text:
    CRAIG E. THOMPSON, Plaintiff-Appellant, v. WALTER B. PLATT, JR., Defendant-Appellee.
    Third District
    No. 82—641
    Opinion filed July 29, 1983.

      Lyle W. Allen and Nicholas J. Bertschy, both of Heyl, Royster, Voekler & Allen, of Peoria, and Bernard G. Stutter, of Knoxville, for appellant.
    Charles E. Covey and Burrel Barash, both of Barash, Stoerzbach & Henson, of Galesburg, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

This case is presented to us for our consideration for a second time. It is a negligence action claiming damages for personal injuries suffered by plaintiff, Craig Thompson, in August of 1978 when the motorcycle he was operating ran into the rear of a truck/trailer combination operated by the defendant, William Platt, Jr. Following discovery depositions, the defendant filed a motion for summary judgment, which was allowed on November 5, 1980. The court found “as a matter of law that the plaintiff was guilty of contributory negligence.”

On November 21, 1980, plaintiff filed a motion to reconsider. Before the motion could be heard, the supreme court decided Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886. On July 21, 1981, the circuit court effectively granted the motion to reconsider on grounds that plaintiff’s suit was no longer barred by the doctrine of contributory negligence. On motion of the defendant, an. appeal was taken to this court. We reversed the trial court’s order, finding that the motion for summary judgment was “the procedural equivalent of a trial,” and remanded the matter for the court’s consideration of the merits of plaintiff’s motion to reconsider. (Thompson v. Platt (1982), 106 Ill. App. 3d 757, 436 N.E.2d 224.) The motion was heard and denied. This appeal by plaintiff followed.

The question before us today is whether the trial court correctly found that the plaintiff was contributorily negligent as a matter of law. We affirm.

Summary judgment is a harsh remedy which is to be avoided in favor of granting the parties an opportunity to present their evidence at trial unless all of the pleadings, depositions, admissions, affidavits, and all permissible inferences, analyzed in the light most favorable to the nonmovant, so clearly favor the movant that no fair-minded person could dispute the movant’s right to judgment in his favor. On appeal, this court -will affirm the trial court’s decision to grant summary judgment only if, after scrutinizing the record, we are absolutely convinced there is no genuine issue as to any material fact and that the movant was, indeed, entitled to judgment as a matter of law.

Even the issue of contributory negligence, a classic jury question, may be decided on summary judgment if it appears “from undisputed facts that ‘all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.’ ” Killeen v. R.W. Dunteman Co. (1979), 78 Ill. App. 3d 473, 475, 397 N.E.2d 436, 438, quoting Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

A transcript of discovery depositions of the parties was attached to defendant’s motion for summary judgment. The following undisputed facts are gleaned from that document. The plaintiff had been riding cycles since he was nine years old. He was 20 at the time of the deposition. The particular motorcycle that he was riding at the time of the accident was a 1975 250-Honda “El Cinor” which he had purchased used from his father-in-law the beginning of the summer of 1978. There was no mechanical problem with the brakes on the date of the accident. The accident occurred around 11 a.m. and the weather was clear. There was a dip in the road which obstructed the plaintiff’s vision until he was about one-quarter mile from where the accident occurred. The plaintiff said, however, that he first saw the Platt truck/trailer equipment when he was about one-eighth mile away. He observed at that time that the combination vehicle was occupying both lanes as it appeared to be turning into a side road. At that point, the plaintiff was traveling between 50 and 55 miles per hour. He applied his brakes “lightly,” reducing his speed to an estimated 35 or 40 miles per hour, and collided with the trailer. Although the plaintiff observed no on-coming northbound traffic, he did not attempt to change lanes so as to get around the end of the trailer.

Based on these facts, we have no doubt but that the trial court correctly found the plaintiff contributorily negligent as a matter of law.

It is now axiomatic that “[a] driver approaching from the rear has a duty to keep a safe lookout and must take into consideration the fact that he may be required to stop or slow his vehicle suddenly. Failure to maintain a safe lookout for traffic ahead constitutes negligence on the part of a driver.” Gullberg v. Blue (1980), 85 Ill. App. 3d 389, 392, 406 N.E.2d 927, 930, citing Burroughs v. McGinness (1978), 63 Ill. App. 3d 664, 667, 380 N.E.2d 37; see also Waldron v. Hardwick (1968), 99 Ill. App. 2d 36, 240 N.E.2d 772; and Glenn v. Mosley (1976), 39 Ill. App. 3d 172, 350 N.E.2d 219.

The plaintiff in this case was not in the exercise of due care for his own safety when he emerged from the dip in the road one-quarter mile from where the defendant was maneuvering his truck/trailer combination and failed to take immediate note of the potential danger ahead. The plaintiff does not offer any excuse for his own apparent lapse of attention for the admitted one-eighth mile distance between the point where he first could have observed the defendant’s equipment and the point where he in fact did take notice and begin to “lightly” apply his brakes. We can only conclude, as the trial court correctly did, that the plaintiff’s failure to take evasive action to avoid the collision was the product of his own negligence.

The plaintiff insists, however, that the defendant’s activities immediately prior to impact are not undisputed and, therefore, leave triable issues of fact and render summary judgment in error. The factual disputes raised by the plaintiff include the possible suddenness of the defendant’s turning maneuver, whether the defendant’s turning signals and/or brake lights were activated, and whether the defendant’s equipment was moving forward, backwards or standing still. While certainly these matters would be relevant to the degree of the defendant’s negligence, we fail to see how they are material to the issue of the plaintiff’s own contributory negligence. The defendant’s negligence, if any were to be found, still would not account for the plaintiff’s failure to exercise due care at all times to avoid a collision with vehicles on the road ahead of him.

On the record before us, it is evident with certainty that the trial court properly determined that the plaintiff was guilty of contributory negligence as a matter of law and that the defendant was entitled to summary judgment. Accordingly, we affirm the judgment of the circuit court of Knox County.

Affirmed.

ALLOY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCOTT JUSTICE HEIPLE,

license: Public Domain

text:
      In re LUCILLE PRIOR (Kathryn Hufnagle, Petitioner-Appellee, v. Lucille Prior, Respondent-Appellant).
    Third District
    No. 82—774
    Opinion filed July 25, 1983.
    HEIPLE, J., dissenting.
    David B. Radley and Cathleen L. Hines, both of Baymiller, Christison & Radley, and Dorian B. LaSaine, both of Peoria, for appellant.

      No brief filed for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

On September 10, 1982, Ms. Kathryn Hufnagle, a speech therapist, petitioned the circuit court of Peoria County to have Lucille Prior, age 75, declared a disabled person and to have Thomas H. Trager, the public guardian of Peoria County, appointed as guardian of Lucille Prior’s estate. (Ill. Rev. Stat. 1981, ch. 110½, par. 11a—3.) Mrs. Prior had suffered a stroke, resulting in paralysis of her right side and loss of speech. A physician’s report attached to the petition indicated that Mrs. Prior’s mental health was good and essentially normal.

Judge John D. Sullivan appointed Thomas Trager the temporary guardian of Lucille Prior’s estate on the day the petition was filed. Three days later, on September 13, 1982, Dorian B. LaSaine was appointed guardian ad litem for Mrs. Prior in preparation for a hearing on the petition for guardianship. Ill. Rev. Stat. 1981, ch. 110½, pars. 11a—4, 11a—10(a).

Following a hearing on October 1, 1982, the petition for appointment of a permanent guardian was dismissed. Subsequently, Attorney LaSaine petitioned the court for guardian ad litem fees. Thomas Trager, in his capacity as public guardian and as temporary guardian for the estate of Lucille Prior, also petitioned the court for attorney fees and costs. At the conclusion of a hearing on November 1, 1982, the trial judge fixed the guardian ad litem fees at $300 and the public guardian expenses at $652.50 for attorney fees and $86.20 for costs. It is from the taxation of these costs to Lucille Prior that this appeal is taken. Various arguments are presented: (1) that court costs should have been taxed to Ms. Hufnagle; (2) that attorney fees are not taxable as costs; (3) that the trial court abused its discretion in appointing a guardian ad litem; and (4) that a guardian ad litem fee is not taxable to Mrs. Prior.

No appellee’s brief has been filed in this appeal. While a court of review is not compelled to serve as an advocate for the appellee or to search the record to sustain the judgment, where the record is simple and the claimed errors can easily be decided without the aid of an appellee’s brief, the case will be decided on the merits. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.) Accordingly, we will address the issues raised by the appellant in this appeal.

The appellant’s contentions raise difficult questions of equity and fairness not easily resolved by resort to statutory interpretation. Yet, the allowance and recovery of costs, being unknown at common law, rests entirely upon statutory provisions which must be strictly construed. (People v. Nicholls (1978), 71 Ill. 2d 166, 173, 374 N.E.2d 194, 197.) Statutes in derogation of the common law are to be strictly construed in favor of those persons sought to be subjected to their operation. (Barthel v. Illinois Central Gulf R. R. Co. (1978), 74 Ill. 2d 213, 220, 384 N.E.2d 323, 327; Summers v. Summers (1968), 40 Ill. 2d 338, 342, 239 N.E.2d 795, 798; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 375-76, 387 N.E.2d 1118, 1119.) This principle applies even if a statute has remedial features. (Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 82-83, 96 N.E.2d 482, 484; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 376, 387 N.E.2d 1118, 1120.) Furthermore, such statutes will not be extended to situations or persons not absolutely required by the express terms or by clear implication of the language of the statute. In re W.W. (1983), 97 Ill. 2d 53, 454 N.E.2d 207; Walter v. Northern Insurance Co. (1938), 370 Ill. 283, 288-89, 18 N.E.2d 906, 908; 73 Am. Jur. 2d Statutes sec. 288 (1974).

Applying these principles to the case at bar we note that the Probate Act of 1975 (hereafter referred to as the Probate Act) provides for the taxation of costs in the following relevant sections: (1) section 11a—10(a), guardian ad litem may be allowed reasonable compensation; (2) section 11a — 13, costs pertaining to the appointment of a guardian of a disabled adult; (3) section 13 — 3.1, compensation of a public guardian; (4) section 13—5(g), fees for services of a public guardian; (5) section 27—4, compensation of a guardian ad litem or special administrator. Ill. Rev. Stat. 1981, ch. 110½, pars. 11a—10(a), 11a—13, 13—3.1, 13—5(g), 27—4.

Implicit in each of these sections is the necessity for the appointment of both a guardian of the estate of a disabled person and a guardian ad litem. In the present case, where the petitions for appointment of a permanent guardian were dismissed following a hearing and private counsel appeared on behalf of the allegedly disabled adult as soon as notice, was received of the pending hearing on guardianship, we can find no justification in the relevant provisions of the Probate Act for the taxation of guardian ad litem and temporary guardian costs to the subject of the petition.

Guardian ad litem fees are to be paid in the “due course of administration.” (Ill. Rev. Stat. 1981, ch. 110½, par. 27—4.) Yet, there was no administration required in the present case. Attorney LaSaine was appointed guardian ad litem for Lucille Prior on September 13, 1982, by Judge Sullivan. This ex parte appointment was made upon the petition for appointment filed by Kathryn Hufnagle. Nine days after the appointment, on September 22, 1982, notice of a hearing on the pending guardianship petition was sent to Lucille Prior. Six days later, private counsel for Lucille Prior answered the petition for appointment of a guardian, asking that the appointment of Dorian LaSaine as guardian ad litem be revoked. At the October 1 hearing, Attorney Baymiller, counsel for Lucille Prior moved that Attorney LaSaine be discharged and that he be appointed to replace him. This motion was denied, erroneously, we believe, since no guardian ad litem is necessary when the court determines that the respondent’s interests are otherwise protected. However, that issue is not before this court. We refer to it only to demonstrate that no guardian ad litem fees should be allowed for in-court appearances. In our opinion, the three hours listed by Attorney LaSaine for out-of-court work should likewise be disallowed, since the statute, strictly construed, does not provide for the payment of guardian ad litem fees prior to administration of the respondent’s estate. Furthermore, in the petition filed by private counsel on behalf of Lucille Prior on September 28, 1982, the suggestion is made that Kathryn Hufnagle knew of counsel’s representation of Lucille Prior before filing the petitions for appointment of a guardian and guardian ad litem. Although we have no way to verify this “suggested knowledge,” it casts further doubt upon the necessity of the guardian ad litem appointment.

The taxation of costs for the services of Thomas Trager, public guardian of Peoria County and appointed temporary guardian of Lucille Prior’s estate, against Lucille Prior is also erroneous. Although the public guardian may submit an affidavit to the court, “at such intervals as the court may direct,” for fees resulting from services to a ward (Ill. Rev. Stat. 1981, ch. 110½, par. 13—5(g)), the statute does not expressly provide for the payment of such fees where the appointment as guardian is temporary and never becomes permanent.

To allow the taxation of costs to Lucille Prior as set forth in the lower court’s order would be a violation of the strict rules of statutory interpretation required in such cases. In addition, it would be inequitable and unfair. Whether Kathryn Hufnagle is a volunteer and a meddler as she was characterized in the respondent’s petition or is a reputable person as the statute describes, to charge costs to the estate of Lucille Prior from petitions initiated by Ms. Hufnagle is inequitable when these petitions were dismissed.

“Procedural protections are necessary, therefore, to protect disabled persons from the deleterious effects of guardianship.” (Jost, The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled from their Zealous Protectors, 56 Chi.-Kent L. Rev. 1087, 1089 (1980).) We think these procedural protections must and do extend to the question of imposition of unwarranted fees and costs.

Applying the same strict rules of statutory construction discussed earlier in this opinion, we cannot agree with the appellant-respondent’s argument that the costs are properly taxable to Ms. Hufnagle under section 5—118 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 5—118). Ms. Hufnagle cannot be properly characterized as the plaintiff and the respondent as the defendant. Nor do we agree that Attorney Trager appeared as counsel for Ms. Hufnagle. As public guardian of Peoria County, he filed the petitions for guardianship signed by Ms. Hufnagle. Following his appointment as temporary guardian, he acted in that capacity. Although he performed no services as temporary guardian, he appeared in that capacity at the October 1, 1982, hearing on guardianship. He was not appearing as counsel for Ms. Hufnagle. Thus, fees for his appearances cannot be charged to her.

For the foregoing reasons, the judgment of the circuit court of Peoria County taxing costs against Lucille Prior in the amount of $1,038.70, is reversed.

Reversed.

STOUDER, P.J., concurs.

JUSTICE HEIPLE,

dissenting:

The majority opinion makes bad law. And it does so under great handicaps. First, it subverts State statutes. And second, it ignores the settled legal procedures which have existed since the mind of man runneth not to the contrary. Although the opinion purports to rely on seven case citations, several sections of the Illinois Probate Act of 1975, and an article from the Chieago-Kent Law Review, not one authority cited stands for the proposition that the guardian ad litem appointed by the trial court is not entitled to be paid.

The facts are fairly set forth in the majority opinion. In broad outline, I repeat them here. Lucille Prior, age 75, suffered a stroke, resulting in paralysis of her right side and loss of speech. Kathryn Hufnagle, a speech therapist, petitioned the court to have Lucille Prior declared a disabled person and to have the public guardian appointed as guardian of her estate. The trial court named Dorian B. LáSaine, an attorney, as guardian ad litem in preparation for the hearing on the guardianship. Mrs. Prior hired her own attorney, resisted the proceedings, and succeeded in having the proceedings terminated without the issuance of letters of guardianship. The guardian ad litem, for his part, acted in his appointive capacity, appeared in court and fulfilled the usual duties of such office. "At the conclusion of the proceedings, the trial court fixed the guardian ad litem fees at $300, the public guardian expenses at $652.20 and incidental court costs of $86.20, all of which were taxed to Mrs. Prior. She resisted the taxing of these costs, and took an appeal to our court. No response was filed for the guardian ad litem or the public guardian.

I concur with that part of the majority opinion which disallows $652.50 taxed as costs for the public guardian. The public guardian, after all, never served in this case and is not entitled to compensation. I most strongly dissent, however, from that portion of the majority opinion which disallows the $300 awarded to the guardian ad litem to be taxed as costs along with the $86.20 miscellaneous costs.

From time immemorial, trial courts have designated guardian ad litems to be appointed in proceedings where necessary to prosecute or defend a suit on behalf of a party incapacitated by infancy, mental or physical state or otherwise. The guardian ad litem serves as an officer of the court and as an aid to the court to ensure that the rights of the alleged incapacitated person are fully protected. Such appointive powers are not only part of the traditional and historical inherent powers of the courts, but they are further alluded to and authorized in numerous Illinois statutes. It has also been customary and traditional to compensate the guardian ad litem from the estate of the incapacitated person since the services are rendered for that person’s benefit.

And, in the instant case, the trial court is mandated (“shall appoint”) to appoint a guardian ad litem-, and to see to it (“shall enter an order”) that the guardian ad litem is compensated. (Ill. Rev. Stat. 1981, ch. 100½, pars. 11a—10(a), (c).) If the respondent is unable (not unwilling) to pay, then the court shall order the State to pay.

An ironical result of the majority opinion is that a guardian ad litem who succeeds in having incompetency or related proceedings terminated cannot be paid. Thus, the majority opinion, in one sense, is calculated to penalize success and reward failure. More significantly, however,,, it simply ignores the role and purpose of the guardian ad litem, who is designated to protect the legal rights of the incapacitated person in the litigation at hand. In some situations, that might involve supporting the petition; in other situations, resisting.

In the instant case, there is no basis in the record for finding that the trial court abused its discretion in appointing Mr. LaSaine as guardian ad litem. There is no basis for finding that he did not fully, fairly and adequately discharge his appointive duties. There is no basis for finding that the awarded fee of $300 to be taxed as costs is anything but reasonable. In short, there is no basis for reversing the trial court in this regard.

The integrity of the judicial process demands that appointed guardian ad litems be utilized in certain cases. And, if guardian ad litems are to be utilized, they must be paid. Involuntary servitude, after all, was abolished many years ago. The instant majority opinion, in ruling otherwise, flies in the face of established law.

Accordingly, I dissent.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SAMUEL DAWSON, Defendant-Appellant.
    Fourth District
    No. 4—83—0085
    Opinion filed July 28, 1983.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Edward Litak, State’s Attorney, of Danville (Robert J. Biderman and Rebecca White, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On November 9, 1982, following a jury trial in the circuit court of Vermilion County, defendant, Samuel Dawson, was convicted of three counts of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19—3(a)), four counts of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19—1(a)), and two counts of felony theft (Ill. Rev. Stat. 1981, ch. 38, par. 16—1(a)). He was subsequently sentenced to 15 years’ imprisonment on each of the residential burglary counts, seven years’ imprisonment on each of the burglary counts, and five years’ imprisonment on each of the felony theft counts; all sentences were to be served concurrently.

On appeal, defendant maintains: (1) The evidence was insufficient to support a conviction for residential burglary at Oscar Lindley’s residence; (2) the conviction for burglary of Oscar Lindley’s garage should be vacated where defendant was also convicted of residential burglary of Lindley’s home; and (3) the sentences of 15 years’ imprisonment imposed for each residential burglary conviction were excessive.

At trial, six witnesses testified that their homes and/or garages had been broken into and personal property had been taken during the summer of 1982. Oscar Lindley testified that he was in the hospital from August 1 through August 10, 1982, and that a neighbor had been watching his house. He stated he was the owner of a blue station wagon which was kept in the garage attached to his house, and the keys to the car were hanging in a utility room just inside the door to his house. A neighbor testified that she was in Lindley’s garage at 6 a.m., on August 9, fed Lindley’s dog, and left the garage door partially open so the dog could go in and out. She stated that when she returned at 8:30 p.m., the door was completely open, and the car was gone.

An 11-year-old (R.M.) testified at trial that he and another 11-year-old (S.L.) and defendant broke into and took personal property from several houses and garages in the spring and summer of 1982. He further testified that he was apprehended as he was leaving an apartment through a window. He stated that he and defendant were in the process of disconnecting the television when the owner of the home arrived, and defendant left through the window. Defendant was subsequently found walking along the street in front of the apartment and was arrested. R.M. also testified that a few days prior to being caught, he had seen defendant driving a blue station wagon, and that defendant told him he left the car in the woods and stripped it.

S.L. also testified that he participated in several burglaries with defendant from March to August 1982. He further stated that he had seen defendant driving a blue station wagon a few days prior to defendant’s arrest. The police found the abandoned blue station wagon in an isolated area, and the license plate number matched that of Oscar Lindley’s automobile.

In the instant case, one count of burglary was based on defendant’s removal of an automobile and tools from Oscar Lindley’s garage, and one count of residential burglary was based upon his entry into Lindley’s residence to obtain the keys to the automobile. Defendant does not dispute the sufficiency of the evidence to show he entered the garage and took the automobile (see People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160), but, rather, he contends that, in entering the garage and taking the automobile, he did not commit residential burglary.

The offense of residential burglary occurs when one “enters the dwelling place of another with the intent to commit therein a felony or theft.” (III. Rev. Stat. 1981, ch. 38, par. 19—3(a).) A “dwelling” is “a building or portion thereof, *** or other enclosed space which is used or intended for use as a human habitation, home or residence.” (Ill. Rev. Stat. 1981, ch. 38, par. 2—6.) Defendant maintains the evidence was insufficient to support his conviction of residential burglary of Lindley’s home, since there was no evidence that he entered that portion of the structure which constituted Lindley’s “dwelling place” as required by the statute.

Lindley’s house and garage were attached with one roof, one foundation, and a connecting door. Once defendant had broken the close of the garage, he had sufficient entry into Lindley’s “dwelling place” to establish residential burglary. Moreover, although Lindley did not testify that the keys to the car had been taken, S.L. testified that he saw defendant with the keys. Further evidence showed that the blue station wagon defendant was seen driving and Lindley’s car had the same license plate number. No evidence was offered that a set of keys other than those hanging inside the house could have been used to start the car. Thus, the evidence was sufficient to establish defendant’s conviction for residential burglary.

Defendant’s second contention is that his conviction for burglary of Lindley’s garage should be vacated, because it is an included offense of residential burglary. We agree. Defendant’s entry into the garage and the entry into the house constituted one entry. Where more than one offense is carved from the same physical act, a conviction and sentence may only be granted on the greater offense. People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.

Defendant’s final argument is that his sentences of 15 years’ imprisonment for each of the residential burglary convictions were excessive. Defendant notes that his only previous conviction was for a Class A misdemeanor, unlawful use of weapons. (Ill. Rev. Stat. 1981, ch. 38, par. 24—1.) He was sentenced to and served one day incarceration in the Vermilion County Public Safety Building in June 1982.

Defendant was convicted in the instant case of three Class 1 felonies for which he could have been imprisoned from four to 15 years. He was also convicted of four Class 4 felonies and two Class 3 felonies. The court determined that imprisonment was necessary to deter others and to protect the public. There was no evidence to support defendant’s contention that the court considered improper aggravating factors. In addition, the fact that defendant led several minors in participating in these offenses tends to support the severity of the sentences. We find that the trial court did not abuse its discretion in sentencing defendant. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Defendant’s conviction for the residential burglary of Oscar Lindley’s home is affirmed. His conviction for the included offense of burglary is reversed. The sentences imposed for defendant’s convictions of residential burglary are also affirmed.

Affirmed in part, reversed in part.

WEBBER, RJ., and MILLER, J., concur.


author: JUSTICE ALLOY

text:
    THE VILLAGE OF MORTON, Plaintiff-Appellee, v. CHARLES THOMAS, Defendant-Appellant.
    Third District
    No. 82—801
    Opinion filed August 9, 1983.
    Patrick A. Tuite, of Chicago, for appellant.

      Thomas E. Davies, of Elliff, Keyser, Oberle & Davies, P.C., of Morton, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment finding defendant Thomas guilty of violating the Morton village ordinance proscribing the offense of obscenity.

The Morton village ordinance is based on section 11—20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11—20), and the defense in this cause is predicated upon the contention that the ordinance is unconstitutional, as violating the first amendment rights of defendant Thomas. The ordinance involved states:

“ ‘Obscene’ defined: A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.”

The complaint in the action charged that defendant violated the ordinance in showing certain motion picture films which had a predominant appeal to the prurient interest, and that the films went substantially beyond customary limits of candor, description and representation of sexual matters, and described and depicted sexual matters in a patently offensive way and had no artistic, literary, scientific or educational value or significance.

Prior to trial, the defendant moved the court to dismiss the complaint on the grounds that the ordinance upon which it was based and the complaint itself were unconstitutional as not being within the acceptable definition of obscenity as set forth by Illinois law on the subject. The motion was properly denied. Following a trial by jury, defendant Charles Thomas was found guilty and sentenced to serve 60 days in the Tazewell County jail and to pay a fine of $500. The defendant was released on his personal recognizance, pending disposition of this appeal.

At the trial, the village submitted a jury instruction which complied with the Illinois standard of obscenity and also included therein that the obscene material was required to be utterly without redeeming social value.

The complaint for -violation of the ordinance asserted that the film referred to had a predominant appeal to the prurient interest, goes substantially beyond customary limits of candor in the description and representation of sexual matters, describes and depicts sexual matters in a patently offensive way and has no apparent artistic, literary, scientific or educational value or significance and that the defendant knew the nature and content thereof or recklessly failed to exercise reasonable inspection which would have disclosed the nature or the contents thereof.

The directive of the United States Supreme Court in Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, taken in consideration with the Illinois decision in People v. Ridens (1974), 59 Ill. 2d 362, 321 N.E.2d 264, defines obscenity in Illinois.

The village of Morton asserts that the ordinance was and is constitutional, since it is based upon and copied from section 11—20 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 11—20), and, also, that it has been ruled upon by both the United States Supreme Court and the Supreme Court of the State of Illinois. The village also points out that in all instances, the Illinois obscenity statute has been upheld and, accordingly, the village of Morton ordinance should be upheld.

It is noted that the United States Supreme Court in Ward v. Illinois (1977), 431 U.S. 767, 52 L. Ed. 2d 738, 97 S. Ct. 2085, considered the constitutionality of the Illinois statute and upheld it in a decision delivered by Justice White. The court upheld the statute and rejected the defendant’s claim of vagueness or overbroadness. The Ward basic argument raised by the defendant was similar to that raised by defendant in this case, in his motion that the applicable law does not define with particularity the type of conduct prohibited. The United States Supreme Court rejected this argument and held that the standards set forth in Miller v. California (1973), 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, had been met. In Ward, Justice White noted that Miller set forth the basic constitutional parameters in determining obscenity where he set forth the guidelines to be used:

“ '*** (a) whether “the average person, applying contemporary standards” would find that the work, taken as a whole, appeals to the prurient interest ***; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; *** (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ ” Ward v. Illinois (1977), 431 U.S. 767, 768-69, 52 L. Ed. 2d 738, 743, 97 S. Ct. 2085, 2087.

It is noted, in the cases, that the determination of whether or not part of the Miller test on specificity has been met requires an examination of not only the law itself but the construction of the same by the State court. Justice White analyzed the key Illinois court decisions construing the statute and said, “As we see it, Illinois has not failed to comply with Miller, and its statute is not overbroad.” (Ward v. Illinois (1977), 431 U.S. 767, 774, 52 L. Ed. 2d 738, 746, 97 S. Ct. 2085, 2090.) Justice White noted therein that the Illinois Supreme Court in People v. Ridens (1974), 59 Ill. 2d 362, 321 N.E.2d 264, had construed the Illinois statute to incorporate parts (a) and (b) of the Miller standards. With regard to part (c) of the Miller standard, the Illinois court “preferred” to retain the “utterly without redeeming social value” standard of Memoirs v. Massachusetts (1966), 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975, rather than the “more relaxed criterion contained in part (c) of the Miller guidelines.” Ward v. Illinois (1977), 431 U.S. 767, 774, 52 L. Ed. 2d 738, 746, 97 S. Ct. 2085, 2090.

It is noted that Justice White observed that the Illinois Supreme Court, in Ridens, intended to adopt part (b) of Miller where he stated:

“The Illinois court plainly intended to conform the Illinois law to part (b) of Miller, and there is no reason to doubt that, in incorporating the guideline as part of the law, the Illinois court intended as well to adopt the Miller examples, which gave substantive meaning to part (b) by indicating the kinds of materials within its reach. The alternative reading of the decision would lead us to the untenable conclusion that the Illinois Supreme Court chose to create a fatal flaw in its statute by refusing to take cognizance of the specificity requirements set down by Miller.” (Ward v. Illinois (1977), 431 U.S. 767, 775, 52 L. Ed. 2d 738, 747, 97 S. Ct. 2085, 2090.)

We also note that Justice White expressly rejecting the contention that the State law itself must provide an “exhaustive list of the sexual conduct the patently offensive description of which may be held obscene under the statute.” (Ward v. Illinois (1977), 431 U.S. 767, 776, 52 L. Ed. 2d 738, 747, 97 S. Ct. 2085, 2091.) In upholding the Illinois law, Justice White stated:

“Since it is plain enough from its prior cases and from its response to Miller that the Illinois court recognizes the limitations on the kinds of sexual conduct which may not be represented or depicted under the obscenity laws, we cannot hold the Illinois statute to be unconstitutionally overbroad.” (431 U.S. 767, 776, 52 L. Ed. 2d 738, 747, 97 S. Ct. 2085, 2091.)

The appellee contends that the United States Supreme Court and the Illinois Supreme Court have clearly and unequivocally determined this issue.

It is pointed out that the case of City of Delavan v. Thomas (1975), 31 Ill. App. 3d 630, cited by defendant, was decided prior to Ward and must be viewed in that light. The appellee states that the United States Supreme Court specifically held that the obscenity statute, read together with the pronouncements of the Illinois Supreme Court, is such that the obscenity law is valid and not unconstitutional. All courts which have considered the issue, have held the obscenity statute to be valid; and there has not been any authority or justification offered by defendant to mandate a complete reversal of this well-settled law.

In support of this position see People v. Tannahill (1976), 38 Ill. App. 3d 767, 770-71, 348 N.E.2d 847, where the court stated:

“Defendants urge that, despite these cases [referring to People v. Ridens (1974), 59 Ill. 2d 362, and People v. Gould (1975), 60 Ill. 2d 159], this court should hold the statute unconstitutional. This, of course, we cannot do. When the Supreme Court has declared the law on any point, it alone can overrule and modify its opinion and we are bound by its decision. Agricultural Transportation Association v. Carpentier, 2 Ill. 2d 19, 116 N.E.2d 863.”

The appellee correctly observes that the clear holdings of the Illinois Supreme Court and the United States Supreme Court uphold the constitutionality of the Illinois obscenity act and the ordinance of the village of Morton.

Thus, we note that the Illinois act defines “obscene” precisely as the Morton village ordinance does. Also, we have noted that in People v. Ridens (1974), 59 Ill. 2d 362, the Illinois court preferred to retain the “utterly without redeeming social value” standard. Implicitly, the prosecution is required to apply the standard in support of its prosecution in “obscene” cases. In the instant case, the trial court, at the prosecutor’s request, gave the jury, as the fact finder, instructions specifying that the prosecutor must prove, under the court’s direction, that the “obscene” films shown were, also, in fact, “utterly without redeeming social value.” This the prosecutor did, as shown by the record in the case. The record supports the judgment in the case.

For the reasons stated, and on the record in this cause, the judgment of the circuit court of Tazewell County is affirmed.

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


author: JUSTICE MILLS

text:
    RICHARD B. HISE, Plaintiff-Appellant, v. A. LEWIS HULL et al., Defendants-Appellees.
    Fourth District
    No. 4—82—0726
    Opinion filed July 26, 1983.
    Stone and Stone Law Offices, of Sullivan (Paul L. Stone, of counsel), for appellant.
    No appearance for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

Attorney fees.

Under section 2 — 611 of the Code of Civil Procedure.

The trial judge dismissed Hise’s complaint for failure to state a cause of action. Hise filed an amended complaint. Again, the trial judge dismissed the amended complaint, but reserved for future hearing the defendants’ motion for section 2 — 611 attorney fees. Hise appealed to this court.

We must dismiss his appeal.

The pertinent facts follow:

Richard Hise’s wife, Patricia, filed for a legal separation. She retained the law firm of Hull, Campbell, Robinson & Gibson (the law firm) to represent her. After a hearing, the trial judge entered a judgment of legal separation and a decree of partition, ordering certain real property owned by Patricia to be sold and the proceeds used to pay marital debts.

The property was sold. The proceeds — $8,245.87—were placed in the law firm’s trust account. Patricia then terminated the law firm’s services. The firm acknowledged the termination and informed Patricia that she owed them $1,219.70 in legal fees. Patricia failed to pay the fees and the firm mailed Richard Hise’s attorney a check for $7,026.17 — the amount representing the difference between the monies held in the trust account and the fees Patricia owed the firm. Richard Hise’s attorney never cashed the check.

Five months later, the trial court entered a modified judgment incorrectly stating that Patricia’s land “has been sold and the net proceeds of said sale, after the payment of expenses thereof, in the amount of $8,245.87 are presently being held in the trust account of Attorney Michael I. Campbell by agreement of the parties, and for the use and benefit of the parties, subject to the order of the Court as to the use and distribution of said proceeds.”

Next, Hise filed a complaint against the law firm. He alleged that the firm had breached its fiduciary duty to him by retaining the $1,219.70 in legal fees. Arguing that a fiduciary relationship never existed between Hise and the law firm for Patricia, the firm moved to dismiss his complaint. Judge Hendrian allowed the firm’s motion and granted Hise leave to file an amended complaint.

Hise then filed an amended complaint which — for all practical purposes — simply restated the allegations in his original complaint. The law firm moved to dismiss the amended complaint and also asked the court to assess section 2—611 attorney fees and expenses (Ill. Rev. Stat. 1981, ch. 110, par. 2—611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) against Hise because the amended complaint contained false statements. Finding that Hise’s amended complaint failed to state a cause of action, Judge Hendrian dismissed the amended complaint but reserved for future hearing the law firm’s motion for section 2 — 611 attorney fees. (Judge Hendrian did not find in the order that there was no just reason for delaying enforcement or appeal of the order.)

We must dismiss this appeal because Judge Hendrian’s order was not a final judgment as to all of the claims in the action—he reserved ruling on the law firm’s claim for section 2 — 611 attorney fees. Without a Supreme Court Rule 304(a) finding — that there is no just reason for delaying enforcement or appeal — a judgment that does not dispose of all the claims in an action is not an appealable order.

Supreme Court Rule 304(a)

Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) states:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.”

The Supreme Court of Illinois (in dealing with section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1957, ch. 110, par. 50(2)), predecessor to Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a))), stated in Ariola v. Nigro (1958), 13 Ill. 2d 200, 206, 148 N.E.2d 787, 791:

“The language of section 50(2), as well as the comments of the committee which drafted it, indicate that a flexible and reasonable meaning was intended for the ‘claims’ to which the section refers. The section itself speaks in terms of a final judgment or decree that adjudicates less than ‘all the claims or rights and liabilities;’ (emphasis supplied,) and upon two occasions the advisory committee comments that its provisions are to take effect when there is a final judgment adjudicating fewer than ‘all the matters involved.’ (Smith-Hurd Anno. Stat., Perm. Ed. chap. 110, sec. 50(2), Joint Committee Comments.)”

Section 2 — 611 Attorney Fees

Section 2—611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—611, formerly Ill. Rev. Stat. 1979, ch. 110, par. 41) provides:

“Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney’s fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.”

The law firm’s demand for section 2—611 attorney fees is a “claim” as that term is used in Rule 304(a). The attorney fees claim meets all of the criteria for a Rule 304(a) claim outlined by the court in Ariola: It is a matter involved in the action, it is a possible right of the law firm, and it is a possible liability for Hise. Consequently, when the trial court reserved its ruling on the section 2—611 claim without making a Rule 304(a) finding, the order disposing of the initial claim was not appealable because it did not dispose of all the claims in the action.

Ergo, we must dismiss the appeal.

Our holding here does not necessarily mean that every section 2 — 611 claim will prevent the judgment disposing of the initial claim from being appealable without a Rule 304(a) finding by the trial court. A section 2 — 611 claim may be brought as a separate action anytime within 30 days after the judgment disposing of the initial claim. The trial court’s failure to rule on a section 2 — 611 claim brought after disposition of the initial claim will not prevent the order disposing of the initial claim from being appealable without a Rule 304(a) finding. Where, however, the section 2 — 611 claim is brought as a part of the responsive pleading — for example in a motion to dismiss or in a motion for summary judgment or in an answer — it becomes part of the same action and must be disposed of by the judgment, or a Rule 304(a) finding must be entered before the trial court’s order is appeal-able.

In the case at bench, if the law firm had filed its claim for section 2 — 611 fees after the trial court had dismissed Hise’s amended complaint, the fact that the claim was unresolved would not have prevented the trial court’s order dismissing the amended complaint from being an appealable order without a Rule 304(a) finding. Instead, the law firm, by asserting the section 2 — 611 claim in its motion to dismiss, chose to bring the claim as part of Hise’s action and therefore a Rule 304(a) ruling was necessary.

This situation is analogous to that which occurs when a trial court’s order leaves unresolved a defendant’s counterclaim. When a defendant has a claim against a plaintiff, he may bring it either as a counterclaim in the plaintiff’s action or he may bring it as a separate action. If he brings a separate action, the resolution or lack of resolution of his claim has no effect on the appealability of the order disposing of the plaintiff’s original claim. If, however, the defendant chooses to raise his claim as a counterclaim, it must be resolved by the trial court or a Rule 304(a) finding must be entered before the order disposing of the plaintiff’s claim is appealable. See Chicago Miniature Lamp Works, Inc. v. D’Amico (1979), 78 Ill. App. 3d 269, 397 N.E.2d 138; Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 348 N.E.2d 527.

One final note. Our holding today is limited to the effect of an unresolved section 2 — 611 claim for attorney fees on the appealability of an order disposing of all other claims in the case. The issue of whether other types of claims for attorney fees must be resolved before an order is appealable is not before us, and we have expressly avoided that issue herein.

Appeal dismissed.

WEBBER, RJ., and GREEN, J., concur.


author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    GEORGIA SATCHER, Plaintiff-Appellee, v. INLAND REAL ESTATE CORPORATION, Defendant-Appellant.
    Third District
    No. 82—671
    Opinion filed July 18, 1983.
    HEIPLE, J., dissenting.

      Richard W. Christoff, of Sanford Kahn, Ltd., of Chicago, for appellant.
    No brief filed for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff, Georgia Satcher, brought this small claims action in the Will County Circuit Court against the defendant, Inland Real Estate Corporation, seeking to recover $2,000 plus costs in damages for the defendant’s alleged negligence in maintaining and controlling the plaintiff’s apartment. According to the complaint and plaintiff’s affidavit, the defendant owned the apartment building where plaintiff lived. Plaintiff returned from a vacation in November of 1981 to discover that her apartment had been broken into and $2,000 worth of items were missing. Plaintiff’s complaint was filed on June 14, 1982. It was served on defendant’s agent in Oak Brook, Du Page County, on July 2. The cause was set for hearing five days later, on July 7.

The defendant failed to appear, and an order of default was entered. On July 21, proof of plaintiff’s damages was heard and judgment of default was entered in the amount of $2,000 plus costs. The record does not indicate that notice of the hearing on damages was sent to the defendant. On August 6, 1982, defendant moved to vacate the default judgment and alleged:

“1. Plaintiff will not be prejudiced by the granting of [the] motion;
2. Defendant has a meritorious defense to Plaintiff’s claim; [and]
3. Upon receipt of summons, Defendant *** forwarded the court papers to its [insurer]. The [insurer] denied coverage, and therefore, did not provide defense for [the] action, resulting in the default.”

On September 8, 1982, the date set for a hearing on the motion, the plaintiff filed an “answer,” denying each of the allegations. The “answer” stated, inter alia, that on June 28, 1982, the defendant’s insurer informed the defendant’s agent that the insurance policy did not cover incidents of the type alleged in plaintiff’s complaint. After entertaining arguments of counsel for both sides, the court denied the motion to vacate and entered its findings as follows:

“The court finds that Defendant did not set forth a meritorious defense in its Petition, and based upon Paragraph 3 of Plaintiff’s answer finds that Plaintiff’s [sic] allegations in its motion regarding denial of insurance coverage were not meritorious and the court denies the motion to vacate the judgment.”

Defendant appeals, raising for our consideration a single issue— whether the trial court committed reversible error by applying an erroneous standard in ruling on the motion to vacate. Our review of applicable case law persuades us that the trial court erred in denying defendant’s motion.

The seminal case in recent decisions interpreting section 2— 1301(e) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—1301(e)) is Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102, 167 N.E.2d 799. There the court stated:

“The question of whether or not a court should set aside a default should be so resolved as to do substantial justice between the parties and with the idea in mind of carrying out, insofar as it is possible, the determination of matters upon their merits. In resolving this problem, a court may well consider whether or not a defendant has a meritorious defense, and whether or not defendant’s delay in responding to the court’s command actually jeopardizes plaintiff’s basic position. But this should not be the only, nor necessarily, the determining factors. It seems to us that the overriding reason should be whether or not justice is being done. Justice will not be done if hurried defaults are allowed any more than if continuing delays are permitted. But justice might, at times, require a default or a delay. What is just and proper must be determined by the facts of each case, not by a hard and fast rule applicable to all situations regardless of the outcome.
The entering of a default is one of the most drastic actions a court may take to punish for disobedience to its commands. The court has other powers which are ample in most instances. In our judgment, a default should only be condoned when, as a last resort, it is necessary to give the plaintiff his just demand. It should be set aside when it will not cause a hardship upon the plaintiff to go to trial on the merits. ” (Emphasis added.) 26 Ill. App. 2d 102,108-09,167 N.E.2d 799, 803.

The real question on appeal is no longer whether the trial court abused its discretion in ruling on the motion to vacate, but whether its ruling serves the ends of justice. Lettvin v. Suson (1978), 62 Ill. App. 3d 215, 379 N.E.2d 49.

The record on appeal consists of the common law record, without transcripts of hearings. Our review of the trial court’s order convinces us that the court erroneously accorded too much weight to its finding that the Du Page County defendant’s asserted excuse for failing to appear was not justified. This factor alone does not dictate denial of the motion to vacate. Furthermore, while obviously it would have been preferable to us, for purposes of review, had the defendant set forth a basis for its bare allegation of a meritorious defense, we do not believe that the motion is fatally defective in its failure to do so. Whether a meritorious defense existed or not was a proper subject of inquiry at the hearing on defendant’s motion. Of far lesser import was the question of whether or not the form of defendant’s motion was technically complete. (See Knight v. Kenilworth Insurance Co. (1971), 2 Ill. App. 3d 493, 275 N.E.2d 470 (defendant’s motion to vacate default judgment alleged a meritorious defense and appellate court, without addressing such defense, determined justice would be served by allowing defendant his day in court).) But, most importantly, it appears on the face of the trial court’s order that the court did not find that allowing the motion would work any injustice on this plaintiff.

Hardship or prejudice to the plaintiff, if any could be found, would weigh in favor of affirming the trial court’s denial of the motion to vacate on grounds that substantial justice had been served. (Widicus.) The record indicates that the plaintiff appeared, at most, only three times by her attorney prior to the filing of defendant’s motion to vacate. There is no indication that the plaintiff herself ever made an appearance. Although plaintiff in her “answer” generally denied that she would not be prejudiced by an allowance of the motion, the record before us is devoid of any facts whatsoever that could support a finding of prejudice to her.

In our opinion, substantial justice requires that the defendant be afforded an opportunity to be heard on the merits in this case.

For the reasons stated, we reverse the judgment of the circuit court, direct that the default judgment against the defendant be vacated and remand this cause for further proceedings.

Reversed and remanded with directions.

ALLOY, J., concurs.

JUSTICE HEIPLE,

dissenting:

This case is simple and straightforward. Plaintiff obtained a default judgment. Defendant moved to vacate. Defendant’s motion was answered and denied by plaintiff. A hearing was held on the motion to vacate and it was denied. Defendant appeals.

The majority opinion here, with no basis in the record, holds that the default judgment should be vacated and the cause remanded for a hearing on the merits. Why? Because, it is said that “substantial justice” requires it.

What, it may be asked, is the meaning of this phrase, “substantial justice”? The majority opinion does not define it. Neither is it defined in the opinions cited therein. In truth, it means nothing or it means anything. It means whatever the user wishes it to mean according to the situation. It is, at once, a euphemism, a sophism and a soporific. That is to say, it is a high sounding phrase which, though saying nothing, appears to support a particular position and, at the same time serves to dull the awareness of the reader. If the courts were to fully embrace this phrase in all its implications, it could be used to encompass and supplant the entire body of jurisprudence. Much tedious reading and research among reported decisions could be avoided. All cases could be affirmed or reversed according to the requirements of “substantial justice.”

As regards the setting aside of a default judgment, I am well aware that Widicus v. Southwestern Electric Cooperative, Inc. (1960), 26 Ill. App. 2d 102, was the first appellate case in Illinois to embrace the use of the phrase “substantial justice” in derogation of the former tests of meritorious defense and due diligence. I am also aware that this case was cited with approval by our supreme court in People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402.

The fact remains, however, that the bare phrase “substantial justice” offers no guidance to lawyers, litigants or courts. The instant case is a good illustration of its pernicious use.

Thec trial court, upon a full hearing of the motion to vacate and the answer thereto, found that the defendant did not set forth a meritorious defense. The court further found that defendant’s recital concerning sending the court papers to his insurance carrier was not meritorious. Plaintiff’s answer set forth that defendant knew that the insurance company named in his motion did not insure the subject claim and that this was known by defendant even before defendant was served with summons. Accordingly, the trial court denied defendant’s motion to vacate the default judgment. Yet, the majority of this court, on review, chooses to reverse the trial court for reasons of “substantial justice.”

It may be fairly asked, if a defendant fails to demonstrate a meritorious defense and if, as in this case, the trial court finds his motion to vacate to be pure baloney, how, by any stretch of the imagination, is substantial justice being done to anyone by opening up this default judgment? The answer is, it is not.

If we are to govern by the rule of law and not by the rule of men, it is essential that we not employ glib and meaningless phrases to decide cases. If the phrase “substantial justice” is to be used, its hollow body must be given flesh and bones. A definition that would include meritorious defense and due diligence would go a long way in that direction.

For the reasons stated, I dissent.


author: JUSTICE REINHARD

text:
    BOARD OF MANAGERS OF DOMINION PLAZA ONE CONDOMINIUM ASSOCIATION NO. 1-A, Plaintiff-Appellee, v. CHASE MANHATTAN BANK, N.A., Defendant-Appellant—(NEI, Illinois et al., Defendants).
    Second District
    No. 82—835
    Opinion filed July 27, 1983.

      Howard C. E miner man and Marc P. Seidler, both of Rudnick & Wolfe, of Northbrook, for appellant.
    Catherine Valenti and Marshall N. Dickler, both of Marshall N. Dickler, Ltd., of Arlington Heights, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Chase Manhattan Bank, N.A., a national banking association, appeals, pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306), from the denial of its motion to quash service of process and to dismiss, as to it, the complaint of plaintiff, Board of Managers of Dominion Plaza One Condominium Association No. 1-A. The only issue raised on appeal is whether section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)) renders venue improper in Du Page County in a suit against defendant, a national banking association, not chartered or located in Illinois.

Plaintiff filed suit against defendant and others on January 11, 1982, alleging various theories of recovery for damages arising from the construction of the Dominion Plaza Condominium Building No. 1-A (Dominion). Defendant held the mortgage on Dominion pursuant to an assignment it had received from Chase Manhattan Mortgage and Realty Trust (Chase Trust) on May 6, 1977. Prior to this assignment Chase Trust had been operating as a mortgagee in possession pursuant to a February 1, 1976, agreement with NEI, Corp., the developer of Dominion.

Defendant filed a special appearance under section 20 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 20), recodified as section 2—301 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2—301), objecting to the jurisdiction of the court, and a motion to quash service of process and to dismiss the complaint. Defendant filed the affidavit of Howard N. Gorham, defendant’s vice-president, with its motion. This affidavit stated that defendant’s principal place of business was New York City, New York; that defendant was not qualified to transact business in Illinois; and that it did not transact business in Illinois. Defendant argued that its motion to quash service and to dismiss should be granted because defendant was not located in Illinois and that, therefore, venue was improper under section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)). On September 22, 1982, the trial court denied defendant’s motion, finding that defendant had waived the section 94 venue privilege by accepting the assignment from Chase Trust. The court found that Chase Trust was not entitled to assert the section 94 privilege and that therefore its assignee, defendant, was not entitled to assert this privilege because an assignee cannot assert “any defense or statutory privilege” not available to its assignor.

Defendant filed a motion for leave to appeal in this court pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306) on October 22, 1982. We granted leave on December 16,1982.

Plaintiff does not deny that defendant is a national banking association. At the time plaintiff initiated this suit, and at the time the trial court denied defendant’s motion to quash and to dismiss, venue in suits against national banking associations was governed by section 94 of the National Bank Act (12 U.S.C. sec. 94 (1976)), which provided that:

“Suits, actions, and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Effective October 15, 1982, Congress amended section 94 to provide that:

“Any action or proceeding against a national banking association for which the Federal Deposit Insurance Corporation has been appointed receiver, or against the Federal Deposit Insurance Corporation as receiver of such association, shall be brought in the district or territorial court of the United States held within the district in which that association’s principal place of business is located, or, in the event any State, county, or municipal court has jurisdiction over such an action or proceeding, in such court in the county or city in which that association’s principal place of business is located.” (Garn-St. Germain Depository Institutions Act of 1982, Pub. L. No. 97—320, sec. 406, 96 Stat. 1469, 1512, 12 U.S.C.A. sec. 94 (West Supp. 1983).)

The language of this amendment, as well as its legislative history (S. Rep. No. 536, 97th Cong., 2d Sess. 28, reprinted in 1982 U.S. Code Cong. & Ad. News 3054, 3082) indicate that Congress intended to repeal the special venue provision that had previously existed for national banks. Under the new section 94, defendant would not have the venue privilege it asserts here. Thus, our initial inquiry is whether the new or the old section 94 applies to this case.

The general rule in Illinois is that statutory changes that relate only to procedural or remedial provisions apply immediately to pending cases in the absence of a savings clause. (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034; Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 254, 414 N.E.2d 768.) Here, a Federal statute is involved and we note that the Federal rule on the retroactivity of procedural statutes is the same as the Illinois rule. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; United States v. Vanella (5th Cir. 1980), 619 F.2d 384, 386.) No savings clause is contained in the new section 94.

Venue statutes have been held to be procedural by both Federal and Illinois courts (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88), and the United States Supreme Court has expressly held that an amendment to subsection (a) of the general Federal venue statute (28 U.S.C. sec. 1391(a) (1976)) is to be applied retroactively. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750.) Thus, we hold that the new section 94 is applicable to cases pending at the time of its enactment.

We deem Vaughan v. Empresas Hondurenas, S.A. (5th Cir. 1948), 171 F.2d 46, which is relied on by defendant and which held a Federal venue statute not to have a retroactive application, to be inconsistent with the United State’s Supreme Court’s subsequent decision in Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 18 L. Ed. 2d 954, 87 S. Ct. 1746, and inconsistent with Illinois law. Therefore, we decline to follow it.

Defendant argues that even though procedural statutes are generally given retroactive application that they will not be applied retroactively where they will deprive a party of vested rights. Defendant contends that since venue is an important privilege (Blakey v. Commonwealth Edison Co. (1977), 52 Ill. App. 3d 454, 456, 367 N.E.2d 529), it had a vested right in the venue privilege existing at the time this suit was filed. Thus, defendant argues that the statutory change should not deny it this right.

While it is true that a change in a procedural statute will not be applied retroactively when such an application would impair a vested right (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, 415 N.E.2d 1034; Hogan v. Bleeker (1963), 29 Ill. 2d 181, 187, 193 N.E.2d 844; Schantz v. Hodge-VonDeBur (1983), 113 Ill. App. 3d 950, 953, 447 N.E.2d 1355), it is also true that no one has a vested right in any particular procedure. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; Songer v. State Farm Fire & Casualty Co. (1980), 91 Ill. App. 3d 248, 254, 414 N.E.2d 768.) A vested right is more than a mere expectation based upon the anticipated continuance of the existing law. (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 188, 193 N.E.2d 844; Talandis Construction Corp. v. Illinois Building Authority (1978), 60 Ill. App. 3d 715, 720, 377 N.E.2d 237.) It must have become a title, legal or equitable, to the present or future enjoyment of property. (Griffin v. City of North Chicago (1983), 112 Ill. App. 3d 901, 905, 445 N.E.2d 827.) Here, the statutory provision involved is a venue statute and therefore procedural. (Denver & Rio Grande Western R.R. Co. v. Brotherhood of R.R. Trainmen (1967), 387 U.S. 556, 563, 18 L. Ed. 2d 954, 960, 87 S. Ct. 1746, 1750; Baltimore & Ohio R.R. Co. v. Mosele (1977), 67 Ill. 2d 321, 328, 368 N.E.2d 88.) Defendant does not have a vested right in such a procedural statute since defendant had only a mere expectation that the statute would continue in its original form. Therefore, since defendant had no vested right in the original statute, the new section 94 applies and venue is proper in Du Page County.

Although this was not the basis of the trial court’s denial of defendant’s motion to quash service of process and to dismiss the complaint, the reasons given by the trial court for the order, or the findings upon which it is based, are not material if the order is correct. (Keck v. Keck (1974), 56 Ill. 2d 508, 514, 309 N.E.2d 217; Liaskis v. Feiling (1981), 102 Ill. App. 3d 626, 628, 430 N.E.2d 196.) Because we hold that venue is proper under section 94, we need not address the other argument asserted by plaintiff that defendant waived the venue provision of section 94.

For the foregoing reasons the order of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and LINDBERG, JJ., concur.


author: PRESIDING JUSTICE WEBBER JUSTICE MILLER,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY SCOTT MOWERY, Defendant-Appellant.
    Fourth District
    Nos. 4—82—0537 through 4—82—0539 cons.
    Opinion filed July 25, 1983.

      MILLER, J., concurring in part and dissenting in part.

      Daniel D. Yuhas and Janet Sinder, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Donald D. Bernardi, State’s Attorney, of Pontiac (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Livingston County which found him to be in contempt of court for neglecting and refusing to pay court costs and restitution as part of his sentence of probation. He was sentenced to 158 days in jail.

On September 12, 1979, defendant entered a plea of guilty to three counts of burglary and one count of criminal damage to property. He was sentenced to two years’ probation on each count, the sentences to run concurrently; and in each case a fine of $50, court costs and restitution were ordered to be paid within 90 days, the amount of restitution to be determined by the Court Services Department. A report from that department indicated that the total fines, costs and restitution was $1,105.55 and that the defendant was unable to meet the deadline for payment. The trial court, on motion of the State, extended the time for payment to September 12, 1980, by an order modifying the probation order of September 12,1979.

On October 9, 1980, another order of modification was entered. At that time $915.55 remained unpaid on the fines, costs and restitution, and the trial court ordered the defendant to pay $90 per month on that sum commencing November 1, 1980, and each month thereafter.

On December 10, 1980, the State filed a petition to revoke probation, alleging that neither the November 1980 or the December 1980 payments of $90 had been made. Summons was issued and served upon the defendant on December 12, 1980; the hearing was set for January 12, 1981, in the summons; on that date on motion of the State it was continued to March 9, 1981, and notice of the continuance was served upon the defendant. The record does not disclose any hearing on that date but does indicate payments by the defendant of $50 on February 24, 1981; $50 on March 5, 1981; $20 on May 4, 1981; $40 on June 30,1981; and $40 on August 24, 1981.

On November 20, 1981, while the petition to revoke of December 1980 was still pending, a second petition to revoke probation was filed alleging that the defendant had failed to pay the fine and costs in two of the cases and was delinquent in the amount of restitution in all four cases of $155.55. Defendant appeared pursuant to notice, counsel was appointed for him, and he was arraigned on the petition to revoke.

On January 14, 1982, both petitions were called for hearing. Their prayers for revocation of probation and imposition of sentence were denied by the court which treated the matter as a contempt and sentenced defendant to two days’ imprisonment in each case, the sentences to be served concurrently.

Finally, on June 16, 1982, the State filed a petition for rule to show cause against the defendant. The essential allegation of that document was: “That said defendant has neglected and refused to fully comply with said Order. Defendant owes Court costs in the amount of $90.00 and restitution in the amount of $155.55 for a total of $245.55.”

The court entered the rule; a warrant was issued for the defendant; and the cause came on for hearing on July 19, 1982. At the commencement of that hearing the trial court began to admonish the defendant, stating that the State had the burden of proof. The State’s Attorney interjected, “Judge, I believe this is a rule, we would not have the burden of proof in a rule.” The trial court agreed. The court then inquired of the defendant whether he desired counsel and appointed the public defender. A short recess was then taken; the court determined upon reconvening that the defendant had consulted by telephone with counsel but elected to proceed pro se. The court then called upon the defendant to admit or deny the allegations of the rule, and upon defendant’s admission of delinquency of $245.55 in costs and restitution, held him in contempt and sentenced him to 158 days in the county jail of Livingston County.

We have indulged in this lengthy recital of the history of this matter in order to demonstrate that both the trial court and the State have extended much charity to the defendant, and we are aware of the exasperation visited upon them by defendant’s persistent failure to comply with his probation order. However, we find the proceedings pursuant to the rule to show cause to be fatally flawed.

Defendant first contends that the trial court lacked jurisdiction to enter the contempt order of July 1982. His theory is based upon his interpretation of section 5 — 6—4(a)(3) of the Unified Code of Correetions (Ill. Rev. Stat. 1981, ch. 38, par. 1005—6—4(a)(3)). That statute provides in pertinent part:

“Personal service of the petition for violation of probation or the issuance of such warrant, summons or notice shall toll the period of probation, conditional discharge or supervision until the final determination of the charge, and the term of probation, conditional discharge or supervision shall not run until the hearing and disposition of the petition for violation.”

He maintains that the State cannot extend the period of probation by filing a petition to revoke and that the tolling provided by the statute means only that the court retains jurisdiction to punish a defendant who has violated the terms of his probation during its original period. As applied to the instant case, he argues that the original term was for two years commencing September 12, 1979, and expiring September 12, 1981; he had served 15 months when the summons on the first petition to revoke was served on December 12, 1980; that this matter was disposed of by denial of the petition on January 14, 1982; that the period of probation continued to run without tolling and expired in September 1981; therefore, the rule of July 1982 was beyond the period and void.

The State, contra, maintains that the language of the statute is plain; that the service of the summons in December 1980 tolled the period of probation after 15 months had been served and nine months remained in its term; that the nine months did not begin to run until the disposition of the petition to revoke in January 1982 and would then expire in October 1982; hence, the rule of July 1982 was timely.

Defendant’s theory derives largely from the wording of predecessor statutes. Section 117—3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1965, ch. 38, par. 117—3) provided:

“(a) When within the period of probation a petition charging a violation of a condition of probation is presented to the court which admitted the person to probation the court may issue a warrant for the arrest of the probationer.
(b) When a warrant is issued the court shall within a reasonable time after the apprehension of the probationer conduct a hearing on the issue of the probation violation. ***.”
“Effective August 11, 1967, the following language was added to section 117 — 3(a): ‘The issuance of such warrant shall toll the running of the probation period until the final determination of the charge, but shall not operate to expand the period of probation of any probationer whose probation is not revoked as a result of the hearing.’ ” People v. Dawes (1972), 52 Ill. 2d 121, 124, 284 N.E.2d 629, 630-31.

This statutory language was further modified effective November 14,1973, as follows:

“The issuance of such warrant or summons shall toll the sentence of probation or of conditional discharge until the final determination of the charge, and the term of probation or conditional discharge shall not run so long as the offender has not answered the summons or warrant.” Ill. Rev. Stat. 1973, ch. 38, par. 1005—6—4(a).

A minor change in language was added in 1976 when supervision was added to the dispositions. A more significant modification was made by Public Act 81—815, effective January 1, 1980. This struck the language, “so long as the offender has not answered the summons or warrant” and substituted what now appears, “until the hearing and disposition of the petition for violation.” This provision was in effect at the time of the service of summons in the instant case, December 12, 1980.

The statutory track remains consistent in tolling the period; only the length of time and conditions vary: from “reasonable time” (1965), to “final determination” (1967), to “answering] the summons or warrant” (1973), to “hearing and disposition” (1980). The general pattern is one of extending the tolled period; this is a clear legislative prerogative; the repeal of the provision in the 1967 version against expansion of the period of probation for one found not guilty of violation strongly suggests legislative disenchantment with that principle. The present statute is plain on its face; probation is tolled until hearing and disposition; and no time limit is placed on the latter.

Defendant suggests that allowing the State to extend a period of probation by filing a petition for violation is a deprivation of liberty without due process. In the first place, there is no indication in this record that the petitions for violation were filed arbitrarily and without cause. Secondly, while probation does not constitute absolute liberty, it includes most of the core values of unqualified liberty. (Morrissey v. Brewer (1972), 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593.) So long as he substantially abides the conditions of probation, his liberty is not infringed. The filing of a petition for violation is no proof of guilt, but if circumstances necessitate such a filing, the legislature has seen fit to toll the period of probation during its pendency. This is a fairly mild penalty when compared with the law prior to the Criminal Code of 1961. In an earlier day, upon the filing of a motion to revoke probation, the motion was allowed instanter and a rule was entered on the defendant, who then had the burden of proof, to show cause why sentence should not be imposed on the original conviction. Ill. Rev. Stat. 1957, ch. 38, par. 789.

The record here carries the clear implication that both the State and the trial court were doing everything possible to get the defendant to comply. The first two procedures were modifications; two petitions to revoke were held in abeyance while the defendant was making payments and were finally denied upon the imposition of the light punishment of two days in jail after a full hearing and the furnishing of counsel. It lies poorly in the mouth of the defendant now to claim a lack of either due process or fundamental fairness.

The jurisdictional argument is without merit.

Defendant next claims that the trial court erred in not admonishing him under Supreme Court Rules 401 and 402(a) (87 Ill. 2d Rules 401, 402(a)). Suffice it to say that these rules apply to those accused of offenses under the Criminal Code of 1961; the matter at hand is contempt for which the requirements were set forth in People v. Javaras (1972), 51 Ill. 2d 296, 300, 281 N.E.2d 670, 672, being (1) information as to the charges, (2) opportunity to answer, and (3) a full hearing thereon. All three were met here.

We turn next to the crux of this case: the procedures used in pursuit of the rule. The record is unclear as to why the State, after pursuing petitions to revoke over a long period of time, turned to a rule to show cause.

It has been established that the contempt power of a trial court may be exercised as a sanction for violation of probation. (People v. Patrick (1980), 83 Ill. App. 3d 951, 404 N.E.2d 1042.) Patrick dealt with a failure to report to the probation officer, hence the court interpreted it as an indirect criminal contempt and explained the difference between direct and indirect criminal contempt. In the instant case we have a failure to pay costs and restitution. As suggested by the specially concurring justice in Patrick, this constitutes a civil contempt. We say this advisedly, bearing in mind the statement of the supreme court:

“The lines of demarcation between direct and indirect contempt, and between criminal and civil contempt can be, and are, in many instances, very indistinct and even imperceptible, for the simple reason that many acts involve the elements of both, and, as a consequence, confusion has resulted in the court’s attempts to classify them.” People v. Gholson (1952), 412 Ill. 294, 298-99, 106 N.E.2d 333, 336.

In general, criminal contempts are aimed at vindicating the authority and dignity of the court and the penalties are punitive; civil contempts are remedial, coercive and punitive. (Gholson.) One of the chief characteristics of civil contempt is that the contemnor must “hold the key to the cell,” i.e., he must have it within his power to purge himself by complying with the court’s order.

In 17 C.J.S. Contempt sec. 93, at 268-69 (1963), it is stated:

“If imprisonment is imposed for civil contempt it must ordinarily be coercive or remedial in nature rather than punitive. Imprisonment for civil contempt usually is not for a definite term, but the party in contempt stands committed unless and until he performs the affirmative act required by the order of the court. It is for this reason that in civil contempt it is stated that the contemnor carries the key of his prison in his pocket.”

In Eastman v. Dole (1919), 213 Ill. App. 364, 370, the appellate court stated flatly, “Any order prescribing a fine or imprisonment, or both, in a case of civil contempt should be made conditional upon compliance with the terms of the original order.” See generally 12 Ill. L. & Prac. Contempt sec. 80 (1955).

This “key” is full payment of what is due under the order. Partial payment or inability to pay does not go to the question of purgation, but rather to the question of wilfulness which is anterior to the incarceration.

This doctrine of civil contempt has been codified in sections 5—9—3(a) and (b) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, pars. 1005—9—3(a), (b)) regarding the default in the payment of fines. These sections provide:

“(a) An offender who defaults in the payment of a fine or in any installment may be held in contempt and imprisoned for nonpayment. The court may issue a summons for his appearance or a warrant of arrest.
(b) Unless the offender shows that his default was not due to his intentional refusal to pay, or not due to a failure on his part to make a good faith effort to pay, the court may order the offender imprisoned for a term not to exceed 6 months if the fine was for a felony, or 30 days if the fine was for a misdemeanor, a petty offense or a business offense. Payment of the fine at any time will entitle the offender to be released, but imprisonment under this Section shall not satisfy the payment of the fine.”

Thus the statute, as well as the case law (People v. Wilcox (1955), 5 Ill. 2d 222, 125 N.E.2d 453), establishes that civil contempt must be wilful. Under the statute the burden of proof is on the contemnor to negate this element. The statute concerns fines, i.e., the payment of money, while the instant case concerns costs and restitution, i.e., the payment of money; we see no qualitative difference between the two, especially since costs and restitution are much less penal in nature than a fine and more clearly resemble nonpayment in a purely civil proceeding, e.g., nonpayment of child support or maintenance, for which imprisonment as an indirect civil contempt is a familiar remedy.

As we have previously intimated, the instant case is not clear-cut; it is an indirect contempt since the actions of the defendant took place outside the presence of the court; however, the line between criminal and civil is blurred; it is criminal in the sense that it grows out of a criminal conviction and is a disobedience of a lawful court order; it is civil in the sense that the only defalcation is the nonpayment of money; on balance, we believe it is properly classified as an indirect civil contempt.

The proceedings here must be judged in the light of these principles. We find them sufficiently blemished as to require vacatur of the sentence.

The first problem has to do with the question of wilfulness. “As we view it, the existence of an order of the court and proof of wilful disobedience are essential to a contempt of the latter type. [Indirect contempt.]” (People v. Wilcox (1955), 5 Ill. 2d 222, 228, 125 N.E.2d 453, 456.) This is the usual rule in ordinary cases. However, the instant case derives from the statute by analogy, as we have already indicated, and the statute places the burden on the defendant to establish lack of wilfulness. It is therefore sufficient in cases of fines, costs and restitution growing out of a criminal proceeding to allege, as the People did here, that the defendant has “neglected and refused” to comply with the court’s order to pay costs and restitution. The entire petition for rule is directed at costs and restitution.

However, a divergency then begins to appear in the record. The defendant, in addition to appearing in response to the rule, was apparently also in court on an ordinance violation. In colloquy with the court, the defendant indicated that he had talked to the public defender by telephone. The court then indicated that counsel would not be appointed on the ordinance violation, but the court stated, “I will then appoint the Public Defender to represent you in all but the ordinance violation.” The defendant then entered a plea of guilty to the ordinance violation and was fined $50 and costs on that charge.

The court then proceeded immediately to the rule and asked the defendant whether he wished to admit or deny the allegations of the rule. The defendant, pro se, stated that he would admit owing $245.55, and the court forthwith held him in contempt and proceeded without a pause to the sentencing hearing. Fundamental fairness dictates that at a minimum the defendant be advised that he had the opportunity to prove that the nonpayment was not wilful.

The sentencing hearing was entirely taken up with establishing that the defendant had not remained steadily employed, a further condition of his probation. However, this was not the issue under the pleadings. By docket entry the court found that the defendant had “wilfully failed and refused to remain steadily employed and to pay fines and court costs.” The record may sustain a finding of wilfulness as to failure to remain steadily employed, but it falls far short of like wilfulness as to the failure to pay costs and restitution.

Thirdly, and most significantly, the written order of commitment which supplants the docket entry is in the form of an ordinary mittimus. It recites that the defendant was found guilty by “verdict” and directs that he be incarcerated for 158 days for “contempt.” Even under the most liberal construction this document is fatally deficient. (Eastman; Ill. L. & Prac. Contempt.) It does not show the jurisdiction of the court, it does not recite the facts upon which the contempt was based (Wilcox), it does not find that the conduct was wilful, and most importantly it does not provide any means whereby the defendant may purge himself.

The inherent power of contempt is a powerful one; it is not to be used lightly nor when other adequate remedies are available; if it is used, it must conform strictly to the dictates of the law. It is a matter of deep concern to us that although the defendant here appeared to be liable, the mechanics of the matter were so mishandled that the proceedings must be vacated. “[T]he record falls short of the due process and fundamental fairness to which [defendant] was entitled.” People v. Wilcox (1955), 5 Ill. 2d 222, 230, 125 N.E.2d 453, 457.

It is to be hoped that if in the future the rule to show cause be used in lieu of a petition to revoke in such cases, all those involved be aware of the more stringent requirements of proceeding via the contempt route.

It remains to be decided what disposition to make of this case. Ordinarily we would remand to the trial court for further proceedings. However, as we have indicated above, the defendant’s period of probation expired in October 1982 and on that date the trial court lost jurisdiction of the matter. There is no provision in the statute for the period of probation being tolled upon the filing of a rule as is the case upon filing of a petition to revoke. The trial court could take no further action in the matter and so far as the record discloses, the defendant has served the 158 days. Even if sentence were properly reimposed, credit for time served would clearly obviate any further sentence. The State must be left to its civil remedies for the collection of money judgments. (Ill. Rev. Stat. 1981, ch. 38, par. 1005—9—3(e).) We therefore conclude that the matter is at an end.

Proceedings and sentence vacated.

MILLS, J., concurs.

JUSTICE MILLER,

concurring in part and dissenting in part:

I agree with the majority that the circuit court had jurisdiction to enter the contempt order of July 19, 1982, and that the proceedings in the circuit court were flawed. I disagree, however, with the conclusions that the contempt was necessarily civil and that this matter ended with the expiration of the defendant’s term of probation.

The classification of contempts as criminal or civil turns on what kind of sanction — punitive or coercive — is the more appropriate answer to the contemnor’s act. Punishment is imposed when the contemnor affronts the dignity of the court, hinders its proceedings, or brings the administration of justice into disrepute. Coercion is imposed to induce the contemnor to do a required act.

The majority finds the contempt in the present case on balance to be civil; the parties in their briefs treat it as criminal. I believe it can be treated as either. In many cases it may be difficult to determine whether a punitive or coercive sanction is more appropriate, though in some cases the only logical sanction is punitive (see People v. Marcisz (1975), 32 Ill. App. 3d 467, 334 N.E.2d 737, aff’d in part, rev’d in part on other grounds sub nom. Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 357 N.E.2d 477 (violation of prohibitory injunction)). In this case, either punitive or coercive sanctions would have been proper. As the history of the defendant’s probation shows, the circuit court and the State exhibited great patience. When coercive measures fail, punishment may be proper. The provisions in the Unified Code of Corrections on default in the payment of fines do not limit the circuit court’s power to classify the contempt here as criminal: the contempt power is an inherent one in the judicial branch and need not be provided for, nor may it be restricted, by the legislature (In re G.B. (1981), 88 Ill. 2d 36, 430 N.E.2d 1096).

For the reasons indicated, I believe the contempt here may be treated as criminal as an alternative to the revocation of probation, or as a civil contempt if the court’s purpose is to induce the defendant to comply with the orders of payment.

The majority mentions that the requirements of contempt proceedings are more stringent than those that apply to a petition to revoke probation. I believe that is true for indirect criminal contempts but not for indirect civil contempts.

In the case of an indirect criminal contempt, the contemnor is entitled to certain constitutional protections, including the right to notice, the right to file an answer, a reasonable opportunity to defend, the assistance of counsel, the right to be proved guilty beyond a reasonable doubt, and the right not to be compelled to testify against himself. (Marcisz.) In an indirect criminal contempt, the failure to comply with an order of court must be wilful and the State has the burden of proving wilfulness beyond a reasonable doubt (People v. Witherspoon (1977), 52 Ill. App. 3d 151, 367 N.E.2d 313). In a criminal contempt in which the sentence imposed exceeds six months’ imprisonment or a $500 fine, the record must disclose that the contemnor either had or was offered a trial by jury. (County of McLean v. Kickapoo Creek, Inc. (1972), 51 Ill. 2d 353, 282 N.E.2d 720; Aurora Steel Products v. United Steelworkers of America (1981), 94 Ill. App. 3d 97, 418 N.E.2d 492.) In an indirect civil contempt, the contemnor need not be proved guilty beyond a reasonable doubt, but rather by the preponderance or greater weight of the evidence. In an indirect civil contempt proceeding involving the failure to comply with an order or decree, the burden may shift to the contemnor to prove his inability to comply with the order (Dishinger v. Bon Air Catering, Inc. (1949), 336 Ill. App. 557, 84 N.E.2d 562), but he must still be afforded an opportunity to show cause why he should not be held in contempt.

Because the defendant in the present case was afforded neither-the constitutional protections to which he would be entitled in an indirect criminal contempt proceeding nor an opportunity to show cause why he should not be held in contempt, which is required in an indirect civil contempt proceeding, I agree with the majority that the circuit court’s finding of contempt must be reversed. Further, if it was the intention of the circuit court to punish the defendant for criminal contempt, then the sentence of imprisonment for a fixed period of time imposed in the present case was appropriate; if it was the intention of the court to impose a coercive sanction, then the sentence imposed must be conditioned on compliance with the original order.

Unlike the majority, I would require substantial compliance with the applicable provisions of Supreme Court Rules 401 and 402 in indirect criminal contempt proceedings. Although the procedural safeguards surrounding the prosecution of criminal contempts “do not derive from the Sixth Amendment” (Levine v. United States (1960), 362 U.S. 610, 616, 4 L. Ed. 2d 989, 995, 80 S. Ct. 1038, 1042), I see no reason to distinguish in this regard indirect criminal contempts from other criminal proceedings, for “[criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both” (Bloom v. Illinois (1968), 391 U.S. 194, 201, 20 L. Ed. 2d 522, 528, 88 S. Ct. 1477, 1481). Supreme Court Rules 401 and 402 are designed to set forth on the record that the defendant has received the necessary admonitions preceding his waiver of various constitutional rights. (People v. Warfel (1979), 67 Ill. App. 3d 620, 385 N.E.2d 175.) Should a person charged with indirect criminal contempt wish to waive his constitutional due process rights, substantial compliance with the applicable provisions of these rules will ensure a clear record. In re K.S.Y. (1981), 93 Ill. App. 3d 6, 11, 416 N.E.2d 736, 740 (Green, J., concurring in part and dissenting in part); see Kickapoo Creek.

I also disagree with the majority’s assertion that the expiration of the defendant’s probation affects the jurisdiction of the circuit court following the disposition of this appeal. The circuit court lost jurisdiction over this matter when the defendant filed his notice of appeal, not when his probation expired. The expiration of probation should have no effect here, for the contempt is a separate proceeding and the circuit court’s order was final and appealable (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483; see Archer v. Archer (1979), 71 Ill. App. 3d 938, 390 N.E.2d 629). I would also construe the fine and restitution ordered here in combination with the defendant’s probation as independent dispositions that survive the expiration of the period of probation.

For the reasons indicated, I would reverse the finding of contempt, and remand the cause to the circuit court for further proceedings.