text:
    First Finance Company, Plaintiff-Appellee, v. Hugh Ross and Margaret M. Ross, Individually and d/b/a Triangle Refrigeration Engineers, Defendants-Appellants.
    Gen. No. 50,657.
    First District, Fourth Division.
    October 15, 1965.

      Carl J. Greenberg, of Chicago, for appellants.
    Masor, Baime & Gainer, of Chicago, for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendants appeal from a judgment entered in favor of plaintiff for conversion of the latter’s property, with a special finding of malice against defendant Hugh Ross. Plaintiff filed objections to various motions of the defendants and in addition filed a countermotion requesting this court to dismiss the appeal on the ground that defendants failed to file the necessary record on appeal within the requisite time.

The relevant facts are not in dispute. On March 12, 1965, the trial court entered the judgment for conversion; on March 31 defendants’ trial counsel, John W. Bennett, filed a motion for a new trial or in the alternative for judgment in defendants’ favor, which was denied on April 2; on April 3 a notice of appeal from the judgment was filed on behalf of defendants by Bennett; on May 28 an “amended” notice of appeal was filed by Carl J. Greenberg, an attorney subsequently engaged by defendants; on June 1 the trial court on defendants’ motion purported to extend for 30 days the time for defendants to file the report of proceedings and the record on appeal; on July 1 the record on appeal was filed.

In support of its motion to dismiss this appeal plaintiff contends that pursuant to Supreme Court Rule 36 the time allowed for filing the report of proceedings expired on May 23 (50 days after filing the notice of appeal); that the trial court thereafter lacked jurisdiction to extend the filing dates; consequently the order of June 1 is void ab initio. In opposition to plaintiff’s motion, defendants assert that Bennett had no authority to file a notice of appeal in that he was discharged as their attorney prior to the hearing on defendants’ motion for a new trial; that Greenberg was subsequently engaged as their attorney to prosecute their appeal; that in furtherance of his undertaking Greenberg reviewed the file of this cause but did not discover that a notice of appeal had been filed, nor did he otherwise have knowledge thereof; that when Greenberg attempted to file a notice of appeal on May 28 he was then informed of the prior notice by the Clerk’s Office and therefore filed an “amended notice”; that notwithstanding Bennett’s lack of authority the April 3 notice of appeal was so defective as to constitute a nullity and should be stricken from the record; that the record was completed and filed in this court within 30 days of the June 1 order and within the requisite time under the “amended notice”; and that defendants’ attorney was not culpably negligent.

Supreme Court Rule 36 (1) (c) provides that the report of proceedings be duly certified by the trial court and filed within 50 days after the notice of appeal shall have been filed; that the court may extend this period upon application made before the expiration thereof. Section 2 (d) of the rule provides that the record on appeal shall be filed in the reviewing court not more than 60 days after filing the notice of appeal; but, “if the time for filing the report of proceedings is extended, the time within which the record on appeal must be filed is without the necessity of an order extended 10 days beyond the extended time for filing the report of proceedings.” Rule 36 (2) (g) requires an appeal to be dismissed upon failure to file the record in the reviewing court within the allotted time. That part of the trial court’s June 1 order extending the time for 30 days to file the record is ineffective. As stated in McDonald v. McDonald, 351 Ill App 432, 436, 115 NE2d 567:

Supreme Court Rule 36 vests no authority in the trial court to extend the time for filing the record on appeal, other than that which automatically results from an order extending the time to file the report of proceedings. . . .

The 30-day extension purported to have been granted defendants by the trial court on June 1 to file the report of proceedings was void because that court had no jurisdiction to grant an extension where the application therefor was made after the expiration of the original 50 day period. Ticktin v. Verunac, 64 Ill App2d 122, 212 NE 2d 302; Grossi Brothers, Inc. v. Schmidt, 44 Ill App 2d 228, 194 NE2d 557. The reasons for failing to file a report of proceedings within the 50-day period are irrelevant. People v. Wabash R. Co., 388 Ill 312, 57 NE2d 795. The report of proceedings under the April 3 notice of appeal was due to be filed duly certified, on or before May 23. This time not having been extended, the record was due to be filed in this court on or before June 2 but was not filed until July 1. Therefore, unless the April 3 notice of appeal is stricken from the record and the “amended” notice (filed May 28) be considered the only valid notice of appeal, the appeal should be dismissed.

Defendants moved that the notice of appeal filed on April 3 be so stricken and contend that the “amended” notice is controlling because (1) Bennett lacked authority to file said notice, and (2) the notice is so defective as to constitute a nullity. In support thereof defendant Hugh Ross filed an affidavit alleging that Bennett was discharged prior to the hearing upon defendants’ motion for a new trial and was never authorized to file said notice. In its objections plaintiff points out that Bennett was present in open court on April 2 while another attorney argued defendants’ aforesaid motion; though Hugh Ross was present at that time there was no motion or even suggestion presented to the court relating to Bennett’s dismissal; nor was any made in this court prior to the filing of defendants’ motions of August 24, 1965. Moreover, upon discovering the first notice of appeal, defendants’ attorney Greenberg did not contend that it was filed without authority but filed an “amended” notice. Therefore we cannot accept defendants’ contention that Bennett lacked authority to file the notice of appeal on April 3.

Defendants’ argument that the April 3 notice of appeal is grossly deficient and therefore a nullity is likewise without merit. The purpose of a notice of appeal is to inform the party in whose favor a judgment or decree has been rendered that the unsuccessful party desires a review of the case by a higher tribunal. People v. New York Cent. R. Co., 391 Ill 377, 63 NE2d 405. Although not in strict compliance with Supreme Court Rule 33, the April 3 notice of appeal met that basic purpose. The “amended” notice of appeal of May 28 was filed without notice and without leave of court in violation of Supreme Court Rule 33(5):

It [the notice of appeal] may on written motion be amended to supply any of the foregoing requisites which may have been omitted or incorrectly stated. If the record on appeal has been transmitted to the reviewing court, the application for leave to amend the notice of appeal shall be made in that court,' otherwise application shall be made in the trial court.

Moreover, that rule also states that amendments relate back to the time the notice of appeal was filed. Therefore even if a proper amendment had been obtained, defendants were still late in the filing of the record. A second notice of appeal is a nullity. Lanquist v. Grossman, 282 Ill App 181.

We find that a proper notice of appeal was filed on April 3, 1965, that it should not be stricken from the record, that the record was not filed in proper time, and therefore defendants’ appeal is dismissed.

The order of August 20, 1965, staying capias ad satisfaciendum is terminated.

Appeal dismissed.

McCOEMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats (1963) ch 110, § 101.36. Under Rule 5 of the Rules of Practice of the Appellate Court, First District, procedural matters shall be as provided in Rules of the Supreme Court with certain exceptions not here pertinent.


source: Caselaw Access Project

author: ME. JUSTICE DEUCKEE

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Henry P. Saravia, Defendant-Appellant.
    Gen. No. 50,184.
    First District, Fourth Division.
    October 29, 1965.

      G-eraid W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   ME. JUSTICE DEUCKEE

delivered the opinion of the court.

Defendant, Henry P. Saravia, was convicted of robbery after a bench trial and sentenced to the penitentiary for not less than two nor more than four years. In this appeal defendant contends that he did not receive a fair trial because the court misunderstood the testimony and was not advised by the prosecution of the misunderstanding. Defendant further .contends that the indictment was not in strict compliance with the statutory requisites and therefore the court should have granted defendant’s motion in arrest of judgment.

The complaining witness Andrew McNamara, a cab driver, testified that on February 26, 1964, at approximately 11:4Q p. m., he went into a tavern on west 47th Street in Chicago to pick up a passenger; that the passenger followed him to the cab. He further testified:

I got in the cab, I turned around and I asked him where he wanted to go. . . . When I turned around in my cab I saw him at that time, the light was on in the cab. ... he made some kind of a noise, a laugh or something, and I turned around, he had a gun in his lap pointed at me. ... He asked me how much money I had. I told him I only got about 12,13 dollars. ... He said, “Give it to me.” ... I reached down and gave him my bills. I knew I had 8 singles and a $5 bill. He said, “Give me the rest of the money.” ... I had four something in silver, almost $5. I reached down in my right hand pocket, I gave him that, but I left 70 cents about in the bottom of my pocket.

McNamara further stated that after driving the cab pursuant to the robber’s directions they stopped under a street light; that he turned facing the robber at the latter’s command; that the robber eventually left the cab at 55th Street and Halsted, walking south on Halsted; that he (McNamara) then drove away looking for a police car but finding none returned to the vicinity of 55th and Halsted and called the police. He continued :

Two squads came, a Sergeant and Officer Walsh, and they had me in one of the squads. ... I gave them the whole story and the description, what he looked like and the clothes he was wearing and all, and I am talking to them and Officer "Walsh was looking ont the rear window of the squad.
I didn’t see him, but he [Walsh] says, “Is that him?” From the description I gave them. I turned around and looked and I said, “That’s him.”

Upon cross-examination the witness testified as to the description of the robber which he had given to the police officers:

I told them that the man that held me up was around) 35 years old, he weighed around 160 pounds and he was about 5-foot-9, and I told them that he had a dark jacket — it isn’t a hunting jacket but one of them half length coats. It isn’t below the knees. And he had a dark peaked hat and he had like my trousers here only gray work trousers. I also told them that the guy that held me up looked like the guy that was on the TV program called Empire. He looked like the manager of the ranch.

He also testified that defendant was arrested approximately 30 to 35 minutes from the time they first entered the cab.

Officer Walsh testified that defendant was arrested approximately 50 feet north of the intersection of 55th and Halsted; that defendant was brought to the squad car and was again identified by McNamara,- and that defendant had in his pockets eight $1 bills and approximately $5 in silver.

Defendant testified that he had been drinking steadily for four or five hours before midnight on the evening of the robbery and that he left Roger’s Tavern (actually, Rogers Shamrock Inn located on Halsted immediately south of 55th Street) approximately at midnight; that he was in the tavern approximately an hour and that “I was getting a little drunk and he [the bartender] asked me to leave, so I left.” Defendant further testified that the arresting officers informed him that the robbery was committed at 11:50 p. m.; that the officers “told me, its a funny thing, the robbery was committed about 10 minutes to 12:00 and you were arrested five after 12:00.” Defendant states on page 5 of his brief that he was arrested at 12:10.

The bartender at the tavern, Joseph Rogers, testified for defendant. He stated that defendant left the tavern “about 12:00 or so and I had to tell this man he had to leave.” Upon cross-examination Rogers testified that he was sure it was “just about 12:00 exactly . . . because I was looking for the bartender to come in at 1:00 o’clock [not 12:00 o’clock]”; that defendant’s wife came to him in August, approximately six months after the robbery, and “asked me if I remember him being in there that night. At first I didn’t remember who she was talking about until one of the fellows who was with him in there one night said to me — I call him Pete, that’s how the guy told me who he was.” Rogers could not further identify “Pete.”

Defendant points out that when arrested he had neither a $5 bill nor a gun in his possession and contends that the lapse of time between the robbery and his arrest was so short as to preclude him from disposing of either. From this defendant argues that he was deprived of a fair trial since the court incorrectly understood from the testimony that he was arrested thirty minutes after the cab driver dropped off the robber (rather than thirty minutes after the robber first entered the cab) and the prosecution did not inform the court of its error.- Though the court may have misinterpreted the testimony, its judgment was not based thereon. The judge said:

Here is a ease where the testimony of the cab driver is clear and convincing. Here is a fellow that had two or three opportunities to observe him. He described him as a dark complected individual he gives the Police a description of his clothing, a three-quarter length coat with a certain type of hat on, and while the officers are getting the description they say, is that the guy? He said, it looks like him. They bring him over and he identifies him on the spot. This is about 30 minutes after the robbery.
The bartender here, as far as the time is concerned, he knows him, he put him out at 12:00 o’clock, but as far as the bartender fixing the time he came in there, I am sure under all the other facts and circumstances he is mistaken about the time he came in there.
Now, you have an individual that even the Police say that this fellow here was under the influence of alcohol. He was put out of the place under the influence of alcohol. And he didn’t seem to have any memory that night about what happened but he’s got a good memory today.

The credibility of the witnesses was properly resolved by the trial court. People v. Young, 24 Ill 2d 578, 182 NE2d 734. A positive identification by one credible witness is sufficient to support a conviction. People v. Soldat, 32 Ill2d 478, 207 NE2d 449.

Moreover the time discrepancy, if any, was not such as to deprive the defendant of a fair trial. Since the robber left the cab at a location which was selected by him and with which he was evidently familiar, he had ample opportunity to dispose of the' gun and part of the money whether he was arrested ten minutes or thirty minutes after the robbery. Significantly defendant, when arrested, had in his possession approximately $5 in change and eight $1 bills (the same amount in change and the same number of $1 bills taken in the robbery). Therefore, even if the court did misinterpret the testimony regarding the time interval as being thirty minutes instead of ten minutes or twenty minutes, the error was harmless. A court of review will not reverse a judgment on account of a harmless error. Adamaitis v. Hesser, 56 Ill App2d 349, 206 NE2d 311.

Defendant further contends that the indictment does not charge an offense in that it does not state the time and place of the offense as definitely as could be done, as is required by Illinois Revised Statutes (1963), c 38, § 111-3(a) (4). The indictment stated that the offense occurred in the County of Cook on February 27, 1964. It did not state the hour nor the street address of the offense. Contentions similar to that proffered here by defendant have been made and rejected in People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323, People v. Zeravich, 64 Ill App2d 150, 212 NE2d 282, and People v. Edwards, 62 Ill App2d 241, 210 NE2d 822. We hold those cases to be controlling here.

Upon a consideration of the record we find that the indictment was sufficient and that defendant received a fair trial. Therefore the judgment of the trial court is affirmed.

Affirmed.

McCOBMICK, P. J. and ENGLISH, J., concur.


author: JUSTICE LYONS.

text:
    Lemont National Bank, a Banking Corporation, Plaintiff-Appellee, v. William Boza, Walter Alex Boza, and Edward Boza, Defendants-Appellants.
    Gen. No. 49,618.
    First District, Second Division.
    October 5, 1965.
    M. A. Bishart and Henry T. Synek, of Chicago, for appellants; Louis W. Mack, Richard F. Watt, and David R. Kentoff, of Chicago (Louis W. Mack, and Cotton, Watt, Rockier & Jones, of counsel), for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: JUSTICE BRYANT.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. King James Hannon, Defendant-Appellant.
    Gen. No. 49,838.
    First District, Second Division.
    October 5, 1965.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, James J. Doherty, and Austin G. Rigney, Assistant Public Defenders, of counsel), for appellant; Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BRYANT.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    In the Matter of the Estate of Bertha Bichl, Formerly Incompetent, Now Deceased. Frank T. Platka, Jr., as Executor of the Estate of Bertha Bichl, Deceased, on Behalf of Children’s Memorial Hospital of Chicago, Illinois, the Art Institute of Chicago, the Chicago National History Museum, the Illinois Industrial Home for the Blind, the Washingtonian Home of Chicago and the Supreme Lodge of the World Loyal Order of Moose, Petitioner for Citation, Appellant, v. Bernice Carone, Individually and as Conservator of the Estate of Bertha Bichl, Incompetent, Respondent to Citation, Appellee.
    Gen. No. 49,971.
    First District, Second Division.
    November 2, 1965.

      Ruddy & Myler, of Aurora (Charles J. Myler, of counsel), and Lee, Gleren & Phelan, of Chicago (William H. LeVitus, of counsel), for appellants.
    Fleck & Pollack, of Chicago (Charles J. Fleck and William E. Pollack, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from an order of dismissal, entered at the close of petitioner’s evidence, in a citation proceeding brought pursuant to the Probate Act.

Petitioner, Frank T. Platka, Jr., testified that he was the attorney for Bertha Bichl and her deceased husband, Thomas Bichl, since 1929; that in 1943, he had purchased, with Thomas Bichl, a twenty-one apartment building in Chicago; that Thomas Bichl died in 1946; that in 1950, the building needed repairs so Mrs. Bichl sold her share to him for $31,852; that the Bichls’ original share had cost them $26,000; that at the time of this purchase from Mrs. Bichl, he executed a $20,000 first mortgage; that the remaining $11,850 was paid in cash; that in 1959 he contacted Mrs. Bichl to pay off the mortgage and subsequently, on July 27, 1959, went to the residence of Mrs. Bichl, then in her middle eighties; that Mrs. Bernice Carone, respondent, a niece of Mrs. Bichl, was present and when Mrs. Bichl could not find the mortgage at home, all three of them went to the Lincoln National Bank to seek the mortgage in Mrs. Bichl’s safe deposit box; that the mortgage was not in the box, but there was in the box cash in excess of $19,000; that Mrs. Bichl indicated to him that she was sorry that the mortgage was being paid since she had used the $1,000 annual interest for her living expenses; that he asked Mrs. Bichl what she intended to do with the money and she asked for his suggestions; that he suggested to Mrs. Bichl that she take the money that was being paid and most of the cash in the box and purchase $30,000 in U. S. Government Bonds in her own name, place $5,000 in a savings account and leave the remaining funds in the box for emergencies; that Mrs. Bichl stated that this was what she would do but that it would be difficult for her to get to the box because she had trouble walking; that he asked if she could find someone; that Bernice Carone volunteered, stating that she saw Mrs. Bichl frequently and would take her to the safe deposit box; that Mrs. Bichl stated that she would arrange for Mrs. Carone to have access to the safe deposit box; that Mrs. Bichl was too feeble to sign her name on this occasion, but was able to inscribe an “x” to conclude the documentation necessary to give access to Mrs. Carone; that Mrs. Carone agreed to this arrangement; that they returned to the Bichl residence and Mrs. Bichl searched for and found the mortgage; that Mrs. Bichl received checks covering principal and interest from Platka and the mortgage papers and note were marked paid.

In her testimony, Bernice Carone stated that on the day she accompanied Platka and Mrs. Bichl to the bank, July 27, 1959, she was made a joint tenant of the safe deposit box before the box was opened and that there was no discussion about making her a joint tenant.

Platka further testified that about two or three weeks after the July 27, 1959 visit to the bank, he received a call from Bernice Carone stating that Mrs. Bichl wanted her will and asking him to send it to Mrs. Bichl or Mrs. Carone; that he refused to do this and told Mrs. Carone that Mrs. Bichl should contact him or give him a letter authorizing him to deliver the will; that he received two or three subsequent calls in which Mrs. Carone insisted Mrs. Bichl wanted her will; that Mrs. Carone told him that Mrs. Bichl was in the Carone home and on one occasion he asked to speak with her on the telephone; that Mrs. Bichl was called to the phone and was asked if she wanted him to mail the will to her; and that Mrs. Bichl replied that she did not want the will and that he should keep it.

Platka further testified that in the latter part of September 1959, Mrs. Carone indicated to him that Mrs. Bichl was becoming incompetent and unable to manage her own affairs and inquired as to whether or not he should have a conservator appointed; that in mid-October 1959, he left Chicago for Florida. He also testified that on October 25 or 29, 1959, he received a telephone call in Florida from Bernice Carone and that Mrs. Carone told him that Mrs. Bichl still wanted her will, that it was becoming difficult for her to do anything with Mrs. Bichl and that $20,000 in U. S. Government Bonds had been purchased jointly in her name and Mrs. Bichl’s name. He further testified he was no longer actively practicing law in Cook County and called John Phelan of the firm of Lee, Gieren and Phelan, explained the situation and asked him to handle the entire matter.

According to Mrs. Carone’s testimony, $20,000 in U. S. Government Savings Bonds were purchased at the bank on August 18, 1959, approximately three weeks after Mrs. Bichl, Frank Platka and herself had visited the bank; that the bonds were purchased with the $20,000 check which Mr. Platka gave to Mrs. Bichl to pay the mortgage; that she took Mrs. Bichl to the bank and was with her at all times when the bonds were purchased; that she also took Mrs. Bichl to the bank when the bonds were picked up; that the second purchase of bonds, in the amount of $10,000, was made again at the bank on March 26, 1960; that the $10,000 purchase money came from funds in the safe deposit box; that she again took Mrs. Bichl to the bank to purchase the bonds and remained with her at all times; that she subsequently obtained and paid two doctors to make examinations of Mrs. Bichl; that the first examination was on October 24, 1959, and the second was on October 25; that neither of the examinations were for the purpose of treating her; and that Mrs. Bichl did not request the examinations.

Mrs. Carone further testified that she called Frank Platka twice in September 1959, and requested that he send her the will; that she had discussed the will with Mrs. Bichl and was informed that it wasn’t completed; and that Mrs. Bichl wanted it in her safe deposit box. Mrs. Carone then stated that she recalls Mr. Platka requesting to speak with Mrs. Bichl on the telephone while Mrs. Bichl was staying at the Carone residence with an infected foot; that Mrs. Bichl was awakened out of her sleep on that occasion and couldn’t comprehend the conversation very well; that no conversation took place subsequently with either Platka or John Phelan regarding the need of a conservator for Mrs. Bichl; that after her visit with Platka and Mrs. Bichl at the bank on July 27,1959, she had unlimited access to the safe deposit box, which contained $19,000 in cash; that the cash was reduced to $9,000 after the second purchase of bonds in 1960; and that at the time the conservator-ship was established for Mrs. Bichl, the box contained $6,500.

Mrs. Carone refreshed her memory after being shown nineteen entry slips to the box and recognized her signature on them. The slips were admitted into evidence and revealed the following dates and signatures:

1. July 27,1959, signed by Bernice Carone.
2. August 14,1959, signed by Bernice Carone.
3. August 18,1959, signed by Bernice Carone.
4. September 4,1959, signed by Bernice Carone.
5. September 5,1959, signed by Bernice Carone.
6. October 6,1959, signed by Bernice Carone.
7. March 26, 1960, signed by Bernice Carone and Bertha Bichl.
8. April 23,1960, signed by Bernice Carone.
9. May 17,1960, signed by Bernice Carone.
10. May 28,1960, signed by Bernice Carone.
11. June 2,1960, signed by Bernice Carone.
12. July 1,1960, signed by Bernice Carone.
13. July 23,1960, signed by Bernice Carone.
14. July 30,1960, signed by Bernice Carone.
15. September 30,1960, signed by Bernice Carone.
16. October 8,1960, signed by Bernice Carone.
17. November 26,1960, signed by Bernice Carone.
18. December 27,1960, signed by Bernice Carone.
19. December 31,1960, signed by Bernice Carone.

Mrs. Carone testified Mrs. Bichl would receive Social Security checks which she would endorse with an “x,” take these checks to the bank, put the cash in the safe deposit box and pay Mrs. Bichl’s bills, that she had the approval of Mr. Risel, a bank employee; that she was the only one who took Mrs-. Bichl’s Social Security checks to the bank, cashed them and paid Mrs. BichFs bills; and that she kept an account of checks cashed and bills paid and stated that she had turned these over to her lawyer. When petitioner asked that the records be produced, respondent’s attorney objected on the ground that there was no burden upon her to keep records. The court sustained the objection and denied a request by petitioner’s attorney to go into these records.

John J. Phelan, attorney for the executor, testified that Platka had retired from the practice of law and that he, Phelan, was handling matters for him; that in October 1959, he called Bernice Carone, who requested him to deliver to her the will of Mrs. Bichl; that she understood that Phelan had the will and would like it returned to her; that he subsequently called Mrs. Bichl at her own home in October or November 1959, and stated that he had her will and that if she would write him a letter he would return it to her; that Mrs. Bichl stated that she did not want the will returned; and that at one period in September and October 1959, he spoke to Mrs. Bichl on the telephone regularly for about ten days. The court sustained an objection to a question directed to him as to his opinion of the mental condition of Mrs. Bichl based on these conversations.

Phelan further testified that he advised Mrs. Carone that, having spoken with Mrs. Bichl, he did not think she could take care of herself. An objection was made to Phelan’s testimony that Bernice Carone then replied to him that he should have nothing further to do with the case. The court sustained the objection and without motion ordered this testimony stricken from the record.

A motion was made by respondent’s counsel at the close of petitioner’s evidence that the proceeding against Bernice Carone be dismissed. Respondent’s counsel reserved the right to present evidence if the motion were denied. The court granted the motion stating that a fiduciary relationship did not exist and directed that a final order be prepared. From that final judgment order petitioner has appealed.

Petitioner seeks recovery of the $30,000 in joint tenancy bonds upon the theory that a constructive trust existed in that there was a confidential and fiduciary relationship existing between Mrs. Bichl and respondent at the time the bonds were purchased; that petitioner did not have to show an abuse of the aforesaid confidential and fiduciary relationship because sufficient evidence was introduced to establish a prima facie case that the relationship existed; and that the burden of proof was then placed upon respondent to show that the purchase was not the result of undue influence.

Petitioner first contends that sufficient evidence was introduced to establish a prima facie case that such a relationship did exist and thus there was an abuse of discretion by the trial court in dismissing the citation proceeding upon motion of respondent at the close of petitioner’s case, and second, that the court committed prejudicial error in refusing petitioner the right to examine respondent and certain documents and transactions pertaining to the handling of Mrs. Bichl’s funds prior to the appointment of respondent as conservator.

The general rule involved here was expressed by the Supreme Court in Kester v. Crilly, 405 Ill 425, 91 NE2d 419 (1950) at page 432:

In general, in the law of constructive trusts, a confidential relationship exists in all cases when one person reposes trust and confidence in another who thereby gains a resulting influence and superiority over the first. (Krieg v. Felgner, 400 Ill 113; Brod v. Brod, 390 Ill 312). . . . The mere existence of a confidential relationship prohibits the dominant party from seeking any selfish benefit during the course of the relationship and affords a basis for fastening a constructive trust upon property so acquired. Where a confidential relation exists, the presumption obtains that the transaction complained of resulted from influence and superiority and the burden rests upon the grantee to show that it was fair, equitable and just and did not proceed from undue influence. Schueler v. Blomstrand, 394 Ill 600; Brod v. Brod, 390 Ill 312.

The mode of operation of the presumption of undue influence and the transfer of burden of proof is set forth in the recent case of Tarpoff v. Karandjeff, 51 Ill App2d 454, 201 NE2d 549 (1964), where the court stated at page 457:

The mere existence of a confidential or fiduciary relationship does not, of itself, give rise to a constructive trust. The facts and circumstances must also disclose fraud or an abuse of that confidential or fiduciary relationship. Jones v. Washington, 412 Ill 436, 107 NE2d 672. The burden of proving the existence of such a confidential or fiduciary relationship and the abuse thereof rests squarely upon the party who asserts such a relationship as a basis for the imposition of a constructive trust. Maley v. Burns, 6 Ill2d 11, 126 NE2d 695. Where, however, the confidential or fiduciary relationship is shown to exist, the person seeking to impose a constructive trust is aided in his proof by a presumption that the transaction complained of resulted from fraud or undue influence and the burden of affirmatively proving the good faith or the absence of undue influence in the transaction rests upon the party denying the existence of the trust. Tarpoff v. Karandjeff, supra; McCartney v. McCartney, 8 Ill2d 494, 134 NE2d 789. To overcome this presumption, the fiduciary must show that he has made a free and frank disclosure of all of the relevant information which he had and that the consideration for the transaction was adequate. Schueler v. Blomstrand, 394 Ill 600, 69 NE2d 328; Masterson v. Wall, 365 Ill 102, 6 NE2d 161.

Our primary task is to examine the evidence with regard to the existence of a fiduciary relationship. The burden rested upon petitioner to prove by clear and convincing evidence a prima facie case of a confidential and fiduciary relationship. If successful, the burden would then shift to respondent. The Kester decision, supra, enunciates this principle along with some of the attributes of a confidential and fiduciary relationship. The court stated at page 432:

The relationship may exist as a matter of law, as between principal and agent, guardian and ward, attorney and client, and the like, or it may be moral, social, domestic, or even personal. (Hensan v. Cooksey, 237 Ill 620; Irwin v. Sample, 213 Ill 160.) Where the relationship does not exist as a matter of law, it must, however, be proved by clear and convincing evidence in order to establish a basis for raising a constructive trust. (Clark v. Clark, 398 Ill 592; Galvin v. O’Neill, 393 Ill 475.) Factors to be taken into consideration are degree of kinship, if any, disparity in age, health, mental condition, education and business experience between the parties, and the extent to which the allegedly servient party entrusts the handling of his business and financial affairs to the other and reposes faith and confidence in him.

After a careful examination of the evidence introduced by petitioner together with the testimony of respondent, who was called as a court’s witness, and a doctor who was called as a witness for respondent during petitioner’s case, we feel the trial court’s finding that the fiduciary relationship was not established was correct in part. The trial court could have found, and did find, from the evidence, that a fiduciary relationship did not exist on August 18, 1959, when $20,000 in bonds were purchased jointly in the names of Mrs. Bichl and respondent. The parties were not living together and Mrs. Carone had only visited the box on one occasion prior to the first purchase of bonds. Any of the excluded evidence that Mrs. Carone was handling the financial affairs of Mrs. Bichl would be relevant only as to events after the $20,000 purchase of August 18, 1959.

It is not necessary to respond to the issue of whether or not a fiduciary relationship existed when the second purchase of $10,000 in bonds took place because prejudicial error was committed by refusing to admit into evidence the admissions of respondent and testimony concerning the mental and physical condition of Mrs. Bichl. Prejudicial error was also committed when the trial court refused to allow petitioner to examine certain documents in the possession of respondent’s attorney. The court, In re Estate of McVicker, 39 Ill App2d 389, 188 NE2d 731 (1963), discusses the rules of evidence in a citation proceeding. The court stated at page 397:

It is true that in citation proceedings brought under section 183 of the Probate Act, wherein the representative of an estate brings the action against someone withholding assets claimed by the estate, the rules of evidence may be relaxed. Ill Rev Stats 1961, c 3, § 183. In such instances section 185 of the act provides that “. . . the court may examine the respondent . . . may determine all questions of title, claims of adverse title, and the right of property, and may enter such orders and judgment as the case requires.” The cases interpreting section 185 hold that if the court determines that the testimony of the respondent is necessary for the full presentation of the facts, it may call him as a witness even though he otherwise would be incompetent under section 2 of the Evidence Act; that the respondent then becomes the court’s witness and may be examined by either the court or the attorneys for the parties.

Respondent’s Motion for Dismissal of the case was in effect a ruling for a directed finding that no confidential relationship existed and in ruling on such a Motion for Dismissal, the trial judge had to consider all the evidence in a light most favorable to petitioner. In excluding the proffered evidence the court committed prejudicial error as to the disputed gift of $10,000 in bonds.

We are not making a determination at this time whether or not petitioner’s evidence was sufficient to establish a prima facie case as to the $10,000 in bonds purchased on March 26, 1960. We feel that this decision is to be made by the trial court after hearing all the evidence, including the interest of all parties.

The part of the order finding in favor of respondent, Bernice Carone, as to the gift of $20,000 in United States Savings Bonds, is affirmed and the part of the order finding in favor of respondent as to the disputed gift of $10,000 in U. S. Bonds is reversed, and the cause is remanded as to the dispute about the alleged gift of $10,000 in U. S. Savings Bonds, for further proceedings not inconsistent with this opinion.

Order affirmed in part, reversed in part and remanded for further proceedings.

BURKE, P. J. and BRYANT, J., concur.


author: PRESIDING JUSTICE BURKE.

text:
    Albert W. Hempel, Plaintiff-Appellee and Cross-Appellant, v. Henry Krueger, Eleanor Krueger, David Krueger and Henry Krueger, As Executor of the Estate of Anna Krueger, Deceased, Defendants-Appellants and Cross-Appellees, and Joseph Siegel and Sonia Siegel, Defendants and Cross-Appellees.
    Gen. No. 49,920.
    First District, Second Division.
    November 2, 1965.
    Rehearing denied January 4, 1966.
    Lester B. Marshall, of Chicago, for appellants and cross-appellees; Lord, Bissell & Brook, of Chicago (Stephen A. Milwid and Harold L. Jacobson, of counsel), for defendants and cross-appellees; and Ruff and Grotefeld, of Chicago, for appellee and cross-appellant.
   Opinion by

PRESIDING JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Aaron McGhee, Defendant-Appellant.
    Gen. No. 50,112.
    First District, First Division.
    November 15, 1965.
    Rehearing denied December 9, 1965.

      Thad B. Eubanks and Wendell P. Marbly, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant was found guilty of petty larceny and was sentenced to serve one year at Vandalia. Defendant’s sole contention is that the court erred in denying his motion to suppress evidence obtained by police officers in the search of the defendant’s automobile, and in admitting the evidence at his trial.

At the hearing on the motion to suppress, Police Officer Rinaldi testified that a woman, Lupe Gonzales, made a controlled sale of narcotics to a police informant and received marked money. After the sale, she walked directly to an automobile, entered, and was- driven away. The automobile, being driven by the defendant, was stopped by the police. Lupe Gonzales and another woman were in the car. Lupe Gonzales was searched, and the marked money was recovered from her person. Defendant was ordered out of the automobile and searched. The automobile was also searched, and thirteen checks were found in the car, some from under the floor mat on the driver’s side. At the trial, the checks were identified as fruits of a burglary.

On cross-examination by defendant, Rinaldi testified that defendant was out of the autmobile at the time it was searched. In response to the question, “Where was he? Was he at the scene or was he in the station ?”, Rinaldi answered, “He was in the process of being transported to the station.” No further questions were asked by either side on this point.

Defendant contends that the search was unreasonable, without probable cause, and too remote in time and place to be incidental to his arrest. To show that the search and seizure were illegal, defendant relies primarily on Preston v. United States, 376 US 364 (1964), and People v. Erickson, 31 Ill2d 230, 201 NE2d 422 (1964).

The State contends that probable cause was present to arrest the defendant; that the search and seizure were substantially contemporaneous with the arrest; and that defendant failed to sustain his burden of proof to show “that the search and seizure were unlawful.”

In the Erickson case, the defendant was arrested for allowing an unauthorized driver to operate his automobile. The officers noted a brown rubberized cord extending out of the car trunk. The defendant denied the police permission to search the trunk. After calling the station, the car was searched and in it was found a box of silverware, which was admitted into evidence following denial of defendant’s motion to suppress the exhibit. After the search and removal of the silverware, the police received a report that the silverware had been taken from a burglarized home. The Erickson conviction was reversed because the facts and circumstances known to the officers at the time of the search did not constitute probable cause justifying the search of an automobile without a warrant. The court said (pp 233, 235):

“. . . a determination of the reasonableness of any given search must be made upon the facts there presented. . . . The absence, in the case of moving vehicles, of an opportunity to secure a search warrant, is frequently cited as a reason for sustaining such searches. But, in all cases, the search must be for specific property, and may not be exploratory and made solely to find evidence of guilt. . . . Although the People stress the fact that there was a rubberized cord hanging from the trunk door, this does not seem to us to be a particularly suspicious circumstance.”

The State argues that “the new Criminal Code of Criminal Procedure expands the authority of police officers to search after a lawful arrest. Formerly, there was no authority to search for evidence of an offense as distinguished from the fruits of a crime. . . . The statutory provisions now in effect are as follows (Ill Rev Stats, 1968, c 38, § 108-1) (Search without warrant):

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
(a) Protecting the officer from attack; or
(b) Preventing the person from escaping; or
(c) Discovering the fruits of the crime; or
(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.”

As to probable cause for the arrest and search, the following remarks by the trial court are in point. “At that time the officer had good reason to make an arrest of this particular individual. He was transporting an individual who had just made a sale of narcotics. The woman went directly to his automobile. I believe that the officer had reason to believe at that time both parties were or had connection in the crime. Consequently, he made an arrest of this particular individual acting as . a reasonable and prudent man. Doing so he also has a right to search him and his immediate vicinity, and so he did, he searched his person. He had reason at that time to believe there might be other narcotics in that car. So, instead of finding narcotics incident to a lawful arrest, he found the proceeds of a burglary.” We conclude the evidence here shows a lawful arrest and probable cause for the search of defendant’s automobile.

The rule to be used in determining when and where a search may be made without a search warrant is set forth in the Preston case, where an automobile was searched after the defendants were removed from it and taken to jail. The court said (pp 367-368):

“Unquestionably when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. . . . This right to search and seize without a search warrant extends to things under the accused’s immediate control, . . . and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. . . . The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. ... We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.”

The State argues that the defendant here had the burden of proving that the search was not contemporaneous with his arrest, and that it was too remote in time and place to have been made as incidental to the arrest. We agree. In search and seizure, “the burden of proving that the search and seizure were unlawful shall be on the defendant.” (Ill Rev Stats 1963, c 38, § 114-12(b).) See also People v. Elmore, 16 Ill2d 412, 158 NE2d 45 (1959). This burden defendant failed to satisfy. The testimony given by Officer Rinaldi as to where defendant was at the time of the search did not affirmatively show that defendant’s automobile was searched at a time and place remote from his arrest or that the search was not made in “the area within such person’s immediate presence.” (Ill Rev Stats, 1963, c 38, § 108-1.) See People v. Jeffries, 31 Ill2d 597, 600, 203 NE2d 396 (1964).

In the absence of any other evidence on this point, the judgment'must be affirmed.

Affirmed.

BURMAN, P. J. and KLUCZYNSKI, J., concur.


author: MR. JUSTICE KLUCZYNSKI

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Theodore Wright, Defendant-Appellant.
    Gen. No. 50,161.
    First District, First Division.
    November 15, 1965.

      William D. Maddux, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Sammons, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court.

Defendant, Theodore Wright, appeals from a conviction by jury for the crime of robbery. He seeks reversal contending the court erred in admitting hearsay and prejudicial testimony; denying him a continuance; unduly restricting cross-examination, and allowing the prosecution to make inflammatory and prejudicial argument to the jury.

A prior trial resulted in a hung jury and the matter comes here on appeal following the retrial.

On October 22, 1962, Nathaniel Jones was robbed by two men. A watch and five one-dollar bills were taken from him. On November 5, 1962, fourteen days later, Jones observed the defendant on the street, went to the nearest telephone, called the police, and continued to keep the man under surveillance. Jones hailed a roving police squad car and had the officer thereof detain the defendant until the arrival of the police officer sent out as a result of the telephone call. Defendant was placed under arrest and taken to the police station where further investigation was conducted by Detective Miller of the robbery unit. No one else was apprehended as being involved in the crime.

Jones testified that on the day of the occurrence he was in the vicinity of 50th Street and Calumet Avenue, Chicago, at approximately 4:45 p. m. While walking on 50th Street he was confronted by a man with a piece of paper in his hand who asked him for directions to the Howard Hotel. Jones told him he knew of no Howard Hotel in that vicinity and as he attempted to walk around the man, he heard a voice behind him say “this is it, a stick up.” The man behind him had a pistol, and the man in front of him who had asked for the directions then brandished a knife and “shoved” it .against Jones’ stomach. Both men rifled his pockets, took his watch, and left after the man behind struck him on the head with the gun. Jones identified the defendant in court as the man who asked directions of him and held the knife, and said that approximately thirty seconds elapsed from the time he first saw the defendant on the street and the time'the second person with the gun approached; that two or two and a half minutes' transpired until his watch was taken from his wrist by the defendant. During all of the time he was looking “in an easterly direction . . . face to face” with the defendant with whom he was in body contact, and who was “standing close, within hands reach. . . .”

He further testified that the man who held the knife to his stomach was a slender Negro approximately six feet tall, between 30 and 40 years of age, in need of a haircut, with a short mustache, and “wearing a gray sport jacket with black interwoven, black or charcoal colored pants with a sweater low neck V front with a dark or black band around the outer edge of this fold that was on the front of it.” The man also walked with a strut as if his feet were sore or tender. When Jones saw the defendant two weeks later, he recognized his face and his walk. He said defendant also wore the same sweater.

Defendant argues that prejudicial and incompetent hearsay evidence was admitted. The record indicates that the complaining witness, Jones, was allowed to relate a conversation with the arresting officer, Cullen, as to the identification of the defendant, in his presence, as follows:

Well, Officer Cullen asked me, “Did you call the police?” and I said, “Yes, I did,” and I told him why. ... I said, “I am the man that called the police, I was robbed.” He said, “Where is the man that robbed you?” I said, “This is the man.” I pointed to the defendant and he said, “Are you sure?” I said, “I am sure.” He said to the man, “Come with me to the squad car.” The man said to me, “Why don’t you tell him like it is, man.”

Then, the complaining witness was allowed to relate a conversation in defendant’s presence with Officer Miller regarding identification, in substance, as follows:

I had a conversation with the defendant at the police station. Present was Officer Cullen and Officer Miller. This was a short time after the man had been apprehended. . . . When I was confronted by the investigating officer whom I later learned to be officer Miller from Bobbery, he asked me could I identify the man that robbed me and I said yes. He asked the man about the charges and the man said no. By the man I am referring to Theodore Wright, the man that was in custody. [Emphasis ours.]

And again, Officer Cullen was permitted to repeat the conversations between himself and the complaining witness, Jones, as to the identification of the defendant. Officer Cullen stated that when he arrived there were a number of people present on the street including Mr. Jones, the defendant, and other police officers. He further stated that “I asked Mr. Jones the circumstances of the call and he pointed to the defendant and said ‘He is one of two men that held me up on a previous date/ ” Detective Miller was permitted to relate his conversation with Officer Cullen and his conversation with the complaining witness, Jones, as to the identification of the defendant made in defendant’s presence. He testified as follows:

I asked Officer Cullen who placed the call for assistance for the robbery unit. Officer Cullen responded he had placed the call for assistance inasmuch as he had a robbery victim present with a possible offender and the robbery had occurred on a previous date. I also had a conversation with Mr. Nathaniel Jones at that time and the defendant was still present in the room.
I asked Mr. Jones to relate the date, the circumstances and the amount of loss and the number of people involved in his original police report. Mr. Jones stated that he had been robbed on the 22nd of October by two unknown men underneath the elevated structure on 50th Street between Calumet and Prairie Avenue; that there were two men involved; that he had lost currency, an unknown amount of change and a man’s Benrus wristwatch.
I then asked Mr. Jones was he able to identify the men and he said yes, he was able to identify the men and one of the men was arrested then and he pointed to the defendant, Theodore Wright. I asked Mr. Jones was he positive of the identification of the defendant, Mr. Wright, and he stated that he was, that Mr. Wright was the man that had held the knife to his stomach facing him and removed his watch from his arm.
He also stated that at this time Mr. Wright had on the same sweater that he had on the evening of the robbery.

In our opinion these statements made by the complaining witness and repeated by the police officers as to the identification of defendant are hearsay and inadmissible. The sole evidence involving defendant in the crime was the testimony of the complaining witness. The effect of such additional statements was to give the impression to the jury that the evidence against defendant was corroborated.

People v. Lukoszus, 242 Ill 101, 89 NE 749 (1909) involved a positive identification by one witness with “no important circumstances of corroboration.” (p 105.) In holding the testimony of the arresting officer inadmissible, the court states:

In the examination of the police officer who arrested the defendant the witness was asked if anyone gave him a description of the defendant. The court overruled an objection, and the witness answered that he got the description from Mike Wajankowski. The witness was then asked if that was the man he took the defendant to, and he answered that was the man they took the defendant to to identify him. The connection of defendant with the crime rested on the testimony of Wajankowski, and it was error to permit the police officer to testify that he got a description of defendant from Wajankowski. The testimony amounted to the same thing as permitting one witness to testify that the other witness told him the defendant was the man. The rule against hearsay was violated, and the testimony of the officer amounted to a corroboration of Wajankowski’s testimony identifying the defendant as the man who struck the deceased, (pp 107,108.)

The State contends that “while the facts in the Lukoszus case are significantly different from those at hand, it is difficult to reconcile the principle involved from that at issue in cases decided differently since;” yet, it does not attempt to show or indicate wherein the facts are significantly different. In Lukoszus, one Wajankowski testified that the person who assaulted and struck the deceased was the defendant, while the defendant testified that he had nothing to do with it. “There were no important circumstances of corroboration of either witness. . . . The truth of the charge against the defendant rested almost wholly upon the identification of Wajankowski and the contradiction by the defendant. ... ( pp 105, 106.) ” The court held that the evidence was such as to make it important that the rulings should be correct. The difference, if any, would be that Lukoszus took the stand and denied the charge while the defendant in the case at bar did not testify. But, it is well settled that a conviction must stand on the strength of the State’s case and not upon the weakness of the defense. People v. Benson, 19 Ill2d 50, 61, 166 NE2d 80 (1960); People v. Boyd, 17 Ill2d 321, 328, 161 NE2d 311 (1959).

The pronouncement of Lukoszus was applied in People v. Krejewski, 332 Ill 120, 163 NE 438 (1928) when the court, on page 123, said:

Prior to the calling of Novak as the court’s witness the prosecution called two police officers and interrogated them as to statements made by Novak to them with reference to his identification of Gorz and Krejewski, and allowed them to testify that Novak had stated to them that they were the right fellows and that he identified them. This evidence was merely hearsay. It is error to permit a police officer to testify that a witness identified one accused of crime. (People v. Lukoszus, 242 Ill 101, 89 NE 749.)

The State maintains that where identification is a substantial factor in the trial, a witness may be allowed to testify to a prior identification and this fact may be corroborated by police officers if the defendant has not denied such an identification and where such identification is in the defendant’s presence. In support thereof, they cite People v. Stella, 344 Ill 589, 176 NE 909 (1931) where the court held the testimony of one or two police officers and a witness, relative to the identification of the defendant by the victim, admissible. The victim “picked” two of the defendants and identified them. “He did it in their hearing and presence, and plaintiff in error said nothing except to take a good look and be sure.” (p 592.)

The State also relies upon People v. O’Donnell, 315 Ill 568, 146 NE 490 (1925), and People v. Braverman, 340 Ill 525, 173 NE 55 (1930). In O’Donnell the police officers testified as to what took place after capturing and returning the defendants to the scene of the crime where the victim in a conversation with them at the time pointed out the defendant O’Donnell, and said “That is the man,” “Here is one of them,” and “This is the man that stuck me up.” (p 572.) These statements of the victim were made in the presence of the defendants and no denial of the truth of the statements was made by any of them.

In Braverman, on the direct examination of a witness, the assistant state’s attorney inquired what, if anything, was said at the police station. She answered that the question there asked her was whether she recognized the defendant. Her answer was made in his presence, it was in the affirmative, and he remained silent. The court held the testimony admissible. If the identification is made in the defendant’s presence and he does not deny it, it may be received as an implied admission. The following comment appears in 80 ALR 1235, 1236:

It may be stated as a general rule that, when a statement is made in the presence and hearing of an accused, incriminating in character, and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible on a criminal trial, as evidence of his acquiescence in its truth. A statement so made, of itself, would be objectionable as hearsay testimony, being a statement made at some time other than at a present trial, offered to prove the truth of the matter therein asserted, and based entirely on the credibility of a declarer not then before the court. However, as in the case of admissions generally, the statements herein considered are not offered as evidence of their truth merely because they were uttered; they are secondary in nature and are accepted in evidence as untainted by the hearsay stigma merely because they are a necessary predicate to the showing of the substantive evidence, the reaction of the accused thereto. The crystallization of the experience of men shows it to be contrary to their nature and habits to permit statements, tending to connect them with actions for which they may suffer punishment, to be made in their presence without objection or denial by them, unless they are repressed by the fact that the statement is true.

An evasive answer, or one unresponsive to the declaration, can be tantamount to absolute silence, and when not amounting to a denial, renders admissible both the statement and the reply under the rule as to tacit admissions. See 80 ALR 1248.

In the case before us the evidence is clear that the defendant, at all times, denied the commission of the crime. Officer Cullen’s testimony upon cross-examination disclosed the following:

Q. Theodore Wright always denied any robbery, isn’t that right ?
Q. He denied robbing Mr. Jones, did he not?
By the Witness: The defendant said “Why don’t you tell him like it is, man.”
Q. And didn’t he tell you that lie had never seen Mr. Jones and he never robbed Mr. Jones ?
By the Witness: No, sir, he just kept saying “Why don’t you tell him like it is, man.” [Emphasis ours.]

Jones, the complaining witness testified that the defendant said “Why don’t you tell him like it is, man.” Jones also stated that when he was with Detective Miller of the robbery unit, and identified the defendant, Detective Miller “asked the man about the charges and the man said no.”

On cross-examination of Jones, defendant’s denial was further brought out as follows:

Q. And at that time he said he didn’t rob you, isn’t that right ?
A. That is right, he said he didn’t, that is right.
Q. Did he say it more than one time ?
A. Yes.

In a recent-case, People v. Harrison, 25 Ill2d 407, 185 NE2d 244 (1962), defendant was accused of assaulting two girls. The older one identified him at the trial of the case. At no time was the younger girl asked to nor did she identify the defendant as the man who assaulted her, or as the man whose photograph she picked out, or as the man she identified at the lineup. A police officer was allowed to testify that he was present when the girls identified the defendant’s photograph and pointed out the defendant in the lineup. The court said (p 414) : “This testimony was not offered for the purpose of proving an implied admission. The officer was asked no questions about the defendant’s reaction when the girls pointed to him in the line-up and said, ‘That is him’ and so no admission could be implied. . . . The testimony of the officer, therefore, could only have been offered to bolster the testimony of the older girl and to close the gap that resulted from the failure or refusal of the younger girl to identify the defendant at the trial. For that purpose, however, it was clearly hearsay and was inadmissible. (People v. Lukoszus, 242 Ill 101, 108; People v. Krejewski, 332 Ill 120, 123; People v. Reeves, 360 Ill 55, 64 (1935)).”

The State primarily relies upon People v. Sterling, 341 Ill 112, 173 NE 139 (1930). It was there held that testimony that during the identification of the defendant at the police station the person whose home had been robbed said to a police officer, when the defendant was brought in with others, that her husband was there and knew the defendant as well as she did, although improper as hearsay, could not be regarded as prejudicial. The court said that the remark was immaterial because it was shown that the husband did know the defendant as well as the wife did-and her statement did not prejudice the defendant. The case holds that incompetent evidence may be harmless if all that it tends to prove is otherwise proven without contradiction by competent evidence. But, if as in Harrison, the hearsay evidence is offered to bolster otherwise uncorroborated testimony, it is prejudicial and reversible error.

The State calls our. attention to the fact that defendant's counsel failed to object to some of the otherwise inadmissible hearsay testimony and urges that it not be considered as constituting reversible error. But where the admission of evidence is so erroneous and prejudicial as to prevent defendant from receiving a fair trial, then upon review this court may consider such assignment of error even though no objection was made. People v. Morgan, 20 Ill2d 437, 441, 170 NE2d 529 (1960); People v. Moore, 9 Ill2d 224, 232, 137 NE2d 246 (1956). Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court. Ill Rev Stats 1963 (Code of Criminal Procedure), chap 38, § 121-9 (a).

In the case at bar the defendant’s connection with the crime rests upon the identification of a single witness. The testimony of the police officers with regard to the identification of defendant by Jones was incompetent as hearsay. The error in admitting the testimony was further amplified by the prosecutor referring to it in his argument to the jury. See People v. Reeves, 360 Ill 55, 64, 195 NE 443. The probative value of the officers’ testimony is not enhanced by the fact that it was received without objection. People v. Harrison, 25 Ill2d 407, 414, 185 NE2d 244. Nor can the error in admitting the testimony be regarded as harmless in view of the fact that defendant was identified by but one witness. Such testimony might have bolstered the identification and might have given the effect of corroboration. Although the testimony of a single witness may sustain a conviction, the record in such case must be free from prejudicial error.

Since we hold the admission of the hearsay testimony was sufficiently prejudicial so as to require a new trial, other errors raised are not of a nature that can be expected to recur upon a new trial and need not be considered.

For the reasons given above, the judgment of the trial court is, therefore, reversed and the cause remanded for a new trial.

Reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    Bruno F. Mineiko, Plaintiff-Appellant, v. Arthur Rizzuto, Defendant-Appellee.
    Gen. No. 50,203.
    First District, Third Division.
    November 4, 1965.

      Tom L. Yates, of Chicago (Richard P. Runke, of counsel) , for appellant.
    Greenberg, Ziv and McCarthy, of Skokie (Frank E. McCarthy, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The sole question presented by this appeal is the adequacy of the damages awarded to the plaintiff, Bruno F. Mineiko, in his personal injury suit against Arthur Rizzuto. The jury assessed the plaintiff’s damages at $2,500 and judgment was entered for that amount.

The case arises out of an automobile accident occurring just past midnight on August 13, 1960, at the intersection of 65th Street and Bell Avenue in Chicago. There were no traffic control signals at the intersection. The plaintiff, a printing company foreman, was on his way home from work and was driving south on Bell. He came almost to a stop upon reaching 65th, looked east, then west and, seeing nothing approaching from either direction, accelerated to go through the intersection. His car was in the middle or a little past the middle of the intersection when the defendant’s car, westbound on 65th street traveling at more than 50 miles per hour, came out of an underpass on the east, skidded for 50 feet as it entered the intersection and crashed into the plaintiff’s auto on the driver’s side with such force that the plaintiff was thrown out of the right side of his car. He was taken to a hospital where he remained for 16 days. He was away from his work for six weeks.

Seven of the plaintiff’s ribs were fractured, most of them in two places; he suffered multiple abrasions, had difficulty breathing, coughed up blood and was in severe pain. There was medical testimony that the injury to the plaintiff’s chest was permanent, that some of the ribs were shortened and angulated, that an osteoarthritic condition of the back developed as a result of the trauma and that this would be productive of pain, would decrease the motion of the back and would cause difficulty in bending. The plaintiff testified that his back was stiff and that he experienced some pain in the morning, but that his back got better and the pain lessened as the day went along. His wife corroborated his testimony about his back condition. She said that he could not bend down as he used to and that just a week before the trial he had cried out when he stooped to pick up the daily paper.

His special damages included doctor, hospital and medical bills amounting to $723.49, and six weeks loss of work at $270 per week, a total of $2,343.49. The award of $2,500 thus gave him $156.51 for his seven broken ribs, his other injuries and his pain. This amount is patently inadequate.

The jurors were correctly instructed as to damages and it was their duty to determine the amount of damages in accordance with the elements of damage set out in the court’s instructions. Among these were the expense of medical care, the pain and suffering, the value of time lost and the nature of the injury and the disability resulting from it. This court said in Ward v. Chicago Transit Authority, 52 Ill App2d 172, 176, 201 NE2d 750:

“The fixing of damages in a personal injury case is within the province of the jury. Where the jury has been correctly instructed on the measure of damages, as it was in this case, and there is no showing that the size of the verdict was the result of passion or prejudice or that the jury obviously overlooked an element of damages, the amount of damages awarded by the jury should not be disturbed on review.”

Unlike the Ward case, in which we upheld an award of $1,000 in a personal injury case, the credibility of the plaintiff in this case is unquestioned, his loss of earnings not in dispute and his medical expenses not suspect. In addition, the jury in this case must have overlooked, misunderstood or refused to consider some • component that should have entered into their total award. We assume that the misunderstanding was in regard to the wages lost by the plaintiff because, while he was testifying, he candidly volunteered the information that his employer had paid him for the six weeks he was away from his job. This came to $1,620. The compensation he received from his company had no relationship to the damages recoverable from the defendant. A plaintiff has the right to recover for the damages he suffers .irrespective of any benefit he may receive from other sources. Cooney v. Hughes, 310 Ill App 371, 34 NE2d 566; Hoobler v. Voelpel, 246 Ill App 69. The defendant did nothing at the trial to capitalize on the plaintiff’s admission, but somehow the jury was mislead and awarded the plaintiff little more than his special damages. The award is so out of line that a new trial is necessary.

When a verdict in favor of a plaintiff is fully supported by the evidence on the issue of liability but the damages awarded are inadequate, a new trial may be ordered on the issue of damages only. Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275; Adkins v. Blue Bird Coach Lines, Inc., 27 Ill App2d 34, 169 NE2d 368; Haizen v. Yellow Cab Co., 41 Ill App2d 330, 190 NE2d 514; King v. City of Chicago, 53 Ill App2d 484, 202 NE2d 839.

The defense interposed in this case was that of contributory negligence. This was on the ground that the plaintiff did not keep a proper lookout; that a fence, seven to eight feet high, on the northeast corner of Bell Avenue and 65th Street blocked the plaintiff’s view to the east, and that if he had proceeded carefully as he passed the fence and had then looked east he would have seen the headlights and would have heard the noise of the defendant’s car as it came through and out of the underpass to the east.

The fence argument applies with greater force to the defendant. His view was also obstructed by the fence and the plaintiff had the right-of-way. Nevertheless, the defendant drove past the fence at great speed. That speed was estimated at 50 to 60 miles an hour by a resident of the neighborhood who lived just south of the intersection and who was sitting on his porch because the night was hot and humid. Two other witnesses who lived on Hamilton Avenue, a block east of Bell, were also sitting outside. These witnesses said that the defendant’s car, traveling west on 65th, passed Hamilton and entered the half-block-long underpass at a speed of 60 to 70 miles per hour. Seconds later they heard the crash.

The liability of the defendant was definitely established. A verdict for the defendant would have been against the manifest weight of the evidence and if appealed would have required a reversal. Since the jury properly decided the liability issue and improperly decided the question of damages, the judgment will be reversed as to damages only. The cause will be remanded for a new trial on this issue.

Reversed and remanded with directions.

SULLIVAN and SCHWARTZ, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    Anna M. Coss, as Administratrix of the Estate of Jose Coss, Deceased, Plaintiff-Appellee, v. Stanley Magdziasz, et al., Defendants. On Appeal of Walter H. Colewell, Appellant.
    Gen. No. 49,619.
    First District, Third Division.
    November 4, 1965.

      Mack Berg, of Chicago, for appellant.
    James A. Thompson, of Chicago, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a dramshop case the jury returned a verdict for $20,000 and the court entered judgment thereon. Appeal was taken by the defendant Walter H. Colewell. Plaintiff is the widow of one Jose Coss, who was killed by Ernest Correa in a tavern fight while Correa was allegedly intoxicated.

The complaint charged that Colewell was the owner of the building, and the answer filed by Colewell specifically admitted that he owned the building. Suit was instituted on April 8, 1960, and was brought to trial on March 31, 1964. In his opening statement Colewell’s counsel said for the first time, and contrary to his specific pleading, that his client Colewell was not then “nor has he ever been, the owner wherein the building at 1200 something Chicago Avenue is located.” A discussion then followed in which the court said:

“Well, the pleadings are an admission but whether the admission will be overcome by evidence, I don’t know. We’ll get to that point when we get to it.”

A further discussion followed, and counsel for Colewell again said that Colewell was not then, at the time of the occurrence or at any time the owner of the property; “that he had assisted the owner, a Mr. Gurecki, who had been the owner of this property for about ten years, that he had assisted him in the operation of the building located in a rough neighborhood, 1200 Chicago Avenue.

It should be noted that the statute of limitations applicable to dramshop cases had expired. Plaintiff, in an excess of caution when the trial court indicated that defendant might have the right to amend his answer and retract his admission of ownership, examined defendant under Section 60 of the Civil Practice Act, 111 Rev Stats 1963, c 110, § 60 and in that examination, defendant denied ownership. No steps, however, were taken to amend the answer.

The law is clear that an admission in an answer is binding on the party making it and as to such party, it is conclusive as to the admitted fact. Holsinger, Theis & Co. v. Holsinger, 329 Ill App 460, 69 NE2d 360. Indeed, upon the filing of the answer, ownership ceased to be an issue in the case. It is now contended, however, that the admission was waived by the plaintiff’s calling the admitting party as a witness under Section 60. The cases cited by the defendant do not support this contention. Pallasch v. United States Fidelity & Guaranty Co., 329 Ill App 257, 67 NE2d 883, and Ancateau v. Commercial Cas. Ins. Co. of Chicago, 318 Ill App 553, 48 NE2d 440, are garnishment cases in which the plaintiffs’ failure to traverse new matters in the garnishees’ answers would ordinarily have established the truth of these new assertions. The garnishees, however, introduced evidence on those issues and the court held that the defendants waived the effect of the plaintiffs’ failure to reply where the parties treated the issues as properly made. Meyer v. Hendrix, 311 Ill App 605, 37 NE2d 445, also holds that the defendant’s introduction of evidence following the plaintiff’s failure to traverse an affirmative defense made the defense an issue. None of these decisions is authority for the proposition that an admission in the pleadings is waived by calling the admitting party under Section 60.

The defendant cannot negate the evidentiary effect of the admission of ownership in the answer, even if the original answer is not held to be conclusive against him. Cases cited by the defendant hold that the uncontradicted testimony of an adverse witness or one called under Section 60, supra, will be taken as true if there is “no countervailing testimony.” Chance v. Kinsella, 310 Ill 515, 142 NE 194; In re Estate of Donovan, 409 Ill 195, 98 NE2d 757. In the instant case there is evidence rebutting Colewell’s denial of ownership. The pleading is in itself evidence. O’Brien v. Brown, 403 Ill 183, 85 NE2d 685, cert den 338 US 827; ILP Evidence § 136; In re Estate of Clark, 264 Ill App 544. There is also the testimony of the tavern keeper, Reuben Torres, who said Colewell was the owner. Section 60, supra, itself provides:

“The party calling for the examination is not concluded [by the adverse party’s testimony] but may rebut the testimony thus given by counter-testimony and may impeach the witness by proof of prior inconsistent statements.”

There was adequate evidence to support the finding of ownership.

Defendant contends that the evidence is insufficient to show that the defendant Correa was intoxicated when he killed Coss or that Correa’s intoxication contributed to the assault. There was testimony by the defendant Torres and other witnesses, including Police Officer Devitt, that Correa was in a hopelessly intoxicated state after the murder. There was substantial evidence from which the jury could find that Correa was intoxicated and that this intoxication was the cause of the fatal struggle. The verdict is not against the manifest weight of the evidence.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: MR. JUSTICE SULLIVAN

text:
    Joseph R. Guttman, Plaintiff-Appellant, v. Joseph R. Guttman, Administrator of the Estate of Elza Guttman, Deceased, Defendant-Appellee.
    Gen. No. 50,028.
    First District, Third Division.
    November 4, 1965.

      Joseph R. Guttman, of Chicago, pro se.
    Eugene Lieberman, of Chicago, for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

The title of this case is incorrect. However, the above title appears upon the briefs of the appellant and we feel constrained to follow it. The so-called plaintiff is not a lawyer but he has filed his briefs pro se and it would appear from the title that he is suing himself. In this opinion Joseph R. Guttman will be referred to as the plaintiff.

The litigation involved herein covers a great many years, many law suits and appeals. Guttman v. Schiller, 23 Ill2d 323, 178 NE2d 387; Guttman v. Estate of Guttman, 28 Ill App2d 85, 170 NE2d 40; Guttman v. Schiller, 39 Ill App2d 58, 187 NE2d 315. Most of the facts relating to this litigation are set forth in Guttman v. Schiller, supra.

The plaintiff in this case contends that the trial court erred in entering an order on September 2, 1964, upon a petition filed by him, ordering that leave to reopen the estate of Elza Guttman, deceased, be denied, and further providing that Joseph Guttman be ordered and directed to refrain from filing any other documents, petitions and notices in this cause except only such notices or requests as may be necessary to perfect an appeal from that order to an appropriate court of review. His contention is that he has been deprived of some constitutional rights by the foregoing order in that he claims that he has a right to represent himself in court, and that this right has been denied him.

A joint will was executed by Bernard and Elsie Guttman (Elsie Guttman was also known as Elza Guttman), the father and mother of the plaintiff in 1929, under which after the death of both the whole of their property would go in equal shares to Joseph, the plaintiff herein, and their other son, Morris Reese Guttman. Their daughter by that will was specifically disinherited. The father died in 1930 and the will was admitted to probate in Cook County, Illinois. In 1931 the mother renounced the will and received her statutory portion of the estate. The mother died in 1953 in Arizona, where she had lived for many years. She and her daughter had been reconciled and in a will executed shortly before her death she named the daughter as her sole beneficiary. There was some doubt under Arizona. law whether the sons would get anything, and a will contest seemed inevitable. In order to avoid a contest Joseph, the plaintiff, and Morris, his brother, and Barbara, the sister, entered into a full settlement and compromise of all their claims. This settlement agreement was filed in the Superior Court of Arizona in October 1953. Under the settlement agreement it was stipulated that the mother’s estate would be distributed one-third to each of the children, but that Barbara be permitted to retain certain assets therein specifically set forth. While the estate was pending in Arizona, ancillary proceedings were commenced in the Probate Court of Cook County. The ancillary administrator cited Joseph for having withdrawn funds from his mother’s bank account. He contended that the funds were trust property. The probate court found that the funds belonged to the estate and Joseph was ordered to return them. Joseph then filed a claim against the estate in the ancillary proceeding asserting that trust funds had been commingled with assets of the mother’s estate, and that Morris, the administrator, had failed to turn over to him as trustee all of the proceeds of that estate but had transferred those trust funds to their mother. This claim was disallowed.

Another settlement was reached and on June 5, 1956, the Probate Court of Cook County entered an order, which was approved by Joseph and Morris, and by Joseph’s attorney, which found that “all matters heretofore in dispute have been settled”; that the parties were to cooperate in the sale of the mother’s home in Arizona and the proceeds of that sale and of her estate in Cook County were to be divided equally among the three heirs.

Notwithstanding these settlements made in Arizona in October 1953, and in the Probate Court of Cook County in June 1956, Joseph filed a petition in January 1957, and again in 1958, in the Probate Court of Cook County, to have the orders entered in 1956 set aside. His motion was denied and he appealed first to the circuit court and then to the Supreme Court, which court transferred the case to the appellate court, and is reported under the title of Guttman v. Estate of Guttman, supra. The appellate court in that case affirmed the circuit court, which had found that the probate court had jurisdiction to enter the orders complained of. In Guttman v. Schiller, Joseph again contended that the 1956 orders of the probate court were void, and in that case the court said: “It is but one of many contentions, going back as far as the renunciation of the will in 1931, which are raised in this appeal.” 39 Ill App2d 58, 64, 187 NE2d 315.

In the case of Guttman v. Schiller, supra, it is stated that Joseph contended “that when he approved the Probate Court orders of 1956, orders which were prepared by his own attorney, he only knew and did what he was told. However, the master, who held more than 20 hearings and heard over 1100 pages of testimony and argument, found that he did not enter into the agreements blindly, or because of deception or overreaching. The master found that they were entered into voluntarily and for adequate consideration.” 39 Ill App2d 58, 65, 187 NE2d 315.

The master’s findings were approved by the trial court and the appellate court found them not to be against the manifest weight of the evidence.

The appellate court in that same opinion concluded that the 1956 probate court settlement constituted a valid agreement, and that the petitioner, having entered into it of his own accord, is bound by it and is barred from asserting his present claim.

The ancillary proceedings were opened in Cook County, Illinois, case No. 54P 3891. The final account in that estate was approved on November 16, 1956. The plaintiff herein opened a new estate for his mother, Elza Guttman, in the Probate Court of Cook County under case No. 56P 6627. Thereafter he opened a third estate for the same decedent bearing number 63P 670 in the Probate Court of Cook County, in which sworn petition he stated that Elza Guttman was a resident of the city of Chicago in the county of Cook and State of Illinois at the time of her death. The petitioner well knew that his mother’s estate had been administered in Arizona, and that his mother had lived there for many years prior to her death. This last estate was opened despite the fact that on August 6, 1956, a stipulation was entered into which was approved by the probate court in Tucson, Arizona. It was agreed that in compromise of all existing will contest actions between the parties involving several alleged wills of the decedent, the estate was to be equally divided between the three heirs. The Probate Court of Cook County, when the second probate proceedings were filed in Cook County, entered an order on August 6, 1956, finding that there was a prior estate pending for the same decedent, No. 54P 3891, and that the stipulation between all three heirs was in full force and effect. The order further denied the petition to admit an alleged will to probate in that proceeding, denied the petition for the appointment of an administrator to collect, and ordered the estate closed. The court also found that Benjamin H. Feldman, an attorney, was in open court at that hearing on behalf of Joseph Guttman, and that Joseph Guttman was personally present.

In 1963 the plaintiff filed his new petition to open a new estate for the same decedent under No. 63P 670, wherein he sought to probate an alleged new will, which, if probated, would distribute the estate equally among the three children, which had already been done by the probate court in Tucson, Arizona, many years previously. The record also indicates that at the time of the execution of the new will the decedent had been previously declared an incompetent.

The plaintiff herein has filed countless petitions in all three of the estates opened in the Probate Court of Cook County for the same decedent, none of which bear mentioning but all of which no doubt were prompted by his desire to harass his brother Morris.

Attorney Eugene Lieberman filed a sworn answer to a petition filed against him on October 4, 1960, in case No. 54P 3890 (correct number 3891), in which petition the plaintiff asked that an attachment be issued against Mr. Lieberman and that he be compelled to produce a proper and later will of Elza Guttman dated July 8, 1953. In his sworn answer Mr. Lieberman stated thát upon inquiry made by him of Joseph R. Guttman as to why he wanted that will, inasmuch as the estate was being probated pursuant to the agreement of October 2, 1955, which agreement provided for distribution in an identical manner to the provisions set forth in the will of July 8, 1953, Joseph R. Guttman said as follows: “I’m going to file petitions and I’m going to get what I want and if I lose I’ll file new petitions until I get my dear brother and sister and you too, Mr. Lieberman, and every time I lose, I’ll get a new lawyer and start again. I’ll hound you to your graves.” This sworn answer by Mr. Lieberman does not appear to have been denied any place in the record.

In probate No. 63P 670 the same Eugene Lieberman, attorney for Morris R. Guttman, filed a sworn answer to a petition filed by the plaintiff, wherein Mr. Lieberman stated that on repeated occasions Joseph R. Guttman made threats to Mr. Lieberman and to his client, Morris R. Guttman, as follows: “I will bring one lawsuit after another and one petition after another, and if I lose, I’ll never stop until you pay me what I want.” This statement, likewise, does not appear to have been denied.

After opening the second estate for the same decedent in 1956, No. 56P 6627, and after that estate had been closed on May 8, 1958, the plaintiff obtained subpoenas duces tecum against numerous persons including his brother Morris R. Guttman. In the subpoena duces tecum directed to Morris R. Guttman he was asked to produce “court actions from the day Bernhard Guttman died to the present time in relation to the trust of Bernhard Guttman. . . . Passport as well as receipts showing when in July of 1953 M. Reese Guttman (Morris) flew to Europe and what date he returned.” The subpoena duces tecum also directed M. Reese Guttman (Morris) to produce $250,000 as well as documents that would have absolutely no bearing on the estate involved, and covered a period from 1937 to the 8th day of May 1958. When this matter was called to the court’s attention the probate judge admonished the plaintiff not to obtain or serve any further subpoenas duces tecum without first obtaining an order of court. However, on January 24, 1963, he obtained and served another subpoena duces tecum against the law firm of Jacobs and Lieberman in probate estate No. 54P 3891, which estate had been closed many years before.

It would serve no useful purpose to mention the numerous petitions filed by the plaintiff in the various estates even after the estates had been closed.

On September 2, 1964, the court entered an order, after the plaintiff had opened the third estate for the same decedent No. 63P 670, in which the court found, among other things, that the estate of Elza Guttman was first opened in the probate court in case No. 54P 3891; that an estate was also opened for Elza Guttman in the year 1956, identified as No. 56P 6627, and that a further estate was opened in the Estate of Elza Guttman identified as No. 63P 670. The court found from its records that an order was entered in case No. 56P 6627 on the 6th day of August 1956, finding that there was a prior pending estate identified as No. 54P 3891, and ordering that the petition to admit the alleged will of Elza Guttman be denied probate and ordering the estate in case No. 56P 6627 closed. The court also found that in case No. 63P 670 an order was entered on the 12th day of December 1963, to the effect that No. 63P 670 had been consolidated with No. 54 P 3891, both of said estates involving the same decedent, Elza Guttman, and that order further provided that the estate of Elza Guttman shall remain closed. The probate court in that order set forth the following:,“It is further, ordered that this estate is closed and that this order applies to 54P 3891 and 63P 670 consolidated under case No. 54P 3891.” The court further found in that order that none of the matters presented by Joseph Guttman in any capacity set forth any basis in law for the entry of an order reopening the estate identified as 56P 6627, or any other estate of Elza Guttman, deceased. The court went on to find that the continuous presentation of documents, notices and petitions by Joseph Guttman in the estates that had heretofore been closed tended to interfere with the orderly administration of justice in that court. The court thereupon ordered that leave to reopen the estate be denied and that Joseph Guttman be ordered and directed to refrain from filing any other documents, petitions and notices in that cause except only such notices or requests as may be necessary to perfect an appeal from that order to the appropriate court of review. It is from that order the plaintiff appeals.

Joseph R. Guttman contends that he was denied his constitutional right to a fair trial; that he was denied his day in court and the benefit of the general law. He cites from the Illinois Constitution and the Constitution of the United States in support of his contention that he was denied his constitutional rights.

From an examination of the record in this case, as well as the abstract and briefs, Joseph R. Guttman had made up his mind to follow a course of harassment and he will not be stopped by prior decisions of this court or by the orders entered against him in the trial court. Each time the court denied one of his petitions he followed that up by either filing a new petition asking for the same relief, either in the same probate proceeding, or by opening a new estate and filing the petition under a different number, although each estate is that of the same decedent. It would appear that this was an attempt by Joseph Guttman to evade previous orders entered by the court which orders would not be found in the file bearing the new estate number.

The trial court from the record has been most tolerant, enduring and indulgent. The court has with patience and forbearance given Joseph Guttman a hearing on each of his petitions and in every case the petitions were properly found to be without merit. We see no constitutional question in this case, for no man has a constitutional right to maintain vexatious or harassing litigation, and no man, whether he be lawyer or layman, has a constitutional right to interfere with the orderly administration of justice in a court of law. The trial court in its order of September 2, 1964, found that the continuous presentation of documents, notices and petitions by Joseph Guttman in the estates that have heretofore been closed tends to interfere with the orderly administration of justice in that court.

The plaintiff also contended in his final petition that the order entered on August 6, 1956, which recited that Benjamin H. Feldman of 208 South LaSalle Street, was in open court for this hearing on behalf of Joseph Guttman, and that Joseph Guttman was personally present, was false, and that order did not come to his attention until July 8, 1964. A complete answer to this tardy contention is that the plaintiff has lost nothing, even if the allegations in his petition, to the effect that he was not present and that his attorney, Benjamin H. Feldman, was not present, were true. The estates were closed pursuant to a stipulation entered into by the plaintiff covering the distribution to be made of the assets of his mother’s estate. This stipulation was adhered to. Furthermore, it is doubtful that the plaintiff did not know of the entry of this order on August 6, 1956, ordering the estate closed, for if he thought the estate was still open why did he file a petition to open a new probate estate in 1963 under number 63P 670?

The petition upon which the appealed order was entered was in the nature of a petition under section 72 of the Civil Practice Act and was filed on July 21, 1964, in an effort to vacate an order entered on August 6, 1956. Under section 72 a party seeking relief after term time must file his petition within two years. Irving v. Rodriquez, 27 Ill App2d 75, 169 NE2d 145. Ill Rev Stats 1963, c 110, § 72.

The so-called plaintiff in this case failed to make a case in the trial court as he has failed here.

The defendant herein has filed two motions to dismiss this appeal, both of which motions were taken with the case. While this court felt that the motions of the defendant were well taken, in view of this opinion it is unnecessary for this court to pass upon said motions.

The order of court denying the petition of the plaintiff under section 72 of the Civil Practice Act is in all respects affirmed.

Order affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.