text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby E. Walls, Defendant-Appellant.
    Gen. No. 66-74.
    Third District.
    July 8, 1968.

      Jack A. Brunnenmeyer, of Peoria, for appellant.
    George R. Kennedy, State’s Attorney of Peoria County, of Peoria, for appellee.
   STOUDER, J.

Defendant was tried in the Circuit Court of Peoria County for the crime of armed robbery. A jury found him guilty and he was sentenced to a term of ten to fifteen years in the penitentiary.

Defendant was identified by witnesses who picked him out of a lineup and these witnesses later made an in-court identification. After the lineup defendant signed a purported confession which was admitted at the trial over objection by defense counsel. The impaneling of the jury in the instant case started on June 13,1966, opening statements for the State were made on June 14 and the first witness was sworn for the State. At this point counsel for defendant called to the attention of the trial court, the fact that the Supreme Court had on June 13, 1966, decided Miranda v. Arizona, 384 US 436, 16 L Ed 2d 694, in which the now famous Miranda warnings were promulgated. Defendant’s confession had been signed without defense counsel being present and the evidence is conflicting as to what, if any, warnings were given defendant and whether defendant requested and was refused counsel. The trial court ultimately held that Miranda did not apply and the confession was admitted.

The evidence as to defendant’s activities and conduct on the night of the crime in question is also in conflict.

Defendant assigns as error the admission of his confession without positive showing that the Miranda warnings had been given, the introduction of evidence as to a stolen automobile without showing its connection to the offense charged and that the evidence established a serious doubt as to defendant’s guilt.

We are called upon to decide whether the Miranda decision applies to the instant trial. Defendant does not contend that there was any violation of due process under decisions prior to Miranda but only that the Miranda requirements were not met. Johnson v. New Jersey, 384 US 719, 16 L Ed2d 882, specifically held that the Miranda decision should not be retroactive but should apply “. . . only to persons whose trials had not begun as of June 13, 1966.” This trial had begun as of June 13, 1966. The overriding consideration of the Supreme Court in the Johnson decision was that law enforcement agencies not be unduly hampered by the terms of the Miranda decision. This concern can only be effectuated by holding that Miranda does not apply to the instant case. See People v. Worley, 37 Ill2d 439, 227 NE2d 746.

We are likewise not disposed to hold that the admission of testimony concerning the stolen car was error. The car was a link in the circumstances relating to the offense with which defendant was charged and tended to support the identity of defendant. In addition it should be noted that the stolen car was mentioned in defendant’s alibi as well as his confession.

We are not disposed to say as a matter of law that the evidence in the instant case establishes any serious doubt as to defendant’s guilt. Defendant testified to an alibi, other witnesses testified to his presence and participation in the offense charged. It was for the trier of fact to decide which evidence to believe and this was done under adequate instruction on the issue of reasonable doubt.

Finding no error in the judgment of the Circuit Court of Peoria County the judgment is affirmed.

Judgment affirmed.

ALLOY, P. J. and SCHEINEMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE SCHEINEMAN,

license: Public Domain

text:
    Tillman Golden, Plaintiff-Appellee, v. Raymond Joseph, d/b/a 901 Club, Defendant-Appellant.
    Gen. No. 67-80.
    Third District.
    June 28, 1968.
    Knobloek & Ott, of Peoria, for appellant; James A. Cummings, of Peoria, for appellee.
   Opinion by

JUSTICE SCHEINEMAN,

Judge, presiding. Not to be published in full.


author: SCHEINEMAN, J.

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Gary E. Shipp, Defendant-Appellee.
    Gen. No. 67-89.
    Third Judicial District.
    June 28, 1968.
    George E. Sangmeister, State’s Attorney, of Joliet, for appellant.

      Francis J. Loughran, of Joliet, for appellee.
   SCHEINEMAN, J.

This is an appeal by the People from a court order which had the effect of suppressing evidence offered by the prosecution during a bench trial of a misdemeanor charge. The appellee questions the right of the State to take this appeal, a point which deserves to be considered. It was the law in this state for many years that the state had no right of appeal in a criminal case. The history of this law is reviewed in People v. Petropoulos, 59 Ill App2d 298, 208 NE2d 323 (affd 34 Ill2d 179, 214 NE2d 765). The amended article VI of the Illinois Constitution effective January 1, 1964, provides: “after a trial on the merits in a criminal case, no appeal shall lie from a judgment of acquittal.” This appears to leave open to the legislature or the Supreme Court, the regulation of other appeals, not thereby prohibited.

At the time of the trial in this cause, the State’s right to appeal was subject to Supreme Court Rule 604 (formerly Rule 27). Included therein is the provision that the State may appeal from an order or judgment “arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court. Const, art VI, § 7; People v. Lerch, 34 Ill2d 305, 215 NE2d 257.

Since the defendant is normally furnished with the names of State witnesses in advance of trial, it would seem to be better practice to require that an objection to the testimony of a particular witness should be made before trial. However, we assume the trial judge felt the circumstances justified his recognition of the objection during the trial. It appears that when he sustained the defense objection, the trial judge then suspended further proceedings in the trial, thus giving the State an opportunity to perfect this appeal.

Considering the application of the quoted rule to this order of the trial court, it did have the effect of “suppressing evidence.” We do not believe that every order of the court sustaining an objection to evidence for the prosecution is, or should be, appealable. But when it appears to the trial judge that the effect of his ruling is likely to block the prosecution entirely, so it has an effect similar to dismissing an indictment, or in arrest of judgment, then he may properly suspend the trial, as was done in this case, thereby permitting the State’s attorney to seek a review. We approve the procedure followed in this case, and hold that the appeal is properly taken. This procedure is now covered and regulated by the 1967 revision of the statute, chapter 38, Ill Rev Stats, section 114, and various subparagraphs thereof.

The facts are the defendant, Gary E. Shipp, a high school student, was suspected of actuating a false fire alarm. He was called to the principal’s office and interrogated. He was not warned or informed of any constitutional right to remain silent, and he made an oral confession.

A complaint was filed charging him with disorderly conduct. He entered a plea of not guilty and waived a jury. At his bench trial, the high school principal was called as a witness for the State, to testify as to his conversations with the defendant. The trial court sustained an objection by the defense that the statements of defendant were not admissible, since they would amount to a confession obtained without complying with the requirement as set forth in the Miranda v. Arizona, 384 US 436, 16 L Ed2d 644, 86 S Ct 1062.

In our opinion the Court erred in sustaining this objection. The U. S. Supreme Court carefully limited its holding in the Miranda case in which the Court held that a person in custody must be advised of his right to remain silent, his right to counsel, his right to court appointed counsel, if indigent, and that statements he makes may be used against him. The following two paragraphs are quotations from the Miranda opinion:

“General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in fact-finding process is not affected by our decision.”
“The constitutional issue we decide ... is the admissibility of statements obtained from a defendant questioned while in custody and deprived of his freedom of action.”

On this appeal we hold that the calling of a student to the principal’s office for questioning is not an “arrest” and he is not then in custody of police or other law enforcement officials. This situation does not fall within the scope of the Miranda decision as the Supreme Court has limited it. People v. P. (Anonymous), 21 NY2d 1, 233 NE2d 255.

Accordingly, the order of the trial court is reversed and the cause is remanded for further proceedings, not inconsistent with this opinion.

Reversed and remanded.

STOUDER and ALLOY, JJ., concur.


author: GOLDENHERSH, J.

text:
    H. W. Schmidt, Plaintiff-Appellant, v. Massey-Ferguson Company, a Corporation, Defendant-Appellee, and Frank Venus, d/b/a Venus Implement Company, Defendant.
    Gen. No. 67-121.
    Fifth District.
    July 18, 1968.
    Rehearing denied August 10, 1968.

      Jack Williamson, of Vienna, for appellant.
    R. Corydon Finch, of Anna, for appellee.
   GOLDENHERSH, J.

Plaintiff appeals from the judgment of the Circuit Court of Massac County entered in favor of defendant, Massey-Ferguson Company, a corporation, hereafter called Massey-Ferguson, upon allowance of its motion for summary judgment.

In his complaint, plaintiff alleges that defendant, Frank Venus, hereafter called Venus, doing business as Venus Implement Company, was the agent of Massey-Ferguson, that Venus, and as agent for Massey-Ferguson, entered into a contract with plaintiff to sell him a certain tractor to be delivered “at the request of plaintiff,” that plaintiff was given a trade-in allowance on a tractor which he traded in, and gave defendants his check for the balance, defendants took the used tractor into their possession, plaintiff made demand upon defendants to deliver the new tractor to him, defendants have failed to do so, and have failed and refused to pay to plaintiff the value of the used tractor and repay the money which he paid.

Defendant, Massey-Ferguson answered, denying the agency and the other allegations of the complaint, except that it admitted a request for delivery of a new tractor was made by an attorney purporting to represent plaintiff.

Simultaneously with the filing of its answer, defendant filed a motion for summary judgment supported by the affidavit of the Regional Finance Supervisor of its Springfield, Illinois, Branch office. Attached to the affidavit is a document captioned “Dealer Sales Agreement” which sets out the terms of an agreement between Massey-Ferguson and Venus, and which the affiant states evidences “the only contractual relationship” existing between the defendants. The “Dealer Sales Agreement” contains the following provision:

“That it (Venus) is not and shall not represent itself to be Company’s (Massey-Ferguson’s) agent for any purpose and shall not incur any obligation or make any promises or representations on Company’s (Massey-Ferguson’s) behalf.”

Plaintiff filed no counteraffidavit, the motion for summary judgment was allowed, and this appeal followed.

In Harp v. Gulf, M. & O. R. Co., 66 Ill App2d 33, at page 38, 213 NE2d 632, this court said: “The purpose of summary judgment proceedings is to determine whether there is any genuine triable issue of fact which must be passed upon. Gribben v. Interstate Motor Freight System Co., 18 Ill App2d 96, 151 NE2d 443. If the pleadings, discovery depositions and exhibits, present a genuine issue as to any material fact, summary judgment should not be granted. Halloran v. Belt Ry. Co. of Chicago, 25 Ill App2d 114, 166 NE2d 98. The right of the moving party to summary judgment must be free from doubt. Miller v. Owens-Illinois Glass Co., 48 Ill App2d 412, 199 NE2d 300. The affidavits filed in support of a motion for summary judgment will be strictly construed and must leave no question of the movant’s right to judgment, but the affidavits filed in opposition thereto will be liberally construed. Tansey v. Robinson, 24 Ill App2d 227, 164 NE2d 272.”

Plaintiff contends that the affidavit in support of defendant’s motion does not suffice to sustain the judgment because it consists of conclusions, and not facts. We agree. The statement in the affidavit that the agreement is the only contractual relationship between the parties, is a conclusion, and not a statement of fact. Furthermore, the complaint charges “that the defendants took the used tractor into their possession,” and this allegation is not denied in the motion or supporting affidavit. If the defendants, in fact, took possession of the tractor, the existence of an implied agency is not here negated, and if Massey-Ferguson retained possession of a tractor taken by Venus, such retention might be ratification of Venus’ act.

Under the pleadings, failure to prove a principal-agency relationship between the defendants does not necessarily preclude recovery on plaintiff’s part. It cannot be determined from the pleadings, motion, affidavit and supporting document that a specific, new tractor did not in fact exist, in which plaintiff might claim rights superior to those of Massey-Ferguson, based on the “floor plan” provisions of its contract with Venus.

In Louis v. Barenfanger, 81 Ill App2d 104, at page 110, 226 NE2d 85, this court said, “The Civil Practice Act provides that pleadings shall be liberally construed with a view to doing substantial justice between the parties. (C 110, § 33(3), Ill Rev Stats 1965.) In Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630, in reviewing the trial court’s ruling in dismissing a third-party complaint, the Supreme Court, speaking through Mr. Justice Underwood, said at page 287, ‘The trial court should not have dismissed the third-party complaint unless it appears from the pleadings that in no event would the architects have an action over against the contractor.’ We understand this language to hold that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings, which will entitle the plaintiff to recover.”

Similarly, a motion for summary judgment should be denied, unless after a ruling on the motion, favorable to the proponent, there remain in the case no fact issues which, decided favorably to the opponent of the motion, will entitle him to relief.

On the record here presented, the trial court erred in allowing the motion for summary judgment, and the judgment is, therefore, reversed and the cause remanded to the Circuit Court of Massac County with directions to deny the motion for summary judgment, and for further proceedings consistent with this opinion.

Judgment reversed and cause remanded with directions.

EBERSPACHER and MORAN, JJ., concur.


author: JUSTICE GOLDENHERSH.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James I. Malone, Defendant-Appellant.
    Gen. No. 67-113.
    Fifth District.
    July 18, 1968.

      Jack Johnston, of Vandalia, for appellant; Louis A. McLaughlin, of Vandalia, for appellee.
   Opinion by

JUSTICE GOLDENHERSH.

Not to be published in full.


author: MR. JUSTICE MORAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dennis Terczak, Defendant-Appellant.
    Gen. No. 67-133.
    Second District.
    June 27, 1968.

      John Vogel, of Glen Ellyn, for appellant.
    William V. Hopf, State’s Attorney of DuPage County, of Wheaton, and Frank Wesolowski, Assistant State’s Attorney, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This is an appeal from a conviction for armed robbery. The defendant was found guilty after a trial by jury and was sentenced to a term of from three to ten years, to be served concurrently with a sentence on another armed robbery conviction. The defendant contends that he was deprived of a fair trial by virtue of numerous acts of misconduct on the part of the prosecution and erroneous rulings by the trial court.

The robbery took place on December 19, 1966, at a restaurant in Lombard, known as the “Chicken Delight.” The time was about 9:45 p. m., and there were two employees on duty, Kathleen Spiece, the manager, and Robert Adams. Kathleen Spiece testified that a man entered the restaurant at that time and ordered a can of Pepsi Cola, which she served him at the counter. He then asked her whether there was a job available at the restaurant, and she suggested to him that he fill out one of the job application forms on the counter. Kathleen testified that she then walked into the back room of the restaurant. The man then called to her, she returned to the counter, and the man pointed a gun at her, demanding the contents of the cash register. She emptied the cash from the cash drawer into a bag and handed it to him. The man then left the restaurant, whereupon Kathleen went to the back room and telephoned the owner of the restaurant. She described the gun as being a revolver of a “kind of silver” color. Robert Adams did not see the actual robbery, because he was in the back room of the restaurant when it took place.

At the trial, Kathleen Spiece positively identified the defendant as the robber, and Robert Adams identified defendant as the man he had seen enter the restaurant immediately before the robbery took place. Kathleen had identified a photograph of the defendant about a week after the robbery, and had thereafter identified the defendant in a lineup on January 6,1967.

The defendant testified in his own defense. He admitted on his direct examination that, several weeks prior to the instant trial, he had entered a plea of guilty to the armed robbery of a gasoline station in Villa Park, Illinois, on December 29, 1966. He introduced into evidence a black automatic pistol which he said belonged to him. He stated that he had never owned any other gun, and, specifically, that he had never owned the type of revolver described by Kathleen Spiece. He denied his guilt in the instant case and denied that he had been in the “Chicken Delight” restaurant on the date in question. He offered no account of his whereabouts at the time of the crime.

The defendant’s girl friend, Janine Marie Woerner, testified for him as an alibi witness. She stated that she met him at about 5:00 p. m. on December 19, 1966, and that they went bowling together at Oak Brook. She testified that they were together continuously that evening until she took the defendant home at about 5 or 10 minutes after 10 p. m. She testified that she knew she had the right date because December 19 was a Monday and she was off work only on Monday and Friday nights. She was employed at Chandler’s Shoe Store in Oak Brook.

In rebuttal, the People produced Raymond Condon, the assistant manager of Chandler’s Shoe Store. He identified the time records of the store, bearing the signature of Janine Woerner, which showed that she had worked from 4:30 p. m. until 9:30 p. m. on Monday, December 19,1966. The record further showed that Janine Woerner did not work the evening of Thursday, December 22.

In surrebuttal, Janine Woerner explained, that, since payday was Thursday, and she wanted to be paid for Thursday, she recorded her Thursday hours as having been worked on Monday. She stated that this practice was approved by a Mr. Stos, the manager of the store. It developed that Mr. Stos was in a body cast at the time of the trial and was unavailable as a witness. Mr. Condon, recalled by the People, denied knowledge of any such practice occurring at the store.

Another defense witness was Cassandra Dawn Johnson, a coemployee of Janine’s at the shoe store. She happened to recall seeing the defendant and Janine together at the shoe store at 7:30 p. m. on December 19. She stated that she had worked from 5:00 p. m. until 9:30 p. m. on that day. On cross-examination, she was shown the time sheet, which indicated that she had worked from 4:30 p. m. to 6:30 p. m. on December 19. She then admitted that she could have been mistaken about the date on which she had seen the defendant and Janine together at the store.

The defendant does not contend that the evidence was insufficient to support the verdict. We will discuss the various errors he does assign.

The owner of the restaurant, George Hoganson, was called as a witness for the People. He testified concerning the layout of the restaurant, and what he observed when he went to the store after receiving a telephone call from Kathleen Spiece. He was not asked how much money had been taken from the store. He left the stand, but was later recalled, and, over objection, was permitted to testify that the loss was approximately $159. The evidence is clear that the gunman did obtain United States currency in the robbery, and both sides agree that the amount is immaterial. Nonetheless, defendant contends that the additional testimony of this witness was cumulative and “prejudicial.” We think the testimony was unnecessary but we fail to see how it was prejudicial to defendant.

Another point that defendant makes is that he was unduly restricted in his efforts to rehabilitate his two alibi witnesses after they had been impeached by the shoe store time records. He argues that Janine Woerner was not permitted to give an explanation as to why the time record showed her at work on Monday, December 19, when she claimed she had not worked that day. As we have already indicated, she was permitted to testify in surrebuttal concerning her alleged arrangement with Mr. Stos, and there is no merit to defendant’s contention.

In regard to Cassandra Dawn Johnson, after it had been established on her cross-examination that the time sheet showed she left work at 6:30 p. m. on December 19, in contrast to her statement on direct examination that she had seen Janine and the defendant at the shoe store at 7:30 p. m., defendant’s counsel asked on redirect examination, “Sandy, could it have been 6:30 that you saw Dennis?” An objection to this question was sustained, and defendant assigns this as error. We think the objection was properly sustained, because the question was leading. Moreover, whether it “could” have been 6:30 is not a proper inquiry of one’s own witness, because it simply invites speculation, rather than a statement of fact.

Defendant’s next point is that the identification testimony of Kathleen Spiece should have been excluded because of the improper composition of the lineup she viewed. He concedes that the requirement of representation by counsel at the lineup stage, United States v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed2d 1149 (1967), is not applicable in this case, because the Wade case was decided after the date of the lineup and is prospective only. Stovall v. Denno, 388 US 293, 87 S Ct 1967, 18 L Ed 2d 1199; People v. Neiman, 90 Ill App2d 337, 347, 232 NE2d 805 (1967). Defendant does contend, however, that since the other four persons in the lineup with him were not sufficiently comparable to him in size, age, and appearance, and inasmuch as their clothing differed from his, the lineup was so unfair as to require the exclusion of Kathleen’s testimony. We believe that these matters go simply to the weight of Kathleen’s testimony rather than its admissibility. There was considerable testimony concerning the physical characteristics of other persons in the lineup, and the jury had an adequate basis to evaluate the extent to which the composition of the lineup affected the weight of Kathleen’s identification. It is important to note that according to the testimony, Kathleen Spiece positively identified a photograph of the defendant prior to the time she saw him in the lineup. If this is the fact, and, viewing the evidence in the light most favorable to the People, we must assume it is, then the importance of the lineup to the identification question assumes a lesser importance than it otherwise would have. The uncontradicted evidence is that the restaurant was well lighted, that the gunman was the only customer in the place at the time of the robbery, and that Kathleen Spiece had a face-to-face confrontation with him for a period of time which the jury could reasonably find was sufficient to enable her to make subsequent identification. Under all of these circumstances, we believe that Kathleen’s identification testimony was clearly admissible, and that its weight was properly a matter for the jury. People v. Neiman, 90 Ill App2d 337, 346-347, 232 NE2d 805 (1967). Moreover, the defendant made no motion to exclude her testimony at the time of the trial. However, we do not choose to base our conclusion on this fact, since, even if a timely motion had been made, it is our view that it would properly have been denied.

The next assignment of error relates to the cross-examination of the defendant and Janine Woerner. The contention is that the People laid a foundation for impeachment of these witnesses on certain points, and then failed to offer the impeaching evidence. As to the defendant, this contention rests upon the fact that, on cross-examination, he was asked whether he had possessed any gun on December 29, 1966, other than the one he identified as belonging to him. December 29, 1966, was the date of the other robbery at the gasoline station in Villa Park. Defendant denied that he had possessed any other gun on that date. He was then asked, “Do you recall a drawer in the back room of a gas station?” . . . at which point an objection was sustained and the question was never completed. Defendant contends that, since it was never proved that he did possess a second gun on December 29, these inquiries were improper.

We feel that the first question, inquiring as to whether defendant had possession of another gun on December 29, was not improper. Although he identified a particular gun as belonging to him, he did not specifically state that this was the gun he had used in the December 29 robbery of the filling station. Therefore, we think it was legitimate for the People to ask whether he had possession of some other gun on that date. Defendant opened up this line of inquiry when, on his direct examination, he testified that he had never, at any time, owned any gun other than the one he identified. We do not think that the first question carried with it any implication that the State was in a position to impeach defendant’s denial that he had a second gun on December 29.

The second question, which was interrupted by an objection, was more specific, and, we think, did imply the availability of impeaching evidence. However, defendant’s objection to the question was sustained. It might have been well to instruct the jury to disregard the question, but defendant did not make such a motion. Furthermore, we believe that the nature of the question, as far as it went, was not such as to give rise to an inference that the State had evidence (other than the testimony of Kathleen Spiece) that defendant had possession of some other gun on December 19, the date of the instant robbery. The question, to the extent it implies anything, would seem to imply that defendant found another gun in a drawer in a back room of the gas station. Clearly, then, the jury would not be likely to conclude that this would be the gun Kathleen Spiece described as having been in defendant’s possession ten days earlier. Thus, while we feel the interrupted question should not have been started unless the People intended to follow up with proper impeaching evidence, we do not think that the impact of the question was so prejudicial as to require a reversal of defendant’s conviction.

In regard to Janine Woerner, she was cross-examined about whether she had discussed the case with Cassandra Johnson over the telephone, or in the hall outside the courtroom, prior to the time Cassandra testified. Defendant contends that these questions implied that there was some improper communication by Janine to Cassandra, and that, since the People did not prove that such communication took place, this cross-examination was prejudicial. We do not agree. Janine was the defendant’s girl friend, and she worked with Cassandra. They gave somewhat similar alibi testimony, and they were both impeached by the time records of their employer. Under these circumstances, we believe it was proper for the People to inquire whether the two girls had discussed the case with each other before they testified. The State did not, by its question, imply the tenor of any conversations between the girls, but merely inquired as to whether they had discussed the case. Both girls admitted that there had been at least some communication between them about the case, and this was the only fact the State was attempting to establish by the questions. Accordingly, we find no error in the questions which were asked of Janine Woerner on this subject.

Defendant’s next complaint is that, on two occasions, the Assistant State’s Attorney turned over statements of prosecution witnesses to defense counsel in the presence of the jury. This practice has been criticized under some circumstances, People v. Beard, 67 Ill App2d 83, 89-92, 214 NE2d 577 (1966), but, in the instant case, we do not believe the defendant was prejudiced by the manner in which the statements were produced. There was considerable colloquy in the case, in the presence of the jury, much of it initiated by defense counsel, concerning the production of reports, the contents of reports, and the like. Some of these statements of prosecution witnesses were turned over to the defense in chambers. However, on one of the occasions of which defendant now complains, the statement of the witness was produced in the presence of the jury only after defense counsel inquired, in the presence of the jury, “Your Honor, do we have to go into chambers again?” Thus, the defense attorney was at least as responsible as the State’s Attorney for the fact that the jury knew that statements and reports were being produced by the State.

Defendant has several other complaints about the conduct of the Assistant State’s Attorney, but they are not substantial enough to require discussion. We find no reversible error in the record, and, accordingly, the judgment is affirmed.

Judgment affirmed.

DAVIS and SEIDENFELD, JJ., concur.


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Quinn, Defendant-Appellant.
    Gen. No. 67-160.
    Second District.
    June 28, 1968.

      Hart, Banbury, Lawrence & Gullstrand, of Aurora, for appellant; William R. Ketcham, State’s Attorney of Kane County, of Elgin, and W. Ben Morgan, of Elgin, for appellee.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE DAVIS

text:
    Texaco, Inc., a Delaware Corporation, Plaintiff-Appellee, v. Kane County Oil, Inc., an Illinois Corporation, Defendant-Appellant.
    Gen. No. 67-170.
    Second District.
    June 27, 1968.

      Smith and McCracken, of Geneva, and Anthony F. Spina, of Elmwood Park, for appellant.
    Redman, Shearer & O’Brien, of St. Charles, Winston, Strawn, Smith & Patterson, Thomas A. Reynolds, Edward L. Foote, and Brian A. Loftus, of Chicago, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Texaco, Inc., brought this suit against the defendant, Kane County Oil, Inc., to enjoin it from, among other things, using the name “McCornack Oil Co.” or “McCornack Oil Company.” The trial court granted summary judgment for the plaintiff.

The questions raised on appeal may be distilled into three basic issues:

(1) Was there a valid assignment to the plaintiff of the trade name, “McCornack Oil Co.” or “McCornack Oil Company” ?;
(2) If so, did the plaintiff subsequently abandon this trade name?;
(3) Were there material issues of fact which precluded the right to a summary judgment?

The McCornack family, under the corporate name of McCornack Oil Company, had been a distributor for Texaco in St. Charles since 1934. It was also a Firestone Tire distributor under this corporate name. In the testimony, St. Charles was called a “Texaco town” in that Texaco enjoyed good sales in the area. It is also apparent that the names “McCornack” and “Texaco” were associated by the people in the community because of the long duration of the distributorship, the method of operation, and the joint use of the names in advertising and on equipment.

In the fall of 1962, Elmore McCornack, the president of McCornack Oil Company, decided to sell the oil business, and approached Texaco. An agreement was reached and signed on December 22, 1962, and McCornack Oil Company transferred the business to Texaco on December 28, 1962, for a total consideration of $500,000. Texaco wanted the use of the McCornack name for obvious reasons, and it was agreed that Texaco would be assigned all trade names used by McCornack in the business. The consideration for the goodwill and trade names was $54,629.

On December 28, 1962, pursuant to its agreement, McCornack Oil Company assigned to Texaco “the right, but only in connection with the sale and distribution of petroleum and related products, to use and to do business under the names, ‘McCornack Oil Company’ and ‘McCornack Oil,’ excepting and reserving, however, to the Assignor the right to use said names in connection with its Firestone dealer store operation.”

The new distributorship was set up at the same time with Herb Borman, who had been an officer of McCornack Oil Company. Warren Munson, Texaco’s representative in that area, participated in negotiating this agreement, which described the new distributorship as “Herb Borman, d/b/a McCornack Oil Co., Not Inc.”

Borman testified that he had been at negotiations regarding the sale of the McCornack business to Texaco, and was aware of the transfer of the McCornack name to Texaco; that Mr. Krueger, a representative of Texaco, was one of the persons who suggested that the new distributorship operate under the McCornack name; and that Krueger’s conversation was that he could use the McCornack name as long as he sold Texaco products.

During these negotiations, Munson had arranged to join Borman in the distributorship, which fact was known to Elmore McCornack, but unknown to Texaco. Munson did join Borman in January of 1963, and assumed a leading role in the business at that time. Subsequently, in September of 1964, he incorporated the distributorship under the name “Kane County Oil, Inc.” — the defendant. The business continued to operate under the McCornack name until August of 1965, when the distributorship was cancelled. At that time, Texaco appointed a new distributor, conferring upon it the right to use the McCornack name. The defendant claimed that it had the right to use the name in its gasoline and oil operation, and this suit followed.

The defendant claims that the assignment to Texaco by McCornack of the right to use the name “McCornack Oil Company” in connection with the distribution of Texaco products in this area was void as an assignment in gross, in that McCornack did not transfer all of its business to Texaco. It is patent that this contention is without merit. While it is true that a trade name may not be transferred apart from the business to which it is related (Goodman v. Motor Products Corp., 9 Ill App2d 57, 79-82 incl., 132 NE2d 356 (1956)), it is equally well recognized that business entities may in fact operate distinct and separable businesses and transfer such a distinct and separable portion of the entity, together with the goodwill, trade names and trademarks connected therewith. Maola Ice Cream Co. of North Carolina, Inc. v. Maola Milk & Ice Cream Co., 238 NC 317, 77 SE2d 910, 914 (1953); Andrew Jergens Co. v. Woodbury, Inc., 273 F 952, 959 (DC Del 1921), affd 279 F 1016 (3rd Cir 1922); Ph. Schneider Brewing Co. v. Century Distilling Co., 107 F2d 699, 703, 704 (10th Cir 1939); 87 CJS, Trade Marks, etc., § 171, pp 501, 502. Such an assignment is not an assignment in gross.

McCornack Oil Company had operated two separable businesses — the Texaco petroleum distributorship and the Firestone tire dealership. All of the assets of the petroleum business were transferred to Texaco, and the transfer of the trade names, “McCornack Oil Company” and “McCornack Oil” to be used in conjunction with this business, were valid assignments.

The uncontroverted facts warrant a finding that there was no abandonment by Texaco of the trade name, Mc-Cornack Oil. The parties agree that the legal requirements necessary for an abandonment are that there must be an intent to abandon, coupled with an act or omission carrying this intent into effect.

In December of 1962, Texaco paid nearly $55,000 for the name “McCornack.” At the same time, when it set up the distributorship to follow, it suggested the use of the name “McCornack” by that distributor, and, in fact, contracted with the successive distributors in such manner as to indicate that they were to do business as McCornack Oil. It is not realistic to believe that Texaco by such action intended to give up its right to the name for which it had just paid nearly $55,000. Such suggestion seems absurd.

Munson stated that Krueger, a representative of Texaco, suggested that he should use the name McCornack in his distributorship operations, but did not require that he use the name. We do not see how the lack of requirement has any relevancy. The McCornack name and its association with Texaco was a valuable asset because of the business history and reputation since 1934. Elmore McCornack also suggested to both Borman and Munson the continued use of the name because of its obvious value. Borman, who no longer has any personal interest in this matter, stated that he was aware from his conversations with Texaco that he was given the right to use the McCornack name as long as he continued to sell Texaco products.

All of the parties to this transaction were aware that customers in this area identified the name “McCornack” with Texaco products. The name was valuable to Texaco when used by its distributor in this area. Thus, when Texaco recommended to its distributors that they use the name “McCornack” when it approved advertisements in which the two names “McCornack” and “Texaco” were associated and when it approved of the joint use of the names on equipment, it was using this acquired asset in the only way in which it had value to Texaco — through the distribution of Texaco petroleum products in the St. Charles area under the name McCornack.

The defendant concedes that there has been no grant or assignment to it by Texaco of the trade name in question. The most that can be said is that the defendant was permitted by Texaco to use the name. This did not divest Texaco of the continued right to the name upon the termination of the distributorship. Smith v. Dental Products Co., 140 F2d 140, 146, 147 (7th Cir 1944); 87 CJS, Trade Marks, etc., § 182, pp 520, 521. To permit the defendant the continued use of the McCornack name after its distributorship has been terminated and after it no longer sells Texaco products, would constitute a fraud upon the public. Goodman v. Motor Products Corp., supra, 80.

While the defendant suggests that it was misled by Texaco, and that Texaco had abandoned whatever right it may have had to the McCornack name, the defendant’s actions suggest just the opposite. Elmore McCornack dissolved his corporation sometime after the sale to Texaco so that the corporate name was available for incorporating purposes to anyone. On March 29, 1965, Munson wrote Texaco referring to conversations as far back as the fall of 1964 when he had asked if he could use the name “McCornack Oil Company, Incorporated,” and in said letter he stated, “We are most anxious to receive Texaco’s written permission for the use of this name.”

Again, on April 26, 1965, another officer of Kane County Oil Co. wrote Texaco asking for the use of the name “McCornack Oil Company, Incorporated.” In said letter he referred to earlier conversations and letters with Texaco concerning this matter, and stated:

“For your information, we are using this name, but have never received written permission from Texaco. We understand Texaco acquired rights to the name when they purchased the assets of McCornack Oil, Inc.
“Our attorney and CPA have strongly advised us to either obtain written permission from Texaco or drop the use of the name.”

The facts in this case do not permit the conclusion that Texaco abandoned the trade name acquired by it. Not only does it appear that Texaco intended the continued use of this asset which was acquired in December of 1962, but it also appears that all parties were aware of Texaco’s intention to continue such use.

We are of the opinion that the trial court properly granted a summary judgment. As was said in Allen v. Meyer, 14 Ill2d 284, 292, 152 NE2d 576 (1958):

“Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.”

We agree that the purpose of a summary judgment is not to try issues of fact, but only to determine whether material issues of fact exist. An examination of the entire record in this case does not show any material issues of fact, but rather, arguments and legal questions as to the effect of the material facts. We believe that the trial court was correct in holding that no genuine issue of fact remained, and that the cause of action was determinable as a question of law.

There are other matters raised in the briefs which need not be discussed, either because they were waived during the oral argument or because of the views expressed herein.

Judgment affirmed.

MORAN and SEIDENFELD, JJ., concur.


text:
    Nelson Rittenhouse, Plaintiff-Appellant, v. Dixon National Bank, Defendant-Appellee.
    Gen. No. 67-178.
    Second District.
    June 27, 1968.
    Knight, Ingrassia & Schirger, of Rockford, for appellant.
    Dixon, Devine, Ray & Morin, of Dixon, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This proceeding originated by the filing of a complaint on July 5, 1966. The defendant successfully moved to dismiss the same for its failure to state a cause of action. Thereafter, on December 14, 1966, the plaintiff filed an amended complaint which also was dismissed. On June 21, 1967, a second amended complaint was filed and the following order was entered on September 20, 1967:

“NOW, THEREFORE IT IS ORDERED that the Second Amended Complaint filed herein be and the same is hereby stricken and leave to file a Third Amended Complaint on or before October 1, 1967, is hereby granted.”

A search of the record discloses the Clerk’s minute docket with the following notation as of October 13, 1967:

“Order of Dismissal entered. See Order.”

On November 9, 1967, a notice of appeal was filed, the essential part of which contained the following language:

“(T)hat Nelson Rittenhouse . . . hereby appeals . . . from the Order entered . . . , wherein the Court dismissed the Amended Complaint of the plaintiff.
“The plaintiff-appellant prays that said Order dismissing the Complaint filed by plaintiff be set aside . . . .” (Emphasis added.)

It will be noted that neither the date nor the specific order appealed from can be gleaned from this notice.

Prior to the filing of abstracts and briefs by the litigants herein, the defendant moved this Court to dismiss the appeal. The motion was ordered to be taken with the case.

Plaintiff’s abstract sets out, verbatim, a court order dated October 13, 1967, which allegedly dismisses the plaintiff’s cause of action and refers to a certain page of the record where such order may be found. However, the referred to page shows the September order quoted above. This becomes important for the reason that if it is from the October order that the plaintiff is appealing, then his notice of appeal was filed within the time limit allowed by Supreme Court Rule 303(a). On the other hand, if he is appealing from the order entered in September, then his notice was not filed in apt time and this Court does not have jurisdiction to entertain the appeal. See, Supreme Court Rule 301. We are given no assistance from the notice of appeal, as shown above, because it lacks specificity.

Nevertheless, it is elementary that the record shall consist of the judgment from which the appeal is taken. Supreme Court Rule 321; Harris v. Annunzio, 411 Ill 124, 125, 103 NE2d 477 (1952); Hayes v. Industrial Commission, 383 Ill 272, 273-274, 48 NE2d 940 (1943). It has been repeatedly held that a docket entry does not constitute a judgment. Hayes v. Industrial Commission, supra, at page 274. However, nowhere in the record are we able to find the order of October 13, 1967, as set forth in plaintiff’s abstract. Consequently, we conclude that the appeal must be dismissed.

Appeal dismissed.

DAVIS and SEIDENFELD, JJ., concur.


text:
    The People of the State of Illinois, Community Unit School District No. 2, Marshall County, Illinois, Community Unit School District No. 4, Marshall County, Illinois, and C. W. Swanson, County Superintendent of Schools of Marshall County, Illinois, Plaintiffs-Appellants, v. Delbert Shirley, et al., Defendants-Appellees.
    Gen. No. 68-3.
    Third Judicial District.
    June 28, 1968.

      Peter J. Paolucci, State’s Attorney of Marshall County, of Lacon, and Black, Black & Borden, of Peoria, for appellants.
    Isadore I. Leiken, of Minonk, and C. B. Ullrrick, of Peoria, for appellees.
   SCHEINEMAN, J.

This is an action of quo warranto to test the validity of a new community unit school district. The trial court sustained the defendants’ motion to strike the complaint, and the plaintiffs appeal.

The facts are; Prior to July 1, 1962, the County Superintendent of Marshall County received notice from the Superintendent of Public Instruction that Community High School District No. 18 would be dissolved as of said July 1, pursuant to paragraph 5-32, chapter 122, Ill Rev Stats. The cited section provides for the automatic dissolution of a school district which has failed for two consecutive years to maintain a recognized public school.

On May 19, 1962, a petition to call an election to form certain territory into a Community Unit School District was filed with the County Superintendent of Schools of Woodford County. On July 27, 1962, the said County Superintendent approved the petition after hearing held pursuant to notice. Included in the territory described in the petition was a part of Community High School District No. 18 of Marshall County.

There ensued considerable litigation concerning the proposed district, some of which was carried to this court. See Community Unit School District No. 2, Marshall County v. Moore, 46 Ill App2d 14, 195 NE2d 833, and County Board of School Trustees of Marshall County v. Shirley, 76 Ill App2d 23, 220 NE2d 652. The election was held March 30,1963, but it was held void for reasons not present in this case. Another election was held March 4,1967. This was pursuant to the same 1962 petition, and this was held proper in the course of the litigation.

The result of the 1967 election was that the proposal carried by a substantial majority of all votes cast both in incorporated areas and in unincorporated territory. However, in the area of the dissolved District No. 18, it lost by a narrow margin.

The applicable statute is paragraph 11-7 of chapter 122, Ill Rev Stats which contains the following: “if such territory described in the petition includes a part of an existing high school district the proposition shall not be deemed to have received a majority of the votes cast on such proposition unless it also receives a majority of the votes cast on the proposition within the territory included within the said established high school district.”

On behalf of the appellants it is contended that the words “existing high school district” and “said established high school district” must refer to conditions existing at the time the petition was filed, while appellees contend that they refer to the time of election.

The wording of the statute does not provide a clear answer to the problem presented. And there appears to be no reported decision which judicially construes the statute as to this subject. However, we refer to some remarks of this court in Community Unit School District No. 2, Marshall County v. Moore, 46 Ill App2d 14, 195 NE2d 833, which apply to other aspects of the problem. That case involved the same territory and some of the same parties as in this case.

At page 20, it is said: “We think it is no longer debatable that the formation of unit districts has been both legislatively and judicially encouraged and fostered.” It was held that courts must “permit practical application of the statutes.” Referring to District No. 18, it is said: “The District was at an end.” It was further held that this terminated the Grade School District No. 103 which had the same identical boundary. The school trustees had no alternative except to attach the territory involved to adjoining districts. It was recognized that problems would be presented as to parts of the territory, but the school trustees would be authorized to make provision for the students in some way. It was concluded that the trustees had acted in a practical manner, and the court order approving their action was affirmed.

In a similar way problems arise in this case as to what to do with students in a dissolved district pending the result of the election. The school authorities must solve these problems in a practical way, and they have several procedures they may follow to accomplish their purpose. People v. Deatherage, 401 Ill 25, 46, 81 NE2d 581. We must take note of the practical fact that District No. 18 did not exist, and was not an established school district at the time of the 1967 election. That it did exist five years before and was continued in operation during litigation should not have the effect of nullifying this election. Considering the problem as one of practical application of the statute, we conclude that the reference to existing or established school districts applies to the time of the election rather than the time the petition was filed.

This conclusion is bolstered by the further practical conditions that the statutory requirements as to date of election and notice thereof, made it impossible to hold the requested election prior to the termination date of the district, as specified in the notice from the Superintendent of Public Instruction. The dissolution of a district which has not maintained a recognized school for two consecutive years is not dependant upon action by local authorities, it is spoken of as automatic. Thus, it was a known fact when the petition was filed that on the date when the election would be held District No. 18 would no longer exist. Under these conditions, it is not logical to determine the validity of the petition upon the temporary status of some of the territory described therein, which status would disappear before the date of the election. For these reasons we hold that the status of a district on the date of the election determines whether it is existing or not.

One other point is made by appellants. It is contended that the proposal must carry in each incorporated area included in the description. This point has no merit, the statute is clear that the count is to be taken separately as to the total vote in incorporated areas, and as to the total vote in unincorporated territory.

Accordingly, the judgment of the Circuit Court of Marshall County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Richard E. Peterson, Plaintiff-Appellant, v. United States Building Maintenance Co., Inc., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 68-11.
    Second Judicial District.
    July 22, 1968.
    Hall, Meyer, Fisher, Holmberg, Snook & May, of Waukegan, for appellant.
    Diver, Diver, Ridge & Brydges, of Waukegan, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is an appeal from the denial of possession to plaintiff, as lessor, in a forcible detainer action.

A two-year written lease had been entered into initially on June 1, 1965, providing for monthly rental of $220, and containing an option for an additional three-year term, required to be exercised by written notice on or before March 1, 1967, with rent to be increased to $242 monthly.

In April of 1966 the plaintiff agreed verbally that an addition to the leased premises would be constructed by lessor and the rent would be $300 per month with a ten percent increase effective June 1, 1967. Plaintiff testified that the agreement was then a verbal lease on a month-to-month basis. However, defendant testified that the verbal agreement was to add $80 a month to the monthly rental provided in the written lease.

On April 12, 1967, plaintiff sent the following letter to defendant:

“Just a note to bring to your attention, according to the terms of our lease on the property located at 3009 Central Avenue, Waukegan, there is an increase in the rent effective May 1st, 1967.
“The terms read: 10% increase or $30.00 making a total of $330.00 due May 1st.
“Trusting our relation will continue to remain as it has in the past, I remain.”

Defendant testified that he talked to plaintiff after receiving the above letter and told him the “May 1” date must have been a mistake since he did not move in until June 1, 1965; and that plaintiff admitted, “there must have been a mistake.” Plaintiff testified that he did not have a copy of the written lease before him when he wrote the letter in question.

Some time in the first week of May, defendant sent a letter to plaintiff purporting to exercise the option under the original lease, predated to March 1, 1967. Defendant testified that he had forgotten about the notice requirement until reminded by his secretary some time in the latter part of April.

On May 29, 1967, plaintiff wrote to defendant that since he had failed to exercise the option in time, his term, commencing June 1, 1967, would be on a month-to-month basis and suggesting defendant contact him as to the rental. Apparently defendant did not contact plaintiff in the interval and on May 31 plaintiff wrote to defendant advising him that the rent would be $500 a month commencing June 1, and further advising that his “month-to-month” tenancy would terminate on August 31. On June 2 plaintiff served a 5-day notice for failure to pay the $500 on June 1 and commenced suit on June 14. Defendant tendered the amount of $330 for the June rent.

The court found that the addition to the premises was agreed to be covered under the written lease with an increase in the rent to $300 per month and an additional increase to $330 per month commencing June 1, 1967; and that by the letter of April 12, 1967, plaintiff had waived the notice requirement for the option to renew. The court further held that the 5-day notice was defective in that it demanded $500 when only $330 was due and tendered, and denied plaintiff’s right to possession.

Plaintiff contends that the letter of April 12, 1967, was not a waiver of the notice requirement because plaintiff was not considering a written lease to be in effect after the addition was built. Somewhat inconsistently plaintiff further argues that defendant’s negligence did not excuse his failure to exercise the option under the written agreement.

We are of the opinion that the judgment below is supported by the law and the evidence and therefore affirm.

The facts in the record adequately support the findings of the trial court. There was testimony that the parties had agreed that the building addition was to be covered by the written lease. The reliance by plaintiff on the notice requirement for the option to renew which could only be found in the written lease supports the finding by indicating that plaintiff, too, did not consider the written lease as orally revoked, but rather as changed verbally as to the rent for the additional construction. The use of the phrase, “The terms read” in the April 12, 1967 letter, is further confirmation. The reference to the 10% increase in rental in the letter is a reference to the terms of the option provision of the written lease. That construction which will support the findings of the trial court will be followed when it is not palpably against the manifest weight of the evidence. Schulenburg v. Signatrol, Inc., 37 Ill2d 352, 356, 226 NE2d 624 (1967); Lubin v. Goldblatt Bros., Inc., 37 Ill App2d 437, 441, 186 NE2d 64 (1962).

The finding that the letter of April 12 also was a waiver of the notice provision under the written lease as verbally amended, referenced to other terms, is also supported in the record not only by its language in terms of a continuing relationship but by the acknowledgment by plaintiff, according to testimony of defendant which the trial court chose to believe, that the parties discussed the increased rental to be effective as of June 1, 1967, rather than May 1, as plaintiff had mistakenly stated in the letter. A party to a written contract may by parol waive performance of a condition inserted in the contract for his benefit. Fuchs v. Peterson, 315 Ill 370, 375, 146 NE 556 (1925). The subsequent sending of a notice to exercise the option does not negate the effect of the waiver, which may be made unilaterally and need not be relied upon by another to be effective, as distinguished from the doctrine of estoppel relied upon by plaintiff. Adam v. Columbian Nat. Life Ins. Co., 218 Ill App 54, 65 (1920).

The necessary result of the trial court’s opinion is that defendant has possession of the premises for a three-year period which commenced June 1, 1967, under the option contained in the written lease with the increased rent and additional space established by the verbal modification.

Affirmed.

ABRAHAMSON and MORAN, JJ., concur.


text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Plaintiff-Appellee, v. Hulda Schon, et al., Defendants-Appellants. The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Plaintiff-Appellee, v. Joseph Ernst, et al., Defendants-Appellants.
    Gen. Nos. 68-34, 68-35.
    Fifth District.
    July 18, 1968.

      Durr and Durr, of Edwardsville, for appellants.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Richard E. Quinn and Harold G. Andrews, Special Assistant Attorneys General, of counsel), for appellees.
   GOLDENHERSH, J.

Defendants appeal from the judgments of the Circuit Court of Madison County denying their petitions for the allowance of interest on certain sums of money awarded defendants in eminent domain proceedings.

Defendants appealed to the Supreme Court, contending that these cases involve questions arising under the Constitution of Illinois (Supreme Court Rule 302). The Supreme Court found that no substantial constitutional question was presented, and transferred the causes to this court. Because the cases present identical issues, they have been consolidated for opinion.

In each of the cases, petitioner filed its petition to condemn real estate owned by defendants, filed a motion for “quick take” under the provisions of section 2.1 of the Eminent Domain Act (c 47, § 2.1, Ill Rev Stats 1967), a hearing was held as provided in section 2.2, a deposit was made in accordance with section 2.3, and withdrawals were made as provided in 2.4. Upon trial, defendants were awarded sums in excess of the amounts deposited.

The controversy arises from the inability of the parties to agree on the amounts of interest to which defendants are entitled. The specific question presented is whether section 2.6 of the Eminent Domain Act provides for interest on the amount of money by which a final award exceeds the sum deposited under a “quick take” order, including therein 25% of the amount preliminarily found to be just compensation, or whether interest is payable on the amount by which a final award exceeds the amount preliminarily found to be just compensation.

The Supreme Court has stated the rules of statutory construction here applicable, as follows:

“The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature in enacting the law.” Electrical Contractors Ass’n of City of Chicago, Inc. v. Illinois Bldg. Authority, 33 Ill2d 587, 591, 213 NE 2d 761.
“In determining the intent of the legislature consideration must be given to the entire statute, its nature, objects and the consequences which would result from construing it one way or another.” Carrigan v. Illinois Liquor Control Commission, 19 Ill2d 230, 233,166 NE2d 574.
“. . . . words employed are to be given their plain meanings, and that the use by the legislature of certain language in one instance and wholly different language in another indicates that different results were intended.” Nelson v. Union Wire Rope Corp., 31 Ill2d 69,100,199 NE2d 769.

Section 2.3 of the “quick take” statute provides in part:

“§ 2.3. (a) If the petitioner shall deposit, with the clerk of the court, money in the amount preliminarily found by the court to be just compensation, and, in addition shall deposit with the clerk a further sum of money equal to one-fourth of such amount, . . . .”

Section 2.6 provides in part:

“§ 2.6. The petitioner shall pay, in addition to the just compensation finally adjudged in the proceeding, interest at the rate of six percent (6%) per annum upon:
“(a) Any excess of the just compensation so finally adjudged, over the amount deposited by the petitioner in accordance with the provisions of Section 2.3 (a) of this Act, from the date on which the parties interested in the property surrendered possession of the property in accordance with the order of taking, to the date of payment of such excess by the petitioner.
“(b) Any portion of the amount preliminarily found by the court to be just compensation and deposited by the petitioner, to which any interested party is entitled, if such interested party applied for authority to withdraw such portion in accordance with Section 2.4 of this Act, and upon objection by the petitioner (other than on grounds that an appeal under Section 2.2(b) of this Act is pending or contemplated), such authority was denied; interest to be paid to such party from the date of the petitioner’s deposit to the date of payment to such party.”

Clearly, section 2.3 provides for two deposits, the first being in the “amount” preliminarily found to be just compensation, and the second being “a further sum” of money equal to one-fourth of that “amount.” We consider it significant that section 2.6(a) provides for interest on the excess over the “amount” deposited, without mention of the “further sum of money.” It is also significant that section 2.6(b) provides for payment of interest on any sums which, except for successful objection by plaintiff, would be withdrawable under section 2.4.

Considering section 2.6 in its entirety, in the light of the above quoted rules of statutory interpretation, we conclude that it was the legislative intent to provide for the payment of interest on any portion of the sum finally adjudged to be just compensation which is not made available to the landowner under the provisions of section 2.4. Specifically, as applicable to this case, we hold that it was the legislative intent to provide for the payment of interest on the sums awarded in excess of the amount preliminarily found to be just compensation. The effect of the interpretation for which petitioner contends would be to deprive defendants of interest on money found to be due them and would defeat, in part, what the statute was intended to accomplish.

For the reasons stated, the judgments of the Circuit Court of Madison County are reversed and the causes are remanded for further proceedings consistent with this opinion.

Judgments reversed and causes remanded.

MORAN and EBERSPACHER, JJ., concur.


author: SMITH, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Hemphill, Defendant-Appellant.
    Gen. No. 10,651.
    Fourth District.
    July 9, 1968.
    William L. Fay, of Jacksonville, for appellant.
    Charles L. Ryan, State’s Attorney, of Jacksonville, for appellee.
   SMITH, P. J.

We review this appeal for the second time. (People v. Hemphill, 71 Ill App2d 146, 217 NE2d 17.) It reaches us under a mandate of the Illinois Supreme Court to follow the directions contained in an order of the United States Supreme Court remanding the cause “with instructions to appoint counsel and hear the appeal.” 388 US 465, 18 L Ed2d 1323, 87 S Ct 2128. In the first appeal, we did not appoint counsel, but we did an in-depth study of the issue presented by it as to whether § 33 of Article VI of the Constitution of 1870 requiring that all indictments commence “in the name and by the authority of the People of the State of Illinois” and conclude “against the peace and dignity of the same” remains in full force and effect. We adhered to the conclusions then reached when the same issue was presented in People v. Haynes, 73 Ill App2d 85, 218 NE2d 489. We have appointed counsel and now again consider the question.

The new Article VI effective January 1, 1964, does not contain old § 33. The present indictment was returned after the effective date of the new Article and does not contain the language previously required. We need not reiterate what we have previously said in the two previous opinions. The earnestness with which this appeal has been prosecuted, however, has impelled us to reconsider the issue and to reiterate that the quoted language is no longer required in indictments in Illinois.

However, arguments not previously considered require comment.

It is urged that If 2 of the Schedule enacted with the new Article VI provides “except to the extent inconsistent with the provisions of this Article, all provisions of law and rules of court in force on the effective date of this Article shall continue in effect until superseded in a manner authorized by the Constitution.” It is urged that since § 33 is not inconsistent with any of the provisions of the new Article, it must necessarily remain in force and in effect until superseded. Thus, since it was not specifically repealed in the new Article, it ought not be repealed by implication or judicial construction. It is urged that even if it may be said that the new Article opens the gate for a change in the form of indictments, it is not self-executing and absent supplemental action either by legislation or rule of court, it is still in full force and effect.

The basic issue is what proposition was submitted to and voted on by the electorate. We noted in Hemphill that five successive joint resolutions of the Senate and House of Representatives provided for the submission of the “proposition to amend Article VI of the Constitution, to read as follows: . . . .” As we stated in Hemphill and in Haynes, a plain reading of the resolution reflects a purpose and an intent to adopt a complete and new constitutional amendment known as the Judicial Article. This conclusion is supported by the view taken by other courts construing the words “to read as follows.” Such language operates to repeal all of the Section amended not again set forth in the new amended Section, provides a substitute for the old provision, operates exclusively in its place and reenacts or continues in force only that which is reenacted and repeals that which is omitted. State ex rel. Nicely v. Wildey, 209 Ind 1, 197 NE 844; Cortesy v. Territory, 7 NM 89, 32 P 504; City of Helena v. Rogan, 27 Mont 135, 69 P 709; Byrd v. State, 212 Ala 266, 102 So 223; Pierce v. Solano County, 62 Cal App 465, 217 P 545. We have found no cases otherwise construing the words “to read as follows.”

It therefore seems clear that new Article VI is a substitute in toto for old Article VI. Unless, therefore, the exception in 2 of the Schedule resurrects § 33, it is now departed. If that Section has a statute now asserted, it seems strange that the Legislature did not specifically reenact it in the new Article or specifically preserve it in the Schedule. We would further observe that under Ill Rev Stats 1961, c 38, § 716, the language of § 33 here in issue was included in the legislatively prescribed form of indictment. The new Code of Criminal Procedure, Ill Rev Stats 1963, c 38, § 101-1 et seq., was adopted by the Legislature after the People had approved the new Judicial Article and both became effective on the same date. It specifically repealed old § 716 and supplanted it with § 111-3. This Section does not contain the old constitutional language for the beginning and conclusion of indictments. Thus, if action of the Legislature was required to implement the new Judicial Article as to indictments, the Legislature has acted and has eliminated the magic words. Judicial restoration of § 33 would stand on feet of clay. We therefore conclude that the indictment in question is without fault and the judgment of the circuit court should be affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James McClelland, Defendant-Appellant.
    Gen. No. 10,867.
    Fourth District.
    July 2, 1968.
    Rehearing denied August 5, 1968.

      Olsen, Cantrill & Miller, of Springfield, for appellant.
    Raymond Terrell, State’s Attorney of Sangamon County, of Springfield, for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

A 20-count indictment was returned by the Sangamon County Grand Jury charging the defendant, James E. McClelland, and his father, George W. McClelland, with various criminal acts arising out of a fight or altercation at a farm residence in Sangamon County during which a Mr. and Mrs. Clarence Cook were injured. George W. McClelland died and was dismissed from the proceedings.

A motion to quash was allowed as to two counts of the indictment. There is no appeal by the People as to this action by the trial court.

At the conclusion of the State’s evidence in the jury trial, the trial court directed a verdict as to an additional eight counts. The jury returned a verdict of guilty as to five counts, not guilty as to four counts, and no verdict was returned as to the remaining count. The verdict of guilty was to counts charging aggravated battery, battery, and three counts of reckless conduct.

A motion in arrest of judgment was allowed by the trial court for failure of the indictment to state the time and place of the offense. On appeal, this court reversed and remanded the case. People v. McClelland, 73 Ill App2d 410, 218 NE2d 807 (4th Dist 1966). Upon the remandment of the case, alleged errors asserted in the motion in arrest were considered by the trial court, apparently as in the case of a motion for a new trial. The motion was denied and the defendant was sentenced to the Illinois State Penitentiary for a term of one to two years. This appeal is from the judgment of conviction and sentence.

The defendant here contends that there was a failure to prove his guilt beyond a reasonable doubt, that there was a failure to establish that he was a party to the altercation, and asserts error in the admission of certain post-occurrence evidence and in the admission of evidence seeking to establish that the defendant’s reputation for truth and veracity was bad. Complaint is also made of instructions given and refused.

The deceased, George McClelland, had an interest in a farm near New City in the County of Sangamon. His aunt, Lydia Page, held a life estate to the premises. The farm residence was occupied by a tenant, Albert Seaton. Some few days before August 16,1964, George McClelland served a five-day notice on the tenant demanding possession of the premises for nonpayment of rent. On August 16, George McClelland and his son, the defendant, left their home at Auburn in a farm truck driven by the son and went to the farm. The purpose of the trip, it is stated, was either to collect the rent or to ascertain whether the tenant had vacated the premises. They drove into the yard and saw an automobile parked in the drive. The truck was parked in the drive some 100 or 150 feet from the house. Both George McClelland and the defendant got out of the truck and proceeded toward the farmhouse. At this point a Mr. Clarence Cook came out of the farmhouse. Clarence Cook was on the premises to visit his mother, Mrs. Seaton, and his stepfather, Albert Seaton. The Seatons had left the premises earlier and Mr. and Mrs. Cook remained. Mrs. Cook was doing some laundry and Mr. Cook was reading in a room in the residence.

From the testimony of Cook, it appears that he saw the pickup truck drive into the area. He got up and went out, and George McClelland inquired as to the whereabouts of the Seatons. Cook explained their absence, and then George McClelland ordered him off the premises and hit Cook in the face. Cook got up and ran into the house and into a bedroom to get a shotgun located on a gun rack on the wall. He got the shotgun, loaded it, and started back through the living room onto the porch. His wife entered the scene at about this point and grabbed the shotgun and raised it up, and as she did so it discharged. After the shotgun discharged, the two men grabbed it. George McClelland, who was himself armed, started hitting and fighting with Cook. The wife tried to get the older man off her husband. The younger man— defendant — disarmed his father and, in the language of Cook, “grabbed the older one and held him while we got into the car and got away.” Cook did not assert that James McClelland entered into the fight or in any way aided or abetted the father in the fight.

Ruth Cook, by her testimony, related essentially the same facts as her husband except that she did state that James McClelland pulled her off George McClelland who was on Mr. Cook, and when she jumped on George Mc-Clelland a second time the defendant jerked her off again, at which point she fell. According to her testimony, the defendant got a gun out of his father’s pocket and held it down to his side. The defendant then got George McClelland off Mr. Cook and told George McClelland to let the Cooks go, and then held his father while the Cooks got into their car and left the premises. This is the occurrence testimony.

There is much evidence in this record as to subsequent events relating to the arrest, the condition of the defendant’s home, and his demeanor and conduct, as well as that of George McClelland, at the time of their arrest and at the county jail. That testimony did not establish, by subsequent acts, any criminal agency so far as the defendant was concerned and its admission into evidence was error. People v. Hexum, 83 Ill App2d 192, 226 NE2d 877 (4th Dist 1967). The defendant testified in his own behalf and two witnesses were called to testify as to his reputation for truth and veracity. These two witnesses were from a community some distance from the residence of the defendant and there is nothing in the record that indicates their familiarity with the defendant in his home community or with his reputation as to truth and veracity. It is well established that reputation evidence must be limited to the witness’ knowledge of reputation and reputation witnesses must be shown to have an adequate knowledge of the subject. See People v. Reeves, 360 Ill 55, 195 NE 443 (1935); People v. Bell, 61 Ill App2d 224, 209 NE2d 366 (4th Dist 1965).

It is axiomatic that it is the duty and the province of the trier of facts to determine the credibility of witnesses and the weight to be given their testimony. A factual determination will not be disturbed in this court unless our review of the evidence and the record leaves us with a grave and serious doubt as to the guilt of the accused. People v. McCombs, 94 Ill App2d 308, 236 NE2d 569 (1968) and cases there cited. Such is the case here. We find no evidence in this record that the defendant participated in the criminal conduct that the evidence establishes to have been engaged in by his deceased father, nor do we find in this record any evidence, direct or circumstantial, that tends to prove criminal responsibility of the defendant by reason of having engaged in a common design aimed at criminal conduct or aiding and abetting criminal conduct by the father. The evidence is to the contrary. In view of the conclusion reached on this point, it becomes unnecessary to consider the other claims of error. The judgment of the Circuit Court of Sangamon County is reversed.

Judgment reversed.

SMITH, P. J. and TRAPP, J., concur.


text:
    Richard Hamilton, Plaintiff-Appellant, v. Milo Faulkner, Defendant-Appellee.
    Gen. No. 10,929.
    Fourth District.
    June 27, 1968.
    Rehearing denied August 5,1968.

      Unger & Stewart, of Danville (John Unger, of counsel), for appellant.
    Sebat, Swanson & Banks, of Danville (Ralph J. Swanson, of counsel), for appellee.
   SMITH, P. J.

This case visits us for the second time. On its first visit (80 Ill App2d 159, 224 NE2d 304), we reversed a judgment entered in favor of the plaintiff for $35,000 for the reason that that record failed to show a cause of action against the defendant. Promptly upon the filing of our mandate in the trial court, the plaintiff filed a post-trial motion contending that in the original proceedings in the trial court it erred in vacating an order defaulting the defendant for want of appearance and granting leave to appear and answer. The trial court denied the post-trial motion and this appeal follows. We are now asked to exhume the body and reexamine the corpse. Can we do this?

The order vacated by the trial court reads “. . . the said Complaint [sic] is taken against said defendant as confessed and the Defendant [sic] is hereby ordered defaulted.” Some three months later, the defendant filed his petition alleging that he had a meritorious defense and that his failure to file an answer or otherwise plead was due to excusable neglect. Plaintiff filed his motion to strike the defendant’s motion. Both sides filed affidavits. The trial court denied the motion of the plaintiff to strike, and allowed the motion of the defendant to vacate the default. Answer, jury trial and the first appeal followed. Both parties agree that the order opening the default order is an interlocutory order which is not final and was then not appealable. The plaintiff now contends that since he had no right to appeal from the order then, he had no reason to do so until our reversal in the first appeal. His post-trial motion and his position in this court is that this is his first opportunity to review the order setting aside the original default, that it should be now vacated, a judgment of liability entered and either the original jury verdict reinstated or a new trial by jury on the issue of damages only be ordered.

This suit was tried on its merits in the trial court, reviewed on its merits in this court and it was here found that the suit was without merit. At this point, the trial court was without authority to reconsider its order vacating the default for want of appearance. Where, after reviewing a case on its merits, this court reverses the judgment of the trial court or reverses and remands the cause to that court with directions to enter a specific judgment, there is nothing for that court to decide or to determine. Neither the trial court nor the parties have any authority to take any further action in the case except such as is necessary to carry out the mandate of the reviewing court. Morris v. Beatty, 390 Ill 568, 62 NE2d 478. In either event, the judgment of this court is the final disposition of the case on the issues decided in the first appeal, absent a petition for rehearing or a petition for leave to appeal to the Supreme Court.

Plaintiff says that in so holding we deprive him of a review of the trial court’s decision in setting aside the default. He says that he was happy and had everything his heart desired until we spoke on the first appeal. Our reversal, he argues, has the same effect as if the trial court had granted the defendant’s post-trial motion for a judgment n. o. v. Thus, he says Ill Rev Stats 1965, c 110, § 68.1(3), is triggered into action. It reads in part as follows:

“. . . A party against whom judgment is entered pursuant to post-trial motion shall have like time after the entry of the judgment within which to file a post-trial motion.”

We express unrestrained dubiety about the application of this section to an alleged error in granting or denying an interlocutory order occurring prior to a full-blown trial on the merits and a review of that trial. The error, if any, was in the record prior to the first review. Generally speaking, “. . . an appeal from a final judgment, decree or order in a cause is not limited to any specific order, but brings up the entire record for review and correction of any erroneous action of the court below which is properly preserved, where necessary to do justice between the parties.” ILP, Appeal and Error, § 651. It is but a truism that an appellee may assert any matters shown by the record to protect his judgment in the trial court. In our view of this matter, the appellant here has not been deprived of a right to have the order reviewed. He merely saw no reason or need to mention it in the first appeal. Having answered appellant’s arguments in the first appeal, he might well have asserted that liability was confessed by the defendant in the trial court through default which that court erroneously set aside and that the trial should have been on the issue of damages only. The alleged error now raised could have been then propérly raised and considered as an additional argument for affirmance. This being true, it is now difficult to find an abuse of discretion by the trial court in opening a default order in a cause of action which after a full trial and review on the merits has been declared stillborn. “Where the plaintiff has no cause of action and the jury reaches a proper conclusion under the law, it is immaterial whether the court erred in its rulings during the trial. Luly Stores Co. v. Hartman, 235 Ill App 319, 322.” Nelson v. Armistead, 327 Ill App 184, 63 NE2d 648, 652. A like philosophy is pursuasive here.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP and CRAVEN, JJ., concur.


text:
    Richard Allen Snow, a Minor, by Loretta L. Snow, His Next Friend, Plaintiff-Appellee, v. David Judy and Ruby Judy, Defendants, David Judy, Defendant-Appellant.
    Gen. No. 10,899.
    Fourth District.
    July 29, 1968.

      Stifler & Snyder, of Danville (Thomas C. Stifler, of counsel), for appellant.
    Dyer, Richmond, Moore & Nelson, of Hoopeston (Kenneth L. Richmond, of counsel), and Goldgehn, Friend & Leonardo, of Chicago, for appellee.
   SMITH, P. J.

The four-year-old plaintiff recovered a judgment on a jury’s verdict for $8,500 for injuries sustained when he was riding sidesaddle on a bicycle operated by his fifteen-year-old brother and ran into a single strand of barbed wire stretched across a lane on the farm of the defendant. Defendant appeals. The integrity of this judgment rests squarely upon the nature of the duty owed by the defendant to the minor plaintiff.

The plaintiff and other members of his family were longtime friends of the defendant and were visiting on his farm as social guests. A brother of the plaintiff, using a new bicycle belonging to a son of his host, was taking the plaintiff down to the pasture to “see some cows,” a subject in which the young four-year-old had expressed some interest. The plaintiff sat sidesaddle on the horizontal bar of the bicycle with his hands on the handlebars for security. They went from the house down the driveway to a public road, down that road to the lane in question and down it to where the cows were pastured. The cows were fenced with an electrified single-strand barbed wire, a method of containing livestock commonly used in modern farming. The wire was about 314 feet high, 12 to 14 feet from post to post across the lane, and between these posts was not electrified. The lane was for the sole use of the defendant in moving his machinery, livestock and crops, and was in no sense a thoroughfare for public use. It does appear that the children of both families had walked, played and ridden bicycles in the lane. There were no flags, ribbons or other warning devices on the wire. At the time of the accident, the corn was about 3 or 4 feet high on one side of the lane, weeds on the other, and the plaintiff’s brother testified that he did not see the wire as he came around a bend in the lane until he was about 6 inches from it. He denied telling the Judy boys that he was going too fast to see the wire, but stated that he was moving at a moderate rate of speed. The wire caught the plaintiff in the throat and lacerated the neck and windpipe, requiring surgery.

In Illinois, it seems clearly established that a social guest must take the premises of his host as he finds it and as it pleases the owner to maintain it provided, however, that the owner does not fail in his duty of warning the guest of what might be considered a trap, a concealed defect, or conditions which create a new danger of which the guest has no knowledge. ILP, Negligence, § 58. 25 ALR2d, p 600, states that “. . . the cases display a commendable unanimity in holding that a social guest injured by a defect in the premises may not recover against his host in the absence of evidence establishing something more than ordinary negligence in the maintenance of the premises. . . .” (For illustrative cases, see ALR Later Case Service, Vol 3, p 782.) Under these rules, liability to a particular person rests upon a duty to that person.

As stated in Prosser, Torts, § 53, p 331, 3rd ed 1964, “. . . in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty. . . .” Where the experience of mankind teaches that the instrumentality, the conduct or the physical condition is per se inherently dangerous, society imposes a duty to act or to refrain from acting in a manner reasonably calculated to avoid injury to others from the known or readily apparent danger. To hold that barbed wire is in itself a dangerous instrumentality is to indict its widespread and extensive use for fencing on farmland everywhere. At least one court has judicially declared that barbed wire is not dangerous per se. Quigley v. Clough, 173 Mass 429, 53 NE 884.

The likelihood of injury therefore in this case must be found not in the inherent nature of the barbed wire, but in the manner of its particular use at the time and at the place of the occurrence. It is but a truism to remember that a perfectly innocuous instrumentality may and can and does cause injury when negligently and carelessly used. Thus, the likelihood of injury to anyone from barbed wire used to contain livestock in a lane to which the public is not invited or expected is less likely to cause injury when so used than if it were used in a thickly populated subdivision to “keep people off the grass” or to rope off a pew in a church at a wedding or a funeral.

What was the duty of the defendant in this case? Was it not to use the barbed wire at all? We think not. Was it to mark the barbed wire with a sign, a rag, or a piece of wood to make it reasonably visible? Knowing that he had social guests on the farm, that they had in the past played and ridden bicycles in this lane and that the wire had been placed there since their last visit, what was the duty of the defendant? Was the barbed wire in this instance used in a manner and under circumstances which created a new danger of which the guests had no knowledge thereby imposing a duty upon the defendant to warn of its existence? The defendant testified that he knew that the Snow boys had ridden the bicycle elsewhere on the farm; that he didn’t know whether the older boy had ever ridden down this lane or path; that there were no markings on the barbed wire by way of warning and that its visibility rested solely in the wire itself. The brother of the plaintiff testified in substance that he was riding at a reasonable rate of speed; that he had ridden in this lane before; that the barbed wire was not there then; that the sun was casting shadows across the road from the brush and trees; that there were no rags or markings on the wire; that he did not know that it was there; that he saw the barbed wire about 6 inches in front of him and “by that time there was nothing I could do. I started to put on the brakes, but was so close by that time, I could see that was it.” Under these circumstances, there was evidence in the record from which a jury might reasonably conclude that conditions existed which created a danger, that this was a new danger of which the guests had no knowledge, and that the single strand of wire was not reasonably visible under the circumstances of this record. We are of the opinion that these facts are facts within the province of the jury to determine, and once so determined, the law imposes a duty upon the defendant to reasonably advise of their existence. We cannot say that the jury's determination should be disturbed on the facts in this record.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.