author: JUSTICE HEIPLE

text:
    THE PEOPLE ex rel. CHARLES H. KASSABAUM, Putnam County Treasurer and Ex-Officio County Collector, Plain tiff-Appellant, v. ARCHIBALD W. HOPKINS et al., Defendants-Appellees.
    Third District
    No. 3—83—0164
    Opinion filed November 9, 1983.

      Norman K. Raffety, State’s Attorney, of Hennepin (John X. Breslin, of State’s Attorneys Appellate Service Commission, of counsel), for appellant.
    Walter Durley Boyle, of Boyle & Goldsmith, of Hennepin, for appellees.
   JUSTICE HEIPLE

delivered the opinion of the court:

In January 1980 the taxpayer-appellee constructed a hog confinement building upon real property owned by the taxpayer. Livestock waste management facilities were constructed appurtenant to the hog confinement building. On October 23, 1981, the taxpayer applied for certification as a pollution control facility for the waste management facilities by filing an application with the Illinois Environmental Protection Agency (Illinois EPA) under section 21a — 5 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 502a — 5). Certification as a pollution control facility was granted by the Illinois EPA on December 16, 1981. The Illinois Department of Revenue received the certification on December 23, 1981. On May 10, 1982, the Illinois Department of Revenue Property Tax Administration Bureau notified the Putnam County Supervisor of Assessments to remove the waste management facilities from the local tax assessment rolls as of January 1,1982.

The taxpayer’s assessment for 1981 included the value of the waste management facilities. Of the $9,005 in taxes due for 1981, $1,558 was attributable to the waste management facilities. The taxpayer paid the full amount of 1981 taxes under protest. On August 31, 1982, the taxpayer objected to the assessment for 1981 on the basis that the waste management facilities should have been removed from the tax rolls as a certified pollution control facility. An abatement of $1,558 was sought.

Following a hearing, the taxpayer’s objection was allowed on February 15,1983. The county collector appealed.

The question before us is whether the trial judge correctly determined that the taxpayer’s 1981 application for certification as a pollution control facility for his waste management facilities entitled him to an abatement for the 1981 tax year. We find no error in the trial judge’s determination.

The Revenue Act of 1939 provides in pertinent part as follows:

“*** Application for a pollution control facility certificate shall be filed with the Pollution Control Board. *** The effective date of a certificate shall be the date of the making of the application for the certificate or the date of the construction of the facility, whichever is later.” (Ill. Rev. Stat. 1981, ch. 120, par. 502a — 5.)

In the case at bar, the taxpayer constructed the facility in January 1980. He applied for the certificate in October 1981. Obviously, the 1981 date takes precedence over the 1980 construction date. By ordinary rules of statutory construction, the taxpayer was entitled to an abatement for the 1981 tax year.

The State argues, however, that the legislature did not intend to create a retroactive effect to the certification process for a pollution control facility. In support of its argument, the State points to the certification procedure for a low sulphur dioxide emission coal fueled device under sections 21a — 9 through 21a — 13 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, pars. 502a — 9 through 502a — 13). There the legislature specifically provided that the effective date of a certificate shall be on January 1 preceding the date of certification or preceding the date of construction or installation of the device, whichever is later. The State contrasts this specific provision for retroactive effect with the absence of any such retroactive language in the Revenue Act of 1939 sections applicable to pollution control facilities.

The State has not cited to any case law in support of its position, and we find none. The absence of specific retroactive language in section 21a — 5 of the Revenue Act of 1939 does not bar retroactive application of its provisions. The plain meaning of the language in the statute, when applied to the instant facts, is that the effective date of the certificate shall be the date of the making of the application for certification, that is, 1981.

Trial court exhibit No. 7, which is a letter from the Department of Revenue to the State’s Attorney of Putnam County, refers to a policy adopted by the Department which holds that any certification received for a pollution control facility (other than for a low-sulfur-dioxide-emission coal-fueled device) that has an application date after January 1 in any given year will have its first assessment date as of the next January 1. The letter states that this policy is not part of the statutes or Department rules but that it is to be part of a procedures manual under preparation for the Department.

In the trial court and on appeal, the taxpayer argued that this policy is invalid and, for that reason, the Department’s decision, based on that policy, to lower the taxpayer’s assessment effective January 1, 1982, was improper. We agree that the date selected by the Department for the lowering of the taxpayer’s assessment was improper. The effective date should have been January 1, 1981. We reach this conclusion based on the language of the applicable statute.

For the reasons stated, the judgment of the circuit court of Putnam County is affirmed.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN W. HOWER, Defendant-Appellant.
    Fourth District
    No. 4—83—0122
    Opinion filed November 9, 1983.
    Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and David E. Mannchen, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLER

delivered the opinion of the court:

In this appeal the defendant, Stephen W. Hower, challenges a judgment for reimbursement of the cost of court-appointed counsel entered against him by the trial court pursuant to section 113 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113— 3.1). Because counsel was appointed to represent Hower against his wishes, we reverse the judgment for reimbursement.

On August 31, 1982, Hower, then age 17, was charged with one count of burglary under section 19 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1). In an affidavit of assets and liabilities filed with the trial court, Hower indicated that he had no source of income and assets amounting to $400 in borrowed cash. The trial judge found Hower to be indigent and advised him of his right to counsel. Hower told the court that he did not wish to be represented by counsel because he was already indebted to his parents in the amount of $1,500 for attorney fees relating to a prior case and he intended to plead guilty to the current charge. Notwithstanding Hower’s statements to the court, the State’s Attorney requested the court to appoint the public defender, and the trial court did so making special note of Hower’s age and of the request of the State that counsel be appointed.

On September 3, 1982, a plea agreement negotiated by Hower and the State was presented to the court. Under the agreement, Hower was to plead guilty to the pending charge and admit to the allegations contained in a petition for revocation of probation. In return, he was to be sentenced to concurrent three-year terms of imprisonment with credit for time spent in custody, plus costs and restitution in both cases. The public defender appointed to represent Hower appeared at the time the plea was presented to the court and stated for the record that she had recommended against the agreement, but that Hower chose to ignore her advice. After hearing the terms of the agreement, the trial judge conditionally concurred in the plea and the cause was continued for preparation of a presentence report. Following receipt of the report the trial judge accepted the plea and admissions, and Hower was sentenced according to the agreement.

After sentencing, the State filed a motion pursuant to section 113 — 3.1 of the Code of Criminal Procedure of 1963 seeking reimbursement from Hower for cost of the services of the public defender. In response to a court order, the public defender submitted an affidavit showing that she had spent 2V2 hours on the case. The trial judge, after a hearing at which Hower was not present, entered judgment in favor of the county and against Hower in the amount of $125 for the cost of the public defender’s services.

On appeal, Hower raises several issues relating to the judgment for reimbursement. He first contends that the reimbursement order was improper because the public defender was appointed to represent him against his wishes. Because we agree with Hower’s first contention, we need not reach the remaining issues.

Section 113 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 5) provides:

“No person under the age of 18 years shall be permitted to plead guilty, guilty but mentally ill or waive trial by jury in any case except where the penalty is by fine only unless he is represented by counsel in open court.”

Similarly, Supreme Court Rule 403 (87 Ill. 2d R. 403) provides:

“A person under the age of 18 years shall not be permitted to waive indictment or, except in cases in which the penalty is by fine only, to enter a plea of guilty or to waive trial by jury, unless he is represented by counsel in open court.”

Section 113 — 3.1(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3.1(a)) provides in part:

“Whenever under either section 113 — 3 of this Code or Rule 607 of the Illinois Supreme Court the court appoints counsel to represent a defendant, the court may order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to reimburse either the county or the State for some or all of the costs of court-appointed counsel.”

Section 113 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 113 — 3) and Supreme Court Rule 607 (87 Ill. 2d R. 607), to which the recoupment provision of section 113 — 3.1(a) of the Code of Criminal Procedure of 1963 refers, provide for the appointment of counsel for indigent defendants who desire counsel in the trial court and on appeal.

In the case before us, Hower, at the time of his arraignment and plea, was a person under the age of 18 charged with a Class 2 felony. Because of Bower’s age, his expressed intention to waive trial by jury and to enter a plea of guilty, and the penalty to be imposed, the trial court was correct in appointing counsel to represent Hower despite Bower’s indications to the court that he did not wish to be represented by counsel.

Because Bower’s representation by counsel in the trial court, however, was mandated by section 113 — 5 of the Code of Criminal Procedure of 1963 and Supreme Court Rule 403, we find the recoupment provisions of section 113 — 3.1 inapplicable to the present case.

As noted, the recoupment provisions of section 113 — 3.1 apply to those cases in which counsel has been appointed to represent an indigent defendant who desires counsel, not to those defendants who wish to waive counsel but are required to be represented by counsel under the provisions of section 113 — 5 and Supreme Court Rule 403.

For the reasons stated, the judgment for reimbursement of the costs of court-appointed counsel entered against Hower in the trial court is reversed.

Reversed.

MILLS and TRAPP, JJ., concur.


author: JUSTICE ALLOY

text:
      In re ESTATE OF HELEN N. BABCOCK, Deceased—(Russell Babcock, Petitioner-Appellee, v. Shirley J. McDonnell et al., Respondents-Appellants).
    Third District
    No. 3 — 83—0046
    Opinion filed November 9, 1983.

      Ralph Froehling, of Froehling, Taylor & Weber, of Canton, for appellants.
    Tom Ewing, of Proctor & Ewing, of Lewistown, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The circuit court in this case admitted to probate a copy of Helen Babcock’s June 18, 1970, last will and testament, as her last will and testament. In so doing, the court concluded that the presumption of revocation, arising from nonproduction of the original, had been overcome by proof from petitioner Russell Babcock. Respondents Shirley McDonnell and Norman Keane appeal from the judgment admitting the will to probate as Helen Babcock’s last will and testament. They contend that the evidence was insufficient to rebut the presumption of revocation. They also assert that two evidentiary errors were made by the court. These included error in the admission into evidence, over Dead Man’s Act objection (Ill. Rev. Stat. 1981, ch. 51, par. 2, now Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201), of certain testimony by Laura Babcock, wife of an interested party, and error in the court’s refusal to permit questioning of Shirley McDonnell by her own counsel concerning conversations with the decedent.

The record reveals that Helen Babcock was the wife of Cassius Babcock. Cassius was born in Fulton County, Illinois, one of five brothers. As a young man, Cassius moved to Detroit and there married Helen Keane, the decedent herein. Prior to his death in 1969, Cassius had acquired, via inheritance, an undivided interest in the Babcock family farm in Fulton County, along with his three brothers. The farm, consisting of 276 acres, 176 of which are tillable, had been in the family for over 100 years. Helen and Cassius had been regular visitors there during their marriage. When Cassius died in December 1969, his undivided interest in the farm passed, under his will, to Helen Babcock, his wife and the decedent herein. On June 18, 1970, Helen Babcock executed a will that a Detroit, Michigan, attorney had prepared at her direction. This is the June 18, 1970, will that was probated by the circuit court in this action. In this will she devised whatever interest she had in the Babcock family farm to her deceased husband’s brothers, Frank, Hardy and Russell. Coupled with the devise of the farm interest was a direction to distribute to the three brothers, in equal shares, certain funds then on deposit in a Detroit bank account. The residue of her estate, under the will, was given to Shirley McDonnell and a Detroit bank, as trustees, with directions to pay the income and necessary principal, to Helen’s sister, Mae, during her life, and at Mae’s death, to distribute the remaining assets, in equal shares, to Shirley and her brother Norman Keane. Shirley and Norman were Helen Babcock’s only heirs at law at the time of her death.

One of the witnesses to execution of the will, Francis O’Neil, a cousin of Helen’s who was living in Detroit, testified at trial by way of deposition. Mr. O’Neil stated that Helen indicated at the time of execution of the will that she was glad to get the farm property back into the hands of the owners, her husband’s brothers. O’Neil testified that Helen discussed the will frequently at first, but over the years, not as much. In her discussions with him, however, she always considered the farm to belong to the Babcock family, and indicated her satisfaction that the family would have control over it again.

The substance of the will, with respect to the devise of the farm to her Illinois relatives, was also conveyed by Helen to the Fulton County Babcocks in a 1970 letter. In the letter, Helen stated that the farm property would return to the brothers after her death. Also in the record is correspondence over the years between Helen Babcock and her Fulton County relatives. The correspondence demonstrates a continuing love, affection and friendliness by Helen to them. In a 1971 letter, Helen tells Russell Babcock and his wife, Laura, that she does not want any income from the farm, that they should put it in the bank for taxes. Helen continued, until shortly before her death, to stay in touch with the Illinois Babcocks, and the record contains letters, cards and evidence of phone calls and small cash gifts from her. None of the letters after 1971 that were admitted into evidence mention the will or its dispositive provisions respecting the farm. Neither did any of the letters indicate any intention to or action toward revocation of the June 18, 1970, will or any alteration of its provisions respecting the farm property.

In May 1976, an explosion and fire near the home of Helen and Mae, her sister, required their change of residence, and from May 1976 until March 1977, the sisters moved in with the family of Francis O’Neil, their cousin. Mr. O’Neil, in his deposition, testified that during that time Helen indicated that she still had the will and was happy that she had everything ready in case of her death. During this time, as well, Helen continued to indicate to him her contentment that the Babcock farm would be back with the Babcock family. These conversations between O’Neil and Helen were subsequent to the deaths of two of her brothers-in-law in Fulton County. Hardy died in March 1974, while Frank died in July 1975. As previously noted, Helen continued to keep in close touch with the remaining Illinois Bab-cocks until shortly before her death in March 1980. Her relations with them continued to be friendly and affectionate.

Respondent Shirley McDonnell, who frequently saw her aunt during the final years of Helen’s life, also testified concerning the relationship between Helen and the Fulton County Babcocks. Testifying under section 60 (Ill. Rev. Stat. 1981, ch. 110, par. 60, now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1102), as an adverse witness, McDonnell conceded that the relationship was good, but added that sometimes “some things” were said in the privacy of her own home by Helen. She did state that regular communication occurred between Helen and her Fulton County relatives until shortly before her death, including phone calls, letters and gifts. McDonnell indicated that her aunt had never received any income from the Babcock farm and had not requested it. She conceded that her aunt had always told her about the will, and, at one point, that she always knew her aunt was leaving the farm to the Fulton County Babcocks. She also testified that her aunt had never indicated that she had destroyed the will or that she had any intention to revoke it.

Shirley McDonnell also testified that she made a search of her aunt’s belongings after her death, and there found a copy of the June 18, 1970, will, which copy was given to McDonnell’s Detroit attorney, who then forwarded it to counsel in Fulton County. McDonnell denied entering her aunt’s safety deposit box shortly before her aunt’s death for the purpose of removing and destroying the original will. She admitted, however, that in February, 1980, only one month before Helen Babcock’s death on March 8, she went to the bank and emptied out all of the contents of the safety deposit box. McDonnell stated that she did this at Helen Babcock’s direction, who at the time was dying of cancer. She stated that no will was in the box. McDonnell also testified in 1977 she had assisted her aunt in removing the contents of a prior safety deposit box and transferring it to the one which was held at the time of her aunt’s death.

Further evidence established that Helen Babcock’s savings accounts had been joint accounts, with Shirley McDonnell, some within several months of Helen’s death. According to Shirley, this was done so that she could help her aunt with needed business affairs. The record also indicates that Helen and her brother, Norman Keane, each received $50,000 from those accounts after Helen’s death.

Petitioner’s case also included testimony from Pearl Babcock, wife of deceased Babcock brother, Frank. Pearl indicated the continuous good relations between Helen and the Fulton County relatives throughout Helen’s life. She also testified that Helen always declined the family’s offer of any income from the farm.

Another witness for petitioner was Laura Babcock, wife of petitioner Russell Babcock, brother-in-law of Helen Babcock and surviving Babcock brother. Laura Babcock’s testimony, concerning various conversations she had with the decedent Helen Babcock, was given over the objection by defense counsel that it was contrary to the Dead Man’s Act, as Laura was the spouse of an interested party. Her testimony concerned the relationship between Helen and the Babcock family, and was based upon letters and upon phone conversations. She testified that their phone conversations were similar to family visits, during which Helen would inquire about the family members and their health and doings. She stated that Helen always refused any income from the farm, when it was offered, stating that she wanted it put back into the farm. The substance of these conversations corroborated other evidence previously admitted indicating Helen’s love and affection toward the Fulton County family. She also testified that Helen had never indicated to her any intention to revoke her 1970 will. In addition, Laura also testified to various letters and cards, which were admitted into evidence, all from Helen to the Babcock family in Fulton County. These indicated a close and continuing affectionate relationship. In addition, Laura testified to a conversation with Helen during which Helen stated that her Michigan relatives, meaning Shirley and Norman, were only concerned with “money, money, money.” Additionally, Laura testified to a phone conversation with Shirley McDonnell, after Helen’s death, during which Shirley stated that she and Norman always knew that the Illinois family would get the farm. The statement was denied by Shirley during her direct examination.

The respondent’s case included testimony by Shirley McDonnell, who had previously testified as an adverse witness during petitioner’s presentation of evidence. Her own counsel sought to elicit testimony from her about Helen Babcock’s response to a certain letter of May 1976 from a Lewistown attorney to Pearl Babcock. A Dead Man’s Act objection was interposed as to any testimony from Shirley McDonnell concerning conversations she had with the decedent Helen Babcock. The objection was sustained over McDonnell’s counsel’s argument that those matters had been opened up during the prior section 60 examination such that broad latitude ought be given him in examining McDonnell. Thereafter, counsel proceeded with an offer of proof which initially focused upon the effect of the May 1976 fire upon her aunt, and then later on the relationship of her aunt and the O’Neils as well as the 1976 letter and its effects. The testimony concerning the O’Neils focused upon statements by Helen concerning Mr. O’Neil’s attempts to talk Helen into helping pay for his son’s education and other items. The letter of May 1976 was from a Fulton County attorney to Pearl Babcock, inquiring as to the status of the farm, within the context of Cassius’ estate. The import of it was that the attorney did not know what provision had been made in the event of Helen’s death. Shirley McDonnell testified that when her aunt received a copy of the letter, she became upset with the Illinois relatives.

Another witness for the respondents was Rose Keane, wife of Norman Keane, a respondent in the action. She testified that Helen’s attitude toward the Illinois Babcocks changed as a result of her receipt of the May 1976 letter. She testified that her aunt became upset with the letter, not understanding its meaning. She stated that Helen showed it to her, inquired as to its meaning, and stated that it looked like someone was trying to get something.

The trial court, after hearing all the evidence, probated the June 18, 1970, will of Helen Babcock, finding that the petitioner had overcome the presumption of revocation arising from nonproduction of the original will. In his letter accompanying the order, the trial judge indicated that the case revolved, in part, around determinations of witness credibility. As to the May 1976 letter, testified to by Rose Keane, the court indicated its serious question concerning her credibility and her explanation of the effect of the letter on Helen. The court also noted the extensive and largely uncontested evidence of a continuing attitude of love and affection toward the Illinois Babcocks on the part of Helen Babcock. The court also pointed out that even after the alleged upsetting circumstance of the fire and the letter, Helen indicated to Francis O’Neil her continued desire and intent that the.Bab-cock farm stay with the Illinois Babcocks.

On appeal, the respondents initially argue that the evidence was insufficient to support the trial court’s conclusion that the presumption of revocation was overcome. As this court noted in In re Estate of Netherton (1978), 62 Ill. App. 3d 55, 57-58, 378 N.E.2d 800, quoting from In re Estate of Moos (1953), 414 Ill. 54, 57, 110 N.E.2d 194:

“Where a last will and testament, after its execution, is retained by the testator and cannot be found upon his death, it is the well-settled rule of this and of the majority of jurisdictions that it will be presumed to have been destroyed by him animo revocandi. [Citations.] The same cases establish that the presumption is subject to being rebutted by circumstances which tend to show a contrary conclusion, and that the burden is on one seeking to probate such a will to prove that it was unre-voked at the testator’s death.”

In Jackson v. Jackson (1971), 132 Ill. App. 2d 66, 71, 268 N.E.2d 62, the court noted possible factors helping to rebut the presumption:

“However, it is also the rule that this presumption is subject to being refuted by circumstances showing a contrary conclusion, such as statements by the testator that he did not intend to revoke the will; that he entertained a kind and loving attitude toward the proposed beneficiary under the will; and lastly, that other persons who had an adverse interest had possession or access to the testator’s will either before or after his death. [Citation.]”

The Illinois Supreme Court has noted that because the evidence with respect to any rebuttal will vary from case to case, other cases “constitute little assistance in [making] the determination.” (In re Estate of Morgan (1945), 389 Ill. 484, 487, 59 N.E.2d 800.) In In re Estate of Moos (1953), 414 Ill. 54, 60-61, 110 N.E.2d 194, the court, in affirming the trial court’s rejection of the sufficiency of rebuttal evidence, stated:

“*** the presumption of revocation by the testator is effectively overcome by evidence which shows that the testator maintained an attitude of friendship, confidence and reliance toward the proponents up to the time of his death. Evidence of such nature has been held to reflect the attitude of a testator which makes it unlikely that he would have revoked a will benefiting those with whom he continued to have harmonious relations. The weight to be given such evidence, however, necessarily varies with the given facts of each case. [Citation.] There was evidence in this case, which was the subject of testimony offered both in rebuttal and surrebuttal, that the testator held the proponents in high regard both before and after the execution of his will and until the date of his death. However, even accepting appellants’ version of the relationship as controlling, we are of the opinion that such evidence standing alone is insufficient to show an unlikelihood that the testator would revoke his will.
In the decisions we have examined, many of which are analyzed in the Morgan case, the evidence of continuing friendly and loving relations was supplemented by declarations of the testator, made subsequent to the execution of the will and prior to and at the time of death, which showed an unchanged attitude on the part of the testator relative to the disposition of his property.”

In the case at bar, appellant’s counsel argues that the evidence was insufficient to rebut the presumption of revocation, because there was no evidence of supplemental declarations of the testator after 1976 indicating her desire to leave the farm to the Fulton County Babcocks. Contrary to appellant’s suggestion, Moos does not require supplemental declarations. What is required to supplement evidence of continued friendly and loving relations is evidence indicating an unchanged attitude respecting the disposition in the will. That may be direct evidence, such as declarations of the testator, or circumstantial, from other acts and circumstances which permit an inference of such an unchanged attitude. Based on a review of all the evidence, we find that there was sufficient evidence presented to overcome the presumption of revocation. Initially, we note the clear and specific direction of the will itself, and the statements near the time of its execution by Helen about the farm property. These statements were made to Francis O’Neil and to the Illinois Babcocks in letters from Helen. There is also the continual attitude of friendliness, love and affection demonstrated by Helen toward her Fulton County relatives until shortly before her death. This is evident from her own correspondence and gifts, as well as from the testimony of Francis O’Neil and Pearl Babcock. Additionally, the close family connection was admitted by Shirley McDonnell several times. The appellants seek to contradict this evidence by pointing to an alleged change in attitude occurring about the time of receipt of the May 1976 letter from the Fulton County attorney. However, in addition to the court’s credibility questions respecting that testimony, there are statements from Helen’s own correspondence and from her conversations with Francis O’Neil, dating from after the receipt of the letter, which clearly indicate an unchanged attitude toward the Fulton County relatives and the farm property. Francis O’Neil testified that while Helen and her sister were staying with them, which was until March 1977, Helen had indicated to him that she still had her will and was happy to have the Babcock farm back in Babcock hands.

As concerns the period after 1977, until her death early in 1980, there is little direct evidence indicating her intentions and desires respecting the farm. There is, though, the unchanged attitude of love and affection toward the Illinois Babcocks. There is also indirect evidence establishing her continued contentment with the June 1970 will and its disposition of the farm property. In none of Helen Bab-cock’s conversations or letters did she ever state, to anyone, that she had revoked the will or suggest to anyone a desire to do so. She never indicated any displeasure with the will’s provisions. It is significant that although Shirley McDonnell was close to Helen in her later years, helping her with business affairs, Helen never mentioned to her any revocatory intention or action. Shirley McDonnell testified that her aunt had always told her about the will and that she had always known her aunt was leaving the farm to the Babcocks. If Helen had revoked the will, with a desire to have the farm property pass to her own blood relatives, being Shirley and Norman, it would have been likely that she would have informed Shirley of it during that time, since Shirley was taking care of her business and they both knew Helen was very sick near the end. Additionally, there is the evidence of Helen’s continual refusal, from the time of the will until her death, to accept any income from the farm property, despite offers of such from the Illinois relatives. This conduct on her part, which is uncontra-dicted, also indicates an unchanged attitude toward the farm property and its disposition to the Illinois Babcocks. Lastly, there is Shirley McDonnell’s statement, to Laura Babcock, shortly after Helen’s death, acknowledging that she and Norman always knew that the farm was to go to the Babcocks, and that they would have full interest. Although this statement, and some other evidence, was contradicted by testimony from Shirley and Rose Keane, those questions of credibility and weight were for the fact finder, and we find no basis to overturn his decisions thereon. While none of the evidence, standing alone, would be sufficient to rebut the presumption of revocation, taken together, in its entirety, the evidence sufficiently establishes Helen’s continuing unchanged attitude toward her relatives in Fulton County and the disposition of the farm in her June 18, 1970, will. Little purpose would be served in analyzing other cases, for all are distinguishable, and the supreme court has repeatedly emphasized that in this area each case must be determined on its own facts and circumstances.

We turn next to the assignments of error centering upon the evidentiary rulings of the trial court. It was error, as appellants’ contend, to permit Laura Babcock, the wife of Russell Babcock, to testify as to conversations she had with Helen, the decedent. The Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 51, par. 2, now Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201) renders incompetent the testimony from an interested person concerning conversations and events taking place in the presence of the deceased person, except under certain exceptions which do not apply herein. The act has been construed over the years to also prohibit a spouse of an interested party from testifying to events and conversations in the presence of the decedent. (Peters v. Peters (1941), 376 Ill. 237, 33 N.E.2d 425; Heineman v. Hermann (1943), 385 Ill. 191, 52 N.E.2d 263; In re Estate of Teehan (1936), 287 Ill. App. 58, 4 N.E.2d 513.) While this court, along with noted commentators (2 Wigmore, Evidence secs. 578, 578a (3d ed. 1940); E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 606.1 (3d ed. 1979); S. Gard, Illinois Evidence Manual Rule 405 (1963)), believes that this rule of the Dead Man’s Act sets forth an anachronistic approach, which should be removed, nevertheless we are in no position to overrule the established law, as set forth by the Illinois Supreme Court. We firmly believe, however, that these questions of credibility and weight should be left, as such questions usually are, for the fact finder to determine. In this regard, we would urge both the Illinois Supreme Court and the legislature to scrutinize the continued viability and reasonableness of the Dead Man’s Act provisions.

Having noted our position on the broad question, we turn back to the facts of the case at bar. Laura Babcock’s testimony concerning conversations with Helen Babcock was improperly admitted by the court. While much of Laura Babcock’s testimony as to conversations with Helen Babcock was cumulative of other evidence in the record, it was nevertheless sufficiently prejudicial in its substance and tone as to justify a reversal and a remandment for a new trial. Particularly prejudicial was Laura’s testimony concerning Helen’s characterization of her Michigan relatives’ greedy natures. While the evidence, apart from Laura’s testimony, was sufficient for the court to conclude that the presumption of revocation had been rebutted, we cannot gauge what effect Laura’s testimony may have had on the fact finder’s determination of the credibility of the witnesses and the weight afforded their testimony. Accordingly, based upon the error in the admission of Laura Babcock’s testimony, we reverse the judgment entered and remand for a new trial.

We also address the final issue on appeal, as that may aid the court upon retrial. The final assigned error is the failure of the court to permit respondents’ counsel to examine Shirley McDonnell on the scope of the relationship between Helen and the Illinois Babcocks. Counsel argued that because the relationship had been inquired into during Shirley’s section 60 examination, it was proper for him to take up the inquiry on direct examination. The court disagreed, and found that the Dead Man’s Act prohibited Shirley, as an interested party, from testifying to conversations with Helen before her death. Offers of proof were made. We note that the initial offer of proof related to the May 1976 fire and Helen’s relationship with the O’Neils. The other dealt with the reaction of Helen to the May 1976 letter from the Illinois attorney. Those subjects were not opened up by petitioner’s counsel during his section 60 examination of Shirley McDonnell. Certainly, as to conversations and events that were specifically inquired into by the petitioner’s counsel during the section 60 examination, opposing counsel was entitled to inquire, as the door had been opened and the Dead Man’s Act objection waived as to those specific areas. However, the objection, as here, is still valid as to other areas and specific conversations and events which were not opened up during the previous examination. Furthermore, in the instant case, the substance of the offer of proof, respecting the effects of the letter on Helen’s attitude, was testified to and put forth by Rose Keane, on behalf of the respondents. We find no error to have been committed respecting Shirley McDonnell’s direct testimony.

For the reasons stated, the decision of the circuit court of Fulton County is reversed, and the case remanded for a new trial, consistent with the opinions expressed herein.

Reversed and remanded.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE TRAPP

text:
    GEORGE D. BORROWMAN et al., Plaintiffs-Appellees, v. VIRGIL HOWLAND, Defendant-Appellant.
    Fourth District
    No. 4—83—0201
    Opinion filed November 21, 1983.

      Schimmel, Takahashi & Schimmel, of Pittsfield, for appellant.

      Brett Irving, of Irving & Irving, of Pittsfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

This is an action brought by the commissioners of the Sny Island Levee Drainage District (drainage district) in Calhoun County seeking a mandatory injunction to compel the removal of a farm building which allegedly encroaches upon a drainage district easement. Virgil Howland is the contract purchaser of the land on which the building is located, and he erected the building in issue. On January 21, 1983, an order of mandatory injunction issued, directing defendant to remove the structure from the drainage district’s easement within six months. Defendant appeals.

Howland disputes the validity of the injunctive order on several theories. First, he asserts that the trial court was without jurisdiction over all necessary parties, because the owners of the land upon which the structure was located were not made parties to the action. Second, defendant contends that the presence of the structure on the land subject to the easement did not constitute an encroachment, since the building did not interfere with the uses for which the easement was created. Third, he argues that the issuance of the mandatory injunction was improper because the plaintiffs would have an adequate remedy at law. Last, Howland maintains that the trial court abused its discretion in issuing the mandatory injunction, because the foreseeable benefits of removing the structure would be greatly outweighed by the cost of its removal.

The complaint alleged that the title owners of the land in question granted an easement to the drainage district on May 24, 1967, and this conveyance was recorded with the Calhoun County recorder on January 29, 1969. It also alleged that Virgil Howland knowingly encroached on this easement beginning in the spring of 1980 when he caused a pole structure to be erected on the land subject to the right-of-way. Attached to the complaint was a copy of the instrument which purportedly created the easement in issue. According to this document the grantors of the easement were Una B. Suhling, Kermit Suhling, Jeanette Suhling, William Haynes and Dorothy Haynes (Suhl-ings and Hayneses), who apparently are the current titleowners of the land. The area subject to the easement is described as “[a] tract of land 150.0 feet in width being 75.0 feet on each side of the centerline of an existing drainage ditch locally known as ‘Old Bay Creek Channel.’ ” The document conveys to the drainage district “the perpetual right to use, operate, repair, and maintain the existing channel with the right to place spoil within the area,” and “the perpetual right of ingress and egress over the [area covered by the easement] for the purpose of inspection, patrolling, repairing, using, operating, excavating, placing spoil and maintaining said existing ditch.” Reserved to the grantors in the right to “use the area *** for ordinary farming operations or any other purpose, so long as said usage does not obstruct, damage, or affect the efficiency of the operation or maintenance of said drainage ditch.” This agreement was signed by all five grantors and the three drainage district commissioners and provides that it shall be binding upon the successors, heirs, devisees and assigns of the respective parties.

Trial commenced on November 12, 1982. Although Howland did not formally admit any of the allegations of the complaint, certain basic facts were not disputed in the evidence or arguments presented at trial. First, there is no dispute as to the existence of the drainage district’s easement nor the validity of the instrument which describes and created the easement. Second, there is no dispute that the building in issue is located on the area covered by the easement. Third, it is uncontroverted that Howland is the contract purchaser of the land, and that the Suhlings and Hayneses hold legal title.

The principal witness for the plaintiffs was the superintendent of the drainage district, William T. Gard. Gard testified that he spoke with defendant around the first of March 1980, and defendant asked him about a “clean out” of Old Bay Creek and Crooked Slue Ditch. During that conversation, Howland requested materials relating to drainage district easements on the land he occupied. Gard recalled that defendant did not state the reasons for this request and defendant made no mention of any construction plans. Gard testified that he gave Howland several documents, including a copy of the document creating the easement in issue.

Gard stated that Howland attended the April 1, 1980, meeting of the drainage district board of commissioners and again inquired into a “clean out” of local channels. Defendant reportedly indicated that he was building a structure on the land he occupied, but he stated it was “some distance away” from Old Bay Creek. That same day Gard and the commissioners visited defendant’s farm to investigate. Gard testified that the structure was near completion. It measured approximately 60 feet by 25 feet and was located seven feet from the bank of the channel. By Gard’s estimation, the edge of the building measured 38 feet from the center line of the channel and 68 feet from the opposite bank.

Gard testified that in order for the drainage district to maintain the channel it was necessary to bring machinery in adjacent to the bank of the channel. Normally, cleaning operations were undertaken with a bulldozer and a “dragline.” He stated that Howland’s building would prohibit the operation of such machinery at that location on the bank. Gard stated that the drainage district planned to clean out this particular section of the channel in the “near future.” He conceded that the right-of-way had not been used in recent years and that the last time the channel was cleared was in 1967.

In addition to Gard, each of the three individual plaintiffs testified. Their testimony corroborated Gard’s account of the events on April 1, 1980. They agreed that Howland’s shed was within 10 feet of the creek bank. After viewing the obstruction, the commissioners sent Howland written notice on April 2, 1980, demanding removal of the structure within 10 days. Commissioner John Kinscherff testified specifically about the anticipated difficulties of cleaning the ditch at the location of Howland’s structure. He stated that the channel is approximately 50 to 60 feet wide at that point. He indicated that the creek could not be cleared from the opposite bank, because the drainage district’s equipment would not stretch across the entire span of the channel.

Virgil Howland testified that he did not hold the deed to the land, but was purchasing the real property from the Suhlings and Hayneses on contract. He stated that he spoke to Gard about drainage district easements on the land in early 1980, before construction began on the building in issue. He recalled that he specifically asked Gard about the measure of the easement adjacent to Old Bay Creek. Gard’s reply, according to Howland, was to the effect that it would take a long time to find the answer in the drainage district’s voluminous records; yet, Gard volunteered, “I’d say approximately 75 feet.” Howland testified that Gard gave him no documents relating to the easement.

Howland stated that he used Gard’s estimate when he chose the building site. He testified that he measured 80 feet across the channel and placed a marker. The structure was then built on the far side of the marker. Defendant stated that the building measures 60 feet by 30 feet, with the length of the building lying parallel to the channel. He conceded that it would not be possible to operate a bulldozer behind the shed; however, he suggested there would be no need for such machinery since he had cleared the area prior to construction.

Defendant testified that he knew the drainage district had an easement when he began construction, but he did not know the true dimensions of the easement until the drainage district gave notice of the alleged encroachment. When he obtained the documents detailing the easement, he received them from the county recorder and not from Gard. He further testified that Gard told him the easement measured 75 feet in width rather than 75 feet from the center line of the channel. Howland testified that he had never done a title search on the land, because the vendors promised to deliver a guaranteed title.

In a written order entered on January 21, 1983, Judge Pezman found that Howland’s building constituted a serious encroachment on the easement, and that Howland knew or should have known the correct dimensions of the easement. The court issued an order of mandatory injunction directing defendant to remove the offending structure within six months. This appeal followed.

Howland argues first that the judgment is a nullity, because the trial court lacked jurisdiction over all necessary parties. Specifically, he contends that the Suhlings and Hayneses were indispensable parties because they owned the land in question. He reasons that a building when attached to real property becomes part of the real property, and since the Suhlings and Hayneses hold legal title to the land, their legal interests were unavoidably involved in this action for mandatory injunction.

We do not agree that the Suhlings and Hayneses were indispensable parties. The general rule in equity was that all persons should be made parties who are legally or beneficially interested in the subject matter of the litigation and who would be affected by the decree. (Georgeoff v. Spencer (1948), 400 Ill. 300, 79 N.E.2d 596; Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 52 N.E.2d 1000. See also Ill. Rev. Stat. 1981, ch. 110, par. 2 — 406(a).) Moreover, the interest of a necessary party is one which is present and substantial rather than a mere expectancy or future contingency. Stavros v. Karkomi (1976), 39 Ill. App. 3d 113, 349 N.E.2d 599; McDonald’s Corp. v. Smargon (1975), 31 Ill. App. 3d 493, 334 N.E.2d 385.

Howland’s argument assumes that the structure was a fixture on the land and that the Suhlings and Hayneses had a present interest in the building. Neither assumption has any basis in the evidence. What constitutes a fixture depends on the facts and circumstances of a case and in large part upon the relationship, agreement, and intent of the parties. (Hopwood v. Green (1940), 375 Ill. 167, 30 N.E.2d 656; Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, 279 N.E.2d 30.) The record in this case contains no evidence relating to the agreement between defendant and the Suhlings and Hayneses, nor of the intent of those persons in regard to any structures erected on the land. This void in the record is surely due to the fact that Howland did not raise this issue until after the close of all the evidence.

Even if we assume that the Suhlings and Hayneses had a present and substantial interest in the structure, the failure to join those persons as parties to the action would not require reversal. An exception to the general joinder requirement provides that where necessary parties who are not joined share the same interests as some party appearing before the court, and the party appearing before the court is able to protect the interests of those absent, the failure to join parties is not fatal. (Pioneer Processing, Inc. v. Environmental Protection Agency (1982), 111 Ill. App. 3d 414, 444 N.E.2d 211.) This exception would have proper application in the case at bar. Whatever the precise nature of the Suhlings’ and Hayneses’ interest in the structure, their purpose in the litigation would surely be the same as defendant’s purpose: to preserve the structure. If in fact the Suhlings and Hayneses had an interest in the structure, they, as Howland, would have opposed the issuance of the mandatory injunction. Hence, on the basis of the exception of the general joinder rule, the failure to join the titleowners of the land was not fatal.

Second, defendant contends that the construction of the building on the land subject to the easement did not encroach on the easement, because it did not deprive the plaintiffs of the uses for which the easement was created. The instrument creating the easement grants to the plaintiffs “the perpetual right to use, operate, repair, and maintain the existing channel with the right to place spoil within the area” and “the perpetual right of ingress and egress over the [area covered by the easement] for the purposes of inspection, patrolling, repairing, using, operating, excavating, placing spoil and maintaining said existing ditch.” The document further provides that the occupier of the land is prohibited from using the land in any manner to obstruct, damage or affect the efficiency of the operations of the drainage district.

Howland suggests that the building causes no interference because he cleared the area in 1980 and there was no showing that the drainage district actually attempted to work on this section of the channel. This ignores the fact that the easement is of perpetual duration. It also ignores the uncontradicted testimony of William Gard that the plaintiffs planned to clear the area adjacent to the structure in the near future. Defendant also notes that the structure does not impede the flow of water in the channel. While it is true that there is no evidence to suggest that the building directly interferes with the flow of water in the channel, Gard testified without contradiction that the flow would become obstructed if the plaintiffs remained unable to clear this section of the channel. Moreover, the use permitted by the easement is not limited to the flow of water through the channel, but also includes the right of drainage district personnel to enter the area and perform cleaning operations.

Defendant also hypothesizes that the work of the drainage district could be accomplished notwithstanding the presence of the building. Specifically, he suggests that cleaning operations could be conducted from either side of the structure or from the opposite bank. This theory finds no support in the record. It is uncontradicted that heavy machinery could not operate behind the shed and there was no evidence to suggest that the work could be done from a position beside the building. It is to be recalled that the structure measures 60 feet in length and lies six to 10 feet from the creek bank. The uncontradicted evidence also showed that the plaintiffs had no equipment which was capable of reaching across the channel. Howland’s contention that the building would not interfere with the functions of the plaintiffs is plainly refuted by the record.

Third, defendant argues that the trial court erred in granting the injunction because the plaintiffs would have an adequate remedy at law. He contends that the inconvenience caused by the presence of the structure could be measured monetarily and damages could be awarded accordingly. This approach suffers two fundamental defects. It assumes that the continued presence of the structure would merely impose some inconvenience upon the plaintiffs which could be compensated in damages. To the contrary, the evidence indicated, and plaintiffs alleged, that the presence of the structure would render proper maintenance of the channel impossible. Further, this approach ignores the perpetual nature of the easement. Even if the presence of the structure merely made the plaintiffs’ task more difficult, the legal remedy would require that the plaintiffs return repeatedly to court to prove their damages. In the sense relevant here, an adequate remedy at law would be one which is clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 223; Cross Wood Products, Inc. v. Suter (1981), 97 Ill. App. 3d 282, 422 N.E.2d 953.) Under the circumstances it is clear that the legal remedy would not be complete, hence the availability of damages would not preclude the issuance of an injunction.

Last, defendant asserts that the trial court abused" its discretion in ordering the injunction, because the foreseeable benefits of removing the structure would be greatly outweighed by the costs. The evidentiary basis on this question is largely one-sided. Defendant produced no proof of the cost of removing or replacing the building. Moreover, there is no contention that reconstruction of the structure at a different site on the land would be impossible. On the other hand, the plaintiffs presented substantial evidence as to the hardship which maintenance of the easement would entail. In short, the record does not permit a conclusion that the trial court erred in weighing the competing interests.

Howland contends that his construction of the building on the area subject to the easement was innocent, but the evidence suggests otherwise. Defendant is the contract purchaser of the land and is chargeable with knowledge of whatever is shown in the record of the chain of title. (See Smith v. Grubb (1949), 402 Ill. 451, 84 N.E.2d 421; Clark v. Leavitt (1929), 335 Ill. 184, 166 N.E. 538.) It is undisputed that the easement is properly recorded; therefore, defendant had at least constructive knowledge of its existence and scope. Howland testified that he was aware that an easement existed before he began construction, yet his only effort to determine the precise scope of the right-of-way was a verbal inquiry to Superintendent Gard. Card’s response purported to be no more than an estimate, and it was clearly indicated to defendant that the estimate was not based upon an examination of the record. The evidence was conflicting as to whether defendant was given a copy of the document which created the easement, but if not, Howland was nevertheless put on notice that further investigation of the easement was required. Defendant admitted in his testimony that he did not even do a title search on the land. When an encroachment is intentional or culpably negligent, the court may properly refuse to balance the equities. See Ariola v. Nigro (1959), 16 Ill. 2d 46, 156 N.E .2d 536; Malchow v. Tiarks (1970), 122 Ill. App. 2d 304, 258 N.E.2d 811.

Upon this review of the record and authorities, we find no error. We therefore affirm the judgment of the trial court.

Affirmed.

WEBBER, P.J., and GREEN, J., concur.


text:
    WILLIAM H. HARMS, Plaintiff-Appellant, v. CHARLES D. SPRAGUE, Indiv. and as Ex’r of the Estate of John R. Harms, Deceased, et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0675
    Opinion filed November 21, 1983.

      James W. Day, of White Hall, for appellant.
    Charles E. McNeely, of Jacksonville, for appellee Charles D. Sprague.
    Robert H. Mehrhoff, of Carrollton, for appellees Carl T. Simmons and Mary E. Simmons.
   JUSTICE MILLER

delivered the opinion of the court:

The question presented by this appeal is whether a mortgage by one joint tenant of his interest in property that he owns in joint tenancy with another severs the joint tenancy. We conclude that it does not. William and John Harms, brothers, owned an improved lot in Roodhouse as joint tenants with the right of survivorship. John mortgaged his interest in the property to the Simmonses and died while the mortgage was still outstanding; his will left all his real and personal property to Charles Sprague. William Harms brought this action to determine the title and ownership of the property, naming as defendants Sprague, the devisee, and the Simmonses, the mortgagees. Sprague asserted his interest as a tenant in common, subject to the mortgage lien. The Simmonses asked that the mortgage be regarded as an existing lien, regardless of the ownership of the property. The trial court held that the mortgage severed the joint tenancy, reducing it to a tenancy in common, and that an undivided one-half interest in the property passed to Sprague on John’s death, encumbered by the mortgage. William Harms appeals, and we reverse.

The facts in this case were stipulated. On June 26, 1973, William and John Harms took title to the property in question as joint tenants, not as tenants in common, with full right of survivorship; the deed reciting this was recorded June 29, 1973. Carl and Mary Simmons, husband and wife, owned an improved lot in Roodhouse that Sprague wanted to buy. Sprague paid $18,000 in cash and gave the Simmonses a promissory note for $7,000, which John Harms cosigned. The note said that it was “[pjayable out of the proceeds from the sale of the interest of John R. Harms in a house and lot situated at 220 E. Clay St., Roodhouse, 111., but in no event later than 6 months from the date hereof,” and also that “payment of this note is secured by a real estate mortgage executed by John R. Harms.” The note shows five monthly interest payments of $70 each, beginning in July 1981 and ending in November 1981. The mortgage recites that it is of John Harms’ “undivided one-half interest” in the property. William Harms was not told about the mortgage. Both the note and the mortgage were executed and delivered to the Simmonses June 12, 1981, and John Harms then moved from the joint tenancy property to the property being bought. John Harms died testate December 10, 1981, leaving his entire estate to Sprague; the Simmonses recorded the mortgage December 29, 1981. The note was not in default when John Harms died. Also, the parties agreed in the trial court that intent was irrelevant.

The trial judge accepted the parties’ stipulation as his findings of fact and held that the mortgage severed the joint tenancy, creating a tenancy in common between John and William; therefore, Sprague took an undivided one-half interest in the property at John’s death, subject to the mortgage; William Harms’ one-half interest was unencumbered.

William Harms argues on appeal that the mortgage executed by his brother did not sever the joint tenancy and that the Simmonses’ mortgage lien disappeared at the death of the mortgaging joint tenant, John Harms.

Four unities are required for the creation and continuation of a joint tenancy: time, title, interest, and possession. (Tindall v. Yeats (1946), 392 Ill. 502, 64 N.E.2d 903.) The court said in Tindall, “That a joint tenancy will be destroyed by the destruction of any one of its necessary unities, is axiomatic.” (392 Ill. 502, 508, 64 N.E .2d 903, 906.) No case in Illinois has decided the question whether a mortgage executed by fewer than all joint tenants severs the joint tenancy. (Mattis, Severance of Joint Tenancies by Mortgages: A Contextual Approach, 1977 S. Ill. U.L.J. 27, 52.) The supreme court has frequently said in dictum, however, that a mortgage by one joint tenant of his interest severs the joint tenancy. (E.g., Illinois Public Aid Com. v. Stille (1958), 14 Ill. 2d 344, 153 N.E.2d 59; Tindall; Van Antwerp v. Horan (1945), 390 Ill. 449, 61 N.E.2d 358; Partridge v. Berliner (1927), 325 Ill. 253, 156 N.E. 352; Hardin v. Wolf (1925), 318 Ill. 48, 148 N.E. 868; Lawler v. Byrne (1911), 252 Ill. 194, 96 N.E. 892.) The court has also said, again in dictum, that a mortgage entered into by all the joint tenants does not sever the joint tenancy. Stille.

Dicta are not binding authority, though they may be persuasive. (Williams v. Crickman (1980), 81 Ill. 2d 105, 405 N.E.2d 799.) William Harms argues that the supreme court’s dicta on mortgages and joint tenancies are unpersuasive because the assumption underlying them is no longer valid. That assumption is that a mortgage conveys title between the mortgagor and mortgagee; a joint tenant’s mortgage of his interest therefore destroys the unity of title. William Harms argues that a mortgagee now takes only a lien on the property, and that liens, by themselves, do not sever joint tenancies. William Harms also argues that he took the entire property free of the lien of mortgage when his brother, the mortgagor, died.

In Van Antwerp the supreme court discussed at length the reasons for finding severance when one joint tenant mortgages his interest. That case involved a levy made under execution of a judgment on the interest of one joint tenant. The court rejected the argument that the levy, like a mortgage, severed the joint tenancy. The court believed that a mortgage was different. The interest of a mortgagee is different from the interest of a levying judgment creditor:

“The giving of a mortgage conveys title as between the mortgagor and mortgagee. (Rohrer v. Deatherage, 336 Ill. 450.) This is such a reduction of interest as to result in the severance of the joint tenancy. (Lawler v. Byrne, 252 Ill. 194.) This is a lessening of the interest of one of the joint tenants. It is apparent that when a joint tenant mortgages his interest in the property, he does not then, retain the same quantum of interest as the other joint tenant. There has been a reduction in interest and when this reduction occurs, there is a destruction of that unity of interest which in turn severs the joint estate.
The taking of a judgment gives to the judgment creditor a lien upon the property of the judgment debtor, and we have held before that the attaching of a judgment lien upon the interest of a joint tenant does not sever the joint tenancy. (Peoples Trust and Savings Bank v. Haas, 328 Ill. 468.) By following this decision, it is clear that if the attaching of a judgment lien upon the interest of a joint tenant does not sever the joint tenancy, the making of a levy upon the interest of the joint tenant debtor would not be such act as would sever the joint estate, because of the fact that the levy gives no greater interest than that which the judgment creditor already possessed. (Tenney v. Hemenway, 53 Ill. 97; Union National Bank v. Lane, 177 Ill. 171.) The interest of the judgment creditor and that of a mortgagee are not identical, because, as seen, title has been passed between the mortgagor and mortgagee in the giving of a mortgage, while the judgment creditor has only obtained a lien which might or might not ripen into title, and until such title has been perfected, there has not been that destruction of the unity of interest of the joint tenant which causes a severance of the joint tenancy.” 390 Ill. 449, 453-54, 61 N.E.2d 358, 360.

Although the supreme court has not expressly overruled its decision in Rohrer, which the Van Antwerp court cited for the proposition that a mortgage conveys title between mortgagor and mortgagee, that decision conflicts with a later one, Kling v. Ghilarducci (1954), 3 Ill. 2d 454, 121 N.E.2d 752. The question in Kling was whether some easements in land were created; in deciding that, the court discussed the effect that giving a trust deed had on the owner’s title. The court said:

“In Illinois the giving of a mortgage is not a separation of title, for the holder of the mortgage takes only a lien thereunder. After foreclosure of a mortgage and until delivery of the master’s deed under the foreclosure sale, purchaser acquires no title to the land either legal or equitable. Title to land sold under mortgage foreclosure remains in the mortgagor or his grantee until the expiration of the redemption period and conveyance by the master’s deed. [Citations.]” 3 Ill. 2d 454, 460, 121 N.E.2d 752, 756.

In Illinois, mortgages are now generally spoken of as creating or giving liens. E.g., Department of Transportation v. New Century Engineering & Development Corp. (1983), 97 Ill. 2d 343; Kerrigan v. Unity Savings Association (1974), 58 Ill. 2d 20, 317 N.E.2d 39; Merrick v. Daehler (1972), 5 Ill. App. 3d 269, 282 N.E.2d 163.

If giving a mortgage creates only a lien, then a mortgage should have the same effect on a joint tenancy as a lien created in other ways. The supreme court has decided a series of cases considering the effect on joint tenancies of judgment liens in various stages of execution and enforcement. In Peoples Trust & Savings Bank v. Haas (1927), 328 Ill. 468, 160 N.E. 85, the court held that a perfected judgment lien on one joint tenant’s interest did not sever the joint tenancy. In Van Antwerp the court held that a levy made on one joint tenant’s interest did not sever the joint tenancy. And in Jackson v. Lacey (1951), 408 Ill. 530, 97 N.E.2d 839, the court held that a sale under levy of one joint tenant’s interest did not sever the joint tenancy until the period for redemption passed.

Courts in other jurisdictions have held that a mortgage executed by one joint tenant does not by itself sever the joint tenancy; the analytical instrument common to those cases is the conclusion that a mortgage creates only a lien and does not pass or interfere with the mortgaging joint tenant’s title. People v. Nogarr (1958), 164 Cal. App. 2d 591, 330 P.2d 858; D.A.D., Inc. v. Moring (Fla. App. 1969), 218 So. 2d 451; American National Bank & Trust Co. v. McGinnis (Okla. 1977), 571 P.2d 1198; see Brant v. Hargrove (App. 1981), 129 Ariz. 475, 632 P.2d 978 (deed of trust).

It has been suggested, though, that a mortgage by one joint tenant destroys the unity of interest rather than the unity of title. (Reichelderfer, Severance of Joint Interests, 1959 U. Ill. L.F. 932, 935; Comment, Protecting a Mortgagee’s Interest Against a Surviving Joint Tenant, 11 Stan. L. Rev. 574, 575 (1959) (criticizing Nogarr)) This must refer to more than just the subtraction of the mortgage balance from the mortgaging joint tenant’s proportionate share of the property’s value, for a joint tenancy may be created even though the joint tenants do not contribute equal shares of the purchase price of the property (Paluszek v. Wohlrab (1953), 1 Ill. 2d 363, 115 N.E.2d 764). In rejecting the argument that unequal contributions prevent the unity of interest from arising, Paluszek said:

“The unity of interest required for the creation of a joint tenancy refers to equality among the cotenants only as to their interest in the estate. Thus a deed granting one tenant an estate for life and the other an estate for years cannot create a joint tenancy. Nor can one tenant be granted a one-fourth interest and the other a three-fourths interest.” (1 Ill. 2d 363, 365-66, 115 N.E .2d 764, 766.)

The judgment lien cases meet the objection that a mortgage destroys the unity of interest. A mortgage causes no greater reduction in a joint tenant’s interest than a perfected judgment lien.

We therefore conclude that a mortgage given by one joint tenant of his interest in the property does not sever the joint tenancy. As the surviving joint tenant, then, William Harms owns the whole estate.

We also hold that William Harms’ ownership of the property is unencumbered by the Simmonses’ mortgage lien. In Peoples Trust & Savings Bank v. Haas (1927), 328 Ill. 468, 160 N.E. 85, the court held that the surviving joint tenant owned the property free and clear of a memorial of judgment that had been filed against the other joint tenant’s interest during his lifetime. A similar result should obtain here. A mortgage lien represents “the remedy for a debt and not a right of property.” (Aron v. City of Chicago (1972), 8 Ill. App. 3d 392, 395, 290 N.E.2d 363, 365.) William Harms, at his brother’s death, took the whole estate under the terms of the instrument that created the joint tenancy, not as his brother’s successor. (In re Estate of Alpert (1983), 95 Ill. 2d 377, 447 N.E.2d 796.) Therefore, we conclude that the Simmonses, as mortgagees, no longer have a lien against the property.

Because foreclosure on the property is not possible for the reasons assigned, the Simmonses are left to their remedy of suit on the note.

Reversed.

WEBBER, P.J., and MILLS, J., concur.


author: PRESIDING JUSTICE "WEBBER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. HERBERT F. LUST, Defendant-Appellee.
    Fourth District
    No. 4—83—0330
    Opinion filed November 21, 1983.

      Chris E. Freese, State’s Attorney, of Sullivan (Robert J. Biderman and Thomas W. Lacy, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Robert J. Waaler, of Waaler, Evans & Gordon, of Champaign, for appel-lee.
   PRESIDING JUSTICE "WEBBER

delivered the opinion of the court: The defendant, Herbert Lust, was stopped by two Illinois State troopers who were conducting a safety check on second division vehicles traveling on Illinois Route 133 at Illinois Route 32 near Loving-ton, Illinois. Defendant was required to stop in spite of his apparent compliance with traffic rules. He was subsequently issued a traffic citation for driving while his license was revoked in violation of section 6 — 303 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 6 — 303). Defendant filed a motion to suppress all evidence arising from his arrest. At a hearing on April 28, 1983, the trial court granted this motion. The People appeal this ruling pursuant to Supreme Court Rule 604(a) (87 Ill. 2d R. 604(a)).

On December 16, 1982, Illinois State Troopers Parr and McClarin established a “safety check” for second division vehicles traveling on Illinois Route 133. A second division vehicle is defined by section 1— 217 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95 1/2, par. 1— 217) as follows:

“Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo ***”

Defendant was driving such a vehicle as he approached the site of the safety check. He was not observably violating any traffic laws. He was summoned to the side of the road by a trooper standing in the middle of the road. A safety check was then conducted.

Trooper Parr testified that the Illinois Department of Law Enforcement, Division of Illinois State Police, required that each district make safety checks on a monthly basis. It was left to the troopers to decide exactly where and when these checks would occur and the length of time that they would last.

On December 16, 1982, Trooper Parr selected the site of the operation, and he and Trooper McClarin commenced the safety checks at 8:30 a.m. The troopers intended to stop every truck. However, if traffic volume were heavy, some trucks were allowed to pass by unin-spected in order to avoid traffic congestion and long waiting periods for the truck drivers. Therefore, the only vehicles that may have avoided the safety check were those that passed by when the troopers were busy with other trucks. The same inspection was performed on all of the vehicles that were stopped.

The defendant’s truck was stopped at 9:50 a.m. He was subsequently given a citation for driving while his license was revoked. The defendant filed a motion to suppress all evidence arising from his arrest, alleging that the stop violated the fourth and fourteenth amendments to the United States Constitution by leaving too much discretion in the stopping officers. He based his claim on the U.S. Supreme Court decision in Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391. In allowing the defendant’s motion to suppress, the hearing judge stated:

“I think there is too much discretion in the officers here when they can decide ‘Well, we have got too many stacked, we are going to let a few go and we will start stopping again.’ ”

On May 3, 1983, the People filed a timely notice of appeal together with a certificate of impairment.

The United States Supreme Court, in passing upon the constitutionality of various types of vehicle stops, has established some general guidelines. The permissibility of a vehicle stop is to be judged “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” (Delaware v. Prouse (1979), 440 U.S. 648, 654, 59 L. Ed. 2d 660, 667-68, 99 S. Ct. 1391, 1396.) The court has distinguished checkpoint or roadblock-type stops, which are generally permissible, from roving patrols or spot checks which are generally unreasonable and too intrusive upon privacy interests. Prouse; United States v. Martinez-Fuerte (1976), 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074.

In the present case, we must balance the intrusion of the safety check upon the driver’s fourth amendment interests against the legitimate State interest in highway safety. The Supreme Court has provided some guidance in its holding in Prouse. There the court held that the governmental interest in highway safety cannot justify random spot checks on motorists. This type of stop is too intrusive upon individual privacy and this outweighs its beneficial impact on highway safety. However, the court viewed checkpoint stops in a different light. The intrusiveness of such a stop is felt to be appreciably less than that of a roving patrol spot check. (Prouse; Martinez-Fuerte.) Moreover, the court stated that highway safety could be promoted by “developing methods for spot checks that involve less intrusion [than random stops] or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Delaware v. Prouse (1979), 440 U.S. 648, 663, 59 L. Ed. 2d 660, 673-74, 99 S. Ct. 1391,1401.

One reason the Supreme Court felt that the intrusiveness of a checkpoint stop is less than that of a purely random stop is that motorists are less likely to be alarmed by a checkpoint stop. (Prouse; Martinez-Fuerte.) In the instant case, the stop involved has the characteristics of a roadblock-type stop. Drivers of the vehicles that were stopped were not randomly selected; rather, they were stopped at a fixed location along with other operators of second division vehicles. Embarrassment, fright and surprise were kept to a minimum. The degree of intrusion involved here was equivalent to that of a checkpoint stop.

Similarly, the amount of discretion left to the stopping officers here is not like the “unconstrained” discretion that is left to officers who make random spot checks. Trooper Parr testified that they intended and tried to stop all of the second division vehicles that passed their checkpoint. No discretion is involved to that extent. Only when the volume of truck traffic became too great would other second division vehicles be allowed to pass by uninspected. In other words, when the troopers became too busy they could not stop every truck. A nearly identical situation was faced by the court in People v. Estrada (1979), 68 Ill. App. 3d 272, 274, 386 N.E.2d 128, 130, cert, denied (1979), 444 U.S. 968, 62 L. Ed. 2d 382, 100 S. Ct. 459, where it stated:

“It is not clear from the record whether the traffic was light enough for the troopers to stop every car passing their checkpoint or whether some cars passed while the troopers were both occupied, but it is irrelevant whichever was the case. It is not necessary for a checkpoint to stop every car in order to be systematic but only for officers to be following some pattern that will minimize their discretion in chosing (sic) whether to stop a particular auto.”

Here, too, the troopers’ discretion was kept to a minimum. Manpower limitations and the physical conditions of the State highways dictate that State troopers will be unable to stop every vehicle in some instances. While the officers may have had the discretion to decide where the checkpoint would be set up, the length of time to operate the checkpoint, and when and if the traffic had become too great to check each vehicle, this is not the type of discretion that is offensive to the fourth amendment. These are all neutral, objective decisions on their face. Where objective standards are set forth, as here, we will presume that they are being followed. There is always the possibility that objective, neutral standards will be subject to abuse by enforcement officials and this can be brought to the attention of the courts when and if it occurs. No such abuse is alleged here.

Moreover, we are not dealing with a case where the troopers had “unconstrained” or “unbridled” discretion to decide whether or not to stop an individual vehicle based on the subjective feelings of the officer. Given the limitations of law enforcement on our State highways, discretion, here, was kept to a minimum.

We feel that the important State interest in the safe highway operation of second division vehicles outweighs the minimal intrusion upon fourth amendment privacy interests caused by this safety check stop. Accordingly, the order of the circuit court of Moultrie County granting the motion to suppress is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

MILLS and MILLER, JJ., concur.


text:
    JAY STOERMER, Plaintiff-Appellee, v. JIM EDGAR, Secretary of State, Defendant-Appellant.
    Fourth District
    No. 4—83—0381
    Opinion filed November 21, 1983.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen M. Lien, Assistant Attorney General, of counsel), for appellant.
    Jonathan H. Barnard, of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court reversing the denial of plaintiff’s application for renewal of his restricted driving permit or, in the alternative, for restoration of full driving privileges.

Plaintiff filed a complaint in the trial court seeking review of the Secretary of State’s decision denying driving privilege on December 23, 1982. A hearing was held on May 4, 1983, and the trial court entered the following handwritten order:

“Cause comes on for hearing on complaint. Argument heard, the court reverses the decision of the Secretary of State, and the defendant is hereby ordered to issue to the plaintiff full driving privileges upon meeting usual requirements, with Plaintiff’s Restricted permit to continue in effect pending issuance of full privileges. Cause set for hearing on Defendant’s motion for stay, if any, on May 27, 1983 at 2:00 P.M. FORMAL ORDER TO FOLLOW.”

The clerk made a docket entry the same day noting the order of the court and that a formal order would follow.

Defendant filed a notice of appeal on May 26, 1983. On May 27, 1983, the trial court entered a formal written order reversing the Secretary and ordering reinstatement of full driving privileges to plaintiff.

The question of our jurisdiction to hear this appeal was not raised by plaintiff. However, this court has an obligation to consider its jurisdiction regardless of whether the issue is raised by the parties. Rothert v. Rothert (1982), 109 Ill. App. 3d 911, 441 N.E.2d 179.

Supreme Court Rule 272 (87 Ill. 2d R. 272) provides:

“If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by him, the clerk shall make a notation to that effect and the judgment becomes final only when the signed judgment is filed. If no such signed written judgment is to be filed, the judge or clerk shall forthwith make a notation of judgment and enter the judgment of record promptly, and the judgment is entered at the time it is entered of record.”

The trial court’s handwritten memorandum indicated that a formal order would be entered at a later time. A memorandum signed by the court cannot be deemed to be the judgment of record; it is but a direction to enter judgment or an indication of what the judgment will be. (Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654, citing Freeport Motor Casualty Co. v. Tharp (1950), 406 Ill. 295, 94 N.E.2d 139.) A notice of appeal filed before the filing of a written final order is premature and does not confer jurisdiction on the appellate court. (In re Marriage of Roberts (1980), 84 Ill. App. 3d 538, 406 N.E.2d 1.) Because the notice of appeal was premature and no timely motion to amend has been made, the appeal must be dismissed.

Appeal dismissed.

TRAPP and GREEN, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LESTER B. MASON, Defendant-Appellant.
    Third District
    No. 82—737
    Opinion filed November 9, 1983
    Rehearing denied December 16, 1983.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

After a jury trial in the circuit court of Peoria County the defendant, Lester Mason, was found guilty of armed robbery. He was sentenced to life imprisonment as a habitual offender.

The first issue which we will consider on this appeal is the defendant’s claim he was denied the effective assistance of counsel at his trial. More particularly, the defendant argues he was deprived of such effective assistance of counsel because his attorney neither moved to suppress or object to evidence which, according to the defendant, was illegally seized.

At about 11 a.m. on April 22, 1982, an armed robbery took place at Schoch’s Market. Schoch, the store owner, and his sister, a clerk, were accosted by a man with a knife. In response to his threats they turned over to him $260 and he left the store. The robber was described as black, wearing a beige coat and a nylon stocking over his face. Schoch followed the robber out of the store, hailed a passing van and requested the occupants to follow the robber which they did. Schoch returned to the store and summoned the police. The occupants of the van, Jose and Anita Huerta, gave chase to the robber after he left the store. The robber had passed in front of their van and was wearing a camel coat and a nylon stocking over his head and carried a knife. They lost the robber when he ran down an alley and then into a fenced backyard. After waiting on the street, they saw another black male, having the same height, weight, build and color as the robber, come out of the building into the backyard of which the robber had run. This second black male, who was dressed differently from the first, then got into a car and drove away.

After watching the house for a few more minutes and seeing nothing else happen, the van occupants returned to Schoch’s Market and told the police about following the robber to the house at 924 South Warren. Three police officers then went to the house pointed out by the van occupants. Officer Hoskins first knocked on the screen door but received no answer from inside. Hoskins then opened the screen door and knocked on the main door a couple of times. When the door opened by itself, the officers asked if anyone was there. Getting no response, they entered and conducted a complete search. During the search they discovered and seized a coat, nylon mask and a knife which items were later introduced as evidence and identified by the victims as being associated "with the robber.

To support a claim of ineffective assistance of counsel the defendant must demonstrate:

(1) Actual incompetence of counsel, as reflected by the manner in which he functions as a trial attorney and
(2) Substantial prejudice to the defendant resulting from the incompetence (a showing that without the incompetence, the outcome of defendant’s trial would probably have been different). People v. Hills (1980), 78 Ill. 2d 500, 401 N.E.2d 523.

The question which arises in this case is whether the failure to file a pretrial motion to suppress evidence under the circumstances disclosed by the testimony can be characterized as actual incompetence. Like other phases of his representation, the pretrial phase of an attorney’s activities are a part of his professional duties. Depending on the circumstances this may require the filing of pretrial motions to suppress confessions (People v. Neeley (1980), 90 Ill. App. 3d 76, 412 N.E.2d 1010; People v. Odom (1966), 71 Ill. App. 2d 480, 218 N.E.2d 116) or for the suppression of evidence (People v. Harter (1972), 4 Ill. App. 3d 772, 282 N.E.2d 10). To the extent that the State argues that the decision to file or not to file a pretrial motion to suppress evidence is a matter of trial strategy or tactics not reviewable, we believe its reliance on People v. Gallardo (1983), 112 Ill. App. 3d 764, 445 N.E.2d 1213, People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091, and People v. Hines (1975), 34 Ill. App. 3d 97, 339 N.E.2d 489, is misplaced. In each of the foregoing cases the court did proceed to review defense counsel’s conduct even after suggesting such conduct was not reviewable. The notion that defense counsel’s decision is not reviewable seems to have arisen from ideas such as those discussed in People v. Gray (1965), 33 Ill. 2d 349, 211 N.E.2d 369, where defense counsel did not pursue a motion to suppress a confession because the defendant denied making any statements to anybody. The court in Gray observed that the practice had been not to permit hearings on suppression motions where the defendant denied making any statements and it was the attorney’s decision based on this state of facts which was described as one of tactics. However, what is referred to is the general belief that an attorney is not required to raise futile, frivolous or nonexistent defenses.

Was defense counsel actually incompetent in failing to file a suppression motion in this case? We believe not.

Although the evidence was seized as the result of a warrant-less entry into and search of defendant’s premises, we believe the evidence supports the burden of the officers to establish the legality of the search under one of the exceptions to searches requiring warrants. Under the authority of People v. Abney (1980), 81 Ill. 2d 159, 407 N.E.2d 543, and People v. Carmack (1982), 103 Ill. App. 2d 1027, 432 N.E.2d 282, we conclude the entry and search were made under exigent circumstances, one of the generally recognized exceptions justifying warrantless searches. We believe from the testimony of the van occupants who followed the robber, watched the house and then summoned the police officers, it could well have been concluded the robber may have still been in the house. Both the testimony of the van occupants and of the police officers is consistent with this view, and we believe the entry and search of the premises was reasonable.

If the evidence should not have been suppressed then neither the decision of defense counsel to file a suppression motion nor his failure to do so can be considered actual incompetence. This being so, it follows the defendant was not denied the effective assistance of counsel.

The defendant next claims that the habitual-criminal statute (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) is violative of due process under the fourteenth amendment to the United States Constitution and under article I, section 2 of the Illinois Constitution; and that it is violative of article I, section 8 of the Illinois Constitution, which requires that after indictment the defendant shall have the right “*** to demand the nature and cause of the accusations and have a copy thereof; ***.”

The habitual-criminal statute at section 33B — 1 et seq. of the Criminal Code of 1961 states that every person who has been twice convicted in any State or Federal court of an offense that contains the same elements as an offense classified in Illinois as a Class X felony or murder and is, thereafter, again convicted of a Class X felony or murder shall be adjudged an habitual criminal and sentenced to life imprisonment.

The defendant’s claim that this statute is violative of due process and the notice-of-charges provision in the Illinois Constitution is based upon the statute’s requirement that the State notify the defendant of its intention to invoke the terms of the act sometime after a plea or verdict or finding of guilty and before sentence is imposed. The reasoning is that this notification period could result in the defendant being first apprised of the State’s intentions at the time of the sentencing hearing, affording the defendant little time to adequately prepare a defense to the statute’s invocation.

However, prior to any discussion of the constitutionality of the statute’s notice requirement, we must first determine whether the defendant has been in any way aggrieved by the operation of the statute’s notice provisions. If not, the defendant has no standing to question the constitutionality of such provisions. People v. Merchel (1980), 91 Ill. App. 3d 285, 414 N.E.2d 804.

On the day of the sentencing hearing, the State filed its notice of the defendant’s prior convictions and informed the court of its intention to seek an habitual-criminal determination. The trial court then asked defense counsel if a continuance was desired in order to prepare for the hearing. Defense counsel informed the court that he had reviewed the presentence report containing references to the defendant’s prior convictions and that a continuance was not necessary. Thus, the defendant had every opportunity to prepare an adequate defense to the enforcement of the habitual-criminal statute. Because the defendant was not aggrieved by the operation of the statute’s notice provisions, he cannot now raise his related United States and Illinois constitutional arguments.

The defendant further argues that under the habitual-criminal statute the State is not required to prove the defendant to be a habitual offender beyond a reasonable doubt, thus, violating the defendant’s due process rights. This claim is premised upon language contained in section 33B — 2(b) of the statute which indicates that a duly authenticated copy of the record of any alleged former conviction of an offense set forth in the statute shall be prima fade evidence of such former conviction.

We do not believe that this language exempts the State from proving the defendant’s former convictions beyond a reasonable doubt. (See People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812; People v. Stewart (1961), 23 Ill. 2d 161, 177 N.E.2d 237.) In this respect, the State did meet its burden of proof by submitting as evidence the defendant’s prior criminal record of two convictions for armed robbery and testimony of a probation officer that in the preparation of his presentence investigation report, the defendant admitted in writing that he had prior 1965 and 1970 convictions for robbery. The defendant did not rebut the State’s evidence at the sentencing hearing.

The defendant has also argued that the habitual criminal statute violates the separation-of-powers provision of the Illinois Constitution, article II, section 1; the due process and equal protection provisions of the United States Constitution, fourteenth amendment, and the Illinois Constitution, article I, section 2; and the eighth amendment to the United States Constitution in that the statute completely removes the sentencing function from the judge and gives it to the prosecutor allowing the prosecutor absolute, unguided discretion in determining whom he wishes to sentence to life imprisonment. In addition, the defendant claims that by requiring the imposition of natural life imprisonment while prohibiting the consideration of the offender’s personal characteristics and the seriousness of the offense, the habitual criminal statute violates due process under the Illinois and United States constitutions and the eighth amendment to the United States Constitution.

These issues have been previously dealt with in People v. Withers (1983), 115 Ill. App. 3d 1077, 450 N.E.2d 1323. With reference to the separation of powers argument, the court in Withers stated that the language of section 33B — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B — 1 et seq.) does not explicitly delegate the power to choose which defendant shall be made subject to its terms. Its provisions apply to every person who meets its criteria. The use of permissive terminology indicating that the prosecutor “may” file with the court a written statement of the defendant’s former convictions can be read as prescribing how the prosecutor brings to the court’s attention a defendant’s prior conviction history. Thus, the court con-eluded that the separation of powers doctrine was not violated by the statute.

In addressing the eighth amendment argument, the court cited several United States Supreme Court decisions dealing with recidivist statutes, indicating that the United States Supreme Court had recognized as constitutionally permissible sentences of life imprisonment without the possibility of parole. The court continued in its analysis by stating that the mandatory aspect of section 33B — 1 of the statute is not triggered until three Class X felonies have been committed within 20 years of the first conviction. Therefore, two previous adjudications have given the defendant the opportunity to present mitigating factors so that the trial court could exercise its discretion in determining the appropriate sentencing alternative. The court noted that this approach had been taken in considering the constitutionality of section 5 — 12 of the Juvenile Court Act involving juvenile offenders (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 12), in People ex rel. Carey v. Chrastka (1980), 83 Ill. 2d 67, 413 N.E.2d 1269. The court then held that the habitual-criminal statute did not violate the eighth or fourteenth amendments to the United States Constitution.

We believe that Withers should be adhered to in the case at hand; however, we would note that a majority of the members of the Illinois Supreme Court in dissenting and concurring opinions in two recent cases People ex rel. Carey v. Cousins (1979), 77 Ill. 2d 531, 397 N.E.2d 809, and People v. Lewis (1981), 88 Ill. 2d 129, 430 N.E.2d 1346, has set forth an analysis of the separation of powers doctrine with reference to the Illinois death-penalty statute (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1), which could be applicable to the habitual-criminal statute.

Justices Ryan, Goldenhersh and Clark dissenting in Cousins, and Justices Ryan, Goldenhersh and Clark specially concurring and Justice Simon dissenting in Lewis, expressed the view that the provision in the death-penalty statute which gives the State the power to request a separate sentencing hearing to consider the factors necessary in imposing the death penalty vests with the prosecutor the discretion to conduct or not to conduct such a sentencing hearing, which is essentially a judicial function. Thus, the separation of powers doctrine of section 1, article II of the Illinois Constitution is violated.

Section 33B — 2(a) of the Criminal Code of 1961 gives the prosecutor the same type of power relative to initiating a consideration by the court of whether the defendant should be adjudged an habitual criminal. At this point in time, the supreme court has not considered this issue directly. Therefore, we believe that the reasoning in Withers should be followed and applied in the case now before us.

The defendant’s final contention is that the habitual-criminal statute violates the United States and Illinois constitutional provisions regarding ex post facto laws. (U.S. Const., art. I, sec. 9; Ill. Const., art. I, sec. 16.) This contention is without merit. Recidivist statutes have been consistently upheld as not violative of ex post facto constitutional provisions. People v. Hanke (1945), 389 Ill. 602, 16 N.E.2d 395; People v. Williams (1967), 36 Ill. 2d 505, 224 N.E.2d 225.

Accordingly, for the reasons set forth above, the judgment of conviction and the imposition of a life sentence by the circuit court of Peoria County are affirmed.

Affirmed.

BARRY and SCOTT, JJ., concur.