text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Dowling, Defendant-Appellant.
    Gen. No. 51,804. (Consolidated with Gen. No. 51,805.)
    First District, Second Division.
    May 7, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of attempt burglary and was sentenced to a term of 13 to 14 years in the penitentiary. The sole contention raised on this appeal is that the defendant’s trial counsel deprived him of a fair trial in failing to request a change of venue from the trial judge.

The trial judge presided at the jury trial of the defendant one month earlier, which resulted in a conviction of the defendant on the charge of armed robbery. (See People v. Dowling, 95 Ill App2d 223. Sentencing of the defendant after the armed robbery conviction was postponed pending the outcome of the trial involved in the instant appeal. The trial judge sentenced defendant to a term of 25 to 50 years in the penitentiary on the armed robbery conviction, and to a term of 13 to 14 years on the conviction herein, the sentences to run concurrently.

Chicago Police Officer Donald Roth testified that he responded to a squadrol radio communication on March 4, 1966, and went to a two-flat building located on the northwest side of Chicago, owned by Mr. and Mrs. Abe Artstein. As the officer approached the front door of the building he observed two men in the vestibule, one of whom was in a crouched position and “working on the door” with a crowbar and the other standing by his side. The men were later identified as the defendant, who was standing, and John Elwell, who was in the crouched position. The officer drew his revolver and announced his office. As he began to open the door, he heard a gunshot and observed Elwell fall to the floor. Defendant surrendered and walked out of the building with his hands up. Officer Roth testified that he did not shoot Elwell, but that defendant later told him that Elwell shot himself because he did not want to go to the penitentiary. A subsequent inspection of the area revealed marks on the door at the place were defendant and Elwell had been when approached by the officer, a piece of metal in the door lock, and an ice pick with a broken tip laying on the floor.

Defendant contends that the trial judge heard a police officer testify at the robbery trial that defendant stated to him in response to questioning, “I know nothing about a robbery, all you have me for is attempt burglary. I was backing up a man in a burglary,” and was consequently prejudiced, thereby necessitating a change of venue. We disagree.

Defendant was represented by the same counsel at the armed robbery trial and the trial involved herein. No objection was raised that the trial judge below was the same judge who presided at the robbery trial. In fact, a jury was waived for the attempted burglary trial. Whether this was trial strategy on the part of counsel we need not conjecture, People v. Wesley, 30 Ill2d 131, 136, 195 NE2d 708; the record clearly bears out that counsel was competent and acted in the interests of the defendant throughout the trial.

As to defendant’s claim that the trial judge was prejudiced by his participation at the armed robbery trial, the records in both the armed robbery trial and the instant trial bear out that the judge was concerned with affording the defendant a fair trial. During the armed robbery trial the judge, of his own violation, called defendant’s counsel aside and suggested that he not go into matters not connected with the case and that counsel be careful in his questioning. In the instant case, the judge sustained objections to such testimony by the police officer that he received a radio report of a “burglary in progress,” that the officer observed “jimmy marks” on the door, and the like.

Defendant cites People v. Chatman, 36 Ill2d 305, 223 NE2d 110, in support of his position in this regard. In Chatman, the defendant was found guilty of two separate but similar crimes by the same trial judge at bench trials on two consecutive days. Furthermore, after the first trial the judge indicated his attitude toward the defendant by making disparaging remarks concerning his alibi. Here the armed robbery trial of Joseph Dowling was before a jury and the instant trial was without a jury one month later. The record in each trial reveals that the judge was concerned that defendant receive a fair trial.

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURKE

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Dowling, Defendant-Appellant.
    Gen. No. 51,805. (Consolidated with Gen. 51,804.)
    First District, Second Division.
    May 7, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

After a jury trial defendant was found guilty of the crime of armed robbery and was sentenced to a term of 25 to 50 years in the penitentiary. He appeals.

The evidence shows that Mr. and Mrs. Abe Artstein, the complaining witnesses, owned a two-flat building on the northwest side of Chicago and occupied the second-floor apartment as their residence. The first-floor apartment was rented to a doctor. In the early afternoon of February 18, 1966, the Artsteins were in their apartment waiting for the arrival of a taxicab they had summoned earlier, when the doorbell rang. Mrs. Artstein released the vestibule security door by means of a buzzer in the apartment and proceeded to the front door of the apartment which she opened slightly. She requested the identity of the caller and saw two men, later identified as the defendant and his companion, John Elwell, proceeding up the stairs. They stated they were friends of Mr. Artstein and requested to speak with him. As the men approached the apartment door, Mr. Artstein appeared at the door and both men drew pistols. The Art-steins were forced inside the apartment where they were made to lie on the floor and were bound, Mrs. Artstein with tape and Mr. Artstein with handcuffs. The Art-steins were threatened with harm and were ordered to turn over their money and other valuables to the men. One of the men removed the handcuffs from Mr. Artstein and retied his hands with neckties, and the men left. Mrs. Artstein freed herself, the police were summoned and a description of the men given to them.

On March 4, 1966, Mr. and Mrs. Artstein were again in the apartment and were informed by their daughter that two men were in the hallway of the building. A scratching noise was heard at the door and the police were called. A short while later a gunshot was heard and Mrs. Artstein looked out the apartment window to see one of the men, the defendant, being placed under arrest. Mrs. Artstein recognized him as one of the men who had robbed her and her husband two weeks earlier, opened the window and communicated this fact to the arresting officer. The other man, John Elwell, was being carried from the building on a stretcher suffering from a gunshot wound in the head, from which he later died. Pistols were recovered from both defendant and Elwell and both were identified by the Artsteins as the weapons used by the men during the robbery in February. Elwell was wearing a wristwatch taken from Mr. Artstein in the robbery and a handcuff key was recovered from the defendant. Defendant was later again identified by the Artsteins at a police lineup as one of the robbers.

Defendant denied having had anything to do with the robbery of the Artsteins on February 18th, and claimed that the date of his arrest was the first time he was ever at the Artstein building; defendant claimed, but was not allowed to testify, that the reason he went to the Artstein building on March 4th was to procure “goof balls” from the doctor who lived on the first floor. Defendant also claimed, but again was not permitted to testify, that Elwell, some time prior to his death, informed defendant that Elwell and a man named Abrogotz committed the Artstein robbery.

The investigating police officer, Donald Kenny, testified that he questioned defendant on the date of the arrest concerning the February 18th robbery and that defendant stated, “I know nothing about a robbery, all you have me for is attempt burglary. I was backing up a man in a burglary.” The officer also questioned defendant about his leg, and defendant informed the officer that he had injured it in an automobile accident; the Artsteins had previously described one of the robbers as walking with a limp. Defendant denied he told anyone his foot was injured in an accident. The officer also testified that footprints in the snow outside the Artstein building found the day of the robbery bore the name “Stuart Holmes” on the heel, and that shoes found in an apartment allegedly belonging to defendant, two days after his arrest, bore the same inscription on the heels.

Defendant first contends that the State should not have been allowed to introduce the testimony of Officer Kenny that defendant admitted he was backing up a man in a burglary.

No objection was raised at the time the testimony was given by the officer, although the answer to the very next question, concerning defendant’s limp, was objected to by the defense. Defendant was represented by counsel of his own choosing. It is well established that failure to object to otherwise incompetent evidence at the time of trial results in a waiver of the objectionability of that evidence, and the question cannot be raised on appeal, People v. Trefonas, 9 Ill2d 92, 98-99, 136 NE2d 817. Nevertheless, its admission into evidence caused no prejudice to defendant in light of the overwhelming evidence of his guilt.

The cases cited by defendant in support of his position are inapposite on their facts. People v. Cordes, 391 Ill 47, 62 NE2d 465, involved a situation where the testimony of the prosecuting witness was not clear and convincing with respect to the intent of defendant to commit rape, and consequently evidence given by another witness, that on the same night that defendant was alleged to have committed the crime charged he exposed himself to the witness and expressed a desire to have sexual intercourse, was held inadmissible and prejudicial. In People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330, the witness gave a lengthy and highly specific and detailed account of another crime allegedly committed by defendant at a time when his evidence showed he was at his mother’s home; that evidence was understandably held inadmissible and prejudicial. Neither of those situations is analogous to the situation presented in the case at bar.

Defendant also contends that he was unduly restricted in the development of his defense by the trial court’s refusal to allow him to testify that Elwell and some third person had committed the Artstein robbery, as related to defendant by Elwell before his death, on the grounds that the proffered testimony was hearsay. The evidence is patently hearsay and the trial court properly denied its admission into evidence. See People v. Smuk, 12 Ill2d 360, 146 NE2d 32.

Defendant cites People v. Lettrich, 413 Ill 172, 108 NE2d 488, in support of his position that the hearsay rule should not have been applied under the circumstances of this case. In Lettrich, a confession challenged by the defendant as having been coerced from him and certain undisputed evidence known to the court which did not coincide with portions of the confession, prompted the court to relax the hearsay rule. Lettrich was a case of special circumstances, the court recognizing the rule that the unsworn extrajudicial declaration of a deceased or otherwise unavailable third party is hearsay and is therefore inadmissible, but nonetheless holding, at page 178, that where it is “obvious that justice demands a departure ... it would be absurd ... to indiscriminately apply such a rule to prevent one accused of a crime” from showing that another person was the perpetrator. Here, on the other hand, there is overwhelming evidence of defendant’s guilt, especially the direct, unequivocal and unimpeached testimony of the two eyewitness victims who had ample time and opportunity to observe the robbers.

Defendant attacks the State’s Instruction #1, which deals with the presumption of innocence, and states that its wording implies that the presumption obtains only when the jury believes a defendant is innocent and further implies that guilt is present. We disagree. An instruction worded substantially the same as State’s Instruction #1 was subjected to the same criticism in People v. Rees, 268 Ill 585, 109 NE 473, and the argument rejected.

The final point raised by defendant is that prejudicial error was committed by the Assistant State’s Attorney during closing argument when he said that the shoes admitted into evidence and which bore the same heel markings as the footprints found outside the Artstein building were recovered from defendant’s apartment, whereas there was no competent evidence that the shoes were recovered from his apartment. The record discloses that defendant failed to object to this line of argument. Furthermore, there is evidence in the record establishing that Officer Kenny found the shoes “at the apartment of Mr. Dowling ... on the 6th of March.”

For these reasons the judgment is affirmed.

Judgment affirmed.

MCNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    Kathleen Trobiani, a Minor, by Her Next Friend, Ralph Trobiani, Plaintiff-Appellee, v. Benjamin Racienda and Alice Racienda, Defendants-Appellants.
    Gen. No. 52,023.
    First District, Second Division.
    May 7, 1968.
    Rehearing denied June 4, 1968.

      Favil David Berns, of Chicago (Myer H. Gladstone, of counsel), for appellants.
    Frederick J. Bertram, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendants appeal from an order denying their petition filed under section 72 of the Civil Practice Act to vacate and set aside a default judgment entered against defendants in the sum of $7,000.

Plaintiff filed the complaint along with a jury demand on September 30, 1959. Both defendants were served with summons on October 16, 1959, but did not file an appearance or answer. An order of default was entered against Ben Racienda on January 12, 1961, setting February 15, 1961, for the date of prove up. On February 15,1961, plaintiff waived the jury and a default judgment was entered against both defendants. The judgment order recited that the court had heard evidence presented in behalf of plaintiff. Execution on the judgment was issued on December 1, 1965 and served on defendants on December 10, 1965.

On January 4, 1966, defendants filed the petition under section 72 of the Civil Practice Act. This petition admitted service of summons, but stated that defendants first learned of the entry of the judgment when served with execution on December 10, 1965. Plaintiff filed a sworn answer to the petition, stating that defendants learned of the judgment in August, 1963; that on August 9, 1963, defendants applied for a real estate mortgage; that Chicago Title and Trust Company issued a letter of opinion showing the judgment; that the existence of this judgment was fully explained orally and in writing to defendants. The answer also stated that there had been several letters exchanged between defendants and counsel for plaintiff after service of summons and prior to entry of judgment. This correspondence was made part of the answer, and it included a letter written by defendant Ben Hacienda to the father of the plaintiff which included the following language: “You can sue all you want . . . You can put all the judgment you want to.” The answer to the petition also stated that counsel for plaintiff had urged defendants to employ an attorney to represent them. No reply was filed by defendants to this verified answer with its accompanying exhibits.

In order to be entitled to relief under section 72 of the Civil Practice Act, petitioners must show not only that they have valid grounds for relief, but that it was through no neglect of their own that the grounds claimed were not presented to the trial court in timely fashion. Section 72 does not entitle a litigant to be relieved of the consequences of his own neglect or mistake. Williams v. Pearson, 23 Ill2d 357, 177 NE2d 856 (1961); Piper v. Heder, 70 Ill App2d 141, 217 NE2d 487 (1966).

We first conclude that defendants are not entitled to relief under section 72. While defendants have failed to supply a report of proceedings as to what transpired before the judge in the section 72 proceedings, the record indicates that the judge considered the pleadings, including the exhibits, and that plaintiff submitted evidence that defendants had knowledge of the judgment since August of 1963. Defendants not only deliberately ignored court process, but after being served with summons, challenged the plaintiff to get any judgment she wished. Although all of the letters between the parties took place prior to the entry of judgment, that correspondence reflects the deliberate disregard of the suit by defendants. While defendants point out that execution on the judgment was not issued for nearly four years after its entry, no prejudice to defendants has been shown because it is obvious that defendants had knowledge of the judgment as a result of the letter of opinion issued by Chicago Title and Trust Company.

However, defendants urge that the judgment is void, and that a void judgment may be set aside at any time on motion, and without affidavit. Martin v. Schillo, 389 Ill 607, 60 NE2d 392 (1945); Ray v. Moll, 336 Ill App 360, 84 NE2d 163 (1949). In that light, we shall examine the position of defendants.

The principal contention of defendants is that the judgment is void because the complaint failed to state a cause of action. The complaint here charged that defendants were in possession and control of certain premises ; that they were in the process of constructing a building; that they knew of the presence of children in and about the premises; that the building under construction was so attractive as would be an inducement to children; and that the four-year-old plaintiff entered said building through an open doorway, started to climb a ladder, fell off the ladder through an open stairwell, and was injured.

Defendants argue that the foregoing complaint failed to state a cause of action because Illinois no longer recognizes the attractive nuisance doctrine as a basis for liability, and that an open doorway and a ladder are not attractions so as to impose liability upon defendants in favor of an infant trespasser.

In Kahn v. James Burton Co., 5 Ill2d 614, 126 NE2d 836 (1955), the court found that foreseeability of harm was the basis of liability of an occupier of land to an infant trespasser, and the attraction was important only in so far as it would disclose that the trespasser should have been anticipated by the occupier.

Since the Kahn case, to impose liability it must be shown: (1) the occupier knows that young children frequent the vicinity; (2) there is a defective structure or dangerous agency present on the land; (3) that structure or agency is likely to cause injury because of the child’s inability to appreciate the risk; and (4) the expense of remedying the situation is slight. Donehue v. Duvall, 90 Ill App2d 472, 233 NE2d 447 (1967). The dangerous agency can result from a common instrumentality which of itself is not defective if the instrumentality and its surroundings create a dangerous condition which is likely to cause injury to children. Smith v. Springham Lumber Co., 41 Ill App2d 403, 191 NE2d 256 (1963). The object that causes the injury need not be visible from the street to establish liability. Andrews v. General Contracting Co., 37 Ill App2d 131, 185 NE2d 354 (1962). Nor is it necessary that the ladder itself be the attraction in order to render defendant liable if the building under construction was sufficiently attractive. Wilinski v. Belmont Builders Inc., 14 Ill App2d 100, 143 NE2d 69 (1957). In the Wilinski case an 11-year-old boy fell and was injured when a rung of a ladder broke at the rear of a partially constructed building in which he was playing.

Clearly, under all the criteria set forth in Illinois, the complaint stated a good cause of action. A ladder over an open stairwell in a building under construction constituted a dangerous condition to the four-year-old plaintiff and created a basis for liability as to these defendants.

Defendants also contend that the judgment is void because they received no notice of hearing on the assessment of damages, citing Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348 (1963). In that case, a default judgment was entered on May 18, 1960, and a petition to vacate the judgment under section 72 was filed on July 14, 1960. The court found that prior to suit there had been settlement negotiations between the parties; that plaintiff had informed defendant that medical bills arising out of the accident totalled $259; that despite this information, at the prove-up hearing, plaintiff had introduced into evidence medical expenses totalling $4,000, most of which bore no relationship to the injury suffered in the accident. Under these circumstances, to prevent an unconscionable gain to the plaintiff because an unfair advantage had been worked, the Supreme Court stated that “defendant should be given an opportunity to appear and defend on the issue of damages.” However, the court did not declare that the judgment was void. A judgment for plaintiff comprises two factors: one, finding of the issues for plaintiff and against defendant, and two, an assessment of damages. In Elfman, the court upheld the default and the finding in favor of plaintiff. It only remanded for an assessment of damages because of the unusual circumstances surrounding the amount of damages. In the instant case as in Elfman, we cannot vacate the finding in favor of plaintiff. The judgment is not void.

Defendant Alice Hacienda urges that the default judgment is void as to her because the order of default was entered only as to Ben Hacienda. She cites 23 ILP 178, Judgments, Section 62 which states:

“The entry of a default must precede the rendition of a judgment by default.”

Section 50(4) of the Civil Practice Act authorizes the court to enter judgment by default for want of an appearance. The Act does not require the entry of an order of default prior to the entry of judgment. Lack of a formal order of default before entry of a decree pro confesso did not make entry of the latter error. School Directors Dist. No. 5 v. School Directors Dist. No. 10, 73 Ill 249 (1874). Whether or not there is a separate order of default, we find that the right to a default judgment depends on the court’s having jurisdiction over the particular defendant, and on the defendant’s failure to appear within the time allowed by service. Alice Hacienda admittedly was served with summons, but did not appear or plead. The court had jurisdiction of her person and of the subject matter, and, after hearing evidence, entered a valid judgment against her.

We find no merit in defendants’ final contention that the judgment is void because the judgment order contained no findings of fact.

Accordingly, the order of the Circuit Court is affirmed.

Order affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Smith and George Dean, Defendants-Appellants.
    Gen. No. 49,886.
    First District, Third Division.
    May 9, 1968.

      Donald M. Thompson, of Chicago, for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The defendants, George Dean and Robert Smith, were charged with rape and aggravated kidnapping. They were tried without a jury and found guilty on each count. Dean was sentenced to concurrent terms of not less than ten nor more than twenty years in the penitentiary, while Smith was sentenced to concurrent terms of not less than eight nor more than fifteen years.

This appeal was filed in behalf of Dean and Smith. Dean completed his appeal while Smith permitted his to lapse. The evidence as to both defendants is closely interwoven and the points raised on appeal by Dean would apply to Smith as well. Inasmuch as Smith’s appeal has not been dismissed for want of prosecution, we will review the case as if both were appellants.

The victims were two thirteen-year-old girls. On a Sunday evening in February, 1964, they and four other eighth-grade girls went to the recreation center of Our Lady of Sorrows Church, Chicago, to attend a dance. The girls arrived at the center about 8:25 p. m., went inside and waited in line to buy tickets to the dance. While they were waiting, a boy pulled the coat of one of the girls. When she told him to stop, he pushed her against the wall and told her he did not “take no mess from nobody.” The girls tired of waiting in line, went outside and started to walk home. A car was parked near the entrance and some men were standing next to it. According to the prosecuting witnesses and two of the other girls, Dean and Smith were in the group.

The same boy who had accosted the first girl inside the center grabbed her and pushed her into the back of the car and onto the floor. Another boy picked up the second girl, carried her to the car and threw her in. There was some difficulty in starting the car and the girls screamed, hit the boys and struggled to get out. One of the girls opened the door but a boy slammed it shut, and in doing so closed it on Smith’s thumb.

Meanwhile two of their girl friends ran into the center for assistance. They told a priest, Father Donald Gantley, what was happening and he came out just as the car was pulling away. He shouted for them to stop. He could not see who was in the car but heard screams coming from it.

In the car as it drove away from the center, according to the two prosecuting witnesses and a girl who witnessed the kidnapping, were George Dean (21 years old and a married man with two children), Robert Smith (age 22), Gene Autry Dean (age 16 and no relation to the defendant George Dean), Jerry Brown (17 years of age and the driver of the car) and the unidentified boy who pulled the girl’s coat and who was never apprehended.

The car was driven to George Dean’s basement apartment and the girls were marched inside. A male was sitting in front of the television set when the group entered.

In the apartment, the first girl was taken to the back bedroom by the unidentified boy. He threw her on the bed and removed her underclothes and, despite her yelling and protesting, had intercourse with her. After he finished five others had intercourse with her. She did not know who the next three were but she said that George Dean was the last and Robert Smith was next to last. She testified that the lights were on momentarily during intercourse with the last two.

The second girl, meanwhile, was thrown on the living room couch by Smith who took off her underclothes and was the first to have intercourse with her. She screamed and one of the others told her to shut up and hit her on her head. She was forced to have sexual relations with six persons, including George Dean.

While this was going on, Father Gantley notified the police and joined them in searching for the car. The police finally found the parked car about 10:00 p. m. They questioned residents on both sides of the street. One of the officers noticed blinds going up and down and four or five males peering out the window of a nearby basement apartment. He saw lights being turned on and off and people running around. The police went to the rear and side entrances. The back door was ajar but it was slammed in their faces as they approached. They seized Gene Dean as he ran out the side door. Jerry Brown was arrested just inside the entrance. The girls, crying and hysterical, were standing in the bedroom door screaming, “They did it.” The police forced open the bathroom door and caught Smith as he was attempting to go out the window. George Dean was found hiding under a woodpile in a room which adjoined the apartment. The other two participants had escaped and were never apprehended. Dean denied having had anything to do with the girls. Smith claimed that he arrived at the apartment after the police were there.

At the trial, George Dean again denied that he took part in the kidnapping and rape. He testified that he had been drinking since 2:00 p. m. that afternoon at his home and at his sister’s. He left his sister’s about 8:00 p. m. and returned home, where he continued to drink. Before anyone arrived there, he passed out in a chair in the living room while watching television and did not awaken until jerked to his feet by the police.

The defendant Smith denied that the girls had been kidnapped or raped. He admitted that he was with Gene Dean, Jerry Brown and two other fellows (not including George Dean) outside the recreation center about 8:00 p. m. He testified that he left the car for a few minutes and that when he returned the two girls were seated on the laps of two of the boys. He said there was no screaming; that he was the only one who yelled and he did so because his thumb had been jammed in the car door. He said that the car was driven to George Dean’s apartment, where he also lived, but claimed that this was done at his request because he was ill from drinking. He testified that everyone entered the apartment except himself. He remained outside for a few minutes because of feeling sick. When he entered he saw one of the girls sitting on the couch and knew the other one was in the back bedroom. He saw George Dean on a chair in the living room apparently drunk. After this, he did not see George Dean or anyone else or know what was going on because he went to the kitchen to get some food and fell asleep at the kitchen table. Upon awakening, he went to the washroom and was there when the police came. They seized him in the hallway outside the bathroom.

The first contention is that the evidence did not establish guilt beyond a reasonable doubt. To support his contention, Dean points to his own testimony which was corroborated by his sister and by Smith, Gene Dean and Jerry Brown. He also cites inconsistencies in the testimony of the State’s witnesses. For example, on direct examination one of the girls testified that he was in the car at the recreation center but on cross-examination stated that he was sitting in the house when they entered. The second girl testified on direct examination that Smith was one of the boys who forced her friend into the car but on cross-examination stated that he was at Dean’s apartment watching television when she arrived there. The officer who found George Dean under the woodpile admitted that at first he had him mixed up with Jerry Brown. Another officer testified that at the time of the arrest someone told him that Smith was the one who was hiding there.

In a nonjury trial it is the province of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony, and the court’s judgment will not be disturbed unless it is based on unsatisfactory, improbable or insufficient evidence which leaves a reasonable doubt of the defendant’s guilt. People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112 (1966); People v. Cooper, 69 Ill App2d 18, 216 NE2d 168 (1966). There was clear and convincing evidence of the guilt of both defendants. The prosecuting witnesses’ testimony about the kidnapping was corroborated by their friends and by Father Gantley. Their testimony about being raped was corroborated by what the arresting officers saw when they entered the apartment, by the victims’ tearful and immediate accusations and by a hospital examination of their tom and bleeding vaginas. The discrepancies in their testimony are of little significance in comparison to their positive, unshaken and corroborated testimony that Dean and Smith kidnapped and raped them. The testimonial conflicts and the transposition of names are understandable in view of the fact that five men, all of whom were unkown to them and who did not use their correct names in speaking to each other, participated in the kidnapping and six in the rape.

It is next contended that the court erred in denying a motion for the production of statements made by one of the prosecuting witnesses to the police and to a juvenile officer. This motion was made and argued by the attorney for Smith.

The first girl to testify said on cross-examination that after the rape she was questioned at the police station. A policeman typed while she spoke but she was not given anything to read or sign. She also made a statement to a juvenile officer which she neither read nor signed. The attorney for Smith then moved for production of the statements and the following colloquy took place between the court and counsel:

“ [Assistant State’s Attorney]: As far as we know the only thing contained in our file is the police report, no statements made by anybody.
“The Court: He said there are no statements.
“[Attorney for Smith] : Your witness said—
“[Assistant State’s Attorney] : She said she told the police what happened and they typed it; she never read it, she never signed anything.
“The Court: It’s a police report.”

After this brief exchange, Smith’s attorney resumed his cross-examination of the witness.

The prosecution is required to furnish, on demand, pretrial statements made by witnesses “once the existence and relevancy of these statements has been established.” The purpose is to permit defendants to ascertain whether the witnesses’ statements differ with their testimony so that the statements may be used for impeachment. Before defendants are entitled to the statements it must be established that they are in the witnesses’ own words or substantially verbatim recitals of what the witnesses have said. People v. Wolff, 19 Ill2d 318, 167 NE2d 197 (1960); People v. Scott, 29 Ill2d 97, 193 NE2d 814 (1963); People v. Neiman, 30 Ill2d 393, 197 NE2d 8 (1964). If the prosecution denies possessing such statements, the trial court can be asked to examine the State’s file, or the police file (if it is in court or if it has been subpoenaed) to find out if there are statements which are in the witnesses’ words. If there are, these must be given to the defendants for examination and possible use. People v. Wright, 30 Ill2d 519, 198 NE2d 316 (1964); People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966).

In the case at hand, it was not established that the story the girl told the policeman or the juvenile officer was taken down as she related it. No police officer was questioned about a statement. The juvenile officer was not called as a witness. The girl testified that she signed no statement and that none was shown to her. The prosecutor denied possessing a statement made by her. The court was not asked to examine the files. The court was not asked to examine the police report which the State said it had in its file to see if it was a report or a statement. Although the record does not show that the court examined the report, this may have been done. The court’s description: “It’s a police report,” suggests that the court looked at it. The fact that there was nothing further said or done by Smith’s attorney (or by Dean’s attorney) after the court’s positive and succinct observation, supports this inference. Further support is lent to the inference because the second girl also testified that the police typed what she said and that she gave a statement to the juvenile officer, but no request was made for the production of either of these. But whether the court examined the report or not, there was a complete failure by the defendants to establish the rudiments requisite to the production of any documents, police or juvenile. It is not clear if the court denied the production of the statements requested by the defendants but, if it did, no error was committed by the denial.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: TRAPP, J.

text:
    Maurice Jason, Plaintiff-Appellant, v. Milton Drane and Priscilla Drane, Defendants-Appellees.
    Gen. No. 51,617.
    First District.
    May 13, 1968.
    Rehearing denied June 21, 1968.
    George C. Rabens, of Chicago, for appellant.
    George C. Adams, of Chicago, for appellees.
   TRAPP, J.

Plaintiff appeals from a decree of the Circuit Court of Cook County, Illinois, which set aside a contract for repair of fire loss damage and awarded plaintiff a portion of the proceeds of certain fire insurance settlements upon a quantum meruit basis.

Plaintiff asserts that the determination of the court was contrary to the manifest weight of the evidence, and that although the cause was referred to the Master in Chancery under a limited reference, the Master in Chancery took evidence on matters beyond the scope of the order of reference, and based his findings on such matters. Plaintiff urges that the court erred in adopting the Master in Chancery’s report on the matters outside of the scope of the reference.

The complaint alleged that plaintiff is a general building repair contractor who does business under the name Fire Loss Appraisal Company; that defendants, Milton Drane and Priscilla Drane are contract purchasers of a building known as 4800 South Princeton Avenue, Chicago, Illinois; that subsequent to a fire which occurred December 7, 1960, plaintiff and defendants entered into a contract in writing by which plaintiff was to repair the fire damage and was to receive therefor an amount equal to the fire loss claim; that defendants agreed to pay plaintiff the amount equal to the settlement agreed upon between plaintiff and representatives of the insurance companies; that plaintiff completed the work agreed upon; that the fire insurance companies issued drafts in the total sum of $5,733, which were payable to the owners, plaintiff and plaintiff’s attorney; that plaintiff alone is entitled to the drafts; that defendants, Milton Drane and Priscilla Drane refuse to endorse the drafts and that plaintiff is without remedy except in a court of equity.

The original answer asserted that the contract was obtained by fraud and misrepresentation; that defendants did not understand the contract; that the work was improperly done and was not completed, and that defendants had to expend large sums to have the work completed. By amendment to the answer made after the taking of some of defendant Milton Drane’s testimony, it was alleged that in August of 1960, Milton Drane became ill of hypertension and a nervous disorder, that he had been a mental health patient under the care of Dr. Harold M. Visotsky, and that he received treatment as a mental health patient on September 15, 1960, October 15, 1960, October 17, 1960, October 21, 1960 and December 21, 1960, at the Southside Community Health Center. It alleged that since said dates he has been a patient at various Veterans’ Hospitals for psychiatric and medical treatments. It specifically alleges that on December 7, 1960, when the contract was signed, Milton Drane did not have the mental capacity to understand what he was signing.

Under the order of reference to the Master in Chancery, the authority was “limited solely to the issue of fraud in the obtaining by plaintiff of contract from the defendants Drane.” Motions by defendant for an unrestricted reference were denied.

The Master in Chancery received testimony on the circumstances of the execution of the contract, the work performed by plaintiff and subcontractors, the quality of the work performed, the work done at the expense of defendants, the work remaining undone and the mental condition of the defendant, Milton Drane.

The Master’s report includes the following findings:

“4. The Master further finds that on December 7, 1960, the building at 4800 Princeton Avenue caught afire about 8:30 A. M. The Plaintiff called upon the Defendant about 9:00 A. M. and secured his signature upon the promise to make temporary repairs so he could have heat in the zero weather.
it
“8. (c) About August 15, 1960, Milton Drane was compelled to leave his employment on account of illness, and has not been able to do any work since that time up to the present time.
“ (d) On December 7,1960, he was home ill at the time of the fire.
“(e) Dr. Harold Visotsky, on October 5, 1960, made a report of his diagnosis of Milton Drane as follows:
“ ‘Mr. Drane appears to be suffering from a Chronic Paranoid Schizophrenic reaction with much reoccupation with physical symptomatology. This appears to be well encapsulated and relates only to a multitude of physical complaints vaguely associated with a surgical procedure in 1957. He states these symptoms do not affect his work — but operate primarily during the periods of going to work or coming back.’
“(f) The Master finds from the evidence and the doctor’s report that a man suffering from the above illness would be subject to undue influence, persuasion and subject to sign most any paper presented to him for his signature under the stress, strain and excitement of a fire in his building on a zero day when all the windows in his apartment were knocked out by the fire department, electric lights cut off, subjecting the plumbing to a possible freezing, and causing him not to have heat in the building.
“(g) The Master finds that the contract signed by Milton Drane on December 7, 1960, during his physical and mental illness, just after the exictement of the fire and during the time his windows were knocked out by the fire company, and the pipes subject to freezing and the electricity cut off, he was not mentally and physically able to know the consequences of his acts, and said contract is void and unenforceable against him.
“(h) The Master further finds from the personal appearance, examination and questioning of Milton Drane that he could not remember dates and was indefinite and unspecific as to the answer to the various questions asked him while he was on the witness stand, all of which indicated that he was unable to properly conduct this litigation.”

The Master found that the plaintiff did not do the work himself, but employed a subcontractor. The latter was subpoenaed to produce his bills and invoices. The Master found that the bills and invoices corroborated the testimony of a professional engineer that the work done, including labor and materials, should not have exceeded $2,100. The Master found eight substantial items of fire damage that were not repaired, and that fifteen relatively substantial items were not satisfactorily repaired. The Master also found that the defendants have been required to expend large sums in repairing portions of the apartment that plaintiff failed to repair.

The abstract does not contain all of the testimony. We cannot, therefore, obtain the same total impression as that obtained by the Master in Chancery. While the statement that the contract was obtained by representation that it was for the purpose of authorizing temporary repairs is asserted on one side and denied on the other, we cannot say that the Master’s finding that the contract was so obtained is against the manifest weight of the evidence. While it is true that proof of fraud must be clear and convincing, nevertheless, the mental condition of one of the parties is of importance. Additionally, all of the circumstances surrounding the execution of the contract may have relevance on the issue of fraud. Majewski v. Gallina, 17 Ill2d 92 at 99, 160 NE2d 783.

Here, under circumstances which would be productive of some shock to an ordinarily well-balanced person, within an hour of the occurrence of a fire, in a situation demanding action to preserve property, an experienced building contractor obtains a written contract from a sick man who is also under treatment for mental illness, to cover a repair job involving many unknown factors. It is noted that the original contract is without “specifications.” It is further noted that the subsequent “specifications” are, in fact, only a list of items to be repaired, and leave a great deal to the judgment of the contractor. In performance, the repairs are incompletely done and in some respects poorly done at a cost of 30 percent to 40 percent of the insurance proceeds. Additionally, the defendant is required to spend almost half as much as the plaintiff in doing work which should have been done. We do not believe that the history of the performance can be completely disassociated from the original intent in passing judgment upon the conduct of the parties.

Certainly a different light would be thrown upon the situation if the work done had been prompt, beyond complaint and at a cost approximating the settlement. It is obvious from the Master’s findings, particularly the findings regarding unsatisfactory work, that the evidence regarding performance together with the evidence relating to the procuring of the alleged contract, had a bearing upon the determination of the issue of fraud.

Neither was the Master in Chancery required to overlook the facts that the short printed form prepared by the seller had an “authority,” not including specifications, which bore a printed and not too prominent “assignment,” nor the fact that the call at the home was unsolicited by the buyer. The Legislature has recently viewed unsolicited home sales with such suspicion as to make them voidable at the option of the buyer. Chapter 121½, § 262B, Ill Rev Stats 1967.

Considering the weight to be given to the foregoing factors, one cannot say that the Master in Chancery exceeded the limited reference in examining the issue of performance of the contract. The issue of limitations upon the scope of the order of reference was presented to the Chancellor upon exceptions filed to the Master’s report. The record discloses that the plaintiff fully presented evidence upon all the issues developed in the proceedings. The test is whether or not he was harmed or prejudiced by the absence of evidence when the proceedings are determined by the Chancellor. Federal Life Ins. Co. v. Looney, 180 Ill App 488; Cohn v. Cinman, 85 Ill App2d 285, 230 NE2d 23.

Plaintiff argues that the fact that Milton Drane subsequently watched workmen performing the work establishes the error of the Master in Chancery, and of the Chancellor, in finding that the defendant was not capable of knowing, and did not know he was signing a contract for a complete repair job in consideration of assignment of the entire insurance proceeds. Such fact does not establish the enforceability of the alleged contract. The decree finds, and the evidence supports it, that there were objections to the performance of the work undertaken. Defendant’s conduct established, at best, a liability for payment of the reasonable charges for the work actually done.

Plaintiff also contends that the proper measure of damages is not the reasonable value of plaintiff’s work, but the reasonable cost of completing the repairs. This contention is based upon the theory that plaintiff had a valid contract for repairs for a consideration of the entire insurance proceeds. Our view that the plaintiff did not have such a valid contract disposes of this contention.

The decree of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. JUSTICE SCHWARTZ

text:
    Anthony Urso, Plaintiff-Appellant, v. Reynolds Metals Company, Defendant-Appellee.
    Gen. No. 51,717.
    First District, Third Division.
    February 29, 1968.
    Rehearing denied and supplemental opinion June 27, 1968.

      Arthur S. Gomberg, of Chicago (Samuel Nineberg, of counsel), for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago (Bernard E. Harrold and John W. Kearns, Jr., of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

On February 23, 1960, plaintiff filed suit to recover for injuries sustained when he slipped and fell on defendant’s premises. Interrogatories were propounded to plaintiff on July 11, 1961, but he failed to answer them and has not done so to this date. Defendant filed a motion to dismiss the suit and on October 9, 1961, after due notice the motion was presented to the trial court. Plaintiff did not appear and the court entered an order requiring him to answer the interrogatories by November 8,1961. The motion for dismissal was continued until that date, was continued twice more and was eventually heard on January 22, 1962, at which time an order was entered dismissing the suit. Plaintiff took no action until four years later when, on February 10, 1966, he petitioned the court to vacate the order of dismissal. The petition was denied and plaintiff appeals.

Plaintiff contends that the hearing of January 22,1962, was held without proper notice and that the order was therefore void and that as a void order it was subject to collateral attack at any time.

On October 9, 1961, when the motion to dismiss the case for plaintiff’s failure to answer interrogatories came on to be heard pursuant to notice, the following order was entered:

“On motion of Reynolds Metals Company, by its attorneys, Kirkland, Ellis, Hodson, Chaffetz & Masters, for an order dismissing this case, arguments having been heard, and the Court being advised;
“It is hereby ordered that the interrogatories heretofore served on plaintiff, Anthony Urso, by defendant be answered on or before November 8, 1961, and this motion is entered and continued to November 8,1961, at 11:00 A.M.”

On November 8th the matter came up again and was continued to December 13, 1961. Although no order of continuance appears in the record, the Chicago Daily Law Bulletin- shows that the matter was set for hearing on December 13,1961. The motion was continued once more, from December 13 to January 22, 1962. The parties disagree with respect to the circumstances surrounding the final continuance. Defense counsel states by affidavit that the attorney in charge of the case for plaintiff called him on December 13, 1961, and asked for a final continuance in order to answer the interrogatories. Plaintiff’s attorney denies having any recollection of the call and states that if he did speak to anyone, he would either have had a recollection of it or a note in his diary or message book.

The order granting the final continuance does not appear in the record, but once again the Law Bulletin correctly showed the case as set for hearing on the contested motion call for January 22, 1962, and on that date the trial court entered the following order dismissing the suit:

“On motion of Reynolds Metals Company, by its attorneys, Kirkland, Ellis, Hodson, Chaffetz & Masters, for an order dismissing this case, arguments having been heard, and the Court being fully advised;
“IT IS HEREBY ORDERED that this case is dismissed with prejudice, plaintiff shall take nothing by this action, and Reynolds Metals Company shall go hence without day.”

Plaintiff’s attorney as hereinbefore noted made no attempt to vacate the order of dismissal until February 10, 1966, some four years after its entry. At that time he filed his petition to vacate, alleging that the order of dismissal was void. Notwithstanding the fact that the order recites that arguments were heard by the court, he contends that it was “apparently ex parte for the reason that the cause should not have been heard on January 22, 1962, and there was no notice of any hearing to be held that date.” (Emphasis added.)

The question is whether or not the petition presented grounds for relief since it was filed more than four years after judgment was entered. Section 72 of the Civil Practice Act, Ill Rev Stats, c 110, § 72 (1967), the most liberal remedy provided for attacking the validity of a judgment, has a limitation of two years, except in the case of void orders. It is plaintiff’s theory that the order of dismissal was void and hence vulnerable to attack at any time. His basis for attacking the validity of the order is somewhat nebulous. The court ordered plaintiff to answer the interrogatories within a specified time. The court had the authority to dismiss the action in the event that plaintiff failed to comply. Ill Rev Stats, c 110, § 101.19-12(3) (1965); Chavez v. Elgin, J. & E. Ry. Co., 32 Ill App2d 68, 176 NE2d 664. The order of dismissal was a written order, duly spread of record and clear in its terms. Plaintiff was aware of defendant’s motion and had every opportunity to appear and prevent dismissal of the suit. According to the order, both parties did appear and the order is presumptively valid. The party seeking to vacate such a judgment must assume the burden of proving facts essential to entitle him to the relief sought. Antczak v. Antczak, 61 Ill App2d 404, 209 NE2d 838. The plaintiff is not entitled to relief unless there was insufficient notice and he did not in fact appear at the hearing. Counsel at no time alleges that the hearing of January 22, 1962, was ex parte. The strongest statement in the petition is that the order was apparently rendered ex parte because the orders of continuance do not appear in the record. The presumptive validity of a court order and the recitation of proceedings therein cannot be overcome by the naked allegation that the proceedings were apparently conducted otherwise than as described. It is for the party seeking to vacate an order to prove that the proceedings were not conducted in the manner recited, and the plaintiff has failed to produce such proof.

In his reply brief counsel states that the parties were in complete agreement that no one from plaintiff’s attorney’s office appeared or argued on January 22, 1962, and that the words, “arguments having been heard,” were merely part of a form order. This argument does not amount to a specific denial by counsel of his presence at the hearing, but assuming that no one representing plaintiff was present, he must still prove that there was a break in the chain of notice. Defendant contends that the continuances were granted by order of court and that it was the practice of the trial court to continue contested motions without a written order entered and placed in the file. At common law an order was effective from the time it was pronounced by the court, People v. Jarecki, 352 Ill 207, 185 NE 570, and the court clerk was then required to enter the ruling of record. Chicago Great Western R. Co. v. Ashelford, 268 Ill 87, 108 NE 761. Under current court practice the submission and entry of written orders is now used in law as well as chancery, but law courts still possess the power to issue full binding oral orders.

Assuming further that the orders of continuance were oral, some memoranda must have been made and recorded because the Law Bulletin was able to find a record of the continuances and to correctly prepare the contested motion calls on the dates in question. Since the continuances were granted by court orders for specific dates, no further notice was required.

Paragraph 6 of the petition avers:

“That your plaintiff and his attorneys have at all times been ready to try this case and are ready to answer whatever interrogatories are necessary and they have not been negligent in the handling of the above entitled cause.”

Plaintiff could have prevented the dismissal by answering the interrogatories at any time from July 11, 1961, to January 22, 1962, but failed to do so. Counsel explains that he was unable to answer within the allotted time because he could not locate his client. Thus we have a plaintiff who for at least four years displayed no interest in his case and a lawyer who made no check of the files in that period. An annual review and check of his calendar would have revealed that the case had been dismissed. A two year review would have enabled him to seek a remedy under section 72. Counsel states that he put his office file aside awaiting trial and forgot about the motion concerning interrogatories. He now seeks relief from a presumptively valid court order on the basis of his own recollection of events. In the present condition of the calendar, every case we send back for retrial means added delay for another litigant.

Plaintiff failed to prove that the order of dismissal was void, and the trial court properly refused to vacate the order. The order is affirmed.

Order affirmed.

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

Supplemental Opinion on Petition for Rehearing.

We have withheld our ruling on the petition for rehearing in this case pending the decision of the Illinois Supreme Court in Esczuk v. Chicago Transit Authority, 39 Ill2d 457, 236 NE2d 719 (petition for rehearing denied) . In the Esczuk case the court affirmed an order of the trial court denying the plaintiff’s petition to reinstate an action which had been dismissed for want of prosecution. The petition in that case was filed approximately nineteen months after the order of dismissal and alleged that the plaintiff failed to appear for a pretrial conference due to “mere inadvertency or excusable neglect.” Although the petition was filed within the two year limitation set forth in section 72 of the Civil Practice Act, the court held that the facts alleged in the petition failed to show such fraud, mistake or fundamental unfairness as would justify a collateral attack on a final judgment nineteen months after its rendition.

In the instant case the section 72 petition was filed four years after the order of dismissal, a period far in excess of the statutory limit of two years and of the nineteen-month period which had elapsed in the Esczuk case. As we noted in our opinion, the delay could have been prevented by an annual review of the files. Plaintiff could also have prevented the dismissal in the first instance by answering the interrogatories propounded by the defendant or by keeping track of the pending motion to dismiss.

The facts alleged in the instant case do not show such fraud, mistake or fundamental unfairness as would justify a collateral attack on a final judgment four years after its rendition.

Petition for rehearing denied.


author: MR. JUSTICE DRUCKER

text:
    City of Chicago in Trust for the Use of Schools, Petitioner-Appellant, v. Albert J. Schorsch Realty Company, Inc., et al., Defendants, Consolidated With City of Chicago in Trust for the Use of Schools, Petitioner-Appellant, v. John Przywara, et al., Defendants-Appellees.
    Gen. No. 51,710.
    First District, Fourth Division.
    April 10, 1968.
    Rehearing denied May 22, 1968.

      James W. Coffey and Frank S. Righeimer, of Chicago (Frank S. Righeimer and Richard E. Girard, of counsel), for appellant.
    Green, Murnighan & Kane, of Chicago (John B. Murnighan and John J. Jiganti, of counsel), for appellees as to Parcels B, C and D.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Petitioner instituted condemnation proceedings on March 4, 1965 (Circuit Court No. 65 L 7227) for five parcels of land. On July 14, 1965, another petition was filed in the same case seeking nine and one-half acres of unsubdivided land and one acre of subdivided property which consisted of eight lots designated as Parcel E or Parcel 4. On July 14, 1965, another petition was filed in a new case (Circuit Court No. 65 L 20763) seeking the same property. In that case a change of venue was granted November 3, 1965, as to Parcel E and the case reassigned for separate trial as to Parcel E. Thereafter the cases were consolidated.

The instant case involved Parcels A, B, C and D. Petitioner has appealed the jury’s awards. Defendants Stanley and Irene Rusek, owners of Parcel A, have asked us to affirm the judgment relating to Parcel A. Petitioner has also indicated its willingness to affirm this portion of the judgment and we affirm the judgment as to Parcel A.

Defendants John and Josephine Przywara, National Bank of Albany Park and Exchange National Bank of Chicago have taken cross-appeals from the denial of their traverses and motions to dismiss and have also appealed the jury’s awards as to Parcels B, C and D. In their cross-appeals defendants argued that they were denied a hearing on their traverses and motions to dismiss the petitioner’s complaint. Defendant National Bank of Albany Park filed a traverse and motion to dismiss simultaneously with its first appearance in the case on February 9, 1966. It alleged that petitioner had failed to satisfy certain statutory preconditions to the institution of condemnation proceedings and also alleged certain facts which it claimed made this taking illegal as an abuse of governmental discretion. On February 11 petitioner’s motion to strike National Bank of Albany Park’s motion to dismiss was filed and granted. The motion to strike stated:

Said defendant’s traverse filed without leave of Court eleven and one-half months after condemnation proceedings were instituted and said defendant was served with summons and one month after this Court denied identical traverse in this cause filed by the same attorneys is an improper attempt to have this Court try the same question over and over again contrary to the well established law in Illinois.

The Exchange National Bank sought leave to file a similar traverse and motion to dismiss on February 10, 1966, but leave was denied it on the same day. No reason for denying leave appears in the record.

The general rule for filing motions to dismiss is stated in Board of Education of Cicero-Stickney Tp. High School Dist. No. 201 v. City of Chicago, 402 Ill 291, 83 NE2d 714, at page 298:

It is also contended by appellee that before appellant is entitled to relief in eminent domain proceedings, a hearing must be had on its motion to dismiss and traverse. This court has held that such procedure is the proper method of reaching and deciding the issues as to the right of a petitioner to have condemnation in a particular case. The only issue to be tried by the jury is the amount of compensation to be awarded. A defendant has a right to contest the petitioner’s right to condemn, which he may do by motion to dismiss, and having done so the burden is on the petitioner to maintain its right by proper proof.

Petitioner, however, argues here and in its motion to strike that the instant case is controlled by Chicago Land Clearance Commission v. Rosenau, 10 Ill2d 501, 140 NE2d 695. In that case condemnation proceedings were instituted on April 2, 1953, and defendant appeared through counsel on May 14, 1953. On January 26, 1954, the trial judge ordered that all parties who wished to contest petitioner’s right to condemn do so within seven days. Defendant’s lawyer informed the court that it did not wish to do so. On June 13, 1955, more than two years after the initiation of the proceedings, defendant changed its position and sought to contest the condemnation. The Supreme Court upheld the trial court’s denial of leave to file a traverse based on failure to comply with the deadline of the order issued on January 26, 1954, saying at page 506:

If all defendants in a condemnation proceeding are required to file their traverses or motions to dismiss within a specified time, then the trial court can control its calendar and try all those traverses which raise the same question and dispose of them on one hearing. On the other hand, if each defendant is to have the right to file his traverse or motion to dismiss whenever he sees fit to do so, then the trial court will be obliged to try the very same question over and over again. This would compound the evils that the crowded court calendars in Cook County already present.

The petition in the instant case was filed on March 4, 1965; an additional petition enlarging the area sought to be taken was filed in July 1965. No further action was taken by petitioner until January 27,1966, when petitioner moved to consolidate the cases and they were ordered removed from the calendar. The record does not disclose that a trial date was set. (Appellee claims that February 21 was set as the trial date.) On February 9 National Bank of Albany Park filed its appearance and motion to dismiss. On February 10 Exchange National Bank of Chicago, as Trustee, filed its motion for leave to file its motion to dismiss. No order setting a deadline for filing traverses was ever sought or entered. We cannot find that defendants’ rights to contest petitioner’s right to condemn should have been denied under these circumstances. Rosenau is clearly distinguishable on the facts.

Petitioner, however, points out that the parties in this case sought to file traverses and motions to dismiss identical to that denied in the proceeding as to Parcel E. (Parcel E was tried separately by a different trial judge following the granting of a change of venue.) Petitioner argues that since the same lawyers represented the owners of Parcel E as well as the parties who filed the motions to dismiss and the traverses in this case and the motions to dismiss alleged identical grounds, the parties in the instant case are barred by the decision reached by the judge in the proceedings as to Parcel E one month before their own motions were filed. We know of no “well established law in Illinois” which prevents owners of property from challenging the condemnor’s right to proceed simply because they make the same arguments through the same attorneys as were made by another party in a different trial presided over by a different judge and involving a different piece of property. Certainly the fact that different properties and different parties were involved prevents the application of the principle of res ad judicata. We believe that defendants were entitled to a hearing on the petitioner’s right to condemn. Therefore the judgments as to Parcels B, C and D are reversed and the cause remanded with directions to vacate the order striking the traverse and motion to dismiss of National Bank of Albany Park, to vacate the order denying leave to Exchange National Bank to file its traverse and motion to dismiss and to conduct such proceedings as may be required. City of Kewanee v. Puskar, 308 Ill 167, 139 NE 60.

Both petitioner and defendant have asserted errors entitling them to a new trial on the questions relating to just compensation. In view of our decision we find it unnecessary to consider these alleged errors.

Affirmed as to Parcel A. Reversed and remanded with directions as to Parcels B, C and P.

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


text:
    City of Chicago in Trust for the Use of Schools, Petitioner-Appellant, v. Albert J. Schorsch Realty Company, Inc., et al., Defendants, Consolidated With City of Chicago in Trust for the Use of Schools, Petitioner-Appellant, v. John Przywara, et al., Defendants-Appellees, Western National Bank of Cicero, etc., Defendant-Appellee.
    Gen. No. 51,674.
    First District, Fourth Division.
    April 10, 1968.
    Rehearing denied May 22, 1968.

      James W. Coffey and Frank S. Righeimer, of Chicago (Frank S. Righeimer and Richard E. Girard, of counsel), for appellant.
    Green, Murnighan & Kane, of Chicago (John B. Murnighan and John J. Jiganti, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Petitioner in eminent domain proceedings appeals from a jury award and judgment of $97,440 in favor of the owner of Parcel E — Western National Bank of Cicero, as Trustee under Trust No. 498. Defendant cross appeals from the denial of its motion to dismiss the complaint.

Petitioner instituted condemnation proceedings on March 4, 1965 (Circuit Court No. 65 L 7227) for five parcels of land to be used for school purposes. On July 14, 1965, another petition was filed in the same case seeking nine and one-half acres of unsubdivided land and one acre of subdivided property which consisted of eight lots designated as Parcel 4 and also referred to as Parcel E. On July 14, 1965, another petition was filed in a new case (Circuit Court No. 65 L 20763) seeking the same property. In that case a change of venue was granted on November 3, 1965, as to Parcel 4, and the case reassigned for a separate trial as to Parcel 4. Thereafter the cases were consolidated.

This appeal by petitioner and the cross appeal of Western National Bank of Cicero as Trustee under Trust No. 498 (hereinafter referred to as defendant) emanates from the proceedings in the separate trial as to Parcel 4 — also referred to as Parcel E.

In the consolidated case petitioner sought to condemn ten and one-half acres of land located in the vicinity of O’Hare Airport bounded by Cumberland Avenue on the west and Pittsburgh Avenue on the east. Balmoral Avenue was to the south and the city limits (close to Bryn Mawr Avenue) were the northern boundary. Defendant’s eight lots fronted on Pittsburgh Avenue each with 58-foot frontage and a depth of 107.48 feet. The evidence showed that the property was zoned R-2, single-family residence, and each lot in the- subdivision bore a covenant restricting it to such use.

On appeal petitioner’s principal contention is that the conduct of defense counsel in closing argument was so prejudicial as to deny petitioner a fair trial.

Petitioner’s Evidence

Herman O. Walther testified that he was a real estate appraiser with extensive experience and that he had taught real estate appraising. He said that there were many other areas in the City of Chicago still being developed for houses and that in the immediate vicinity of the subject property, just west of Cumberland Avenue, there were 100 vacant acres and three and one-half miles east of Pittsburgh Avenue there was an only partially developed new home area. He stated that the highest and best use of the eight lots was for single-family residences and that each lot was worth $8,000.

Albert J. Schorsch, Jr. testified under subpoena. He stated that he and his family had been developing property in the area for about ten years, that eighteen months earlier one of the companies in which he and his family were involved sold a lot on the corner of Pittsburgh and Balmoral to another of the Schorsch companies for $9,000 and that this was not an arm’s length transaction. He said that the lot was 60 feet wide and 124 feet deep but that the trend was toward building houses on lots 50 feet wide.

Raymond Cleveland stated that he was a real estate broker and that he had recently participated in the sale of a property 48 feet wide and 141 feet deep and within one-half mile of the subject property for the price of $7,500. He said that the lot fronted on Cumberland Avenue across the street from a large shopping center and three or four lots away from a gas station and that the houses in that area sold for between twenty and thirty thousand dollars.

Edwin J. Feulner testified that he was a broker, manager and appraiser of real estate and that he was familiar with the area of the subject property. He said that the highest and best use of the eight lots was R-2 single-family residences and that as such they were worth $140 per front foot ($8,120 for 58-foot frontage).

Defendant’s Evidence

Albert Schorsch, Jr. (who had also been called as a witness by petitioner) testified that his organizations were in competition with defendants and owned the property immediately south of defendant’s subdivision. He said that the highest and best use of the subject property would be under R-3 general residence zoning. He then testified:

Under R-3 zoning you might be able to build one flat on each parcel of 2,500 square feet and on a lot 46%, maybe slightly larger than this, you could build a two flat. You could get nine total units out of that group of 8 lots and if you took into consideration the ownership of adjacent lots you could get 10 lots because all you need is one more front foot to make the 10th lot. I have an opinion of the fair cash market value of 10 such units as of July 15, 1965. I believe each of the units 46% x 107.48, that each parcel that size would be worth $11,000 which works out to be $220 — $225 a front foot. My opinion is the same if the zoning remains the same.

Frank Syms testified that he was an appraiser, broker, manager and financier of land transactions; that an area of land to the east of the subject property separated by one vacant parcel and Pittsburgh Avenue had been developed with homes ranging in value from $30,000 to $45,000 by the Schorsch interests, James C. Moreland and Son and the beneficial owners of the subject property and that there is a relationship between the value of vacant and improved property. He said that the highest and best use was for single-family residences and that each lot would have a value of $10,400 or $179 per front foot or a total of $83,200 for the eight lots. He stated that there was a scarcity of comparable sales because most developers sold property with houses as a complete package.

William F. Moreland stated that he was a broker and developer and was president of the company of James C. Moreland and Son which had developed property in the area. He testified that the highest and best use was single-family residences, that the fair cash value of the eight lots depended on whether their sale was separate or bulk, that the fair cash value was $11,000 to $14,000 per lot or $200 to $225 per front foot.

Raymond Peterson said that he was a builder and sub-divider, that he was involved in a sale within a mile of the subject property, the price was $251.87 per front foot for five lots, all of which were 125 feet deep and four of which were 25 feet wide with the fifth being 38 feet wide. He said there was no longer any vacant property in the immediate area of that sale. He testified that the highest and best use of the subject property was for single-family residences and that the fair cash value for the eight lots would be approximately $11,000 per lot or $220 to $225 per front foot. He admitted on cross-examination that he never walked around the subject property or bought or sold property within two or three blocks of it but that he had only driven by it.

Opinion

Petitioner contends that prejudicial conduct of defense counsel in his closing argument so confused and prejudiced the jury that it was denied a fair trial. Walther testified that the eight lots were worth $8,000 per lot. Defense counsel argued to the jury that viewing Walther’s testimony of $8,000 per lot with that of witnesses who testified to the possibility of making ten lots out of the property, that “even using Mr. Walther’s valuation, the overall picture is $80,000 for this whole parcel.” Walther never testified to what the lots would be worth if subdivided into ten smaller lots. Counsel used the same method in discussing the testimony of Feulner, Syms and Peterson who all valued the eight lots as then subdivided.

Petitioner also complains that counsel’s argument that property which was sold on Cumberland was not comparable to the subject property because Cumberland is a “. . . high speed street with a rumble strip,” was not based on any evidence in the case. The same is said of the argument that the jury should consider the difficulty of defendant’s getting new land to continue this construction and development business. Finally, complaint is made of a personal attack on petitioner’s counsel.

Defendant, however, argues that the alleged errors are not properly preserved for review. The record shows that not one of the remarks complained of was objected to at the trial. In County of Cook v. Colonial Oil Corp., 15 Ill2d 67, 153 NE2d 844, the court said at page 75:

Counsel for defendant also characterizes the closing argument of petitioner’s counsel as “unfair, insulting, full of ridicule of respondent’s witnesses and counsel, and so insinuating and vindictive as to be highly prejudicial to the respondent.” First of all, counsel for defendant, who is admittedly experienced in condemnation, made no objection to any of the opening argument of counsel for petitioner and no objection to any of the supposedly objectionable remarks made by petitioner’s counsel in his final argument. We have consistently held that experienced counsel cannot take a chance of failing to make objections and then, upon receiving what they consider - an adverse jury verdict, claim error. (City of Chicago v. Vaccarro, 408 Ill 587.)

Furthermore, in its post-trial motion the petitioners said only: “The petitioner was prejudiced by the argument made by counsel for defendant to the jury.” Illinois Revised Statutes, 1963, c 110, § 68.1, requires that the post-trial motion “contain the points relied upon, particularly specifying the grounds in support thereof. . . . A party may not urge as error on review of the ruling on his post-trial motion any point, ground or relief not particularly specified in the motion.” (Emphasis supplied.) In Kortlander v. Chicago Transit Authority, 56 Ill App2d 48, 205 NE2d 516, it was held that unless the allegedly improper remarks were specifically set forth in the post-trial motion, no objection could be raised to them on appeal. See Lawler v. Pepper Const. Co., 33 Ill App2d 188, 178 NE2d 687; Perez v. B. & O. R. Co., 24 Ill App2d 204, 164 NE2d 209; Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 149 NE2d 351.

In the instant case the verdict was “within the range of the evidence.” Chicago Land Clearance Commission v. Darrow, 12 Ill2d 365, 146 NE2d 1. There was evidence that the eight lots were worth $11,000 to $14,000 per lot and that the 464 feet were worth between $200 and $225 per front foot. In fact, in discussing the post-trial motion the trial judge said:

There isn’t any question that this jury valued this property, 464 feet at $210 a foot, which multiplied comes out to $97,440 to the penny. I don’t think they ever considered it as ten sites as such. If they did, they would have come out with $9,744 a building site, and juries don’t do that.
In my opinion, this verdict is within the realm of the evidence, and I don’t think there is, as far as I am able to observe — and I don’t think there is any error in the record.

In view of petitioner’s uniform failure both to object at the trial and to specify in the post-trial motion, and since the verdict is within the range of the evidence, the judgment is affirmed.

Cross-Appeal

Defendant contends in its cross-appeal that its motion to dismiss should have been sustained because (1) the taking was an abuse of the School Board’s power in that the proposed site for school purposes was in a flight zone for aircraft using O’Hare Field, and (2) the statutory-prerequisites were not fulfilled.

Hearing on Traverse and Defendants’ Motion to Dismiss

Defendant’s Evidence

Saul Samuels was called by defendant under section 60 and testified that he knew of no schools built within a flight zone in the last four years but that he did not have sufficient information to say that none was built.

Francis B. McKeag, assistant superintendent of schools, testified under section 60 that there would eventually be plans for a school on the site although he did not feel there then existed any specific plans. He said, “We will serve a % mile radius from this location in all directions so far as Kindergarten through 6th grade is concerned. li/i miles as far as 7th and 8th grades are concerned and when a high school is placed on this location it would serve a 1% mile radius.” He stated that the northern boundary of the proposed school site was also the northern boundary of the City of Chicago, that due to the inadequacy of present facilities the Board of Education was forced to pay tuition fees for 120 students from this area to another school system and that this school system had told the board last spring that it would no longer have room for these students. He admitted, however, on cross-examination that a report of the General Superintendent of Schools said that the schools in District 1, the district here involved, were capable of receiving more students.

Joseph P. McMahon, assistant real estate agent of the Board of Education, testified under section 60 that he was visited by defendant’s lawyer; that he did not know whether the lawyer came in response to the letter containing the offer of purchase; that the lawyer did not present the letter; that he did not tell the lawyer what the offer was; that the lawyer only stated that his people were not happy about it and that he told the lawyer that he (McMahon) had no authority to change the offer.

John Duba, Commissioner of Development and Planning, testified that the Chicago Plan Commission was not consulted on this project.

Petitioner’s Evidence

Francis B. McKeag testified that because of the decision of the Pennoyer School Board to stop receiving the 120 students from this area, the Chicago Board of Education was forced to place four mobile classrooms on the comer of Balmoral and Cumberland. He said that in the last ten years the city had annexed a considerable amount of territory requiring the acquisition of a school site in the general area.

Frank G. Lappas testified that he was an aeronautical consultant with a degree in civil engineering, that he had been a consultant to companies throughout the nation on matters pertaining to air hazards as well as to property owners planning on the use of land in the vicinity of airports, that he had appeared before the Federal Aviation Agency on numerous occasions, that he had studied the rules and regulations of various bodies having to do with airports throughout the country, and that he was familiar with O’Hare. He stated that there were a variety of safety zones around airfields and that this property was within O’Hare’s instrument approach zone but not within the control zone. He said that the subject property was 15,000 feet from the end of the runway and 1,400 feet off the extended center line of the runway and that a two-story building would constitute no hazard and violate no pertinent regulations he knew of.

Opinion

In its cross-appeal defendant first contends that the taking is an abuse of power and the petition should have been dismissed. The general rule is stated in Trustees of Schools of Township 37 North, Range II, Cook County v. Sherman Heights Corp., 20 Ill2d 357, 169 NE2d 800, at page 360:

The question of necessity for taking by eminent domain for public use is legislative and its determination is within the discretion of the corporate body vested with the power to exercise the right. [Cases omitted.] Such a determination will be disturbed by the courts only where there has been an abuse of power violative of constitutional rights. [Cases omitted.]

Petitioner introduced testimony that ten years of annexation by the City of Chicago had created the need for new school facilities in the area, first met by paying tuition for 120 students in the schools of a nearby community and later by the erection of four mobile classrooms. Defendant, however, says that the school board abused its power in attempting to construct a school in what it terms the “flight zone” around O’Hare Airport when such action is expressly disapproved by the zoning regulations for the Chicago-O’Hare International Airport. Section 2 of these provisions provides:

Land Use Restriction Zone — In that portion of the approach zone at each end of each instrument and non-instrument runway as indicated on the zoning map, is hereby established an area hereinafter referred to as the land use restriction zone. The land use restriction zone shall have a width of 1,000 feet at a point 200 feet from the end of each runway widening thereafter uniformly to a width of 4,000 feet at a distance of 10,200 feet from the end of each runway. Any land use established within the land use restriction zone subsequent to the effective date of these zoning regulations shall be subject to the control of the affected political subdivision. To the extent where feasible, such political subdivision shall discourage further development of residential buildings and places of public assembly involving educational, institutional, amusement, and recreational uses. [Emphasis added.]

The evidence shows that the subject property is 15,000 feet from the end of the runway and therefore outside the land use restriction zone. Moreover, the only testimony on the actual hazards involved was given by petitioner’s witness Lappas, an aeronautical consultant, who stated that the placement of a school on the subject property would not constitute a safety hazard and would not violate any regulations he knew of.

Defendant also argues that petitioner voluntarily dismissed two prior suits to condemn nearby property because that property was in a “flight zone.” Defendant claims that it relied on these actions to its detriment and that petitioner is therefore estopped from taking the subject property citing Hickey v. Illinois Cent. R. Co., 35 Ill2d 427, 220 NE2d 415. Defendant produced a document purporting to be a recommendation of the General Superintendent of Schools that one of the condemnation suits be dismissed because the property to be condemned was in a flight zone. However, there was no evidence whatsoever as to the reason for the dismissal of the other suit. Furthermore, there was no evidence defining a “flight zone” or showing that the subject property in the instant case was within it. Finally, defendant failed to show that the expenditures it made in improving the property in reliance on these dismissals will not be reflected in the property’s value and will be lost to it. In these circumstances we find no basis for the conclusion that petitioner is estopped from taking the subject property. See generally Chicago, St. L. & W. R. Co. v. Gates, 120 Ill 86, 11 NE 527.

Defendants’ second contention in their cross-appeal is that petitioner failed to fulfill conditions precedent to the filing of condemnation proceedings. First, defendant argues that there was no good faith attempt on the part of petitioner to negotiate with the landowners and no refusal on their part to agree on a valuation. The general superintendent of Chicago schools sent defendant a letter making an offer of $40,000 for the property. The letter stated that the general superintendent had been empowered by the School Board to negotiate but that if discussion was desired Mr. Fred Arnholt of the Board of Education should be contacted first. Defendants produced evidence only that their lawyer talked to Joseph McMahon of the Board of Education’s real estate office, but that he made no counter offer and no request to discuss this with the Superintendent. The lawyer merely said his clients were dissatisfied with the offer, to which Mr. McMahon replied that he had no authority to change it. We believe there was sufficient offer and attempt to negotiate. See County Board of School Trustees of Macon County v. Batchelder, 7 Ill2d 178, 130 NE2d 175; County of Mercer v. Wolff, 237 Ill 74, 86 NE 708.

Defendant also contends that the School Board’s failure to contact the Chicago Plan Commission before it sought to condemn prevents a valid condemnation. Illinois Revised Statutes, 1965, chapter 24, section 11-12-4.1, reads as follows:

Whenever a municipality of more than 500,000 population has created a plan commission pursuant to the provisions of this Division 12, every plan, design or other proposal by any public body or agency which requires the acquisition or disposition of real property within the territorial limits of the municipality by any public body or agency, . . . shall be referred to the plan commission by such public body or agency not less than 30 days prior to any election for the purpose of authorizing the borrowing of money for, or any action by such public body or agency to appropriate funds for, or to authorize such changes or the acquisition or disposition of such real property, but in no event shall such referral be less than 30 days prior to making such changes or acquiring or disposing of such real property. The plan commission shall review every such plan, design or other proposal and shall within 30 days after submission thereof report to the public body or agency having jurisdiction over such real property or improvement thereon concerning the conformity of the plan, design, or other proposal with the long range planning objectives of the municipality and with the official plan for the municipality or any part thereof if the same shall then be in effect as provided in Section 11-12-2. Such report shall be spread of record in the minutes or record of proceedings of such public body or agency. A report that any such plan, design, or other proposal is not in conformity with the long range planning objectives of the municipality, or the official plan for the municipality shall be accompanied by a written statement of the respects in which such conformity is lacking but such a report shall not bar the public body or agency having jurisdiction over such real property or improvement thereon from thereafter making such changes or acquiring or disposing of such real property. . . .

The statute expressly provides that the plan commission’s disapproval does not bar the proposed action. We believe that the statute taken as a whole indicates that the requirement of submission to the plan commission is not mandatory and failure to submit the proposed action to the commission does not bar condemnation.

Defendant asserts the court erred in sustaining petitioner’s objections to an interrogatory requesting a list of all persons who were directed by the board to inspect the property. The petitioner claimed that the names were privileged and not subject to disclosure relying on Chicago v. Harrison-Halsted Bldg. Corp., 11 Ill2d 431, 143 NE2d 40 which held that the reports of appraisers were privileged. However, we believe that under the broad discovery principles of Monier v. Chamberlain, 35 Ill2d 351, 221 NE2d 410, the names of appraisers are not privileged. Nevertheless, under the circumstances we deem this to have been a harmless error.

Defendant also contends that errors were committed in the pretrial discovery proceedings with regard to the disposition of six answers to defendant’s notice to admit facts. Petitioner responded to the questions by denying knowledge sufficient to answer the questions and at the same time asserting that they were irrelevant and immaterial. Defendant complains that its motion to strike those parts of petitioner’s answers asserting that the questions were irrelevant and immaterial was erroneously denied. Supreme Court Rule 216, Illinois Revised Statutes, 1965, chapter 110A, section 216, formerly Rule 18, requires that the questions be either answered or objected to or that an explanation of why they cannot be answered must be given. Petitioner should not have been able to both answer and object simultaneously to the same matter. The motion to strike those portions of the answers which amounted to objections should have been granted. However, this error could not prejudice defendant and cannot be the basis of a reversal.

Defendant also urges that those portions of the answers asserting inability to answer were specious and not made in good faith and that denial of its motion that petitioner be deemed to have admitted answers favoring the movant was error. We sympathize with petitioner’s inability to answer some of these questions because the maps provided by defendant fail to show what defendant asserted they showed and did not contain the material necessary to answer the questions. Furthermore, failure to deem these answers admissions could not have substantially prejudiced defendant’s case. Some of the questions dealt with whether the subject property and other property which had been the subject of condemnation suits were within an instrument approach zone within the meaning of the 1965 Revised Code of Federal Regulations, Title 14, c 1, § 77.27. The evidence ultimately showed that these properties were within the zone. Thus failure to deem these facts as admitted could have had no prejudicial effect. See Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358. Moreover, section 77.27 does not characterize these zones as hazard zones and has no bearing on the case. (Section 77.23 entitled “Standards for Determining Obstructions” defines hazard areas. There was no showing that this property was within a hazardous area either under section 77.23 or the O’Hare Zoning Regulation, supra.) The remaining questions were also substantially answered by the evidence but again failed to have any significant bearing on important issues in the case. Failure to deem these answers admissions was not reversible error.

Finally, we find no error in the trial court’s refusal to direct an answer to a question propounded during a discovery deposition.

In view of the foregoing, the judgment of the Circuit Court is affirmed.

Affirmed.

McCORMICK, P. J. and ENGLISH, J., concur.

       Ill Rev Stats, 1963, c 110, § 60.

       The only evidence identifying and explaining the different zones that surround an airport was provided by petitioner’s expert, Frank Lappas. He said the “instrument approach zone” was 500 feet on each side of an extended center line of a runway projecting out to 50,000 feet at which point the width of the zone was 16,000 feet and that the subject property fell within this zone. He mentioned but did not define the “non-instrument approach zone.” Adjacent to the two zones are “transitional zones.” Lappas also stated that there were conical surfaces and outer conical surfaces. He did not testify that any of these above were hazard zones, nor did he mention the term “flight zone.”