author: SPIVEY, J.

text:
    Industrial Savings & Loan Association, a Corporation, Plaintiff-Appellant, v. Joseph E. Knight, Director of Financial Institutions, James W. McRoberts, et al., Defendants-Appellees.
    Gen. No. 65-77.
    Fifth District.
    February 15, 1966.
    Rehearing denied March 25, 1966.

      Kassly, Weihl, Carr & Bone, of East St. Louis (Rex Carr, of counsel), for appellant.
    William G. Clark, Attorney General, of Chicago (Richard A. Michael, and John J. O’Toole, Assistant Attorneys General, of counsel), for Joseph E. Knight, appellee. Goldenhersh & Goldenhersh, of East St. Louis (Michael A. Katz, of counsel), for James W. McRoberts, et al., appellees.
   SPIVEY, J.

The Circuit Court of St. Clair County, in a proceeding under the Administrative Review Act, affirmed an order of the Director of Financial Institutions denying a permit to Industrial Savings and Loan Association to change the location of its business office pursuant to section 3-4 (h) of the Illinois Savings and Loan Act. Plaintiff appeals from the affirmance of that order.'

A group of Illinois residents designated as the McRoberts group, on July 11, 1960, filed an application to organize a savings and loan association to be known as the Edgemont Savings and Loan Association.

On March 4, 1961, the Director, after conducting statutory hearings announced a final denial of the application.

Complaint for judicial review was instituted in the Circuit Court of St. Clair County by the applicants on April 13, 1961. The McRoberts group did not perfect an appeal from the court’s affirmance but filed a new application with the Director of Financial Institutions on May 7, 1962, which contained an upgraded survey of three years. A preliminary hearing on this second application was conducted between March 14 and April 26 of 1963, resulting in approval of the application and the issuance of a permit to organize as provided by the Illinois Savings and Loan Act on February 24,1964.

On complaint of plaintiff, Industrial Savings and Loan Association, and other savings and loan associations the Director conducted a hearing to review his decision of February 24,1964. Following the hearing the Director affirmed his decision on August 31, 1964, of his issuance of a permit to organize to the McRoberts group.

Plaintiff, Industrial Savings and Loan Association’s Board of Directors passed a resolution on September 10, 1961, which among other things authorized the corporate officers to make application for a change of location. The passing of this resolution was conveyed to the Director of Financial Institutions by letter dated December 19, 1961, which also requested advice as to what would be required to gain approval.

On December 22, 1961, Chris Stolfa, Supervisor of Savings and Loan Division, on behalf of the Director advised plaintiff that the denial of a prior application for location in the same area was pending on judicial review under the Administrative Review Act and upon a decision by the court its request would be presented to the Advisory Board for recommendations.

On September 12, 1962, plaintiff filed with the Director its formal bylaw amendment adopted on September 4, 1962, for a change of location. The Director disapproved plaintiff’s bylaw amendment on February 20,1963, on the basis that no need exists for a savings and loan association in the proposed new location.

On application the Director conducted a hearing to review his disapproval of plaintiff’s request and on April 20, 1964, affirmed his decision. Plaintiff perfected judicial review under the Administrative Review Act to the Circuit Court of St. Clair County, which was by that court affirmed and which resulted in the instant appeal.

While a recitation of the various proceedings covering almost four years by the two groups seeking to locate in the Edgemont area appears to be necessary we must now narrow our inquiry to the facts presented by this appeal by Industrial Savings and Loan Association.

Plaintiff had proceeded under the provisions of section 3-4 (h) of the Illinois Savings and Loan Act, ch 32, § 744 (h), Ill Rev Stats, which states:

“If a by-law amendment provides for a change in the location of an association’s business office to a location which is more than one mile distant from the existing location, the Director shall not approve the amendment unless he finds that, (1) a need exists for an association in the proposed new location; (2) the capital of the association meets the minimum initial capital requirements of this Act with respect to the new location; (3) the proposed change of location can be effected without undue injury to other properly conducted associations; and (4) notice of the association’s proposal to change location has been published at least once in the community of the proposed new location. The Director may hear evidence to determine his findings at any time prior to his approval or disapproval of the amendment; and he may require, as a condition of his approval, ratification of the amendment by the vote (at a meeting of the members) or the written consent of the members of the association who are entitled to cast a majority of the total number of votes which all members of the association are entitled to cast.”

Plaintiff-appellant contends that it has met the requirements of the Savings and Loan Act warranting a change in its address; that the McRoberts group, being a nonexistent savings and loan association, is not entitled to protection under the Illinois Savings and Loan Act; that it had a prior claim to the Edgemont location; and that the decision of the Director of Financial Institutions was arbitrary and against the manifest weight of the evidence.

The Director of Financial Institutions’ final decision denying plaintiff the right to relocate its office was predicated upon the finding that “no need exists for an additional savings and loan association in the proposed area.”

We see no useful purpose in relating the evidence adduced at the hearing in support of plaintiff’s application to relocate except in two particulars (1), that portion wherein plaintiff requested the Director to take notice of his order of February 24, 1964, authorizing the organization of the Edgemont Savings and Loan Association by the McRoberts group, and (2), that the Edgemont area was in need of only one savings and loan associaton.

The General Assembly, in expressing the policy of the Illinois Savings and Loan Act, stated that such business being so integrated with the financial institutions of the state affected the public interest and should be supervised as a business affecting the economic security and general welfare of the people of Illinois, and that the Act should be liberally construed to promote and foster the purposes of savings and loan associations.

The Supreme Court, in Skokie Federal Savings & Loan Ass’n v. Becker, 26 I112d 76, 185 NE2d 861, in recognizing the role of the Director of Financial Institutions said, “It should be noted that the findings required by the statute and made by the Director are not simple findings of readily ascertainable facts, but represent the application of expert administrative judgment to the evidentiary facts. Such terms as ‘need,’ ‘public convenience and advantage,’ ‘reasonable probability of the success,’ and ‘undue injury’ are not facts that are susceptible to precise proof or measurement by any satisfactory judicial yardstick. They involve matters of judgment and policy. Under such circumstances, a court may not substitute its judgment for that of the administrative agency and should not reverse the order of the administrative agency unless the judgment of the agency is without substantial support in the record.”

The instant case has somewhat resolved itself into a battle of priority. We find no comfort in this field in either the Illinois Savings and Loan Act or the decisions of our reviewing courts.

Plaintiff argues that being a properly conducted organization it should be protected to the exclusion of the McRoberts group.

Following the disallowance of its first application (affirmed by the Circuit Court of St. Clair County), the McRoberts group filed a second application on May 7, 1962, almost two years after the filing of its first application. The filing of this application put in force the administrative procedures under the Illinois Savings and Loan Act. (North Federal Savings & Loan Ass’n v. Becker, 24 Ill2d 514, 182 NE2d 155.)

The question of the sufficiency of the McRoberts group application and the propriety of the Director’s decision are not before us in this appeal.

Prior to the filing of the McRoberts group’s second application the only act on the part of plaintiff was the adoption of a resolution authorizing the officers of the association to make application for relocation and the forwarding of a letter by the association to the Director of Financial Institutions notifying him of the proposed amendment to the bylaws, provided approval to relocate is obtained under the provisions of the Illinois Savings and Loan Act.

Plaintiff argues this letter of notification of a proposed change in the bylaws set in motion the administrative processes necessary to obtain permission to relocate. Plaintiff cites North Federal Savings & Loan Ass’n v. Becker as recognizing its letter as one which would serve as an application to relocate its office.

We interpret this decision as being limited to the proposition that an existing savings and loan association is an aggrieved person within the contemplation of the Illinois Savings and Loan Act who may challenge an application to organize or an application to remove to a new location more than one mile away by an existing savings and loan association desiring to move to a new location or a proposed new savings and loan association to locate in a like area. The decision’s reference to Apollo’s letter to the Director requesting permission to move its headquarters as the commencement of the administrative process, does not state the contents of the letter.

We do not feel that the suggestion to the Director of a proposed amendment to the bylaws would suffice as an application to commence such a proceeding. In our judgment the adoption of a bylaw amendment to that effect is a condition precedent for the Director to commence action. To hold otherwise might well permit an existing savings and loan association to thwart or delay the efforts to establish a new savings and loan association in a desired area.

We therefore find that the application by the McRoberts group on May 7, 1962, was first in point of time. The hearing on the application of the McRoberts group and the hearing on the disapproval of plaintiff’s bylaw amendment was also first in point of time.

On February 24, 1964, prior to the Director’s affirmance of his decision disapproving plaintiff’s bylaw amendment on the ground that there was no need for an additional association, the Director issued a permit to the McRoberts group to organize Edgemont Savings and Loan Association in accordance with the Illinois Savings and Loan Act. The fact of the issuance of this permit to organize Edgemont Savings and Loan Association to the McRoberts group was made a part of this record at the suggestion of the plaintiff.

Plaintiff further urges that the holder of a permit to organize a savings and loan association does not stand in the status of a properly conducted association.

While this may be true, yet such a permit or license to organize must certainly establish some inchoate right in the holder thereof that should be recognized by the Director and in the law.

Plaintiff’s permit to conduct a savings and loan association creates no vested rights. (53 CJS, Licenses, §2.)

We conclude that the Director of Financial Institutions was correct in his decision, based upon the record, in denying plaintiff’s application for relocation in that at the time of his decision there was to be a savings and loan association in the desired area and that a need exists for only one savings and loan association in the proposed new location. (Section 3-4 (h), Illinois Savings and Loan Act.)

Considering the role of the Director of Financial Institutions with respect to the application of the policy of the Illinois Savings and Loan Act as expressed by the Supreme Court in Skokie Federal Savings and Loan Association, aside from the chronology of the proceedings his action cannot be said to be without substantial support in the record and was neither arbitrary nor against the manifest weight of the evidence.

It was for the Director to determine the respective merits, results and ramifications between these two groups and the questions of need and undue injury under the limitations imposed upon him by sections 2-4 and 3-4 of the Illinois Savings and Loan Act, so long as his judgment is not without substantial support in the record. Courts will not substitute their judgment for that of the administrative agency unless such is the fact.

The decision of the Director of Financial Institutions and the Circuit Court of St. Clair County is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: TRAPP, P. J.

license: Public Domain

text:
    John E. Auker and Gladys Marie Auker, His Wife, Plaintiffs-Appellants, v. E. Fred Gerold, et al., Defendants-Appellees.
    Gen. No. 65-79.
    Fifth District.
    February 18, 1966.
    Kassly, Weihl, Carr & Bone, of East St. Louis (Donald E. Weihl, of counsel), for appellants.

      Goldenhersh & Goldenhersh, of East St. Louis (Marvin W. Goldenhersh and Michael A. Katz, of counsel), for appellees.
   TRAPP, P. J.

This is an appeal from a judgment of the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois, in favor of the defendants following a trial without a jury. After the premises were destroyed by fire, the plaintiffs brought suit for a return of a “deposit” made in connection with a lease of certain improved real estate.

Plaintiffs, as lessees, and defendants, as lessors, entered a written lease of ground floor space in a small building for a period of seven years, commencing December 15, 1958, or when certain major improvements to be made by the lessors were completed, at a rental of $150 per month, payable in advance. The lease included the following provisions :

“As a part of this contract, the Lessors are to make certain improvements and furnish electrical lighting fixtures as agreed upon by the Lessees at Lessor’s expense; However the Lessees are to deposit with the Lessors One Thousand and no/100 Dollars ($1,000.00) cash when this lease is signed, and are to pay an additional One Hundred and no/100 Dollars ($100.00) per month each month until an amount equal to amount of these improvements have been deposited.
“The amount of deposit of One Thousand and no/100 Dollars and the payment of One Hundred and no/100 Dollars per month are to be credited to the Lessees on the last two (2) years of this lease. The total amount of these improvements to be made are not to exceed Three Thousand Six Hundred and no/100 Dollars ($3,600.00). . . .
“3. If the Lessees shall fail to pay the rent aforesaid when due, whether said rent be demanded or not .... and terminate and annul this lease so far as regards all future rights of said Lessees, and the Lessors shall have all legal rights and remedies permitted by and available under the laws of the State of ILLINOIS for the collection of any rent due or payable hereunder, and for the possession and sale of any property of the Lessees liable as security for the payment of such rent, whether by lien, attachment, distraint and/or confession or judgment or otherwise;.....”
“6. In case said premises shall be destroyed or damaged by fire or other unavoidable casualty, sixty (60) percent or more; this lease may be cancelled by either party.”

The deposit was made and the rent was paid in accordance with the written lease. On December 26, 1961, the premises were 60% destroyed by fire. The lessors determined not to rebuild and the lessees established a restaurant at another location. The testimony of a defendant is that the lease was treated as cancelled by both parties. In May of 1962, plaintiffs demanded a return of the deposit and the demand was refused.

Plaintiffs contend that the situation falls clearly within the line of authorities which hold that a deposit to secure future rent can be recovered when the lease is terminated while the lessee is not in default, unless a contrary intent is affirmatively indicated by the terms of the lease. Defendants contend that the situation falls clearly in that line of authorities which hold that payments of advance rent may not be recovered where the premises are destroyed by fire. Since a holding in favor of the plaintiffs’ view of this payment as a deposit would be decisive of the issue in plaintiffs’ favor, we will examine this issue first. We do not believe that adopting defendants’ view of this issue would be decisive of defendants’ right to prevail for reasons given hereafter.

The authorities on the subject are somewhat confusing for the reason that the courts of various states have actually adopted divergent views as to the justice of the situation and these different views as to the merits have led to varying emphasis upon the factors which are said to determine whether the payment was a deposit to secure performance, or an advance payment of rent, it being fairly generally conceded that a deposit is refundable and an advance payment of rent is not.

There is an elaborate annotation on the subject of a “Provision in lease for pecuniary forfeiture where lease is prematurely terminated as one for liquidated damages” in 106 ALR 292-818. Practically all of the cases cited by plaintiff, and many of the cases cited by defendant are discussed in this annotation. There is an annotation on the subject: “Right of a lessor to retain advance rental payments made under lease terms upon lessee’s default in rent” in 27 ALR2d 656-674. This annotation discusses practically all authorities cited by plaintiffs and many cited by defendant. This latter annotation is followed in ALR Later Case Service, Yol 3, page 981-983. It is obvious that the matter of advance payments upon a lease has been a fertile field of litigation and that seemingly different rules are sometimes applied to almost identical fact situations.

The analysis of the cases cannot be separated from the subject of provisions in leases for forfeitures or liquidated damages. The reason for this is that most of the cases which discuss the question of the right to the return of a deposit are cases in which the issue is whether the money was paid to secure performance or was the contracting parties’ determination of liquidated damages.

The following rules appear to collide with one another and, at times, with our sense of justice:

1. If the payment is a payment in the nature of a deposit to secure performance, then upon termination by the lessor for the lessee’s default in performance and repossession by the lessor, the lessor may retain only so much of the deposit as represents rent to the date of repossession;

2. If the payment is described as liquidated damages in the event of default by the lessee, then notwithstanding such description, a penetrating examination will be made to determine whether it really is liquidated damages or a penalty;

3. Even though the payment be described as liquidated damages, if the damages can be readily computed or if the sum stipulated obviously exceeds the damages the payment will be described as a penalty and only actual damages will be allowed;

4. If the payment is an advance payment of rent, then, though it be a payment for two years, and though the lessee be in good standing, there is no right to a refund on destruction of the premises so as to render the premises untenantable;

5. If the payment were for true liquidated damages in the event of default, then upon destruction of the premises by fire, the nondefaulting tenant would be entitled to a refund arid the defaulting tenant would not;

6. If the payment were called liquidated damages, but could not meet the test of being fair, in the sense of approximating. real damages, then, in case of destruction by fire, both the defaulting and nondefaulting tenants could obtain a refund;

7. If the payment were determined to be a deposit to secure rent, then a lessee in good or bad standing could recover in the event of destruction of the premises by fire;

8. The intention of the parties should govern;

9. If the advance payment is, in fact, one of the considerations for entering the lease and is so stated as an advance payment of rent, it is not recoverable;

10. Rent is a payment for the use of the premises and if the use is not obtained, then no rent is due;

11. Equity abhors a forfeiture;

12. Parties may contract for liquidated damages but may not contract for a penalty.

In Advance Amusement Co. v. Franke, 268 Ill 579, 109 NE 471, the lessors had obtained judgment for possession following default in payment of rent. The lessee sought recovery of $2,500 paid as security for performance of the lease:

“. . . which said sum of twenty-five hundred dollars ($2,500.00) shall be applied by said party of the first part as rental reserved for the said premises for each of the last seven and one-seventh months of the term herein demised.”

The lease further provided that the lessor should pay interest upon the sum but that, upon default, the lessor might retain the sum or any portion held as liquidated damages. In affirming judgment for the lessee, the court said, at p 581:

“As was said by this court in Gobble v. Linder, 76 Ill 157, no branch of the law is involved in more obscurity by contradictory decisions than whether a sum named in an agreement to secure performance will be treated as liquidated damages or a penalty, and as each case must depend upon its own peculiar and attendant circumstances, general rules of law on this question are often of little practical utility. While the intention of the parties on this question must be taken into consideration, the language of the contract is not conclusive. The courts of this State, as well as in other jurisdictions, lean towards a construction which excludes the idea of liquidated damages and permits the parties to recover only damages actually sustained. (Scofield v. Tompkins, 95 Ill 190; Radloff v. Haase, 196 id. 365; Bilz v. Powell, 38 LRA (NS) 847, note). This court has said that the rules deducible from the cases may be stated as follows: ‘First, where by the terms of a contract a greater sum of money is to be paid upon default in the payment of a lesser sum at a given time, the provision for the payment of the greater sum will be held a penalty; second, where by the terms of a contract the damages are not difficult of ascertainment according to the terms of the contract and the stipulated damages are unconscionable, the stipulated damages will be regarded as a penalty; third, within these two rules parties may agree upon any sum as compensation for a breach of contract.’ (Poppers v. Meagher, 148 Ill 192.) This and all other courts seem to agree upon the principle that a stipulated sum will not be allowed as liquidated damages unless it may be fairly allowed as compensation for the breach. (1 Sedgwick on Damages, -9th ed-sec 407, and cases cited.) We have frequently said that courts will look to see the nature and purpose of fixing the amount of damages to be paid, and if it appears to have been inserted to secure the prompt performance of the agreement it will be treated as a penalty and no more than actual damages proved can be recovered. (Westfall v. Albert, 212 Ill 68, and cases cited). In general, a sum of money in gross, to be paid for the non-performance of an agreement, is considered as a penalty. Tayloe v. Sandiford, 7 Wheat 18; 1 Sedgwick on Damages, (9th ed) sec 402.”

Again, in the same case, the court said, p 583:

“The argument of counsel for plaintiff in error would require the holding that the $2500 should be retained as liquidated damages whether the lease was violated less than a year before it expired the same as if it were violated within a few months after it was entered into. Such a construction of the contract violates the great fundamental principle which underlies our whole system,—‘that of compensation; the great object of this system is to place the plaintiff in as good a position as he would have had if his contract had not been broken.’ ”

The significant thing about the attitude of the Supreme Court of Illinois, as evidenced by the foregoing quotation, is that unless prevented by some specific understanding of the parties, payments which' are, in fact, to secure performance in rental contracts, or any other kind of a contract, will be adjusted upon the basis of actual damages resulting from the non-performance.

While conceding that parties may contract for the accrual of rent after an eviction, our Supreme Court has made it clear that in the absence of an express contract to that effect, rent will not accrue. In Grommes v. St. Paul Trust Co., 147 Ill 634 on p 642, 35 NE 820, the court said:

“The rule, that eviction suspends the payment of rent, results from the meaning of the term, rent, and from the obligations of the relation between landlord and tenant. Rent is compensation for the use of land, and what the tenant pays rent for is quiet possession, or beneficial enjoyment. When, therefore, the use or possession ceases, the consideration for the payment ceased. (Cases cited.)”

In Virginia Amusement Co. v. Mid-City Trust & Savings Bank, 220 Ill App 147, payment of $17,000 was required under a lease which provided:

“. . . said sums to apply as.rent for the first year of said term and the last year of said term,”

and further provided that in the event of a breach, all sums paid by the lessee should be forfeited as liquidated damages. The latter was evicted for default in rent and thereafter brought suit to recover the sums paid to the lessor, with deduction for the rent due at the time of eviction. Lessor contended that under the lease the sum was payment of an existing obligation rather than a deposit. The Appellate Court held that the lessee should have a refund of the balance remaining after deduction of the rent due at the time of the eviction. It would be strange indeed to hold that the addition- of the liquidated damage clause which did not specifically refer to the $17,000.00 payment, as distinguished from any other “rent,” should cause the sum to be refundable. In other words, if nothing had been said, it would not be refundable, but if the addition of the idea that “just so we understand each other, you will not in any case receive this back,” should make it refundable, the rule would surely be difficult to understand. We take this case to be a following of the policy adopted by Illinois that, in the absence of compelling considerations to the contrary, a defaulting tenant can obtain a refund of an unearned advance payment.

Other Illinois decisions have followed the line of allowing a return of a deposit to a defaulting tenant. In Kay Gee Amusement Co. v. Cave, 177 Ill App 250 on 255, where $1200 was deposited “as security for the payment of rent hereunder,” and it was provided that in the event of default it might be retained by lessor “as and for his liquidated damages and not as a penalty,” the court, nevertheless, held it refundable. The court said at p 255:

“It is also laid down as a rule of construction that in doubtful cases courts should be inclined to treat the stipulations as penalties and to hold that the real damages should be inquired into.”

In this case there was no provision for payment of interest on the deposit and the lessor had made extensive improvements.

In Billos, et al. v. Kozlowski, 205 Ill App 285, a deposit to secure payment of rent was ordered refunded on dispossession of the tenant for his default. The same result was obtained in Weber v. Moy, 183 Ill App 200. Dunn v. Natenberg, 208 Ill App 300, follows the same line.

In Johnson v. Englestein, 236 Ill App 215, notwithstanding that the lease provided that:

“. . . the lessee hereby covenants and agrees with the lessors, to pay unto them, the said lessors, as rent for said demised premises, the sum of Twenty-five Hundred Dollars ($2500.00) at the time of the signing and sealing of the instrument of lease and the sum of Two Hundred and Fifty Dollars ($250.00) on Monday, April 16, 1923, and the sum of Two Hundred and Fifty Dollars ($250.00) on each and every Monday thereafter during the term until and including Monday, the 17th day of February.”,

the court held the deposit was a penalty and not rent. In this case, refund was provided in the event of destruction by fire, but not in the event of default. Interest was to be paid on the $2500 payment. The court said, p 220:

“The defendants, however, contend that the provisions involved in the leases in the authorities cited are different from the provision in the lease in the case before us, in that the lease in question expressly provides that the $2,500 is paid ‘as rent’, while no such express provision was in any of the leases involved in the authorities cited. While this may be true, it does not follow that the $2,500 should not be refunded.” (Emphasis ours.)

In the light of the opinions cited, certain aspects of the language of the lease in issue may be noted: (1) a single paragraph sets forth the description of the premises, the statement of the term and provision for rent at $150.00 per month, “. . . payable in advance upon the first day of each month”; (2) in distinct paragraphs, the sum in issue is consistently described in the noun or verb form of “deposit,” and we find no reference to the sum as “advance rent”; (3) paragraph 3 of the lease actually refers to “security for the payment of rent,” with reference to provision that the lessor may terminate the lease upon a default, retaining the right to collect rent due and payable from the “property of the lessees”; and, (4) the amount of the “deposit” is consistently correlated to the cost of certain improvements to be made, although not described in the lease. While no minimum cost of the improvements is specified, except perhaps the $1000 paid on the date of the lease, for purposes of a “deposit,” a maximum sum is provided, i. e., $3600. By the language of the lease, the final amount of the “deposit” is not necessarily equal to the amount of rent for the last two years of the term, for if the improvements made should cost but $1,800 such would be the amount of the “deposit” and it obviously could not meet the obligation of rent for two years at $150 per month. It seems, therefore, that the language of the lease is consistent when it provides the “deposit” should be a credit, i. e., a correlative of a debt, to the rent due. On the contrary, there is no language of the lease which categorically requires that the lessee was obligated to pay $3600 in total deposit, which sum was to be applied, i. e., appropriated to the payment of rent.

Defendants have argued that we must hold that the total of the sum deposited passed to the defendants for there was no provision, as noted in some of the cited cases, for a refund of the money to the lessees, and no provision for the payment of interest by the lessor. The Abstract shows, however, that plaintiff, John Auker, testified, without objection being made, that the “deposit” was to be used to make certain improvements. This testimony, taken with the language of the lease, reflects a purpose in providing for the “deposit” and suggests that the making of the improvements by the lessor was a sufficient inducement for the lessee to forego provision for the payment of interest and that the credit of the sum upon rent was, in a sense, provision for a refund of the “deposit.”

We think that, in case of doubt, it should be construed as a security deposit. There being no express contrary provision, we construe the deposit as a security for performance.

The lessee here was in no respect guilty of a.nonperformance. The lessee was deprived of the possession- and enjoyment for which this sum was to be reserved. The Illinois authorities are so firm in allowing a refund for a defaulting tenant that we feel it would be inconsistent to be less favorable to a nondefaulting tenant.-

But as earlier suggested, we are moved to allow a refund by other considerations. In Kane v. Dunn, 2 Ill App2d 50, 118 NE2d 66, the court found evidence of a mutual agreement to “cancel the lease” and to relet the premises.

The present lease provided that “either party” might cancel the lease in the event of sixty percent destruction by fire. A defendant testified that upon the event, the parties treated the lease as cancelled. The lessor elected not to rebuild. The lessee could not enjoy the last two -years of the lease. A cancellation removes all rights and obligations accruing in the future. We are inclined to say that even if the payment had been “advance rent,” a cancellation would have removed the consideration and entitled the lessee to a refund.

Defendant cites the case of Tarkovsky v. Hess, 64 Ill App 513, where one month’s rent had been paid in advance on March 4, 1891, and a fire occurred on March 11, 1891. The tenant was denied a refund of the unused portion of the month’s rent. We find the case in no way controlling for the reasons that only one month’s rent was involved, that there was no suggestion of a deposit for security and there definitely was no right to cancellation upon destruction of the premises.

None of the authorities give any credit to the lessor for repairs or improvements unless such items were lessee’s obligations under the lease. It would be immaterial whether lessor furnished a new building or improved an old one unless, in some way, the contract provisions made this lessee’s obligation.

The judgment of the trial court is reversed and the cause is remanded with directions to enter judgment for the Plaintiffs in the sum of $3,600.

Reversed and remanded with instructions.

SMITH and CRAVEN, JJ., concur.


author: MORAN, J.

text:
    Midstates Finance Company, a Corporation, Plaintiff-Appellant, v. Herb Waller, d/b/a Herb Waller Auto Company, Defendant-Appellee.
    Gen. No. 65-31.
    Fifth District.
    February 18, 1966.

      Ralph T. Smith and John Dale Stobbs, of Alton, for appellant.
    Emerson Baetz, of Alton, for appellee.
   MORAN, J.

Plaintiff appeals from an order entered by the trial court of Madison County.

The plaintiff obtained a judgment against the defendant on December 1, 1964, pursuant to the warrant of authority and confession of judgment provisions contained in three promissory notes executed by the defendant. The defendant filed a motion for leave to file a counterclaim and to stay proceedings under the judgment pursuant to Supreme Court Rule 23 (Ill Rev Stats c 110, par 101.23).

The plaintiff filed a motion to strike the defendant’s motion and proposed counterclaim on the ground that it appeared on its face to be barred by the statute of limitations. The trial court held a hearing; granted the defendant’s motion; denied the plaintiff’s motion and entered the following order from which plaintiff appeals:

“Now on this day Motion for leave to file counterclaim and to stay proceedings on judgment allowed. Counterclaim on file to stand. Proceedings on judgment stayed. Plaintiff counterdefendant allowed 20 days to plead. The Court finds there is no good reason why enforcement or appeal of the order should be delayed.”

Defendant contends that this court is without jurisdiction to hear this appeal because the order appealed from is not a final order. Plaintiff contends that the finding of the trial court made its order appealable by reason of chapter 110, Illinois Revised Statutes, paragraph 50 (2):

“If multiple parties or multiple claims for relief are involved in an action, the court may enter a final order, judgment or decree 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. 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.”

This statute applies only when the trial court enters a final order, judgment or decree as to one or more but fewer than all of the parties or claims and accompanies that final order, judgment or decree with the express finding that there is no just reason for delaying enforcement or appeal. An order which is not final in its character apart from the special finding is not appeal-able. Harris Trust & Sav. Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32.

To be final and appealable, a judgment order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court has only to proceed with the execution of the judgment. While the order need not dispose of all the issues presented by the pleadings, it must be final in the sense that it disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. Village of Niles v. Szczesny, 13 Ill2d 45, 147 NE2d 371, and cases cited therein.

The order entered by the trial court did not even purport to terminate the litigation between the parties, so therefore it was not appealable. In fact, plaintiff’s notice of appeal did not even purport to appeal from a final judgment.

For the foregoing reasons this appeal is dismissed and this case is remanded to the trial court of Madison County for further proceedings not inconsistent with this opinion.

Appeal dismissed and case remanded.

EBERSPACHER, P. J. and GOLDENHERSH, J., concur.


author: SMITH, J.

text:
    Charles W. Cribbs, et al., by Charles W. Cribbs, His Parent and Next Friend, and Ellen Lee Cribbs, by Charles W. Cribbs, Her Parent and Next Friend, Plaintiffs-Appellees, v. Stanley L. Daily and George D. Boster, Defendants-Appellants. Stanley L. Daily, Cross Claimant and Cross Appellant, v. George D. Boster, Cross Defendant and Cross Appellee.
    Gen. No. 10,640.
    Fourth District.
    February 21, 1966.

      Jack E. Horsley and William E. Larrabee, of Craig & Craig, of Mattoon, for Stanley L. Daily, appellant-cross appellant. Le Forgee, Samuels, Miller, Schroeder & Jackson, of Decatur (Carl R. Miller and Jerald E. Jackson, of counsel), for George D. Boster, appellant-cross appellee.
    Emanual Rosenberg, Joseph L. Rosenberg, Wayne L. Bickes, Rosenberg & Bickes, of Decatur, for appellees.
   SMITH, J.

Three vehicle collision. Vehicle A (Plaintiffs) is eastbound behind B (Defendant). C (Defendant) is approaching them in the westbound lane. C and B sideswipe. C careens into A. A and his four passengers sue B and C. C sues B. On A and his passengers’ action against B and C, judgment for A and all four passengers. B and C appeal. On C’s action against B, judgment for B. C cross-appeals. Reference to A shall include his passengers unless otherwise indicated.

Apropos of A’s action, B says it is C’s fault and C says it is B’s fault. B first argues that C’s collision with A is strictly C’s business, not his. Secondly, that if it is his business, he’s not at fault. Thirdly, the verdict is not supported by the evidence or the pleadings. Fourthly, a new trial should be had because of erroneous instructions and the admission of inadmissible evidence.

C argues that the verdict against him on his action against B is against the manifest weight of the evidence, and in his reply brief, that A’s verdict is too. B replies that such latter argument is “unbelievable,” and implies the same as to the former. C also suggests that A (driver only) failed to prove freedom from “contributory wrongdoing.” This suggestion has to do with the forms of verdict with grouped driver and passengers as “plaintiffs.” B and C have a high regard for A’s verdict against the other. For instance, in C’s reply brief, twenty-one of the twenty-two pages are an enthusiastic endorsement of A’s argument that B is liable, and pari passu, B is enthusiastic apropos of A’s argument that C is liable.

Here, B says we should ignore C’s “unbelievable” argument because made for the first time in his reply brief. C’s first brief does note this point in his Points and Authorities, but it is really not clear if he is saying that both verdicts are against the manifest weight of the evidence. But it really doesn’t matter in the light of the result we reach. As we have seen, C’s reply brief .applauds at length A’s victory over B and concludes that such is “supported and should not be disturbed.” B is naturally indignant, and suggests that we can disregard this foray because reply briefs must be confined to the points raised by the appellees, and C’s only reference to A’s brief is “to express agreement with it,” and that such is “obviously another attempt” by C “to collaborate” with A to hold B. This is probably not cricket of C, but then we are not playing cricket. Under the circumstances, both C and B are at liberty, in reply, to second A. Here, they are the true protagonists. A’s presence is useful only insofar as it provides them with a deus ex machina for a new trial.

Taking up the “grouped plaintiffs’ ” point, C argues that the forms of verdict given by the court covering “all plaintiffs en banc,” denied the jury an opportunity to adjudicate separately “the matter of contributory negligence, at least with regard to” the driver, since a “different duty was placed upon him than was placed upon the adult passengers.” The forms of verdict cornplained of began, “We, the jury, find in favor of the plaintiffs . . . No point is made that the passengers contributed in any way to their injuries. We assume, therefore, that as a matter of law, they were not contributorily negligent, hence they could be grouped. A replies that as a matter of law, there was no issue of contributory negligence involving the driver, and that the grouping “en banc” was proper. This is a correct statement, but it remains to be seen whether or not there was an issue. In this regard, C argues somewhat obliquely, that A might have been driving too fast—hence a jury question, at odds with the nonjury question as to the passengers. To demonstrate a factual issue on this point, C gives us an imperfect equation. He suggests that if A left point X at 8:00 p. m. to catch a train at Y point by 9:00 p. m., that just maybe, this constituted a “point of pressure” upon A, he implies, to drive faster than he should. Before we can properly infer this, we would want to know a great many things, one being the mileage between points X and Y. A in answer, not to be outdone, revises the equation, and gives us the mileage between his point X (place of accident) and point Y as thirteen miles and that he passes point X no later than 8:30 p. m. A says we can properly work this problem, because we can take judicial notice of the mileage. We have done so and the “pressure” on A was to average thirty to forty miles per hour. This being the total proof relative to framing a factual issue on this point, we are constrained to hold, as a matter of law, that there was no issue. Of course, the duty was upon the driver in the first instance to establish that he was in the exercise of due care. Taking the affirmative of the issue, and disregarding C’s algebra (which we already have), A was on his side of the road when C caromed into him. There was no evidence that he was doing aught but what he should and we, therefore, conclude that A (everybody), as a matter of law, was free from “contributory wrongdoing.” Accordingly, since this defense was not available to C or B vis a vis A, it was proper to group the plaintiffs in the forms of verdict.

On this issue, A suggests that even if there was an issue as to the driver, a jury could always put a “0” in the damage column opposite the driver’s name indicating that he was contributorily negligent. We doubt this, but then if there had been “0” damages for the driver, no complaint could have been made by B or C and certainly A couldn’t complain if this issue was present. Doubtless explanatory instructions could scotch any implication that might arise from “grouping” but that problem is not before us.

We now take up B’s argument that A’s damages were C’s fault. B’s car, we will remember, was ahead of A, and never hit him. It was C who hit A. If this were all, B could be right. But there is more. C and B sideswipe and within seconds C smashes into A. B would have us believe that his collision with C was a separate and distinct event, unrelated to the collision between C and A—that C’s negligence “was the intervening proximate cause of plaintiffs’ injuries.” But the juxtaposition of time and space between the two collisions militates against any serious discussion that C’s negligence intervened between B’s negligence, if any, in colliding with C. B can only be exonerated if he was not at fault in his collision with C.- There is no point here in re-enacting the accident to its minutest details because the collisions indubitably comprised one occurrence—as the older cases would have it, they are concatenated in time and place.

Can fault be ascribed' to B in his collision with C, and vice versa ? On this proposition, if B or C was not at fault, they cannot be held by A. As we know, B says it was C’s fault and C says it was B’s fault and A says they are both right. What it comes down to is who, between B and C, crossed the center line and who didn’t, or did they both? B admits that there is some evidence that he was over the center line, but that it is only C who says so, and his “conclusions are contrary to the facts.” A testified that either one or both of them crossed the center line, but qualified it, so it is argued, on cross examination, that he thought “one of the cars went over the center line.” There are lots of “ifs,” “ands,” and “buts.” One of the witnesses is described as reluctant and evasive. The physical facts are analyzed at length, with opposite conclusions. We are asked to reverse the verdict as to one or the other, because it is based on testimony that is incredible. As always, we reply that the question is not for us, but for the jury. We are of the opinion that there was evidence that B and C were both negligent, evidence that their combined negligence resulted in A’s injuries.

There is, of course, a certain unreality in saying that two cars approaching each other can both cross a line drawn between them in the same instant. The statement reminds us of a variant of one of the puzzles of Zeno of Elea. Philosophically, this is an impossibility—somebody has to come over first. But the center lines of our hard roads do not lend themselves to this sophistry, and it is quite possible that both A and B arrived on the center line at the same time—at least triers of the fact could so find. If they did so and as a result, C was thrown into the path of A, that fact does not excuse B vis a vis A. It does, however, relieve B from being held by C—for C is at fault too. As we have stated, we have no trouble in saying that B and C’s combined negligence was the proximate cause of plaintiffs’ injuries, or rather, that a jury had the undoubted right to so conclude.

Thomas v. Cagwin, 43 Ill App2d 336, 193 NE2d 233, is most apt. There it was stated:

. . . “In the case at bar all of the evidence and all inferences which can reasonably be drawn from the evidence point to the fact that one or the other, or both, defendants were negligent. The sole question before the jury was whether one or both defendants were liable and, if one, which- one.” . . .

and quoting from Pearlman v. W. O. King Lumber Co., 302 Ill App 190, 23 NE2d 826, it was stated further:

“There is no defense in this case. Either one or both of the defendants are guilty. The only question for the jury to decide is, which one of the defendants is guilty, or both, and the amount of the damages.” . . .

We realize that we have pared our recitation of the evidence almost to the nub—but to us it hardly seems fair to burden the Bar of this State with another long, factual recital only to reach the conclusion that there was a question of fact. We will therefore proceed to the matters urged for reversal and remand.

B, as we have seen, objects to some of the instructions and points to certain phases of the proof. At another juncture, he argues that the pleadings did not justify a joint verdict. ’ We will consider that point now. Initially, the complaint charged that B and C had “violently collided” with each other, but, in alternate counts, stated that it was either B or C’s negligence that caused this collision, which resulted in C hitting A. No single count stated that both were negligent and prayed a joint recovery. At the time of trial, B raised the objection that the complaint as' it then stood would not support a joint verdict. This seems somewhat captious, but with commendable perspicacity, A then amended the Complaint to make it more perspicacious in this regard. We think A was right in the first instance, assuming, as was the case, that all counts were being tried at one time. If there was any doubt, it was removed by the amendment, which by reference incorporated the alternate counts in one count, and added the allegation that the “negligent acts or omissions of the defendants” caused A’s injuries. Section 33(1) CPA ordains that pleadings are to be liberally construed and this we will do. Neither B nor C (who does not raise the point) could hardly have been surprised that A was seeking damages from both of them.

B’s objections to certain instructions have a common theme—that both B and C could be held. One of the instructions stated that it was the “duty of the defendants” to use ordinary care for the safety of plaintiffs. There is nothing wrong in this. It is a correct statement of the law and certainly no purpose is to be served by having it read twice. For that matter, the argument could be made that the plaintiffs should not be grouped, and it should be read as to each one of them. Since there were five plaintiffs and two defendants, the same instruction would have had to have been read ten times. The remaining instructions contained such phraseology as, “defendant or defendants,” “party or parties.” B thinks this tells the jury that they can find against both of them. He is right, but this, as we have seen, was not error. The use of the disjunctive avoids the connotation that they must. B makes a great pother that C improperly put into evidence his left-front tire, as to which an expert expatiated that its deflation came externally from a cut, and not internally from a blowout. C immediately after the accident had told everybody within earshot that he had a “blowout.” Apparently, he had second thoughts, and decided that his initial outburst was in error. B seizes upon this outburst as proof positive that C thought that B had not come over into C’s lane, but rather the other way around, or, he argues, why would C apologize or try to explain how the first collision occurred. For all we know, maybe C did at first think that he had had a blowout, but even so, this would not be binding upon him, if mature reflection on the facts convinced him otherwise. In any event, the purpose of the exhibit and the expert was to belie the blowout theory, and of course, to attempt to put the blame on B for the flat tire, the theory being that the flat tire had the effect of pulling C in front of A. This does lend some credence to C’s theory that B crossed the centerline first. But it is only a theory and it works just as well for B—after all, there is nothing in the nature of a left-front tire, that we know of, which prevents it from being cut on either side of a centerline. Hence, as before, we are missing some essential facts, if we are to draw inexorable inferences. It is hard to see how this prejudiced B assuming that the tire and the expatiation were improper, in the sense, urged by B, that there was no foundation for either the tire or the expert. In the first place, certainly an expert can opine whether a rupture was from within by blowout, or from without, by cutting. The tire, in our opinion, was properly identified as the left-front tire by C (no other tires were damaged), and a witness testified that it was in the same condition at the trial as it was when he saw it at 7:00 a. m. on the morning following the accident. The short lapse of time between 8:30 p. m. and 7:00 a. m. was adequately explained, at least to the extent necessary. No suggestion is made, at least nothing was brought out, to the effect that anyone had tampered with the exhibit prior to the time that this witness first saw it. See Lestico v. Kuehner, 204 Minn 125, 283 NW 122, for a similar situation and similar holding.

With all we have said, mostly with respect to B’s various points, he can take some comfort, slight as it apparently is, that the verdict for him on C’s action was proper. The jury’s implied finding that both were negligent means that neither B nor C can recover from the other—at least the drivers can’t, since we don’t have comparative negligence in Illinois. We agree with B, that C’s argument is “unbelievable”—and as to all verdicts too. At least, we don’t believe it. The various judgments appealed from are affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: CRAVEN, J.

text:
    Lola Stegeman, Charlotte Becks and Marjorie Howell, Plaintiffs-Appellees-Cross Appellants, v. Isabel Smith and John T. Reardon, Executor of the Last Will and Testament of L. R. Smith, Deceased, Defendants. Isabel Smith, Defendant-Appellant-Cross Appellee, and John T. Reardon, Executor of the Last Will and Testament of L. R. Smith, Deceased, Defendant-Appellee-Cross Appellee.
    Gen. No. 10,649.
    Fourth District.
    February 21, 1966.

      Rosenberg, Rosenberg & Bickes, of Decatur, for appellant.
    H. David Condron and Inghram & Dittmeyer, all of Quincy (John T. Inghram, of counsel), for appellees.
   CRAVEN, J.

The plaintiffs, Charlotte Becks, Lola Stegeman and Marjorie Howell, are the children, by a former marriage, of one L. R. Smith who died testate on April 22, 1954, while married to the defendant, Isabel Smith. The suit was for partition and other equitable relief in respect to a tract of ground in Quincy, Illinois, having a frontage on Spring Street of 78 feet and a depth of 170 feet.

The decedent was the sole owner of a portion of the tract having a 60-foot frontage (referred to in the evidence as tract one). The decedent and his wife, Isabel Smith, the defendant, acquired the adjacent portion, having an 18-foot frontage (referred to in the evidence as tract two), by warranty deed dated September 29, 1949, as joint tenants and not as tenants in common.

In 1950 and 1951, a residence having a 68-foot frontage was built on the tract, approximately 55 feet of the residence being built on tract one and 13 feet on tract two. Decedent and his wife occupied the residence as a home until his death.

L. R. Smith’s will, which is dated December 3, 1952, is as follows:

“This written statement is to instruct my attorney Mr. John T. Reardon how I would want my estate divided in case of my death. He shall have the power to serve as administrator with giving surity [sic] bond and is to be paid a reasonable fee. Now here is the way I would want my estate handled. I would want it all converted to cash as soon as it could be done in a sound business way, which consists of my automobile business which can be sold to a good advantage on present market also my home located at 2012 Spring St. Quincy, Ills, which cost me $47,500 after this is done here are my requests. First that at least $1000 for my burial exp and am to be placed beside my former wife Dora Smith as near like she was put away as possible.
“$300.00 to the First Christian Church at 14th Maine to be used for church maintance [sic].
“$4,000.00 to each and every one of-my grandchildren to be put in trust until they reach their 18th Birthday and then is to be paid to them.
“$500.00 to Marie Smith, a sister, $500.00 to Lillie Reeder, no relation. $300.00 to Carson Smith, a brother to be used as burial expense for him only.
“$500.00 to Glenna Grover for her faithful duties to the L. R. Smith Motor Co.
“$200.00 to Eleanor Wilier for her faithful service in taking care of my home.
“My insurance is made to my three daughters. The remainder of the estate is to be divided in equal shares between Charlotte Becks, Lola Stegeman, Marjorie Howell, Isabel Smith, my wife and daughters. [Crossed out portion.] Each daughter is to pay their bills now owing to the company from their share of the estate then that shall be divided in four equal shares to the wife and three daughters [crossed out portion]. Jack, I know you will see that this is done, Glenna can give you all the information about the business. Oh, yes there are about $8000.00 in Goverment [sic] Bonds in Safety Box at Ill. National Bank.”

Isabel Smith, defendant, widow of L. R. Smith, renounced the will and elected to take her statutory share July 22, 1954, and has continued in possession of the entire premises to this date.

The parties have been unable to reach any agreement for division or settlement.

One appraiser testified that the lot (78-foot frontage) had a value of $60 per front foot or $4,680, that the reproduction cost of improvements would be $88,636 for a total cost of $43,316. He placed the present market value at $30,000, assigning $1,080 land value and $6,172 improvement value to the 18-foot strip. This strip could not be used alone as a residence because, by the terms of a zoning ordinance, a residence was required to have 6,000 square feet of lot area. The appraisal testimony was not controverted.

It appears to be conceded that neither tract one nor tract two could be sold separately without great sacrifice and it is apparent that the improvements consist of one functionally unified residence building.

The decree of the circuit court of Adams County followed the recommendation of the master-in-chancery which denied partition, denied a resulting trust and found a mutual mistake in the building of the house which gave rise to equitable jurisdiction based upon broad equitable principles, and ordered a sale of tracts one and two in a single sale. The decree found 24.17335% of the value to be in the 18-foot tract and 75.82665% of the value to be in the 60-foot tract. It ordered the taxes, which had been advanced by the executor, in the sum of $4,710.42, deducted from the proceeds of sale, the payment of $1,000 homestead exemption to the defendant, Isabel Smith, and the balance of proceeds after deducting costs of this proceeding to be paid 24.17385% to the defendant and 75.82665% to the executor for administration through the estate.

The other assets of the estate amount to approximately $39,000. The executor states that there are not sufficient funds to pay the widow’s award that may be allowed, the widow’s one-third of the personal property and also the legacies.

Both defendant and plaintiffs appeal from the decree. The defendant contends that the court had no jurisdiction to order the sale.of tract two, the 18-foot strip. The plaintiffs contend that the court should have ordered the taxes paid by defendant during the period of her use.

The defendant contends that there is no basis for the finding of either mutual mistake or any mistake of fact that would be actionable and that the decree of court ordering the sale of tract two, the 18-foot strip, is in effect an invalid exercise of private eminent domain.

The plaintiffs contend that the finding of mistake was supported by the evidence, that a mistake to ground equity jurisdiction need not be mutual, that equity will act to prevent unjust enrichment, that equity will not suffer a wrong without a remedy, and that there need not be an exact precedent to justify equitable relief.

This is a case of first impression and, indeed, does have an initial appearance of a legal labyrinth. It would seem, however, that the appropriate procedure would be to investigate, first, whether there is a fact situation which ought, in fairness, and in the orderly administration of justice, to have judicial relief and, secondly, whether the application of some remedy would create such additional problems that it ought not to be attempted.

The salient facts are that descendants of the testator, who are entitled to approximately two-thirds of the testator’s estate, have been deprived of their lawful inheritance for more than eleven years. Their property rights become illusory.

No progress has been made in the eleven years to break the impasse which has been reached. One of the chief assets, which is slightly more than one-third of the estate, is improved real estate which is subject to depreciation, obsolescence and waste. The estate, while deriving no benefit therefrom, is being slowly dissipated in the payment of taxes, the sum of $4,710.42 having been expended to date. The defendant widow, while being legally entitled to only a fraction of the value of the residence, has in effect the full undisturbed use thereof to the detriment of persons entitled to their share of this asset.

No remedial statute or any exact precedent has been cited for breaking this impasse. However, the reasons behind the somewhat analogous equitable precedents exist in this casé. For example, the reason for partition is to enable those who own property in common to sever their interests so that one may take possession of and enjoy and improve his separate estate at his own pleasure and convenience. Bowman v. Austin, 393 Ill 593, 596, 67 NE2d 168. Mechling v. Meyers, 284 Ill 484, 487, 120 NE 542. Whenever a partition is in fact authorized and it appears that the premises are not susceptible of division, a sale is authorized. When a division in kind is practical but the shares are not exactly equal, an equalizing payment is authorized. Where one improves the land of another by mistake he has variously been given an equitable lien for the cost of the improvements or the enhanced value of the premises or a right to purchase the premises if the owner elects to sell. Pope v. Speiser, 7 Ill2d 231, 238, 130 NE2d 507; Olin v. Reinecke, 336 Ill 530, 534, 168 NE 676; Elder v. Clarke, 385 Ill 335, 340, 52 NE2d 778; Clark v. Leavitt, 335 Ill 184, 187, 166 NE 538; Wakefield v. Van Tassell, 218 Ill 572, 576, 75 NE 1058. 57 ALR2d 263, et seq. The cases emphasize unjust enrichment and do not require a mutuality of mistake. Sometimes emphasis is placed upon the fact that the owner stood by and permitted the improvements. Fitzpatrick v. Allied Contracting Co., 24 I112d 448, 455, 456, 182 NE2d 183.

While no specific statutory authority is conferred to exercise dominion over the property of one person in favor of another, an analogous power is conferred upon courts to equalize legacies where a disproportion has resulted among legatees from the exercise of the right to renounce a will. Also, while no specific authority is conferred, in the present situation, equity exercises jurisdiction over property rights of married persons.

It is the general policy of the law that the probate and settlement of estates be accomplished with expedition and that parties be placed in possession and enjoyment of their inheritance as quickly as possible. It is the further policy of the law that the intention of the testator be effected.

In this case there is some evidence from which the trial court could have found that the testator built upon the ground under the mistaken belief that it was entirely owned by him. That evidence is contained in the will in which he refers to the property as “my home which cost me $47,500.”

The defendant widow in this case elected to take her statutory share and thus elected to become a tenant in common in respect to the greater part of the residence property with other heirs. She also became, in effect, a tenant in common in the personal property. The circumstance that defendant survived the decedent is an accident and by reason of this accident the ownership, instead of being single in L. R. Smith, is divided both physically and in interest—but not in possession and enjoyment.

In this case, additionally, defendant’s single ownership is of a strip only 18 feet wide in a residential zoning classification where such property would not qualify separately for use as a residence but only in connection with sufficient adjacent property to make 6,000 square feet. The property is improved with an improvement of much greater value than the land itself and is unified with a more valuable piece of ground on which there is also an improvement of much greater value than the ground. If the 60-foot tract were sold and a partition wall erected, or the improvement removed on the line of the 18-foot tract, the 18-foot tract would be practically valueless.

Therefore, in answer to our first inquiry, the answer to the question whether there are equitable considerations which demand relief if possible is decidedly in the affirmative.

The second inquiry is whether, in granting the relief which involves the exercise of powers over individually owned property [tract two, the 18-foot strip], the court would be violating constitutional rights or creating such a dangerous precedent that it should not be done—even if clearly indicated. Would the cure be worse than the disease? We think not.

The court is familiar with the frequently stated rule that partition would lie only between common or joint owners. Stevenson v. Bachrach, 170 Ill 253, 47 NE 327; McConnel v. Kibbe, 43 Ill 12. Annotation 28 ALR 727, esp. 732. Whether a different result might be achieved in different circumstances, it is true that in neither of those cases were the peculiar circumstances present that obtain here. In McConnel v. Kibbe, 43 Ill 12, while the ownership of the buildings overlapped the ownerships of the land, nevertheless, the parties had by elaborate description of lands, buildings and easements, made two separately usable properties. But the rules with reference to strict partition have not prevented the courts from imposing an unwanted lien for the value of improvements upon an individual’s property, as in Pope v. Speiser, 7 Ill2d 231, 130 NE2d 507, and the other cases cited above in the same connection.

We do not hold that wherever there is a building erected over a divided land ownership there may always be relief in equity. We do not take that to be the law. Additionally, while one equitable consideration which lacks a requirement for equitable relief is a reason for denying relief, it does not follow that numerous equitable considerations, which each in themselves might fail as a sole basis for relief, might not in total constitute a strong basis for equitable relief. One silken thread will not hold a ship in a storm but sufficient threads can create a hawser. One nagging remark is not a justification for a husband to leave but Xanthippe could make Socrates put on his hat and go for a walk.

Nor are we required to find an exact precedent for action which equitable considerations demand. In First Nat. Bank of Chicago v. Bryn Mawr Beach Bldg. Corp., 365 Ill 409, 421, 6 NE2d 654, the Supreme Court of Illinois said:

“The above and similar cases, though not deciding the question here, evidence a recognition by this court that rules of equity jurisdiction have developed and are developing, and that judicial proceedings .must be adjusted to facts as they are. All who are conversant with the history of equity jurisprudence know that as a distinct system it has been of constant growth and development from its inception, covering a period of hundreds of years. ‘The jurisdiction of a court of equity does not depend upon the mere accident whether the court has, in some previous case or at some distant period of time, granted relief under similar circumstances, but rather upon the necessities of mankind, and the great principles of natural justice, which are recognized by the courts as a part of the law of the land, and which are applicable alike to all conditions of society, all ages, and all people.’ ” (Citation omitted.)

We hold that the plaintiffs are entitled to have the interests severed in such a manner that the major portion of the value of this unified asset will not be destroyed, even though, as an incident to this relief, the property of the defendant may have to be sold with the property of the plaintiffs. The plaintiffs should not, however, be given the election in this matter. The situation, so far as appropriate relief is concerned, seems more analogous to Fitzpatrick v. Allied Contracting Co., 24 Ill2d 448, 182 NE2d 183, than to a standard partition suit.

The defendant should be given an election to purchase the 60-foot tract with the improvements thereon for the sum of $22,748, taking credit against this price, if she also so elects, any one or all of the following: (a) her widow’s award, (b) the value of her homestead interest, (c) her statutory one-third interest in the realty and (d) her statutory one-third interest in the personal property. The defendant should likewise be charged with the real estate taxes paid by the executor from 1954 to 1963, in the amount of $4,710.42 and one-half of the costs of this proceeding. Such election should be made in writing within 60 days from the decree fixing her rights. In the event the defendant does not elect to purchase the 60-foot tract with its improvements, as aforesaid, the entire 78-foot tract with the improvements should be ordered sold and the proceeds of sale, subject to the cost of sale, should be allocated 75.82665% to the 60-foot tract and 24.17335% to the 18-foot tract. In any event, defendant should be charged with the taxes advanced by the executor, as aforesaid, and one-half of the costs of this proceeding.

Reversed and remanded with directions to enter a decree in accordance with directions herein.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Lester French, et al., Jesse A. French, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. James Lester French, et al., Jess A. French, Defendant-Appellant.
    Gen. Nos. 10,662, 10,663.
    Fourth District.
    February 21, 1966.

      James L. Perbix, of Havana, for appellant.
    Don P. Boggs, State’s Attorney for Mason County, of Havana, for appellee.
   CRAVEN, J.

In two separate cases, the defendant entered a plea of guilty in the circuit court of Mason County to the charge of burglary. Concurrent sentences of two to fifteen years were imposed.

The defendant, by this appeal, contends that he did not understandingly waive counsel or the right to indictment by grand jury. Both cases originated by the filing of criminal complaints charging burglary and other crimes. Ultimately all charges except the burglary charges were dismissed. The conviction was based upon the criminal complaint.

The relevant portions of the record in both cases are identical and the appeals have been consolidated for decision.

On February 16, 1965, the two criminal complaints were filed charging the defendant and others with two counts each of burglary and theft and one count charging criminal damage to property. On February 18, the defendant appeared in court without counsel, was advised of his right to counsel, and at the request of the defendant the matter was continued so that he might engage counsel. On March 2, 1965, defendant again appeared without counsel. When the court made inquiry as to whether the defendant was represented by counsel the defendant, responded that his attorney “hasn’t come down from Peoria yet:” The cause was again continued after the court advised the defendant that an attorney would be appointed if the defendant were unable to employ counsel. On March 9, 1965, the defendant appeared with court-appointed counsel and the cause was again continued, at the request of the defendant, until March 23. On the latter date, the court informed the defendant of his right to have the charges presented to the grand jury. The defendant asserted that he did not desire to waive indictment, stating, “I want to take it to the grand jury.”

On the same day, the court-appointed counsel made a motion to withdraw for reasons unrelated to these proceedings. In the motion to withdraw counsel stated, “This is bound to extend past April 1st and I feel that he should have other counsel appointed for him to carry on from here. . . .” On March 25, defendant'appeared without counsel. The court Observed: “You last appeared in Court here on March 23, which was the day before yesterday and at that time you requested to be prosecuted by way of indictment by the grand jury and Mr. Wheeler asked leave of the Court to withdraw as your attorney and for good cause I granted him leave to withdraw as your attorney. I have not yet appointed another attorney to represent you, although if I remember correctly you asked me to when you were in Court the day before yesterday.”

The defendant replied in the affirmative to this observation by the court. This was followed by an assertion by the defendant that he wished to change his plea and to enter a plea of guilty to these charges. The court admonished the defendant as to the consequences and advised the defendant that he was ineligible for probation by reason of a prior conviction. There followed this exchange between the defendant and the court:

Court: “Do you still wish to proceed with this?
Mr. French: “Yes.
Court: “Do you wish to proceed without an attorney ?
Mr. French: “I would rather have one.
Court: “The last time you were in Court you asked me to appoint another attorney to represent you and as I understand this morning you want to proceed without an attorney and you want to enter your plea of guilty to this charge, to both of these charges, is that correct ?
Mr. French: “If I plead guilty I can’t have a lawyer, can I ?
Court: “You can have a lawyer, you are entitled to be represented by an attorney either way whether you plead guilty or not, but it doesn’t make any sense to be represented by a lawyer if you are going to enter your plea of guilty. In other words if you want me to appoint an attorney to represent you I would encourage you not to enter your plea of guilty until after you had time to consult with him. In other words if [sic] doesn’t make much sense to come in and enter your plea of guilty and then ask for a lawyer, a Court appointed attorney. I don’t care how you proceed on this, you have made up your mind several times now and you have changed it several times and you have caused an undue hardship on the Fulton County authorities bringing you over here. I don’t care what you do but I would like for you to do one thing or the other.”

Following a conference between the defendant and the State’s Attorney, the defendant proceeded to waive indictment and jury trial, entered a plea of guilty and asked for probation. After the plea of guilty, the charges other than the burglary were then dismissed on motion of the State’s Attorney. Subsequently the defendant was sentenced and at that time requested the appointment of counsel by the court for purposes of this appeal.

Supreme Court rule 26 (Ill Rev Stats 1963, c 110, par 101.26) provides in part as follows:

“(3) The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understanding^ waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. The inquiries of the court, and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.”

Paragraph 113-3 (b) of ch 38, Illinois Revised Statutes 1963, provides:

“In all cases except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. If there is no Public Defender in the county or if the defendant requests counsel other than the Public Defender, the court shall appoint as counsel a licensed attorney at law of this State.”

It is clear that, by rule and by statute, a procedure is set forth to establish that a defendant in a criminal proceeding is afforded the rights there enumerated. It is further clear that the right to counsel or to indictment by grand jury may each be waived if understandingly done. The requirement that the inquiries of the court and the answers of the defendant shall be recited in the record has as one of its purposes, obviously, provision for a form of procedure which will eliminate any doubt that there was compliance with the rule. People v. Rivers, 22 Ill2d 590, 177 NE2d 154 (1961); People v. Flathers, 414 Ill 486, 111 NE2d 530 (1953).

In the recent case of People v. Bush, 32 Ill2d 484, 207 NE2d 446 (1965) the Supreme Court discussed the right to counsel and the waiver thereof, and the observations there made seem most appropriate to the question here presented. At 487, 488, (207 NE2d, at 448) Mr. Chief Justice Klingbiel, speaking for a unanimous court, said:

“There can be no question but that one accused of a felony is entitled to the assistance of counsel. (Gideon v. Wainwright, 372 US 335, 9 L Ed2d 799, 83 S Ct 792.) However, this right may be waived (People v. Robinson, 27 Ill2d 289 [189 NE2d 243] ; People v. Kenzik, 22 Ill2d 567 [177 NE2d 162]) and the right of a defendant to represent himself when the choice is intelligently made is as fundamental as his right to be represented by counsel. (People v. Sinko, 21 Ill2d 23 [171 NE2d 9]) A finding of waiver is' not lightly to be made (Moore v. Michigan, 355 US 155, 161, 2 L Ed2d 167, 78 S Ct 191, 195) and the record must show that an accused was offered counsel and that he intelligently and understandingly rejected the offer. (Carnley v. Cochran, 369 US 506, 516, 8 L Ed2d 70, 82 S Ct 884, 890; Johnson v. Zerbst, 304 US 458, 464, 82 L Ed 1461, 58 S Ct 1019, 1023.) In order that the court may be sure that an accused fully understands his right to counsel and intentionally relinquishes that right, something more than a routine inquiry by the court is required. (Von Moltke v. Gillies, 332 US 708, 724, 92 L Ed 309, 68 S Ct 316, 323.)” . . .

The admonition by the court in this case is very similar to the admonition of the court in the Flathers case, which was approved on review. Here, however, unlike Flathers, the defendant persisted in his request for the appointment of an attorney and clearly stated that he did not wish to waive indictment. When this record is viewed in the light of the principles set forth in Bush, we must conclude that there was a failure to comply with the provisions of rule 26 as to the waiver of indictment and right to counsel. It cannot be said that either waiver was knowingly and intelligently made. For this reason the judgment of conviction must be reversed and the cause remanded to the circuit court for further proceedings in accordance with the views herein set forth.

Reversed and remanded.

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


text:
    Barbara Sturdy, Plaintiff-Appellant, v. Thomas Sturdy, Defendant-Appellee.
    Gen. No. 10,676.
    Fourth District.
    February 21, 1966.

      Miles Gray and Harlington Wood, Jr., both of Springfield, for appellant.
    Roscoe Bon jean, of Springfield, for appellee.
   TRAPP, P. J.

Plaintiff appeals from the judgment of the trial court entered when the court dismissed plaintiff’s petition, and the latter elected to stand upon said petition.

On January 29, 1960, plaintiff obtained a decree for divorce from the defendant, which decree found that the parties had been married on September 30, 1959. The complaint for divorce alleged that the marriage had been consummated and that there was a possibility of issue, and prayed that the custody and support of any child born be reserved. Defendant’s answer to such complaint denied a lawful marriage, denied the consummation of the marriage, and denied the possibility of issue to the parties. The decree found that the parties were married but had not lived together subsequent to the marriage, and after appropriate finding, granted a divorce, the decree barring each from any claim of alimony and barring any claim of homestead or dower each in the property of the other. No finding or reservation is in the decree with regard to children born or who might thereafter be born.

The petition in issue, after amendment, alleges that the defendant is the natural father of the minor child born on May 2,1960, and that at the time of the marriage it was known to the defendant that the petitioner was some two months pregnant. The petition prays the reinstatement of the cause and a modification of the decree so that the care and custody of the minor child be awarded to the petitioner, and appropriate provision for support to be paid by the defendant be made by the court.

The motion filed by the defendant asks dismissal of the petition as being a collateral attack upon the decree entered, there being no reservation of jurisdiction by the court to provide for a child born to the parties, and alleges that the minor child is, under the language of chap 106%, § 51 (Ill Rev Stats), a child born out of wedlock, that there is no presumption of its legitimacy and that the action is barred by the language of § 54 of that chapter, more than two years having elapsed since birth of the child.

A court of equity, as an incident to disposing of marital matters, has the power to determine the legitimacy of children. The Supreme Court has held that a child born within a competent time after the termination of a marriage is legitimate. Sugrue v. Crilley, 329 Ill 458, 160 NE 847; Zachmann v. Zachmann, 201 Ill 380, 66 NE 256.

Again, it has been the law of this State that proof of antenuptial conception does not destroy the presumption of legitimacy, Zachmann v. Zachmann. In Dill v. Patterson, 326 Ill App 511, 62 NE2d 249, the parties who had been living together were married some five months before the birth of the child. The husband filed suit for divorce before the child was born, claiming that there were no marital relations during the period of the marriage. The court held that it could properly be found that the child was legitimate and that the defendant was liable in an action for its care and support.

We cannot accept the argument of the defendant that by reason of the sequence of the events alleged, the minor child is necessarily a “child born out of wedlock,” or that the status, rights and procedures for procuring support of such child are delimited solely by the provision of chap 106%, § 51, et seq. (Ill Rev Stat), “An Act in relation to the paternity of children born out of wedlock.”

For purposes of such Act, a “child born out of wedlock” is a child whose parents were not married to each other at the time of its birth. It further provides that a child shall not be considered as born out of wedlock if its parents were married at the time of conception but divorced at the time of birth, or if after conception or birth, the marriage of its parents is declared void. The language setting out exceptions to the status of illegitimacy reflects that where marriage of the parents has intervened, the child is not to be considered as “born out of wedlock.” We cannot hold that the fact that this Act omits to state the particular sequence of conception, marriage, divorce and birth that is alleged here, requires this court to hold that this minor child was “born out of wedlock.” Neither authority, nor reason, suggests any legislative intent that the Paternity Act reduces or restricts the power of a court of equity under the Divorce Act, chap 40, § 19 (Ill Rev Stats), for providing for the support of minor children. Many opinions of the court demonstrate the contrary as will be shown hereafter.

Defendant concedes in his argument that upon a petition filed in the divorce proceedings within two years of the date of the decree, the trial court would have had jurisdiction to determine the questions of paternity and the support of the child. He points out, however, that this petition constitutes a collateral attack upon the decree and that it cannot be sustained as a proceeding for relief under § 72 of the Practice Act, since that section requires the relief to be sought within two years of the date of the decree.

The authorities cited by the defendant are Cherin v. The R. & C. Company, 11 Ill2d 447, 143 NE2d 235, and People v. O’Keefe, 18 Ill2d 386, 164 ME2d 5. Each of these cases concerned motions to vacate an order for judgment directing a tax deed. In each instance it was held that a petition, more than 30 days after the date of the decree, constituted a collateral attack upon the order. In neither opinion is there reference to proceedings under § 72 of the Practice Act.

Coolbaugh v. Coolbaugh, 33 Ill App2d 444, 178 NE2d 702, is the only case that we have discovered wherein the requirements of § 72 of the Practice Act were applied to a motion to vacate a decree in divorce proceedings. Following a decree by default, defendant filed an unverified motion to set aside or modify the decree. Such was done by the trial court and the decree was modified with relation to a certain property settlement. The modifying order was reversed upon appeal, the court pointing out that the motion made after 30 days was a collateral attack upon the decree, and that error in obtaining waiver of the 60 day waiting period was not a ground for relief under § 72 of the Practice Act. There was no question of support of children mentioned in this opinion.

Where the support of a minor child is the problem before the court, no cases have been cited, and we have found none which hold that the proceedings may be a collateral attack upon a divorce decree, or that the two year period provided in § 72, Civil Practice Act, may bar the relief.

On the contrary, all of the authorities disclose the extreme concern of courts of equity to consider the children of the divorced parents as wards of the court and to exercise virtually all powers necessary to protect the interest of the child. The view was strongly stated in Kelley v. Kelley, 317 Ill 104, 147 NE 659 (1925), wherein the wife obtained a divorce upon service by publication, the decree awarding custody of the child to the plaintiff. Subsequently she obtained personal service upon a petition in the same cause asking for alimony, for support of the child and for attorney’s fees. The defendant moved to dismiss, alleging that the court was without jurisdiction. The trial court entered a decree providing for alimony, child support and attorney’s fees. The opinion points out that under the statute then in effect, the court could .not award alimony where the decree was entered without personal service and that the then statute authorizing the alteration of alimony did not apply where there was no alimony provided in the original decree. The court said, in effect, that the wife waived her right to alimony by proceeding to a decree without personal service. The court, however, pointed out that it was the policy of the court to regard children as its wards and that the Act authorized orders for care and support of a child pending the suit or upon decree, and that it may be altered from time to time. Pointing out that the relation of parent and child cannot be destroyed, the court said that the obligation of the father begins when the child is born and continues during its minority and that such obligation is not affected by a decree granting divorce or granting custody, and that there was no doubt that the court might require the father to show cause why he should not be required to support the child.

In 1947 the Act to revise the law in relation to divorce, chap 40, § 19 (Ill Rev Stats) was amended to include the language:

“. . . Irrespective of whether the court has or has not in its decree made an order for the payment of alimony or support, it may at any time after the entry of a decree for divorce, upon obtaining jurisdiction of the person of the defendant by service of summons or proper notice, make such order for alimony and maintenance of the spouse and the care and support of the children as, from the evidence and nature of the case, shall be fit, reasonable and just. . . .”

In Lombardi v. Lombardi, 31 Ill App2d 184, 175 NE2d 582, the court held that the effect of such Amendment is that even where there has been service by publication so that there is no decree in personam, the court, by a subsequent order, may provide alimony. The court, in Lombardi, pointed out that since the 1947 Amendment found in chap 40, § 19, (Ill Rev Stats), the court in the original divorce case, upon obtaining jurisdiction of the person of the defendant by summons or proper notice, is required to make such order for the care and support of the child as from the evidence and nature of the case shall be fit, reasonable and just. It is not necessary for the plaintiff to file a new suit or to proceed under any other statute.

In Miles v. Miles, 20 Ill App2d 375, 156 NE2d 371, the husband obtained a decree of divorce in 1952. In 1957 the wife filed a petition stating that the cause had been heard as in default, that the complaint failed to mention that a child was born to the parties and made no finding as to such child, and prayed that the decree be modified so that the husband be required to pay a reasonable sum for its support, retroactive to the date of the decree, together with a reasonable attorney’s fee. The husband filed a motion to dismiss, stating that the decree found the equities in his favor and that it was final and settled all matters pertaining to the status of the parties, and that five years had elapsed since the entry of the decree so that the wife was guilty of laches and should be estopped to make the claim. The court held that it was error to dismiss the petition for want of equity and cited various authorities that the duty of the parent arises out of the natural relationship, and that when the decree for divorce of the parents makes no provision for the care of the minor child, the father remains bound to provide reasonable and proper support and that such duty is not relieved by the fact that the father procures a decree of divorce.

There is a consistent holding by the courts that even where the decree of divorce does not mention the child and does not award custody or provide for care, nonetheless, the duty of the father to provide support will be enforced by the court. Boyle v. Boyle, 247 Ill App 554, Miles v. Miles, 20 Ill1 App2d 375, 156 NE2d 371; and People, ex rel. Hartshorn v. Hartshorn, 21 Ill App2d 91, 157 NE2d 563. The degree of interest of the court in this matter is demonstrated by those opinions which, under appropriate circumstances of the physical condition of the child, may require the father to provide support for periods beyond the minority of the child. Strom v. Strom, 13 Ill App2d 354, 142 NE2d 172; Freestate v. Freestate, 244 Ill App 166.

The record discloses that the pleading of the parties stated issues as to the legitimacy of the minor child and the child’s right to support at the time of the hearing which culminated with the decree of divorce. For reasons not disclosed by the record, these issues were not passed upon by the trial court. We do not believe that the finding of the trial court, that the parties did not live together subsequent to the marriage, is conclusive upon these issues. Dill v. Patterson, 326 Ill App 511, 62 NE2d 249.

The minor child in this case has a right to be supported by its father. Lombardi v. Lombardi, 31 Ill App2d 184, 175 NE2d 582; Kelley v. Kelley, 317 Ill 104, 147 NE 659. As stated in Collins v. Collins, 14 Ill2d 178 at p 184, 151 NE2d 813:

“It is a settled principle of law that where parties are in pari delicto, the court will refuse to extend them aid, but it is equally true that where the State is an interested party, the contributing guilt of the parties to the suit will not bar the granting of relief. The State is often called a “third party” to every suit for divorce or nullity of marriage. It is interested in the protection of the marriage relation, and the welfare of society. Plaintiff is not barred from bringing this action to vacate because she was a party to the divorce action and knew the pleadings failed to set forth sufficient allegations and testified in support thereof. Jardine v. Jardine, 291 Ill App 152.”

In Leland v. Brower, 28 Ill2d 598, 192 NE2d 831, it is stated that the obligation of the father to support a child is not controlled by any agreement of the wife so far as courts of equity are concerned.

In a case involving these issues, the court must speak with the voice of the public conscience and take the measures reasonable to ascertain and protect the rights of the child.

The decree of the trial court is reversed and remanded for the determination of issues which may be raised upon appropriate pleadings.

Reversed and remanded.

SMITH and CRAVEN, JJ., concur.


author: JUSTICE TRAPP.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Anthony Brooks, Defendant-Appellant.
    Gen. No. M-10,660.
    Fourth District.
    February 21, 1966.
    Roy Geibe Hill, of Springfield, for appellant;
    Raymond L. Terrell, State’s Attorney of Sangamon County, of Springfield (Robert H. Stephens, of counsel), for appellee.
   Opinion by

JUSTICE TRAPP.

Not to be published in full.


author: JUSTICE SMITH.

text:
    Evelyn Edwards, Plaintiff-Appellant, v. Robert Holcomb, Defendant-Appellee.
    Gen. No. 10,687.
    Fourth District.
    February 21, 1966.

      Hutchens and Mann, of Winchester, for appellant;
    Schimmel & Schimmel, of Pittsfield, for appellee.
   Opinion by

JUSTICE SMITH.

Not to be published in full.


author: JUSTICE CRAVEN.

text:
    Vivian Jane Cardiff and Leon D. Cardiff, Plaintiffs-Appellants, v. Eugene L. Haak, Defendant-Appellee.
    Gen. No. 10,688.
    Fourth District.
    February 21, 1966.
    Webber, Balbach & Theis, of Urbana, for appellants;
    Phillips, Phebus, Tummelson, Barth & Follmer, of Urbana (Hurshal C. Tummelson, of counsel), for appellee.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Eliath Chatman, Impleaded, Plaintiff in Error.
    Gen. No. 10,689.
    Fourth District.
    February 21, 1966.
    Carroll Dukes, of Danville, for plaintiff in error;
    John P. O’Rourke, State’s Attorney of Vermilion County, and Larry L. Lessen, Assistant State’s Attorney, both of Danville, for defendant in error.
   Opinion by

JUSTICE CRAVEN.

Not to be published in full.