text:
    In the Estate of Mary B. Koss, a/k/a Mary B. Schenecker, Deceased. Petition of Lorraine E. Steffens That the Will of Said Decedent Be Admitted to Probate and That Letters Testamentary Issue. Lorraine E. Steffens, Petitioner-Appellant, v. County of Cook, Illinois, Appellee.
    Gen. No. M-51,353.
    First District, Fourth Division.
    May 19, 1967.

      Harold C. Osburn and Miller, Gorham, Wescott & Adams, of Chicago (Harold C. Osburn and John F. Arnold, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Donald J. Veverka, Assistant State’s Attorney, of counsel) , for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Lorraine E. Steffens filed a petition to admit to probate the will of Mary B. Koss, under which she was the executrix and sole beneficiary. After a hearing thereon the will was refused probate and an order was entered denying the petition. Petitioner appeals from that order and from various other orders entered during the course of the proceedings. Appellee, the County of Cook (to which the estate of the decedent would escheat under the intestate laws if the will was refused probate) filed a motion in this court to dismiss the appeal on the ground that appellant failed to file a notice of appeal within the time allowed by section 76 of the Civil Practice Act.

Motion to Dismiss the Appeal

The order denying the petition to admit the will to probate was entered on November 23, 1965, and the notice of appeal was filed on January 20, 1966, 58 days from the entry of the order. At the time the judgment order was entered section 76 of the Civil Practice Act (Ill Rev Stats 1963, c 110, § 76) allowed 60 days to file a notice of appeal. Section 76 was amended on May 19, 1965, by an act effective January 1, 1966, shortening the period allowed for filing a notice of appeal to 30 days. In its motion appellee contends that the 30-day limitation in the new act is applicable to this appeal, notwithstanding that the 30-day period would expire prior to the effective date of the act. In support thereof appellee asserts that:

The new Section 76 was published in the 1965 Illinois Revised Statutes along with the old Section 76. The old Section 76 was preceded in the Statutes with the notation, “Text of Section 76 until Jan. 1, 1966,” while the notation “Amendment' of 1965, effective Jan. 1, 1966” preceded the new Section 76. By so doing the Legislature gave full notice that the time requirement for filing a notice of appeal, a procedural matter, was being changed.

In opposition to the motion appellant argues that article VI, section 7, of the Illinois Constitution (Ill Const art VI, § 7 (1964)) effective January 1, 1964, provides that “appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court in the District in which the Circuit Court is located”; that the constitutional right attaches at the time the final appeal-able order is entered; that at the time thereof she was allowed 60 days in which to file a notice of appeal; and that the time period, being constitutional in nature, cannot be retroactively shortened by the legislature.

We believe that the case of George v. George, 250 Ill 251, 95 NE 167, is directly in point. In that case a writ of error to review a decree entered on March 29, 1907, was issued on September 20, 1910, more than three years after the entry of the decree. When the decree was entered there was a five-year statute of limitations for prosecuting a writ of error, which period was shortened to three years by a new act effective July 1, 1907. The court held the five-year period to be applicable and stated at pages 253-256 that:

The jurisdiction of this court to review the judgments and decrees of trial courts in this class of cases by writs of error does not depend upon the statute. That jurisdiction is conferred by the constitution, and the right to sue out a writ of error is a constitutional right and must be allowed when claimed. (Schlattweiler v. St. Clair County, 63 Ill 449.) Section 2 of article 6 of the constitution provides that the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases. Section 8 of the same article provides that appeals and writs of error may be taken to the Supreme Court. In this case a freehold is involved, and the parties to this decree have a constitutional right to sue out a writ of error in this court to review that decree. It is not within the power of the legislature to deprive the Supreme Court of the jurisdiction to review such cases by writs of error or in any manner to abridge that jurisdiction, but the legislature may by proper enactment regulate the practice in respect to writs of error and may limit the time within which writs of error may be sued out of this court. Section 117 of the Practice act of 1907 does not attempt or pretend to confer jurisdiction upon the Supreme Court to review judgments and decrees by writs of error, but merely limits the time within which such writs may be sued out. It is strictly a statute of limitations and must be construed as such.
In that case [referring to Hathaway v. Merchants’ Trust Co., 218 Ill 580] we held that the section of the Administration act fixing the time for filing claims against an estate is not a statute conferring jurisdiction but is a limitation act, which will not be given retroactive effect in the absence of clear legislative intention, and that the act, as amended by the act of 1903 reducing the time for filing claims to one year [after the issuance of letters testamentary], does not apply to claims against an estate upon which letters testamentary had been granted before the act took effect. [In the instant case] there is nothing in section 117 of the Practice act of 1907 which indicates that the legislature meant it to be retroactive in its effect.
In addition to the general rule that limitation acts will not be given a retroactive effect in the absence of clear legislative intention, section 4 of the act to revise the law in relation to the construction of statutes provides that no law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any right accruing or claim arising under the former law, or in any manner whatever to affect any right accruing or claim arising before the new law takes effect. The right of plaintiffs in error to sue out a writ of error from this court to review the decree of the superior court of Cook County, and thus begin a new suit, accrued at the time that decree was entered, and therefore was a right accruing under the law in effect at that time. The statute at that time provided that a writ of error should not be brought after the expiration of five years from the rendition of the decree or judgment complained of.
Defendants in error insist, however, that as this decree was rendered on March 29, 1907, and the new Practice act became effective on July 1, 1907, plaintiffs in error had almost three years within which to sue out this writ of error after that act became effective, and that as this must be held to be a reasonable time, the new limitation should prevail in this case. This act must be applied generally to all causes of action accruing before the act of 1907 became effective. It cannot be said that the act will apply in one case and not in another.

Jurisdiction of the Appellate Court is now conferred by the Constitution, and the right to appeal is guaranteed by the Constitution. Therefore section 76 of the Civil Practice Act cannot be construed as a statute conferring jurisdiction but instead must be construed as a limitation act. Since a limitation act will not be given retroactive effect in the absence of clear legislative intention (George v. George, supra), and no such intention appears from an analysis of section 76, that limitation act which was in effect at the time the right to appeal accrued is applicable. Thus, the petitioner in the instant case had 60 days from the entry of the final appealable order in which to file a notice of appeal. Marlas v. Virekeos, 14 Ill App2d 1, 142 NE2d 808, relied upon by the appellee, is inapplicable because at the time of that case Appellate Court jurisdiction was not conferred by the Constitution nor was the right to appeal guaranteed by the Constitution. In Exchange Nat. Bank v. Village of Skokie, 71 Ill App2d 215, 217 NE2d 336, a case relied upon by appellees which was subsequent to the effective date of section 7 of article VI of the Constitution, an argument based upon George v. George, supra, was not presented in opposition to the motion to dismiss. Our opinion was incorrect and is hereby overruled.

Since the notice of appeal was filed 58 days after the entry of the final appealable order, appellee’s motion to dismiss the appeal is denied.

Admissibility of the Will to Probate

On May 26, 1965, the decedent (Mary B. Koss) purportedly executed her last will and testament in which she left her entire estate to a longtime friend, Lorraine E. Steffens (also known as Lorraine Hamann), who was also named as executor. Mary Koss died two days later, leaving no known heirs at law. The alleged will was witnessed by two persons, Armella Warren and Marie Redmond, both of whom were employed as nurses to the decedent. Immediately above their signatures was an attestation clause which provided that:

The foregoing instrument at its date was subscribed by the testator, MARY B. KOSS, in our presence, and at the same time was declared by her to be her last Will, and at the same time, in her presence, at this request and in the presence of each other we have hereunto subscribed our names as witnesses. We do hereby certify that at the time of the execution of the foregoing Will the Testator was of sound mind and memory.

At the hearing to admit the will to probate one of the witnesses, Marie Redmond, appeared without subpoena and testified as to all of the statutory requisites. The other attesting witness, Armelia Warren, appeared under subpoena and testified that the document offered for probate was signed by the decedent in her presence and that both of the attesting witnesses signed in the decedent’s presence. However, she denied that she knew that the document was a will and asserted that she was informed by Lorraine Steffens that the document was a power of appointment so that the nurses could be paid. Notwithstanding her certification in the attestation clause, Armelia Warren also testified that she did not believe the testator was of sound mind. She stated that her conclusion as to the soundness of testatrix’ mind was based upon her opinion that the testatrix was “mentally incompetent, frightened, very anxious and complaining of pain.” The witness further stated that she could not read any portion of the document which she signed because her glasses had broken that day. Armelia Warren also testified that the document which she signed consisted of only one page at the time it was signed and attested, instead of the three pages in the document offered for probate.

The testimony of Armelia Warren was subject to various contradictory and impeaching facts and evidence:

(1) Marie Redmond testified that after the decedent’s death Armelia Warren informed her that unless she was paid $1,000 she would not appear as a witness and that she would fight admission of the will to probate all the way to the Supreme Court. This testimony was never contradicted.

(2) While Armelia Warren testified that she had broken her glasses, and therefore was unable to read, by her own admission she read to the decedent every day from the Bible. She made no exception as to the day in question. Moreover, she was able to see the document well enough to sign her name on the line provided therefor and to write her address after the word “address.” There is no testimony that anyone told her exactly where to sign the document and, therefore, if she could not read without her glasses Armelia Warren would not have signed in the correct place.

(3) Marie Redmond testified that the glasses were worn by Mrs. Warren on a chain around her neck, and that she used the glasses whenever she read or wrote; and that on the day in question Armelia Warren made entries on the chart kept of Mary Koss’ condition. Armelia Warren did not deny that she made those entries.

(4) While Armelia Warren testified that the document she signed contained only one page, the page on which her signature appears contains the phrase in capital letters “PAGE THREE OF THREE PAGES.”

(5) William Button, an attorney who prepared the alleged will in the presence of the decedent, testified that he conversed with the decedent concerning her assets and was satisfied that she was a capable person. He stated:

[T] he Estate had arisen as a result of Mrs. Koss and her husband being in the drug business, and that he had died and there was no one, no heirs, and that she wanted her estate to go to Mrs. Steffens, because that is what she wanted.
Then, at this point, I was satisfied in my own mind that Mrs. Koss was a capable person, and I asked her and said what estate do you have exactly?
She mentioned that she had two bank accounts and that she had some stocks but that in one bank account it was in her maiden name.
She told me the names of the stocks and the bank accounts and there was some mention about steel cabinets and a white cabinet and I further noted the fact that she wanted to be cremated.

Button further stated that Armelia Warren was present in the decedent’s room as he was preparing the will; that he turned to her, told her that he was preparing Mrs. Koss’ will and requested that she sign it as a witness, and she assented. Button testified that the will was three pages in length, and the pages were put within blue-backs and fastened with grommets. (This was the condition of the will as it was filed for probate.) After he finished the will Button testified that he turned to Marie Redmond and Armelia Warren and said: “I have finally-finished Mrs. Koss’ Will and will you please act as witnesses to the will?” The will was then signed by the decedent and by the two witnesses in the presence of the decedent.

Section 69 of the Probate Act (Ill Rev Stats 1965, c 3, § 69) governs the admissibility of a will to probate. It provides:

When each of 2 attesting witnesses to a will testifies before the court (a) that he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or that the testator acknowledged it to the witness as his act, (b) that the will was attested by the witness in the presence of the testator, and (c) that he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will, the execution of the will is sufficiently proved to admit it to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the probate court is deemed sufficient to invalidate or destroy the will. The proponent may also introduce any other evidence competent to establish a will in chancery. If the proponent establishes the will by sufficient competent evidence it shall be admitted to probate unless there is proof of fraud, forgery, compulsion, or other improper conduct which in the opinion of the court is deemed sufficient to invalidate or destroy the will.

It is settled law that execution of an instrument may be sufficiently proved where one attesting witness testified positively to the requisites of execution and the other witness does not recollect or denies compliance with the statutory requisites. Loomis v. Campbell, 333 Ill App 617, 78 NE2d 143. In that case the court allowed a will without an attestation clause to be admitted to probate even though one of the attesting witnesses (who was an heir at law of the testatrix) admitted the validity of her signature but denied that she signed a will. The witness in that case testified that on some undetermined occasion she signed her name only on a blank piece of paper in connection with placing a horse racing bet; and that on the date she allegedly signed the will she was at her home in another city.

Where an attestation clause is in due form and the will bears the genuine signatures of the testatrix and of the witnesses this is prima facie evidence of the due execution of the will, which cannot usually be overcome by the testimony of a witness that there was not compliance with all of the statutory requisites. Jenkins v. White, 298 Ill 502, 131 NE 634. (See also In re Estate of Hart, 79 Ill App2d 134, 223 NE2d 466.) The testimony of a subscribing witness which seeks to impeach a will is to be viewed with suspicion and received with caution. Spangler v. Bell, 390 Ill 152, 60 NE2d 864; Jenkins v. White, supra.

In the instant case the credibility of the testimony of Armelia Warren hinges primarily upon the veracity of her claim that she had broken her glasses on the date of the alleged execution of the will. This claim is contra-dieted not only by the testimony of the other attesting witness, Marie Redmond, that the glasses were on a chain around her neck but also by (1) the uncontradicted testimony of Marie Redmond that Armelia Warren made entries on the chart kept of the testatrix’ condition on the date in question (and therefore could read the chart to ascertain where to make the entries); (2) the admission of Armelia Warren that she read to the testatrix each day (making no exception for the day in question); and (3) the fact that Armelia Warren could see exactly where on the instrument to sign her name and address, apparently without direction from any other person. The credibility of Armelia Warren’s testimony is further affected by (1) the uncontradicted testimony that she demanded $1,000 or she would fight probate of the will all the way to the Supreme Court; and (2) the testimony of a licensed attorney who stated that he had an intelligent conversation with the testatrix which led him to conclude that she was of testamentary capacity, and that he informed Armelia Warren that she was signing as a witness to the decedent’s will.

Since the amendment to section 329 of the Probate Act (Ill Rev Stats 1963, c 3, § 329) an appeal from an order denying probate to a will is governed by the same principles as other civil appeals in reviewing alleged errors of the trial court. Knaphurst v. Lindauer, 61 Ill App2d 269, 210 NE2d 23. A judgment will be reversed on appeal if it is manifestly against the weight of the evidence. Hubbard v. Checker Taxi Co., 54 Ill App2d 392, 203 NE2d 441. In the instant case we find that the order of the trial judge denying admission of the will of Mary Koss to probate was against the manifest weight of the evidence.

Therefore the order of the circuit court is reversed and the cause remanded with directions to admit the will of Mary Koss to probate.

Reversed and remanded with directions.

ENGLISH, P. J., concurs, and MCCORMICK, J., concurs in the decision but not with everything said therein concerning the motion to dismiss.

       That section is still in force today. Ill Rev Stats 1965, c 131, §4.

       We note that in its order adopting the revised Supreme Court Rules (which are effective January 1, 1967) the Supreme Court stated:
      They govern all proceedings in actions commenced after they take effect. They also govern all further proceedings in actions then pending, with the following exceptions: (a) When in a pending action or an action in which a judgment is still subject to review the time allowed under the former procedure for the doing of any act has commenced to run, the time allowed is not shortened by the new rules, (b) To the extent that in the opinion of the trial, Appellate, or Supreme Court the application of the new rules in a particular action then pending would not be feasible or would work injustice, the former procedure applies.

       In the Exchange National Bank case we allowed a petition for leave to appeal.

       Appellee refers to statements of the attorney to Mrs. Steffens relating to a possible will contest as supporting its position. However, these statements actually support the contention of appellant that this document was indeed executed as a will.


source: Caselaw Access Project

author: JUSTICE McCORMICK.

license: Public Domain

text:
    Edward J. Damer, Plaintiff-Appellant, v. Burton Browne and Gaslight Club, Inc., an Illinois Corporation, Defendants-Appellees.
    Gen. No. 50,527.
    First District, Fourth Division.
    May 19, 1967.
    Rehearing denied June 19, 1967.
    McKay, Moses, McGarr & Gibbons, of Chicago (Donald J. Parker, of counsel), for appellant; Fein & Pesmen, of Chicago (Harold A. Fein and Jules G. Cogan, of counsel), for appellees.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: MR. JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Savage and William Puckley (Impleaded), Defendants-Appellants.
    Gen. Nos. 50,579 and 50,581.
    First District, First Division.
    May 22, 1967.

      George J. Cotsirilos, of Chicago, for appellant, Thomas Savage.
    Alfred E. Barr, of Chicago, for appellant, William Puckley.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John L. Conlon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendants, Thomas Savage and William Puckley, were jointly indicted in three counts for violation of the Uniform Narcotic Drug Act. The first count charged them with possession of narcotics, the second with dispensing a narcotic drug and the third with conspiring to sell narcotics. The defendants were tried jointly and the jury found them both guilty on all three counts of the indictment.

Defendant Thomas Savage was sentenced to 9 to 10 years for possession (Count 1), 20 years to life for dispensing (Count 2) and 4 to 5 years for conspiring to sell (Count 3), all sentences to run concurrently.

Defendant William Puckley was sentenced to 7 to 10 years for possession (Count 1), 10 years to life for dispensing (Count 2), and 4 to 5 years for conspiring to sell (Count 3), all sentences to run concurrently.

On motion of the defendants, this cause has been consolidated on appeal, the transaction out of which the indictment arose, the trial and the basic issues of law and fact being the same.

The State’s case consisted of two witnesses. One was a police chemist who testified that certain pills delivered to him were chemically tested and found to be morphine sulphate, a narcotic drug. There were also 2,200 red pills which were nonnarcotic. The main witness was police officer, Harold Johnson, a vice detective.

The facts as revealed by Officer Johnson’s testimony are that on February 3, 1965, he received a telephone call from a person he described as a reliable informer. Two days later the informer called again and after talking for a few minutes put a man who identified himself as “Bill” on the telephone. “Bill” said he was interested in “someone who wanted to get some pieces to deal around the high school area.” “Bill” also said, “I have $1,500.00 with me now, but if you want more, take this and try it, and I will get in touch with you tonight and bring as much as you want.” Officer Johnson said he did not have that much money but said he would get it.

The officer then told his informer to have “Bill” call the Roberts Motel and ask for Willie Johnson. The officer called ahead to get a room at the motel and proceeded there. Johnson made the room appear as if he had been living there for some time. The motel clerk was instructed that if two white men came looking for Willie Johnson, they were to be directed to his room.

Officer Johnson waited for more than an hour. The two defendants arrived at the motel and after talking to the desk clerk came to his room. Johnson opened the door and Puckley said, “I am the fellow who called you, Bill.” The defendants went into the motel room. Defendant Savage told Johnson that they “were looking for someone to deal in the high school area.” The conversation continued and Johnson told the defendants he was interested in purchasing narcotics from them.

Puckley then told Savage “(G)o ahead, pick up the stuff.” Savage left and Puckley told Johnson he had “more stuff that my partner doesn’t know anything about.” He offered to deal with Johnson on the side and also to get stolen clothing for him in his size.

About one hour after Savage left, the telephone rang. It was Savage and he asked to “speak to Bill.” About 20 minutes later, Savage entered the room carrying a plastic bag wrapped around a brown bag. He placed it on the bed and said: “Here is your stuff.”

Puckley and Savage opened the bag and dumped the contents on the bed. There were a large number of red pills, which were later discovered to be nonnarcotic. There was also a bottle of white pills. The bottle was emptied onto the dresser, the pills counted, replaced in the bottle and then the bottle was set down on the dresser. Officer Johnson deliberately knocked the bottle off the dresser, spilling the pills. Savage said that the pills were worth $6,000 and “we are giving you a break to get everything set up in the schools.” Savage and Puckley bent down to pick up the pills. At this point Johnson removed his revolver from under the mattress where he had hid it, and showing his badge to the defendants, placed them under arrest.

Defendant Savage testified on his own behalf. He denied having any knowledge of the narcotics, but admitted knowing about the red pills which were barbiturates. He went to the motel with Puckley who said they were supposed to meet a woman there. The motel clerk directed them to Johnson’s room and Johnson told them the “woman” was his common-law wife, but she was out at the moment. The men engaged in conversation for a while including stolen clothes and narcotics. Johnson asked “if we could get hold of any narcotics . . . and I said, ‘sure,’ we could probably get hold of some.” Savage left the room and said he “was going to see about getting some pills, barbiturates.” He went to the Englewood Station where he removed a leather coat from a safe-deposit box. The key was given to him by Puckley, but Savage denied knowledge of the fact that barbiturate pills were in the coat. He was, however, aware that they had the pills. “We had them with us for about a week.”

After going shopping and purchasing some new clothes, Savage called the motel. Puckley told him to come over which he did. Upon arrival he dropped a package of his old clothes on the bed and was then placed under arrest. He denied ever seeing the white pills, the narcotics, before the day of the trial.

Defendant Puckley also admitted possession of the red barbiturate pills, but denied ever having possession of the narcotics. Puckley’s story was that they went to the motel to sell the barbiturates to a woman. They were directed to Johnson’s room. During the ensuing conversation Johnson asked if they had any cocaine. Although Puckley admitted knowing someone who had some cocaine, he told Johnson he could not get any. Puckley then sent Savage to the train station to get the barbiturates. When he returned, they were immediately placed under arrest.

The defendants argue that the evidence was insufficient to sustain the conviction under Count 2 of the indictment, unlawfully dispensing a narcotic drug. They both argue that no money was exchanged, Officer Johnson admitted that he never physically controlled the pills and the defendants’ testimony was that they were arrested immediately upon Savage’s return to the motel room with a package.

“Dispensing” is defined by the Statute as including “distribute, leave with, give away, dispose of, or deliver.” C 38, § 22-2 (o), Ill Rev Stats (1963). Thus an exchange of money is not required to sustain a conviction for dispensing. People v. Greer, 20 Ill2d 370, 169 NE2d 750 (1960).

Although both defendants claimed they were arrested immediately upon Savage’s return to the motel, the testimony of Officer Johnson was that defendants engaged in counting the pills, set them down on the dresser and walked away before they were arrested. This testimony in addition to the statement by Savage, “Here is your stuff”, is sufficient, if believed, to show a “dispensing” of the narcotics to Johnson.

No question is raised as to the sufficiency of the facts to show possession of and conspiracy to sell narcotics. However, we do not believe that the defendants were afforded a fair trial.

The defendants raised several issues concerning the conduct of the prosecutor during the trial which were prejudicial to them. During the voir dire the Assistant State’s Attorney accused defense counsel of trying to prevent the State from getting a fair trial. In the opening statement, defense counsel was accused of employing tactics designed to confuse the jury. This accusation was made again in the prosecutor’s closing argument.

Both defendants testified on their own behalf. In cross-examining them, the prosecutor asked if they had not told Officer Johnson that they lived at an address different than the address they had testified to as their residence. The prosecutor, obtaining a negative response, then asked if it was not a fact that they had changed their addresses because narcotics were found at the address they allegedly gave to the officer. The prosecutor said he was laying a foundation, but his accusation of another crime for which defendants were not on trial was never connected up. Defendant Puckley was also cross-examined about the fact that he was living with a woman who was not his wife.

The final incident complained of, occurred during the final argument. The prosecutor in commenting on why no witnesses were brought in to corroborate the officer’s testimony stated: “(W)hy didn’t the clerk from the motel come in(?) I will tell you why, she is scared of getting killed. . . . (H)e (the informer) is in a worse position than the clerk. . . . because if the clerk came in and testified and she would live a day, the informer wouldn’t make it out the door.”

Defendants’ objection to his line of argument was overruled.

A defendant, guilty or innocent is entitled to a fair trial. People v. Galloway, 7 Ill2d 527, 131 NE2d 474 (1956). The comments by the prosecutor reflecting on the role of the defense counsel were improper. People v. Freedman, 4 Ill2d 414, 123 NE2d 317 (1954). Equally improper were the prosecutor’s accusations that the defendants were guilty of possession of narcotics different from that charged in the indictment and that they would kill any witnesses who testified against them. These comments were designed solely to arouse the prejudices of the jury without throwing any light upon the question of defendants’ guilt and a new trial will be required. People v. Bimbo, 314 Ill 449, 145 NE 651 (1924) ; People v. Deal, 357 Ill 634, 192 NE 649 (1934).

We consider it appropriate to discuss only one additional assignment of error since it concerns a matter which might arise on a retrial of this case. The trial judge permitted into evidence Officer Johnson’s testimony as to his conversation with a man identified only as “Bill.” At the subsequent meeting at the motel, defendant Puckley admitted being the person to whom the officer had spoken to on the telephone. As to Puckley, there was no error in the admission of the testimony.

As to the defendant Savage, the conversation was also admissible. At the motel, Savage and Officer Johnson had a conversation substantially the same as the telephone conversation with “Bill.” One count of the indictment was for conspiracy to sell narcotics. It is permissible to prove a conspiracy by showing the common actions of the two defendants. People v. Nusbaum, 326 Ill 518, 158 NE 142 (1927).

The judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

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


author: PRESIDING JUSTICE MURPHY.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Arnold, et al., Defendants-Appellants.
    Gen. Nos. 50,990 and 50,991. (Consolidated.)
    First District, First Division.
    May 22, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward J. Downs, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


text:
    Napoleon Byrd, Jay Goran, Trustee Under Trust No. 2525, Plaintiffs-Appellees, v. Earl Johnson, Defendant-Appellant.
    Gen. No. 51,520.
    First District, First Division.
    May 22, 1967.

      George F. Barrett, of Chicago (John E. Foreman, of counsel), for appellant; Jay Goran, of Chicago, for appellees.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


text:
    RCA Service Company, Plaintiff Below, and Heller Construction Company, Counter-Plaintiff, Appellee, v. A B Fireproofing Company, Counter-Defendant, Appellant, and Jack Galter, et al., Defendants Below.
    Gen. No. 51,567.
    First District, First Division.
    May 22, 1967.
    Hauseman & Hoolehan, of Chicago (John J. Bresingham, of counsel), for appellant; Levin & Upton, of Chicago (Samuel Levin, Roland C. Upton and William T. Cormack, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE MURPHY.

Not to be published in full.


author: MR. PRESIDING JUSTICE MURPHY

text:
    Charlotte Catherine Zimmer Ohlheiser, et al., Plaintiffs-Appellees, v. Dana H. Shepherd, Successor Trustee Under the Last Will and Testament of Benedict F. Zimmer, Deceased, Defendant-Appellant.
    Gen. No. 51,897.
    First District, First Division.
    May 22, 1967.
    Rehearing denied June 12, 1967.

      Sonnenschein Levinson Carlin Nath & Rosenthal, of Chicago (John J. Faissler and Gerald J. Sherman, of counsel), for appellant.
    McMahon & Plunkett, of Chicago (Marshal I. McMahon, George H. Masek and Marshal I. McMahon, Jr., of counsel), for appellees.
   MR. PRESIDING JUSTICE MURPHY

delivered the opinion of the court.

Defendant, Dana H. Shepherd, a resident of Wisconsin and a successor trustee under an Illinois testamentary-trust, appeals from a mandatory injunction issued by the Circuit Court of Cook County, which directed him to deliver the corpus of the trust to the clerk of the Circuit Court of Cook County, as custodian. Defendant’s theory is that the trial court did not have jurisdiction in personam over defendant, “who had not submitted to the jurisdiction of the courts of this state and who was not served with process in this state.”

No evidence was heard, and the facts are not in dispute. The will of Benedict F. Zimmer, a resident of Chicago, Illinois, was admitted to probate in Cook County, Illinois, on May 20, 1941. He bequeathed to his son, Benedict F. Zimmer, Jr., as trustee, shares of stock in Fritzsche Brothers, Inc. On November 8, 1952, Benedict F. Zimmer, Jr., submitted his resignation as trustee. Subsequently, on March 23, 1953, a decree was entered in Superior Court of Cook County, appointing Dana H. Shepherd, the defendant herein, as successor trustee of the testamentary trust.

The income beneficiary of the trust died on September 7, 1966, and the plaintiffs, residuary beneficiaries of the trust, sought delivery from defendant of the corpus of the trust. Defendant refused delivery until paid $27,401.-95 for his services as successor trustee and, in addition, $500 for attorney’s fees.

Plaintiffs then filed the instant complaint in the Circuit Court of Cook County, Illinois, in which they sought “mandatory injunction pendente lite without notice and without bond directing (a) defendant to deliver the 2,000 shares of Fritzsche Brothers, Inc. stock with stock powers to the clerk of the court; (b) judgment against defendant assessing punitive and compensatory damages for breach of trust; and (c) denial of trustee’s fees.” Defendant, by local counsel, filed “his special and limited appearance in the above entitled cause for the sole purpose of questioning the court’s jurisdiction over the person of this defendant, and says: 1. It appears on the face of the complaint (par 4) that this defendant was at the time of his appointment and continues to be a resident of the State of Wisconsin. 2. It appears on the face of the complaint that defendant has not submitted to the jurisdiction of the court under the provisions of Section 17 of the Civil Practice Act of Illinois in that defendant is not charged with the transaction of any business within this state, the commission of a tortious act within the state, the ownership, use or possession of any real estate situated in this state, or contracting to insure any person, property or risk located within this state at the time of contracting, and in that the matter is not an action for divorce or separate maintenance. WHEREFORE, defendant denies that this court has jurisdiction over the person of this defendant.”

The order for the mandatory injunction entered November 22, 1966, shows that the question of the jurisdiction of the court over the defendant had been raised by the special appearance, and after the court heard the arguments of counsel, and “the court having examined the verified complaint of the plaintiffs and the affidavits in support of plaintiffs’ said motion for a mandatory injunction and being fully advised in the premises; and the court having found that Benedict F. Zimmer died a resident of Chicago, Illinois, on March 16, 1941, and that his Last Will and Testament was admitted to probate by the Probate Court of Cook County, Illinois, on May 20, 1941 and having further found that the defendant herein, Dana H. Shepherd, was appointed Successor Trustee under the Last Will and Testament of Benedict F. Zimmer, Deceased, by the Superior Court of Cook County, Illinois, on the 23rd day of March, 1953, IT IS HEREBY ORDERED THAT: 1. This court has jurisdiction over the defendant . . . ,” and the clerk of the court was commanded to issue a writ of injunction directing defendant to deliver up immediately to the Clerk the Fritzsche Brothers, Inc. stock, “together with stock powers executed by said defendant as Successor-Trustee, with his signature properly guaranteed.”

Initially, defendant contends “a nonresident defendant must have certain minimum contacts with the forum state before jurisdiction in personam can be obtained by service of process outside the state.” Cases cited include International Shoe Co. v. Washington, 326 US 310 (1945), where there was regular and substantial solicitation of business by defendant’s agents physically present in the State of Washington, and the court set forth the standard by which “transaction” of business must be measured (p 316). To permit a state court to exercise in personam jurisdiction over a nonresident, the defendant must have had “certain minimum contacts” within the state, such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”

Also cited is Hanson v. Denckla, 357 US 235 (1958), where the court held that a judgment of a Florida court was not entitled to full faith and credit in Delaware because the Florida court lacked personal jurisdiction over a nonresident trustee. There, the controversy concerned part of the corpus of an inter vivos trust established in Delaware by a settlor, who later became domiciled in Florida. The Florida court sustained the position of one group of claimants, who urged that the property passed under the residuary clause of the settlor’s will, which was admitted to probate in Florida. Other claimants contended that the property passed pursuant to the settlor’s exercise of the inter vivos power of appointment created in the deed of the trust. The Delaware courts adopted this position and refused to accord full faith and credit to the Florida determination because the Florida court had not acquired jurisdiction over the Delaware trustee. The United States Supreme Court said (pp 250-251):

“As technological progress had increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase. At the same time, progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 US 714, to the flexible standard of International Shoe Co. v. Washington, 326 US 310. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 US 416, 418. Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. Washington, 326 US 310, 319.”

Defendant further contends that “the Illinois ‘Long Arm Statute’ [Ill Rev Stats, c 110, § 17] was passed by the legislature to provide for service on nonresidents in instances where the courts of this state could properly exercise personal jurisdiction within the limitations of due process. The legislature specifically designated the ‘minimum contacts’ which it considered appropriate to justify exercise of such personal jurisdiction. The determination of such ‘minimum contacts’ (within the area which would be permissible under the due process clause) is a legislative, not a judicial function.”

To show that section 17 has been construed to limit the jurisdiction of the courts in personam to cases where acts enumerated in the section are shown to have occurred in Illinois, defendant cites Nelson v. Miller, 11 Ill2d 378, 143 NE2d 673 (1957), which involved the “commission of a tortious act within this State,” and Grobark v. Addo Mach. Co., Inc., 16 Ill2d 426, 158 NE2d 73 (1959), which involved the question of whether defendant had transacted business within the State of Illinois. From these, defendant argues “that the court cannot acquire jurisdiction under the statute unless the defendant has substantial contacts with this state; unless some substantial part of the transaction occurred within this state; and unless the defendant, by his acts or conduct has invoked the benefits and protection of the laws of the forum.”

Defendant further states that he was originally appointed successor trustee by the life beneficiary of the trust with the consent of the other beneficiaries, and that the 1953 proceeding in the Superior Court of Cook County was to satisfy objections of Fritzsche Brothers, Inc., and in that proceeding, “after finding that defendant had been appointed successor trustee and that consents had been executed, the court ‘appointed’ him successor trustee.” Defendant further argues that no claim is made that he did anything, either personally or by an agent, in the State of Illinois, and the only services allegedly performed by him, as trustee, were to receive dividend checks and income tax returns through the mail and to mail the dividends and affix his signature to the income tax returns, and none of these allegations show that the cause of action arose out of any act done in Illinois, or that defendant had invoked the protections and benefits of the laws of this state.

Plaintiffs contend that the enactment of section 17 of the Civil Practice Act was to facilitate the personal jurisdiction of state courts over nonresidents and a consequence of the transition to the more liberal concept of due process commenced by the United States Supreme Court in International Shoe Co. v. Washington, 326 US 310. To show the legislative intent as expressed by section 17, and that Grobark v. Addo Mach. Co., Inc., 16 Ill2d 426, 158 NE2d 73 (1959), has in effect been overruled, plaintiffs cite Gray v. American Radiator & Standard Sanitary Corp., 22 Ill2d 432, 176 NE2d 761 (1961), where the court said (p 436) :

“As we observed in Nelson v. Miller, 11 Ill2d 378, the statute contemplates the exertion of jurisdiction over nonresident defendants to the extent permitted by the due-process clause.”

Our view of the instant situation does not require that we explore the legislative intent as expressed in section 17 or that we reconcile the Illinois authorities which have construed section 17, nor are we persuaded that Hanson v. Denckla, 357 US 235, is controlling here.

Although defendant argues that his appointment as successor trustee was by the beneficiaries of the trust, his legal status as successor trustee under the Last Will and Testament of Benedict F. Zimmer, deceased, arose from his appointment by the March 23, 1953, decree of the Superior Court of Cook County, and his acceptance of the appointment by his affirmative acts. Therefore, we believe the rules and principles applied to testamentary trusts and trustees should be used as the guidelines to determine the issue here.

In addition to their general and inherent jurisdiction over trusts and actions to establish and enforce them, courts of equity have the right to exercise a supervisory control over trustees, and a trustee appointed by a court of equity is particularly within its control and subject to its decrees. Whenever, by the appointment of a trustee, a court has taken jurisdiction of the administration and execution of a trust, it has been held that it may require that all acts done thereafter by the trustee be done with its direction or with its sanction. Generally speaking, jurisdiction of the parties is essential to equity’s power to determine controversies with respect to the establishment and enforcement of trusts, and such jurisdiction may be acquired in accordance with general rules. (90 CJS, Trusts, §§ 261, 454, pp 303, 306, 873.) If a court obtains jurisdiction over a party to an action, that jurisdiction continues throughout all subsequent proceedings which arise out of the original cause of action. (Restatement of the Law of Conflicts of Law, § 76, p 114; Huston v. Weed, 242 Ill App 495 (1926).) The rule of law is well settled that the courts of the testator’s domicile and of the state in which the will is probated have primary jurisdiction over testamentary trusts. (In re Johnston’s Estate, 127 NJ Eq 576, 14 A2d 469 (1940).) A testamentary trustee, acting under court supervision cannot step across the state line with the portable trust assets in his pocket, and then defy the supervising court to remove him. Boone v. Wachovia Bank & Trust Co., 163 F2d 809, 816 (1947).

In Michigan Trust Co. v. Ferry, 228 US 346 (1913), which involved the question of jurisdiction of the court over an executor, it is said (p 353):

“Ordinarily jurisdiction over a person is based on the power of the sovereign asserting it to seize that person and imprison him to await the sovereign’s pleasure. But when that power exists and is asserted by service at the beginning of a cause, or if the party submits to the jurisdiction in whatever form may be required, we dispense with the necessity of maintaining the physical power and attribute the same force to the judgment or decree whether the party remain within the jurisdiction or not. This is one of the decencies of civilization that no one would dispute.”

In International Shoe Co. v. Washington, 326 US 310, it is said (p 316):

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 US 714, 733. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

And on p 319:

“Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.”

And on p 320:

“It is enough that appellant has established such contacts with the state that the particular form of substituted service adopted there gives reasonable assurance that the notice will be actual.”

Applying the foregoing principles here, we consider that defendant, as successor trustee of a testamentary trust, became an officer of the court appointing him when he accepted the appointment by entering upon his duties as successor trustee. Although these duties did not require him to perform any act while physically within the State of Illinois, he impliedly submitted himself to the in personam jurisdiction of the court of appointment until discharged from his office. He exercised the right of acting as successor trustee by the appointment of an Elinois court and has enjoyed the benefits and protection of the laws of Elinois. The exercise of that right gave rise to the obligation to respond to the court that appointed him. We think defendant had sufficient contact with the State of Elinois to subject him to its in personam jurisdiction and to satisfy due process. To hold that an appointing court be found to have jurisdiction in personam over its officer does not offend “traditional notions of fair play and substantial justice,” provided he is adequately notified of the action against him so that he may defend himself.

For the reasons given, and as defendant does not contend that he was inadequately notified of the instant action or motion, we hold the Circuit Court of Cook County (to which the jurisdiction, judicial functions, powers and duties of the Superior Court of Cook County were transferred on January 1, 1964, the effective date of the new Judicial Article) had jurisdiction to enter the order appealed from, and therefore the order is affirmed.

Affirmed,

BURMAN and ADESKO, JJ., concur.


author: JUSTICE BURKE.

text:
    Walter J. Rylko, Plaintiff-Appellant, v. Max Katz, et al., Defendants-Appellees.
    Gen. No. 50,978.
    First District, Second Division.
    May 23, 1967.

      John Powers Crowley and Anna R. Lavin, of Chicago, for appellant; Jerome M. Brooks and Gilbert Gordon, of Chicago (Gilbert Gordon, of counsel), for appellee, Max Katz; Hubbard, Hubbard, O’Brien & Hall, of Chicago (Alvin G. Hubbard, Reese Hubbard and Frederick W. Temple, of counsel), for appellee, Raymond Golz.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE BRYANT

text:
    Adrienne B. Harber, et al., Plaintiffs-Appellants, v. Board of Appeals of the City of Chicago, B. Emmet Hartnett, et al., as Members of the Board of Appeals of the City of Chicago, City of Chicago, a Municipal Corporation, Sidney D. Smith, Acting Commissioner of Buildings of the City of Chicago, Richard Swift, et al., Defendants-Appellees.
    Gen. No. 51,167.
    First District, Second Division.
    May 23, 1967.
    Rehearing denied June 13,1967.

      Richard F. Watt, Helen Hart Jones and John M. Bowlus, of Chicago (Cotton, Watt, Jones & King, of Counsel), for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellees, Board of Appeals of the City of Chicago, the City of Chicago and Sidney D. Smith, Commissioner of Buildings of the City of Chicago.
    Joseph C. Owens, of Chicago, for appellees, Richard Swift and William F. Epstein.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County upholding the granting of a variance by the Zoning Board of Appeals. We need only consider plaintiffs’ allegation that the decision of the Board of Appeals is invalid in that it failed to make findings of fact specifying the reasons for making the variation, based upon evidence presented in this particular case; rather, that the Board’s decision merely reiterated the generalized language of the statute.

Following a public hearing on February 23, 1965, the Zoning Board of Appeals granted the variance requested by the defendants for their property at 54th and Blackstone, Chicago, Hlinois. Plaintiffs exercised their rights under the Administrative Eeview Act and appealed to the Circuit Court. That court, after reviewing the proceedings before the Zoning Board of Appeals, entered an order on August 6, 1965, remanding the matter to the Board for further consideration.

In accordance with the order of August 6, 1965, the Board of Appeals conducted a second hearing on September 23, 1965. Following the taking of more evidence, the Board of Appeals again granted the variance by the issuance of the following order:

“Upon petition for Administrative Review, Case No. 65-L-16296, the Circuit Court of Cook County remanded this case to the Zoning Board of Appeals of the City of Chicago to take further testimony and the hearing of additional evidence from Richard Swift and William F. Epstein. The court order is dated August 6,1965.
“After a full and complete hearing on September 23, 1965, the Zoning Board of Appeals, considering the evidence that was submitted and after hearing all the testimony and arguments of counsel, finds that the property in question cannot yield a reasonable return nor can it be put to reasonable use if permitted to be used only under the conditions allowed by the regulations in that zone; that the plight of the owner is due to unique circumstances; that the variation, if granted, will not alter the essential character of the locality.
“The Zoning Board of Appeals, therefore, affirms the granting of a variation to permit, in an R4 General Residence District, the erection of a two-story brick five unit townhouse with no north side yard instead of 7 feet 6 inches, on premises at 5400-12 S. Blackstone Avenue.”

The court entered an order upholding the order of the Board of Appeals and this appeal is from that order.

Chapter 24, § 11-13-11, Ill Rev Stats 1965, is quite explicit in stating the requirements for granting a variance:

“Every variation, whether made by the board of appeals directly, or by an ordinance after a hearing before the board of appeals, shall be accompanied by findings of facts specifying the reason or reasons for making the variation.”

The Chicago Zoning Ordinance, section 11.7-3 is equally clear.

And in Lindburg v. Zoning Board of Appeals, 8 Ill2d 254, 133 NE2d 266, the Illinois Supreme Court was confronted with the same issue that we deal with here. In that case the court found that the following language in an order of the Zoning Board of Appeals of Springfield did not comply with the requirements of c 24, § 11-13-11, supra, at page 256:

“ ‘It further appeared to the Board that there were at the present time other homes in the vicinity in which there were apartments for more than one family.
“ ‘That there are practical difficulties and hardships in the way of carrying out to the strict letter the restrictions in the code pertaining to the “A” residential use of the above described property, insofar as the use of the building or structure now located thereon.
“ ‘That the proposed variation in use of said property would not impose any undue hardship or burden on the neighborhood or adjoining property.’ ”

In holding that the above order did not comply with the statute, the Supreme Court stated at p 256, supra:

“They do not contain ‘findings of fact specifying the reason for making the variation.’ The requirement of the statute is not met by parroting the highly generalized statutory phrases, ‘practical difficulties’ and ‘particular hardship.’ ”

For the reason that the order of the Zoning Board of Appeals merely restates the general language of the statute, we hold that its order does not comply with c 23, § 11-13-11, supra. For the above reason the order of the Circuit Court is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Order reversed and cause remanded.

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


author: MR. PRESIDING JUSTICE LYONS

text:
    J. L. Simmons Company, a Corporation, Plaintiff-Appellant, v. Lumbermens Mutual Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 51,223.
    First District, Second Division.
    May 23, 1967.

      Ruff and Grotefeld and Campbell, Clithero, Fischer & Guy, of Chicago (John E. Guy and David H. Pauker, of counsel), for appellant.
    Peterson, Lowry, Rall, Barber & Ross, of Chicago (Abe R. Peterson, Harold W. Huff and Herbert C. Loth, Jr., of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from the entry of a judgment in a bench trial against the plaintiff-appellant, J. L. Simmons Company, at the close of its case. Subsequent to the entry of such judgment, plaintiff made a motion to vacate the judgment, or in the alternative, to grant a new trial, which motion was denied and from which this appeal is taken.

Plaintiff’s cause was founded exclusively upon the terms of a contract of liability insurance it held as the insured with the defendant-appellee, Lumbermens Mutual Insurance Company. The effective dates of the policy in question were July 1, 1955, to July 1, 1956. Plaintiff is a construction company and was in the month of October, 1955, engaged in the excavation of certain land owned by the Illinois Farm Supply Company (hereinafter referred to as Illinois Farm) in Springfield, Illinois. On October 5th and 6th, 1955, an unseasonably large quantity of rain fell in the Springfield area. Due to the rain, unanticipated underground hydrostatic pressures developed which began to buckle the existing shoring in the excavation. The walls of the excavation threatened to collapse and thereby place a warehouse structure on the immediately adjoining property in imminent peril. The adjoining property and structure were also owned by Illinois Farm.

During the course of the rainfall, plaintiff’s insurance manager, Mr. Fusch, telephoned defendant’s salesman, Mr. O’Rear, to inform him of the emergency situation. Defendant’s agent, upon learning of the impending collapse, told Fusch to keep him advised, but otherwise took no affirmative action. Thereafter, plaintiff proceeded to secure and install emergency bracing against the pilings which had theretofore been in place. The preventative reinforcing measure successfully provided the lateral support needed to withstand the increased pressure. The adjacent subsoil beneath the warehouse did not collapse, although some settling and cracking damage to that structure did result.

Plaintiff maintains that it incurred, at cost and without a profit, approximately $13,000 in expenses to secure and erect the additional bracing, as well as $5,000 in expenses to repair the damage to the warehouse. Defendant argues that the evidence offered failed to sustain plaintiff’s allegation of expenditures. Plaintiff concedes, that while the exact amount of damage is disputed, some damage has nonetheless been established by the evidence. Illinois Farm has never instituted a claim against plaintiff relative to this occurrence. Written notice of plaintiff’s claim for reimbursement was not sent to defendant until October 3, 1956, almost a year after the events which gave rise to this cause of action.

Plaintiff contends defendant was and is obligated to reimburse it for such sums so expended pursuant to the terms of their contract of insurance. Plaintiff attached a copy of the contract to its complaint. Defendant admits the existence of the policy but denies liability on the basis of the contract’s express language.

It is plaintiff’s sole theory of the case that as an excavator it owed an absolute duty to the adjoining property owner not to remove its property’s lateral and subjacent support. This absolute duty having been shown to exist, plaintiff maintains that the monies expended by it represented a sum which it was legally obligated to pay as damages within the meaning of the contract of insurance.

It is defendant’s theory of the case (1) that plaintiff has failed to show that it became legally obligated to pay damages within the meaning of the policy’s coverage, (2) that plaintiff has failed to comply with conditions 8 and 11 of said policy, and (3) that plaintiff’s claim is excluded as a basis of liability by Endorsement K of the policy.

The insurance contract was amended by at least eighteen subsequent endorsements which each recite the same effective dates as that of the parent policy. While numerous provisions of both the parent policy and its subsequent endorsements have been called into question, we are of the opinion that only the following clauses are applicable to the disposition of this appeal, to wit:

Coverage B — Property Damage Liability
To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.
Condition 8 — Notice of Accident
When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.
Condition 11 — Action Against Company
No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant, and the company.
Endorsement K — Exclusion of Property Damage Liability
. . . such insurance as is afforded by the policy for property damage liability . . . does not apply to . . . (2) the collapse of or structural injury to any building or structure due (a) to excavation, . . .
Endorsement 11 — Property Damage Liability
In consideration of an additional premium to be computed as herein provided, it is agreed that Comprehensive Endorsement K and Comprehensive Endorsement N do not apply, . . .

After the close of plaintiff’s case, defendant made a motion for judgment in its favor as a matter of law. The trial judge, in granting such motion, stated:

. . . assuming that all of the conditions and proper notice was given under the endorsement, . . . what are the obligations of the parties ?
... in my opinion, the obligation of the defendant is as I read it under Coverage B of the Insuring Agreement, and that being the obligation of the defendant, it is my opinion in this case that the plaintiff has not and is not in a position that he can say that he became legally obligated to pay these damages, and, therefore, it is my opinion that he cannot recover under this policy.

Relative to the issues of (1) amount of damages, (2) the timeliness of plaintiff’s notice to defendant, and (3) the applicability or inapplicability of Endorsement K’s exclusion of damage resulting from excavation in light of Endorsement 11, this court renders no opinion. Notwithstanding such issues, we concur with the trial judge in that the plaintiff failed in its case to establish that it expended sums which, under the law, it was obligated to pay within the language and intent of Coverage B of the policy.

Plaintiff voices strenuous objection to the trial judge’s determination of its cause as a matter of law. Plaintiff points out, and we agree, that since defendant’s motion challenged the legal sufficiency of the action, the evidence thus far presented together with all its reasonable intendments should be construed in a light most favorable to plaintiff. Should there be any evidence, which standing alone supports the claim, the judgment must be reversed.

Plaintiff relies on three cases as authority for its theory that an excavator is under an absolute duty to adjoining landowners. These cases are City of Quincy v. Jones, 76 Ill 231 (1875), Schroeder v. City of Joliet, 189 Ill 48, 59 NE 550 (1901) and People ex rel. Hepburn v. Maddox, 340 Ill App 34, 91 NE2d 107 (1950).

The Quincy case establishes no such absolute duty of care. To the contrary, the case promulgates simply a duty of reasonable care taking into consideration all of the attendant circumstances. The duty was aptly considered a question of fact for a jury. Absent a violation of such a duty, the court said there could be no recovery. The Quincy decision goes even farther in qualifying this duty of care. The court there held that an adjoining landowner’s right to lateral support extends only to his soil as it exists in its natural state, and not to the support needed as a consequence of the additional weight of a building erected thereon.

In the case of Exchange Nat. Bank of Chicago v. Code, 23 Ill App2d 382, 163 NE2d 554 (1959), this court adopted and followed the position taken in Quincy thereby refuting any arguments for the establishment of an absolute duty of care. We said:

The excavating owner owes no duty to the adjoining owner to shore up his property, but only owes the duty of using due care in the performance of the excavating.

While the distinction may be made that in the instant case plaintiff was an excavating contractor rather than an excavating owner, plaintiff has cited no case, nor are we aware of one which relied on this distinction for the imposition of a common-law absolute duty of care.

In this conjunction, plaintiff has relied on a statement in the Quincy case at pages 241 and 242 relative to the imposition of such an absolute duty where the two adjoining parcels are held by a common owner who has acquired ownership rights either by grant or prescription. The court there said:

. . . the defendant is charged with the duty of supporting, not merely the soil, but the house of plaintiff’s parcel. . . . the owner is said to be entitled to full protection against the consequence of any new excavation.

Plaintiff’s point is not well taken as the latter, upon which it relies, was not determinative of the issues in the Quincy case. The complaining landowner in that case was held not to be the common owner of the parcels either by grant or prescription.

The Schroeder case is equally unpersuasive. There the defendant never denied, and thus put in issue, that it had removed the plaintiff’s land’s lateral support to her resulting damage. The only question before that court for determination was the measure of plaintiff’s damages.

Likewise, the Hepburn case is not in point. Liability there was not predicated upon an absolute duty of care. The court based its determination of liability upon two findings; to wit, (1) that the defendant drainage commissioners knowingly furnished to the excavator (an independent contractor) defective plans and specifications that caused the injury complained of, and (2) that the collapse of the bridge involved was not caused by erosion and gullying as the defendants contended, but rather by defendants’ deliberate lowering of the adjacent stream bed.

We cannot accept plaintiff’s contention that it was bound to an absolute duty of care. To sustain such a proposition would require this court to say that the defenses of Act of God and/or exercise of reasonable care would be unavailing to plaintiff had it been sued by Illinois Farm. Such, of course, would be an erroneous interpretation of the applicable law.

Coverage B of the parent policy expressly limits defendant’s property damage liability to “sums which the insured shall become legally obligated to pay as damages.” Accordingly, plaintiff maintains that the costs of mitigating damages, which flow from a violation of a legal obligation, are themselves a measure of damages. Such a contention, of course, is not well taken if, in the first instance, such a legal obligation to pay has not been established by the evidence. Moreover, this court cannot probe into the merits of any would-be claim brought by Illinois Farm against plaintiff to determine the obligation as the question of their rights inter se is not properly before us.

Condition 11 of the parent policy, when read, not as a condition precedent to liability, but rather as it lends import and meaning to the language of Coverage B, can lead to but one inescapable interpretation of such coverage. Condition 11, in unequivocal language, conditions the insurer’s liability upon the insured’s obligation to pay having first been (1) finally determined by a judgment against the insured, or (2) consented to in writing by the insured, the claimant, and the company. Suffice to say, the claimant, Illinois Farm, has never brought an action against plaintiff relative to the occurrence, nor has plaintiff attempted to procure the written consent of the parties involved so as to establish some obligation with finality.

This is not to say that the court ignores the exigent circumstances involved or the obvious good faith efforts of the plaintiff. We, however, are not empowered, in the guise of good faith and peculiar circumstances, to alter the terms of an otherwise unambiguous contract. The intention of the parties is the gravamen under ordinary contract principles. Absent an ambiguity, this intention can only be determined from the language of the agreement itself, and not from extrinsic circumstances. Allstate Ins. Co. v. Conglis, 33 Ill App2d 370, 179 NE2d 434 (1961); Pohlman v. Universal Mut. Cas. Co., 12 Ill App2d 153, 138 NE2d 848 (1956). The general rule is that the ambiguous portions of an insurance contract are to be construed most strongly against the insurer. That rule, however, cannot operate to authorize a perversion of the language and intention of the contracting parties for the purpose of creating an ambiguity where none exists. Yadro v. United States Fidelity & Guaranty Co., 4 Ill App2d 477, 124 NE2d 370 (1955).

In so ruling, we do not think we are casting upon plaintiff an unreasonable burden. Plaintiff was not without a feasible alternative when faced with the impending collapse. Plaintiff could have procured the written consent of Illinois Farm and defendant before incurring the expenses alleged. It never chose to do so. The fact that defendant’s agent, Mr. O’Bear, took no affirmative action when informed of the situation is of no consequence. The contract did not place the burden upon the insurer to finalize a determination of the alleged obligation of the insured. Oda v. Highway Ins. Co., 44 Ill App2d 235, 194 NE2d 489 (1963).

Nowhere in the insuring agreement is plaintiff empowered to make an ex parte determination of its obligation to pay. Accordingly, plaintiff acted as a mere volunteer and is thus not entitled to the cost of mitigating a damage, which damage it may not have been legally obligated to pay initially.

Plaintiff’s case of Leebov v. United States Fidelity & Guaranty Co., 401 Pa 477, 165 A2d 82 (1960), does not dictate a contrary conclusion. There the insured was awarded expenses incurred as a consequence of his attempt to arrest a threatened landslide. The insurance contract involved contained quite similar language to that found in Coverage B of the instant policy. Of pivotal significance, however, is that unlike the case at bar, the injured property owner had theretofore obtained a judgment against the insured for the amount of the damage to his land. It was only from within this perspective that the insured was reimbursed his costs in attempting to mitigate further damage. In Leebov, the insured had truly become “legally obligated to pay” within the meaning of the insurance contract. Plaintiff’s alleged obligation in the instant case has not been subjected to any such judicial determination.

Plaintiff next contends the judgment for defendant at the close of its case prematurely and erroneously considered certain affirmative defenses of defendant. We do not agree. All other proofs notwithstanding, plaintiff failed to establish prima facie its legal obligation to pay within the meaning of the contract which formed the sole basis of its action. A copy of the contract was attached to plaintiff’s complaint, and was ofttimes alluded to on both direct and cross-examination during the course of its presentation. As such, the trial judge did not err in considering the language of Coverage B when passing upon defendant’s motion for judgment. There being no evidence to support plaintiff’s claim, we must sustain the lower court’s finding.

For the above reasons, the judgment is affirmed.

Affirmed.

BURKE and BRYANT, JJ., concur.


text:
    People of the State of Illinois ex rel. John F. Bolton, Jr., Director of Insurance of the State of Illinois, Plaintiff-Appellee, v. Progressive General Insurance Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 52,054.
    First District, Second Division.
    May 23, 1967.
    Rehearing denied and opinion modified July 5, 1967.

      Thomas P. Sullivan, Robert E. Pfaff and Hugh M. King, and George B. Collins, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellant.
    William G. Clark, Attorney General, of Springfield, Lee A. Freeman and Jerome H. Torshen, Special Assistant Attorneys General, of Chicago (McConnell, Freeman, Curtis & McConnell, of counsel), for appellee.
   MR. JUSTICE BRYANT

delivered the opinion of the court.

This is an appeal from an interlocutory order of the Circuit Court of Cook County restraining Progressive General Insurance Company (hereinafter referred to as Progressive General) from engaging in the following activities: opening bank accounts other than those already in existence and from dissipating present bank accounts; pledging premiums due on policies issued by the company; making payments of advance commissions in any manner whatsoever in connection with such policies; transferring property, funds or securities from Progressive General; from making disbursements other than in the ordinary and normal course of business for the payment of claims and for the maintenance of general and administrative functions; converting or pledging any assets and from increasing any salaries or expense accounts.

The issue presented on this appeal is whether the chancellor erred in entering the injunction against Progressive General. Defendant claims that it was error for the chancellor to have issued an injunction because there was no urgency, and because the injunction was based on an outdated record and changed the status quo.

The facts leading up to the issuance of the injunction are as follows: In September 1964, the then Director of Insurance, Harry B. Hershey, was appointed liquidator of Multi-State Inter Insurance Exchange. In August, 1965, John Bolton, successor to Mr. Hershey, as Liquidator of Multi-State, filed an action against the present defendant, Progressive General, and other defendants in which he sought money damages against Progressive General, all of Progressive General’s stock, and the appointment of a receiver for Progressive General pending disposition of the case. The largest claim for damages against Progressive General arose out of the cancellation of a contract between Multi-State and Progressive General.

Hearings were held before the chancellor during September 1965 on the motion for the appointment of a common-law receiver pendente lite. Progressive General moved to dismiss the motion for receiver upon the ground that section 201 of the Illinois Insurance Code expressly prohibits appointment of common-law receivers for domestic insurance companies. The chancellor denied this motion whereupon Progressive General filed an original petition for writ of mandamus in the Supreme Court of Illinois.

Before Progressive General’s brief on the merits in the mandamus case was filed, the present action against Progressive General was instituted by the Director of Insurance, John Bolton, seeking appointment of himself as rehabilitator of the defendant, as well as an injunction as provided by section 801 of the Insurance Code. The chancellor referred the cause of action to Master in Chancery, Louis M. Friedman.

On November 17, 1965 the master’s original and supplemental reports were filed with the chancellor. The master found several serious violations of the Illinois Insurance Code, but refused to recommend the issuance of an injunction. Some of the more serious violations are as follows:

(1) Loans in the aggregate amount of $812,000 were made indirectly to Charles Hoffman, personally, as president of Progressive General by Progressive General in violation of Insurance Code, section 124.2.
(2) Immediately prior to the issuance of quarterly reports by Progressive General, Hoffman secured bank loans, which aggregated close to $1,000,000, executed by Progressive Agency and secured by all of the uncollected premiums due to Progressive General on policies outstanding, in violation of section 505 of the Insurance Code.
(3) The master found that misleading financial statements were issued by Progressive General.
(4) The master found that premiums were transmitted in bulk instead of being identified to individual policies in violation of Rule 9.08 of the Department of Insurance.
(5) The arrangement between Progressive General and its sole agency was found to be that of an exclusive (emphasis added) agency but the agreement establishing that relationship had not been submitted to the Director for approval as required by section 141 of the Insurance Code.
(6) Progressive Agency failed to obtain a license to operate as an agency, but so operated in 1964. Charles Hoffman countersigned all insurance policies as a licensed registered agent although not so licensed.

Following the filing of the master’s report, counsel for the Director appeared before the chancellor and urged the court to hear his exceptions to the master’s reports in order to secure the issuance of an injunction. The chancellor was unable to hear arguments on the exceptions at that time. Counsel for the Director then brought to the chancellor’s attention the fact that the master had found that books and records had been improperly withheld from the Director’s examination and by reason of this withholding a final determination on insolvency had been postponed. The Director then petitioned the court to issue an order requiring Progressive General and its sole general agency to produce such books and records. Pursuant to that petition and as a result of discussion between the parties an order was entered appointing Arthur Andersen & Company to examine all books and records. The Andersen report was filed with the chancellor on February 18, 1966. Following the filing of this report the chancellor from time to time successively continued the case on his own motion from February 18 to March 28, to June 2 and to June 27. During this period the plaintiff took several depositions in Georgia and in Chicago. Defendant also gave notice for taking depositions but failed to take the depositions. On October 26, and November 9, 1966, arguments were presented to the chancellor on exceptions to the master’s reports. On February 3, 1967, the chancellor issued an order containing the injunction sought by the plaintiff.

Defendant contends on this appeal that the trial court erred in issuing this injunction. His first argument is that no emergency existed which would justify the issuance of the injunction. Defendant cites as evidence of the lack of urgency, the fact that there was a ten month delay between the issuance of the master’s report and the presentation by plaintiff of his exceptions to that report.

It is, of course, clear that a temporary or preliminary injunction is an extraordinary remedy that will be granted in an emergency situation. Naxon Telesign Corp. v. Selig, 38 Ill App2d 242, 186 NE2d 666; County of Du Page v. Robinette, 77 Ill App2d 167, 221 NE2d 769. It has been held that a delay of even a few months in seeking injunctive relief is indicative of such a lack of urgency as to preclude the issuance of an injunction. The cases supporting this proposition are not applicable to the present situation, however. In Naxon Telesign Corp. v. Selig, supra, it was held that it was not error to have denied plaintiff’s prayer for a temporary injunction where such prayer was not made until nearly one year after the suit was commenced.

In this case the Director’s motion for an injunction pursuant to chapter 73, section 801, Ill Rev Stats, 1965, was made at the commencement of the suit against Progressive General. Delay in the order granting the injunction was not due to any tardiness by the plaintiff in seeking the injunction, but was due to circumstances which were beyond the control of the plaintiff.

Defendant also contends that grounds for granting interlocutory relief were destroyed by events which rendered the record stale and outdated and destroyed the validity of the master’s findings.

It is well settled law in Illinois that the trial court is vested with large discretionary power in granting an order for a temporary injunction. The effect of section 78 of the Civil Practice Act relating to appeals to this court from interlocutory orders concerning injunctions, is to permit a review of the exercise of the discretion lodged in the chancellor in order to determine whether the interlocutory order probably was necessary to maintain the status quo and preserve the equitable rights of the parties, and unless we find that the chancellor’s discretion has been abused the interlocutory order will not be reversed or set aside. Weingart v. Weingart, 23 Ill App2d 154, 161 NE2d 714; O’Brien v. Matual, 14 Ill App2d 173, 144 NE2d 446.

It is not necessary for the Department of Insurance, in seeking an injunction before the trial on the merits of the issues, to make out a case which would entitle the department to the judgment prayed for, nor did the complaint have to be of the character needed to obtain a final and permanent injunction. It was only necessary that the complaint raise a fair question as to the existence of the right claimed, so as to lead the court to believe that the plaintiff would probably be entitled to the relief prayed for if its proof should sustain its allegations, and make it appear advisable that the positions of the parties should stay as they were until the court had the opportunity to consider the case on its merits. Twin City Barge & Towing Co. v. Licensed Tugmen’s & Pilots’ Protective Ass’n of America, 48 Ill App2d 1, 197 NE2d 749; Capitol Records, Inc. v. Vee Jay Records, Inc., 47 Ill App2d 468, 197 NE2d 503; O’Brien v. Matual, supra.

[:8] While Progressive General maintains that five of the plaintiff’s major claims of violations of the Insurance Code and the Regulations of the Department of Insurance had been corrected or were shown to be nonexistent, it is our feeling that the plaintiff made out a sufficient case for an injunction until the trial court has made a determination on the merits on the issue of the existence or nonexistence of the alleged violations. From our examination of the record it is clear that there was sufficient evidence to raise a fair question as to the need to grant an injunction to protect the public from the possible waste or dissipation of the assets of the defendant. Nothing said herein should be construed as controlling in the case in chief.

Defendant lastly claims that the issuance of the injunction was error because it upset the status quo. We have already set forth the terms of the injunction issued against the defendant. In the main that injunction merely provided that Progressive General is to maintain present bank accounts, and to refrain from transferring property, funds or securities, and from making disbursements other than in the ordinary course of business. On its face it is obvious that the injunction does no more than maintain Progressive General in the position it was in when the injunction was issued. Moreover, the statute on which this injunction is based provides for essentially the same restraints as are included in the chancellor’s order. The relevant section is as follows:

Chapter 73, section 801, Ill Rev Stats, 1965

“The court shall have jurisdiction, upon, or at any time after the filing of the complaint to issue an injunction restraining such company and its officers, agents, directors, employees and all other persons from transacting any company business or disposing of its property until the further order of the court. The court may issue such other injunctions or enter such other orders as may be deemed necessary to prevent interference with the proceedings, or with the Director’s possession and control or title, rights or interests as herein provided or to prevent interference with the conduct of the business by the Director, and may issue such other injunctions or enter such other orders as may be deemed necessary to prevent waste of assets or the obtaining of preferences, judgments, attachments or other like liens or the making of any levy against such company or its property and assets while in the possession and control of the Director . . . .”

For these reasons the order granting the injunction is affirmed.

Order affirmed.

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


author: MR. JUSTICE DEMPSEY

text:
    People of the State of Illinois, Appellee, v. John T. Martin (Impleaded), Appellant.
    Gen. No. 50,627.
    First District, Third Division.
    May 25, 1967.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Brian Crowe, James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Ronald Sandler and Thomas M. Burnham, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

The defendant, John Martin, was indicted for the crime of unlawful possession of narcotic drugs. Appearing pro se, he was tried by a jury, found guilty, and was sentenced to serve a term of two to three years in the penitentiary.

Although several contentions are made in behalf of the defendant in this appeal the principal one, and the only meritorious one in our opinion, is that he was prevented from adequately preparing and presenting his defense because the trial court would not permit him to communicate with anyone during his trial.

The defendant and Perry Williams were riding in a car driven by the defendant and were stopped for running a red light in the City of Chicago. One of the arresting officers observed Williams throw a cigarette package out of the car window. This package was retrieved and the officers noticed that it contained hand-rolled cigarettes composed of crushed green leaves. The occupants were questioned about the package, but both denied knowledge of it. The car was then searched and green leaves, later identified as marijuana, were found in the car. The defendant testified that the car was searched three times before the leaves were found and that the officers did not have permission to search the car.

At his arraignment the public defender was appointed to represent the defendant. After the arraignment the defendant told the court that he did not wish to be represented by the public defender and requested another attorney. His request was granted. A motion to suppress was made by his new counsel and, after a hearing, was denied. The defendant then moved that he be allowed to appear pro se during the rest of the trial. This motion was allowed and the attorney was granted leave to withdraw from the case.

The defendant participated in the examination of prospective jurors and exercised his challenges. In the midst of the examination, but out of the presence of the jurors, the prosecutor protested that an attorney was sitting in the courtroom with the defendant’s mother. He argued that it was only fair that, if the attorney intended to aid the defendant, he should file an appearance and take his place at the counsel table. In reply to this suggestion the defendant stated: “Well, I am not getting assistance from anyone.” The prosecutor insisted that if the attorney intended to help the defendant he should be required to file an appearance. The trial judge stated that he saw no reason why the attorney should not be allowed to remain in the courtroom unless there was some involvement between the attorney and the defendant, but that he would not permit the defendant to talk to anyone after the trial commenced.

After the testimony was concluded, the jury was excused and the trial judge informed the defendant that it would be possible for him to submit instructions. The defendant replied that he desired to submit his instructions orally and he spoke specifically about an oral instruction on possession — but he said that he did not know the law on the subject. He was informed by the court that oral instructions were not acceptable and the defendant responded that he had no written instructions. He then asked the court whether he could speak to his mother. The court, who had given the assistant State’s attorney a half hour to select his instructions, replied:

“No, you may not. You may not talk to her. I let you talk to her before, but she has been talking to a lawyer.” The court explained that his mother had the right to speak to anybody but that he did not; that he could not talk to her or the lawyer because the State objected. The defendant turned to the prosecutor and inquired, “Do you still object?” The prosecutor replied that he did. The court repeated: “I can’t let you talk to him now because the State is objecting to it.”

The prosecutor’s objection was absurd. While the record does not precisely spell it out, it would appear that the prosecutor was concerned with the possibility that the jury might have some sympathy for the defendant due to the fact that he was trying his own case; if the defendant was receiving aid from any source, the prosecutor wanted this fact communicated to the jury. If this was his reason, it was irrational. Even the most skilled attorneys consult with other attorneys while a trial is in progress. They value their ideas on matters of law, their impressions of the jury, their reaction to testimony, their viewpoint on trial strategy. The prosecutor, however, was seemingly determined that the defendant would receive no aid from any source; that if the jury sympathized with him because he had no lawyer — then he was going to be without the assistance of counsel in any shape or form.

Unfortunately, the trial court concurred with the prosecutor. And, although the court was fair, patient and considerate in every other aspect of the case, his prohibition was absolute: the defendant was not permitted to communicate with anyone. Under this prohibition he could not have talked with a witness before putting him on the stand; for that matter he could not have asked the court clerk to subpoena a witness in his behalf. He was not even allowed to talk to his mother for fear that some helpful suggestion might be passed along to him. There was no corresponding restriction placed upon the prosecutor. He was free to communicate with others and it would be surprising if he did not do so. The court’s ruling was overly restrictive and could have denied the defendant the opportunity of effectively defending himself. Contrast People v. Hubbard, 77 Martin App2d 14, 222 NE2d 145 (1966), where the defendant first objected to the public defender and then to another court-appointed attorney. The trial court ruled that under these circumstances the defendant would have to represent himself but the court requested one of the attorneys to sit in the courtroom to advise the defendant, saying, “If he chooses to accept your advice or reject it, it is up to him.”

In a criminal proceeding an accused has the right to the assistance of counsel (Illinois Const, art II, § 9) and this right of representation extends to every stage of the trial. People v. Taylor, 32 Ill2d 165, 204 NE2d 734 (1965). But this right may be waived. People v. Ephraim, 411 Ill 118, 103 NE2d 363 (1952). A competent defendant has the right to conduct his own defense if he so chooses. People v. Richardson, 17 Ill2d 253, 161 NE2d 268 (1959); People v. Burson, 11 Ill2d 360, 143 NE2d 239 (1957). If he chooses to defend himself, it must appear that his decision to do so was made understanding^ and intelligently after being advised of his right to counsel. People v. Bush, 32 Ill2d 484, 207 NE2d 446 (1965); People v. Williams, 399 Ill 452, 78 NE2d 512 (1948).

There is no indication in the record that the defendant’s waiver of counsel was not undertaken with a complete understanding of the consequences, for he had been apprised of his right to counsel and had exhibited a full awareness of this right by requesting that a member of the Chicago Bar Association, other than the public defender, be appointed to represent him. However, there also is no indication in the record that when he decided to act as his own attorney he voluntarily subjected himself to an imposed state of isolation. He did not knowingly or willingly relinquish his right to obtain advice from, or to communicate with, others — lawyers or laymen.

No case similar to the one at bar has been brought to our attention by either side and further research has proved unfruitful. There are cases which hold that a trial court’s refusal to allow a defendant to consult with anyone (more particularly, his attorney) at the end of a court session and while still subject to cross-examination, is reversible error. United States v. Venuto, 182 F2d 519 (3rd Cir 1950); Commonwealth v. Werner, 206 Pa Super 498, 214 A2d 276 (1965); Commonwealth v. Peetros, 206 Pa Super 503, 214 A2d 279 (1965). These decisions, however, were based upon the constitutional right of a defendant to be represented by counsel at all stages of the proceeding and their rationale is not applicable to a situation like the present one where the defendant has waived this right.

We see no just reason why a defendant representing himself should not be allowed, within reasonable limitations imposed by the trial court, to obtain advice or information. To hold otherwise would be fundamentally unfair. We do not mean to intimate that a defendant who tries his own case must be provided with legal material, allowed to visit a law library, released from custody, or permitted unreasonable or lengthy intermissions during trial in order to obtain information or discuss the merits of his case. It does not follow that the right to defend oneself must be accompanied by a relaxation of the limitations imposed upon attorneys practicing before a court of law. On the other hand, a defendant appearing pro se should not be subject to greater limitations in preparing or presenting his defense (outside of those restrictions which are necessary because of the defendant being held in custody) than those imposed upon attorneys.

It is a matter of discretion resting with the trial court as to what limitations should be required and the exercise of such discretion should not be upset in a court of review unless it appears that it was clearly abused. It is apparent, however, that the prohibition against communication placed upon the defendant in the present case was unreasonable. We do not see how the defendant’s conversing with his mother or an attorney, during a recess called for another purpose, would have delayed the trial of the case, interfered with the decorum of the court, or given the defendant an unfair advantage.

In view of our conclusion it is unnecessary to discuss the defendant’s other assignments of error. The judgment of the Circuit Court is reversed and the cause remanded for a new trial.

Reversed and remanded.

SULLIVAN, P. J. and SCHWARTZ, J., concur.