text:
    MARTIN J. OBERMAN et al., Plaintiffs-Appellants, v. JANE M. BYRNE, Mayor of the City of Chicago, et al., Defendants-Appellees.
    First District (3rd Division)
    No. 81-1579
    Opinion filed March 10, 1982.
    Martin J Oberman, Lawrence S. Bloom, and Jerome B. Meites, all of Chicago, for appellants.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Jerome A. Siegan, Assistant Corporation Counsel, of counsel), for appellees.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

The plaintiffs, Martin J. Oberman, Lawrence S. Bloom, William O. Lipinski, Danny K. Davis and David D. Orr, brought this action individually and on behalf of all Chicago taxpayers, in order to enjoin the expenditure of certain public funds by the defendants. The defendants are the city of Chicago, its mayor Jane M. Byrne, its comptroller Daniel Grim, and its commissioner of the department of neighborhoods Harry Sikorski. On June 24, 1981, the trial court dismissed plaintiffs’ first amended complaint, and the plaintiffs appeal.

In December 1980 the city council of the city of Chicago appropriated $375,000 to the department of neighborhoods in order to conduct a canvass of all Chicago neighborhoods concerning public opinion on city services. The plaintiffs alleged that this appropriation was being used to conduct a survey of “a partisan political nature.” The plaintiffs asserted that the expenditure of public funds on such a survey was without a public purpose in violation of the Illinois Constitution and State law. The Constitution of the State of Illinois (Ill. Const. 1970, art. VIII, §l(a)) states that “Public funds, property or credit shall be used only for public purposes.”

The Illinois Municipal Code provides that the corporate authorities in municipalities with a population of 500,000 or more may “appropriate such sums of money as are deemed necessary to defray all necessary expenses and liabilities of the municipality 9 9 9.” Ill. Rev. Stat. 1979, ch. 24, par. 8 — 2—1.

Plaintiffs’ original complaint was filed on Friday April 10, 1981, at approximately 4:20 p.m. and assigned to Judge Reginald Holzer. Since Judge Holzer was on vacation, Judge Richard Curry heard his motions during his absence.

On April 13, 1981, the parties appeared before Judge Curry in connection with plaintiffs’ motion for a temporary restraining order. Judge Curry entered an agreed order enjoining the defendants from expending any funds on the survey until further order of court. On April 14,1981, by agreement of the parties Judge Curry modified this order. He also allowed the plaintiffs to file their first amended complaint.

Judge Holzer returned to his courtroom on Monday, April 20, 1981, and the parties first appeared before him on April 21, 1981. Defendants’ request for leave to file a motion to strike and dismiss the complaint was allowed. The court set a briefing schedule on this motion. On the same day, the plaintiffs presented a petition requesting a change of venue due to their fears that they would not receive a fair trial before Judge Holzer. The court advised the plaintiffs that their petition was not in proper form and allowed the plaintiffs to withdraw the petition in order to amend it.

The following day the plaintiffs presented a petition for change of venue in which Martin Oberman alleged that Judge Holzer was prejudiced against him. The court denied this petition “by reason of undue delay.”

On June 24, 1981, Judge Holzer dismissed plaintiffs’ first amended complaint for failure to state a cause of action.

The plaintiffs first contend that the trial court improperly denied their petition for a change of venue. A change of venue in any civil case may be had “[wjhere any party 0 0 0 fears that he will not receive a fair trial in the court in which the action is pending, because 9 9 9 the judge is prejudiced against him * 9 (Ill. Rev. Stat. 1979, ch. 110, par. 501(2).) The petition must be presented before the trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case. (Ill. Rev. Stat. 1979, ch. 110, par. 503; Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App. 3d 789, 358 N.E.2d 1142.) This requirement is designed to preclude counsel from first ascertaining the attitude of the trial judge on a hearing relating to some of the issues of the case and then, if the court’s judgment should not be in harmony with counsel’s theory, asserting the prejudice of the court as grounds for a change of venue. In re Estate of Roselli (1979), 70 Ill. App. 3d 116, 388 N.E.2d 87.

When the petition is in proper form and in compliance with the statute, the right to a change of venue is absolute and the judge has no discretion in denying the petition. (County of Du Page v. E & E Hauling, Inc. (1977), 67 Ill. 2d 390, 368 N.E.2d 110.) Furthermore, the provisions of the venue statute are to be liberally construed in order to effect rather than defeat a change of venue, particularly when prejudice of a judge is charged. Pavlis v. Jewel Tea Co. (1977), 53 Ill. App. 3d 287, 368 N.E.2d 719.

There is no dispute concerning the form of plaintiffs’ petition; rather, the defendants argue that the petition was not timely filed. The defendants contend that the plaintiffs should have presented their petition to Judge Curry on April 13 or to the presiding judge of the chancery division in Judge Holzer’s absence. We do not believe that such action was necessary. The statute and case law provide that the petition must be presented before the judge to whom it is presented has ruled on any substantive issue. The plaintiffs appeared before Judge Holzer on the second day that he was available to hear their petition. When the court indicated that the petition was not in proper form, the plaintiffs withdrew it and returned to court the following day with an amended petition. At this time Judge Holzer had neither heard nor ruled on any issue of substance in the case. We therefore find no basis for Judge Holzer’s conclusion that the petition was not timely filed.

The plaintiffs also argue that the trial court erred in barring certain discovery and in dismissing their complaint. Because any order entered subsequent to an improper denial of a change of venue is void (Pavlis v. Jewel Tea Co.), we need not consider these issues.

For the foregoing reasons the judgment of the circuit court of Cook County is hereby reversed, and this matter is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

WHITE, P. J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JOHNSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE HOLMES, Defendant-Appellant.
    First District (4th Division)
    No. 79-2195
    Opinion filed March 11, 1982.
    Abishi C. Cunningham, Jr., of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Lester M. Joseph, and Bruce Rose, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Following a bench trial, defendant, Willie Holmes, was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2). Defendant received a sentence of 10 years imprisonment.

On appeal, defendant presents the following issues for review: (1) whether he was proved guilty of armed robbery beyond a reasonable doubt; (2) whether the trial court properly denied him leave to recall a witness; (3) whether there was probable cause for his arrest; and (4) whether his identification by an eyewitness should have been excluded because of an unnecessarily suggestive showup.

We affirm.

Prior to trial, defendant filed a motion to quash arrest and suppress identification. At the hearing on this motion, defendant Holmes testified that on March 29, 1979, at approximately 9:15 p.m., he was in a tavern, known as McGee’s, at 70th Street and Halsted, in Chicago. The police came into the tavern and asked him and Otis McGuire to come outside with them. Once outside, the police handcuffed him and drove him to 67th and Halsted. A lady came out of the tavern at that address, pointed at him, and went back into the tavern. Holmes and McGuire were both handcuffed and standing together when the lady identified him. Thereafter, he was taken to the police station. The witness stated that the police never read him his Miranda rights.

Redic Richardson, Sr., testified that he is the owner of the Tchula Tavern, located at 6745 South Halsted. On January 7,1979, his tavern was robbed. Redic, Sr., was not present at the time of the robbery, but his son had been a witness. On March 29, 1979, at about 9:15 p.m., Redic, Sr., followed a young man into a tavern at 7000 South Halsted. Redic’s son had pointed out the young man as the one who committed the January 7 robbery. The police arrived and defendant was later arrested.

At the hearing, Redic Richardson, Jr., testified that he is 10 years old. On March 29, 1979, he was outside in front of his father’s tavern when he saw a man whom he recognized as the same man who had robbed the tavern on January 7. He immediately went inside and informed his father. After the January robbery, Redic, Jr., had given a description of the robber and his accomplice. He stated that the robber was wearing a gray shirt, dark pants, a trench coat, and a skull cap. His accomplice, the taller of the two men, had on a jacket; there were holes in his pants but he wore another pair of dark pants underneath; he wore sunglasses, and his hat was tilted. Elizabeth Spells, the barmaid at the Tchula Tavern, had told him that the robber had a scar on the side of his face. On March 29, Redic, Jr., recognized this man, saw the scar on his face, and identified him as the defendant.

After the hearing, the trial judge denied the motion to quash the arrest and decided to delay the ruling on the motion to suppress identification until trial. It was stipulated that the testimony of Redic, Sr., and Redic, Jr., at trial would be the same as their testimony at the hearing.

At trial, Elizabeth Jean Spells testified that on January 7, 1979, between the hours of 9 and 10 p.m., she was working as a barmaid at the Tchula Tavern. Two men entered the tavern whom she had never seen before. When they walked in, she was playing a game of cards with one of the patrons while Redic, Jr., watched. She walked to the front of the tavern to take their order. The smaller of the two men went to the back end of the bar where the customers were sitting, while the heavier man, whom she identified as defendant, went to the carry-out counter in the front of the bar. Defendant ordered a quart of “Richard’s,” a brand of wine, and she turned to reach for the bottle on the shelf. When she turned again, she saw that he had a gun in his hand. He told her not to scream or drop the bottle, and to give him the money from the cash register. Spells was able to see his face and the upper part of his body. She took $103 from the cash register and handed it to defendant who then walked out of the tavern. As Spells walked back to the far end of the bar, the man who had entered with defendant came up to her and said, “Don’t move. If you do, you [are] dead.” He had something that appeared to be a gun. She stated that the man who robbed the tavern wore dark clothing, a shirt, a trench coat, and a skull cap. He had a long scar on one side of his face. Although she thought the scar was on the right side of his face, she later realized that, in facing the offender, the scar was to her right and on the left side of his face. She could not recall his weight but stated that he was heavy and approximately 5 feet 6 inches or 5 feet 8 inches in height. Spells further testified that on March 29, 1979, she saw defendant — the same man who had robbed the tavern — and he was wearing the same clothing that he had worn the night of the robbery.

On cross-examination, for the limited purpose of identification, Spells stated that she did not get a good look at the second man, but the man who robbed the tavern had a long scar on the side of his face which was noticeable. The skull cap covered his head. On the evening of March 29, 1979, Redic, Sr., asked her to go to the police car to make an identification.

Direct examination resumed and Spells made an in-court identification of defendant. On March 29 when the police took her outside to make an identification, there were two persons in the car; she identified defendant only.

On recross, Spells specifically indicated that the scar on defendant’s face began at his left temple and ended at about his mouth. On January 7, defendant did not have a full beard. After Spells’ testimony, the State rested its case in chief.

Defendant’s motion for a directed finding was denied. The court ruled on defendant’s motion to suppress identification and the motion was denied.

Defendant’s first witness, James McKnight, testified that he was a frequent patron at the Tchula Tavern and was present on the evening of January 7, 1979. Another customer and Spells were engaged in a game of cards and he sat nearby to watch the game. He saw the two individuals enter the tavern. He saw Spells leave the card game and speak to one of the individuals who remained at the front counter. The witness could not describe the physical appearance of that individual nor could he recall the approximate height or weight of the person. McKnight stated that the lighting in the bar that evening was dim, describing it as pink iridescent, and adding that before January 7, the lighting was another color. He never saw Spells go to the cash register. The two individuals were in the tavern for 2 or 3 minutes; they left quietly and quickly. Thereafter, Spells said the tavern had been robbed. She instructed Redic, Jr., to call his father and the police. The witness said he could not positively identify either of the men who entered the tavern that evening. After this testimony, the court recessed.

When court resumed, defense counsel moved to reopen McKnight’s testimony, stating that he had received information from McKnight which had previously been unknown to the defense. Defense counsel tendered a signed statement from McKnight and made an offer of proof that defendant was definitely not the same man McKnight remembered from the night of the robbery, and that he would not have missed noticing a man of defendant’s stature.

The State objected to the recalling of McKnight, stating that the witness’ previous testimony had indicated a lack of ability to observe anything about the man who committed the robbery. The trial court denied defense counsel’s motion to recall McKnight.

Officer Ronald Gordon testified that he investigated the robbery of January 7. His report contained a description of defendant which was given to him by Spells. The description was that of a male Negro, dark-complexioned, with a scar on the right side of his face, 30 to 35 years of age, 5 feet 6 inches in height and weighing 180 pounds, who was wearing a skull cap and a trench coat and carrying a .22-caliber handgun.

Lucinda Tripp testified that she is defendant’s fiancee; they live together. She has three children, two of whom were fathered by defendant. She remembered the evening of January 7, 1979, because she and defendant argued in their apartment from 8:30 to midnight. Tripp had gone to the Tchula Tavern in mid January 1979 to purchase liquor. The light over the takeout counter was a bright light. She stated that following defendant’s arrest, she never talked with the police.

After defense counsel rested, closing arguments were heard. Defendant was found guilty of armed robbery.

Defendant contends he was not proved guilty beyond a reasonable doubt. According to defendant, Spells’ testimony was contradicted by her description of the robber, by the testimony of defendant’s fiancee that he was at home on that evening, and by the offer of proof as to the testimony of James McKnight that defendant was definitely not one of the robbers. Further, Spells’ description of the robber differed from defendant’s actual physical appearance; he is approximately 6 feet in height and weighs 240 pounds.

Where the evidence is in conflict, it is the province of the trier of fact to determine the credibility of the witnesses and the weight to be afforded their testimony. (People v. Jennings (1976), 37 Ill. App. 3d 982, 984, 347 N.E.2d 421, 422.) In a bench trial, such as here, the trial judge’s determination as to the credibility of witnesses and the weight to be given their testimony must be accepted by the reviewing court, unless it is contrary to the weight of the evidence or so unsatisfactory as to lead to a reasonable doubt of defendant’s guilt. People v. Cozzi (1981), 93 Ill. App. 3d 94, 100, 416 N.E.2d 1192, 1196-97.

The record shows that Spells’ description of defendant was consistent. Although defendant maintains that the inaccurate description should lead to reversal, we must disagree. Discrepancies or weaknesses in the manner in which an identification is made only affect the credibility of the witness and the weight to be given his testimony, and this determination is within the province of the trial judge. (People v. Cozzi (1981), 93 Ill. App. 3d 94, 100.) The testimony of other witnesses and the remaining evidence amply support the trial judge’s determination of defendant’s guilt.

Defendant contends that refusal to allow James McKnight to be recalled to testify resulted in prejudice to his case because exculpatory evidence was excluded.

Recalling a witness rests largely within the discretion of the trial judge, and unless it appears that the denial of the request was manifestly prejudicial to defendant it is not error to refuse a request to permit the recalling of a witness. (People v. Harris (1978), 57 Ill. App. 3d 639, 643, 373 N.E.2d 593, 596, affd (1979), 74 Ill. 2d 472, 386 N.E.2d 60.) An examination of McKnight’s testimony indicates that he could not recognize the person who committed the robbery. To allow further testimony would not have added anything to the witness’ prior testimony. We cannot say that the trial judge abused his discretion by refusing to allow McKnight to be recalled.

Defendant next contends his arrest was not based on probable cause. The State maintains that defendant’s arrest was based upon probable cause, and that even if there had been no probable cause for the arrest the in-court identification of defendant by Spells was properly admitted because it had an origin independent of the arrest and showup identification.

In determining whether there was probable cause, we must look at all of the circumstances presented to the investigating officer. Probable cause exists “ ‘when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution in believing that an offense has been committed and that the person arrested has committed the offense.’ ” (People v. Creach (1980), 79 Ill. 2d 96, 101, 402 N.E.2d 228, 230, quoting People v. Robinson (1976), 62 Ill. 2d 273, 276, 342 N.E.2d 356, 358.) Existence of probable cause depends upon the totality of the circumstances as viewed under practical considerations of everyday life from the point of view of reasonable men. (People v. Green (1980), 88 Ill. App. 3d 929, 932, 410 N.E.2d 1003, 1006.) Facts sufficient to establish probable cause need not be sufficient to establish guilt beyond a reasonable doubt, and probable cause may be founded upon evidence which would not be admissible at trial. People v. Blitz (1977), 68 Ill. 2d 287, 292, 369 N.E.2d 1238, 1240, cert, denied (1978), 435 U.S. 974, 56 L. Ed. 2d 68, 98 S. Ct. 1622.

We find there was sufficient evidence at the hearing on the motion to suppress for the trial judge to rule that probable cause existed. At the hearing, the testimony of Redic, Jr., was consistent with regard to the description of the offenders. The information was sufficient to establish probable cause.

Defendant’s final contention is that Spells’ out-of-court identification resulted from a showup which was unnecessarily suggestive under the totality of the circumstances. We disagree. This court has had occasion to note the existence of elements of “suggestiveness inherent in any showup identification procedure.” (People v. Lindsey (1979), 72 Ill. App. 3d 764, 776, 391 N.E.2d 382, 391; see Stovall v. Denno (1967), 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967.) However, the Stovall test of totality of the circumstances makes it essential that we approve of the procedure here. The Stovall test “permits the admission of the confrontation evidence if, despite the suggestive impact, the out-of-court identification possesses certain features of reliability.” (Manson v. Brathwaite (1977), 432 U.S. 98, 110, 53 L. Ed. 2d 140, 151, 97 S. Ct. 2243, 2251.)

“In other words, evidence of an unnecessarily suggestive identification may nevertheless be admitted at trial if reliability of the identification, under the totality of circumstances, is shown. The Supreme Court in Manson further held that in assessing the reliability of an identification, the factors set out in Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411, 93 S. Ct. 375, are to be considered. Those factors are ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.’ ” People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, 1317, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

Considering the above factors as related to this case, we hold that the out-of-court identification by Spells was reliable under the totality of the circumstances.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ROMITI and LINN, JJ., concur.


text:
    PATRICIA BAKER, Plaintiff-Appellant, v. LAWRENCE W. ALLEN, M. D., Defendant-Appellee.
    First District (4th Division)
    No. 80-2923
    Opinion filed March 11, 1982.
    Rehearing denied April 15, 1982.
    Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner & Associates, and Goldberg & Goldberg, both of Chicago, for appellant.

      Clausen, Miller, Gorman, Caffrey & Witous, of Chicago (James T. Ferrini, James O. Nolan, and Michael J. Carrigan, of counsel), for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Patricia Baker, appeals the trial court’s dismissal of her complaint under section 21.1 of “An Act in regard to limitations” (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) (hereinafter referred to as the Limitations Act).

Plaintiff’s complaint, filed on December 1, 1978, alleged that on November 6,1973, she employed defendant, Lawrence W. Allen, M.D., a specialist in oncology, to cure her of Hodgkin’s lymphoma. Defendant informed plaintiff that immediate chemotherapy was needed to treat her illness. Plaintiff inquired whether there were any risks, dangers or complications involved. Defendant told plaintiff that it was necessary treatment for her illness and that it would have no long-term effect. Baker, relying on defendant’s representations, began the chemotherapy program and remained on it for 6 months until May 5, 1974.

On December 6, 1976, plaintiff discovered that she had developed aseptic necrosis of her femoral head which is a long-term effect of the chemotherapy. As a result of the aseptic necrosis, on October 27, 1977, plaintiff had to undergo arthroplasty of her right hip. On September 21, 1978, she underwent the same surgical procedure on her left hip.

In her appeal, plaintiff raises the following issues for review: (1) whether her cause of action was timely filed, and (2) whether she has been deprived of property without due process of law.

We affirm the trial court.

Plaintiff contends the trial court erred by dismissing her complaint as untimely. Further, plaintiff asserts that the Limitations Act, as amended (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), should not be retroactively applied to bar a cause of action which was discovered on or about December 6, 1976, but which was caused by acts beginning on November 6, 1973. Plaintiff submits that her action was filed on December 1,1978, less than 2 years after discovering her injury. ;■

In 1976 the Limitations Act was amended because of the medical malpractice crisis (see Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54), to provide that no actions could be filed more than 2 years after the claimant knew or through the use of reasonable diligence should have known of the injury, but in no event could the action be brought more than 4 years after the date on which the alleged act occurred. Illinois follows the generally accepted rule that an amendment shortening the period in which suit may be filed will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action.

We must determine whether plaintiff had a reasonable amount of time after the amendment’s effective date (September 19,1976) in which to file her action. Plaintiff, after she knew of the occurrence, had 2 years in which to bring her action. She discovered the aseptic necrosis on December 6, 1976. Even though plaintiff filed her suit on December 1, 1978, she still did not file within the prescribed period in the Act because it was more than 4 years after the date of her last treatment (May 5,1974). The 4-year period expired on May 5,1978; therefore, plaintiff’s action was barred. Giving the amendment to the Act the most liberal construction, we find that plaintiff, here, had a 17-month period (from the date of discovery, December 6,1976, to the final date in which she could file her action, May 5, 1978) to bring her suit. (See Charles v. Meyer Medical Group, S.C. (1981), 96 Ill. App. 3d 275, 421 N.E.2d 334.) Accordingly, the trial court did not err by dismissing plaintiff’s suit.

Plaintiff also contends that by retroactively applying the amendment to the Act to her cause of action, she was deprived of property without due process of law. Plaintiff asserts that her action with regard to the left femoral head was barred before the injury occurred.

We disagree with plaintiff’s contention. This contention has been foreclosed by our supreme court’s decision in Anderson v. Wagner (1979), 79 Ill. 2d 295,402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54. The supreme court found no due process violation in our statute. Citing an Arkansas Supreme Court case, the court stated:

“ ‘Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment.’ (Owen v. Wilson (1976), 260 Ark. 21, 24-25, 537 S.W.2d 543, 545.)” (79 Ill. 2d 295, 311.)

In Owen v. Wilson, the court held that a claimant is not denied due process of law where a reasonable period of limitation has barred the claim without awareness by the claimant that he has been injured. (Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-12.) The Anderson court noted that although such a result may seem harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. Keeping this in mind, the supreme court found no due process violation.

We hold that applying the Limitations Act in this case does not deny plaintiff due process of law.

Plaintiff cites Moore v. Jackson Park Hospital (1981), 101 Ill. App. 3d 1009, 428 N.E.2d 1110, as additional authority for her argument. However, Moore supports the general rule that a statute will not be retroactively applied unless there exists a reasonable amount of time after its effective date for filing of claims which existed prior thereto. (101 Ill. App. 3d 1009,1013-14.) In Moore, we found that no reasonable amount of time existed after the amendment’s effective date within which to bring her claim. In the instant case, plaintiff had a reasonable amount of time after the effective date of the amendment (September 19, 1976) to the final date in which she could file her action (May 5, 1978).

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

JIGANTI and LINN, JJ., concur.


text:
    HERITAGE/PULLMAN BANK AND TRUST COMPANY, Trustee, et al., Plaintiffs-Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY et al., Defendants—(G. W. OLSON, JR. & SONS, Defendant-Appellee.)
    First District (4th Division)
    No. 81-305.
    Opinion filed March 11, 1982.
    William J. Harte, Ltd., and William T. Rodeghier, both of Chicago, for appellants.

      Diane M. Bruzas and Joel H. Greenburg, Ltd., both of Chicago, for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiffs, Heritage/Pullman Bank and Trust Company (Heritage/ Pullman), Elefteríos Stefantos and Kassiani Stefantos, appeal an order of the trial court striking their second amended petition for adjudication of lien which also dismissed the action and required plaintiffs to pay a public adjuster a portion of partial settlement proceeds. The sole issue for review is whether the second amended petition states a cause of action.

We reverse and remand.

Heritage/Pullman is trustee and Elefteríos and Kassiani Stefantos are sole beneficiaries of a land trust in property located in Homewood, Illinois, and operated as the Southgate Shopping Center. Defendant, State Farm Fire and Casualty Company (State Farm), had insured the property against loss to the amount of $461,200. On January 22, 1979, while the policy was in effect, the roof of the building collapsed as a result of heavy snow. The property was damaged to the extent of $233,295.95 with an additional loss of $2,613 for guard service to protect the property from further damage.

On January 29,1979, Elefteríos Stefantos entered into a contract with G. W. Olson, Jr. & Sons (Olson) which provided as follows:

“I hereby employ G. W. Olson, Jr. & Sons, to assist in the adjustment of collapse claim for loss and damage by fire which occurred on the 22 day of January 1979 at_ and for their services rendered and to be rendered I hereby assign and set over unto G. W. Olson, Jr. and Sons, ten per cent of the amount of agreed loss & make tempory [sic] repairs & shore.”

The contract was on a form provided by Olson and was signed by Olson, Jr., and Elefteríos Stefantos.

Following negotiations between State Farm and Olson, State Farm offered to pay $75,062. Plaintiffs did not accept this offer because it was unsatisfactory. They retained an attorney who eventually negotiated a settlement in the amount of $137,976 in partial payment of the claim. Olson sent a lien notice to plaintiffs claiming $15,412. Plaintiffs were unable to negotiate the settlement draft because Olson, one of the payees, refused to endorse the draft. Plaintiffs filed a petition, an amended petition, and a second amended petition for adjudication of lien. The trial court sustained motions to strike each petition. On the motion to strike the second amended petition, the court ordered the second amended petition dismissed and ordered Stefantos to pay Olson $15,412. Plaintiffs appeal this order on the theory that the second amended petition for adjudication of lien states a cause of action entitling them to relief.

An action should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts would be proved under the pleadings which would entitle plaintiff to relief. (J. J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407, 365 N.E.2d 721, 723.) A motion to dismiss admits all facts well pleaded, together with all reasonable inferences which can be drawn from them for purposes of such motion. (J. J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407.) Upon review a court must determine whether the allegations of the amended complaint when interpreted in the light most favorable to the plaintiff are sufficient to set forth a cause of action upon which relief may be granted. J. J. Harrington & Co. v. Timmerman (1977), 50 Ill. App. 3d 404, 407.

Olson’s claim of a lien against the funds represented by the State Farm draft is based upon a written agreement between Olson and Stefantos. By the terms of that agreement, Stefantos assigned 10% of the agreed loss in exchange for Olson’s services in adjusting the loss with Stefantos’ insurer. The second amended petition disputed Olson’s claim to the 10% assignment by alleging that Olson rendered no services in connection with the tendered amount, and further alleged that Olson’s services never resulted in an agreed loss satisfactory to plaintiffs. Where parties by their own contract create a duty, they must abide by the contract and make the promise good. (Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 187, 64 N.E.2d 477, 479, cert, denied (1946), 327 U.S. 804, 90 L. Ed. 1029, 66 S. Ct. 968.) We hold that the second amended complaint states a cause of action because it alleges that Olson never performed the services which entitled it to compensation. If this allegation could be proved, then plaintiffs would be entitled to the relief prayed for in their petition.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

JIGANTI and LINN, JJ., concur.


author: JUSTICE ROMITI

text:
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Plaintiff-Appellant, v. NATIONAL BOULEVARD BANK OF CHICAGO, Trustee, et al., Defendants.-(NATIONAL BOULEVARD BANK OF CHICAGO, Trustee, et al., Defendants-Appellees.)
    First District (4th Division)
    Nos. 81-1531, 81-1582 cons.
    Opinion filed March 11, 1982.
    McDermott, Will & Emery, of Chicago (Robert T. Palmer, of counsel), for appellant.

      Robert H. Hirsch, of Chicago, for appellees.
   JUSTICE ROMITI

delivered the opinion of the court:

Plaintiff, First Federal Savings and Loan Association, filed a complaint in chancery to foreclose a mortgage on certain property that was in the process of being constructed, alleging that defendants were in default in certain specified respects. Defendants answered, denying they were in default, and raised certain affirmative defenses including breach of a fiduciary obligation, breach of contract, unclean hands and fraud. Plaintiffs filed no reply to the affirmative defenses but instead moved to be put in possession of the premises. At the hearing on the motion, the trial court, after hearing evidence, found “with regard to the pending motion only” that the defendants were in default with regard to the mortgages. The trial court, however, refused to put the mortgagee in possession. Instead, on defendants’ motion, it appointed a receiver, setting the receiver’s bond at $20,000 and defendants’ bond at $10,000. The plaintiff appeals, contending (1) the trial court erred in refusing to put it in possession; (2) the trial court erred in appointing a receiver; (3) the bonds are insufficient. We find no error and affirm.

Plaintiff, relying on Bliesener v. Baird & Warner, Inc. (1967), 88 Ill. App. 2d 383, 232 N.E.2d 13; Lawn Savings & Loan Association v. Quinn (1967), 81 Ill. App. 2d 304, 225 N.E.2d 683; Wiemer v. Havana National Bank (1978), 67 Ill. App. 3d 882, 385 N.E.2d 340, appeal denied (1979), 75 Ill. 2d 595, section 5 of “An Act in relation to the right of mortgagees * e (Ill. Rev. Stat. 1979, eh. 95, par. 22b.55) argues that it had an unassailable right to enter upon and take exclusive possession particularly in light of the provision in the mortgage permitting such possession. None of these authorities support plaintiff’s contention. In Bliesener and Lawn the issue was whether a mortgagee seeking foreclosure because the mortgagor was in default could interfere with the lease of the property by the mortgagor or eject the tenant. In neither case was there any dispute that the mortgagor was in default nor were any affirmative defenses raised. In the present case, on the other hand, not only have affirmative defenses been raised but since the plaintiff filed no reply they stand admitted. (Ill. Rev. Stat. 1979, ch. 110, par. 40; Union Drainage District Number One v. Purdy (1976), 39 Ill. App. 3d 862,350 N.E.2d 865; 30 Ill. L. & Prac. Pleading §82 (1957).) In Wiemer, the plaintiff was suing the bank for depriving her of the use of the premises. The court held she was not entitled to damages for loss of possession since the trust agreement expressly granted possession of the entire property to defendant and her continued residence was by defendant’s sufferance and not by claim of right; in addition, as the court pointed out, even if she were entitled to possession under the trust deed, her possessory right would terminate if she defaulted on the debt or otherwise breached the trust agreement. Since plaintiff failed to show that she was not in default or that she was otherwise entitled to occupy the premises, she could not recover damages.

Section 5 of “An Act in relation to the rights of mortgagees * ° provides the trial court may place the mortgagee in possession if satisfied there is a reasonable probability that plaintiff in the foreclosure proceedings will prevail on final hearing of the cause. Since as already noted the plaintiff has admitted the truth of defendants’ affirmative defenses and has not contested the sufficiency of these defenses, there is no probability, at present, that plaintiff will prevail on final hearing. Accordingly, under section 5 it would have been improper for the trial court to have placed plaintiff in possession. Nor can we agree that the provision in the mortgage purporting to entitle plaintiff to possession upon default can be considered to entitle plaintiff to possession where plaintiff has admitted the truth of affirmative defenses raised in the foreclosure action. In any event, it is established that a receiver will be appointed by the court where it is in the best interests of all parties, even when contrary to the provisions of the contract. (Firebaugh v. Seegren (1933), 269 Ill. App. 47.) Here the trial court properly determined that it was in the best interests of all the parties that a receiver be appointed to protect the security of the property and manage it.

Plaintiff’s contentions that the appointment of the receiver was improper because (1) defendants failed to show a likelihood of success on the merits; and (2) the appointment was contrary to the purpose of receivership and the bonds were insufficient are also without merit. As already discussed, under the present state of the pleadings, there is more than a likelihood that defendants will succeed on the merits since plaintiff has admitted the truth of the affirmative defenses.

The principal purpose of appointing a receiver is to protect and preserve the property for the benefit of all and to secure the property so that it may be subjected to such order or decree as the court may make. (People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 277 N.E.2d 844; 31 Ill. L. & Prac. Receivers §7 (1957).) Plaintiff does not deny that the property needed to be secured. Rather plaintiff’s basic contention is that the court could have put plaintiff in possession to supply security. But, as this court has already ruled, the trial court did not err in refusing to place plaintiff in possession.

Plaintiff further contends that defendants improperly sought receivership as a primary rather than an ancillary remedy to obtain the use of receiver certificates to obtain funds to complete the construction of the buildings and that in fact the receiver was not authorized by the trial court’s order to issue certificates. It is true that receivership is only an ancillary remedy. (Stone v. Stone (1971), 1 Ill. App. 3d 806, 275 N.E.2d 205.) Here the receivership is ancillary to the foreclosure proceédings. Since the court was justified in appointing a receiver to secure the property, and since there has been no evidence that the receiver has issued certificates, this court will not rule on the question whether the trial court’s order was sufficient to permit the issuance of receiver certificates.

Finally, plaintiff contends that the trial court abused its discretion in appointing a receiver because bonds set for the receiver and defendants are inadequate. Plaintiff does not seek to have the bonds increased; rather, plaintiff only seeks to have appointment overturned. Nor does plaintiff suggest what the bonds should be. It was ruled in Hubbartt v. Frank (1976), 36 Ill. App. 3d 529, 344 N.E.2d 496, that while it is error to appoint a receiver without requiring a bond from the moving party or formally finding that no bond should be required, where proper grounds exist for the appointment of a receiver pendente lite, the failure to comply with these requirements would not render void the entire order appointing the receiver. Still less would the setting of an arguably insufficient bond render the order appointing the receiver void or voidable.

The appointment of a receiver is within the sound judicial discretion of the trial court. (People ex rel. Scott v. Pintozzi (1971), 50 Ill. 2d 115, 277 N.E.2d 844; People ex rel. Scott v. Silverstein (1980), 86 Ill. App. 3d 605, 408 N.E.2d 243.) The plaintiff has not carried its burden of showing the trial court abused its discretion in appointing the receiver.

Judgment affirmed.

JOHNSON, P. J., and JIGANTI, J., concur.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND HALL, Defendant-Appellant.
    First District (5th Division)
    No. 80-853
    Opinion filed March 12, 1982.

      Nicholas A. Dejohn and Ronald Anthony Rascia, both of Nicholas A. Dejohn & Associates, Ltd., of Chicago, and Scott Gibson, law student, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant Raymond Hall was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 — 2) and was sentenced to a term of 10 years. He appeals contending that (1) the evidence is not sufficient to prove his guilt beyond a reasonable doubt; (2) he was denied a fair trial when the State improperly cross-examined him about another crime unrelated to this prosecution, and (3) he was deprived of a fair trial by the improper closing arguments of the State.

The following pertinent evidence was adduced at trial.

Andrew Robertson, the owner of the Harvey ATC Cab Company, was dispatched to pick up a passenger in front of a lounge at 159th and Dixie Highway in Harvey, Illinois, at 12:30 a.m. on May 22, 1978. Robertson testified that defendant was standing in a well-lit area when he arrived at the lounge; that as defendant entered the cab the inside light went on and Robertson observed him for about a minute.

He described defendant as being approximately 5 feet 7 inches tall, weighing between 150 and 160 pounds and appearing to be in his late forties or early fifties, wearing a long green army coat, a billed cap, gloves, and carrying a green bag with two flaps on it.

After driving for six blocks, he heard a click. He turned to see defendant pointing a gun at the right side of his head. Defendant told Robertson to drive straight ahead and not to try anything or else defendant would shoot him. He ordered Robertson to continue driving on various streets. When another car pulled alongside as the cab stopped for a traffic light at the intersection of 147th and Kedzie, defendant pointed the gun at Robertson’s ribs. He looked at defendant at this time. The lighting from the street and the traffic lights illuminated the area very well. When the traffic light changed Robertson continued to drive. Defendant ordered him to pull the microphone cord out of the cab radio, which he pretended to do, and defendant said, “If the dispatch answers you, I’m going to kill you.”

Defendant commented that he had never seen Robertson before, and asked him if he knew the Jamaican driver, stating, “You got a Jamaican working with you all over there. That’s who I wanted.” Robertson replied that he was not certain who defendant was referring to because he did not know “many of the guys.”

They were near 119th and Lafayette when defendant told him to park the cab, move slowly over to the passenger seat, remove all of his clothes and get down on the floorboard. Defendant then entered the driver’s seat and drove the cab with his left hand holding the gun in his right hand.

He drove for 15 minutes and then parked the cab at 109th and Racine. When the defendant pulled off his gloves, Robertson saw that he did not have fingers on his left hand, and that there were three or four rings on the nubs of that hand. On cross-examination, Robertson admitted that he had previously testified at the pretrial hearing that it was the fingers of defendant’s right hand which were partially amputated, and that the defendant held the gun in his right hand.

Defendant searched through Robertson’s clothes and took the money out of them. He ordered Robertson to unbolt the cab radio and when Robertson threw the radio at defendant in an attempt to knock the gun out of his hand, the gun discharged. Defendant said, “Get out right now or I’ll kill you.” He then tossed Robertson’s clothes out of the cab window and drove away.

Robertson dressed and summoned a police car approximately seven minutes later. After explaining to Chicago police officers Raymond Elder and Michael Thomas that he had just been robbed, they drove through the area in an unsuccessful search for the cab. A police report was made later which described the robber as weighing 163 pounds and having black hair. The report does not have any reference to the assailant’s deformed hand.

The following day, Robertson spoke with Dan Narty, one of his drivers who had grown up in a Jamaican neighborhood in England, and when he described his assailant to Narty including the fact of the injured hand, Narty told him that Raymond Hall fit that description. Dan Narty testified that defendant was one of his regular customers and often carried a green bag.

Narty saw defendant going to the Harvey, Illinois, courthouse, a half block from the cab company headquarters, on June 6,1978 and he immediately told Robertson. After Robertson went to the courthouse and observed defendant for 10 minutes in a courtroom he called two policemen who subsequently arrested defendant.

On defendant’s behalf, a nurse at Oak Forest Hospital testified that, according to her records, defendant weighed 112 pounds on June 6,1978. His wife, Delores Hall, stated that defendant has had gray hair for the last 15 to 20 years, and that he never wore jewelry. She further testified that defendant was home with her on May 22, 1978.

Defendant testified on his own behalf that he has only one partial finger on his left hand due to an industrial accident in 1972. He cannot wear rings on his left hand due to poor circulation. He has not driven a car since his driver’s license was suspended in 1976 or 1977.

On direct examination he was asked about his ability to drive at all:

Q. “Now, are you able to drive. You’re able to drive?
A. If I drove a car, it would have to be with my right hand.
Q. Can you drive with your left hand?
A. No, that’s impossible.” (Emphasis supplied.)

Defendant earlier related that on June 6, 1978, he was going to the Traffic Court in Harvey, Illinois, for a traffic ticket. On cross-examination, over defense objections, the prosecution inquired into the nature of the case. Defendant testified that he was going to court to answer a 1978 charge of drunk driving.

He denied, however, that he was driving the car involved when he was arrested for drunk driving and stated that he had only been waiting in the passenger’s seat while the car owner went to find a tow truck. He admitted that when the police arrived at the scene he was arrested for drunk driving.

The State questioned defendant concerning the incident:

“Q. Regardless of the charge itself, sir, you were going because of a driving ticket, is that correct?
A. That’s correct, sir.
Q. So that you did in fact drive back in 1978? Is that correct?
A. That is incorrect, sir.
Q. O.K. then you were charged with a charge that you were not driving with? [Sic.]
A. I was arrested in a car, sitting in a car.”

During cross-examination of defendant, the State made five separate references to the defendant’s drunk driving charge. Some of the questions were similar to the following: “Q. And they charged you with drunk driving, is that correct? A. Correct.” The court overruled repeated objections to the relevancy of this testimony and stated:

“And I had ruled on the matter of relevancy and in the event it isn’t stated for the record I will state it for this time. One of the issues before the jury has to do with Mr. Hall’s physical condition, and his ability, due to his hand which had been partially amputated, to drive a car. The State’s line of questioning as to driving a motor vehicle while intoxicated is relevant as to that issue.” (Emphasis added.)

In rebuttal, Harvey police officer Bruce Warrer testified that he had observed defendant driving into a ditch on April 8,1978. He stated that he had the car in sight at all times and no one fled from it. He found defendant slumped over the steering wheel of a car which had been loaded with so many belongings that there was no room for any other passenger.

Opinion

Defendant first contends that he was not proved guilty beyond a reasonable doubt and in support of this contention argues that the evidence adduced at trial shows:

(1) that the assailant’s injured hand is omitted from the description given in the police report; (2) that there is a 40-pound discrepancy between the defendant’s and the described assailant’s weight; (3) that his hair is gray and not black as the police report reflects; and (4) that Robertson’s identification of defendant was unduly suggested to him by a third person, Dan Narty.

It is understandable that untrained persons may give varying descriptions of another person’s height, weight or color of hair. Discrepancies in testimony, such as those argued by defendant, do not destroy the credibility of the witnesses but go only to the weight to be afforded their testimony (People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623) and, to the extent that their testimony is conflicting, it is the province of the trier of fact to resolve the conflict and decide which witness or witnesses will be believed (People v. Hine (1980), 88 Ill. App. 3d 671, 410 N.E.2d 1017), particularly if the witness is questioned at different times, under trying and difficult conditions. People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174.

Furthermore, unless the evidence is so improbable as to raise a reasonable doubt of guilt (People v. Dempsey (1980), 82 Ill. App. 3d 699, 402 N.E.2d 924), it is well settled that a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence and the credibility of witnesses. People v. Sanders (1980), 86 Ill. App. 3d 457, 407 N.E.2d 951.

In the present case, the evidence produced at trial, although conflicting, was not so improbable as to raise a reasonable doubt of defendant’s guilt. We therefore will not substitute our judgment for that of the trier of fact as to defendant’s guilt.

Defendant also argues that Robertson’s identification of him was unduly suggested to Robertson by a third person, Dan Narty. As a general rule, when the identity of an accused is at issue, the testimony of a single witness is sufficient if (1) the witness is credible, and (2) the accused is viewed under circumstances which would permit positive identification to be made. People v. Richard (1980), 90 Ill. App. 3d 322, 413 N.E.2d 5.

In the present case, the evidence adduced at trial discloses that the victim had an excellent opportunity to observe his assailant at close proximity and for an extended period of time during the commission of the robbery. Robertson then described the defendant to Narty because of the defendant’s own reference to a Jamaican driver, and only then did Narty remember the defendant and his name.

We note that although Narty pointed defendant out to Robertson following a chance encounter, only Robertson followed the defendant to the Harvey courthouse where he alone identified the defendant, and summoned police to arrest him. Under these circumstances, we conclude that defendant’s identification was independent and free from suggestive influence. See People v. Williams (1980), 90 Ill. App. 3d 524, 413 N.E.2d 60.

Defendant next contends that the trial court erred in allowing the State to cross-examine him concerning the drunk driving charge.

Generally, evidence that a defendant has committed an offense which is separate and distinct from the offense for which he is being tried is not admissible because of its prejudice. (People v. Turner (1979), 78 Ill. App. 3d 82, 396 N.E.2d 1139.) Even when the evidence of other crimes has substantial independent relevancy, this purpose can be outweighed by the danger that the jury will convict a defendant because it appears that he is of bad character and therefore probably committed the crime, rather than because of the evidence of his guilt or innocence in the case on trial. People v. Butler (1975), 31 Ill. App. 3d 78, 334 N.E.2d 448.

Nevertheless, evidence of an “other crime” is admissible, if relevant, to prove a material fact only if the probative value of such evidence outweighs its prejudicial effect. People v. Tuczynski (1978), 62 Ill. App. 3d 644, 378 N.E.2d 1200.

In the present case, the record is clear that the trial court allowed cross-examination on the drunk driving charge in order to prove that defendant was able to drive. However, defendant had already admitted on direct examination that he could drive a car with his right hand, even though he testified he could not drive with only his injured left hand.

In addition, although there was testimony that showed that defendant possessed a valid driver’s license for four or five years after the disabling accident, he only denied being the driver of a car on one occasion in 1978. He did not deny that he was able to drive on that date.

The discrepancies apparent in this record as to defendant’s weight, height and color of hair, the failure of Robertson to include any reference to defendant’s injured hand, and as to whether any rings were or could be worn on the nubs of the defendant’s injured hand do not destroy the credibility of the witnesses, but go only to the weight to be afforded their testimony. (People v. Montgomery (1977), 51 Ill. App. 3d 324, 366 N.E.2d 623.) However, we find that the testimony concerning the drunk driving charge improperly lessened the weight of defendant’s testimony in a close case and was inadmissible. We believe that this created a danger that the jury might infer that defendant was of bad character and therefore probably committed the crime rather than objectively weighing the conflicting evidence presented.

We note that under our concept of a fair and impartial criminal trial, it is elementary that a defendant is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. People v. Pitts (1971), 1 Ill. App. 3d 120, 273 N.E.2d 664.

In the present case, evidence of defendant’s drunk driving charge was not relevant to prove an issue of material fact and was therefore inadmissible. We conclude that because evidence of a prior charge was admitted against the defendant in this case, he did not receive the fair and impartial trial to which he was entitled.

Finally, defendant argues that the prosecutor committed reversible error by accusing the defense counsel (1) of attempting to testify, (2) of fabricating a defense, (3) of interjecting personal beliefs, and (4) of stating that the defendant witness was “well coached” during his closing argument.

With one exception, the pertinent portions of the prosecutor’s argument were not objected to by the defense. However, it is well established that allegedly prejudicial remarks made during closing arguments are waived when no objection is made. (People v. Calderon (1980), 85 Ill. App. 3d 1030, 407 N.E.2d 840.) Consequently it is our opinion that defendant has not preserved those issues for review by this court.

The one issue of alleged prosecutorial misconduct which was preserved occurred when the prosecutor referred to the defense counsel’s cross-examination of Robertson. Robertson had testified on direct examination that defendant carried a green bag. On cross-examination, the defense counsel asked Robertson:

“Q. Now you stated when you arrived at that location you saw a man and he had a blue looking bag with two flaps on it, is that accurate?
A. It was.”

During closing argument, the prosecutor made the following statements to the jury:

“Now when Mr. Stone came up and asked him a question he said, ‘Now isn’t it true that you said this guy had a coat and a hat and a blue bag in his hand?’ Just brushed over the blue bag real fast, didn’t he? All of a sudden in some of your minds you said, ‘Whoa, first he said green,’ now he says blue. But see, the witness was tricked. Just throw in that word there.”

By these remarks, defendant contends that the prosecutor was charging the defense with intentionally misleading the jury by distorting the evidence. While we agree that the prosecutor’s remarks were improper, this other allegation of prosecutorial misconduct is not likely to occur again at retrial, and we need not consider it here.

For the foregoing reasons the judgment of the trial court is reversed and the cause remanded for a new trial.

Reversed and remanded.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE WILSON

text:
    THE BANK OF RAVENSWOOD, Plaintiff-Appellee, v. MICHAEL MAIORELLA et al., Defendants.—(ROBERT McNAMARA, Defendant-Appellant.)
    First District (5th Division)
    No. 80-3032
    Opinion filed March 12, 1982.
    Robert McNamara, of Chicago, for appellant, pro se.

    Paul M. Lukes, of Hoellen, Lukes & Halper, of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Defendant, Robert McNamara, appeals from all orders entered in this matter. While he has not properly enumerated the issues for review, we glean that defendant essentially believes that he was defrauded of his property and trust. However, we must preliminarily determine whether defendant has properly preserved this matter for appeal. The essential facts follow.

An action to foreclose the mortgage on property located at 5448 North Nagle was instituted on August 29,1972. Defendant thereafter filed a counterclaim against plaintiff, Michael and Violet Maiorella and certain other individuals. Numerous pleadings were filed in the intervening years and on August 4, 1978, plaintiff filed a motion for summary judgment to defendant’s second amended counterclaim. In January 1979, this motion was granted on behalf of all counterdefendants, and the second amended counterclaim was dismissed for lack of equity.

Subsequently, defendant filed a “petition to vacate and set aside” the January 16, 1979, order, or in the alternative, petition for rehearing and leave to respond to plaintiff’s motion for summary judgment. This petition was denied on November 7, 1979. Defendant did not appeal this order within the 30-day period. However, on January 4, 1980, defendant filed with the trial court a motion for extension of time to file notice of appeal wherein he sought leave to file an appeal of the January 16, 1979, and November 7, 1979, orders. The court denied this motion on January 14.1980, finding that it lacked jurisdiction to hear this motion. Defendant filed a notice of appeal on this denial.

On February 21, 1980, a judgment for foreclosure and sale was entered against defendant, which was a final order. Defendant did move to vacate the judgment and/or stay its execution, however, the record does not disclose any ruling on this motion and no notice of appeal was filed.

Sale of the property in question was held on April 3, 1980, with plaintiff being the successful bidder. An order approving the sheriff’s report of sale and distribution was signed on April 29,1980, and no appeal was taken from this order. An order of writ of assistance was entered on November 10, 1980, and defendant was evicted from the premises on November 14, 1980. Defendant filed his notice of appeal on November 21.1980.

Opinion

Preliminarily, it should be noted that plaintiff questions the jurisdiction of this court to consider the propriety of the trial court’s orders entered before November 10, 1980, and the order of writ of assistance entered on November 10,1980.

An order or judgment disposing of or terminating the litigation or some definite part of it on the merits of the cause is final and appealable (Rotogravure Service, Inc. v. R. W. Borrowdale Co. (1975), 36 Ill. App. 3d 606, 344 N.E.2d 554), and notice of appeal must be filed within 30 days after the entry of the final judgment appealed from or within 30 days after entry of an order disposing of a timely post-trial motion. (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a).) Further, any judgment, order or decree from which an appeal could have been taken may not be reviewed on appeal from a subsequent order entered in the matter. (Harty v. Kirby (1975), 26 Ill. App. 3d 688, 325 N.E.2d 406; 2 Ill. L. & Prac. Appeal & Error §654 (1953).) Where no timely appeal is taken from a final and appealable order this court is without jurisdiction to consider the propriety of that order. Kovacevic v. City of Chicago (1977), 47 Ill. App. 3d 674, 365 N.E.2d 104.

Accordingly, all final orders entered prior to November 21, 1980, are precluded from being considered by this court. This would encompass (1) the order of summary judgment entered in favor of all counter-defendants on January 16,1979, which specifically included language that it was final and appealable; (2) the judgment for foreclosure and sale entered on February 21, 1980, which also specifically included language as to its finality; and (3) the order approving the sheriff’s report of sale and distribution dated April 29, 1980. The only order defendant timely appealed from was the writ of assistance entered on November 10,1980. However, this writ was only incidental to the ultimate rights already adjudicated and not timely appealed from in this matter. (See Harty v. Kirby.) Having failed to file a timely notice of appeal in those matters which finalized rights, we cannot entertain discussion of the rights of the parties on appeal. (Champaign County Bank & Trust Co. v. Brewer (1978), 63 Ill. App. 3d 490,380 N.E.2d 54.) The writ of assistance followed merely for the purpose of carrying out or executing the matters which had been determined by the previous orders. (Perrell v. Liebman (1930), 257 Ill. App. 133.) As such, we must dismiss this appeal,

Moreover, defendant’s brief is deficient in a number of respects. (See Ill. Rev. Stat. 1979, ch. 110A, par. 341.) It does not list the issues for review, or provide a statement of the facts. This brief also does not contain any points or authorities or statement of appellant’s argument. A reviewing court is entitled to have issues clearly defined, to be cited pertinent authorities, and is not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and research upon the court. (Thanopoulos v. Pickens (1980), 87 Ill. App. 3d 906, 409 N.E.2d 477.) Failure to properly or informatively state errors relied upon for reversal makes it impossible for a reviewing court to determine issues sought to be raised and justifies dismissal of the appeal. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 371 N.E.2d 294.) As such, where a brief submitted by defendant on appeal fails to articulate an organized and cohesive legal argument for the court’s consideration and fails to comply with Supreme Court Rule 341, in that it contains no introductory paragraph, statement of facts, citation of points and authorities and legal arguments, the appeal must be dismissed. 47th & State Currency Exchange, Inc.

While we are sympathetic to defendant’s plight in this matter, our hands are legally bound, and we cannot reach the merits of his appeal. For the reasons enumerated above, this appeal must be dismissed.

Appeal dismissed.

SULLIVAN, P. J., and MEJDA, J, concur.


author: JUSTICE McGLOON

text:
    EDWARD KRISTENSEN et al., Plaintiffs-Appellants, v. GERHARDT F. MEYNE CO. et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2323
    Opinion filed March 15, 1982.

      Saul R. Leibowitz, of Reilly, Sentman, Woolley & Leibowitz, and John C. Sands, both of Chicago, for appellants.
    C. Roy Peterson and Hugh C. Griffin, both of Lord, Bissell & Brook, Marvin Riman, of Sweeney & Riman, Ltd., and Kevin T. Martin, William J. Rogers, and Ruth E. VanDemark, all of Wildman, Harrold, Allen & Dixon, all of Chicago, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Edward Kristensen and Fred Gorr (plaintiffs) brought an action under the Structural Work Act against R.A. Martin Co., Inc. (R.A. Martin). R.A. Martin raised as an affirmative defense that plaintiffs were general employees of R.A. Martin or, in the alternative, that they were special or loaned employees of R.A. Martin.

At the jury instructions conference, R.A. Martin requested and was granted leave to submit to the jury special interrogatories to determine the employment status of plaintiffs. In its answer to the interrogatories, the jury found that plaintiffs were not R.A. Martin employees. It did, however, find that plaintiffs were special or loaned employees of R.A. Martin at the time of their accident. The jury then returned a general verdict in favor of plaintiffs and against R.A. Martin. Because the Workers’ Compensation Act immunes a borrowing employer from liability resulting from any common law or statutory suit brought by a borrowed employee, the trial judge refused to enter judgment on the general verdict for plaintiffs. Rather, it entered judgment in favor of R.A. Martin. Plaintiffs now appeal.

On appeal, plaintiffs argue that: (1) the trial court erred in refusing to enter judgment on the general verdict for plaintiffs and against R.A. Martin; and (2) their original amended complaints should not have been allowed into evidence.

We affirm.

Western Heating and Air Conditioning Co., Inc. (Western Heating), is a residential heating and air conditioning company. R.A. Martin Co., Inc. (R.A. Martin), is a commercial ventilation business. The two companies share a facility in Maywood, Illinois. They have common ownership and a common set of officers and directors and the same controller. Each has its own employees and its own job superintendent.

At trial, plaintiff Edward Kristensen frequently and persistently testified that he was hired by Western Heating and had worked there for seven years. At the same time, he stated that, except for one month, his seven years as a Western Heating employee were spent doing commercial installations. With the exception of the one month he spent doing residential work, all of his work was supervised by Roy Hart, the R.A. Martin superintendent. As Kristensen’s supervisor, Hart had the authority to fire him.

Fred Gorr was hired by Western Heating in the 1950’s to do residential installation. During his 26 years at Western Heating, Gorr did only residential work. Gorr was supervised by Joseph Kraft, a Western Heating supervisor.

On January 15,1975, Kristensen reported, as he normally did, to Roy Hart. Hart instructed Kristensen to go to the Village of Bartlett waste water treatment facility. Bartlett was a large commercial job on which Kristensen had worked 15 or 20 times in the previous six-month period.

On the same morning, Gorr reported to his supervisor, Kraft. Kraft informed Gorr that he had no work for him that day. Gorr was given the option of reporting to Roy Hart to see if there was any commercial work available. Gorr reported to Hart and was sent to the Bartlett facility with Kristensen. Their assignment was to install a 40-pound bypass damper in a heating duct.

In order to install the damper, it was necessary for Kristensen and Gorr to erect a scaffold. Normally, four planks form the floor of the scaffold. It was impossible for the men to station the scaffold against the wall because there was piping in the way, so they placed two of the four planks on a higher rung. They placed the 40-pound damper on the planks on which they stood. Suddenly, one of the planks gave way and both men fell to the concrete floor. Both sustained serious injuries.

Kristensen and Gorr filed complaints against R.A. Martin, Western Heating, Gerhardt F. Meyne Co. (general contractor of the Bartlett job), and A.J. Lowe & Sons, Inc. (subcontractor of the sheet metal job at the Bartlett plant).

At the jury instructions conference, R.A. Martin requested and was granted leave to submit special interrogatories to the jury for the purpose of determining the employment status of plaintiffs. In answer to the special interrogatories, the jury found that Kristensen and Gorr were not R.A. Martin employees. It did, however, find that they were loaned employees of R.A. Martin at the time of the accident.

The jury returned a verdict in favor of Kristensen and against R.A. Martin in the amount of $105,000 and for defendant Gerdardt F. Meyne Co. and A.J. Lowe & Sons, Inc., and against Kristensen. The jury also returned a verdict in favor of Fred Gorr and against R.A. Martin in the amount of $140,000 and in favor of Gerhardt F. Meyne Co. and A.J. Lowe & Sons, Inc., and against Gorr.

Eased on the jury’s finding that R.A. Martin was a borrowing employer and, therefore, immune from liability under the Workers’ Compensation Act, the trial court refused to enter judgment on the general verdict for plaintiffs and against R.A. Martin. Instead, it entered judgment in favor of all defendants, including R.A. Martin.

First, plaintiffs argue that the trial court erred in submitting four interrogatories to the jury. Initially, relying on Albaugh v. Cooley (1980), 88 Ill. App. 3d 320, 410 N.E.2d 873, plaintiffs contend that the use of special interrogatories as permitted by the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65) constitutes a legislative usurpation of judicial functions. Albaugh recently was overruled by the Illinois Supreme Court. (Albaugh v. Cooley (1981), 87 Ill. 2d 241, 429 N.E.2d 837.) As a result, we need not further consider the question of the constitutionality of section 65.

Alternatively, plaintiffs argue that the trial court should have allowed the general verdict in their favor to stand because the special interrogatories were ambiguous and because the jury’s answers to the second two interrogatories conflicted with its answers to the first two interrogatories. The first two special interrogatories asked:

“Was the plaintiff, Fred Gorr, an employee of the defendant, R.A. Martin Co., Inc. at the time of the occurrence?” and “Was the plaintiff, Edward Kristensen, an employee of the defendant, R.A. Martin Co., Inc. at the time of the occurrence?”

The second two special interrogatories asked:

“Was the plaintiff, Fred Gorr, at the time of the occurrence, wholly subject to the control and direction of defendant R.A. Martin Co., Inc., and free during such time from the direction and control of third party defendant, Western Heating and Air Conditioning Co., Inc.?” and
“Was the plaintiff, Edward Kristensen, at the time of the occurrence, wholly subject to the control and direction of defendant, R.A. Martin Co., Inc., and free during such time from the direction and control of third party defendant, Western Heating and Air Conditioning Co., Inc.?”

The jury answered the first two special interrogatories in the negative. The second two were answered in the affirmative.

R.A. Martin’s obvious intent in submitting the special interrogatories to the jury was to determine whether plaintiffs were general or loaned employees of R.A. Martin at the time of their accident. The distinction is extremely important. Under section 1(a)(4) of the Workers’ Compensation Act, both an employer which loans an employee to another and the borrowing employer are jointly and severally liable to the borrowed employee for any compensable injury sustained by the borrowed employee. (See Ill. Rev. Stat. 1979, ch. 48, par. 138.1(a)(4).) Because of their joint and several liability, both the loaning employer and the borrowing employer are immune from liability resulting from any common law or statutory suit instituted by a borrowed employee. See Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a).

Plaintiffs contend that the jury’s finding that plaintiffs were not employees of R.A. Martin was inconsistent with its finding that they were subject to the control and direction of R.A. Martin. This contention ignores the distinction between a general and a loaned employee. Illinois courts have recognized that an employee in the general employment of one person may be loaned to another for the performance of special work and become the employee of the person to whom he is loaned while performing the special service. (A.J. Johnson Paving Co. v. Industrial Com. (1980), 82 Ill. 2d 341, 346-47, 412 N.E.2d 477, citing Saldana v. Wirtz Cartage Co. (1978), 74 Ill. 2d 379, 385 N.E.2d 664.) The critical inquiry in determining whether one is a general or loaned employee is whether or not the employee becomes wholly subject to the control and direction of the second employer and free from the control of the original employer. Mosley v. Northwestern Steel & Wire Co. (1979), 76 Ill. App. 3d 710, 719, 394 N.E.2d 1230.

In the present action, it is undisputed that plaintiffs were general employees of either R.A. Martin or Western Heating. If they were not employees of R.A. Martin, they were of necessity general employees of Western Heating. The first two special interrogatories asked the jury whether plaintiffs were employees of R.A. Martin. The jury answered “No.” The second two interrogatories presupposed that plaintiffs were general employees of Western Heating. By asking the jury if “at the time of the occurrence” the plaintiffs were “wholly subject to the control and direction of R.A. Martin, and free during such time from the control and direction of third party defendant Western Heating,” R.A. Martin was asking the jury if at the time of the accident plaintiffs were loaned employees. The jury answered “Yes.” Although we do agree with plaintiffs that the special interrogatories could have been more clearly stated, we find the jury’s answers to the two sets of interrogatories were consistent. As loaned employees, plaintiffs were under the control and direction of R.A. Martin when the accident occurred. As general employees of Western Heating, they were free from the control and direction of their general employer at the time of the accident.

The jury’s finding that plaintiffs were loaned employees of R.A. Martin at the time of the occurrence was inconsistent with its general verdict in plaintiffs’ favor. Section 65 of the Civil Practice Act provides that “[w]hen the special finding of fact is inconsistent with the general verdict, the former controls the latter and the court may render judgment accordingly.” (Ill. Rev. Stat. 1979, ch. 110, par. 65.) A jury’s answer to a special interrogatory should not be disturbed unless it is against the manifest weight of the evidence and an opposite conclusion is clearly evident. Little v. Scheu (1968), 99 Ill. App. 2d 421, 430, 241 N.E.2d 702.

In the case of Fred Gorr, there was no evidence that he was anything other than a general employee of Western Heating. He was hired by Western Heating to do residential work. He was paid by Western. His supervisor was the Western Heating superintendent, Joseph Kraft. Clearly, he was a general employee of Western Heating. Less supported by the evidence is the jury’s finding that Edward Kristensen was a general employee of Western Heating. The evidence shows that he did primarily commercial work and that his supervisor was the R.A. Martin superintendent, Roy Hart. Kristensen testified, however, that he was hired by Western, worked for Western, was employed at Western on January 15,1975, reported to work at the shop of Western and was under the ultimate supervision of the president of Western. Based on Kristensen’s. own testimony, we conclude that the jury’s finding that he was a general employee of Western Heating was not against the manifest weight of the evidence.

Additionally, the jury’s explicit finding that both plaintiffs were loaned employees, wholly under the direction and control of R.A. Martin and free from the direction and control of Western Heating on the day of the accident, is fully supported by the evidence. The Bartlett job was unquestionably an R.A. Martin job. Kristensen testified “I was an employee of Western Heating working on a R.A. Martin job.” Since the jury’s answers to the interrogatories were consistent with each other and not against the manifest weight of the evidence, the trial court properly refused to enter judgment on the general verdict in plaintiffs’ favor.

Further, plaintiffs argue that since they filed a third amended complaint, their original complaints and pleadings were no longer part of the record and, therefore, should not have been admitted into evidence. In their original complaints, plaintiffs alleged that they were employed by R.A. Martin on the date of the accident. In their third amended complaints, they alleged that they were employed by Western Heating on that date.

Under Illinois law, prior pleadings cannot be used to test the sufficiency of the subsequent pleadings unless they are specifically adopted or referred to in a later pleadings. (Bowman v. County of Lake (1963), 29 Ill. 2d 268, 272, 193 N.E.2d 833; Consolidated Construction Co. v. Great Lakes Plumbing & Heating Co. (1967), 90 Ill. App. 2d 196, 203-04, 234 N.E.2d 378.) Although they may not be used to determine the sufficiency of a subsequent pleading, they may be admitted at trial as admissions against interest. (Texas Eastern Transmission Corp. v. McCrate (1979), 76 Ill. App. 3d 828, 833, 395 N.E.2d 624; Kleb v. Wendling (1978), 67 Ill. App. 3d 1016, 1018, 385 N.E.2d 346.) In the present case plaintiffs’ original amended complaints were presented not to test the sufficiency of their third amended complaint, but as admissions against interest.

Plaintiffs have appealed from all judgments entered against them. Their brief presents no argument pertaining to the jury verdicts and judgments against defendants Gerhardt F. Meyne Co. or A.J. Lowe & Sons, Inc. Therefore, we affirm the judgments in favor of these defendants.

For the foregoing reasons, we affirm the judgments of the circuit court of Cook County.

Judgments affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


author: PRESIDING JUSTICE CAMPBELL

text:
    WESTERN TRANSPORTATION CO., Plaintiff-Appellant, v. REPUBLIC MOLDING CORPORATION, Defendant-Appellee.
    First District (1st Division)
    No. 80-2909
    Opinion filed March 15, 1982.

      Abraham A. Diamond and Steven C. Weiss, both of Chicago, for appellant.
    James L. Alexander, of Ashcraft & Ashcraft, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Western Transportation Co., brought this action seeking to recover approximately $1,500 which is the balance that plaintiff claimed was owed by defendant, Republic Molding Corporation, for shipment of defendant’s products. The circuit court of Cook County entered judgment in favor of plaintiff in the amount of $9.99. On appeal, plaintiff contends that: (1) the trial court erred in its ruling that plaintiff failed to meet its burden of proof with respect to certain portions of the complaint and (2) the trial court erred in denying plaintiff’s motion to reopen the case for submission of further evidence, to compel defendant to produce documents and to direct defendant to produce an officer or employee of defendant for purposes of further testimony.

For the reasons set forth herein, we affirm.

Defendant, Republic Molding Corporation, is a manufacturer of plastic products and from time to time utilized plaintiff, Western Transportation Co., to transport its products to various customers in Illinois, Iowa and Indiana. In 1978, plaintiff filed a petition for reorganization under chapter XI of the Bankruptcy Act. The bankruptcy court appointed an auditor to ascertain whether any claims existed for freight charges. (See Western Transportation Co. v. Terminal Freight Cooperative Association (1981), 102 Ill. App. 3d 469, 429 N.E.2d 1264.) Following an audit of plaintiff’s records, plaintiff brought this action seeking to recover monies which allegedly were owed to it by defendant. The basis for plaintiff’s claim was that defendant had misdescribed goods which defendant had shipped via plaintiff and that, as a result of the misdescription of goods, defendant owed plaintiff an additional $1,515.43 in shipping costs.

During trial, plaintiff introduced 27 shipping orders, a work sheet indicating the amount that plaintiff claims that it is entitled to recover, an invoice and a packing slip. Following testimony and closing arguments, the court took the case under advisement and requested the parties to brief the issue of which party had the burden of proof. Subsequently, plaintiff’s motion to reopen discovery and to compel plaintiff to produce documents and to produce witnesses was denied by the court.

On October 22, 1980, the court entered its ruling and judgment in which it determined that a bill of lading is prima facie proof of the goods shipped and that this presumption should apply in the instant case where adequate discovery procedures were available. The court found that defendant had misdescribed three shipments, but that plaintiff failed to establish its damages for two of the shipments and that plaintiff had failed to establish that defendant had misdescribed any of the other shipments as claimed by plaintiff. The court noted that plaintiff failed to utilize discovery procedures which were available to it and that plaintiff did not demonstrate to the court that defendant was required to produce documents or witnesses requested by plaintiff without plaintiff’s use of proper discovery procedures. The court entered judgment in favor of plaintiff in the amount of $9.99 which represented the balance due plaintiff for the one misdescribed shipment for which plaintiff proved the amount of its damages.

Plaintiff first argues that the trial court erred in its ruling that plaintiff failed to meet its burden of proof as to all 27 shipping orders. Plaintiff concedes that a bill of lading is prima facie proof of the shipped goods described on the bill. (Bissel v. Price (1855), 16 Ill. 408.) Plaintiff also concedes that it has the burden of proof to show that the goods described on the bill of lading are different from the goods actually shipped. Plaintiff urges that since it showed that defendant misdescribed three shipments, then the burden shifted to defendant to establish that the goods properly were described for the remaining shipments involved in this action. Plaintiff argues that where the party who does not have the general burden of proof has sole possession of positive and complete knowledge which may be in the form of documents or oral testimony and which concerns the existence of facts which the party having the burden must disprove or negate, then the burden rests upon the possessor of the evidence to produce such evidence. (See Abhau v. Grassie (1914), 262 Ill. 636, 104 N.E. 1020; Shumak v. Shumak (1975), 30 Ill. App. 3d 188, 332 N.E.2d 177.) Plaintiff claims that since it is required to negate the description of goods on the bills of lading and that since defendant is in possession of knowledge of the actual goods shipped and supporting documents, then the burden of coming forward with evidence to refute plaintiff’s claims shifts to defendant once plaintiff introduces sufficient evidence to afford the court reasonable grounds for presuming that the remaining shipments were misdescribed. See Shumak v. Shumak; In re Estate of Sandusky (1943), 321 Ill. App. 1, 52 N.E.2d 285.

As plaintiff correctly concedes, a bill of lading is prima facie proof of the shipped goods described on the bill. (Bissel v. Price; see Illinois Central R.R. Co. v. Cobb, Blaisdell & Co. (1874), 72 Ill. 148.) The trial court found that plaintiff had overcome this presumption for only one shipment of the 27 shipments at issue in this case. The court refused to speculate as to which, if any, of the remaining 26 shipments were misdescribed on the basis of the proof submitted by plaintiff. On appeal, plaintiff’s theory appears to be that since it has shown that three shipments were misdescribed, although only one of the three shipments was at issue in this action, and since it has shown the previous misdescribed shipments, there is created the probability that the remaining shipments were misdescribed. Plaintiff suggests that because defendant has knowledge of whether the remaining shipments properly were described, it should be required to come forward with evidence to refute this probability that plaintiff argues it created. Plaintiff, it seems, views the shipments made by defendant to be a part of a single transaction when, in fact, the incomplete report of proceedings which was filed in this cause supports the conclusion that each of these shipments was a separate transaction. Since plaintiff has failed to file a complete report of proceedings, we must presume that the trial court was correct in its decision and that its decision was supported by the evidence. (See Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1981), 98 Ill. App. 3d 518, 424 N.E.2d 758; Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill. App. 3d 551, 411 N.E.2d 1142.) Accordingly, we affirm the trial court’s finding for plaintiff on one of the 27 shipments at issue.

Plaintiff next contends that the trial court erred when it refused to reopen the case for submission of additional evidence which plaintiff sought to obtain through court-ordered discovery and when it denied plaintiff’s motion to compel the production of documents and witnesses. Plaintiff argues that the reopening of a case for submission of additional evidence is within the sound discretion of the trial court (People ex rel. Boos v. St. Louis, Iron Mountain & Southern Ry. Co. (1917), 278 Ill. 25, 115 N.E. 854), and that in this case, the trial judge abused his discretion because the evidence which plaintiff sought to submit was material to its case. (See Gunderson v. First National Bank (1938), 296 ill. App. Ill, 16 N.E.2d 306.) Plaintiff contends that when trial is by the court without a jury, a court should not refuse to reopen the case except for the most cogent reasons. See Harper v. Johnson (1978), 61 Ill. App. 3d 190, 377 N.E.2d 1288.

We have reviewed the record and arguments of plaintiff and are not convinced that the trial court abused its discretion when it refused to reopen the case for submission of additional evidence. (See Blackwell v. City National Bank & Trust Co. (1980), 80 Ill. App. 3d 188, 399 N.E.2d 326.) Unlike the situation presented in Harper v. Johnson, plaintiff in this cause did not provide the court with a reasonable excuse as to its failure to submit the additional evidence during trial. Similarly, plaintiff has not persuaded us that the trial court abused its discretion in denying plaintiff’s motion to compel the production of documents and witnesses which was made following the close of the case. See Miceikis v. Field (1976), 37 Ill. App. 3d 763, 347 N.E.2d 320.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.