text:
    Jean H. Haley, et al., Plaintiffs-Appellants, v. Merit Chevrolet, Inc., a Corporation, United States Rubber Company, a Corporation, Defendants-Appellees, and General Motors Corporation, a Corporation, Defendant.
    Gen. No. 49,980.
    First District, First Division.
    January 17, 1966.

      Heller & Morris, of Chicago (Jerrold L. Morris, of counsel), and Jerome H. Torshen, of Chicago (Jerome H. Torshen, of counsel), for plaintiffs-appellants.
    Ross and Jacobson, and Hinshaw, Culbertson, Moelmann & Hoban, all of Chicago (John M. Moelmann and D. Kendall Griffith, of counsel), for-Merit Chevrolet, Inc., defendant-appellee; Chadwell, Keck, Kayser, Ruggles & McLaren, of Chicago (James E. Hastings, David J. Gibbons, and Richard E. Wiley, of counsel), for United States Rubber Company, defendant-appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

Plaintiffs Jean H. Haley and Frances Mongo were injured when the 1961 Chevrolet in which they were riding went out of control and crashed in the State of Iowa on June 10, 1961. Mrs. Haley, the owner of the car, was driving at the time, and Mrs. Mongo was a passenger. Alleging that the accident was proximately caused by defects in one of the tires, in the steering column, and in related parts, the plaintiffs filed suit against Merit Chevrolet, Inc., the dealer who had sold the car to Mrs. Haley, against General Motors, Inc., the manufacturer of the car, and against U. S. Rubber Company, the manufacturer of the tire. The complaint, as later amended, sought relief in three counts on theories of negligence, implied warranty, and express warranty. General Motors filed its answer while the other two defendants moved for dismissal. The trial court held that the two counts based on warranty theories did not state a cause of action against Merit or U. S. Rubber, and dismissed those counts as to those defendants. It further held that the negligence count was improper in form, and offered the plaintiffs leave to file a second amended negligence count. But plaintiffs elected to stand on their entire amended complaint, and Merit and U. S. Rubber were then dismissed from all three counts. The court stated in its order that there was no just reason for delaying enforcement or appeal, and this appeal followed. The only defendants before us are Merit and U. S. Rubber; the claim against General Motors remains pending in the trial court.

Initially, we are confronted with a motion filed by these two defendants to dismiss the appeal on the grounds that leave to file an amended complaint was erroneously granted by the trial court, and that therefore the subsequent order which dismissed these defendants from the amended complaint, and which is here on appeal, is a nullity. Motions by Merit and U. S. Rubber to dismiss the original complaint as against them for not stating a cause of action were granted following an ex parte hearing June 20, 1963. On August 30, 1963, the attorney for the plaintiffs moved to vacate those dismissal orders, and on September 3, 1963, filed a verified petition alleging that he was ill on June 20, 1963, that he had instructed his office to call the other side to request a continuance, and that he learned of the dismissals on August 12, 1963, a date for which depositions had been scheduled in the case. On December 30, 1963, the trial court vacated the June orders, over the contentions of Merit and of U. S. Rubber that it was too late for it to do so, and again heard argument of the cause. By orders of that date, the complaint was stricken as against Merit and U. S. Rubber, with leave granted to plaintiffs to file an amended complaint.

Defendants claim that the court was without jurisdiction to vacate the June orders because more than thirty days had elapsed since they were entered. It is true that relief from valid final orders after 30 days from the entry thereof may be had only upon petition in accordance with the provisions of § 72 of the Civil Practice Act (111 Rev Stats c 110, § 72(1) (1963)). But this suit involves both multiple parties and multiple claims, and therefore under subsection 50(2) of the Civil Practice Act (111 Rev Stats c 110, § 50(2) (1963)), the court may enter a final order as to one or more but fewer than all of the parties or claims only upon an express finding that there is no just reason for delaying enforcement or appeal. The statute further provides:

In the absence of that finding, any order, judgment, or decree which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not terminate the action, is not enforceable or appealable, and is subject to revision at any time before the entry of an order, judgment or decree adjudicating all the claims, rights and liabilities of all the parties. (Ill Rev Stats c 110, § 50(2) (1963)). (Emphasis added.)

The rights and liabilities of the third defendant in this case, General Motors, have not been adjudicated, and the June orders did not include the express finding described in the statute.

It is admitted by defendants that for this reason the June orders were neither final nor appealable, and were subject to revision. Their primary contention is that the power to revise the orders does not embrace the power to vacate them, because in drafting subsection 50 (2) the Legislature eschewed the expression “set aside,” which appears in other subsections of section 50, in favor of the word “revision.” It is further argued that the June orders were by their nature final orders, despite the absence of the 50(2) formula, because they were dispositive of the claims against these two defendants. Finally, it is alleged that even if the court had the power to vacate the June orders, the petition filed by plaintiffs’ attorney did not set forth grounds adequate to support such an order.

By the specific language of the statute, the Legislature provided that orders such as those in this case, are not final and are subject to revision. We conclude that under this language any and all portions of such orders are subject to subsequent revision by the court, and that therefore it is within the trial court’s discretion to vacate the entire order. The Legislature’s failure to use other language making this rule even more explicit does not require an opposite conclusion. Furthermore, we conclude that, in view of the allegations made in the petition of plaintiffs’ counsel, to which no counteraffadivits were filed, the trial court did not improperly exercise his discretion in vacating the June orders. This court therefore has jurisdiction to hear this appeal.

On appeal from an order dismissing a complaint, all facts well pleaded are taken as true. The amended complaint alleges in substance the following: Mrs. Haley purchased a 1961 Chevrolet from Merit in Chicago on April 7, 1961. The car had been manufactured by General Motors, and was equipped with tires manufactured by U. S. Rubber. On June 10, 1961, Mrs. Haley was driving her automobile on Highway No. 60 in Iowa, and Mrs. Mongo was a passenger. While driving, they heard a bumping noise in the front end of the car. They stopped and looked at all of the tires, but saw no break. As they proceeded, there seemed to be a noise in the front and under the hood, and then suddenly there was a snap or clatter in the front end and the steering wheel came loose from the dashboard and dropped into the lap of the plaintiff. This caused her to lose control of the car, and it proceeded across two embankments and crashed.

Count I of the amended complaint, seeking recovery on a negligence theory, alleges that the defendants before us carelessly and negligently failed to inspect and test the tires and steering column at its attachment to the dashboard; failed to properly inspect and test the vehicle before selling it for use by the plaintiff; manufactured and sold a defective tire; failed to correct the defects in the tire and steering column when inspecting the vehicle for a 1,200 mile checkup, which checkup if properly performed would have revealed said defects; failed to replace the tire, which had a separation in the threads of approximately 10 inches high and 5 inches wide; and failed to provide a proper attachment of the steering column to the dashboard, although the defendant knew or should have known that the band which held the steering column in its place under the dashboard would be insufficient to withstand any ordinary or extraordinary stress placed upon it.

It is further alleged that it was the duty of the defendants, and each of them, to furnish the plaintiff with a vehicle which was in good working condition and free from any defects in material and workmanship; that the plaintiffs had no knowledge of the defects in the tire, steering wheel, and related parts; that while operating the vehicle the plaintiffs were in the exercise of due care and caution for their own safety and well being and the safety and well being of each other; and that the injuries of the plaintiffs were proximately caused by one or more of the defects in the vehicle.

Count II of the amended complaint is based upon an implied warranty theory, alleging that each of the defendants individually warranted, by implication, that the contents and materials in the automobile were safe and fit for its intended use, and free from any defects, and plaintiff relied upon said warranty, which was breached by each defendant by the presence of defects in the automobile.

In Count III, both plaintiffs assert a claim against Merit alone on the strength of an alleged breach of an express warranty given by Merit to Mrs. Haley with the purchase of the automobile.

In determining whether or not the amended complaint states a cause of action against these two defendants, the fundamental issue is whether the absence of privity of contract between Mrs. Mongo and either defendant, and between Mrs. Haley and U. S. Rubber bars recovery between those parties. The problem is complicated by the fact that the parties put into issue, in the trial court and in the briefs, the question of whether the case should be governed by the law of Illinois or by that of Iowa. After a review of the authorities of both jurisdictions, we have concluded that, while the choice of law may have been of some significance at the time this case was tried, the subsequent decision of the Illinois Supreme Court in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182, makes the outcome of this case identical under either Illinois law or Iowa law.

In Suvada, the purchaser of a reconditioned truck filed suit against the dealer-manufacturer and against the manufacturer of the brake system incorporated in the truck for damages resulting from an accident allegedly caused by the failure of the brake system. The complaint was grounded upon theories of negligence and breach of implied warranty. The trial court dismissed the implied warranty claim against the manufacturer of the component part, who was not in privity with the plaintiff, but the Appellate Court reversed that order (Suvada v. White Motor Co., 51 Ill App2d 318, 201 NE2d 313). The Supreme Court, after an exhaustive review of the Illinois cases, of cases from other jurisdictions, and of the relevant legal literature, ruled that one who sells on the market a product which, when it leaves his control, is in such condition as to make it unreasonably dangerous is strictly liable in tort to one injured thereby, despite the lack of privity of contract between the seller of the product and the person injured, and despite the fact that no negligence is shown on the part of the seller of the product. We conclude that this holding is dispositive of the question of whether lack of privity is a bar to recovery under Illinois law by either of the plaintiffs to this suit.

The same result as to the privity requirement prevails under the law of Iowa. In State Farm Mut. Automobile Ins. Co. v. Anderson-Weber, Inc., 252 Iowa 1289, 110 NW2d 449, the purchaser of an automobile and his subrogated insurer brought suit against the dealer who .sold the car and against its manufacturer for damages resulting from a fire allegedly caused by defects in the car. The Supreme Court of Iowa, in reviewing a directed verdict in favor of each of the defendants, held that the absence of privity of contract between the purchaser of the automobile and its manufacturer was not a bar to recovery under Iowa law. In contrast to the holding of the Illinois Supreme Court in Suvada that the manufacturer was strictly liable in tort, the Iowa court in State Farm grounded the manufacturer’s liability upon a theory of implied warranty. But in both cases, the defense of the lack of privity of contract was clearly rejected.

Defendants contend that in subsequent cases the Supreme Court of Iowa has limited the holding of the State Farm case, and direct our attention to the case of Hahn v. Ford Motor Co., a 1964 Iowa case appearing at 126 NW2d 350. In that case, the Supreme Court of Iowa held that the State Farm case and cases from other jurisdictions, in passing upon the privity requirement in implied warranty suits, had gone no further,

. . . than to allow recovery for breach of implied warranty in . those situations in which use or consumption of the articles by a person in the relationship of the injured party to the purchaser should have been reasonably anticipated by the manufacturer or seller. (126 NW2d at 353.)

The court explicitly limited its holding to the proposition that there is no implied warranty of fitness from the manufacturer or dealer to members of the general public. We conclude that this language was not intended to exclude recovery by a passenger in the purchaser’s automobile, and that therefore the rejection of the privity requirement by the Iowa cases is intact for purposes of this case.

Defendant Merit contends that the terms of the express warranty given by it to Mrs. Haley at the time of the purchase of the automobile relieve it from liability, whether the suit be grounded upon a tort theory or a theory of implied warranty. The warranty limits the obligation of the Dealer to the repair or replacement of parts in certain limited situations and at its option, and specifically excludes tires and tubes from its terms. A subsequent provision states:

This warranty is expressly in lieu of all other warranties, expressed or implied, and all other obligations or liabilities on Dealer’s part, and Dealer neither assumes nor authorizes any other person to assume for it any other liability in connection with such motor vehicles or chassis.

The liability imposed by Suvada upon the sellers of defective products is a strict liability in tort, and is not based upon the theory of breach of implied warranty. A seller, therefore, cannot protect himself from this liability under Illinois law by expressly negating the existence of any implied warranties. Furthermore, the court in Suvada recognized that sound reasons of public policy were responsible for the extension in a number of jurisdictions of strict liability to the manufacturers of products whose defective condition makes them unreasonably dangerous to the user. To allow the dealer to limit, by contract, his tort liability for such defects in an automobile to the repair or replacement of defective parts would defeat those reasons. We conclude, therefore, that the attempted elimination by the dealer of all obligations other than replacement of defective parts is violative of public policy and void, Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 161 A2d 69.

The Iowa rule on this point is made clear in the State Farm case. Liability was imposed on an implied warranty theory upon the dealer who sold the car, despite language in the express warranty which negates the existence of any implied warranties and which was very similar to the language in the case before us. Furthermore, the Iowa court quoted at length, with approval, from the opinion of the Supreme Court of New Jersey-in Henningsen v. Bloomfield Motors, Inc., 32 NJ 358, 161 A2d 69, including a portion which discusses a dealer’s attempt to frustrate, by means of a disclaimer, the law’s protection for the consumer.

Defendants further contend that the complaint fails to state a cause of action because it does not allege the lack of contributory negligence on the part of plaintiffs. Even assuming that such an allegation is a necessary element for recovery under the Illinois strict tort liability theory or the Iowa implied warranty theory, we are of the opinion that the amended complaint adequately alleges the lack of contributory negligence. Paragraph 7 of Count I alleges that plaintiffs, “without knowledge of the presence of said defects in the tire, steering wheel and related parts, and while in the exercise of due care and caution for their own safety and well being and the safety and well being of each other,” operated the vehicle.

Finally, the defendants seek to sustain the order dismissing the amended complaint on the grounds that it is improper in form because it failed to contain a plain and concise statement of the cause of action, pleaded evidentiary facts and conclusions, included numerous allegations in a single paragraph, and failed to state a cause of action. Under the Civil Practice Act (Ill Rev Stats c 110 (1963)), pleadings are to be liberally construed with the view toward doing substantial justice between the parties. With the adoption of the Civil Practice Act, there has been a definite attempt to abolish the so-called technicalities of common law pleading, Crosby v. Weil, 382 Ill 538, 48 NE2d 386. Section 42 of the Civil Practice Act states, in part, that: “(2) No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.” (Ill Rev Stats c 110, § 42(2) (1963)). In our •opinion, the amended complaint is sufficient to advise the defendants of the nature of the claim and in proper form states a cause of action against each of these defendants. It is true that none of the counts base a claim for recovery on the Suvada theory of strict liability in tort. But the complaint in Suvada itself fails to do so, and yet the Supreme Court affirmed the Appellate Court’s holding that the complaint stated a cause of action. There, as here, the complaint based its claim for relief upon theories of negligence and of implied warranty. The failure to state clearly the Suvada theory therefore does not make the complaint insufficient.

We do not believe the amended complaint should have been preemptorily dismissed. Before the plaintiffs can recover, however, they must sustain their burden of proof as to the elements of their cause of action, and nothing we have said should be construed as expressing any opinion on the merits. Accordingly, the order is reversed and the cause is remanded with directions that these defendants be ordered to plead, within a fixed timé, to the amended complaint.

Order reversed with directions.

KLUCZYNSKI, P. J. and MURPHY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE TRAPP.

license: Public Domain

text:
    Marion J. Katauskas, Plaintiff-Appellee, v. Alex Katauskas, Defendant-Appellant.
    Gen. No. 10,652.
    Fourth District.
    January 18, 1966.
    Dyer, Richmond & Moore, of Hoopeston (Kenneth L. Richmond, of counsel), for appellant;
    Wright and Young, of Danville (William A. Young, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE TRAPP.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee v. Jack Kamsler, Defendant-Appellant.
    Gen. No. 50,049.
    First District, Second Division.
    January 18, 1966.
    Rehearing denied February 1, 1966.

      Bellows, Bellows & Magidson, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Kenneth L. Gillis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a conviction for the crime of theft, with imprisonment in the Illinois State Penitentiary for a term of not less than one nor more than five years.

In June of 1962, Pete Zaslawsky, a partner in Zaslawsky Iron and Metal Company, met defendant, Jack Kamsler, for the first time. Defendant, and one Allen Solomon, drove into Zaslawsky’s place of business in a 1962 Cadillac, presented a business card indicating that they were from the Empire Outdoor Advertising Company and said that they were interested in purchasing steel sheets suitable for building outdoor advertising signs. After Zaslawsky told them that none were available, defendant and Solomon left.

On August 27, 1962, defendant telephoned Zaslawsky and indicated he was still looking for steel. Zaslawsky told defendant that he had 11,000 to 12,000 pounds of rusty, soiled, 20 gauge steel sheets available at $100 per ton. Defendant stated that he wanted to use the steel for signs, so it made no difference whether it was rusty or not. Zaslawsky accepted defendant’s terms of an immediate purchase order with payment by check within ten days. A truck driven by William Gallowich of the L. C. Beck Cartage, picked up the rusty steel sheets from Zaslawsky in two loads on August 28th and 29th. Zaslawsky billed Empire $672.50 and rebilled them monthly.

On August 29th, at 8:00 a. m., following instructions from his office, Gallowich met defendant at 77th and Western near a bowling alley. Defendant looked at the first load of steel and told Gallowich to go to Zaslawsky’s yard and pick up another 7,000 pounds of similar steel. He told Gallowich to take the steel to Ace Steel Supply Company, 1000 West 22nd Street, and wait for a check. Gallowich picked up the second order of rusty steel from Zaslawsky and went to Ace Steel.

Frank Larson, the former treasurer of Ace Steel Supply, testified that he dealt with one Dick Conlon, in August of 1962 for some rusty steel, allegedly rejected by a customer. Larson identified defendant as the man he knew as Conlon. Larson said he and defendant arrived at a price of $35.00 per ton for the rusty steel. Larson made out a check for $241.83 to Empire Manufacturing and gave the check to Gallowich.

Zaslawsky testified that despite efforts to contact defendant and Solomon by telephone and letter from September on, he did not hear from them. He never received payment for the steel. At one point Zaslawsky checked 1964 East 73rd Street and found it to be a storefront and an answering service. In November of 1962 Zaslawsky made a formal complaint against defendant and Solomon.

Catherine Rogers of the Southmoor Secretarial Service, 6760 South Stony Island, testified that she knew defendant and Allen Solomon and performed telephone answering service for them, from the autumn of 1961 until July 20, 1962, and that they used the name Empire Manufacturing and Empire Advertising. On the application for the telephone answering service was the name “Dick Conlon.” When defendant discontinued the Southmoor Service, he gave 2011 East 75th Street, Chicago, as his new address. Owners of telephone answering services at that address, and a subsequent one, 1964 East 73rd, testified that they took calls for defendant, Solomon and Empire Manufacturing.

Irving Nudelman, owner of a Currency Exchange, testified that he cashed the $241.38 check from Ace Steel to Empire. He said he knew defendant and Allen Solomon to be the owners of Empire.

The State then introduced evidence of nine steel transactions with five other steel and metal companies, all of which occurred prior to August 27, 1962. The defense objected to this testimony on the ground that guilt cannot be established by showing that defendant had committed other crimes. The court overruled the objections and allowed the evidence to be admitted.

On August 27, 1962, defendant and Solomon entered into the above described transaction with Zaslawsky Iron. Defendant was charged with theft by deception, theft by unauthorized control, and conspiracy. He was tried by a jury, found guilty of theft and conspiracy and sentenced to from one to five years in the penitentiary on the theft verdict.

It is defendant’s theory of the case that: one, prosecution of this case was barred by virtue of the four-term act; two, that the indictment was insufficient; three, that the trial court should have granted defendant’s Motion for a Bill of Particulars; four, that the trial court improperly admitted into evidence testimony of other crimes; and five, that the finding of guilty was against the manifest weight of the evidence.

The first contention raised by defendant, that prosecution should have been barred by virtue of the four-term act, is without merit. Section 748 of chapter 38 provides that:

Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exercise has been made to procure evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days.

It is defendant’s position that the court which entered the order continuing the cause did not have jurisdiction of the offense in that the offense was a felony and had to be prosecuted by indictment, something which the Municipal Court of Chicago could not do. We disagree with defendant’s contention that the judge who continued the case did not have authority to extend the time for trial to prevent the fourth term from expiring. An assodate judge, after the repeal of sec 357 of chapter 37 of the Illinois Revised Statutes, by Article VI, paragraph 5 of the Illinois Constitution, can try cases based on an indictment. Thus, the court had jurisdiction and could continue the case. The result reached in People v. Jarrett, 57 Ill App2d 169, 206 NE2d 835 (1965), is not applicable to the instant case as it is based on the repealed section.

Defendant’s next contention is that the indictment did not state the offense of theft. It is the State’s position that the indictment was framed in the language of the statute and was sufficient to apprise defendant of the charge against him. Section 16-1 of the Criminal Code of 1961 defines theft as follows:

A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
(c) Obtains by threat control over property of the owner; or
(d) Obtains control over stolen property knowing the property to have been stolen by another, and
(1) Intends to deprive the owner permanently of the use or benefit of the property; or
(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.

Definitions of terms found in the above section are located in sections 15-4 and 15-8 of the Code. Section 15-4 states:

As used in this Part C, “deception” means knowingly to
(a) Create or confirm another’s impression which is false and which the offender does not believe to be true; or
(b) Fail to correct a false impression which the offender previously has created or confirmed; or
(c) Prevent another from acquiring information pertinent to the disposition of the property involved ; or
(d) Sell or otherwise transfer or encumber property, failing to disclose a lien, adverse claim, or other legal impediment to the enjoyment of the property, whether such impediment is or is not valid, or is or is not a matter of official record; or
(e) Promise performance which the offender does not intend to perform or knows will not be performed. Failure to perform standing alone is not evidence that the offender did not intend to perform. 1961, July 28, Laws 1961, p 1983, § 15-4.

Section 15-8 states :

As used in this Part C, the phrase “obtains or exerts control” over property, includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.

It is defendant’s position that because the indictment does not define the terms “deception” and “obtains and exerts control” the indictment did not clearly state the offense of theft. Defendant relies on People v. Chiafreddo, 381 Ill 214, 44 NE2d 888. We disagree with defendant. The aforesaid case only holds that where the Statute creating a crime does not define the acts constituting the crime, the charge must do so with particularity. The Statute involved in the instant case, on which the indictment is based, defines the acts constituting the crime.

Furthermore, in assessing whether an indictment meets the test of reasonable certainty, all the counts of the indictment may be considered. Shoop v. People, 45 Ill App 110 (1892). Four counts of the indictment were available on arraignment to inform defendant of the charge against him. The fact that judgment was not entered on the conspiracy count does not eliminate that count from providing defendant with information of the charge against him. The indictment taken as a whole stated the offense in the language of the Statute and is sufficient.

Finally, the term “deception” and the phrase “obtains or exerts control” are not subject to variant interpretation. While the court lists five meanings for “deception,” none vary substantially from one another.

Defendant’s contention that the trial court should have granted defendant’s Motion for a Bill of Particulars is likewise without merit, inasmuch as defendant’s request was unnecessary. Defendant had already prepared for trial and had his defense formed. People v. Pompey, 53 Ill App2d 118, 203 NE2d 52 (1964).

Furthermore, the Motion for the Bill of Particulars was not timely filed. Section 114.2 (a) reads:

A written Motion for a Bill of Particulars shall be filed before or within a reasonable time after arraignment and shall specify the particulars of offenses necessary to enable the defendant to prepare his defense.

Here the defense was well aware of the content of the indictment, and failure to file the Bill of Particulars until minutes before the trial, was not a filing within reasonable time.

Defendant next contends that evidence, purporting to prove other illegal transactions committed by defendant, was improperly received by the court. We disagree with defendant. Evidence of other independent transactions was properly admitted to establish a criminal scheme or design. The law is clear that while guilt cannot be established by showing that a defendant has committed other crimes, evidence of other similar crimes is admissible when it shows a common scheme, design or plan embracing the commission of several crimes so related that the proof of one tends to prove the others. People v. Popescue, 345 Ill 142, 177 NE 739 (1931). The State proved that defendant, and co-defendant Solomon, told Pete Zaslawsky that they were in the business of building signs, and wanted to purchase metal for that purpose. Defendant and Zaslawsky agreed that when suitable steel arrived, defendant would pay $672.50 within ten days. Defendant had the steel furnished from Zaslawsky and promptly took it to Ace Steel where he sold it for $241.83. Defendant did not pay Zaslawsky. The State then showed nine other transactions with five other metal companies. In each case, defendant alleged he was in the sign business. In each case, he sold promptly after purchase, and in only one case did he pay the metal sales company. In that case, however, the steel was resold at a loss to defendant. Furthermore, subsequent purchases from the same vendor were not paid for. These transactions occurred between December, 1961 and June of 1962. The transaction with Zaslawsky occurred shortly after, in August of 1962. The similar transactions were relevant to show that defendant was involved in a criminal scheme.

Defendant next contends that the evidence did not support the verdict of guilty of the crime of theft in that the evidence only showed that the property was obtained by defendant from the complaining witness by a sale on credit.

The State contends that the theft Statute prohibits the obtaining of goods or property by false promises of future payment. We agree. The State proved, one, that defendant created a false impression that he was a sign manufacturer, two, that defendant obtained control over the steel, and immediately sold the steel at a reduced price to a bonafide purchaser and three, that defendant’s promise to perform, that is, pay for the steel, was so consistently broken as to show conclusively that defendant never intended to perform. Thus, defendant committed theft in that he intended to, and did, obtain and deprive an owner of his property, by false promises of performance.

Finally, defendant contends that the trial court erred in giving an instruction tendered by the State which, while purporting to define deception in the language of the statute, failed to contain that part of the statute which states that “failure to perform standing alone is not evidence that the offender did not intend to perform.”

The State’s instruction #9 reads as follows:

The court instructs the jury, in the language of the statute, that “deception” means knowingly to create or confirm another’s impression which is false and which the offender does not believe to be true; or to fail to correct a false impression which the offender previously has created or confirmed; or to prevent another from acquiring information pertinent to the disposition of the property involved; or to promise performance which the offender does not intend to perform or knows will not be performed.

Defendant contends the last sentence of subparagraph (e) of section 15-4 of the Criminal Code of 1961 is a most important part of the law defining “deception” and that without that sentence the jury could have found defendant guilty of theft by deception upon the mere showing that defendant failed to perform according to his agreement with Zaslawsky. We disagree with defendant. True, the above sentence should be included in any case where the evidence shows a failure to perform standing alone. Here, however, the evidence shows eight failures to perform on metal purchase contracts, in addition to the Zaslawsky transaction. The jury was not considering a failure to perform standing alone. (Emphasis supplied.) To inform the jury about isolated failures to perform, would only serve to confuse the jury and obscure the weight of the evidence. An instruction which is abstract, and not based upon proof, is erroneous. People v. Pokosa, 342 Ill 404, 174 NE 544 (1930). Here the trial judge properly refused any addition to the instruction.

For the above reasons, the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    In the Matter of the Application of The County Collector for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1960 and Prior Years. Arthur J. Dahlke, Petitioner-Appellant, v. Hawthorn, Lane & Company, Respondent-Appellee.
    Gen. No. 50,389.
    First District, Second Division.
    January 18, 1966.

      Herbert F. Zornow, John E. Toomey and Eugene M. Wiase, of Chicago, for appellant.
    Allan L. Blair, of Chicago, and David H. Armstrong, of Aurora, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This is an appeal from an order, entered December 18, 1964, denying a petition filed under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, Par 72) seeking to set aside an order entered September 4, 1964, which directed the issuance of a tax deed and a writ of assistance.

The parcel of real estate in question is located on the southeast corner of 137th and Illinois Streets, or 10 West 137th Street, in Riverdale, Illinois, and is legally described as:

Lots 1 and 2 in Block 20 in Riverdale, being the Schmidt Subdivision, in Section 33, Township 37 North, Range 14, East of the Third Principal Meridian, in Cook County, Illinois.

The parcel is improved with a one and one-half story frame dwelling facing 137th Street, and a four-room, tar-paper covered cottage in the rear and slightly to the west of the frame dwelling, facing Illinois Street. The first floor of the frame dwelling is occupied by the petitioner herein, Arthur J. Dahlke and his wife, Adeline, and one of their six children. The Dahlkes owned the realty at the time the tax deed was directed to be issued. The second floor is occupied by a niece of Arthur Dahlke, Mrs. Shirley Kramer Fazio and her husband as tenants, and had been occupied by them for 7 years immediately preceding the issuance of the tax deed. The frame dwelling has entrances in both the front and the rear. The four-room cottage in the rear is occupied by Mr. and Mrs. James Little and their son, and had been occupied by them as tenants for 8 years prior to the issuance of the tax deed. Each tenant (the Fazios and the Littles) pays $42.50 per month in rent to the Dahlkes.

On February 5, 1962, an application was filed by the Cook County Collector for judgment and order of sale of the real estate for the delinquent 1960 real estate taxes. The property was sold on February 21st at public auction to the First Lien Company, which received a certificate of purchase therefor. The First Lien Company also paid the 1961 and the 1963 real estate taxes on the property. The period of redemption would normally have expired on February 21, 1964, two years from the date of sale, but the redemption period was extended to August 10, 1964, pursuant to section 263 of the Revenue Act (111 Rev Stats 1963, c 120, Par 744.) On March 31, 1964, the First Lien Company filed an application in the Circuit Court, County Division, praying for the entry of an order directing the County Clerk to issue a deed to the First Lien Company if redemption from the sale should not be made. The application recited, inter alia, that Arthur J. and Adeline Dahlke were the joint owners of the real estate and that the last assessee for taxes was Arthur J. Dahlke. The application did not show who was interested in the property other than naming the Dahlkes as owners and occupants.

The certificate of purchase was sold and assigned by the First Lien Company to the respondent herein, Hawthorn, Lane and Company, on August 10, 1964, and the latter was substituted as applicant for the tax deed.

The application for the tax deed came on for hearing on September 3, 1964, at which time ex parte proceedings were had in which Arthur and Adeline Dahlke were neither present nor represented by counsel. To the application for the tax deed was attached an affidavit made by Mr. Ben Shapiro, which affidavit related to the service of notices of the tax deed proceedings on parties interested in the real estate. Mr. Shapiro did not testify at the hearing in support of his affidavit, but testimony was given by Mr. Erwin Rutz in support thereof. Mr. Rutz identified Mr. Shapiro’s signature and stated that all the matters contained in the affidavit were true and correct to his own personal knowledge, based upon his familiarity with Shapiro’s mode and method of operation, and upon Shapiro’s notes which Rutz had in his possession. Mr. Rutz testified that the affidavit was correct in stating that the parcel was improved with a one and one-half story frame dwelling, that Arthur J. and Adeline Dahlke were its occupants, and that notice of the expiration of the period of redemption had been served upon them as required by law. The notes of Shapiro to which Mr. Rutz was referring appears to be the instruction by the First Lien Company upon Mr. Shapiro to serve Arthur J. Dahlke and Adeline Dahlke, the “joint owners of the property located on the southeast corner of 137th Street and Illinois Street in Riverdale, Illinois.” An order was entered on September 4th which provided, inter alia, for the issuance of a tax deed to the respondent herein, and for a writ of assistance.

On October 23, 1964, Arthur J. Dahlke filed his petition under section 72 of the Civil Practice Act, wherein he alleged that he had not received notice of the expiration of the period of redemption, and that he was unable to say whether his wife had ever been served with such notice, but that he doubted she had because he was unable to rely on her statements due to the fact that she had been mentally ill and had been committed to a psychopathic hospital. He also claimed that there were other occupants of the property who had not been served with notice, and charged that the respondent had committed a fraud in the procurement of the tax deed by filing a false affidavit, and requested that the tax deed be set aside.

Respondent filed a motion to vacate and dismiss the section 72 petition, which motion was denied by the trial court. Respondent thereupon filed an answer to the petition, wherein it alleged the findings of the September 4th tax deed order, and specifically alleged that the court in the tax deed proceedings found that all notices were served as required by law. The answer also alleged other matters both preceding and succeeding the September 4th tax deed order, relating to alleged correspondence and telephone conversations between respondent and petitioner.

Hearing on the section 72 petition commenced on December 2, 1964, at which petitioner presented evidence that he was employed as a truck driver for the Village of Riverdale for the preceding 13 years. Evidence was offered that he worked from 7:00 a. m. until 3:30 p. m., but that he did not get home until 6:00 or 6.30 in the evening due to the fact that each night after work he visits with friends at a tavern. The first notice petitioner claims to have received concerning the unpaid 1960 taxes and the tax deed proceedings in connection therewith, was on October 7, 1964, when a Mr. Simon, real estate agent for the respondent, visited the Dahlke home and informed Mr. Dahlke that the property had been sold for unpaid back taxes. The Dahlkes were given until October 10 to vacate the premises. The same day Mr. Dahlke attempted to locate the old tax bills on the property, and when he was unable to do so he informed his wife that they had better contact an attorney. His wife thereupon went into the bathroom where she slashed her wrists. She was taken to a doctor in River dale and then was committed to the Psychopathic Hospital where she remained for 7 days until discharged by order of court. The reason given by two doctors for her commitment to the Psychopathic Hospital was “chronic brain syndrome with alcoholism and depressive reaction, recent suicidal attempts, slashed both wrists, excessive drinking, poor judgment, depressed, no insight.”

On October 8th Mr. Dahlke again searched for the tax bills and, with the help of his sister, they were found under the table pad of the dining room table, together with letters from the respondent and its attorney, and a copy of the writ of assistance which had been served on Mrs. Dahlke. The same day Mr. Dahlke received a telephone call from the Sheriff’s Office to the effect that he was going to be evicted and that he had better contact Mr. Simon. Petitioner saw Mr. Simon on October 10th, at which time he paid Mr. Simon $50 for rent of the first floor apartment and also signed a paper purporting to be an agreement to be the tenant of Mr. Simon.

There was uncontradicted evidence that tenants occupied the second floor of the one and one-half story frame dwelling, that tenants also occupied the cottage at the rear of the property, and that none of these tenants had ever been served with notice of the expiration of the period of redemption.

Ben Shapiro, affiant in the affidavit filed in connection with the tax deed application, testified in the section 72 proceedings that he served both Mr. and Mrs. Dahlke on April 9, 1964, with notice of the expiration of the period of redemption, and that Mr. and Mrs. Dahlke were the only two occupants of the premises. Mr. Shapiro testified that he served Mr. Dahlke at about 4:00 p. m. on April 9th, but Mr. Dahlke testified that he did not get home until 6:00 p. m. on that date. Mr. Shapiro also took a photograph of the premises on April 9th, which was admitted into evidence, and which shows the one and one-half story frame dwelling as the only improvement on the property; it in no way shows the cottage at the rear of the property. Mr. Shapiro testified that he made a diligent search and inquiry to locate the persons interested in the property, by searching the county tract books between three and five months prior to the expiration of the period of redemption. When asked if anything else was done in the nature of a diligent search and inquiry, Shapiro answered, “I made nothing else” and “I did nothing.” The only time the property was visited by Shapiro was on April 9th, the date he testified that he served the Dahlkes with notices. It in no way appears that a tour was made of the premises, nor that Shapiro visited or inspected the cottage in the rear or inquired of any of the neighbors in an effort to determine whether anyone other than the Dahlkes was in actual possession of the premises.

On December 18, 1964, the trial judge entered the order appealed from, which found: (1) that on April 9, 1964, Arthur J. Dahlke was served with notice pursuant to law, (2) that Arthur J. Dahlke was the owner of the property in question and was in full possession of the property, and (3) that no fraud was committed by Hawthorn, Lane & Company, First Lien Company, Erwin Rutz, Ben Shapiro, or anyone else in the procurement of the tax deed issued in this cause. The court ordered that the petition of Arthur J. Dahlke for relief under section 72 be denied.

The petitioner-appellant maintains that respondent filed its application for the tax deed and writ of assistance predicated upon a false affidavit, thereby fraudulently procuring the deed. We agree.

It is well settled in tax deed proceedings that section 72 of the Civil Practice Act may not be used to relitigate any issue which has been passed upon by the trial court, in absence of fraud. Remer v. Interstate Bond Co., 21 Ill2d 504, 510, 173 NE2d 425; Shapiro v. Hruby, 21 Ill2d 353, 358, 172 NE2d 775. As stated in the case of Urban v. Lois, Inc., 29 Ill2d 542, at page 548, 194 NE2d 294, “While Section 263 of the Revenue Act regarding the giving of notices must be complied with, a finding that such notices were duly given cannot be disputed in a collateral proceeding.” The claim is made that since the tax deed order of September 4th found that all notices required by law were in fact served, this issue cannot be relitigated in the section 72 proceedings. However, if it is established that the deed has been procured by means of fraud and if the facts which establish such fraud had not been made known to the court in the tax deed proceedings, nor had been passed upon by the court, such circumstances would clearly be sufficient to warrant relief in a section 72 proceedings. Remer v. Interstate Bond Co., 21 Ill2d 504, 513, 514, 173 NE2d 425.

Section 5 of article IX of the Illinois Constitution provides that a right of redemption from all real estate tax sales shall exist in favor of owners and persons interested in such real estate for a period of not less than two years from the date of sale. The Constitution requires the General Assembly to provide for notice to be given to the owners of and all parties interested in the property of the fact of sale and of the expiration of the period of redemption. It is specifically provided that occupants in all cases shall be served with personal notice before the time of redemption expires. Ill Const, art IX, sec 5.

Pursuant to this mandate of the Constitution the General Assembly enacted section 263 of the Revenue Act (Ill Rev Stats 1963, c 120, Par 744) which provides that no purchaser or assignee of such purchaser of real estate which has been sold for nonpayment of taxes shall be entitled to a deed until notices shall be served upon three classes of persons: (1) occupants or persons in actual possession, (2) the person in whose name the property was last assessed for general taxes, and (3) owners or parties interested in the property. Section 263 specifically provides that those in the first class, the occupants or persons in actual possession, shall be personally served with notice; those in the other two classes must be personally served if they can be found within the county upon diligent search and inquiry, otherwise service is to be made by mailing a copy of the notice, by publication, or by service upon them by service upon the occupants, as the case may be.

The affidavit in support of respondent’s tax deed application did not fully and completely set out all facts concerning the property in question. It is substantially deficient in failing to show the four-room cottage as an improvement on the premises, in failing to name the Fazios and the Littles as tenants on the premises, and in failing to state that the Fazios and the Littles were served with notice of the expiration of the period of redemption. Furthermore, testimony given in support of the affidavit at the tax deed hearing was based entirely upon hearsay. Ben Shapiro was the affiant, but the matters in the affidavit were testified to by Mr. Rutz from his “familiarity with Shapiro’s mode of operation and Shapiro’s notes.” The notes of Shapiro were apparently nothing more than the instruction to Shapiro by the First Lien Company to serve Mr. and Mrs. Dahlke, which instruction was itself deficient in failing to show the other occupants of the premises (in the second floor apartment and the four-room cottage) and in failing to provide for service of notice upon these occupants. In the section 72 proceedings, Mr. Shapiro admitted that he visited the property only once, the date he allegedly served the Dahlkes. Although he stated he spent a number of hours in the vicinity, he neither made a tour of the premises nor did he attempt to ascertain from the neighbors who the occupants of the premises were. The photographs introduced into evidence by the petitioner in the section 72 proceedings portraying the four-room cottage in the rear of the property make it clear that the cottage was a part of the premises and was occupied as a dwelling place. Respondent’s claim that the cottage appears to be nothing more than a garage is clearly refuted by these photographs. Finally, the affidavit infers that the sole occupants of the premises were the Dahlkes and their family.

The case of Gage v. Lyons, 138 Ill 590, 28 NE 832, is in point. A tenant of property sold for delinquent taxes was not served with the notice of the expiration of the period of redemption, although it was undisputed that his wife had been served. The court stated that it was not necessary that a reason be given why a tenant in actual possession should be served with notice. As the court said at page 595, “It is enough that the statute requires it as a condition precedent to the right to have the tax deed issued. It does not appear that the service of the notice on the wife of [the tenant] was intended as service upon him, but if it was, service of notice upon the wife of the tenant in possession is not sufficient to meet the requirements of the statute, which is imperative, and must be followed.” See also Cotes v. Rohrbeck, 139 Ill 532, 28 NE 1110, and Gage v. Parker, 178 Ill 455, 53 NE 317.

The facts of the instant case clearly show a lack of good faith in making of the affidavit with respect to occupants, improvements, service of notices, and diligent search and inquiry, and consequently constituted a fraud upon the court issuing the tax deed order.

In 1951 the General Assembly made a sweeping series of changes in the procedure for the issuance of tax deeds. Ill Rev Stats 1951, chap 120, Pars 734, 744, 746, 747, 749, 750 and 751. See Cherin v. R. & C. Co., 11 Ill2d 447, 143 NE2d 235; Shuck v. Guarantee Bank & Trust Co., 26 Ill2d 123, 186 NE2d 41; Urban v. Lois, Inc., 29 Ill2d 542, 194 NE2d 294; and Chi-Kent L Rev, Vol 40, p 156. The purpose of these amendments was to provide judicial safeguards in the issuance of tax deeds by taking the matter out of the hands of the County Clerk, where it was purely a ministerial act, and placing it under the jurisdiction of the courts, thereby rendering tax titles merchantable. Under the statutes today, once the court acquires jurisdiction by the filing of the application for judgment and order of sale, a determination by the court that all statutory prerequisites had been complied with is conclusive. See Urban v. Lois, Inc., 29 Ill2d 542, 194 NE2d 294; Shapiro v. Hruby, 21 Ill2d 353, 172 NE2d 775. Respondent, therefore, maintains that the findings of the September 4th tax deed order cannot be questioned in a section 72 proceedings.

However, as the attorneys for the appellee stated in open court, and as the report of proceedings at the hearing on the application for the issuance of the tax deed indicates, no judge was present at the time of the hearing on September 3rd. An assistant state’s attorney and the respective applicants for tax deeds were alone present. By its very nature this practice defeats the entire purpose of the 1951 amendments to the Revenue Act by eliminating the judicial safeguards therein provided. Had a judge been present and had the facts brought out in the section 72 proceedings relative to lack of good faith in the making of the affidavit been made known to the court in the tax deed proceeding, no deed would have been issued. While it is the policy of this state to render tax deeds merchantable, as evidenced by the 1951 amendments, the clear mandate of the Constitution, providing for the protection of the rights of all persons interested in real estate, cannot be circumvented. Unquestionably, the Constitution cannot be changed, altered or modified by the passage of a statute. Requiring applicants for tax deeds to follow the requirements of the Constitution and the implementing statute by making diligent inquiry and serving notices, does not appreciably burden tax buyers, and in no way interferes with the merchantability of tax deeds.

The value of the property in question is approximately $15,000. The delinquent 1960 tax for which it was sold amounts to $181.46 including interest and costs. It does not appear that the property was in any way encumbered by mortgage or lien. It further appears, and is in no way disputed, that the petitioner himself in May and September of 1963 paid the 1962 tax bill, aggregating some $170. It is a highly unreasonable set of circumstances that a property owner would pay a current real estate tax on property which is unencumbered by debt and yet be willing to lose the property by deliberately failing or refusing to exercise his right of redemption on a past delinquent tax, especially where the amount paid on the current tax is almost identical to the amount necessary to exercise the right of redemption. Mr. Dahlke was employed for 13 years prior to the date of the tax sale as a truck driver for the Village of Riverdale, raised a family of 6 children, and was burdened by a mentally unstable wife. He received some $85 per month in rent. At the section 72 proceedings he testified that his wife took care of the payment of all bills, including real estate tax bills, and never showed him any mail received in connection therewith. While the 1962 tax bill paid by petitioner was stamped “sold 1962” and “sold 1963,” neither marking is clear; further, these markings do not constitute the notice required by the Constitution and the statute. Superimposing the situation in which petitioner was involved upon the facts of respondent’s failure to serve notices as required by the clear mandate of the Constitution and to make a diligent search and inquiry to find the persons connected with the property, results in exactly the type of situation which the constitutional and statutory provisions attempt to avert.

Respondent maintains that because the' court found that Mr. Dahlke had been served with notice, he is in no position to complain about the lack of service on the tenants. The cases cited by respondent in support of this position aré not in point. In People v. Conleur, 294 Ill 139, 128 NE 339, a large number of real estate owners were joined in a single action for the issuance of tax deeds for nonpayment of taxes upon the respective parcels. The validity of one of the tax deeds was challenged by the owner of a parcel involved, on the grounds that a mortgagee who was interested in the parcel was not served with the notice as mortgagee. The owner had been served with notice, and the mortgagee had been served with notice in his individual capacity. The court held that the owner was in no position to challenge the validity of the deed for the reason that the mortgagee “was notified for whatever interest he had and the notices were sufficient.” The case of Meyer v. Surkin, 262 Ill App 83, is likewise distinguishable for the reason that the alleged defect in the portion of the decree appealed from in no way affected or concerned the appellant. Here, on the contrary, respondent’s failure to serve the notices as required by the Constitution and by Statute, and to make diligent inquiry to locate all parties connected with the property, whereas such matters were affirmatively sworn to in the affidavit as having been done, constituted a fraud upon the court which issued the tax deed, thereby rendering the deed void.

Respondent contends that the payment of rent by the petitioner to Mr. Simon amounted to an admission by the petitioner of the validity of the status of respondent as his landlord. Under the circumstances of this case it clearly appears that petitioner was under duress and was presented with a bitter situation. He would either lose a valuable piece of property, which was unencumbered by any debt, and be evicted, or else pay the amount of rent demanded pursuant to a court decree. As stated by petitioner himself, there was “nothing else he could do, he was losing his property.” This situation is not the same as that involving an ordinary tenant who accepts a lease from the landlord in the face of eviction, but rather is a situation where the owner is threatened with eviction by one who has obtained a deed to the property by means of fraud.

Finally, petitioner maintains that error was committed when the trial court in the section 72 proceedings denied his motion for a change of venue. However, it clearly appears that petitioner knew the section 72 proceedings was to be heard by the trial judge who allowed petitioner’s petition to proceed under section 72 of the Civil Practice Act on October 23, 1964, and who ruled on respondent’s motion to vacate the section 72 petition on November 20, 1964. Furthermore, the motion for change of venue was not filed until November 27th, after the hearing on the section 72 petition had been set for December 2nd and after the trial judge had passed upon substantive issues in respondent’s motion to strike on November 20th. See City of Chicago v. Hamlin, 24 Ill 2d 148, 180 NE2d 473. Under these circumstances we feel there was no error committed by the trial judge in denying the motion for change of venue.

The order is reversed and the cause remanded with directions to vacate the order of September 4, 1964, upon reimbursement to respondent for the amount of 1960 delinquent taxes, interest and costs, together with all other taxes subsequently paid, with interest thereon, and to cancel and annul the deed from the County Clerk and remove it as a cloud upon the title.

Order reversed and cause remanded with directions.

BRYANT, P. J. and LYONS, J., concur.


author: STOUDER, J.

text:
    Carol Sholty, Plaintiff, v. Richard Sholty, Defendant-Appellee. Revere Lowe and Leola Lowe, Intervening Petitioners-Appellants, v. Richard Sholty, Defendant-Appellee.
    Gen. No. 65-39.
    Third District.
    January 19, 1966.
    Rehearing denied February 14, 1966.

      Swain, Johnson & Gard, of Peoria, for appellants.
    Morton S. Goldfine, of Peoria, for appellee.
   STOUDER, J.

This is an appeal from an order of the Circuit Court of Peoria County modifying a decree of divorce by awarding custody of the minor son of the marriage to appellee.

Appellee Richard Sholty and Carol Lowe, daughter of Revere and Leola Lowe appellants, were married in 1953 and lived together as husband and wife until September, 1956. In December 1956, pursuant to her complaint for separate maintenance, appellee was ordered to pay $15 a week for the support of his wife Carol Sholty. At the time of their separation Carol Sholty was three months pregnant. The only child of the marriage, Richard, was born in 1957 and in February, 1965, at the time of the hearing in the court below, was eight years of age. In January, 1958 Carol Sholty amended her complaint for separate maintenance by praying that a divorce be granted and pursuant to the amended complaint a divorce was awarded to Carol Sholty. The decree provided that the custody of their minor son, Richard, be awarded to plaintiff with right of visitation by appellee and further provided that appellee pay $15 per week for the support of said child and $10 per week alimony. In April, 1964, Carol Sholty became ill, said illness resulting in her death in January, 1965. Thereafter appellee filed his petition asking that the decree of divorce be modified by awarding custody of .his minor son to him. Pursuant to leave granted, appellants as maternal grandparents of the child, filed their intervening petition asking that custody of the minor be awarded to them. This appeal follows from an order awarding custody of the minor to appellee.

The facts as shown by the evidence are not substantially in dispute. After her separation from her husband in September, 1956, Carol Sholty made her home with her parents, appellants herein, and she and her son continued to reside with her parents, after his birth in 1957, until her death. The grandfather assumed the role of father and a bond of love and affection developed between the grandson and his grandfather as well as with his grandmother. Richard referred to his grandfather as “daddy” although in fact Richard was aware that appellee was his father.

The grandfather and grandmother are respectively 50 and 47 years of age. They own their home, located in a suitable section in the city of Peoria. At the time of the hearing the younger daughter of appellants, with her young child, resided in the home, she having been temporarily separated from her husband. The grandfather is regularly employed as a sheet metal worker and the grandmother conducts a beauty parlor in the basement of their home. Their combined income is approximately $11,000 a year. The court heard testimony of the family minister, the grandfather’s employer, a neighbor and the grandmother’s sister. The substance of this testimony was that Richard was happy, well adjusted and did well in school; that appellants were fine reliable persons; that appellants had demonstrated strong love and affection for their grandson, Richard; and that it would be for Richard’s best interest to remain with his grandparents. Appellants also claimed that although appellee visited his son in their home no rapport had developed between appellee and his son.

Appellee, who is 29 years of age, after the divorce in 1958 served in the armed forces for two years and was recalled for a second tour of duty for one year in 1961 during the Berlin crisis. He is presently employed in the purchasing department of Caterpillar Tractor Company, has had two years college education and is attending night school at Bradley University working on his bachelor’s degree. His annual income is approximately $8,200. In July, 1963 Appellee remarried and has one child, with another to be born shortly. He owns the home in which he and his family reside in a suitable section of the city of Peoria. Appellee made all of the payments for the support of his son and alimony to his former wife as required by the divorce decree. He also maintained medical and hospitalization insurance under his employer’s insurance program which paid for substantially all of the hospital and medical expenses incident to remedial medical attention required when Richard was five years of age. Appellee’s second wife testified that her husband had wanted the custody of his son for a long time but felt that he had no hope of obtaining such custody prior to the death of the first wife. She further testified that she wanted Richard to become a part of their family and believed that it would be best for him.

Although there is some dispute in the evidence concerning the number of times that appellee visited his son during the 1% to 2-year period preceding the hearing, the variations in the testimony are not great. Appellee testified that he visited his son on an average of every two months. His wife testified that although she kept no records she believed he visited his son approximately nine times during the period. The grandfather testified that appellee visited his son on five occasions during the period and the grandmother thought appellee might have visited his son as many as six times. There was also testimony concerning appellee’s visitations of his son pri- or to the aforementioned period, including testimony that appellee visited his son daily when the son, then age five, was hospitalized. Appellee testified that he was never able to visit his son except in the presence of appellants or his former wife and that on one occasion when he requested permission to take his son to a baseball game in St. Louis, permission was refused by his former wife.

Both parties state that there is no hostility between them nor was there any hostility or disagreement between appellee and his former wife concerning the care of their child.

Appellants contend that the trial court erred in not finding that it was for the best interest of the minor child that custody be awarded to them or in the alternative that the court should have granted them temporary custody, increased the visitation rights of appellee and delayed a final determination until after a transitional period. Appellants further contend that a custody decree is final and res ad judicata and should not be disturbed unless new facts or circumstances arise and that in effect the previous order would be maintained by awarding custody to appellants.

We believe that the exception contained in the rule of Wade v. Wade, 345 Ill App 170, 102 NE2d 356, is applicable to this cáse. The death of the parent having custody is a significant and substantial change in circumstances. It is obvious in such case that the custodial portion of the divorce decree requires modification, in that custody must be awarded to a different person. In so doing the court must consider the circumstances as they presently exist and cannot be limited to a consideration of the circumstances existing at the time of the original custodial order.

It is our opinion, and in fact both parties agree, that the paramount issue is the determination of what will be for the best interest of the minor involved. The superior right of the natural parent to custody of his child can only be determined in the context of the best interest of that child and may be limited by the conduct of such parent or other circumstances. The task of the trial court in resolving this issue is a difficult one, involving as it does, the welfare of a young boy facing circumstances which he does not understand and prosspects for the future which he does not comprehend.

Appellants contend, in light of the foregoing principles, that the order of the Trial Court was not for the best interest of the minor involved and hence contrary to law. Appellants rely on the cases of People v. Weeks, 228 Ill App 262, and Price v. Price, 329 Ill App 176, 67 NE2d 311, in support of their contention that the Court should have awarded custody to the maternal grandparents. These cases recognize the principle that the superior right of a natural parent is not unlimited and affirms the propriety of the trial court’s discretion in awarding custody to a person other than a natural parent. However, the factual differences of these cases render the decision inapplicable here. It is apparent that in each of the foregoing cases, a relative other than a parent, had sole and complete custody of the minor for substantial periods of time prior to the institution'of the change of custody proceeding by the natural parent. It is also clear that the natural parent consented to or acquiesced in such custodial arrangement voluntarily and such arrangement was not the result of a court determination placing the minor in the custody of one of its natural parents.

The relationship between the grandparents and their grandson is only one of the circumstances, although an important one, to be considered by the court. The court is required to consider this circumstance together with all of the other evidence bearing on the welfare of the minor. From the evidence in the record before us, as summarized in this opinion, it appears that both appellants and appellee are fit and proper persons, well able and qualified, to undertake the duties incident to the custody of the minor involved; that appellee by his conduct has not forfeited his rights or abandoned his interest in his minor son; that the resources of each party are comparable and adequate; and that appellee’s conduct, under the circumstances, has not been inconsistent with his duties and responsibilities as a parent. Viewing the record as a whole we can only conclude that there is sufficient evidence to justify the order of the trial court.

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

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


text:
    People of the State of Illinois, Appellee, v. Norbert Derengowski, Impleaded, Appellant.
    Gen. No. 65-21.
    Third District.
    January 20, 1966.

      Richard H. Devine, of Chicago, for appellant.
    William G. Clark, Attorney General, of Springfield (Richard Stengel, State’s Attorney, of Rock Island, and Peter C. Fieweger, Assistant State’s Attorney, of counsel) , for appellee.
   STOUDER, J.

Defendant, Norbert Derengowski, and two others were indicted by the grand jury of Rock Island County for the crime of armed robbery. All three were tried together, found guilty by the jury, the defendant appealing from the conviction and sentence of the Circuit Court of Rock Island County.

Appellant contends that the Court below committed error in failing to order production of grand jury minutes and that the verdict of the jury was improper since it was based on doubtful and uncertain identification of the accused.

Prior to arraignment, defendant moved for the production of statements including the minutes of the testimony of witnesses appearing before the grand jury. The motion as to such minutes was denied by the Trial Court it appearing from the hearing on said motion that no minutes of such testimony before the grand jury had been taken.

In arguing that the minutes of the grand jury should have been produced Appellant relies on People v. Johnson, 31 Ill2d 602, 203 NE2d 399, which holds that statements of a witness before the grand jury should be equally available to the people and to the accused. However the Johnson case deals with statements which are admittedly in existence. Neither the Johnson case nor any other authority we have examined require that testimony of witnesses appearing before the grand jury be transcribed. Chapter 38 Illinois Eevised Statutes, Section 112-6, Subsection (a) provides “. . . If no reporter is assigned by the State’s Attorney to attend the sessions of the grand jury, the Court, on petition of the foreman and 11 other grand jurors, may for good cause appoint such reporter.” Since reporting of testimony before the grand jury is not required and since such minutes were not in fact taken we find no merit in Appellant’s contention that the court erred in failing to order the production of such minutes.

In considering Appellant’s next contention, that the evidence of identification of the accused was too vague and doubtful to support the verdict of the jury it is necessary to summarize the testimony of Donald Ealph Binning, the sole identification witness.

Binning was the manager of the Geifman’s Food Store, Bock Island, Illinois. On April 4, 1964 Binning arrived at the store, relocked the door after he entered then opened the safe and commenced counting out cash for the five cash registers. At about 7:15 a. m. Zeigler, the produce manager, arrived at the store and Binning went to the “out” door, usually used by patrons leaving the store, and unlocked the same to admit Zeigler. As Zeigler was entering, the telephone rang and Binning removed his key from the door without locking it and went to answer the telephone which was located on the wall near the manager’s office, approximately 10 to 13 feet from the “out” door. After answering the phone Binning laid the receiver down and started back to the door to lock it at which time he saw three men at the door. The first man pushed a button on the outside which automatically opened the door and the three men entered the store. The first man had a gun and admonished Binning not to do anything and he would not get hurt, Binning replied that the safe was already open. Binning observed that the second man was carrying a suitcase and that the third man, later identified as appellant, stayed near the door on the inside turning around partly to observe the outside of the building. The first man spun Binning around by placing his hand on his shoulder and when Binning started to pick up the phone and put it back on the hook, the phone was replaced by the first man. Binning was then marched past the cash registers to the safe and was ordered to lie down on the floor. After Binning was spun around he did not observe any of the three persons. Zeigler had gone to the rear of the store and although he observed Binning lying on the floor, with the first man standing over him with a gun, he did not see either of the other persons.

After the robbery, police arrived and Binning gave descriptions of the three men to the police officers describing their general physical appearance which did not include any particular identifying features. Although Binning testified that his attention was primarily directed to the first man with the gun he testified he observed all three men facing directly towards him and had a good look at appellant, although for a brief time, before he turned partly around facing the outside.

Approximately three to ten days after the robbery, Binning was shown a series of twelve photographs by the police and from these photographs he identified the three men. At this time he was informed of the names of the persons involved. He also later identified appellant at a police line up although at the line up appellant identified himself by name at which time Binning confirmed his identification of Appellant. On the Sunday before the trial Binning was interviewed by Assistant State’s Attorney Boeye in the courtroom at which time he was again shown the photographs and reasserted his identification thereof. Appellant did not testify in his own behalf.

It is the well established law of this state that the burden rests upon the people not only to prove the commission of the crime beyond a reasonable doubt, but also to prove by the same measure of evidence that it was committed by the person or persons accused, and a conviction cannot be said to be sustained by the evidence beyond a reasonable doubt where the testimony of the witnesses shows that their identification of the defendant was doubtful, vague and uncertain. People v. Fiorita, 339 Ill 78, 170 NE 690. It is also equally well settled that the positive identification by one witness who has ample opportunity for observation may be enough to support a conviction. People v. Lamphear, 6 Ill2d 346, 128 NE2d 892.

In considering appellant’s assertion that the identification was vague and doubtful we have examined the record and can only conclude that the sole identification witness, Binning, had ample opportunity to observe appellant and that although such observation was made during a relatively short time the witness had a clear view of appellant. The witness positively identified appellant from a series of pictures a few days later, at a line up and at the trial. While the manner of conducting the line up might tend to decrease the value of this evidence in the eyes of the jury, nevertheless we believe that this was a matter of credibility and properly for the jury. We find nothing in the record from which it can be concluded that the identification evidence is inherently unreasonable or improbable.

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

Judgment affirmed.

CORYN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE DEMPSEY

text:
    Francis W. Flanagan, et al., as Directors and Officers of Marshall Savings & Loan Association, Plaintiffs-Appellants, v. Joseph E. Knight, as Director of Financial Institutions of the State of Illinois, Defendant-Appellee.
    Gen. No. 50,493.
    First District, Third Division.
    January 20, 1966.

      Barnabas F. Sears and Gerald M. Sheridan, Jr., of Chicago, for appellants.
    William G. Clark, Attorney General, of Chicago (Robert J. Downing and Jay Erens, Special Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

This is an interlocutory appeal from an order granting a temporary injunction.

In late December 1964, the defendant, Joseph E. Knight, Director of the Department of Financial Institutions of the State of Illinois, seized possession of the books, records and assets of the Marshall Savings & Loan Association, under authority of section 7-8 of the Savings and Loan Act (Ill Rev Stats, c 32, par 848 (1963)). In January 1965 the plaintiffs, directors and three of the officers of the association, exercised their statutory right (sec 7-12 of the Act) to challenge the validity of the seizure by filing the above captioned complaint to enjoin further custody. On March 13, 1965, while the suit was pending and the director was in custody, the plaintiffs without having obtained the director’s authorization, filed ten foreclosure proceedings in the name of the association to recover property securing delinquent loans made by the association. Each complaint in the foreclosure suits named the director as a defendant, questioned his authority, and alleged that he wrongfully claimed an interest in the subject matter of the suit and the sole right to institute and control the suit. Thereafter, the director petitioned the chancellor before whom the action to enjoin further custody was pending, to restrain the plaintiffs from maintaining the foreclosure suits without his approval and control. The petition was granted and a writ of injunction was issued without bond. The plaintiffs were enjoined from prosecuting the foreclosure suits except as such proceedings might be approved by the director; the order gave the director the sole right to appoint counsel for the association. The present appeal is from this order. .

The plaintiffs seek reversal of the order on three grounds: (1) the director took custody of the association without warrant of law and he therefore lacked the custodial powers which the Savings and Loan Act confers upon him, and the effect of the injunction was to improperly secure to him the exercise of these powers; (2) the director cannot exclusively control the prosecution of foreclosure suits nor can he appoint the Attorney General to represent the association in prosecuting them, and (3) the issuance of the injunction was an abuse of the chancellor’s discretion.

Section 7-10 of the Savings and Loan Act provides in part:

“Director’s Powers During Custody.
“During the period in which the Director has such custody, the Director has all the powers which are necessary or appropriate to accomplish the purposes of taking custody, including (but not limited to) the authority:
“(a) To operate the business of the association, except as limited by the other subsections, of this section; exercising for that purpose all of the rights, powers, and privileges possessed by the officers and directors. . . .” El Rev Stats, ch 32, sec 850 (1963).

A savings and loan association is authorized to sue and be sued, to complain and defend in its corporate name (El Rev Stats, c 32, § 706(a) (1963)); and the board of directors of the association is authorized to exercise its business and affairs, and has all the powers which are necessary and proper to enable the association to accomplish its purposes (Ill Rev Stats, c 32, § 744(f) (1963)). Measures to protect the association’s assets, such as foreclosure suits; are normal business operations which would be under the supervision of the board of directors. When the Director of Financial Institutions has taken custody, section 7-10 (a) confers on him the control of the association’s normal business operations and the right to exercise the powers possessed by the directors and officers, which would include the power to institute and prosecute foreclosure suits “necessary or appropriate to accomplish the purposes of taking custody.” That the director’s control of the normal business operations of the association is not shared with the association’s officers and directors is shown by a comparison of subsections (a) and (d) of section 7-10. Subsection (d) provides that certain major business operations cannot be undertaken by the director except upon order of a court of competent jurisdiction or with the concurrence of two-thirds of the association’s directors. The directors have a measure of control only in limited transactions and not even then if court orders are obtained. The injunction simply confirmed and made effective the director’s statutory power to conduct the business affairs of the association, including the prosecution of foreclosure suits and the employment of counsel to do so.

The plaintiffs’ first contention is based on the premise that the director lacked the statutory powers which section 7-10 confers upon him during custody because he was not lawfully in custody. This contention raises the same issues which are being litigated in the plaintiffs’ action to enjoin further custody and they argue that the issuance of the injunction had the effect of a decision on the merits adverse to them.

Because competent management of financial institutions is essential to public well-being, the legislature empowered the Director of Financial Institutions to take custody when it appears to him that specified grounds exist (Ill Rev Stats, ch 32, par 848 (1963)). The legislature recognized that at times the director might be mistaken in his belief that the statutory grounds were present; section 7-12, which authorizes the action to enjoin further custody of the director, provides that the court may grant an injunction if it finds that legal grounds for taking custody “did not or do not then exist.” (Ill Rev Stats, c 32, § 852 (1963)). The statute gives no indication that the legislature intended the director’s custodial powers to be less than complete prior to conclusion of the action to enjoin custody. Indeed, such a result would tend to limit drastically the effectiveness of the Savings and Loan Act; for then in every custody the therapeutic measures of the director would be delayed.

The legislature provided a means to challenge the propriety of the director’s custody: the statutory action to enjoin further custody; and it is in that action that the plaintiffs’ allegations that statutory grounds for taking custody did not exist and that the director failed to take the procedural steps prerequisite to a valid custodianship, and the director’s counterallegations should be resolved.

We agree with the statement made by the plaintiffs in their answer to the director’s motion for an injunction: “That it is contrary to law and equity and good conscience that such grave matters . . . [whether the director was lawfully in custody or a mere trespasser on the premises of the association] ... be resolved upon an application for a temporary injunction with the limited right of review resulting from orders entered upon such application.” The same thing can be said about the attempt to resolve the very same grave matters in the fore-, closure suits. But contrary to the plaintiffs’ belief, issuance of the injunction was not equivalent to a final adjudication of the validity of the director’s custody. The chancellor stated explicitly that he was not making a decision on the ultimate issues in the case and that the injunction was temporary pending final determination of the cause. On the other hand, if the injunction had been denied it would have deprived the director of his statutory power of sole control over the business of the association; it would have permitted a dual operation of the association, the filing of suits and the making of decisions by the plaintiffs independent of the director; it would have rendered his custody ineffective and it would have confirmed the plaintiffs’ position that his custody was illegal.

The plaintiffs’ next point is that the injunction is improper because the director cannot exclusively control the prosecution of the foreclosure suits, and cannot appoint the Attorney General to represent the association. The director’s power to operate the business of the association, given by subsection (a) of section 7-10, is subject to the provision of subsection (d) (5) that he cannot sell or compromise bad or doubtful debts of the association without an order of a court of competent jurisdiction or the concurrence of two-thirds of the directors of. the. association. The plaintiffs’ reasoning that because many foreclosure suits are compromised, the director cannot have the exclusive power to prosecute such suits, is fallacious. The injunction confirms the director’s right to sole control over the foreclosure suits; it does not purport to authorize him to compromise debts owed the association. If, during or at the termination of the foreclosure suits, the director finds that a compromise is desirable, he will have to comply with the requirements of subsection (d) (5); but that does not lessen his right to sole control over the conduct of the foreclosure suits.

The plaintiffs rely on People ex rel. Loew v. Marquette Nat. Fire Ins. Co., 351 Ill 516, 184 NE 800 (1933) and People ex rel. Board of Trustees v. Barrett, 382 Ill 321, 46 NE2d 951 (1943), for the principle that the Attorney General cannot represent a private corporation. The Marquette case held that the statutorily designated liquidator of an insurance company was not entitled to use the services of the Attorney General because there was no public interest in a liquidation proceeding. The court distinguished, however, between a liquidation proceeding and a statutory custodianship, and stated that in the latter the public interest in rehabilitating the regulated enterprise justifies use of the Attorney General’s services. The Barrett case held that the fact that the University of Hlinois is a public corporation did not by itself authorize the Attorney General to be its legal representative. That case is inapposite, for the Savings and Loan Act is a legislative declaration of the existence of a substantial public interest in the proper management of financial institutions. During the period of his custodianship, the director is entitled to employ the Attorney General to represent the association. Cf. People v. Continental Beneficial Ass’n, 204 Ill App 501 (1917).

Finally, the plaintiffs contend that the chancellor abused his discretion in granting the injunction because the usual conditions precedent to the grant of an injunction were not fulfilled and because the injunction was issued without bond. The plaintiffs argue specifically that the director failed to show probability of success on the merits of the action to enjoin further custody and to show irreparable harm, that the injunction does not maintain the last peaceable status between the parties, and that no evidence was heard despite conflicting allegations of material facts.

A temporary injunction is an extraordinary remedy, and for that reason certain conditions precedent to the grant of an injunction have been judicially imposed to ensure that the need for injunctive relief is clearly established. In the anomalous circumstances of a case of this kind, however, imposition of all the usual conditions is made unnecessary by the legislative decision, expressed in section 7-10, to vest the director with power to operate the business of an association during custody. It would be impugning that decision if the director were required to show that he would be irreparably harmed if he were stripped of his statutory power. Similarly, the legislative decision to vest custodial powers in the director during the pendency of a statutory action to enjoin further custody would be subverted if he were required, prior to a determination of the merits of the action, to show the probable validity of his custodianship before being allowed effective exercise of his statutory power.

The other conditions precedent to the grant of a temporary injunction were met. First, the injunction maintains the last peaceable status quo. The foreclosure suits were instituted after the director had taken custody of the association; at the time of taking custody the director had the statutory power to institute the suits, and the plaintiffs were not then claiming that power. They wanted the foreclosure suits filed and offered to prosecute them jointly with the director. The director refused to dilute his authority. The plaintiffs did not take the dispute to court; they did not petition the chancellor in the pending case for authorization to file the suits themselves or ask that the director be ordered to join in filing them. Instead they proceeded on their own and asserted in each of the ten foreclosure suits that they had the sole right to prosecute the suits and that the director’s claim to that right was without basis in law or equity. Until the validity of the director’s control over the association was resolved, it was improper for the plaintiffs to place that issue in controversy in collateral proceedings and it was improper for them to start or maintain foreclosure suits without the authority of the director. The temporary injunction preserved the status quo of the director and the status quo of the pending case. Second, the injunction is not a decision on the merits of the statutory action, as has been noted. Third, the injunction does not put the association out of business. The association is not prohibited from maintaining the foreclosure suits, the officers and directors are. The injunction only effectuated the transferal of the control of the operations of the association from its officers and directors to the director. Fourth, there were no conflicting allegations material to the issuance of the injunction. The conflicting allegations cited by the plaintiffs concern the propriety of the director’s taking custody and of his subsequent management of the association, and are to be determined in the pending action to enjoin further custody. The only issue proper to this appeal is whether the director is entitled to injunctive protection of his statutory power to prosecute the foreclosure suits.

The party moving for an injunction is required to give bond unless for good cause shown the court is of the opinion that the injunction ought to be granted without bond. Ill Rev Stats, ch 69, par 9 (1963). The facts justifying the issuance of the injunction without bond must be alleged in the complaint, and a mere recital in the injunction order that the public interest is involved is insufficient. Town of Cicero v. Weilander, 35 Ill App2d 456, 183 NE2d 40 (1962). The injunction in the instant case was issued without bond because of “good cause having been shown, to wit, that the said Director is acting on behalf of the State of Illinois. . . .” Since the injunction is simply confirmatory of the power which the legislature vested in the director, the proper exercise of judicial discretion did not require the chancellor to condition the director’s exercise of his statutory power upon his giving bond.

The injunction order is affirmed.

Affirmed.

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