelity’s underwriters to inspect Gordon’s business, described it as a buying and selling operation, consisting almost entirely of picking up metals at various factories. His written report stated that the work was performed by Gordon and one employee, and that no power equipment was used other than one truck. In contrast, Fidelity claims that the Wisconsin project was a demolition operation involving the use of cutting torches, with four to nineteen employees and a payroll of approximately $30,000.

Whether there was a substantial change from the risk described in the insurance policy was a question of fact resolved by the trial court in favor of the plaintiff. The finding of fact by the trial court is to be accorded the same weight as the verdict of a jury and it will not be reversed on review unless it is against the manifest weight of the evidence. Porterfield v. Truck Ins. Exchange, 28 Ill App2d 195, 171 NE2d 108 (1960).

The trial court’s finding was not contrary to this standard. First, Gordon testified that it was customary in the scrap metal business to cut the items purchased with torches to obtain usable metal to ease handling and transportation. Second, he testified that in the ordinary operation of his business he dismantled and scrapped large metal objects such as baking ovens, boilers and water towers; that in doing so he used cutting tools and torches and that this was the same equipment used on the Wisconsin job. Third, Fidelity had certified that Gordon was insured under its policy when he undertook the projects just mentioned, which involved the same sort of activity as the operation in Wisconsin. Fourth, Fidelity, in refusing to issue a certificate for the Wisconsin operation, gave as its reason the fact that it did not have authority to write workmen’s compensation insurance in Wisconsin, not that the Wisconsin project was substantially different from the risk covered in the policy. From this testimony and evidence the trial court could reasonably find that the dismantling and scrapping of the metal objects on the premises of the power station in Wisconsin was performed in the ordinary course of Gordon’s work as a metal dealer and that this did not involve a substantial change in risk from that covered in the policy.

Fidelity next contends that Gordon cannot recover under the terms of the “All States Endorsement.” This endorsement provides:

“A. In the event the insured undertakes operations in any state not designated in Item 3 of the declarations, other than Nevada, North Dakota, Ohio, Oregon, Washington, West Virginia or Wyoming, the company agrees as follows:
“1. To reimburse the insured for all compensation and other benefits required of the insured under the workmen’s compensation or occupational disease law of such state. . . .”

The endorsement is intended to provide for possible exposure to liability under state workmen’s compensation laws to which the insured does not expect to be subject. See, for example, the typical situations presented in the insurance industry’s authoritative publication, The Fire, Casualty and Surety Bulletin, Casualty and Surety Section, Workmen’s Compensation subsection, WC Bas-1, December, 1954:

“(1) An employe might unexpectedly be sent into a state which was not considered at all when insurance was written and the law of that state [might] be broad enough to include him. (2) A change in the law of a particular state or a new interpretation of the law by an administrative body or court might bring an employe under it. (3) An unexpected expansion of the insured’s activities in a particular state — hiring some more employes locally or changing the duties of some employes— might bring employes under the law of another state.”

In the present case Fidelity argues that the endorsement does not protect Gordon because he knew that he would be exposed to Wisconsin law at the time he began his work in that state. However, as indicated in the foregoing examples in the National Underwriters’ bulletin, the relevant period to determine the expectation of coverage is the time of entering the policy. At that time, Gordon did not know that he would be doing work in Wisconsin. His exposure to the workmen’s compensation law of that state was unexpected and he was therefore covered under the “All States Endorsement” for the ensuing liability.

Fidelity further contends that Gordon cannot recover under this endorsement because it had the right, which it exercised, to require Gordon to take steps to bring himself within the Wisconsin workmen’s compensation laws. However, Fidelity never requested Gordon to bring himself within these laws; it merely refused to certify that its policy covered the Wisconsin operation. Moreover, even if it had requested Gordon to take such a step, it would be in breach of a concomitant provision of the policy to “issue, in the form required by [the laws of Wisconsin], workmen’s compensation coverage under such laws. . . .”

Fidelity also contends that Gordon cannot recover because he paid no compensation to the injured employee and therefore there is no duty to reimburse him. However, the plaintiff in a garnishment action may have the property of its judgment debtor applied to the payment of his debts. In this case, the property of the judgment debtor, Gordon, is his cause of action for breach of contract against Fidelity for the latter’s refusal to defend the suit brought against him by Liberty. The measure of damages is the amount Liberty recovered against Gordon plus interest and costs. See Kinnan v. Charles B. Hurst Co., 317 Ill 251, 148 NE 12 (1925); Sims v. Illinois Nat. Gas. Co., 43 Ill App2d 184,193 NE2d 123 (1963).

Finally, it is contended that Gordon was guilty of a material misrepresentation of fact in his application for insurance and that as a result Fidelity has the right to void the policy. Fidelity claims that Gordon represented his business as a scrap metal dealer when he actually conducted a “wrecking” operation. However, the trial court found that a scrap metal dealer cuts and dismantles items in the ordinary course of his business. Thus, there was no misrepresentation to Fidelity and we need not consider Fidelity’s contention further.

The judgment of the Circuit Court will be affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.