author: MR. PRESIDING JUSTICE SMITH

text:
    Miles G. Burford and Janice H. Burford, Plaintiffs-Appellees, v. Village of La Grange, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 50,834.
    First District.
    December 20, 1967.
    Rehearing denied January 17, 1968.

      William J. Linklater and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for appellant.
    Edward J. Barrett, of Chicago, for appellees.
   MR. PRESIDING JUSTICE SMITH

delivered the opinion of the court.

The plaintiffs obtained a jury verdict of $21,000 for water damage to their residence resulting from allegedly inadequate or defective village storm sewers. The trial court ordered a remittitur and reduced the judgment to $12,070.46. Plaintiffs consented to the remittitur as a condition to the denial of a new trial, but reserved their right to question the propriety of the remittitur on appeal in accordance with 111 Rev Stats 1965, c 110, § 68.1. By its appeal, the village attacks the judgment so entered and the plaintiffs attack the propriety of the remittitur.

The defendant-appellant first asserts that the trial court should have directed a verdict in its favor as requested. The home of the plaintiffs is located on the northwest corner of the intersection of Elm Street and Sunset Avenue in the village and faces Elm. There is a storm sewer in Sunset. A spur drain located on the plaintiffs’ property and terminating at the back of the property connects with this sewer. The downspouts to the house drain into this spur sewer. The liability of the defendant-village to the plaintiffs must be predicated upon the existence of some duty owed by the village to the plaintiffs in connection with (a) the Sunset Avenue drain or (b) the spur drain located wholly upon plaintiffs’ property and a breach of that duty. There is no evidence in the record that the village constructed the sewer in Sunset, the spur drain, or that either was constructed by a private party and subsequently dedicated to the village. The village manager testified that the records of the village show a meeting on June 7, 1915, and the “granting of permission to a subdivider for the installation of sewers on Sunset Avenue.” Plaintiffs’ Exhibit No. 48 is a plat of such drains and shows their location in Sunset. There are no connecting spur drains located on private property shown in this exhibit. The construction or ownership of a drain or sewer is, however, basically immaterial.

“. . . where a municipality has adopted a sewer or drain constructed by a private person and has assumed control over it, the fact that the municipality has not constructed the sewer or drain will not excuse the municipality from liability for negligence in its operation.” ILP, Cities, Villages, and Other Municipal Corporations, § 554, p 136.

The village manager testified on behalf of the plaintiffs that, he became manager on August 1, 1957; there was an inspection of the village sewers prior to that time; during his employment there had been an inspection of the sewers on a regular basis; there was a program of maintenance to clean all catch basins or street inlets at least once every other year; and this system is still in effect. It further appears that a supplementary or auxiliary storm sewer was placed in Sunset after the flood of July 1957. It thus appears that the village had assumed the inspection, maintenance and the repair of the storm sewer in Sunset and was therefore under a duty to the plaintiffs not to be negligent in the performance of that duty.

As to the spur drain on the plaintiffs’ property, it is shown on the map of the village sewer system now hanging in the village hall. That same map shows privately-owned storm sewers on private property of others. The village engineer who prepared the map explained that the presence of these spur drains on the village map was so that the village would be advised and informed of the private sewers draining into the village sewer. There is nothing in the village records or elsewhere indicating that the village had an easement to either install or maintain this spur sewer on plaintiffs’ property and normally such an easement would be obtained. The evidence further shows that during the repair of the property, the plaintiffs poured concrete into the spur drain and effectively plugged it. Thereafter sometime in 1958, at the request of the plaintiffs, the village likewise plugged this sewer in the village street at its connection with the village sewer.

The village manager testified that he didn’t know whether the spur drain into the plaintiffs’ property was inspected or cleaned, and a search of the records did not disclose an application by or a permit issued to the property owner for permission to attach this particular spur drain to the village’s sewer. No one testified to any inspection or maintenance by the village. The presencé on the village map of this spur drain and of other privately-owned spur drains creates no presumption of village ownership or control where direct testimony of the engineer who prepared the map is that it was for information only. On this record, therefore, it seems transparently clear that the village neither owned the spur drain nor had they inspected it and maintained it. The record is thus barren of any facts creating an obligation or duty on the defendant-village to maintain, inspect, or repair this spur drain.

Let us turn now to the occurrence events which precipitated this suit. Plaintiffs acquired this seven-room, two-story, frame-colonial house on October 2, 1954, and moved in around November 1 the same year. In October, prior to occupying the house, Mrs. Burford noticed surface waters in the intersection at Sunset and Elm, but did not then examine the house. In July 1955, there was a heavy rain and water started coming into their basement and reached a depth of approximately 2 inches. In September of the same year, a like rain occurred and this time the water reached a height of 6 inches. In August or September 1956, the third rain occurred and the water in the basement reached a height of approximately 8 inches. In July 1957, there was a heavy rain and flood and this time the water reached a depth of from 4 to 6 feet, remained in the basement overnight, and a deep freeze, sewing machine, and other furniture and articles were floating around. Mrs. Burford noticed a slushing of water and a rocking and shaking of the house. She called the fire department to disconnect the electricity and was advised by them to move out with her children. At this time, there was a sea of water across the street in all directions, their lawn was under water, and it was the same at the neighbors. She and the children moved out. There is little doubt but that the rain in July 1957, was a gully-washing, frog-strangling rain. Plaintiffs’ witness Reed testified “we had a 7-inch rain and at that time it reversed the flow of the Chicago River — it got so heavy that it flooded the Daily News basement.” The official report of the United States Weather Bureau read in part as follows: “The deluge on the evening of the 12th set new 6 and 24-hour rainfall records for Chicago . . . The heavy rainfall resulted in severe flooding, and practically paralyzed transportation. Damage ran into the millions of dollars.” A professional meteorologist testified that the record rainfall on July 12 was substantially greater than anything that had officially been recorded before that time, and that similar rainfalls of that encountered on July 12 could not be expected to return for well in excess of 100 years. It has been stated:

“. . . even if there is negligence concurring with an extraordinary flood or rainfall, the municipality is relieved from liability if the flow is so voluminous in character that it would of itself have produced the injury independently of such negligence. In other words, if the superior force would have produced the same damage whether or not the municipality had been negligent, its negligence is not deemed the cause of the injury.” CJS, Municipal Corporations, § 879.

In Carlson v. A. & P. Corrugated Box Corp., 364 Pa 216, 72 A2d 290 (1950), the Supreme Court of Pennsylvania stated:

“. . . a unanimous host of authorities, both in our own Commonwealth and elsewhere, . . . uniformly hold that although no liability can be fastened upon the defendant if the damage is caused by an act of God so overwhelming as of its own force to produce the injury independently of the defendant’s negligence, such liability does arise if the damage results from the concurrence of the defendant’s negligence with the act of God and the damage would not have occurred in the absence of such negligence.”

See also 59 ALR2d 324, § 19 (a); Bouillon v. City of Greenville, 233 Ill App 500. Assuming without presently holding that the defendant-village was negligent, we think it abundantly clear as a matter of law that the defendant-village cannot be liable to the plaintiffs on any part of their damages occasioned by the flood of July 12, 1957. It seems clear from this record that the flood was so overwhelming and so devastating that the damages to the plaintiffs would have occurred notwithstanding any independent negligence of the defendant-village. 59 ALR2d 326, § 19(b).

During the fall of 1957, the plaintiffs repaired their home. To do so, it was necessary to jack up the entire house on hydraulic lifts, remove and rebuild the entire basement and foundation at a cost of $12,070.46, the precise amount of the judgment entered in this cause. The evidence discloses that the intersection of Sunset and Elm was a swamp in 1915, and that a portion of the plaintiffs’ lot was included in it; the natural drainage in the area was towards this intersection; and the composition of the soil was such that this house began to settle shortly after it was built. Mrs. Burford had noticed a large, running diagonal crack on the east wall when they inspected the property prior to purchase. Mr. Burford testified that he was home during the September 1955 episode; the water came in mostly up through the floor and in the joints between the walls and the floor in the south end of the building; there may have been some backup, but this was nominal, and the majority of the water came in through the foundation of the basement floor. The record further shows that after the 1957 flood the east wall bulged inward and the basement floor heaved upward.

Plaintiffs’ witness Flood, a licensed, civil engineer, in response to a hypothetical question specifically limited to a blockage of the spur drain and specifically excluding any blocking of the Sunset Avenue drain, was asked whether or not the blocking of the sewer could have been a contributing factor in the damage to the foundation wall. He stated that such blockage could have been a contributing factor to the damage, and this “is based on the opinion that in the blockage of a sewer, a build-up of water behind the sewer is transmitted to the outside of the basement walls and floor. This pressure, in effect, pushing against the walls can push the walls inward, causing bulging and cracking of the walls. Also, the same pressure results in a (sic) uplift of the floor and can result in cracking of the floor and is called hyrostatic (sic) pressure.” On cross-examination, he also testified that “a jagged diagonal crack in a foundation is not necessarily indicative of settlement, but can be indicative of lateral pressure and, if such a diagonal crack existed in 1954, it would indicate there had been pressures on that wall prior to that day.” He further testified that “if the house was underpinned in part, it connotes that the foundations which were weakened were strengthened; you underpin a house to strengthen the foundation and underpinning can be due to the need to place an additional load on a specific foundation or due to the fact that the soil below the foundation will not support the original load.”

Defense witness O’Brien testified that he was a registered, professional engineer in Blinois and Wisconsin, and he had been employed by Mr. Burford in the fall of 1957 to make recommendations in the underpinning operation which was then in progress. His report shows that the original foundations of this house were 10-inch, cinder-brick walls supported at basement floor level by a four-inch-thick concrete footing approximately 14 inches wide. His recommendation to Mr. Burford as shown by the report was that the new foundation be a continuous reenforced wall and footing, and that the footings should be at least 4 feet wide and, if economically possible, larger. In testifying that the heavy rainfall could have resulted in the bulging, he stated: “The bulge would have occurred to the wall, (1) if the wall had not been highly reenforced, and (2) with the heavy rainfall a large amount of hydrostatic pressure would develop from surface water in the back of the foundation wall, resulting in this movement of the wall which would have occurred from inadequate reenforcing or insufficient reenforcing.” He further stated that “if the walls were thick and adequately reenforced, this buckling would not have occurred.” He further stated that this buckling or bulging could not have resulted from a sewer backup, and that “if the bulging is toward the inside, pressure has to be from the outside, from the surface water that accumulates behind the foundation walls. Outside hydrostatic pressure could be a cause of damage to the foundation.”

Plaintiff’s witness Reed was the plumber on the job during the repairs. In attempting to find where this water was coming from, they dug around in the yard southeast of the porch, which is on the southside of the house, and found this 8- or 10-inch spur drain. They tried to determine where it came from, because the main sewer of the house was on the northside of the house. They took a sewer rod and pushed it back to see where it went in each direction from the hole they had dug. In rodding towards the east and towards Sunset, they encountered no obstruction and water would run out and go towards the east or towards Sunset. In rodding the other way, they found they couldn’t go very far, because it was plugged with mud and debris and gunk, or soupy mud. This debris was filling up the drain between the main sewer on Sunset and the house. He further testified that this blocked drain could have been a contributing factor of the damage to this foundation, that the blocked drain could have diverted water onto the plaintiffs’ premises which found its way into the foundation and basement.

Molding this testimony into ultimate facts, it seems transparently clear that (1) faulty, inadequate and insufficient basement construction for this particular area contributed no small part to the damage sustained, (2) the damage occasioned by the deluge of 1957 would have occurred irrespective of any negligence on the part of the defendant-village, and (3) the blockage in the spur drain on the plaintiffs’ property contributed immeasurably to the development of the outside, hydrostatic pressure which caused the bulging of the east wall and the upheaval of the basement floor. This third act is emphasized when we consider that the downspouts to the house were connected to the spur drain, that there is no evidence the spur drain was directly connected to the basement, and the fact that except for a nominal amount, the water was coming into the side walls and bubbling from the floor.

Up to this point, therefore, the village cannot be liable for the damage occasioned by the faulty construction of the basement nor the flood of 1957. It seems equally clear that it is not responsible for any damage occasioned by the stoppage of the spur drain. The rule is stated thusly:

“Ordinarily the city is only liable for the clogging or obstruction of drains and sewers maintained by it or over which it has control, with the result that it is not liable for the clogging of a drain or sewer maintained and controlled by a private property owner.” 59 ALR2d 314, § 11.

We turn now to a consideration of the negligence of the village, if any. Such negligence must be predicated upon a failure to properly inspect — and the evidence is that it did inspect — or a defective or blocked village sewer —and the evidence is that it wasn’t — or the inadequacy of the sewer system itself. Plaintiffs’ witness O’Malley was employed by the Village of La Grange from July 1957 to September 1963 as its civil engineer. Following the flood of 1957, he caused a survey to be made of Sunset Avenue and recommended a supplemental sewer which was installed in 1958 or 1959. He testified as follows:

“ ‘In 1957, there was no crack in the pipes in the sewer line on Sunset. The water flowed freely through that sewer except that there was probably a 6 inch pocket at Sunset and Elm which shows on the plans that we made up. In a heavy rain, water would flow freely provided Cossitt Avenue was below its capacity and it wasn’t overloaded. There was no break or no obstruction in the sewer. There was a flow. On direct examination, I testified that the Cossitt Avenue sewer was not large enough to handle that type of rainstorm as occurred on July 12 and 13, 1957.’ ”

He further testified that there was a sag in the Sunset Avenue sewer about 50 feet on either side of the manhole, that the sag wouldn’t do it any good, and “whether it does it much harm — it wouldn’t — it wasn’t designed that way.” He further testified:

“ T would say that Mr. Burford’s main problem, unless he had an overhead sewer, came from the house connection that goes into Sunset Avenue, in my opinion. If he had an overhead sewer there and if things were really tight, then he probably wouldn’t have had this problem.’ ”

He further testified that he didn’t think the spur line did the property any good, but how much harm it actually did, he didn’t know. He also testified that even if there was an overhead sewer, it is possible that the water could have seeped in under the foundation or along side of the drainage tile on the outside of the wall. There is no evidence in the record establishing whether or not the other occurrences which Mrs. Burford testified about were normal or abnormal rainfalls. In Illinois, the rule is stated thusly:

“. . . where a municipality provides ample sewers and drains to carry off all water likely to fall or accumulate under ordinary conditions, the fact that the sewers and drains prove inadequate to carry off all the water from an extraordinary rainstorm, does not subject the municipality to liability for damages caused by the surplus water.
“. . . it is liable only for such injuries or damages which are the proximate cause of such negligence.” ILP, City, Villages and Municipal Corporations, p 136, § 555.

It is now the rule in Illinois, that verdicts may be directed and judgment n.o.v. entered in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & E. R. Co., 37 Ill2d 494, 229 NE2d 504. The picture, vivid and clear painted by this evidence, is that this house was originally constructed in a low and swampy area; that settlement of the house began soon after its construction; that the foundation and basement construction was wholly inadequate from an engineering standpoint for the area in which it was built; that the stoppage in the spur drain materially contributed to the damage to the foundation as the downspout water had no place to go except into the adjacent soil to build up hydrostatic pressure against the outside of the walls and floor, and that there is no evidence that the Sunset Avenue sewer was inadequate to handle an ordinary rainfall, nor is there any evidence from which it could be reasonably concluded that the village ever assumed the management or control of the spur drain. The verdict of the jury in this case would impose on this village a standard of conduct and a duty which transcends that ordinary care which should be and is the established obligation of the village. Roche v. City of Minneapolis, 223 Minn 359, 27 NW2d 295, 173 ALR 1020.

Accordingly, the judgment of the trial court is reversed and the cause remanded to that court with directions to enter a judgment non obstante veredicto.

Reversed and remanded.

CRAVEN and TRAPP, JJ., concur.


source: Caselaw Access Project

author: ALLOY, J.

license: Public Domain

text:
    Mary Runowicz, Petitioner, v. Rock Island Bank and Trust Company, Administrator of the Estate of Joseph DePover, Deceased, Respondent.
    Gen. No. 67-45.
    Third District.
    December 20, 1967.

      Coyle, Stengel, Gilman & Keefe, of Rock Island, for appellant.
    Schroder & Schroder, of Rock Island, for appellee.
   ALLOY, J.

This cause is before us on an appeal from an order of the Circuit Court of Rock Island County granting a new trial to respondent, Rock Island Bank and Trust Company, as Administrator of the Estate of Joseph DePover, deceased. This cause originated through the filing of a claim against the Estate of Joseph DePover for services rendered as a housekeeper by Mary Runowicz asserted to have been from October 1957 to the time of decedent’s death on June 11, 1965. The trial was held before the court without a jury on December 14, 1966, and as a result of such trial a judgment was entered by the court in favor of Petitioner and as against the Estate for $3,780. This judgment was later corrected by the court to the sum of $3,120. Thereafter, the respondent filed a motion for a new trial setting forth what was described as “newly discovered evidence” as a basis for such new trial. It is from the granting of such motion for new trial that this cause is before us on appeal.

The record discloses, that following the filing of the claim by petitioner, the attorneys for- the Estate filed interrogatories requesting names of persons having knowledge of the facts relating to the claim. The name of Dorothy McGrath, who testified at the trial, was not included. There was a showing at the trial that such witness was not known to claimant’s attorneys at the time the interrogatories were answered. The trial was originally set for November 30, 1966, but claimant moved for a continuance because of the illness of one of its witnesses, namely, Dorothy McGrath. Claimant’s attorneys stated in court in presence of the attorneys for the Estate that this witness, Dorothy McGrath, would testify that she lived next door to the decedent for two years before the death of decedent and that she observed services being performed by the claimant. The continuance was granted and the trial was held on December 14, 1966, as heretofore indicated.

Three witnesses testified for the claimant. Joe Fox testified that he had lived three doors from decedent and had known the decedent from 1942. Prior to the death of decedent’s wife, both of decedent’s legs had been amputated below the knee. While decedent’s legs required some attention, he was still able to get around on artificial legs and would drive his car to where claimant lived near the Moline Public Hospital, and each evening when she got out of work at the hospital and on her days off he would pick her up. DePover’s wife died in 1957 and decedent never remarried. Witness Fox testified that he had seen claimant doing general housework, washing, scrubbing floors, washing dishes, cleaning, etc. around decedent’s house from the late 1950’s until the time of decedent’s death. He specifically stated that he saw the claimant doing this work about two times a week but that he was never in decedent’s house during the evening. Another witness, David Morgan, testified that after the death of decedent’s wife, in 1957, he saw the claimant, Mrs. Bunowicz performing general services the two or three times a month he visited decedent’s house. He specifically testified as to the improved condition of the house when the claimant began working there and that he never observed anyone else doing any of the housework.

Dorothy McGrath, a witness, testified that she lived next door to the decedent and had observed the claimant perform various services for the decedent. She specified the activities which ranged from housework to cleaning and yardwork and cooking. She also testified as to her opinion as to the value of such services in the community being $1.25 to $1.50 an hour. On cross-examination, Dorothy McGrath testified that she had known the decedent for about 2% years before his death, ever since she had moved next door. When she was questioned by the court as to exactly when she moved next door to decedent, the witness, apparently attempting to recall the specific time, testified that she moved there in June 1963.

In an amended motion for a new trial filed by the Estate following the entry of the judgment in the sum of $3,120, it was contended that newly discovered evidence would show that Dorothy McGrath had in fact moved next door to the decedent in June of 1964 instead of June of 1963 as she had indicated in her testimony. Attached to the motion was an affidavit of an attorney for the Estate stating that he would also introduce two signature cards from the Rock Island Bank and Trust Company (the bank which was administrator of the Estate) and various gas company records and city directories to show when Dorothy McGrath moved. Also attached to the motion was an affidavit of the previous owner of the home now occupied by Dorothy McGrath in which affiant indicated that she did not move until 1964. As a result of such motion, the trial judge granted a new trial. The issue before us is whether the trial judge in such instance abused his discretion in granting a new trial on the basis of “newly discovered evidence.”

The allowance of the claim by the trial court which resulted in the judgment was based upon the fact that there was no family relationship between claimant and the decedent and that the decedent had accepted and retained the beneficial results of the claimant’s services which were rendered at his request where no reason was disclosed for him to suppose that the services were gratuitous. The record in fact implies to the contrary. The law, therefore, implied a liability for the reasonable worth of such services (Floyd v. Estate of Smith, 320 Ill App 171, 50 NE2d 254).

The determination of whether or not a new trial should be granted in this cause is governed by the same rules as would apply generally to the granting of a motion for a new trial. In the cause before us the respondent does not contend that the evidence is insufficient to support the judgment, nor is there any claim of procedural error by which a just result was precluded. The sole ground advanced for a new trial was the existence of the “newly discovered evidence.” To justify the granting of a new trial, certain conditions should be met by the moving party. As stated in Powers v. Browning, 2 Ill App2d 479, 119 NE2d 795, at pages 486-487, the general test which is to be applied by the trial court is outlined as follows:

“As the court said in People v. Dabney, 315 Ill 320: ‘Applications for new trial on the ground of newly discovered evidence are not looked upon with favor by courts but such applications are to be subjected to close scrutiny. The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence. (People v. LeMorte, 289 Ill 11.) The evidence must fulfill the following requirements: First, it must appear to be of such conclusive character that it will probably change the result if a new trial is granted; second, it must have been discovered since the trial; third, it must be such as could not have been discovered before the trial by the exercise of due diligence ; fourth, it must be material to the issue; and fifth, it must not be merely cumulative to the evidence offered on the trial . . .’ ”

As indicated in the outline of conditions which must be shown before a new trial is granted, requests for new trials on the basis of newly discovered evidence are not looked upon with favor by the Illinois courts (Henderson v. Shives, 10 Ill App2d 475, 135 NE2d 186; Bezark v. Kostner Manor, Inc., 29 Ill App2d 106, 172 NE2d 424). The court in Chicago & A. R. Co. v. Raidy, 203 Ill 310, 67 NE 783, at page 317, pointed out specifically:

“It cannot be the practice of courts to allow important matters to go to trial, and because one party is not satisfied with the results of it, let him go out and try to get facts which will enable him to do better at another trial, and rely upon such after-ascertained matters as a basis for a new trial. In such case the courts require that the newly discovered evidence shall be material and shall not be cumulative, and that due diligence has been exercised to procure it.”

While respondent does not dispute the law and the requirements for granting a new trial, it contends that a new trial was justified on the ground that the testimony of Dorothy McGrath was the only foundation for the judgment in this cause. One of the basic requirements for granting of a new trial as a result of a motion founded upon newly discovered evidence, is that the new evidence should relate to the merits of the controversy and be so decisive in character as to be conclusive thereof. In the cause before us, the issue before the court was whether the claimant performed services for the decedent, and, if so, the reasonable value of such services. Whether witness McGrath lived next door to the decedent for one year instead of two years as she had testified would not be material to claimant’s right to be compensated. If Dorothy McGrath was the only witness who testified to seeing the services performed, this might make a difference. There were, however, two other witnesses in the instant case who testified for the claimant and the one witness who testified for the Estate failed to rebut the showing of work performed by the claimant. The testimony of Dorothy McGrath as to the value of the services obviously would not be affected by the fact that she lived next door to the claimant for one years or two years.

It is apparent also that in order to establish a new trial on the basis of newly discovered evidence, there must be a showing that the newly discovered evidence is not merely evidence seeking to impeach a witness who testified at the trial. It is implicit from the motion and the record in this cause that the primary purpose of the evidence which was sought to be introduced would be for the purpose of impeaching the testimony of the witness Dorothy McGrath. As stated in Morsovillo v. South Suburban Safeway Lines, 49 Ill App2d 219, 199 NE2d 643, at pages 221-222, where the newly discovered evidence involved evidence purporting to establish the genuineness of a witness’s signature, the court stated:

“Since this evidence could be used only to impeach Ronald, we believe the trial court properly denied this motion on the authority of Chicago & E. I. R. Co. v. Stewart, 203 Ill 223, 224, 67 NE 830:
“ Tt has been often decided by this court that a new trial will never be granted on the ground of newly discovered evidence merely for the purpose of impeaching a witness who testified upon the trial.’ ”

This principle is also affirmed in Smith v. Carter, 302 Ill App 235, 23 NE2d 738.

The only effect, on the basis of the record before us, of such newly discovered evidence (that Dorothy Mc-Grath resided next door to decedent for only one year) in the instant case would be to impeach the testimony of Dorothy McGrath. This is not sufficient ground for a new trial, on the record before us.

On appeal in this court respondent-Estate cites Moyer v. John Hancock Mut. Life Ins. Co., 6 Ill App2d 1, 126 NE2d 157, in support of the action of the trial court in granting the new trial. We note, however, that in the Moyer case, a new trial was refused for the reason that the reviewing court did not agree that newly discovered evidence would have been of a conclusive character or material to the issues (page 7). Respondent also cites Leonard v. Jacobs, 42 Ill App2d 261, 192 NE2d 304. In that case a new trial was also denied by the court on review for the reason that (pages 265-266):

“Applying the basic requirements as outlined in the Henderson v. Shives case to this case, assuming that the petitioner has been diligent and that the evidence could not have been discovered before the trial, the two questions that must be answered are, (1), is the evidence of such character that it will probably change the result if a new trial is granted ?; (2), is the evidence merely cumulative? Giving every consideration and full weight to the pictures and the evidence of the private investigator, it is the opinion of this court that the answer to the first question is ‘No’ and to the second question is ‘Yes.’ ”

The newly discovered evidence in the Leonard v. Jacobs case consisted of about 45 minutes of film showing the plaintiff walking around and moving after the trial in a manner in which he had earlier testified he could not move.

The burden of showing the basic requirements for a new trial, where the motion is premised on newly discovered evidence, is on the party seeking the new trial. As stated by the court in Henderson v. Shives, 10 Ill App 2d 475, 135 NE2d 186, at 486:

“The burden is on the applicant to rebut the presumption that the verdict is correct and to show that there has been no lack of due diligence.”

In the case before us, the Estate clearly failed to sustain this burden. The testimony of the witnesses Fox and Morgan, coupled with testimony as to the value of services by witness McGrath, even if the testimony of witness McGrath was restricted to a one-year period, would have been sufficient to sustain the judgment. On the basis of the record before us, the motion was not legally sufficient to justify the granting of the new trial and the order granting such new trial was, therefore, improper and should be set aside.

The order of the Circuit Court of Rock Island County granting the new trial is, therefore, reversed and this cause is remanded to the Circuit Court of Rock Island County with directions that the judgment in the sum of $3,120 and costs in favor of petitioner and as against respondent be reinstated.

Reversed and remanded with directions.

STOUDER, P. J. and HOFFMAN, J., concur.


author: STOUDER, P. J.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Charles Curtis, Defendant-Appellant.
    Gen. No. 67-60.
    Third District.
    December 20, 1967.

      Maynard Minteer, of Moline, for appellant.
    Richard Stengel, State’s Attorney, of Rock Island, for appellee.
   STOUDER, P. J.

Edward Curtis, Defendant-Appellant, was found guilty of burglary by a jury. This is an appeal from the judgment and sentence of the Circuit Court of Rock Island County.

Defendant’s first assignment of error is that the trial court erred in overruling his motion for a directed verdict at the close of the People’s evidence. Defendant argues that the evidence of identification was insufficient. After the motion for directed verdict was overruled Defendant presented evidence of an alibi including his own testimony and that of a corroborating witness. On the authority of People v. Washington, 23 Ill2d 546, 179 NE2d 635, and People v. Slaughter, 29 Ill2d 384, 194 NE2d 193, we believe Defendant, by electing to present evidence in his own behalf, waived any possible error in the ruling of the court on the motion for directed verdict. Section 115-4(k), chapter 38, Ill Rev Stats 1965, although enacted after the Washington and Slaughter cases, supra, does not purport to make any change in the law as theretofore existing and offers no support for Defendant’s contention that the principles of Washington and Slaughter, supra, should be overturned.

Defendant next argues that the court erred in failing to grant his motion for the separation of witnesses. It appears from the record that Defendant requested the court to enter an order prohibiting the witnesses who had testified from communicating with witnesses who had not yet testified, asserting that the credibility of the witnesses could be tested only in the absence of such communication. While the trial court refused to enter a formal order to this effect it does appear that counsel was ordered to control the witnesses. We believe that the directions of the court were sufficient to protect the rights of the Defendant. Furthermore the record fails to show that in fact such direction was violated by communication by or among the witnesses or that if any communication took place the rights of the Defendant were prejudiced thereby.

Defendant next argues that the court erred in the giving of an instruction relating to the possession of burglary tools. Each party is entitled to have the jury instructed on his theory of the case. Defendant based his defense on that of alibi. No claim is made that the jury was improperly instructed on this defense and we do not believe that the instruction in question was prejudicial to the assertion of such defense.

Lastly, Defendant argues that the evidence fails to establish his guilt beyond a reasonable doubt. Several police officers testified Defendant was discovered and apprehended in a burglarized dry cleaning store. Forcible entry had been made into the premises and according to the officers, Defendant was discovered hiding under a rack of suits with burglary tools at his side. Defendant directs our attention to inconsistencies in the testimony of the officers such as differences in estimates of distance from the safe to the point where the Defendant was allegedly discovered and differences in the location of the burglary tools. Such inconsistencies are matters affecting the credibility of the witnesses and are properly weighed and considered by the jury. However such inconsistencies do not establish that the testimony of any particular witness or the testimony of the witnesses viewed as a whole is inherently improbable.

The principal area in which Defendant argues the evidence fails to support his guilt, is that relating to Defendant’s alibi. According to Defendant, his alibi was unimpeached and hence his conviction cannot be permitted to stand. Defendant testified the burglary took place at 2:30 a. m. At 3 a. m. he was in a restaurant a considerable distance from the scene of the offense. Defendant’s presence in the restaurant at 3 a. m. was corroborated by a waitress. Defendant asserts that he was arrested about 4:30 a. m. while walking along the street a short distance from the burglarized store. According to the police officers they were called to the scene about 4:30 a. m. and discovered and arrested Defendant in the burglarized premises. Defendant’s alibi thus depends on whether the burglary occurred at 2:30 a. m. as he contends or at 4:30 a. m. as shown by the testimony of the officers.

Defendant’s contention that the burglary occurred at 2:30 a. m. is based on the testimony of Blosser, who testified for the People. Blosser’s residence was located about 30 feet south of the cleaning establishment and such establishment was visible from the witness’ bedroom. He testified that he had been sleeping, that he awoke and in looking out his bedroom window he observed a person coming out of the dry cleaning store. The witness called the police and shortly thereafter the police arrived. According to the witness he thought it was about 2:30 a. m., but he admitted that he had not looked at a clock and had no way of confirming the actual time. On this state of the evidence we believe that the jury could have concluded that Blosser was honestly mistaken as to the time of the events to which he testified and accordingly Defendant’s presence elsewhere at 3 a. m. did not constitute an alibi. This being the case we believe the verdict of the jury is amply supported by the evidence.

For the foregoing reasons the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

ALLOY, P. J. and HOFFMAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Abney, Defendant-Appellant.
    Gen. No. 67-9.
    Fifth District.
    December 20, 1967.

      James T. Garrison, of Marion, for appellant.
    Kenneth Hubler, State’s Attorney, of Marion, for appellee.
   PER CURIAM.

Defendant appeals from a judgment of the Circuit Court of Williamson County, Illinois, denying his Petition for Writ of Recovery filed under the provisions of chapter 38, section 105-9, Ill Rev Stats 1965.

On February 23, 1962, defendant was declared to be a sexually dangerous person and was committed to the custody of the Director of Public Safety. On June 5, 1964, he filed a Petition for Writ of Recovery which recited the reason for his detention and alleged that he had become cured and was no longer a sexually dangerous person. Defendant also asked that psychiatrists, other than institutional, be appointed to examine him and report to the court. He requested a jury trial pursuant to the Sexually Dangerous Persons Act, the appointment of counsel other than the Public Defender, and an opportunity to be present at the hearing on his petition. On July 30, 1964, the State’s Attorney filed a Motion to Dismiss the Petition. Nothing further was done by the court or by the State’s Attorney on this matter until November 16, 1966, at which time the acting clerk of the court wrote to the Director of the Department of Public Safety for the “psychiatric ATC examinations of this defendant.” A Special Progress Report on defendant was filed on November 29, 1966, and on November 30, 1966, the court set the application for discharge for hearing. The hearing was had on January 5, 1967, and the court denied the Writ of Recovery requested by defendant. The court sat without a jury, the defendant was not present at the hearing, and there had been no independent psychiatric examination of defendant. Counsel other than the Public Defender had been appointed for the defendant.

Defendant first contends that the trial court erred in not granting his request for a jury trial and relies on People v. Olmstead, 32 Ill2d 306, 205 NE2d 625, wherein the court said at page 314, “It is our conclusion that, upon the filing of defendant’s application for discharge under section 9, the trial court should have appointed counsel to represent this indigent defendant and should have impaneled a jury pursuant to defendant’s jury demand, and held a hearing to determine if the defendant had recovered from the disability responsible for his original commitment. To hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexually dangerous at the sole discretion of the officers of the State. The rights of the individual, as protected by the provisions of this act, do not so intend.” From the foregoing, we conclude that the trial court erred in denying defendant’s demand for a jury trial on his petition for writ of recovery.

Defendant also argues that he is entitled to an absolute discharge because he was deprived of due process of law by the delay of two and one-half years in obtaining a hearing on his petition. It has been repeatedly held that even though proceedings under the Sexually Dangerous Persons Act are called civil in nature, they closely resemble criminal prosecutions in many critical respects, People v. Nastasio, 19 Ill2d 524, 168 NE2d 728.

Because a judgment finding a defendant to be a sexually dangerous person subjects him to incarceration for an indefinite period, due process requires that a hearing on a petition for a writ of recovery should be held within a reasonable time. In People v. Olmstead, supra, the Supreme Court held that the trial court was compelled to hold a hearing on defendant’s application for discharge under the Sexually Dangerous Persons Act even though the defendant had been inarticulate in preparing the application, saying, “to hold otherwise would be to permit the State to forever hold in confinement a defendant found to be sexually dangerous at the sole discretion of the officers of the State.” In the present case the defendant found a worse type of roadblock to his rights — a delay of more than two and one-half years in setting his petition for hearing. If an indigent defendant can be required to wait more than two and one-half years to have a hearing on his petition for recovery when he is being held in the psychiatric division of a penitentiary, with limited writing privileges and no way to obtain an attorney, other than by court appointment, his rights are rendered almost nonexistent. Due process of law requires more than this.

In our examination of the record on appeal we find that the proceedings in which defendant was adjudged to be a sexually dangerous person were not conducted in accordance with the provisions of the statutes. The pertinent parts of the order entered by the trial court upon adjudging the defendant to be a sexually dangerous person read as follows:

“And now on this 14th day of February, 1962, came Carl D. Sneed, State’s Attorney in and for the County of Williamson and State of Illinois and presented to the court a Petition, duly verified, alleging that Paul Abney, defendant in the above-entitled cause, is or is supposed to be a sexually dangerous person within the meaning of the ‘Sexually Dangerous Persons Act’ of the State of Illinois, cited herein as Ill Rev Stats 1961, Chapter 38, Sections 820.01-825, and praying that the court ap0point two qualified psychiatrists to make a personal examination of the said Paul Abney to ascertain whether said person is sexually dangerous. Thereupon the court appoints Dr. Groves B. Smith and Dr. E. Ralph May, qualified psychiatrists, to make such personal examination of the above-named Paul Abney, and, at the request of counsel for the said Paul Abney, appoints Dr. Clarence E. Boyd, qualified psychiatrist, to make a personal examination of the said Paul Abney, said psychiatrists to report their findings, conclusions and recommendations in writing to this court on or before the 28th day of February, 1962.
“Now on this same day the said defendant, Paul Abney, was brought before the court and was informed by the court of the filing of the aforesaid Petition to declare him a sexually dangerous person, and also presented by the court with a copy of said Petition; and the said Paul Abney, being interrogated by the court, stated that he was without funds to employ an attorney to represent him in said proceedings, and the court thereupon appointed Charles D. Winters, Public Defender in and for the County of Williamson and State of Illinois, to represent said defendant.
“And now on this 23rd day of February, 1962, the same being one of the regular judicial days of the February Term A. D. 1962, comes into open court, Paul Abney, together with his counsel, Charles D. Winters, Public Defender as aforesaid, and Carl D. Sneed, State’s Attorney of Williamson County, also being present in open court, the court thereupon delivers to the said Paul Abney in open court a copy of the reports in writing of Groves B. Smith, M. D., E. Ralph May, M. D., and Clarence E. Boyd, M. D., being the psychiatrists heretofore appointed by order of this court as aforesaid, and the said Paul Abney, by his aforesaid counsel, thereupon states to the court that he is ready for his trial to begin.
“And now on this same 23rd day of February, 1962, the People now being here represented by the State’s Attorney, and the said defendant, Paul Abney, being present in his own proper person, as well as represented by counsel, and the trial of this proceeding being here entered upon before the court in this proceeding in open court, no demand for jury having been made by said defendant, the court proceeds to call the case and hear open statements of counsel and evidence. Having heard all of the evidence in this cause and being thus fully advised, the court finds: . . .”

The court thereupon found that the defendant had committed certain sexual acts with different children on several occasions, which findings were in the exact language of the petition filed by the State’s Attorney. After making these findings the court order continued:

“5. That Groves B. Smith, M. D., E. Ralph May, M. D. and Clarence E. Boyd, M. D., the qualified psychiatrists heretofore appointed by order of this court, have filed herein their written reports finding the said Paul Abney to be a Sexually Dangerous Person.
“IT IS THEREFORE ORDERED AND ADJUDGED that the said Paul Abney is a Sexually Dangerous Person within the meaning of the ‘Sexually Dangerous Persons Act’ of the State of Illinois, cited herein as Ill Rev Stats 1961, Chapter 38, Sections 820.01-825.”

Although the court order recited that Doctor Boyd had been appointed at the behest of defendant’s attorney, Dr. Boyd’s report indicated that he had examined defendant at the request of the State’s Attorney. To add to the confusion, the concluding paragraph of Doctor Smith’s and Doctor May’s report reads as follows:

“RECOMMENDATION: It is our recommendation that a hearing be held and that the combined reports of the psychiatrist examining for the defense as well as the present examiners be presented to the Court with a view to his being placed under the Guardianship of the Director of the Department of Public Safety as an individual who has a mental state that is in need of treatment.”

Although the trial court’s order recites that it heard all of the evidence in the case and then made its findings, a careful search of the record discloses that no witness testified to any of the crimes the defendant is charged with and no doctor actually testified as to the defendant’s mental condition. In fact, the record does not show that the doctors’ reports were even introduced into evidence. We conclude that the court’s findings and judgment were not sustained by any evidence in the record. People v. Pearson, 65 Ill App2d 264, 212 NE2d 715.

In People v. Fish, 36 Ill2d 220, 221 NE2d 637, the Supreme Court held that the provisions of the Civil Practice Act apply to appeals in proceedings of this nature, and, clearly, any appeal from the original judgment is no longer timely. If, however, the trial court failed to follow the required statutory procedures, the judgment entered may possibly be void, in which case the situation here presented is clearly distinguishable from People v. Fish.

We have before us the record of all the proceedings in this cause, and cognizant of our responsibility as a reviewing court for a just result, we invoke the powers conferred upon us by the provisions of article VI, section 7 of the Constitution and of chapter 37, section 32.1, 111 Rev Stats 1965, and review the record of the original proceedings in order that there may be a complete determination of the cause.

In proceedings under the Sexually Dangerous Persons Act (c 38, § 105-1, et seq., Ill Rev Stats 1965) the circuit court exercises a special statutory jurisdiction. The manner in which such special statutory jurisdiction must be exercised is stated in Chicago & N. W. Ry. Co. v. Galt, 133 III 657, 23 NE 425, wherein at page 668, the Supreme Court said: “In the exercise of special statutory jurisdiction, the court or judge exercising it may be regarded as an inferior tribunal, and possessing no power not specially given by the statute, and, therefore, irregularities in the proceeding may be taken advantage of collaterally. The same author from whom we have before quoted, (sec 603,) says: ‘The jurisdiction exercised in condemnation cases is always of a special character. The proceedings are to be conducted according to a certain prescribed mode. It is plain, therefore, that even after the court or tribunal has acquired jurisdiction in the case, errors may be committed which will render the proceeding void. The jurisdiction acquired is simply a jurisdiction to proceed to final determination of the case in the mode provided by law. Any material departure from that mode will be fatal to the proceedings.’ ”

In People v. Pearson (supra), in speaking of proceedings under the Sexually Dangerous Persons Act, at page 267, the court said: “This compels us to find that the legislature clearly intended a rigid adherence to the rules of evidence and that every necessary element of the state’s petition be proved by competent evidence.

“In the instant case the record discloses that the reports of the psychiatrists were no more in evidence than was the petition. They were merely a part of the file necessary to a hearing on the matter and as such could not properly have been considered by the court as evidence of anything contained therein. We believe a fair trial requires that medical evidence must be introduced by direct testimony in order that it may be properly tested by cross-examination. Without such testimony the state produced no evidence to show the existence of any mental disorder or its duration. ... To sustain the judgment of the court below, the record must show proof of the essential elements.”

Where, as here, the record shows that there was no evidence adduced, we hold the judgment rendered to be void.

Reversal of the judgment denying defendant’s petition for a Writ of Recovery without reversal of the prior judgment would place the defendant in the position of being required to sustain the burden of proof that he has recovered, when the judgment upon which his incarceration is based was entered without any evidence to support it. Justice requires that the original judgment be reversed and the cause remanded for a new trial. This defendant has been incarcerated for a period in excess of 5 years and should not be further deprived of his liberty unless adjudged to be a sexually dangerous person upon a hearing conducted in strict compliance with the pertinent statutes and with The People required to sustain the burden of proof of the elements necessary to such adjudication.

We wish to thank the court appointed attorney for the defendant in this case for filing an excellent brief, without fee. We have not had the benefit of a brief from the State’s Attorney of Williamson County. However, the State’s Attorney of Williamson County is invited to file a petition for rehearing under Rule 367 if he disagrees with any of the comments made in this opinion concerning the proceedings in this case.

For the reasons herein set forth, the judgments of the Circuit Court of Williamson County entered on February 23, 1962, and on January 5, 1967, are reversed, and the cause remanded for further proceedings consistent with this opinion.

Judgments reversed and remanded.


author: EBERSPACHER, P. J.

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, Petitioner-Appellee, v. Dominic John Todaro, Geneva Todar, Alton Banking & Trust Company, Donald J. Anderson, Helen D. Anderson, Germania Savings and Loan Association, Ervin Thomas Fichtel, et al., Galloway Outdoor Advertising Co., a Corporation, Chester Dairy Company, a Corporation, and Conrad Hass, d/b/a Hass Garage, Defendants-Appellants.
    Gen. No. 67-45.
    Fifth District.
    December 21, 1967.

      Chapman, Strawn & Kinder, of Granite City, for appellants.
    John W. Hoefert, Special Assistant Attorney General of the State of Illinois, of Alton, for appellee.
   EBERSPACHER, P. J.

This is a condemnation action brought by the Department of Public Works and Buildings of the State of Illinois against numerous defendants, including the appellants herein, Donald J. Anderson and Helen D. Anderson. The jury returned a verdict in the amount of $1,250 in behalf of the defendants-appellants upon which the court entered the judgment from which this appeal is taken.

The condemnation proceedings were instituted in order to secure the necessary real estate for a project known as the Milton Road improvement in Alton, Illinois. The petition for condemnation was filed November 22, 1965. The defendants, Donald J. Anderson and Helen D. Anderson, filed a cross-petition for damages to land not taken and the trial commenced on September 22, 1966. The property sought to be obtained from the Andersons is a strip 8feet wide and 100 feet long on the east side of their property. It further sought to obtain two temporary construction easements, one 10 feet by 10 feet and the other 10 feet by 22 feet. The Anderson property consists of two improved lots. The first lot is improved with a brick structure. The structure consisted of two three-room apartments on the second floor, the defendants’ six-room residence on the ground floor and a basement apartment. The second lot is improved with a brick structure containing six one-room efficiency apartments. The testimony concerning the value of the lots on November 22, 1965, ranged from $74,843 to $77,500. Two expert witnesses for the State each valued the property at $77,000 while the two witnesses for the defendants valued the property at $74,843 and $77,500, respectively.

However there was considerable difference in the testimony concerning the diminution in the value of the properties as a result of the condemnation. The first witness for the State valued the strip taken by condemnation at $990 and the easements at $150. The other State witness valued the strip at $940. On the other hand the first witness for the defense testified that the value of the defendants’ property would be diminished by $18,710. He valued the construction easements at $500. It appears that his testimony was based on his opinion that the property would be diminished 25% in value by reason of the taking. No specific value was placed on the strip itself. Likewise the second witness for the defendants, which it might be noted was the defendant, Donald J. Anderson, valued the diminution to his property at $18,-050. Upon the testimony the jury returned a verdict of $1,250 for the taking and nothing for damages to the remainder.

The defendants urge in their appeal that the court erred in its failure to grant the defendants’ motion for a new trial based on an alleged prejudicial newspaper article published during the trial; in its failure to strike the testimony of one of the State’s witnesses; in one of its instructions to the jury; and its entry of judgment on the verdict which the defendant alleges is so inadequate as to indicate bias and prejudice on the part of the jury.

We shall consider the defendants’ contentions in the order stated. First, did the court err by not granting the defendants’ motion for a new trial based upon the newspaper article published during the trial ?

During the course of the trial the jury was taken, under supervision of the court, to view the defendants’ premises. That evening an article and photograph appeared in the Alton Evening Telegraph, a newspaper of general circulation in the Alton area, concerning the condemnation proceeding. The article contains certain comments about the case made by the mayor of Alton which the defendants allege is prejudicial to the defendants.

The next day, prior to the resumption of the trial, a conference was held between court and counsel at which time counsel for the defendants called the court’s attention to the newspaper article and asked the court to interrogate the jury as to whether any of them had read the article and if so to seek to determine what effect the article had on the individual jurors. The defendants’ counsel further requested that after the court’s inquiry that he be afforded the opportunity to again retire to chambers to make any motions that he deemed appropriate. The court granted the motion and from its interrogation, it was determined that four of the jurors had seen the picture and article, but three of the four had only looked at the picture but not read the article. The photograph depicted the jurors at the scene of the defendants’ property viewing the premises. Only one of these four jurors stated to the court that she had read the article. That juror further informed the court that the article had made no impression on her and that it would not affect her in her deliberation. After concluding his interrogation of the jurors with reference to the newspaper article, the court inquired of both the petitioner’s attorney and these defendants’ attorney as to whether either of them would like to make further inquiries of the jurors; both positively stated they would not. The court then asked the defendants’ counsel if he would like to make any motion outside the presence of the jury to which counsel replied that he would not in view of the responses of the jury.

In light of the above, there is no need to pass on whether the article was prejudicial to the defendants. Whatever error the court may have made was waived by the defendants. The error, if any, must be preserved by timely action in the trial court. Richman Chemical Co. v. Lowenthal, 16 Ill App2d 568, 149 NE2d 351 (1958).

The defendants’ second contention, that the court erred in failing to strike the testimony of one of the expert witnesses of the State because of his method of appraisal, is also without merit. Here again the defendants neither objected to testimony nor moved that the court strike the testimony. The defendants also failed to specify the alleged error in their post-trial motion which accordingly precludes the assignment of error for the first time on review. Richman Chemical Co. v. Lowenthal, supra. Chapter 110, section 68.1(2), Ill Rev Stats 1965.

The defendants’ third allegation of error concerns the giving of petitioner’s Instruction No. 10, (IPI 300.49). The instruction provided:

“In determining the fair cash market value of the remainder after the taking, you may consider any benefits or detriments from the proposed public use, proved by the evidence, which increase or decrease the fair cash market value of the remainder.”

The basis of the defendants’ objection is that no evidence was offered upon which the jury could find that a benefit resulted to the defendants’ property from the proposed public use.

It is our opinion that the evidence shows a real and substantial benefit to the defendants, and not a chimerical or speculative one. The Milton Road improvement for which the defendants’ property was needed consisted of widening the road from 18 feet to 44 feet with placement of curbs and a sidewalk in front of the defendants’ premises. The evidence further shows that at the present time there is an open ditch in front of the defendants’ premises and the walkway leading from their apartments leads into the open ditch. We believe that this increased accessibility was a proper consideration bearing upon the question of damage and benefit to the defendants’ property. Cuneo v. City of Chicago, 400 Ill 545, 81 NE2d 451 (1948).

The defendants’ last allegation of error is that the award of the jury is so inadequate as to warrant a new trial. As stated previously, two witnesses testified for the State and two witnesses testified for the defendants on the question of value. The opinions varied from $940 to $18,710. The compensation awarded by the jury was $1,250 for the taking and nothing for damages to the remainder. As stated before, there was adequate evidence for the jury to find no damage to the remainder in light of the benefit to the defendants’ property resulting from the improvement. The wide variance of value ascribed to the property is not unusual in condemnation cases. The award for compensation was within the limits of the testimony. Damages awarded by a jury in a condemnation proceeding will not be disturbed where the evidence is conflicting, the jury has viewed the premises, and the amount of compensation fixed is within the range of evidence, unless there appears to have been a clear and palpable mistake or the verdict was the result of passion or prejudice. Forest Preserve Dist. v. Galt, 412 Ill 500, 107 NE2d 682 (1952). We do not find a clear and palpable mistake, or any evidence of passion or prejudice.

For the foregoing reasons the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lealer Mae Rutledge, Defendant-Appellant.
    Gen. No. 51,064.
    First District, Third Division.
    November 24, 1967.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Defendant Lealer Mae Rutledge appeals from a conviction for possession of narcotics. In a bench trial the parties stipulated as follows:

That if the two arresting officers were called, they would testify that they searched the defendant’s apartment with a warrant; that they found two tinfoil packages of white powder which they field tested, getting a positive reaction, and that they placed the defendant under arrest and took the two packages to the Crime Laboratory; that if chemist John McDonnell, of the Crime Laboratory, were called, he would testify that on the same day as the defendant’s arrest, the two arresting officers delivered to him (McDonnell) two tinfoil packages containing white powder and that “his examination indicated that the packages contained heroin.”

Defendant contends first that the stipulated testimony of McDonnell is not sufficient to establish beyond all reasonable doubt that the items tested were narcotics. To support her contention she cites People v. Ortega, 82 Ill App2d 49, 226 NE2d 426. In that case the court held that a stipulation that the chemist would testify that the substance tested “purports to be” heroin was not sufficient to establish beyond a reasonable doubt that it was in fact heroin. The court based its decision on the meaning of the word “purports.” In the instant case the language in the stipulation was that the chemist would testify that “his examination indicated that the packages contained heroin.” (Emphasis added.) Among the many meanings given the word “indicate,” Random House Dictionary of the English Language, 1966 Ed, shows “to point out; to show; to make known.” That is the sense in which the word was used here. It was the chemist’s way of saying that the examination revealed that the packages contained heroin. It is sufficient.

Defendant’s second contention is that the evidence fails to prove that the packages tested by the Crime Laboratory were the same packages confiscated by the arresting officers in her apartment. To support this contention she cites People v. Maurice, 31 Ill2d 456, 202 NE2d 480. In that case it was stipulated that one police officer would testify that he obtained the evidence from the defendant and that the chemist would testify that he received a packet which contained heroin from another officer who was the first officer’s partner. The case was decided on the basis of a failure by the State to show continuity of possession, since there was no link shown between the police officer who confiscated the package and the police officer who gave a package to the chemist for analysis. In the instant case the two officers who found the packages took them immediately to the chemist. This was an unbroken chain sufficient to establish continuity of possession. People v. Davis, 33 Ill2d 134, 210 NE2d 530; People v. Collins, 25 Ill2d 302, 185 NE2d 147; People v. Polk, 19 Ill2d 310, 167 NE2d 185.

The evidence was sufficient to establish beyond reasonable doubt that the packages in question contained heroin, and the judgment is accordingly affirmed.

Judgment affirmed.

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


text:
    William F. Sanaghan, d/b/a Local Wall and Floor Tile Company, Plaintiff, v. Lawndale National Bank, Trustee Under Trust No. 4075, Kavanagh Construction Company, Inc., and Investors Savings and Loan Association, Defendants and Counter-DefendantsAppellees, and Sammy Grant, d/b/a Sammy Grant Drywall Company, Defendant and Counter-Plaintiff-Appellant.
    Gen. No. 51,090.
    First District, Third Division.
    November 24, 1967.

      Ross and East, of Chicago (James East and Warren R. Ross, of counsel), for appellant.
    Thomas J. Walsh, A. E. Peterson, Lawrence Sulzbacher, Theodore C. Argiris, and Marvin L. Trainer, of Chicago, for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a summary decree dismissing a counterclaim for the enforcement of a mechanic’s lien by Sammy Grant, doing business as Sammy Grant Drywall Company, against property owned by the Lawndale National Bank (Lawndale) as trustee. The issue presented is whether a party may under the provisions of the Mechanics’ Lien Act enforce a lien for labor or material furnished to a subcontractor, notwithstanding the fact that the subcontractor had procured payment in full of the contract price by means of a false affidavit. Ill Rev Stats, c 82, §§ 1-39 (1965).

The Lawndale National Bank as trustee entered into a contract with Kavanagh Construction Company, Inc., as general contractor to erect a large apartment building on land owned by it in Harvey, Illinois. To finance the construction, Lawndale mortgaged the premises to Investors Savings and Loan Association (Investors). Investors, following customary practice in the construction industry, withheld the mortgage proceeds and disbursed them on behalf of the owner as construction progressed on the building.

On April 30, 1963, Kavanagh submitted to Investors a sworn statement setting forth the names of all subcontractors and the amounts due or to become due to them. The statement showed that the plastering contract (for which drywall was later substituted) had been let to Lucky Star Decorating, the trade name of one Keith Mel-horn, for $6,800. On May 8, 1963, Sammy Grant entered into an oral subcontract with Melhorn, by the terms of which Grant was to furnish drywall construction, labor, materials and tape for the sum of $6,800.

On June 24, 1963, while construction was progressing, a partial payment was made by Investors to Kavanagh, which included $2,800 on account of the drywall contract. Supporting this payout was a partial waiver of lien executed by Melhorn, acknowledging receipt of this amount. On August 1, 1963, Kavanagh requested further progress payments and authorized a final payment to Melhorn in the sum of $4,000. Supporting this payout was the sworn statement of Melhorn setting forth that all material for the performance of the contract had been furnished by Dolton Gypsum Supplies, Inc. and that all labor had been furnished by Lucky Star Decorating. This statement was accompanied by final waivers of lien from both Lucky Star and Dolton Gypsum. Relying upon the sworn statements and the waivers of lien, Investors paid $4,000, completing payments on the drywall contract.

The sworn statement of Melhorn was false in that it omitted the claim of the appellant Sammy Grant. On October 1, 1963, two months after payment had been made to Melhorn, Sammy Grant served on Lawndale, Investors and Kavanagh notice of his claim for lien, stating he completed work on the premises on September 16, 1963, and that there was a balance of $2,800 due him on his agreement with Melhorn. Payment was refused on the ground that full payment of the drywall contract had been made to Melhorn and that prior to the receipt of the notice of Grant’s claim, full payment had been made to the general contractor of all moneys due for construction of the building.

Grant’s claim for lien is not contractual, but rests entirely on the statute. The statute is comprehensive. It defines the rights and responsibilities of parties generally involved in construction contracts — the owner and his disbursing agent on one side and, on the other, in any project of considerable size, the general contractor, subcontractors and the more numerous class of those performing labor and providing material for the subcontractors. Many or all of these subcontractors and sub-subcontractors may be unknown to and undiscoverable by the owner. The statute recognizes this. Thus section 5 provides that the owner must demand a sworn statement from the general contractor, setting forth the names of all parties furnishing labor and materials and the amounts due or to become due to each, before any payment is made to the contractor. Section 22 provides that any subcontractor shall, as often as requested by the owner, provide a statement of the persons furnishing labor and materials to him and how much is due or to become due to them. Section 32 provides that no payment to the contractor shall be regarded as rightfully made as against subcontractors and parties furnishing labor or materials, if made by the owner without exercising the rights and powers conferred upon him by sections 5 and 22. If the subcontractors or persons furnishing labor or materials to them are not satisfied to rely upon the protection afforded by the foregoing sections, then section 24 authorizes direct notice to the owner at anytime after the making of the subcontract and requires such direct notice within 60 days after completion of the work. The sub and sub-subcontractors are given the opportunity to bring their claims to the attention of the owners — that is, by relying on those above them to give notice in the statements required by sections 5 and 22 or by direct notice.

On the other hand, the owner who complies with the provisions of the statute is protected. Section 21 provides that the owner shall not be required to pay a greater amount for the complete building than provided in the original contract, unless payments are made to the contractor in violation of the rights of other parties to be benefitted by the act. Section 27 provides that the owner shall not be liable to a laborer or subcontractor whose name is omitted from the statements required by sections 5 and 22 unless previous to his payment to the contractor, he is notified of such claim.

The appellant Grant, a sub-subcontractor, as disclosed by his pleadings and affidavit in opposition to the motion for a summary decree, made his contract with Mel-horn, not the general contractor, and falls within the class of those providing labor or materials to a subcontractor— the class most remote from the owner. His rights to a lien arise by virtue of section 22. The statement required by this section was requested by Investors acting for the owner and false though it was, it was presented by Melhorn prior to final payment of the drywall contract.

Appellant argues that Lawndale and Investors failed to comply with section 5 of the statute by not requiring from the general contractor a current sworn statement prior to making final payment on the drywall contract. He contends that a question of fact exists as to whether the general contractor knew or should have known that Sammy Grant was performing work on the premises, that this knowledge was chargeable to the owner, and that in any event if the general contractor knew of his presence and if the owner had required a current sworn statement, knowledge of his claim would have come to the attention of the owner. He does not contend that either Lawndale or Investors had actual knowledge of his claim prior to final payment on the contract. There is nothing in the Mechanics’ Lien Act which can be construed as providing that mere presence of a workman on a job will constitute notice to the owner on which a mechanic’s lien may be based. Nor can the knowledge of the contractor be imputed to the owner. They are essentially adverse parties under the statute. Lack of knowledge of the appellant’s claim by the owner is conceded here, and the knowledge of the contractor is not a material fact in this dispute.

Under the circumstances of this case it does not appear that section 5 placed an affirmative duty on the owner to require a current sworn statement prior to final payment on the drywall contract. The statement required by this section was furnished to Lawndale and Investors on April 30 and it reflected accurately the subcontracts existing on that date. Section 5 simply calls for a statement to be made prior to any payment of moneys to the contractor. Appellant’s argument would compel us to construe this language as requiring a sworn statement to be furnished by the contractor before each payment. There is no authority to support this construction.

The owner is not required under section 5 to obtain more than one such statement. If the appellant was not content to rely on the sworn statement of April 30 showing the interest of Melhorn, his contractor, or upon Melhorn’s good faith in making the statement required from him under section 22, the appellant could have given notice directly to the owner at any time after making his contract. He did not do so and no information pertaining to his claim appears to have reached the owner. The rule stated in Berkshire Warehouse Co. v. Hilger & Co., 268 Ill 463, 109 NE 287, is applicable (p 468):

“A reading of the sections of this statute to which we have referred [Sections 5, 22, 24 and 32] shows clearly that it was intended that the owner should be protected if he used reasonable precautions in following the statutory provisions; that if the contractor’s affidavit was in the form required by the statute, even though it was false, the owner was protected, as against sub-contractors, if he had no knowledge or notice of the falsity of the contractor’s statement.”

Appellant further contends that a party furnishing labor or material to a subcontractor may perfect the lien granted him by section 22 any time prior to the expiration of 60 days after the completion of his contract, and that payment to the subcontractor in reliance upon the latter’s affidavit during this period cannot operate to deprive him of his lien. Both the express provisions of the statute and practical considerations operate against this contention. The statute was drawn to give protection and at the same time enable prompt payment to materialmen and workers on the job site. The statements required by sections 5 and 22 should operate to put the owner on notice and thus protect the materialmen and workers. The inescapable corollary of these provisions in the statutory scheme is that the owner can rely upon the truth of these statements in the absence of other facts indicating their untruth. Thus section 27 provides in part:

“Any payment made by the owner to the contractor after such notice, without retaining sufficient money to pay such claims, shall be considered illegal and made in violation of the rights of the laborers and subcontractors and the rights of such laborers and subcontractors to a lien shall not be affected thereby, but the owner shall not be held liable to any laborer and subcontractor or other person whose name is omitted from the statement provided for in sections five (5) and twenty-two of this act . . . unless previous thereto or to his payment to his contractor, he shall be notified, as herein provided, by such person of their claim and the true amount thereof.’’ (Emphasis added.) Ill Rev Stats, c 82, § 27 (1965).

Section 27 contemplates payment to laborers and materialmen during the 60-day period subsequent to completion of the work. It would be meaningless if it were interpreted in such manner that no payment could safely be made to subcontractors until 60 days after completion of the work, since absolute protection is afforded in any event under section 24 upon expiration of the 60-day period. If security in the payment could not be obtained until the expiration of the 60-day period, it is difficult to see how the financing of such construction could be had. It is common knowledge that the construction industry operates on credit, and this was understood by those who prepared and enacted the Mechanics’ Lien Act. Socially and practically, the interpretation argued for by appellant cannot be justified.

Section 27 must mean therefore that payment within the 60-day period can be made by an owner with safety, unless prior to payment he has notice or knowledge of the existence of other claims. Notice must be given either by way of statements under sections 5 and 22 or by independent notice previous to payment, as provided by section 27. In the absence of such timely independent notice, laborers and materialmen must bear the risk of loss from false statements made by contractors and subcontractors. Knickerbocker Ice Co. v. Halsey Bros. Co., 262 Ill 241, 104 NE 665; John E. Burns Lumber Co. v. W. J. Reynolds Co., 148 Ill App 356. As stated in the latter case (p 360):

“An owner constructing a large, extensive building would find it very difficult to verify the truth of such statements by ascertaining the amounts due to and the names of all employes and material furnishers of the contractors and subcontractors, should he be required to do so in order to protect himself, while it is, comparatively, an easy matter for subcontractors and furnishers of labor and material to protect themselves by notice under the law. Thus, upon a balancing of the hardships and inconveniences between the owner and those to be protected it appears to be more equitable that in case of loss, through an untrue statement, the loss should fall, as appears to be the policy of the law, upon the material furnisher who has failed to give timely notice.”

The equitable and practical considerations mentioned in the Burns case are as valid today as when made. Indeed, there is no other construction that can be placed upon the statute which would harmonize those sections which protect laborers and materialmen with those which protect the owners of property.

Lawndale and Investors properly exercised their rights and performed the obligations imposed upon them by the Mechanics’ Lien Act in securing the sworn statements of the general contractor and the drywall subcontractor. Having had neither notice nor knowledge of the claim of appellant at the time final payment was made on the drywall contract, they are entitled to the protection of sections 21 and 27 of the statute, and the decree is affirmed.

Decree affirmed.

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

       “It shall be the duty of the contractor to give the owner, and the duty of the owner to require of the contractor, before the owner or his agent, architect or superintendent, shall pay or cause to be paid to said contractor or to his order any moneys or other consideration, due or to become due such contractor, or make or cause to be made to such contractor any advancement of any moneys or any other consideration, a statement in writing, under oath or verified by affidavit, of the names of all parties furnishing materials and labor, and of the amounts due or to become due each. Merchants and dealers in materials only shall not be required to make statements herein provided for.” Ill Rev Stats, c 82, § 5 (1965).

       “When the contractor shall sub-let his contract or a specific portion thereof to a sub-contractor, the party furnishing material to or performing labor for such sub-contractor shall have a lien therefor; and may enforce his lien in the same manner as is herein provided for the enforcement of liens by sub-contractors. Any sub-contractor shall, as often as requested in writing by the owner, or contractor, or the agent of either, make out and give to such owner, contractor or agent, a statement of the persons furnishing material and labor, giving their names and how much, if anything, is due or to become due to each of them, and which statement shall be made under oath if required.” Ill Rev Stats, c 82, §22 (1965).


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Mike A. Fargo, Plaintiff-Appellee, v. Alfred E. Engling, Sr. and Alfred J. Engling, Jr., Defendants-Appellants.
    Gen. No. 51,146.
    First District, Third Division.
    November 24, 1967.

      Samuel T. Klaskin, of Chicago, for appellants.
    Barbera and Friedlander, of Chicago (Dom J. Rizzi, A. J. Hardiman, and Donald G. Zerwer, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendants appeal from an order of dismissal of the above cause by the Circuit Court of Cook County entered on September 17, 1962, on the ground that the court lacked jurisdiction to grant plaintiff’s motion to vacate an order of dismissal entered three years prior to said motion.

On February 25, 1959, plaintiff filed a complaint in the Circuit Court of Cook County against defendants, Alfred E. Engling, Sr., and Alfred J. Engling, Jr. The complaint sought damages in the amount of $25,000 for alleged injuries sustained in an automobile collision. On March 26, 1959, defendants answered the complaint and filed a counterclaim against the plaintiff seeking judgment in the sum of $15,000 for injuries sustained in the same collision. After the counterclaim had been filed, the law firm of Querrey, Harrow, Gulanick and Kennedy (Querrey, Harrow) obtained leave to file their appearance as additional counsel to appear for the plaintiff. On September 17,1962, a stipulation to dismiss the counterclaim was filed in court. The stipulation read as follows:

“Stipulation to Dismiss Counterclaim
“It is hereby stipulated and agreed by and between the parties to the above entitled Counterclaim, acting through their respective attorneys, that said Counterclaim be dismissed without costs to either party, all costs having been paid and all matters in controversy for which said Counterclaim was brought having been fully settled, compromised and adjourned.
“Dated this 11th day of September, 1962.
Samuel T. Klaskin
/&/ Samuel T. Klaskin
Attorney for Plaintiff
(Counter)
Querrey, Harrow, Gulanick & Kennedy
By: /$/ Querrey, Harrow,
Gulanick & Kennedy
Attorneys for Defendants.”

It will be noted that Querrey, Harrow signed the stipulation as attorneys for defendants, whereas they had filed an appearance as additional counsel for the individual plaintiff (cross-defendant).

On September 17, 1962, the trial judge entered the following order:

“It appearing to the court that said cause has been settled, and by agreement of the parties:
“IT IS HEREBY ORDERED, adjudged and decreed that the above entitled cause be and the same is hereby dismissed without costs.
Enter: /s/ Cornelius J. Harrington,
Judge.”

. Thereafter, on September 13, 1965, nearly three years after the order of dismissal was entered, the plaintiff moved to vacate the order of dismissal and was given leave to file a petition in support of the motion.

On September 23, 1965, the plaintiff filed a petition in which plaintiff set up that in 1959 the plaintiff filed a law suit against Alfred E. Engling, Sr. and Alfred J. Engling, Jr., case No. 59C 3261. Thereafter the defendants filed a counterclaim against plaintiff. On or prior to September 17, 1962, an agreement was reached between Querrey, Harrow, who represented the plaintiff on the counterclaim, and Samuel T. Klaskin, to settle the counterclaim which was brought against plaintiff. The attorneys entered into the stipulation heretofore set forth to dismiss the counterclaim. The stipulation was presented to the judge and at the same time an order to dismiss was presented. The order of dismissal dismissed the entire cause rather than only the counterclaim.

The petition further alleged that the order did not state that the court was fully advised in the premises, and, in fact, the court was not fully advised in the premises when it entered the order of September 17, 1962. The petition prayed that the order of September 17, 1962, be clarified so that it would pertain only to the counterclaim, as was intended by the parties, or, in the alternative, that the order be vacated and set aside as to the plaintiff, and that the cause be set for trial. Thereafter the defendants filed a motion to dismiss the petition on the grounds that it was not filed within two years after the entry of the order of dismissal, which was entered on September 17, 1962, that it did not appear from the petition that the plaintiff was under legal disability or duress, or the ground for relief was fraudulently concealed from him. The court, after a hearing, vacated the order of dismissal of September 17, 1962, as to the plaintiff, and ordered that the cause upon plaintiff’s complaint be reinstated. The order further overruled the motion by defendants to dismiss the plaintiff’s petition.

The defendants contend that the court lacked jurisdiction to vacate the order of dismissal because it had been entered nearly three years prior to the filing of the motion and petition. The defendants rely on section 72(3) of the Civil Practice Act (Ill Rev Stats 1965, c 110, par 72 (3)). That section provides that a petition to obtain relief from final orders, judgments or decrees after thirty days from the entry thereof must be filed not later than two years after the entry of such order, judgment or decree. It also provides that the time during which the person seeking relief is under legal disability or duress, or the ground for relief is fraudulently concealed, shall be excluded in computing the period of two years.

The plaintiff argues that he is not seeking relief under section 72 and that section 72 (7) reads as follows:

“Nothing contained in this section affects any existing right to relief from a void order, judgment or decree, or to employ any existing method to procure that relief.”

The plaintiff further contends that the order appealed from as it pertained to the plaintiff’s cause of action was void. In support of this the plaintiff argues that a notice of the motion to dismiss the suit, or any part of it, was not served upon the attorney representing the plaintiff in his claim for personal injury and that was in direct violation of the uniform rules of the Circuit Court of Cook County which were in effect at the time.

The defendants answer that the petition to set aside the order of dismissal did not allege that notice of the entry of order of dismissal was not served upon the attorneys for the plaintiff. An examination of the record discloses no notice but that of itself would not prove that the plaintiff did not receive notice. In People v. Evanston Ry. Co., 323 Ill 109, 112, 153 NE 603, the court said:

“This court can only look to the record of the trial court in determining the issues between the parties and the facts proved, and cannot take into consideration facts asserted dehors the record and that are only brought to our attention by mere statements of counsel in the briefs.”

The petition in this case does not allege that no notice was received, and plaintiff cannot rely on failure to receive notice unless it is made a part of the record, despite the fact that the defendants’ attorney (Klaskin) on oral argument stated that he did not know about the wording of the dismissal order until after he was served with a copy of the motion to vacate the order. However, plaintiff cannot rely, as we heretofore stated, upon failure to receive a notice when there is nothing in the record to indicate whether he did or did not receive it.

The plaintiff next argues that his petition to vacate was not in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act, but rather was a motion to expunge from the record a void order which may be vacated after two years.

In Sherman & Ellis, Inc. v. Journal of Commerce and Commercial Bulletin, 259 HI App 453, the court said that it has been repeatedly held that a court may at any time expunge from its record void orders or judgments. In the case before us the stipulation filed by the attorneys representing the defendant to the counterclaim (plaintiff) and the attorney for the defendants and counterclaimants, was strictly limited to a dismissal of the counterclaim. The petition alleges that the law firm of Querrey, Harrow represented the plaintiff on the counterclaim. The attorney who filed the original complaint represented the plaintiff as to that portion of the case. Since the stipulation did not authorize the dismissal of the entire law suit, and since the case was not on the trial call, the court was without jurisdiction to dismiss that part of the case not included in the stipulation. The stipulation did not confer upon the court the power to dismiss the entire case but was limited strictly to the counterclaim. There can be little question that the law firm of Querrey, Harrow was in this case only to defend the plaintiff on the counterclaim, and the order presented by Querrey, Harrow to the court was not only not in conformity with the stipulation presented to the court but was beyond the authority which it possessed in representing the plaintiff.

We believe that the order in question was void insofar as it related to the original claim of the plaintiff, and could be vacated at any time the matter was brought to the attention of the court. This the experienced trial judge did.

Order affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    Emil Rohde, Plaintiff-Appellee, v. William C. Moyer, Defendant-Appellant.
    Gen. No. 51,591.
    First District, Third Division.
    November 24, 1967.
    Rehearing denied December 22, 1967.

      Francis X. Cuisinier, of Chicago (Francis X. Cuisinier and Clarence M. Dunagan, of counsel), for appellant.
    Robert J. Anderson, of Palatine, for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal from a decree in an accounting suit, confirming the master’s report and rendering judgment for the plaintiff in the sum of $32,119.87 plus interest together with costs in the sum of $1724.30.

Defendant was plaintiff’s attorney from 1956 until shortly prior to the filing of this suit in May 1964. He admits in his answer that there were transactions between him and the plaintiff and that plaintiff did on March 25, 1958 endorse over and deliver to him three promissory notes and that he collected the proceeds of such notes in the total sum of $62,821.98 plus interest. Plaintiff charges that the amount of such interest collected is unknown to him. Defendant admits the endorsement and delivery of the notes, as alleged, but in his answer says nothing about the amount of interest collected. He also admits the charge in plaintiff’s complaint that he persuaded plaintiff to convey real estate to him as trustee under a trust agreement, but denies that any improper inference should be drawn therefrom. He also admits that he collected rents from real estate owned by the plaintiff.

The cause was referred to a master to hear the evidence and report his conclusions of law and fact. After extensive hearings the master reported that defendant owed plaintiff the sum of $32,119.87; that defendant had violated every concept of the lawyer-client relationship and had used that relationship to divert to his own use property of the plaintiff, taking title thereto as trustee with himself as beneficiary; that he was also the attorney for another client whose interests were diametrically opposed to that of the plaintiff and that he did not divulge that relationship to the plaintiff, but hid it by the use of dummy practices; that he was a principal in dealings with the plaintiff which he failed to disclose to the plaintiff, and that he failed to provide the plaintiff with customary and satisfactory accountings. In due course, objections and exceptions to the master’s report were overruled and the decree entered.

In this court the only points raised by the defendant in his Points and Authorities are that plaintiff had the burden of proving his right to the desired accounting; that in an accounting suit there must first be a hearing to determine whether there is a right to an accounting and that if a right to an accounting is established, the court will enter an interlocutory decree and refer the cause to a master for an accounting. He does not defend on any meritorious basis. The sole question before us therefore is whether the court erred in not having a hearing to determine whether there was a right to an accounting before ordering the accounting and whether the court’s failure to do so was such error as will require a reversal and remandment.

It appears that the defendant William C. Moyer was employed by plaintiff Emil Rohde as his attorney in 1956. Rohde was a farmer who had had only an eighth grade education. He originally employed the defendant to aid him in the sale of his farm for the sum of $150,650. The proceeds of that sale were used to purchase four parcels of real estate. Defendant was plaintiff’s lawyer in various real estate transactions. Plaintiff relied heavily on his judgment and advice and allowed him a great deal of latitude in managing his property. Defendant also handled plaintiff’s tax returns.

Defendant was also engaged as attorney for one Francis S. Noonan and received retainers from Noonan in 1959 and 1960, when Noonan constructed buildings on each of the four parcels of real estate purchased by Rohde. Defendant was also the registered agent for Noonan’s corporation in 1957. It was with respect to defendant’s actions in the purchases hereinbefore mentioned and his relationship to Noonan that the master made the comments hereinbefore set out with respect to the defendant’s relationship to the plaintiff.

In an accounting suit there must of course be a determination of the plaintiff’s right to an accounting, but it is not necessary that such determination be made in a hearing separate from that in which the amount due is determined. Southworth v. People, 183 Ill 621, 56 NE 407. Derkers v. Vaughan Co., Inc., 348 Ill App 407, 109 NE2d 262. Moreover, the need for a separate order of reference for the purpose of determining the right to an accounting is completely eliminated in the instant case, since the facts warranting an accounting are revealed in the pleadings. In such cases the right to an accounting may be determined by the chancellor without reference to a master. Wilcoxon v. Wilcoxon, 111 Ill App 90. The chancellor acted properly, and the judgment should be affirmed.

Judgment affirmed.

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