author: Mr. JUSTICE DRUCKER

text:
    Anco Investment Corporation, Plaintiff-Appellee, v. Joseph Spencer, Defendant-Appellant.
    (No. 54826;
    First District
    August 20, 1971.

      Rehearing denied September 30,1971.

    Ron Fritsch, of Chicago, for appellant.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant appeals from a judgment of confession entered against him on May 28, 1989, and from an order entered on December 22,1969, confirming the judgment in the amount of $364. On appeal defendant contends that the contract upon which Anco Investment Corporation (hereafter “Anco”) bases its claim is illegal since it fails to comply with the provisions of the Retail Installment Sales Act (hereafter “Act”). Ill. Rev. Stat. 1965, ch. 121½, pars. 223 through 253.

Although Anco has filed no appearance or brief, we shall still review the merits of this appeal rather than enter summary reversal. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264.

No verbatim report of proceedings has been filed. However, a proposed report of proceedings was submitted by defendant and was approved by the trial judge. (Ill. Rev. Stat. 1967, ch. 110A, par. 323(c).) It shows that Anco called defendant as an adverse witness under section 60. Defendant testified that on October 11, 1967, Anco and he entered into an agreement (1) to cancel their previous contractual relationship which concerned an automobile which he bought from Gateway Motor Mart (hereafter “Gateway”) and which was financed by Anco; (2) to release defendant from his debt to Anco then in the amount of $400; (3) to give Anco possession of the previously purchased automobile; and (4) to purchase a 1960 Cadillac from Gateway, the purchase to be financed by Anco.

Defendant also testified that the $1,500 principal amount of the instrument included the price of the 1960 Cadillac, finance charges and the $400 that he previously owed to Anco; the 1960 Cadillac was presently located at 4607 South Prairie Avenue, Chicago; and that he had asked Anco to come and pick up the automobile.

The manager of Anco testified that defendant paid $790 on the principal amount of $1,500 due Anco; that to his knowledge defendant purchased the 1960 Cadillac for his own use and not for resale or use in any business; and that title to tire car remained with Anco.

Defendant testified in his own behalf. He stated that he purchased the 1960 Cadillac for his own use; that Anco still held title to the car; and that Anco could repossess the automobile at any time.

The trial court found that defendant owed Anco $310 plus attorneys’ fees and confirmed judgment for $364.

Defendant contends that the contract upon which Anco bases its claim is illegal since it fails to comply with sections 2 and 3 of the Act. (Ill. Rev. Stat. 1965, ch. 121½, pars. 244 and 255.) The contract entered into on October 7, 1967, between Anco, Gateway and defendant is a retail installment contract within the meaning of Section l. The 1960 Cadillac falls within the definition of “goods” because it is “tangible personal property”; defendant is a “retail buyer” because he is a “person who buys goods from a retail seller in a retail installment sale”; Gateway is a “retail seller” because it “sells goods to a retail buyer”; the transaction is a “retail installment sale” because it is a “sale, other than for a commercial or business use or for the purpose of resale of goods by a retail seller to a retail buyer for a time sale price payable in two or more installments”; and the “time sale price” is the “cash sale prices of the goods and the amount, if any, included for insurance and other benefits, official fees and finance charges.”

Section 2 of the Act lists the general requirements for retail installment contracts as:

“The contract shall contain, printed or written in a size equal to at least ten-point bold type the following:
(a) Both at the top of the contract and directly above the space reserved for the signature of the buyer, the words ‘RETAIL INSTALLMENT CONTRACT’; and
(b) the following notice: ‘NOTICE TO THE BUYER: 1. Do not sign this contract before you read it or if it contains any blank space. 2. You are entitled to a completely filled in copy of this contract when you sign it. 3. Under the law, you have the following rights, among other: (a) To pay off in advance the full amount due and to obtain a partial refund of the finance charge; (b) Under certain conditions, to redeem the property if repossessed for a default.’
The contract shall contain the names of the seller, the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer and a description of the goods including its make, model and identification number or marks, if any.”

In the instant case, however, (1) the contract was not signed by the seller; (2) the words “RETAIL INSTALLMENT CONTRACT” did not appear at the top of the contract and directly above the space reserved for the signature of the buyer; (3) “NOTICE TO THE BUYER” did not appear; and (4) the contract did not contain Gateway’s place of business nor a description of tire goods.

The contract signed by defendant also fails to meet any of the specific requirements of retail installment contracts set forth at Section 3 which provides:

“Every contract shall contain the following items:
(a) The cash sale price of the goods which are the subject matter of the retail installment sale;
(b) The amount of the buyer’s down payment, itemizing the amounts paid in money and in goods and containing a brief description of the goods, if any, traded-in;
(c) The difference between items (a) and (b);
(d) The amounts, if any, charged for insurance and other benefits, specifying the coverages and benefits;
(e) The amount of official fees, as defined in section one.
(f) The principal balance, which is the sum of items (c), (d) and (e);
(g) The amount of the finance charge;
# # #
(h) The time balance, which is the sum of items (f) and (g), payable in installments by the buyer to the seller, the number of installments required, the amount of each installment expressed in dollars and cents and the due date or period thereof;
(i) The time sale price.”

Defendant argues that since the contract fails to comply with the requirements of sections 2 and 3 it is an illegal contract and cannot be enforced against him. Defendant relies on DeKam v. City of Streator, 316 Ill. 123, 129, wherein the court stated: “A contract expressly prohibited by a valid statute is void. This proposition has no exception, for the law can not at the same time prohibit a contract and enforce it. The prohibition of the legislature cannot be disregarded by the courts.” However, in drafting the Act our legislature did not prohibit contracts for retail sales. It specified the formalities and protective safeguards of these contracts and provided penalties for failure to comply. This is evidenced by section 20 (Ill. Rev. Stat. 1965, ch. 121%, par. 243) which after setting out the criminal penalty provides: “Notwithstanding the provisions of this section, the failure to comply with any provisions of this Act may be corrected by the seller at any time after the execution of the retail installment contract or in any event not later than 10 days after the seller is notified thereof in writing by the buyer, and, if so corrected, neither the seller, nor the holder is subject to any criminal penalty under this or any other section of this Act.”

Another indication of the legislature’s intent is found in section 17 (Ill. Rev. Stat. 1965, ch. 121%, par. 240) wherein.two civil penalties are provided for: “In case of failure of the seller or holder to comply with the provisions of this Act, the buyer has the right to recover from the seller or holder, as the case may be, an amount equal to the finance charge of 10% of the cash price if no finance charge is specified in the contract or supplementary statement, whichever is the greater, plus reasonable attorneys’ fees.”

In Grody v. Scalone, 408 Ill. 61, 64, the court stated: “The question presented to us is to determine the intent of the legislature as to whether or not it intended, in addition to subjecting the plaintiff here to an expressed penalty, to impose the additional and greater penalty of refusing him any relief on his contract entered into without compliance with the statute. In cases of this character, whatever decisions to the contrary may be found, there is no inflexible rule of arbitrary application for the determination of the effect by implication of the prohibitory statute. The question presented is one of legislative intent to be gathered from the language of the statute read in the light of the circumstances with which it deals, with such considerations of public policy as may be involved in the conflicting claims of construction. Whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, it does not seem reasonable, under conditions where a person has furnished material and labor on a just basis, without fraud on his part, that it be taken for granted that the legislature meant the contract entered into for such purpose is to be held void in the sense it cannot be enforced in a court of justice.” See also Meyer v. Buchman, 7 Ill.App.2d 385.

We believe that since the statute regulating installment sales gives exclusive remedies to the buyer, the buyer is limited to these remedies and cannot raise the defense of illegality as a total bar to recovery by the seller.

Defendant further claims that where the specific items required by section 3 are not found in the contract, a court cannot fix either the finance charge or the cash price, and therefore the remedies provided by section 17 are of no use. However, we believe that determining the cash price or finance charge is a matter of proof which the trial court can ascertain after evidence is proffered by the parties. By discovery proceedings of Gateway’s and Anco’s books and records, defendant should be able to ascertain the cash price or finance charge for the 1960 Cadillac.

We note that sections 1 through 29 of the Retail Installment Sales Act, 1965, ch. 121%, were repealed pursuant to legislative enactment as of July 26, 1967. Section 17 of the former Act has not been incorporated in the new Retail Installment Sales Act effective January 1, 1968. (Ill. Rev. Stat. 1969, ch. 121½, par. 501-533.) However, the penalty section of the new Installment Act, section 31, (Ill. Rev. Stat. 1969, ch. 121½, par. 531) provides for both civil and criminal penalties:

“(a) Any person who knowingly violates this Act is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 12 months in a penal institution other than the penitentiary, or both.
(b) No person who violates this Act, except as a result of an accident or bona fide error of computation, may recover any finance charge, any delinquency or collection charge or any refinance charge in connection with the related retail installment contract or retail charge agreement.”

We also note that if the contract in the Instant case had been entered into after January 1, 1968, it would not be regulated by the new Installment Act, but would rather come within the purview of the Motor Vehicle Retail Installment Sales Act effective January 1, 1968. (Ill. Rev. Stat. 1969, ch. 121½, pars. 561-586.) Section 24(a) and (b), Penalties, (Ill. Rev. Stat. 1969, ch. 121½, par. 584), provides:

“(a) Any person who knowingly violates this Act is guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 12 months in a penal institution other than the penitentiary or both.
(b) No person who violates this Act, except as a result of an accident or bona fide error of computation, may recover any finance charge, any delinquency or collection charge or any refinance charge in connection with the related retail installment contract.”

The judgment is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

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

       “Retail installment contract” or “contract” means and includes any agreement, negotiated or entered into in this state, including a chattel mortgage, conditional sale contract, or any other form of instrument evidencing an agreement to purchase goods for delivery to a person residing in the State of Illinois, other than for a commercial or business use or for the purpose of resale, by payment of the purchase price in two or more installments over a period of time and pursuant to which title to, or a lien upon the goods, which are the subject matter of the sale, is retained or taken by the seller as security, in whole or in part, for the buyers obligation. (Ill. Rev. Stat. 1965, ch. 121½, par. 223.)


source: Caselaw Access Project

author: Mr. JUSTICE JONES Mr. JUSTICE MORAN

license: Public Domain

text:
    Lillian Finesilver, Plaintiff-Appellee, v. Catherine Caporusso, Defendant-Appellant.
    (No. 53772;
    First District
    August 27, 1971.

      MORAN, J., dissenting.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, (Donald J. Duffy, of counsel,) for appellant.
    Michael H. Postilion, of Chicago, (Aaron P. Brill and Harold Cowen, of counsel,) for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Plaintiff, Lillian Finesilver, brought this action to recover damages for personal injuries sustained by her in a fall on the premises of defendant, Catherine Caporusso, her landlady. The jury returned a verdict for plaintiff for $6000, upon which the court entered judgment. The defendant appeals.

Plaintiff was a tenant in the apartment building owned by defendant located at 1000 California, Chicago, Illinois. Defendant’s premises consisted of a three-story apartment building and an adjacent one-story building, the roof of which abutted the rear stairs of the apartments. This roof was divided into a concrete patio section and a tarred section by a fence extending the width of the roof. The concrete section was for the use of any of the tenants. This fence consisted of two horizontal rails attached to four posts with several vertical slats between them. The fence posts extended well above the top rail and the tops of these posts are used as an attachment for one end of a clothesline. Each post is embedded in a concrete base which forms a ridge several inches high beneath the lower rail, Plaintiff's apartment was on the second floor and had a door onto the concrete patio. Several of the windows to plaintiff's apartment were accessible from the tarred section of the roof and during the thirty-three years she had lived in the building, and for a long time before defendant became its owner, plaintiff had climbed the fence to go onto this section to wash her windows. It does not appear at what interval of time plaintiff washed her back windows. Her front windows were washed by a professional window washer.

The screens and the installation of screens were provided as a part of the maintenance of the building by the building owner. On the occasion in question, there was a partial opening in the screen which admitted flies to the plaintiff’s kitchen. She attempted to take the screen down from the inside by pressing on it, but was unsuccessful. During the afternoon of September 16, 1962, plaintiff climbed over the fence to push the screen on her kitchen window from the outside. After pushing the screen down, she started to climb back over the fence. She placed one foot over the fence and stepped on a concrete base of a fence post while she brought her other leg over the fence. Her foot slipped off the concrete base and she fell on her left side, breaking her hip.

Plaintiff testified that on many occasions she suggested to Joe Caporusso, defendant’s brother and maintenance man on the building and also a tenant of the building, that he make a gate in the fence to make it easier for her to get to her windows. She suggested this to him whenever she was washing her windows and he was present. Defendant testified, however, that she never saw plaintiff washing these windows, that she never learned from any source how plaintiff washed her windows. Joe Caporusso did not testify. The fence was originally built to prevent children from going onto the tarred section of the roof. At the time of the accident the ages of the only two children living in the building were fourteen and fifteen. The fence was in existence in 1945 when defendant bought the building.

At the conclusion of plaintiffs evidence, defendant made a motion for a directed verdict which was denied. Defendant introduced no evidence. Defendant’s theory on appeal is that the trial court erred in denying her motion because (1) the evidence failed to prove the breach of a legal duty owed to the plaintiff and (2) the evidence was clear that plaintiff was guilty of cotitribufory negligence as a matter of law.

There is no allegation in the complaint ñor attempt to prove that the fence itself was defective. Rather, plaintiff contends that defendant knew of and acquiesced in the use of the tarred section of the roof in order to wash her windows and knew that she crossed the fence for that purpose. Plaintiff further urges that it was the duty of the defendant to make it reasonably safe for her to cross the fence.

The applicable rule of law is set forth by the plaintiff in that the general duty imposed upon a landlord is to use ordinary care to keep a portion of the premises reserved for the common use and under the landlord’s control in a reasonably safe condition. (See Loveless v. Warner, 37 Ill.App.2d 204, 185 N.E.2d 392, and cases cited therein. The plaintiff’s contention is that her occasional use of the fenced off portion of the roof created a customary use of which the defendant was aware, giving rise to a duty to exercise ordinary care or to prohibit the use, citing North Chicago Street Railroad Co. v. Kaspers, 186 Ill. 246, 57 N.E. 849, in which case the defendant’s employees customarily helped patrons to get on moving railroad cars.

Under the undisputed evidence it does not appear that the fence and the fenced off area was a portion of the premises reserved for common use, thereby giving rise to the duty to the landlord to keep it in a reasonably safe condition. The best that can be said for the plaintiff is that the landlord tolerated her occasional use of a roof area, which had been fenced off for the purpose of prohibiting access, in order to permit the plaintiff to wash her back windows. We are not aware of any cases which impose the duty upon an owner of property to prohibit access to private areas. We can find no implied invitation from the fact that a fence without a gate was erected and that the area was roofed rather than covered with concrete as was the adjoining patio area. We are not aware of any duty upon the landlord to provide access to the exterior of windows for the purpose of washing them.

In Culver v. Kingsley, 78 Ill.App. 540, the landlord had two tenants each of whom occupied one story of the frame home. A portion of the first story had a flat, shed roof and the plaintiff frequently used this roof as a place for drying clothes. This roof was not included in the lease. Plaintiff’s suit was for personal injmres sustained when she feU through a portion of the roof and the First District set aside a verdict for the plaintiff saying: “There is evidence of a permission to appellee to thus use the roof. But such permission would not of itself impose upon the landlord an obligation to keep it in repair for that purpose.”

Subsequently, this court in Hansen v. Gromoll, 232 Ill.App. 485, reversed a judgment for the plaintiff where the landlord of an apartment building permitted one of several tenants to have exclusive use of a storage locker, not leased to her, in which the plaintiff contacted an exposed electric wire, holding that the landlord was not guilty of any negligence toward the plaintiff.

Accordingly, we find no evidence has been presented which raises a duty on the part of the landlord to provide a reasonably safe access to the plaintiff. The plaintiff was either a licensee or a trespasser on the portion of the roof in question and she was not injured by any active conduct by defendant. No trap existed since the plaintiff was at least as familiar as the landlord with the condition of the fence which she voluntarily undertook to use as a means of access for her own, and not the landlord’s, convenience. The plaintiff made no attempt to show the fence contained some faulty or dangerous condition. The evidence presents plaintiff’s encounter with a known condition. While the jury is to decide whether a fifty year old woman is guilty of contributory negligence in climbing a four foot fence, they cannot convert a dangerous act into a dangerous condition.

It is not claimed that the defendant violated any duty owing to any licensee or trespasser and there was, therefore, no evidence upon which a verdict could ever stand, as announced in Pedrick v. Peoria & Eastern Railway Co., 37 Ill.2d 494, 229 N.E.2d 504.

The trial court erred in failing to direct a verdict for the plaintiff at the close of plaintiff’s case since plaintiff failed to establish a duty on the part of the defendant and a necessary element of a cause of action is absent. Accordingly the judgment of the trial court must be reversed and it is so ordered.

Judgment reversed.

EBERSPACHER, J., concurs.

Mr. JUSTICE MORAN

dissenting:

Generally, where a portion of the premises is reserved for common use and is under the landlord’s control, a duty is imposed upon him to use ordinary care to keep such a portion of the premises in a reasonably safe condition. Loveless v. Warner, 37 Ill.App.2d 204.

Although in the present case the portion of the premises being used by plaintiff when she was injured was not reserved for the common use of all tenants, I can find no basis for relieving a landlord of his duty to keep such premises in a reasonably safe condition where he retains control of the unleased portion of the premises and permits or invites its use to fewer than all the tenants, either expressly or impliedly from cutomary use, provided the premises are being used in the customary manner when the injury occurs. I find support for this position in 2 Restatement, Torts 2d, Section 360, which provides:

“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessors control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
See also 32 Am. Jur., Landlord and also Rosmo v. Amherst Holding Co., 50 N.W.2d 698.

The evidence shows and the defendant does not dispute that she had retained control of the roof and fence used by the plaintiff on the day she was injured. Plaintiff had been going onto the roof periodically to wash her windows since before defendant bought the building in 1945. I believe that under these circumstances defendant owed plaintiff a duty of ordinary care to keep the roof in a reasonably safe condition. Whether defendant breached this duty by failing to provide safer access to the tarred portion of the roof was a question for the jury.

I would affirm the judgment of the trial court.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    In Re Estate of Mary A. Elwell, Deceased, (Frances M. Golec, Administratrix,) Petitioner-Appellee, v. Sterling Savings and Loan Association, et al., Respondents-Appellants.
    (No. 54044;
    First District
    August 27, 1971.

      S.M. Del Principe, of Chicago, (R. L. Benjamin, of counsel,) for appellants.
    James C. Byrne, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order, based on findings in the Probate Division, in a citation proceeding, that certain funds on deposit in the respondent savings and loan association were assets of the Estate. The co-respondent S. M. Del Principe has brought this appeal.

Tlie citation proceeding was instituted on September 24, 1988, by the petition of the administrator seeking to declare funds on deposit with the Sterling Savings & Loan Association in an account, then in the name of Respondent S. M. Del Principe, to be the property of the Estate. Hearing was held on February 7, 1969, and the court ordered that the funds in the Sterling Savings & Loan were assets of the estate (except for a small portion thereof) and at present the funds, plus interest, are being retained by the Savings & Loan for further order of that court pending this appeal. The final order of the court below was dated March 10,1969, Nunc Pro Tunc as of February 7,1969.

The evidence shows that the decedent died intestate on October 10, 1964, in the City of Chicago. The Circuit Court of Cook County, Probate Division, issued Letters of Administration to Frances M. Golee, the adopted daughter of the decedent. The petitioner presented evidence that on the date of death there was on deposit in the Sterling Savings & Loan, in account number 21052, the sum of $9,039.54 in the name of decedent alone. The petitioner further, primarily through ledger sheets and other savings and loan records, produced evidence that the funds in account number 21052, referred to hereafter as the second account, were previously held by the decedent in joint tenancy with the present administrator. This account number 19317, referred to hereafter as the first account, had been closed by the transfer of all of its funds on September 1, 1964, to the second account. Then on October 12, 1964, two days after the death of the decedent, the funds in the second account, some $9,039.54, were transferred into account number 21431, referred to hereinafter as the third account. This third account was in the name of S. M. Del Principe, POD (payable on death) Frances Monica Elwell, nee Golee the present administrator). The record indicates that there are proper documents, i.e. account card ledger sheet and withdrawal order, for each of the transactions and accounts which took the $9,039.54 from the first account to the third account except for the withdrawal order for the transaction from the second account to the third account, the transfer that occurred two days after the death of the decedent. The second account card indicated that only the decedent had the privilege of withdrawing funds. At the conclusion of this evidence the petitioner rested her case whereupon the Respondent Del Principe moved to dismiss the petition or for a finding in favor of the defendants because of petitioners failure to make a prima facie case.

The respondent’s motion was denied.

The court then proceeded to hear the appellant-respondent’s evidence.

The respondent called the petitioner to testify, testified himself, and called the only other person to testify, a lawyer who had worked for the Savings & Loan at the time of the transfers but was no longer so employed.

The petitioner testified that she was decedent’s only child, that in the fall of 1964 she was 18 years old. She said that up until August 28, 1964, she had lived alone with her mother and had attended school. On August 28th, she left home and got married on September 4, 1964, without her mother’s consent or knowledge. She did not inform her mother of her whereabouts and the marriage until about two weeks after the marriage. During the petitioner’s absence from home the decedent had reported her missing to the authorities and had sought police aid in locating her.

The testimony of the respondent discloses that he is a lawyer having practiced in Chicago since 1935; that he is a brother of the decedent and that the two lived as neighbors. The decedent paid rent to the respondent and that the respondent had his own keys to the decedent’s home; that during decedent’s hospitalization respondent was in the residence almost daily to feed her dog. Also it was during hospitalization that respondent cashed decedent’s payroll checks, purchased things for decedent, paid bills, and obtained for the decedent what decedent desired from her apartment. The respondent visited the decedent regularly while she was hospitalized.

The decedent’s final Hlness started in February, 1964, when she went to the hospital for a slipped disc and stayed until April. She returned to the hospital in the middle of August, 1964, and stayed about a month until September, 1964. The treatment was again for a slipped disc. On October 6, 1964, the decedent returned once again to the hospital and the diagnosis was changed to spinal cancer. She was operated on October 7,1964, and died on Saturday, October 10,1964.

The respondent testified about the events from August 29, 1964, until his sister’s death. He visited her regularly at the hospital and on August 29, 1964, he had the first conversation about her savings account. On August 31, 1964, decedent instructed the respondent to put his name on the account and to take the petitioner’s name off because the decedent did not know what had happened to the petitioner. Respondent then went to the Savings and Loan, got a withdrawal slip which he took to the decedent for her signature and then had the account number one closed and account number two opened. The respondent then took the bankbook to the hospital to give to his sister. The respondent testified that the decedent looked at it and “threw the bankbook at me and said, ‘This is not what I wanted to do. I wanted it in your name. I’m giving it to you. It’s yours’ ”, This conversation occurred on September 1, 1964. The decedent then requested respondent to obtain another withdrawal sfip which he did and the decedent then signed it. Subsequently, in two or three days, the decedent inquired of the respondent if he had done as she instructed and he informed her he had. The two never again discussed the pass book or the account.

On Monday, October 12, 1964, respondent presented the withdrawal slip and book for the second account and closed it by transferring all funds to the third account.

Mr. Feldman was subpoenaed and testified that he was the former attorney for Sterling Savings and Loan Association, and no longer represented it. He further testified that he had a conversation with the respondent on May 22, 1965, seven months after the death of Mary A. ElweH, wherein the respondent told him that he, (the respondent), did not claim the money in the account as his personal funds, that he put the money in his name because he and the decedent had been afraid that, if Frances obtained the funds, her then husband would see to it that she didn’t have the money.

The testimony was concluded by petitioner testifying that two weeks after her mother’s death, whffe in the respondent’s apartment, the respondent had led her to believe that the money was stiU intact in an account in her mother’s name and had asked her for permission to put those funds in an account in his name.

The issues presented to this court for review are thus. Did the trial court hold correctly in ruling that petitioner had presented a prima facie case of ownership in the Estate of the funds in the Savings and Loan? Are the findings of the trial court contrary to the evidence adduced in the citation hearing? And finally, did the court err in including, as part of the courts order, interest on the funds originally on deposit in tire Savings and Loan?

The trial court was correct in its ruling that petitioner had presented a prima facie case at the end of petitioner’s testimony. There was on the date of decedent’s demise in existence a savings account in her name alone. There was no evidence of how the money was transferred two days after her demise to the account of another. The evidence was clear that on the date of decedent’s death she owned the assets of the account. As the trial court aptly stated “the burden of proof now shifts to you (the respondent) to establish how, what circumstances, to escape liability, this account was transferred two days after the death of the decedent. It obviously wasn’t transferred by the holder of the account”. While the cases cited by the appellant do not support the appellant’s assertion that petitioner failed to make a prima facie case, we have taken upon ourselves to clarify this point. The cases cited by the appellee also shed little light but speak in terms of delivery and donative intent which we do not feel are relevant to this point. The question stated in more succinct terms is, Does evidence of a savings account in decedent’s name alone on the date of death present a prima facie case that the account belonged to the decedent? We cannot fail but to hold that it does. The depository of the monies, in this case the Savings and Loan, was indebted to the depositor to the amount of the deposit until withdrawn. At the date of death, there had been no withdrawal. The depositor, the decedent, certainly did not make the withdrawal. There was sufficient evidence to present a prima facie case. Laudretto v. First Trust & Savings Bank, 333 Ill. 442, 154 N.E. 836.

The second allegation of error is that the finding of the trial court is contrary to the evidence. It is for us to once again state that tire findings of the trial court will not be disturbed unless the findings are against the manifest weight of the evidence. They will not be disturbed by this Court. The evidence in the case supports the findings. Manchester Ins. & Indemnity Co. v. Strom, 122 Ill.App.2d 183, 258 N.E.2d 150, Sauchyn v. Samslow, 109 Ill.App.2d 363, 248 N.E.2d 763, Johnson v. Fischer, 108 Ill.App.2d 433, 247 N.E.2d 805.

Appellant contends that since the trial court refused to assess costs against respondent that tire court improperly included the interest which the account had earned as property of the Estate. Since the account was determined to be an asset of the Estate, the interest which it had earned was likewise property of the Estate.

Judgment affirmed.

JONES and MORAN, JJ., concur.


text:
    Frank Paulauskas, et al., Plaintiffs-Appellees, v. Leo Rumsas, Administrator of the Estate of Stanley Stupelis, Deceased, et al., Defendants-Appellants.
    (No. 54094;
    First District
    August 27, 1971.

      Kal, Kal & Jacobs, of Chicago, (Tage Joranson, of counsel,) for appellants.
    Irving S. Friedman and Stiller & Strauss, all of Chicago, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of this court.

The question raised by this appeal is whether the provisions and principles of Chapter 95, Section 57, Illinois Revised Statutes were correctly applied by the trial court.

This action was brought by the mortgage holder, Chicago Savings and Loan Association, filing a “Complaint to Foreclosure Mortgage” on the 21st day of May, 1968, in the Chancery Division of the Cook County Circuit Court. On May 21, 1968, the Clerk of the Court issued a summons upon the defendants Leo Rumsas, Administrator of the Estate of Stanley Stupelis, deceased (the signer of the mortgage and note), Ignas Stupelis, Joseph Huraska and “unknown owners.” At a subsequent date Stase Jurkaitis was, by appropriate order, named as a codefendant.

The summons was returned on June 20, 1968, by the Sheriff, indicating on the reverse side of the summons that service was obtained on the defendant, Joseph Juraska, but that the administrator, Leo Rumsas, was “not found.”

On July 23, 1968, the administrator by counsel filed his appearance.

On January 13, 1969, by order of court, Frank and Ona Paulauskas were substituted as parties plaintiff for the Savings and Loan Association.

The Defendant Administrator on March 10, 1969, filed a counter-motion tendering to the court “the sum of $1,415.60 * * * in full payment of all unpaid principal, interest and escrow payments . . . due on or before March 10, 1969 . . . and to tender to those entitled thereto such further sums * * * in full payment of all costs, expenses, and reasonable attorneys fees as fixed by * * * court.” The counter-motion also asked that the plaintiffs’ motion for decree of foreclosure be denied and dismissal of the cause in accordance with Ch. 95, Sec. 57. This countermotion was made almost 8 months after the administrator’s entry of appearance but was 30 days prior to the entry of the decree of foreclosure.

The plaintiff then, on April 9, filed a motion to strike the administrator’s countermotion, whereupon the same day the trial court entered an order denying the administrator’s countermotion and thereupon entered a decree of foreclosure.

The administrator has appealed from the order of foreclosure and decree. The issue is whether the trial court ruled correctly in denying the administrator’s countermotion tendering all unpaid mortgage payments not accelerated, with costs, expenses and fees, and entering the decree of foreclosure.

The appellees have made a motion to dismiss this appeal asserting that the decree of foreclosure is not a final appealable order. We have read the authority cited in the appellees’ “Suggestions in Support of the Motion to Dismiss Appeal” and we cannot agree with appellees’ contentions and the motion is ordered denied and we shall proceed to decide the case on its merits.

Before proceeding, however, to the merits of this case, we shall discuss briefly Rule 304, Illinois Practice Act, Chapter 110A, Section 304, Illinois Revised Statutes which read in part: “If multiple parties * * # are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all * * * only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal * * # The time for filing the notice of appeal shall run from the entry of the required findings * * * .”

The trial court stated in its decree of foreclosure “there is no just reason to delay the enforcement of this decree or any appeal therefrom.” Such a statement is a requirement under the Rule for appealability when the adjudication involved fewer than all of the parties. The denial of the countermotion coupled with the entry of the decree of foreclosure was a final disposition of the administrator’s rights to tender and thus, with the requisite finding of appealability by the trial court the decree was, in fact, appealable. As stated in Midstates Finance Co. v. Waller 67 Ill.App.2d 437, 214 N.E.2d 624, “To be final and appealable a judgment order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of judgment. While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof.” Emphasis ours. (See also Central Wisconsin Motor Transport Co. v. Levin, 66 Ill.App.2d 383, 214 N.E.2d 776.) Rule 304 started the running of the time for appeal. If the appeal had not been perfected by the administrator in accordance with Rule 304, supra the administrator may well have lost the right to appeal. Defenbaugh v. Streator Canning Co., 80 Ill.App.2d 187, 224 N.E.2d 487

The statute before us for consideration is Ill. Rev. Stat, Ch. 95, Sec. 57, which provides in part:

‘Whenever aU the principal sum of any obligation secured by * * * mortgage * * * has become due prior to the maturity date * * * through acceleration of the maturity * * * the mortgager or his successor in interest. . ., at any time prior to (1) the expiration of 90 days from the date of service of summons in any foreclosure suit upon the mortgagor or his successor, or (2) prior to the entry of a decree of foreclosure in such suit, whichever event shaU first occur, may pay the entire amount then due * # *, including costs, expenses and reasonable attorney’s * * * fees as fixed by the court, other than such portion of the principal as would not be due had no acceleration occurred * * *. Thereupon, all proceedings for foreclosure of such mortgage # # * shall be dismissed * *

The statute in clear and unequivocable language gives to the mortgager or his successor in interest two specific times in which the amount due may be paid thereby abating acceleration of the debt and thus causing the proceedings to be dismissed.

The first period of time is quite specific, requiring that the amount be paid within 90 days from “the date of service of summons.” The other period of time in which the mortgagor or his successor must react is prior to the entry of decree of foreclosure. The statute is equally specific in stating which time period shall control “whichever event shall first occur.” In this case the first statutory event did not occur.

Thus reading the clear language of this statute, in this case there can be but one time for this mortgagor or his successor, the administrator, to comply for timely payment and that is prior to the entry of the decree of foreclosure. There cannot be a period of time 90 days from service of summons when service of summons was not had. The statute does not speak in terms of notice to the defendant nor does it speak of equivalents; it speaks solely of “service of summons.” “Ordinarily, words or terms used in statutes must be given their ordinary and plain meaning unless such construction will obviously defeat the intention of the legislature.” (People v. Kraft, 85 Ill.App.2d 435, 223 N.E. 2d 738.) “Where the language employed by the legislative body is specific and unambiguous, there is no need for interpretation or construction,” People ex rel. Skonberg v. Paxton, 64 Ill.App.2d 294, 211 N.E.2d 591.

We will not construe a statute to effect a forfeiture, when its plain language, strictly applied, will not have such effect.

Reversed and remanded.

MORAN and JONES, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE TRAPP,

text:
    Marine Park Associates, By M. Myers Management, Inc. Agent, Plaintiff-Appellee, v. Mrs. Jean Johnson, Defendant-Appellant.
    (No. 54459;
    First District
    August 27, 1971.

      TRAPP, J., dissenting.

      Gordon H. S. Scott, Sherwin S. Kaplan, and Jonathan M. Hyman, of Chicago, for appellant.
    Gordon, Greenbaum & Browne, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of this court:

This appeal is controlled by Rosewood Corporation v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833. The issues are similar. Both involved proceedings under the Forcible Entry and Detainer Act. (Ill. Rev. Stat. 1967, ch. 57.) In Rosewood, the defendants were contract purchasers, while here, defendant is a lessee. In both instances, plaintiffs sought possession, defendants resisted, and sought to introduce by way of answer, affirmative defense and counterclaim, matters (in Rosewood) going to the validity of the contracts on the basis, among many, that they were in violation of defendant’s civil and constitutional rights, and (here) the right of the plaintiff to terminate (or fail to renew) an apartment lease because of racial discrimination encompassing civil and constitutional issues. We will see how the two cases intertwine and why Rosewood is controlling. Section 5 of the Forcible Entry and Detainer Act provides that a defendant may give in evidence any matters in defense but not matters not germane to the distinctive purpose of the proceeding, which is to say, of course, that matters which are germane to “the distinctive purpose of the proceeding” can be introduced. In Rosewood “germane” was defined as meaning closely allied or related or connected, relevant, pertinent and appropriate, quoting Webster’s New 20th Century Dictionary, page 767. Here, and in Rosewood, the asserted defenses and counterclaims at least at the trial level, were characterized by the court as nongermane in a summary possessory action and such defenses and counterclaim were stricken and judgment rendered for the plaintiffs.

Specifically, here, in defense and by way of counterclaim it was alleged that plaintiff had terminated or refused to renew the lease because defendant was a Negro and that she had a right not to be so discriminated against with regard to housing as such right was seemed to her by Title VIII of the 1968 Civil Rights Act, 42 U.S.C.A., § 3604(a) (b) and by 42 U.S.C.A., § 1982. The counterclaim for $1,000.00 punitive damages was based on 42 U.S.C.A., § 3612(c), which provides for such where such circumscribed discrimination has been practiced. These defenses and counterclaim were stricken as we have said, as being not germane to the distinctive purpose of the action. Besides nongermaneness, plaintiff in addition argues that the Municipal Department of the Circuit Court of Cook County when this appeal is taken was not a comt of general jurisdiction with power in a forcible entry and detainer action to grant the relief requested of declaring a lease to be either renewed or extended and allowing punitive damages. In Rosewood it was held that such defenses going to the validity and enforceability of the contract were germane to the distinctive purpose of the proceeding and therefore improperly stricken. In other words, the equitable defenses seeking equitable relief were germane.

It has not always been so in forcible entry and detainer actions, possibly because the courts in which this action could be brought were not always ones of general jurisdiction, i.e., had no equitable powers. Indeed, without redacting the cases, it is a fair statement to say that this species of summary proceeding presented a single question: Is plaintiff entitled to possession? Or is defendant’s withholding of possesion unlawful? The pleadings were and are just that simple. Indeed, the defendant “need not file an answer unless ordered by the court; and where no anwer is ordered, the allegations of the complaint will be deemed denied, and any defense may be proved as if it were specifically pleaded”. (Supreme Court Rule 181(b)(2).) Though section 11 of the Forcible Entry and Detainer Act directs that the provisions of the Civil Practice Act shall apply “except as otherwise provided”, the question presented was always considered to be the narrow one we have just outlined. But, in Rosewood, the application of the CPA was held to effect the same fusion of law and equity taken for granted in other proceedings “sufficient to permit necessary equitable relief in these [Forcible Entry and Detainer Act] proceedings, rather than to force upon defendants a separate proceeding where the same relief would be forthcoming.” Recognized was the sweep of the holding:

“It does not escape us that the construction we have placed upon the act may interfere with the summary aspects of the remedy, when it is involved against contract purchasers. But the right to such purchasers to be heard on relevant matters, and to be secure in their constitutional rights, as well as the desirable purpose of preventing a multiplicity of suits, is, and must be, superior to the desire to provide a speedy remedy for possession.”

This answers, too, in our opinion, the contention of plaintiff that the Municipal Department of the Circuit Comt of Cook County was without jurisdiction, if we keep in mind that there is only one Circuit Comt in Cook County, and such court has “unlimited jurisdiction of all justiciable matters”. (Ill. Const., art. VI, sec. 9.) As defendant points out, the Municipal Department is an adjunct of this comt of general jurisdiction and by definition has the same powers and it is not separate and distinct with recognizable jurisdictional limitations as to its inherent power, though, such limitations may have been administratively applied for purposes of convetnience. Apropos is the following from People v. Bedford, 65 Ill.App.2d 341, 212 N.E.2d 872: “Article VI, Sec. 9 of the Illinois Constitution, S.H.A. provides: ‘The Circuit Courts shall have unlimited original jurisdiction of all justiciable matters * * *.’ The allocation of judicial responsibility to various branches within the Circuit Court does not detract from this grant of power.” We conclude that the court hearing this matter had jurisdiction to hear and determine the issues presented in answer and by counter-claim to the complaint of plaintiff.

Finally, plaintiff argues that the lease has expired and that plaintiff is in fact claiming that she is entitled to an extension or renewal of her lease. The argument goes that this claim is not a defense to a suit for possession, but rather a new claim or a counterclaim under 42 U.S.C., sec. 3612, which implements 42 U.S.C., sec. 3604(a), 42 U.S.C., sec. 1982, and must be asserted in a new suit in either the Circuit Court of Cook County or in the District Court. Plaintiff points out, correctly, that such suit could have been initiated after the filing of the forcible entry and detainer action, and she could have obtained a temporaiy restraining order, assuming entitlement.

But this argument smacks very much of the previous one— mongermaneness. Again, the question: Is the assertion of a claim under 42 U.S.C., sec. 3604(a) and sec. 1982, germane to the distinctive purpose of determining plaintiff’s right to possession? The answer, we think, is that whether possession is sought by reason of lease termination or refusal to renew, if based upon the rights enunciated and protected by these sections, then such is pertinent and germane under Rosewood to the distinctive purpose of the proceeding and can be introduced by “joinder, counterclaim or otherwise”. Paraphrasing Rosewood, defendant should not be forced to initiate a separate proceeding where the same relief might be forthcoming in the present one. We believe, as the comt did in Rosewood, with regard to contract buyers, that a lessee may plead equitable defenses and be given equitable relief if it is established that the termination or the failure to renew are in violation of her civil rights as contended. The language of 42 U.S.C., sec. 3604(a) is, shall we say, germane, at this juncture: “It shall be unlawful — (a) to refuse to sell or rent after making a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make available or deny, a dwelling to any person because of race, color, religion, or national origin.” Defendant’s claim is based on this section — refusal to renew or the termination itself —and if true, such presents an equitable defense. In pleading equitable defenses, we should point out that one asking aid of equity is required to do equity. Again, from Rosewood-. “A necessary concomitant of the seeking of relief through equity is a willingness to do equity. This is fundamental in equity jurisprudence.” Defendant has asserted that the attempt by plaintiff to terminate or failure to renew the lease is because she is a Negro, thus an equitable defense. Concomitantly, she must, at the very least, offer to do equity. Such can be handled on remand by appropriate amendment, and the court can then proceed to hear the issues raised in defense and in counterclaim and the plaintiff’s reply and answer thereto, which leave to so file shall be accorded to plaintiff should he desire to do so.

These federally sanctioned rights, we should note before closing, can be sought in a state court of general jurisdiction — such as the Circuit Court of Cook County. 42 U.S.C., sec. 3612, provides in part: “Rights guaranteed [by Sec. 3604(a)] may be enforced by civil actions in appropriate United States District Courts # » * and in appropriate state of local courts of general jurisdiction.” Sub-section (c) of this section provides not only for the reward of punitive damages — not more than $1000 — but reads that “the court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order * * With this grant, the Circuit Court of Cook County on remand is in a position to determine the rights of the parties and to accord to each their due.

Reversed and remanded with directions to proceed in a manner not inconsistent with the views herein expressed.

Reversed and remanded, with directions.

CRAVEN, J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

Upon the fact of this case, I must dissent from the position that Rosewood controls the disposition of this case. As framed, the opinion does not make clear a relevant fact, i.e., that the defendant was not a lessee of the plaintiff, and in fact had no established legal or contractural relation with the plaintiff.

In Rosewood, the sellers were seeking to recover the possession of premises upon the authority of the provisions of an executory installment contract for sale of real estate. The court noted that the defendants were entitled to possession under such contract as equitable owners, and that judgment in the statutory action would bring the loss of substantial accumulated equities held by the defendants. It was pointed out that for purposes of the statutory action, such facts clearly distinguished these defendants from tenants and that the equitable defenses of fraud or usury in the contract were fairly said to be germane in determining the right to possession. In short, the seller should not be permitted to recover possession through the provisions of a contract which was itself subject, to challenge upon equitable grounds.

Here, the Chicago Housing Authority leased the premises from plaintiff beginning on June 1, 1968. While such lease had a provision for automatic renewal, such was subject to negation by either party upon giving written notice sixty days prior to the end of the term. Plaintiff gave such notice to the Authority on March 29, 1969. The latter lessee does not challenge the action.

Defendant became a sub-tenant by virtue of a lease from the Authority for a term of one year beginning on June 1, 1968. Defendant’s lease from the Authority contained a provision for termination by thirty days written notice with a clause that the exercise of the right of termination by either party is “® * * unqualified and unrestricted, nor need any reason be given therefor.” The Authority gave the notice on May 29, 1969, to be effective June 30, 1969. Under the circumstances, the Authority was not entitled to possession for purposes of the subsequent action for possession for its lease had expired by its terms.

Defendant’s counterclaim seeks an order that the plaintiff make a new and further lease with the Authority. Neither this nor the asserted matters of defense are the same thing as ascertaining whether or not an executory contract is unconscionable. I doubt that the expiration of a lease by its terms can be transmogrified into an equitable defense upon the holding of Rosewood. The issues appealed are not truly germane to this action for possession. The order of the trial court should be affirmed.


text:
    La Salle National Bank As Trustee, Petitioner-Appellant, v. Richard L. Hoffman, Respondent-Appellee.
    (No. 54483;
    First District
    August 27, 1971.

      McCracken & Walsh, of Chicago, (Richard Walsh, of counsel,) for Petitioner-Appellant.
    Owen N. Price, of Chicago, (Richard A. Siebel, of counsel,) for Respondent-Appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

The petition filed herein sought to have a sale for forfeitures pursuant to section 272 of the Revenue Act, Ill. Rev. Stat. ch. 120, par. 753, set aside, and to have the county collector refund the purchase price to the taxbuyer. On motion of appellee taxbuyer, an order was entered dismissing the petition. The question presented for review is whether the order of dismissal was proper. Issues raised on this appeal are:

1. Did the circuit court have jurisdiction of the subject matter of the petition?
2. Was the action barred by a prior judgment?
3. Was the petition in form sufficient to withstand a motion to dismiss?

The parcel of real estate described in appellant’s petition is designated on the assessment books, the general tax warrants, the Tax Judgment, Sale, Redemption and Forfeiture Records of Cook County, and all other tax records relating to the assessment, levy and collection of general taxes for the year 1965 in the offices of the County Assessor, the County Collector and the County Clerk of Cook County, by the Permanent Real Estate Index No. 20-12-101-020.

Appellant contended both below and here that the designation 020 resulted from a consolidation and division of parcels 20-12-101-009 and 20-12-101-017 by the assessor of Cook County in 1962 to become effective in the 1963 assesment; that other parcels in addition to -020 were formed out of -009 and -017 at that time. Also that at the time of consolidation and division there were outstanding delinquent and forfeited taxes against parcels -009 and -017, and as a result those two parcels should not have been consolidated since sec. 515 of the Revenue Act, ch. 120, sec. 515, Ill. Rev. Stat. did not apply to property upon which delinquent or forfeited taxes were outstanding.

On December 28, 1966, pursuant to section 225 of the Revenue Act of 1939, as amended, the Cook County Collector, by publication, gave notice of his intended application for judgment and order of sales of lands delinquent for non-payment of 1965 general taxes on the parcel designated as 20-12-101-020. On January 9, 1967, the Cook County Collector filed his application as No. Misc. 67-004 in the County Division of the Circuit Court of Cook County, and no objection to judgment having been filed, judgment for the delinquent taxes on parcel 20-12-101-020 and an order of sale thereof were entered on January 20, 1967 by the court in accordance with section 235 of the Revenue Act. Pursuant to the judgment and order of sale and section 243 of the Revenue Act, the Cook County Collector offered parcel 20-12-101-020 at public sale and, it not being sold for want of a bidder, the parcel was forfeited to the State of Illinois on February 20, 1967, pursuant to section 246.

Pursuant to section 272 of the Revenue Act, appellee thereafter made application to the County Clerk of Cook County to purchase forfeited parcel 20-12-101-020. The County Clerk thereupon directed the County Collector of Cook County to accept from appellee the sum of $62,003.44, being the total amount of all taxes, interest, costs and fees due on parcel 20-12-101-020. On June 2, 1967, the County Collector received the sum of $62,003.44 from appellee, and thereupon issued to appellee a Certificate of Purchase of Forfeited Property for parcel 20-12-101-020.

At the instance and request of appellant the County Clerk of Cook County, on or about September 10, 1968, made an entry opposite parcel 20-12-101-020 in the 1965 Tax Judgment, Sale, Redemption and Forfeiture Record of Cook County to the effect that there was a sale in error. Such “sale in error” entry was made without the prior knowledge or consent of appellee-taxbuyer. Moreover, at no time has appellee made a demand on the County Collector to refund the $62,003.44 he paid at the tax sale nor has appellee made a demand for cancellation of the Certificate of Purchase.

After the foregoing proceeding for judgment and sale was concluded by a final judgment entered January 20, 1967, no appeal having been taken, appellant on December 31, 1968 filed its petition in the same proceeding to set aside the sale, on the grounds that the consolidation was illegal and that the parcel was erroneously sold. Appellee thereupon filed his motion to dismiss the petition on the following grounds: (1) lack of jurisdiction of the court to entertain such a petition in a County Collector’s Application for Judgment and Order of Sale proceeding; (2) the purported cause of action was barred by a prior judgment; and (3) the petition stated no cause of action because the “sale in error” entry in the tax judgment record was unauthorized and without legal effect, which motion was granted, and appellant’s petition to set aside the sale was dismissed.

The County Collector’s Annual Application for Judgment and Order of Sale is a special statutory proceeding created by the Revenue Act of 1939, as amended. As appellant contends, the Illinois Constitution (article VI, section 9) vests unlimited original jurisdiction of all justiciable matters in the Circuit Court. The Mai court in a Collector’s Application proceeding, however, is functioning pursuant to the special statutory jurisdiction granted in the Revenue Act. In such cases jurisdiction is never presumed, and whatever the jurisdiction of the court, the proceeding must conform with the statute. People v. Nunes, 58 Ill.App.2d 55, 207 N.E.2d 143.

The limited statutory powers of the Mai court in a Collector’s Application proceeding, after rendition of judgment and order of sale, is well documented in the case of Cherin v. R. & C. Co., 11 Ill.2d 447, 143 N.E.2d 235. They do not include the setting aside of a tax sale at the behest of the tax delinquent owner followed by a refund from the County Treasurer. The trial court may refuse to enter an order for a tax deed if the certificate holder has not complied with certain statutory prerequisites, and may give him a measure of relief by ordering a refund of his purchase money if his failure to comply was after a bona fide attempt to do so; but such relief is not granted at the instance of the owner who ought to have paid the taxes for which the real estate was sold. (Chapter 120, Section 747, Ill. Rev. Stat.) The owner always has his statutory right of redemption, and has his remedy by an action in chancery to set aside a tax sale or a tax deed.

The power of the Circuit Court to entertain and grant relief on a petition to set aside a tax sale in a proceeding independent from the Collector’s Application proceeding is not questioned. In such a proceeding, however, the courts consistently have required reimbursement of the holder of the tax certificate, not from the public treasury, but by the owner whose taxes the certificate holder has paid. Phelps v. Harding, 87 Ill. 442. This rule of equity, since 1919 embodied in section 270 of the Revenue Act (chapter 120, section 751, Ill. Rev. Stat.), without exception has been held to apply to the setting aside of tax sales as well as tax deeds. Tubbs v. Homebuilders, 300 Ill.App. 473, 71 N.E.2d 913; Tubbs v. Dunlop, 325 Ill.App. 53, 59 N.E.2d 514. In the instant case, the appellant-owner seeks to have the County Collector make the reimbursement from the public treasury for it.

Appellee contends that, implicit in appellant’s petition is the fact that the consolidation complained of as illegal was instituted upon the application of appellant or its agent, inasmuch as consolidation is effected upon application of the owner or his agent, pursuant to section 34 of the Revenue Act which provides in part:

“When a whole section, half section, quarter section, or half-quarter section, belongs to one owner, it shall, at the request of the owner or his agent, be listed as one tract, and when all lots in the same block belong to one owner they shall, at the request of the owner of his agent, be listed as a block * * * Chapter 120, Section 515, Ill. Rev. Stat.

We are unable to determine from the record how the consolidated was initiated, but appellee points out that appellant has not responded to appellee’s contention. Had appellant’s petition to set aside the sale been filed as an independent action, it is manifest that appellant would have been precluded from receiving the equitable relief sought, not only because of its failure to show the equitable action of reimbursing the taxbuyer, but may have been barred because of unclean hands arising out of initiating the purported illegal consolidation.

Appellant, in directing its appeal to the Supreme Court urged that Article IX, sec. 5 of the constitution guaranteed it a right of redemption. The Supreme Court transferred the case to this court. No constitutional right of appellant has been violated. Appellant had every right to redeem its property from the sale during the statutory period. Merely because appellant would have to redeem the consolidated parcel (which consolidation was done at its behest) rather than one portion out of the parcel, is no ground for contending that it has been prevented from redeeming. Appellant is contending that it is entitled to take advantage of its own wrongdoing to the detriment of all other taxpayers, and all taxing bodies, as well as the respondent-appellee. Appellant does not contend that consolidation to form parcel -020 was illegal because not done at its request, but illegal because there were outstanding delinquent and forfeited taxes on parcels -009 and -017, from which parcel -020 was formed. Section 515 does not apply to property upon which delinquent or forfeited taxes are outstanding.

Judgment and Order of Sale were entered against parcel 20-12-101-020 on January 20, 1967, in the Collector’s 1965 Application proceeding. No appeal was taken from that judgment, and after thirty days from its rendition the judgment became immune to collateral attack. (First Lien Company v. Markel, 31 Ill.2d 431, 202 N.E.2d 26.) Section 270 of the Revenue Act provides that:

“Any judgment for the sale of real estate for delinquent taxes * * * shall estop all parties from raising any objections thereto # # « which existed at or before the rendition of such judgment or decree, and could have been presented as a defense to the application for such judgment in the court wherein the same was rendered, and as to all such questions, the judgment itself is conclusive evidence of its regularity and validity in all collateral proceedings, except in cases where the tax or special assessments have been paid or the real estate was exempt from general taxes # 0 Chapter 120, section 751, Ill. Rev. Stat.

Appellant seeks relief on grounds which existed at the time of entry of the judgment; namely, that the County Assessor erroneously combined two adjoining parcels of real estate, both owned by appellant. This he cannot do.

The Maride case, supra, is in point. In both Maride and the instant matter, a judgment and order of sale had been entered and no appeal had been taken therefrom. The tax delinquent owner subsequently appeared in the Application proceeding and sought to have the sale voided on the ground that certain irregularities occurred in the assessment of the parcel in question. The court stated at page 436:

“Whether the assessment was erroneous or illegal, the trial court had jurisdiction to determine the validity of the assessment and that determination, no matter how erroneous, is conclusive upon the parties after 30 days #

As the court stated in the Maride case, objections that would have been proper in the original proceeding for judgment and sale for taxes are not proper here. Appellant had the opportunity to object to the consolidation prior to and in the original Collectors Application proceeding. It also could have filed a complaint in equity to set aside the sale.

Thus appellant is foreclosed from collaterally seeking relief which has been barred by prior judgment.

The purpose of Section 260 of the Revenue Act (Chapter 120, Section 741, Ill. Rev. Stat.) is to afford relief to taxbuyer from the effect of caveat emptor purchases at void tax sales. Without the right of refund given by section 260, the taxbuyer, caught by the failure of the County officers to delete from the delinquent fist properties exempt or on which the tax was already paid or doubly assessed or badly described, would suffer the loss of his entire investment. In such cases, the property owner suffers no injury irrespective of whether the County Clerk makes a “sale in error” entry and irrespective of whether the taxbuyer demands and receives a refund from the County Collector. No redemption need be made from a void tax sale to preserve the owners property rights, nor can a valid tax deed be predicated on such a sale. There can be no benefit to the property owner to make a “sale in error” entry in a proper case, and a false entry resulting in an unwarranted refund to the taxbuyer would merely restore the lien of the unpaid taxes and require the Collector once again to enforce their payment.

The sole person who is interested in a refund under Section 260 of the Revenue Act of tax-sale money and therefore the only one who can make representations to the County Clerk to induce a “sale in error” entry is the taxbuyer who would lose all the money he invested in a void tax sale but for that Section. It is up to the taxbuyer to discover the facts that void his purchase, if there be any, and to demand a refund from the County Collector based on the County Clerk’s “sale in error” entry which is made on one or more of the four grounds set forth in section 260.

Appellant’s petition alleged none of the four grounds set forth in Section 260 for having a sale declared as erroneous, which are (1) the property is exempt, (2) the taxes were paid prior to salé, (3) there is a double assessment, or (4) the description is void for uncertainty.

The trial court, sitting pursuant to the statutory authority of the Revenue Act, had exhausted its jurisdiction to consider appellant’s petition after entry of judgment and order of sale; the judgment and order of sale was a final judgment which barred the collateral relief sought in the petition; and the petition on its face reflected that the “sale in error” entry was unauthorized and void.

Judgment affirmed.

JONES and MORAN, JJ., concur.


author: Mr. PRESIDING JUSTICE LEIGHTON.

text:
    Cosmopolitan National Bank, Plaintiff-Appellee, v. City of Chicago, Defendant-Appellant.
    (No. 54464;
    First District
    August 31, 1971.
    Richard L. Curry, of Chicago, (Marvin E. Aspen and Howard C. Goldman, of counsel,) for appellant.
   Opinion by

Mr. PRESIDING JUSTICE LEIGHTON.


author: Mr. PRESIDING JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Appellant, v. Clarence Peavy, Appellee.
    (No. 54851;
    First District
    August 31, 1971.

      Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

The State, pursuant to Supreme Court Rule 604(a), appeals from an order that quashed a search warrant and suppressed evidence. The sole issue is whether the complaint set forth facts which disclosed probable cause for issuance of the search warrant. The essential facts are undisputed.

On December 7, 1968, Detective Charles Mitchell of the Vice Control Division, Gambling Unit, filed a complaint under oath requesting a warrant to search defendant’s person and his apartment in Chicago “[a]nd seize pari-mutuel lottery records of bets * * * which have been used in commission of, or which constitute evidence of the offense of pari-mutuel lottery * * Mitchell alleged that he had probable cause to believe the lottery records were located on Clarence Peavy or in his apartment because he had a conversation “[w]ith a reliable informant who has given me information on three occasions in the past which resulted in three arrests and three convictions relating to parimutuel lottery gambling * * *. This man told me that he placed bets in numbers at a shoe shine stand at 5507 South Prairie Avenue, Chicago, Illinois. This man further stated that Clarence Peavy, a known numbers operator who has been arrested by me and by members of the Gambling Unit in the past for pari-mutuel lottery gambling, collected these bets from these premises and took them to an office used for the purpose of tabulating and recording numbers gambling # #

Mitchell alleged that begining at 11:00 A.M. on October 17, 1968, he placed the premises at 5507 South Prairie Avenue under surveillance. At 11:05 A.M., he saw defendant enter the shoe shine stand and then depart a short time later. Mitchell said he followed defendant who “[mjade several other stops on the south side of the City of Chicago. At each location he would enter 0 * stay a short time and depart to the next one. At 12:45 P.M. on October 17, 1968, Peavy parked his auto in front of his home, alighted and went into the premises, apartment 115A, 115 East 68th Street * 0 It was further alleged by Mitchell that from October 17, 1968 until December 6,1968, Peavy was kept under a surveillance which included his home, his auto and his contacts with “[o]ther known numbers men [who] came to and entered Peavy’s home. They stayed within the premises for an hour, came out and departed.” Mitchell concluded his complaint, alleging that:

“On the 6th day of December, 1968,1 followed Clarence Peavy along his numbers route and to his home, where he parked in an alley next to the entrance to the rear of his apartment and started to sort through a quantity of pari-mutuel bet records, while being observed by me as 1 slowly walked past the parked auto. He then alighted from the car and entered his apartment # # *.
Based on the above information, investigation and evidence, I believe that apartment 115-A, at 115 E. 68th Street, Chicago, Illinois, is being used as an office for pari-mutuel lottery gambling and that pari-mutuel lottery records of bets and/or other related material will be found there-in, or on the person of Clarence Peavy.”

The warrant issued. On December 9, 1968 defendant’s person and his apartment were searched and gambling records were seized. Defendant was indicted and charged with the offense of gambling, in violation of Ill. Rev. Stat. 1967, ch. 38, par. 28—1(a7). Prior to trial he moved to quash the search warrant and suppress the evidence. At the hearing, a copy of Detective Mitchell’s complaint was admitted in evidence and examined by the trial judge. Defendant’s counsel argued that the complaint did not disclose probable cause for issuance of the search warrant because it did not allege that defendant took anything into his house. After hearing argument, the trial judge ruled, “[h]e made no effort to place the man under arrest * * *. The affidavit doesn’t say he brought these into the apartment * * * Motion to suppress the evidence and quash the search warrant is sustained.”

The guiding principle in determining probable cause is common sense. (People v. Johnson, 84 IIl.App.2d 143, 228 N.E.2d 457.) Affidavits for search warrants are to be interpreted in a realistic manner. They should not be tested by elaborately technical requirements. (United States v. Ventresca (1965), 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684.) An affidavit establishes probable cause when it states facts (within affiant’s knowledge or of which he has reasonably trustworthy information) which would justify a man of reasonable caution to believe that a crime has been or was being committed and that evidence thereof is on the person or premises to be searched. People v. Francisco, 44 IIl.2d 373, 255 N.E.2d 413.

In this case, the affidavit stated that the informant placed bets which were collected by defendant; that in the past, defendant was arrested for gambling by affiant and other officers; that, under surveillance, defendant was seen traveling, ostensibly, a numbers route; that known numbers men were seen entering and leaving defendant’s apartment; and finally, that affiant observed defendant sorting through parti-mutuel bet records. From these facts, it was reasonable to conclude that defendant had committed the crime of gambling and that evidence of it would be found on his person or premises, even if he did not take the bet records with him into his apartment when he alighted from his car while being observed by affiant. Therefore, it was error for the trial judge to quash the search warrant and suppress the evidence. People v. Smolucha, 122 Ill.App.2d 452, 259 N.E.2d 319.

Accordingly, the judgment is reversed and the cause remanded for proceedings consistent with this opinion.

Reversed and remanded with directions.

SCHWARTZ and STAMOS, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    Chester Gawel et al., Plaintiff-Appellant, v. Chicago American Publishing Company, Defendant-Appellee.
    (No. 55207;
    First District
    August 31, 1971.

      Solomon Axelrod, of Chicago, for appeUant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, Don H. Reuben, Lawrence Gunnels and Thomas F. Ging, of counsel,) for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiff filed a lawsuit seeking damages from defendant because of a news article it published allegedly defaming him. Defendant’s motion for summary judgment was granted and plaintiff appeals from that judgment.

Defendant published a news article wherein it recited that Chester Gawel entered the County Jail after failing to post a $1,000.00 bond on grand theft charges. At the jail roll call it was noticed the person identifying himself as Chester Gawel was missing. He was later found in another tier. Upon being discovered, “Gawel” told the warden that he entered the wrong line at roll call and a guard directed him to the ceH where he was found.

However, it was established that one John P. McCarthy was arrested in Cicero, Illinois, for auto theft. McCarthy advised the police that his name was that of plaintiff and also furnished them plaintiff’s address. At the county jail McCarthy also represented himself to be the plaintiff. The police records, jail records and complaint all reflected the inmate McCarthy as being the plaintiff. The news story complained of was based on information obtained by defendant from the jail authorities, who at the time it was furnished to defendant, believed it to be true. At the time defendant published the article, it also believed the information received from the jaff authorities was true and correct in all respects and did not know that the person identified in the story was in fact John P. McCarthy, and not Chester Gawel.

Plaintiff contends that the publication was a libel per se, as imputing to him a commission of a crime, and that the “article on its face imparts that file facts were obtained from the guards at the County Jail and cannot be interpreted as a fair report of proceedings in a court on which the principal of privileged communications would He.”

Defendant maintains that the article was privileged and nonactionable as a matter of law.

OPINION

The Supreme Court in Lulay v. Peoria Journal-Star, Inc., 34 IIl.2d 112 recognized the privilege asserted by defendant. In that case a news article reported the utterances of the Director of the Municipal Health Department who had charged that plaintiff’s grocery store and restaurant violated sanitary ordinances. The Supreme Court rejected the argument that the news article was libelous per se, and stated at page 114: “The right to speak and print about such actions of government is well established; denial of this right would be a serious infringement of both State and Federal constitutional guarantees of free speech and press. (Cases cited.) The trial court accordingly erred in holding that the defendant’s publication was libelous per se; the court should have recognized and applied the defense of privilege as a matter of law.”

In Lotrich v. Life Printing and Pub. Co., Inc., 117 Ill.App.2d 89, this court cited Lulay, supra, in support of the report privilege and stated at page 95: “It is also true, that the courts have consistently held that news reports based on the records and utterances of police and other law enforcement officers are protected by the report privilege.”

The report privilege can be set aside if the evidence reveals that the article complained of was solely generated by malice. Lulay, supra. However, at bar there is no allegation of malice, and it was undisputed that defendant and its sources all believed the content of the article to be true and correct.

Plaintiff relies upon Lorillard v. Field Enterprises, Inc., 65 IIl.App.2d 65, where a newspaper printed the remarks of plaintiff’s former wife who falsely informed a columnist that her former husband had been sued for bigamy. Public officers or public records were not involved and the citation is not applicable to the resolution of this appeal.

Defendant correctly contends that the cases plaintiff cited from other jurisdictions concern instances where the reported privüege was abused through inaccurate reporting or could not be properly invoked.

In Jastrzembski v. Marxhausen, 120 Mich. 677, 79 N.W. 935, a wife complained to the police regarding her husband’s desertion. A reporter interviewed the wife and subsequently related what she told him to a reporter of the defendant newspaper and a story based on that source was published.

In Clair v. Battle Creek Journal Co., 168 Mich. 467, 134 N.W. 443, a newspaper obtained a news item by copying an article appearing in another paper. In the foregoing citations no rebanee was placed upon the privilege to report acts, utterances of public officials or public records.

Therefore, we affirm the trial court and find that defendant’s motion for a summary judgment was properly granted.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vernon A. Jefferson, Defendant-Appellant.
    (No. 54912;
    First District
    August 31, 1971.
    Rehearing denied September 24, 1971.
    STAMOS, J., dissenting.

      John D. Vosnos, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. NoveHe and James Stemik, of counsel,) for the People.
   Mr. PRESIDING JUSTICE LEIGHTON

delivered the opinion of the court:

Defendant appeals a conviction of driving a motor vehicle while under the influence of intoxicating liquor. He was sentenced to pay a fine of $100.00 and costs. He presents three issues. However, the one we review is whether the evidence proved, beyond a reasonable doubt, that on the occasion in question defendant drove a motor vehicle.

The State’s evidence consisted of the testimony of the arresting officer, Bernard Cooney. At about 2:30 A.M. on April 18, 1969, Cooney responded to the call of two plain-clothes policemen who had witnessed an accident on the exit ramp at 7344 South, Dan Ryan Expressway in Chicago. At the scene, he found a 1968 Buick automobile against a pole. Cooney testified that defendant was in the car, seated behind the steering wheel; and when asked what happened, defendant said, “I don’t know what happened. The car just went out of control and I struck the pole.” Under cross-examination, however, Cooney was asked whether when he arrived at the scene defendant was sitting in the center of the car. He answered, “Yes.”

As one of two witnesses for the defense, defendant.denied he drove the car described by Cooney. He insisted that he did not make the statement attributed to him. He called Verna Malone as his witness. She testified that on the night in question, she was driving the 1968 Buick when it skidded directly into the post where it was found by the officer. She said that she left defendant in the car and went to get a tow truck. After hearing the witnesses, the trial judge found defendant guilty.

. Defendant contends that the State’s evidence, consisting only of Officer Cooney’s testimony, did not prove him guilty beyond a reasonable doubt. He argues that Cooney contradicted his testimony (that defendant was seated at the steering wheel of the Buick) by testifying on cross-examination that defendant was seated in the center of the car. Defendant insists-

that Cooney’s weakened testimony was contradicted by him and by Miss Malone. Defendant points to the absence as witnesses of the two plain-clothes policemen who were present when Cooney arrived at the scene. From these facts, defendant argues that the State failed to prove that he drove a motor vehicle at the time in question.

The corpus delicti of driving a motor vehicle while under the influence of intoxicating liquor consists of (1), the driving of a motor vehicle; (2), on a public highway; and (3), the intoxication of the driver. (People v. Ellena, 67 Cal. App. 683, 228 p. 389 (1924); Annot., 42 A.L.R. 1498, 1500.) The State must prove, beyond a reasonable doubt, each element of the offense and that, as charged, defendant, under the influence of intoxicating liquor, was the driver of the motor vehicle. People v. Miller, 23 Ill.App.2d 352,163 N.E.2d 206.

To meet defendant’s contention, the State relies on our decision in People v. Jendrzejak, 98 Ill.App.2d 313, 240 N.E.2d 239 where Jendrzejak at 2:17 A.M., in a drunken condition, was found standing behide his car in a roadway ditch. The arresting officer testified that Jendrzejak told him he was the owner and the driver of the automobile. Although at his trial Jendrzejak testified that his wife had driven the automobile into the ditch and left him there after a domestic quarrel, he did not deny telling the officer that he was the driver of the vehicle. The trial judge, after hearing both Jendrzejak and his wife, found that their testimony was not believable. By contrast, defendant in this case denied he told Officer Cooney what the State construes was an admission that he drove the Buick. Defendant argues that his witness, Miss Malone, corroborated his claim that he was not driving the car.

We observe that the statement Officer Cooney attributed to defendant, unlike Jendrzejalc’s, does not unequivocally admit operating a motor vehicle. Furthermore, unlike in Jendrzejak, the trial judge in this case did not find that the testimony of defendant and his witness was undeserving of belief. Therefore, we agree that People v. Jendrzejak is distinguishable from the case before us.

We are aware of the principle that a trial judge’s findings are entitled to great weight. However, when a conviction rests on evidence so unsatisfactory that it raises a reasonable doubt of defendant’s guilt, we will reverse. (People v. Mundorf, 85 Ill.App.2d 244, 229 N.E.2d 313.) We are compelled to conclude that Officer Cooney’s testimony was weakened during cross-examination, it was left unsupported by the absence of the two plain-clothesmen who witnessed the accident and contradicted by defendant and his witness Miss Malone. Therefore, the State’s evidence is so unsatisfactory that it raises a reasonable doubt that defendant, as charged by the State, was the driver of a motor vehicle on the occasion in question. Judgment is reversed. People v. Wells, 103 Ill.App.2d 128, 243 N.E.2d 427.

Judgment reversed.

McCORMICK, J., concurs.

STAMOS, J., dissents.

       Ill. Rev. Stat. 1967, ch. 95½, § 144
      “(a) No person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State.”


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Eugene W. Gordon, d/b/a Monroe Investment Company, Plaintiff-Appellee, v. Excel Wholesale Grocery Company, et al., Defendants-Appellants.
    (No. 54848;
    First District
    September 2, 1971.

      Joseph L. Goldberg, of Chicago, for appellant.
    Arvey, Hodes & Mantynband, of Chicago, (Ralph A. Mantynband and Howard Arvey, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Harry N. Rutzky, appeals from a denial by the Circuit Court of his Section 72 petition to vacate a judgment entered against him on January 27,1969, in favor of plaintiff.

- On June 17, 1960, plaintiff obtained a judgment by confession in the amount, of $5,414.50 against Excel Wholesale Grocery Co., a corporation, Joseph C. Rutzky and appellant Harry N. Rutzky. On January 3, 1969, plaintiff brought this action against the Rutzkys to revive the 1960 judgment. Roth Rutzkys were served with summons and defaulted. The complaint charged that there was due and owing plaintiff the sum of $3,814.50 plus interest from June 17, 1960. On January 27, 1969, a default judgment was entered for plaintiff in the amount of $5,414.50 plus interest from January 27, 1969.

On July 16, 1969, defendant filed his verified Section 72 petition to vacate the revived judgment against him. His affidavit recited that a judgment in excess of that prayed for in the complaint was entered against him by default. The affidavit also stated that according to his records which were previously lost, he had made payments on October 25, 1961, subsequent to the entry of the confession judgment, and that these payments reduced the indebtedness to $2,925. Defendant asked that the judgment of 1969 be reduced to conform with the prayer of the complaint and also requested that the court set a hearing to determine the credits to be given him for payments made.

Subsequently defendant served interrogatories on plaintiff asking that all payments which had been made on the 1960 judgment be set forth and by whom the payments were made. Defendant also sought to take plaintiffs discovery deposition. The court quashed the notice of deposition, but ordered plaintiff to answer the interrogatories. Plaintiffs sworn answers to the interrogatories stated that subsequent to the entry of the confession judgment on June 17, 1960, he had received payments totalling $3,000; $250 from defendant, $800 from Excel and $1,950 from Joseph Rutzky. Plaintiff had received payments aggregating $1,725 after October 25, 1961, including $1,500 from Joseph Rutzky on January 6, 1969. The answers also disclosed that in 1968 plaintiff had entered into an oral agreement with Joseph Rutzky concerning non-enforcement of the 1960 judgment as to Joseph. *

On October 7, 1969, defendant filed an amended Section 72 petition to vacate the judgment of January 27,1969. This petition recited that the first time defendant learned of the entry of a judgment in an amount greater than that sought in the complaint was on July 7, 1969, when he was served with other process (apparently an execution or citation). Defendant repeated that he had made payments on October 25, 1961 which reduced the amount owed to $2,925. Defendant also stated that until he received the answers to interrogatories, he was unaware that payments had been made to plaintiff by other parties up to January 6, 1969. Plaintiff did not file a responsive pleading to either petition, but on October 7, 1969, filed a motion asking that judgment be increased to $6,345 to reflect recomputed interest. Thereafter the court denied defendant’s motion to vacate the revived judgment of 1969, and this appeal follows.

A section 72 petition invokes the equitable powers of the court, as justice and fairness require. (Elfman v. Evanston Bus Company (1963), 27 Ill.2d 609, 190 N.E.2d 348.) However it is incumbent upon the petitioner to show not only a meritorious defense to the action, but also that through no fault or negligence of his own the error of fact or the existence of a valid defense was not made known to the court entering the judgment. (Elliott Construction Corp. v. Zahn (1968), 99 Ill.App. 2d 112, 241 N.E.2d 129.) A Section 72 petition is not intended to relieve a party from the consequences of his own mistake or negligence. Mehlenbacher v. Elgin, Joliet & Eastern Railroad Company (1967), 87 Ill.App.2d 452, 230 N.E.2d 27.

In the instant case, we believe that justice and fairness require that defendant be given an opportunity to defend against the revived judgment of 1969. The complaint recited that plaintiff sought $3,814.50 plus interest from June 17, 1960. Defendant was served with summons and voluntarily defaulted. Plaintiff obtained a default judgment in the amount of $5,414.50 including the principal sum of $3,814.50 plus interest in the amount of $1,600. When defendant learned that the revived judgment was entered for an amount greater than $3,814.50, he filed his Section 72 petition seeking a reduction of the judgment and requesting that he be given credit for money he personally had paid prior to the entry of the revived judgment. Under court order plaintiff revealed that he had received $2,750 in payment from the other parties after entry of the 1960 judgment. Most significantly, plaintiff received a $1,500 payment from Joseph Rutzky after filing the instant action for revival and shortly before obtaining a default judgment in the matter. Admittedly he gave no credit to defendant for that amount. Plaintiff has informed this court that he intended to reduce the amount of the judgment in the trial court at the conclusion of the Section 72 proceedings. However we note that during the pendency of those proceedings plaintiff sought to increase the amount of the revived judgment. Plaintiff knew that payment was made by a third party after commencement of the instant action. Defendant was unaware of the payment, and could not be charged with neghgence or delay in permitting the default judgment of January, 1969, to be entered against him. Defendant is entitled to a trial on the issue of payments made by himself and by others prior to the entry of that judgment. He is also entitled to a trial on the issue of the propriety of the interest received by plaintiff in the revived judgment.

For the foregoing reasons, the order denying the motion to vacate the judgment of January 27, 1969, is reversed and the cause is remanded for further proceedings not inconsistent with the findings of this opinion.

Order reversed and cause remanded.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond J. Sims, et al., Defendants-Appellants.
    (Nos. 53372, 53373 cons.;
    First District
    September 9, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty, of counsel,) for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James Veldman, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

After a trial without a jury, Raymond Sims and WiUiam Crenshaw, both seventeen years of age, were found guüty of murder and sentenced to a term of twenty to thirty years in the penitentiary. They request a reduction in their sentences.

In the late afternoon of January 4, 1968, Sims, Grenshaw and two sixteen-year-old friends met in a restaurant on Roosevelt Road, Chicago. While there, Sims said he needed some money and felt like snatching a purse. When they left the restaurant Sims again said that he needed money and asked the others if they wanted to help. Grenshaw agreed; the younger boys did not.

As they sauntered along the street, Mrs. Laura Giles, a seventy-two-year-old woman who was returning home from work, got off a Roosevelt Road bus and walked passed them. As she turned into her home, Sims ran up to her on one side and Grenshaw on the other and they tried to seize her purse. She resisted and Sims stabbed her in the back with a knife. Sims and Grenshaw ran away. Mrs. Giles entered her home and her son called an ambulance, but she died on the way to the hospital.

The defendants point to their youth, their lack of criminal record and their home environment in requesting a reduction of the punishment set by the trial court.

In People v. Valentine (1965), 60 Ill.App.2d 339, 208 N.E.2d 595, this court, in reviewing a sentence of life imprisonment imposed on a seventeen-year-old who was convicted of rape, said: We believe that 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.”

The defendants murdered a defenseless woman. The crime was senseless and wanton. The sentences of twenty to thirty years were within the scope of the punishment fixed by statute (Ill. Rev. Stat., 1967, ch. 38, par. 9—1 (b)) and were not incommensurate with the enormity of the offense.

The judgment is affirmed.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.