author: Mr. PRESIDING JUSTICE BURMAN

text:
    Oliver B. Christenson, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the Village of Oak Forest, Defendant-Appellee.
    (No. 57486;
    First District (4th Division)
    April 25, 1973.

      Walter C. Wellman, of Chicago, for appellant.
    David P. Schippers, of Chicago, (Schippers, Betar, Lamendella & O’Brien, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

This is a suit filed under the Administrative Review Act. (Ill. Rev. Stat. 1969, ch. 110, par. 274.) Plaintiff, Oliver B. Christenson, was charged with misconduct and ordered removed from his position as Chief of the Police Department of the Village of Oak Forest, by a decision of the Board of Fire and Police Commissioners of the Village, pursuant to Section 10 — 2.1—17 of the Municipal Code. (Ill. Rev. Stat. 1969, ch. 24, par. 10 — 2.1—17.) Judgment was entered in the Circuit Court affirming the dismissal by the Board and plaintiff appeals.

The record reveals that on March 4, 1969, there were charges filed against the plaintiff with the Board of Fire and Police Commissioners. On March 14, 1969, plaintiff was served with a notice of suspension without pay for a period of 30 days commencing on March 4, 1969, pending formal hearing on April 3, 1969. On that date plaintiff appeared before the defendant Board and demanded an immediate hearing on the charges. The hearing was continued, over plaintiff’s objections, until May 1. On April 8, 1969, plaintiff demanded reinstatement with pay as of April 3, 1969.

On April 10, 1969, the defendant served plaintiff with a notice of suspension without pay for a period of 30 days effective April 5, 1969. Plaintiff again appeared before the Board on May 1, 1969, and the hearing was again continued over objection by plaintiff. On September 23, 1970, the defendant Board dropped the charges which had been filed on March 4, 1969.

On June 25, 1970, new and different charges were filed against the plaintiff with the defendant Board and the plaintiff was suspended from the Police Department for a period of 30 days effective June 27, 1970.

The charges filed on June 25, 1970, related to five specific acts of alleged misconduct. After a public hearing, the Board found the plaintiff guilty of conduct unbecoming an officer with respect to two of the allegations and found that the other three allegations were not sustained by a preponderance of the evidence. The Board discharged the plaintiff from the Police Department, and the trial court affirmed the decision of the Board.

The charges on which the plaintiff was found guilty were as follows:

“2. On or about November 20, 1968, said Oliver B. Christenson forced Thomas Derouin, who was at the time under arrest by said Oliver B. Christenson, to purchase $100.00 worth of raffle tickets from the respondent in exchange for having all charges against said Thomas Derouin dropped.
3. In or about December, 1968, said Oliver B. Christenson attempted to persuade one Edward Bennett, who was at the time a part time police officer on the police force of the Village of Oak Forest, to sell pornographic films to the public at a price of $10.00 a reel.”

With regard to the charge in paragraph two, Thomas Derouin testified that on or about November 20, 1968, at about 7:00 P.M., he and three friends were in front of a restaurant in Oak Forest. Derouin stated that he had a fuse in his hand and that he threw it across the street. In a couple of minutes, five squad cars came up. Derouin went to the station with the police, but no charges were placed against him. Derouin said he purchased $25 worth of raffle tickets at the police station. He stated that the tickets were on the table and that he gave the money to the plaintiff. He and his friends were allowed to leave the police station. He testified that he was never told that if he purchased the tickets he would not be arrested and charged with a crime.

Officer Arthur Wolfe testified that he was in the room with Tom Derouin, the other boys, and the plaintiff on the evening in question. He said he was informed by the plaintiff that the boys wished to purchase some raffle tickets. Wolfe stated that the boys waited for someone to bring them money to purchase the tickets. Fred Koning, a friend of Thomas Derouin’s, testified that he loaned Tom Derouin about $8 on the occasion in question.

The plaintiff, Oliver B. Christenson, testified that on November 20, 1968, he was employed as Chief of Police, Oak Forest, with the rank of captain. He stated that he was patrolling by car when he noticed a boy throw a flare into an empty lot. He pulled over to where Thomas Derouin and three other boys were. The plaintiff stated that the boys rode to the police station in the squad car. At the station, Chief Christen-son told the radio operator not to run a card on the boys because he was just going to talk to them. Christenson stated that he reprimanded Thomas Derouin. He said he told Derouin a raffle was being held by the police department for the purpose of erecting a gun range and the drawing of said raffle was being held at the mayor’s ball. The funds from the purchase of the tickets were to be turned over to the police department. He stated that the boys wanted to know if they could purchase tickets. They did so. The boys then left the station. The plaintiff denied that Thomas Derouin was ever under arrest or that he was brought to the station for the purpose of placing charges against him. Christenson stated that he had known Thomas Derouin since he was six or seven years old, and that Derouin came to the police station a couple of times a week. Derouin also did work for the Police Department, and his father was a part-time policeman.

Eleanor Fitzpatrick testified that she was a radio dispatcher for the Oak Forest Police Department in November, 1968. She stated that when there is a complaint or arrest, a card is made up on the person when he is brought to the station. On the occasion in question, when she asked whether the Chief wanted a complaint on the boys, Christenson answered, “No, we’re not going to arrest the boys. We’re just here to talk to them.” She also stated that the boys were laughing and talking as they left the station.

On the basis of this record, we think the Board’s finding that Christenson forced Derouin to purchase raffle tickets in return for having charges against him dropped was not supported by the evidence. In our view, there was insufficient evidence to establish either that Derouin was forced to buy the tickets, that he was in fact under arrest at the time he purchased them, or that any complaint was ever filed against him, as charged by the Board. It is certainly not unusual for boys to be brought into a police station without being arrested or having complaints filed against them when the facts do not warrant such action, as in the situation before us.

With regard to the other charge, Edward Bennett testified that in December, 1968, he was a part-time policeman in the Village of Oak Forest. He stated that late in December, at about 8:00 P.M., he had a conversation with Chief Christenson in which the plaintiff offered to sell him stag films at $10 a roll. Later that same evening, in a second conversation, Bennett asked Christenson to borrow some of the films. Christenson gave Bennett 14 films, four of which he viewed in their entirety. He brought the films back to the station at about 2:00 A.M. and returned them to Chief Christenson. Bennett said he purchased two of the films for $20. He viewed the two films and destroyed them. Bennett testified further that the films portrayed both normal and deviate sexual relationships. He also stated that in his opinion, the films were not obscene. He said that on February 8, Christenson told him that if he went along with the story that the films were found in a car, Christenson wouldn’t involve Bennett any further.

Thomas Buffo testified that in December, 1968, he was a part-time police officer in Oak Forest. He said he had a conversation with Bennett about some films which had been confiscated from a stolen automobile. Bennett said he would like to see them and Buffo suggested he ask the Chief. The two men approached the Chief. Buffo said he understood some stag films had been confiscated and the Chief said he didn’t really know if they were stag films because he didn’t have a projector to look at them. Bennett said he had a projector and the Chief told Bennett to take two rolls home, look at them, and if they were stag films, to destroy them. Buffo further testified that Bennett was not asked to sell the films to the general public.

The plaintiff testified that in December, 1968, he had a conversation with Edward Bennett regarding certain films. Officer Buffo was also present. Christenson stated that the two men asked him if he had any films which were taken from a car and he replied that he did. He said he did not know what was in the films because he didn’t have a projector. Bennett said he had one and could take the films home and view them. The plaintiff said he told Bennett to take a couple home, look at them, and if they were stag films, to destroy them. Christenson said he gave Bennett two rolls of film. A couple of evenings later, the plaintiff talked to Bennett, who said the films were stag films, but in his opinion, they were not obscene. Christenson said he told Bennett to destroy the films and Bennett said he already had done so. The plaintiff stated that he destroyed the remaining films the next evening. The plaintiff further testified that the films were taken from an auto which was recovered by the Blue Island Police Department on December 10 and transferred to Oak Forest. He denied telling Bennett tliat if he would go along with the story about the confiscated films, he wouldn’t involve him. He also denied that Bennett paid him any money for the films.

On the basis of this testimony, there is no evidence at all to support the charge that Christenson attempted to persuade Bennett to sell pornographic films to the public. Moreover, none of the allegedly obscene films were introduced into evidence and Bennett testified that in his opinion, the films were not obscene.

While it is well settled that findings of fact by an administrative agency are to be taken as prima facie true and that the courts are not authorized to make an independent determination of the facts, a reviewing court is not relieved of its duty to examine the evidence and to set aside findings which are not supported by substantial evidence. (Jordan v. Civil Service Corn., 4 Ill.App.3d 741, 746-7, 281 N.E.2d 687, 691.) In the instant case, we believe the decision of the Board was unwarranted and founded on insufficient evidence, and that the trial court erred in affirming the Board’s order.

Because we conclude that the judgment below was against the manifest weight of the evidence, we do not reach the other questions raised by the plaintiff.

For the reasons stated, the judgment of the Circuit Court is reversed.

Reversed.

ADESKO and DIERINGER, JJ„ concur.

       Although the order discharging the plaintiff reads “sergeant”, all the evidence indicates that the plaintiff was chief of police.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Reddick, Defendant-Appellant.
    (No. 56136;
    First District (4th Division)
    April 25, 1973.

      Rehearing denied May 15,1973.

      James J. Doherty, Public Defender, of Chicago, (John T. Moran, Jr., Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane, Terrence McQuigg, and James Truschke, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURMAN

delivered the opinion of the court:

The defendant, James Reddick, was indicted for murder. He entered a plea of guilty and was sentenced to 14 years to 14 years and a day in the penitentiary.

On appeal, the sole issue is whether the Mai court determined that there was a factual basis for defendant’s guilty plea, in accordance with Supreme Court Rule 402(c), Ill. Rev. Stat. 1971, ch. 110A, par. 402(c).

Supreme Court Rule 402(c) requires that:

“The court shall not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.”

The Committee Comments to Rule 402(c) point out that,

“The language of paragraph (c) is based upon the recent revision of Rule 11 of the Federal Rules of Criminal Procedure, and, as is true under the Federal rule, no particular kind of inquiiy is specified; the court may satisfy itself by inquiry of the defendant or the attorney for the government, by examination of the presentence report, or by any other means which seem best for the kind of case involved.” S.H.A., ch. 110A, par. 402, Committee Comments.

On January 13, 1971, the defendant appeared in court to withdraw his not guilty plea and enter a plea of guilty to the charge of murder. The following colloquy occurred:

“THE COURT: You did, on or about November 2nd, 1969, hit one Carl Steiger with a water pitcher without legal justification, therefore causing his death.
Do you understand that?
THE DEFENDANT: Yes, I understand.”

The factual statement to which the defendant assented was not complex, but it nonetheless provided an adequate basis for the court to conclude that defendant’s conduct fell within one of the Illinois definitions of murder, a killing without lawful justification through acts which the defendant knew created a strong probability of death or great bodily harm, Ill. Rev. Stat. 1971, ch. 38, par. 9—1(a)(2).

After admonishing the defendant as to his legal rights, explaining the consequences of a guilty plea, and inquiring into the voluntary character of the defendant’s decision, the court received several stipulations. It was stipulated that the facts in the indictment were “true and correct and sufficient in law to sustain the charges contained therein.” It was further stipulated that if “the complaining witness and the police officers were called to testify * * # their testimony would be true and correct and sufficient in law and fact to sustain the charges contained in * * * the instant indictment.”

The record also includes a court-ordered psychiatric report which contains the following description:

“He says that on the night in question he was staying at this hotel, he had been drinking, went to the door of the hotel in which he was staying in order to get a match. The man hit him with ash tray above the eye requiring stitches. He then hit him in the head with a glass water pitcher, put him up on the chair, tied him up, and hit him again in the head.”

The psychiatrist concluded that the defendant probably understood how striking a person, as he struck the deceased, could cause death. The psychiatrist also stated that in his opinion, there would be no possibility of an insanity defense.

In interpreting Federal Rule 11, on which Supreme Court Rule 402(c) is based, the federal courts have stated that the trial judge is not required to make a factual determination that the defendant is guilty

or to elicit from him an acknowledgement of such facts as would establish his guilt. (U.S. v. Semet, 295 F.Supp. 1084, 1087.) This court has held that the factual basis for the plea need not be set out in detail in the record. (People v. Doe, 6 Ill.App.3d 799, 286 N.E.2d 645.) In Doe, the trial judge merely asserted that he had gone into the facts at great length and was satisfied there was a factual basis for the plea.

In the instant case, the record includes defendant’s in-court admission to the essential facts of the crime, the stipulations of the defense that if witnesses were caHed their testimony would support the charge, and the detailed description of the crime contained in the report of the court-ordered psychiatric examination. We think that these elements taken together demonstrate an adequate factual basis for the defendant’s plea.

People v. Dugan, 4 Ill.App.3d 45, 280 N.E.2d 239, and People v. Rollins, 9 Ill.App.3d 1011, 293 N.E.2d 733, cited by the defendant, are distinguishable on the facts and not applicable. In those cases, the Appellate Court stated that there was nothing in the record to indicate that the trial judge made any inquiry or determination as to' the factual basis for the plea.

For the reasons .stated, the judgment of the Circuit Court will be affirmed.

Affirmed.

ADESKO and DIERINGER, JJ., concur.


author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Margaret Sandberg, Plaintiff-Appellant, v. Leonard Sandberg, Defendant-Appellee.
    (No. 55944;
    First District (5th Division)
    April 27, 1973.

      Stuart N. Litwin and Gary E. Dienstag, both of Glenview, for appellant.
    Jerome H. Torshen, Ltd., of Chicago, (Jerome H. Torshen and Robert F. Berrey, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff appeals from that part of a decree of divorce entered in her favor which provided that defendant pay $175 per month child support for each of the three children adopted during the marriage and $1000 per month alimony to plaintiff. The issue raised on appeal is whether the child support and alimony awards were inadequate.

At the trial plaintiff testified in her own behalf. She and defendant were married in 1949 but have been living apart since January 26, 1969. There are three children, Steven, 17, Robert, 14, and Amy, eight. The marital home cost about $43,000 and carries about a $23,000 mortgage. Plaintiff drives a 1969 Cadillac and defendant a 1970 Lincoln Continental. In 1969 her bills were $4276 per month. They were itemized (in approximate amounts) as follows: $150 medical, $326 counseling, $150 miscel- I laneous, $150 home entertainment, $70 personal expenses, $35 children’s allowances, $335 jewelry, $35 contributions, $350 household help, $80 gifts, $325 movies, $1000 clothing, and $1400 operation of household. The $4276 monthly figure does not include income taxes, decorating expenses, furniture, real estate taxes and automobile upkeep. Her son Robert is currently under psychiatric care; defendant pays these bills. She and the children intend to move to San Diego, California, due to Robert’s illness. She has $3000 in a savings account; the source of this account was the $14,000 insurance proceeds defendant gave her after their house was burglarized and her jewelry stolen. She spent the remainder of the proceeds (beyond the $3000) for jewelry. She owned an “expensive” mink coat and a $2000 ring. She has no income other than what is given to her by defendant.

Maurice Schwartz, a certified public accountant, testified for plaintiff. After examining defendant’s business records he determined that defendant held the following interests: 100% interest in Senate Steel and Supply Corporation (Senate Steel); a 50% interest in trust No. 5087 which holds title to the property rented by Pleasant View Convalescent and Nursing Center, Inc. (Pleasant View); a 50% interest in Pleasant View; and a 50% interest in Metalex Corporation. Defendant’s income tax return for 1968 shows his gross income to be $30,825. Defendant’s cash flow for the year 1969 totaled about $83,000. This represents $12,000 salary from Pleasant View, $35,000 salary from Metalex, $1800 from an annuity policy; and approximately $34,200 in loans from Metalex ($6700) and Senate Steel ($27,500). Roth of the latter figures were shown as loans outstanding on the companies’ books. Corporate records further reveal loans totaling about $95,000 from Metalex and Senate Steel from August 1967 to August 1969. A nominal repayment was made on a Metalex loan; there was no indication that interest was paid on these loans. On cross-examination Schwartz testified that it is a question of judgment whether to label funds withdrawn by a shareholder of a corporation from the corporation as a loan or a dividend. A loan would not be considered income for federal tax purposes where as a dividend would be. He would advise a client who made no attempt to repay a loan to a corporation to declare such as a dividend. Schwartz believed that Metalex had a potential sales price of $900,000. This figure was arrived at by estimating Metalex’s earnings for the current fiscal year at $90,000 and then capitalizing said earnings by a factor of ten.

Defendant, Leonard Sandberg, was called as a Section 60 witness by plaintiff. Since March 1969 he has resided in an apartment at 1 East Schiller, Chicago; tire monthly rent is $395. He furnished the apartment with approximately $6000 in loans from Senate Steel and Metalex. He signed no notes on these loans; he believes he repaid the Metalex loan; no interest was paid thereon. Defendant was shown the summary of tire loan account statement prepared by Maurice Schwartz and said it was possible he owed such sums of money to Metalex and Senate Steel; that no notes were given for the loans; that no interest had been paid thereon; that he intended to repay them. During 1969 he and plaintiff took several trips together. Defendant characterized expenses for 1969 as a “very heavy expensive year.”

On examination by his own counsel defendant testified that his 1969 federal income tax return showed a gross income of $47,500 and after taxes earnings of about $36,000. Although he left the marital home in January 1969, plaintiff still had her checking account “and whatever she wanted.” He voluntarily gave her $350 per week, paid the mortgage payments and hospitalization expenses ($240 per week) incurred by his son Robert. He felt that Metalez could be sold for three or four times its annual earnings, “if lucky”; the company has shown no steady growth. In order to pay plaintiff the aforementioned amounts of money after he left her, he borrowed as much money as was available from his corporations; he felt so guilty that he was ready to give her anything she wanted. He and his partner in Pleasant View intend to add a 100 bed unit to the existing structure once Pleasant View pays off its debt to Senate Steel. Then defendant intends to sell his share of the corporation, repay his personal loans to Senate Steel with the proceeds and then liquidate Senate Steel.

Harvey Callick, defendant’s personal and business certified public accountant, testified for the defendant. The actual net income of Metalex for the fiscal year 1969 was about $49,000 as contrasted to the $90,000 figure used by Maurice Schwartz. Callick felt that to determine the value of the company, its earnings should be capitalized by a factor of six or seven. The net income of Trust No. 5087 for 1969 was $18,700; net income of Pleasant View for 1969 was $3200. Capitalizing these earnings by a factor of ten and considering the net assets of Senate Steel to be approximately $30,000 (as Schwartz used in computing defendant’s net worth), he estimated defendant’s net worth at $345,000. If earnings were capitalized by a factor of seven, as he believed was proper, the net worth figure would be $240,000. Schwartz had estimated defendant’s net worth at about $885,000.

CaUick further testified that defendant has taken loans from Senate Steel and Metalex over the years and there have been repayments as to both. He didn’t consider the sums withdrawn from tírese companies during 1969 as dividends, and they were not reported as such on defendant’s federal income tax return. He has analyzed defendant’s loan account with Senate Steel from 1960 to 1969; $126,540 has been borrowed and $49,968 \ repaid. It was his opinion that amounts withdrawn from Senate Steel and , Metalez were loans and not income. Defendant’s partner in Metalex also | receives loans from the company but in far smaller amounts; he repays them periodically. The Internal Revenue Service audited Senate Steel’s books from 1962 to 1965. They accepted defendant’s determination that amounts withdrawn during this time were loans and not dividends. There has been no IRS audit since 1965. In 1969 defendant borrowed $28,000 from Senate Steel and repaid $50. In the same year he borrowed $22,000 from Metalex and repaid $14,000.

In addition to the alimony and support payments, tire decree of divorce further provided that defendant pay all extraordinary medical expenses incurred by the children including psychiatric expenses if (as to the latter) a prior court order is entered requiring such; that defendant pay for the children’s college educations provided that they “are educable” and that defendant is financially able to provide for such at the time; that the marital home be sold and the proceeds thereof divided equally between plaintiff and defendant; that defendant make the mortgage payments on the home until it is sold; that plaintiff be given all the furnishings in the marital home except for certain specified items; that defendant deliver title to the 1969 Cadillac to plaintiff; that defendant maintain $60,000 in insurance policies on his life with his children as beneficiaries; that he maintain a $25,000 policy with plaintiff as beneficiary until she dies or remarries; and that he pay her attorney’s fees of $7500.

Opinion

The standards to follow in determining the amount of alimony to be awarded were set forth in Byerly v. Byerly, 363 Ill. 517, 525, 2 N.E.2d 898:

“Matters which are usually considered by tire court in determining alimony are the ages of the parties, their condition of health, the property and income of the husband, separate property and income, if any, of the wife, the station in life of the parties as they have heretofore lived, and whether or not there are any children dependent upon either for support, and also the nature of the misconduct of the husband. It was never intended that the allowance of alimony shall be used as a means of visiting punitive damages upon the husband in favor of the wife for the husband’s misconduct, but, guided by the different phases, heretofore mentioned, of the situation of the parties, such allowance is to be made as may furnish the wife support or contribute to her partial support. (Gilbert v. Gilbert, 305 Ill. 216.)”

The same factors control the amount of child support to be awarded. (Kramp v. Kramp, 2 Ill.App.2d 17, 117 N.E.2d 859; Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201.) The determination of the amounts of the awards lies within the sound discretion of the trial court, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Hoffmann v. Hoffmann, 40 Ill.2d 344, 349, 239 N.E.2d 792.

As may be seen from the statement of facts above, great emphasis was placed at trial on whether sums of money withdrawn from Senate Steel and Metalex were dividends and therefore income for federal income tax purposes or loans and therefore not income for said purpose. Plaintiff has continued to stress this point on appeal, and we believe with undue emphasis. This issue is relevant only as it affects one of the crucial factors in determining the amount of alimony and child support, namely, defendant’s ability to pay. (See Klebba v. Klebba, 108 Ill.App.2d 32, 40, 246 N.E.2d 681.) If the sums withdrawn over the years were loans, plaintiff’s estimation of defendant’s income is sharply reduced. If they are labeled dividends, and therefore income, they increase his annual income but reduce his equity in the respective companies by such amounts and subject him to income tax which would materially reduce that purported income. Therefore, his cash flow ultimately available for payment of alimony and child support is adversely affected regardless of the accounting treatment given to the withdrawals. See Page v. Page, 32 Ill.App.2d 422, 178 N.E.2d 129.

The alimony and child support awards total $18,300 per year. This figure does not include future psychiatric expenses which may be incurred by the children and which defendant will be under an obligation to pay when ordered by the court. If such treatment is required, and it appears from the record that it well might be since it is currently being given, the total annual alimony and support payments will be well in excess of $20,000. We further note that defendant is required by the decree to carry a substantial amount ($85,000) of life insurance on his life, with the children and plaintiff as beneficiaries.

There was a great discrepancy in the testimony as to defendant’s net worth. The figures ranged from $845,000 as testified by Schwartz, plaintiff’s expert, to below $240,000 when defendant’s and his expert’s (Callick) testimony are considered. We note that Schwartz based his valuation of defendant’s equity interest in Metalex on an estimated current earnings figure of $90,000 per year, whereas the corporate records show current earnings of about $49,000 per year. Assuming that the trial court had accepted the book figure of earnings for Metalex, and assuming Schwartz’s theory of capitalization at ten to one as against Callick’s six or seven to one, this alone would reduce that corporation’s net worth figure of $900,000 by $410,000. We cite this fact only to show that evaluating defendant’s net worth was a matter of resolving conflicting testimony and therefore one for the trial court to determine.

Finally, we point out that plaintiff bases her demand for higher alimony not on a scale of living during the years of the marriage but upon the monthly expenditures of $4276 during 1969, the year they lived separate and apart. Either defendant’s beneficence or guilt feelings resulted in expenditures by plaintiff in 1969 which defendant described as a “very heavy expensive year.” Plaintiff’s testimony of $4276 per month for expenses in 1969 is not in itself sufficient to form a proper base for determining alimony and child support.

We also find the following statement from 24 Am.Jur.2d, Divorce and Separation, Sec. 635, p. 756, worthy of consideration:

“In many cases, though, the parties have lived in such a way as to consume all their income, and have even lived beyond their means before separation, so that it is obvious that each cannot maintain the same high standard of living in two separate households after the separation. Therefore it cannot be necessarily true that the wife should be furnished with funds to maintain the scale of living to which she was accustomed before the separation, and the court will determine the amount of alimony by considering what would be appropriate in the light of the incomes and resources of the parties.”

In conclusion, after our review of the record we believe the court’s award for alimony and child support was not against the manifest weight of the evidence. The cases cited by plaintiff are factually inapposite. Klebba v. Klebba, 108 Ill.App.2d 32, 246 N.E.2d 681; Turns v. Turns, 96 Ill.App.2d 347, 239 N.E.2d 144; Riddlesbarger v. Riddlesbarger, 336 Ill.App. 226, 83 N.E.2d 382 (abst).

The child support and alimony awards are affirmed.

Affirmed.

ENGLISH and LORENZ, JJ., concur.


author: Mr. JUSTICE EGAN

text:
    Modern Tackle Company, Plaintiff-Appellant, v. Bradley Industries, Inc. et al., Defendants-Appellees.
    (No. 56227;
    First District (1st Division)
    April 30, 1973.

      W. Donald McSweeney and Robert J. Vollen, both of Chicago, (Schiff, Hardin, Waite, Dorschel & Britton, of counsel,) for appellant.
    James M. Goff and Harold C. Hirschman, both of Chicago, (Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of counsel,) for appellees.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

This is an action for breach of an oral contract. Count I of the complaint alleged that through a course of conduct and conversation beginning on or about January 15, 1964, Bradley Corporation, acting through its authorized representative, Morris Nozette, entered into a contract with the plaintiff whereby the plaintiff was to find an acceptable purchaser of Bradley, and, upon the purchase of Bradley by any corporation found by the plaintiff, Bradley was. to pay a fee computed at various rates depending on the amount of the purchase price; that acting under the authority of and pursuant to the terms of the contract with Bradley, the plaintiff proposed to Richardson-Merrill, Inc. that Richardson-Merrill acquire Bradley; that in January, 1966, Richardson-Merrill did purchase all of the outstanding shares of Bradley for $4,140,000. Count III alleged the same agreement but that it was between the plaintiff and Morris Nozette, individually; Nozette was the president of Bradley and the owner of at least 52% of its stock. Count II was withdrawn at trial.

The case was heard by a jury; and the court reserved its ruling on the defendant’s motion for a directed verdict. The jury returned a verdict in favor of the defendant, Bradley, on Count I and in favor of the plaintiff and against Nozette on Count III. After post-trial motions were heard, the court granted Nozette’s motion for judgment notwithstanding the verdict; the reserved motion of Nozette for a directed verdict; and denied the plaintiff’s motion for a new trial on Count I.

The plaintiff contends that a fact question was properly submitted to the jury on Count III; that it is entitled to a new trial on Count I because the court improperly instructed the jury and erred in ruling on the admissibility of evidence.

Martin Hayden was a vice-president of the plaintiff, Modern Tackle Company. He described his work: ‘We work as a middle man to put a buyer and seller together and sometimes we put a buyer and seller together, and sometimes we represent the buyer and sometimes we represent the seller. We would in turn get a fee from whomever we represent.” His company was in the business of acquisitions and mergers. He first met Nozette in the latter part of 1963 in Nozette’s office when he was representing a company (Gleason) that was considering the purchase of Bradley. He had contacted Nozette at the request of his client’s president. After the meeting Nozette told Hayden that he would like to think about the deal and that Hayden should call him after a reasonable length of time. Hayden later called Nozette and met with him at his office about the 15th of January, 1964. When asked on direct examination what conversation he had with Nozette at that time, Hayden testified as follows:

“A. At that meeting, Mr. Nozette told me that he was not interested * * * in the Gleason situation # * *. He told me that, ‘Look, I am not interested in Gleason, but you are in this acquisition and merger situation. If you come across a company that meets my criteria, * * * 0ne that will give me a solid tenant and my price, I am interested.’
* * * I said that, ‘Wherein we were working with you to attempt a merger or acquisition in the Gleason matter, if we were to look for a buyer for you, we would expect to be compensated by you.’ Mr. Nozette said, Well, what is your compensation?’ And I said, ‘Well, we work on a regular 5, 4, 3, 2, 1 schedule, and this is a schedule that the brokers use in the industry.’ * * # And Mr. Nozette said, ‘Well, I understand what the fee arrangement is, but what about costs?’ I said, ‘Well, what costs?’ And he said, Well, how about expenses?’ I said, ‘There isn’t any expenses. We will pay all of our expenses.’ I said, ‘If there is no deal you have no exposure.’ He said, What about my price?’ I said, Well, it is your price. If you don’t accept the price, there is no deal. If there is no deal, you don’t pay anything.’ So he said, ‘On that basis, you find me a buyer at my price and I am interested.’ ” (Emphasis added.)

Parenthetically, we note that we have gone to the report of proceedings to determine the actual testimony because of a difference between the abstract and brief of the plaintiff and the brief of the defendants. The abstract and brief of the plaintiff show Nozette saying: “You find me a buyer and I am interested.” The brief of the defendants shows his testimony to be: “You find me a buyer at my price and I am interested.” (Emphasis added.) The defendants’ version of the testimony is correct.

On cross-examination Hayden testified that he told Nozette that his fees were to be paid only in the event that he was instrumental in bringing a deal to Nozette that was concluded. Later Hayden wrote to Dennison Manufacturing Company informing them of the availability of Bradley; he called Nozette in the early part of 1964 and asked Nozette what the fee arrangement was. Nozette told him not to worry about the fee, that he would pay a fee if a deal was made and asked him the name of the potential buyer; when told the name, he said Dennison was an excellent company and told him: “Go ahead with the deal.” Hayden wrote a letter on March 6, 1964, to the president of Dennison informing him that Nozette would forward three years’ annual reports on Bradley and that Hayden would make arrangements for a meeting between Nozette and Dennison. On the same day, Hayden sent a letter to Nozette informing him that he had contacted the president of Dennison and reminded Nozette that he was to look to Nozette for his fees. On March 12 he got a letter from Dennison rejecting the deal, and he so informed Nozette, who said: “Well, I am in no hurry. You just find me a buyer at my price, and you keep looking and we are an interested seller.” He had another contact with Nozette in the latter part of March at which time he received some annual reports from him. In April he sent a letter to H. R. Marschalk, the president of Richardson-Merrill, asking if they would be interested in acquiring another company. He received a letter from George Maginness of Richardson-Merrill informing him that they did not pay finder’s fees; that it would be necessary for him to identify the organization he was representing so that they could advise him if the company had been brought to their attention from another source; that they were interested. He sent a copy of Bradley’s annual report to Maginness. On May 11, 1964, Maginness wrote that they were not interested in acquiring Bradley and sent back the annual report. About the end of September Hayden wrote to Bemis Bag Company and after speaking on the phone to people from that company sent them some material on Bradley. On November 6, 1964, Bemis returned the material to Hayden and informed him that they were not interested in the acquisition of Bradley.

Hayden then arranged a meeting between a representative of MSL Industries, Nozette and Hayden at Nozette’s office. At the meeting Nozette told the representative of MSL that he was expecting between $17 and $18 per share for the sale of Bradley. Another meeting was arranged in the early part of February, 1965, between the chairman of the board and executive vice-president of MSL, Nozette and Hayden. At this meeting Nozette was offered $14 per share. He told them that he would think about it and get in touch with them. About March 20, 1965, Hayden called Nozette and attempted to encourage him to make the deal. This was followed by a letter dated March 22, 1965, when Hayden sent Nozette a copy of MSL’s annual report and again encouraged him to make the deal. In early April of 1965 Hayden met Nozette at the Packaging Show in Chicago, and again stressed the merits of the MSL deal to him. Nozette told Hayden that he was not interested unless MSL met his $18 price and not to fool around with the Bradley situation unless he was able to come up with a buyer at $18 a share.

After the incident at the Packaging Show, Hayden had no contacts with anyone concerning Bradley until after October 18, 1965. On that date Hayden noticed an article published in the Wall Street Journal concerning Richardson-Merrill’s acquisition of Bradley. He called Nozette and told him that, since Modem Tackle was the broker of record in the deal, Nozette would want the release from Modern Tackle before the transaction was closed. This was the first time that Hayden ever mentioned anything to Nozette about his contacts with Richardson-Merrill. However, during the course of the negotiations between Bradley and Richardson-Merrill, Nozette was informed that they had been contacted by Hayden. Nozette told Hayden that he had paid JBM Consultants $80,000 and, if Hayden was willing to take $40,000, Nozette would try to get it for him from JBM. Hayden declined.

The agreement between Bradley and Richardson contained a provision that Bradley would hold Richardson harmless against any claims for finder’s fees. That provision had been modified to include claims by parties having oral agreements with the defendants.

Millard B. Deutsch testified for the plaintiff that he had been engaged as a business broker or finder for over 15 years. In his opinion the primary function performed by a business broker in connection with a corporate acquisition or merger is to bring the parties together, to introduce them. He was aware of transactions where a broker or finder had been paid a fee where he did nothing more than submit the name of one company to another. He said the “broker of record” is the broker who first submits a prospective acquisition to a prospective acquirer.

Nozette testified that whenever he dealt with a finder he required the submission to him of the name of the prospective buyer before a letter was written or his company offered. Nozette further testified that he had authorized Hayden to attempt to sell his company but denied the fee arrangement of 5, 4, 3, 2, and 1. (Under this arrangement, according to the plaintiff, he was to be paid a fee based on 5% of the first million dollars of the purchase price, 4% of the next million, etc.) He first met with a representative of Richardson-Merrill after JBM Consultants, also business brokers and finders, arranged a meeting at JBM’s office in Chicago. In September, 1965, he sold Bradley to Richardson-Merrill for $18 per share. Pursuant to a written contract with JBM he paid $81,870 finder’s fee, representing 2% of the agreed sale price.

D. D. Jones made the decision on behalf of Richardson-Merrill to turn down Hayden in 1964 because he was not “sufficiently impressed with their product line and its general quality level.” In the Spring of 1965 after being contacted by JBM, who brought to his attention the then “current status” of Bradley, he made an “exploratory visit” to Chicago and met Nozette. He changed his mind because one of the divisions of his company had caused a “tremendous increase in his workload” at the time he turned Hayden down; but later he became disappointed in the development of that division.

The plaintiff argues alternatively that, since he was a “finder” and not a “broker” in the usual sense, he was not obliged to be the procuring cause of the sale; but, if he was so obliged, whether he was the procuring cause was a question of fact for the jury.

That there is a distinction between a finder and a broker has been recognized, as the case cited by the plaintiff makes clear. (Bittner v. American-Marietta Co., 162 F.Supp. 486, 488.) The distinction is pinpointed in that decision: “There is no reliance upon the [finder] to perform the duties of the broker in negotiating the contract.” (Emphasis added.) That is the only distinction. In Pass v. Industrial Asphalt of Cal., Inc., 239 Cal.App.2d 776, 49 Cal.Rptr. 190, 194, the court said:

“Although a ‘finder need not be licensed as a broker and need not operate under a written agreement of employment, they have certain duties and rights in common. In order to earn a commission each must accomplish the purpose for which his services were engaged, and if a transaction is had with a prospect they produce, it must be shown, in order to earn a commission, that the services were the procuring cause of that transaction.”

In 24 A.L.R.3d 1160, 1173, 1179, Validity, Construction and Enforcement of Business Opportunities or “Finders Fees” Contract, it is stated: “Because business opportunity brokers do not assist in the ultimate negotiations of sale, it has been held # * * that brokers’ licensing requirements are inapplicable, and that the lack of such license will not preclude enforcement of a business opportunity contract.” However, it is also stated that the general rule that a broker must be the procuring cause of an eventual transaction applies as well to business opportunities brokers.

While, for the sake of argument, we concede that the contract was not the usual broker’s contract, we hold that a business opportunity broker or finder must be the procuring cause of the transaction unless the contract specifies otherwise. (Camp v. Hollis, 332 Ill.App. 60, 74 N.E.2d 31.) This contract expressly requires that the plaintiff be “instrumental in bringing the deal” to Nozette that was concluded. Although the jury under this evidence would have had the duty to resolve the conflict between the testimony of Hayden and Nozette concerning the fee arrangement, contrary to the plaintiff’s argument, the meaning of an unambiguous contract is a matter of law for the court. (LaSalle Nat. Bank v. Wieboldt Stores, Inc., 60 Ill.App.2d 188, 208 N.E.2d 845.) We conclude, as a matter of law, that the contract does not specify that the plaintiff was to be paid even if he was not a procuring cause.

The plaintiff’s position is correct that whether he was the procuring cause is a question of fact for the jury; and the standard we are to apply is whether the evidence when viewed in its aspect most favorable to the plaintiff so overwhelmingly favors the defendants that no contrary verdict based on this evidence could ever stand.

The evidence shows that Hayden on two other occasions, with Dennison and MSL Industries, informed Nozette of the identity of the people that he had contacted. His only contact with Richardson-Merrill was by two letters and some phone calls. He never informed Nozette of the contact with Richardson-MerriU. His own witness, Deutsch, testified that he was a “business broker” and that the primary function of a business broker is to “bring the parties together, to introduce them.” (Emphasis added.) Hayden did in fact introduce Nozette to MSL and urged him to accept the $14 figure. After meeting Nozette in April and learning that Nozette would stand firm at $18 for all future contacts, he did nothing further for Bradley.

This contract, it must be noted, was not one giving exclusive rights to the plaintiff. In Moehling v. Brickman, 98 Ill.App.2d 156, 163, 240 N.E.2d 210, the court said:

“In determining whether a broker’s conduct is the procuring cause of a sale, we agree with the proposition that if a broker introduces property to a buyer who thereafter purchases the property, the broker is entitled to a commission in the absence of any intervening instrumentality which may be regarded as the effective or efficient cause of the sale. [Citations.] Where there is an intervening effective agency such as successful negotiations by another broker it follows that a broker will not be entitled to a commission merely because of his initial introduction of the property to a purchaser.” (Emphasis added.)

In McGuire v. Carlson, 61 Ill.App. 295, 299-300, it was stated:

“Unless he specifically agrees not to do so, an owner may employ two or more brokers; in such case it is the broker who is the efficient cause of the sale who is entitled to commissions; and this right is not affected by the fact that such broker sells to one whose attention to the property had before been caUed by another broker. It is not the broker who first speaks of the property, but he who is the procuring cause of the sale, be he the first or second who engaged the attention of the purchaser.”

Similarly, in Whitcomb v. Bacon, 170 Mass. 479, 49 N.E. 742, 743, the court said:

“So, where several brokers have each endeavored to bring about a sale which finaHy is consummated, it may happen that each has contributed something without which the result would not have been reached. One may have found the customer, who otherwise would not have been found, and yet the customer may refuse to conclude the bargain through his agency, and another broker may succeed where the first has failed. In such a case, in the absence of any express contract, that one only is entitled to a commission who can show that his services were the reaUy effective means of bringing about the sale, or, 6 * * the predominating efficient cause.”

In this case the plaintiff never did perform what Deutsch said was the primary function of a broker — “bring the parties together, to introduce them.” Hayden did not, to use his own words describing his function, “put a buyer and seUer together.” JBM was not only the predominating, efficient cause; it was the only cause; and like the indemnity agreement, the fact that Nozette was made aware of the contact of Richardson-Merrill by Hayden after he had been introduced to Jones by JBM has no bearing on the ultimate issue.

In view of our position on the principal issue of the case, it is unnecessary to pass on the assignment of error on instructions and admissibility of evidence or the defendants’ contention that the evidence shows that the plaintiff abandoned the contract.

For these reasons we conclude that the trial court correctly granted judgment notwithstanding the verdict and denied the motion for a new trial. The judgments of the circuit court are affirmed.

Judgments affirmed.

BURKE, P. J., and GOLDBERG, J, concur.


author: Mr. JUSTICE HAYES

text:
    The People of the State of Illinois, Respondent-Appellee, v. Earl Johnson, a/k/a William Ford, Petitioner-Appellant.
    (No. 56770;
    First District (2nd Division)
    May 1, 1973.
    John M. Cutrone and Kenneth L. Gillis, both of Defender Project, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HAYES

delivered the opinion of the court:

In General No. 55-2742, petitioner stood trial before a jury on an indictment for murder, to which he had pleaded not guilty. The trial began on 14 February, 1956. On the second day of the trial (15 February, 1956), at Johnson’s request, a juror was withdrawn and a mistrial declared; thereupon, petitioner withdrew his plea of not guilty and entered a plea of guilty. The trial court found petitioner guilty, entered a judgment on that finding, and sentenced petitioner to a 99 year term in the Illinois State Penitentiary.

On 12 July, 1980, petitioner filed post-conviction petition No. 1088 in

__ which he alleged that his constitutional rights had been violated in three respects:

(1) a confession which he had made had been coerced by police brutality and by representations made, both by the police and by persons in the State’s Attorney’s office, that unless he confessed he would incur the death penalty, whereas, if he confessed, things would go easy for him;

(2) his plea of guilty had not been voluntary in that it had been entered (a) owing to the same type of representations as had affected his confession, which representations as to pleading guilty were also made to him by his court-appointed counsel, so that he was led to believe that, should he persist in the plea of not guilty, he would receive the death penalty irrespective of his guilt or innocence, whereas should he plead guilty, he would receive a much lesser sentence, and (b) owing also to the fact that he did not understand that, on pleading guilty, he could be sentenced to life or any number of years or even to death;

(3) his court-appointed counsel had been incompetent in that he had made no effort to use two available alibi witnesses (namely, his fiancee and her mother).

As just indicated, the petition also alleged that he had an alibi defense and that he was, in fact, innocent. The petition was supported by an affidavit of petitioner’s court-appointed trial counsel alleging counsel’s opinion, based on counsel’s numerous conferences with petitioner, that petitioner had not realized the full significance of the plea of guilty, either before or after admonishment by the court, and alleging that petitioner, in requesting counsel to change pleas, had given as his reason for so requesting his fear that, if he persisted in his plea of not guilty, he would be sentenced to death irrespective of his guilt or innocence. The allegation as to the alibi defense was later supported by affidavit of his fiancee, dated 26 October, 1961, to the effect that he had been with her at all material times. The State moved to dismiss post-conviction petition No. 1088 without an evidentiary hearing. After the trial court had examined the Bill of Exceptions in respect to the entry of the guilty plea, the trial court, on 28 November, 1961, dismissed the petition without an evidentiary hearing. On 27 February, 1962, the trial court denied petitioner’s petition for a rehearing.

Petitioner thereupon sued out a writ of error from the Illinois Supreme Court. By a memorandum order dated 19 February, 1963 (Illinois Supreme Court Memorandum Order No. 3387), the Supreme Court granted the writ and remanded the cause for an evidentiary hearing on the post-conviction petition. After a brief summary of the allegations in the petition, the order read as follows:

“We are of the opinion that the allegations of the petition were sufficient to require a hearing and the writ of error is allowed and the cause is remanded to the trial court with directions to grant petitioner a hearing upon the charges set forth in the petition.”

The Supreme Court’s order was filed in the Criminal Division of the Circuit Court of Cook County on 27 February, 1963. On the following day, the State filed its answer to the petition. On 7 March, 1963, the cause was re-docketed and assigned to Judge Norman Barry for an evidentiary hearing to be held on 27 March, 1963. There followed a long series of continuances (many but by no means all of which were at petitioner’s request) until Judge Barry granted what he stated was to be a final continuance to 6 April, 1964.

On 6 April, 1964 (a Monday) petitioner was represented by privately retained counsel who was engaged in a jury trial in another court and could not appear, a fact of which he had apprised the Assistant State’s Attorney on the preceding Friday. Petitioner himself was present in an adjacent bullpen, but was not called into the courtroom, even though a prior motion by petitioner to appear in person at the mandated hearing and to act as co-counsel had allegedly been' allowed. Through, the Assistant State’s Attorney, petitioner’s retained counsel requested a continuance until mid-May so that he could contact petitioner’s court-appointed trial counsel. To this request the State refused to agree. After a colloquy between the Assistant State’s Attorney and the trial judge in which the Assistant State’s Attorney reminded the judge of the Supreme Court order, the judge concluded that, under the circumstances, the petition should nevertheless be dismissed without an evidentiary hearing. The judge said: “If we dismiss the petition and have it sent back, then let him [petitioner Johnson] prepare a new petition any time he wants to come in. That’s the thing to do.” To this the Assistant State’s Attorney replied: “That may be the proper thing to do, dismiss the petition.” Thereupon, the trial judge dismissed post-conviction petition No. 1088 without an evidentiary hearing. There was no appeal from that dismissal.

In 1971, petitioner filed the instant post-conviction petition No. 2250. On 14 October, 1971, on motion of the State, the trial court dismissed the petition without an evidentiary hearing. In part, the dismissal was based on the finding that post-conviction petition No. 2250 was identical with the prior post-conviction petition No. 1088, which had been dismissed without an evidentiary hearing on 6 April, 1964; since no appeal had been taken from that dismissal, that dismissal was res judicata in respect of post-conviction petition No. 2250,

The record is not crystal clear as to the basis upon which the trial court dismissed post-conviction petition No. 2250. In the State’s written motion to dismiss, the State urged the res judicata basis and supported that basis with a lengthy argument, with which, at one point, the trial judge appears to have agreed. At the same time, as a part of its argument that petition No. 2250 was barred by the doctrine of res judicata, the State also argued that petitioner had failed to be diligent in seeking the mandated evidentiary hearing on petition No. 1088, so that his failure to receive that evidentiary hearing was his own fault. The State further argued that petition No. 2250 had insufficient substance on its merits to warrant an evidentiary hearing, but this argument would appear to be in direct conflict with the Supreme Court’s order in respect of the identical petition No. 1088. The trial court’s order of dismissal of petition No. 2250 does not state any reason for the dismissal.

The instant appeal is from the dismissal of post-conviction petition No. 2250. Taken with the appeal was a motion by petitioner for a summary order reversing and remanding the cause for an evidentiary hearing before the trial court.

The thrust of the State’s position on the instant appeal is that petitioner, in effect, waived his right to the evidentiary hearing ordered by the Supreme Court on petition No. 1088 in either or both of two ways: (1) by his failure to appeal the dismissal of petition No. 1088 without the mandated evidentiary hearing, thereby barring the filing of petition No. 2250 under the doctrine of res judicata-, (2) by his lack of due diligence in seeking the mandated evidentiary hearing on petition No. 1088.

Before dealing with either of the two contentions of the State, we turn first to an aspect of the State’s contentions which neither the State nor petitioner has specifically raised, namely, whether petitioner had the power to waive the mandated evidentiary hearing on petition No. 1088. Petitioner’s motion for a summary order could be construed as presenting this issue, though it did not expressly do so. The issue is this: by entering its order of 19 February, 1963, did the Supreme Court create its own independent interest in having that order complied with, which interest, of course, petitioner would have no power to waive. In view of the disposition which we make herein of this appeal, we find it unnecessary to express any opinion as to this aspect of the State’s contentions.

We turn now to a related but different aspect of the State’s contentions, which neither the State nor petitioner has specifically raised. In order for petitioner to have the power to waive the mandated evidentiary hearing on petition No. 1088, it appears to us that it would be necessary to construe the Supreme Court’s order as conferring such a power upon petitioner. The order, therefore, must be read as mandating the evidentiary hearing “unless petitioner himself shall in some manner waive the said hearing”. While we have ourselves from time to time been forced to construe a Supreme Court Rule because of the generic nature of a Rule, we consider it a dubious undertaking to construe anything as specific as a Supreme Court Order. We concede that petitioner could waive the mandated evidentiary hearing in the sense that he could change his mind and decide that he did not want the hearing at all; the Order could scarcely be read as imposing the hearing upon a now unwilling petitioner. Far, however, from being unwilling, this petitioner personally has been trying to get the hearing ever since the Order was entered. His problem is that the actions of various counsel for which he is legally chargeable are alleged to have put him in the position of having waived the mandated hearing, if the Supreme Court’s order can be construed to have conferred that type of waiver power upon him. Again, in view of the disposition which we make herein of this appeal, we find it unnecessary to express any opinion as to this second aspect of the State’s waiver contention.

We deal now with the first of the State’s two waiver contentions, namely, waiver by failure to appeal the dismissal of petition No. 1088, thereby barring the filing of petition No. 2250 under the doctrine of res judicata. We hold that there was no such waiver for the reason that the trial judge in dismissing petition No. 1088 made it very clear (1) that he was not doing so with prejudice to petitioner’s right to re-file the dismissed petition at a later date, and (2) that he was not doing so precisely because of the Supreme Court’s order, which the State itself had just brought specifically to his attention. Furthermore, the same Assistant State’s Attorney who so vigorously urged the doctrine of res judicata upon the trial judge in the argument on petition No. 2250, had agreed that the trial judge’s dismissal of petition No. 1088 “may be the proper thing to do” in view of the Supreme Court order. The relevant portion of the record in petition No. 1088 as set forth in the record in this appeal on petition No. 2250, is as follows:

“THE COURT: Maybe that [namely, dismiss the petition] is what we should do and save everybody’s time.
MR. ROBBINS: We are still under that mandate from the Supreme Court.
THE COURT: If we dismiss the petition, and have it sent back, then let him prepare a new petition any time he wants to come in. That’s the thing to do.
MR. ROBBINS: That may be the proper thing to do, dismiss the petition.”

Under the circumstances, there is no room for the application of the I doctrine of res judicata on petition No. 2250. ,

Dealing now with the second waiver contention of the State, namely, | petitioner’s lack of due diligence in pursuing petition No. 1088, we conclude that the record in petition No. 1088, as set forth in the record on this appeal, does not establish such a lack of due diligence as would amount to a waiver of an evidentiary hearing specifically mandated by the Supreme Court. To the extent to which the half-sheet is decipherable, it shows that several of the continuances granted between 27 March, 1963 and 6 April, 1964 were on motion of the court. The record in this case shows that petitioner had three attorneys in that interval; and that the third attorney, who was unable to appear on 6 April, 1964, had requested only two continuances prior to that date, the first for the reason that he had just been retained by petitioner.

Hence, we hold that neither waiver contention of the State is borne out by the record in this case. We deny the summary motion of petitioner which was taken with this appeal. We reverse the order of the trial court dismissing petition No. 2250 without an evidentiary hearing, and we remand this cause to the trial court for an evidentiary hearing.

Motion for summary remand denied.

Reversed and remanded for an evidentiary hearing.

STAMOS, P. J., and SCHWARTZ, J., concur.


author: Mr. PRESIDING JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Jamison, Defendant-Appellant.
    (No. 57453;
    First District (3rd Division)
    May 3, 1973.
    James J. Doherty, Public Defender, of Chicago, (Robert Morel Gray, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and John C. O’Rourke, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE DEMPSEY.


text:
    George R. Storm, Plaintiff-Appellant, v. Ben-Lee Motor Service Company, Inc., Defendant-Appellee.
    (No. 56284;
    First District (1st Division)
    May 7, 1973.

      Gerald C. Heldrich, Jr., of Chicago, for appellant.
    Sol L. August and Lawrence Jacobs, both of Chicago, for appellee.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

This is an appeal from an order entered pursuant to a petition brought under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, sec. 72), vacating an ex parte judgment entered against the defendant, Ben-Lee Motor Service Company, Inc., in a contract action and reinstating the defendant’s counterclaim.

The plaintiff, George R. Storm, filed a complaint for breach of contract alleging damages of $11,037.39. The defendant, Ben-Lee Motor Service Company, Inc., filed its Answer and Counterclaim for the sum of $20,000 against the plaintiff and $20,000 against four third-party defendants.

On August 31, 1970, cases pending in the Law Division with an ad damnum of $15,000 or less were ordered transferred to Municipal District One, Municipal Department, Circuit Court of Cook County. This case appeared in the listing of such transferred cases in the Daily Law Bulletin on September 15, 1970. On September 30, 1970, another order was issued transferring back to the Law Division cases that were mistakenly transferred to Municipal District One that had an ad damnum of over $15,000. That published list did not include this case.

On March 3, 1971, pursuant to notice in the Daily Law Bulletin, the case was called for trial before Judge Charles P. Horan in the First Municipal District. It was continued until March 25, 1971, because neither the defendant nor its attorney appeared. The plaintiff and one of the third-party defendants were present, and they appeared again on March 25, 1971. Again neither the defendant nor its attorney were present. Judge Horan dismissed the defendant’s counterclaim and cross-complaint against the third-party defendants. After hearing evidence on the original complaint, the jury returned a verdict for $11,213.89.

On May 14, 1971, the plaintiff had a citation to discover assets served upon the National Bank of Albany Park. That afternoon the plaintiff received a telephone call from Judge Horan explaining that the attorney for the defendant was in his chambers and that he was vacating the order of March 25, 1971, because there had been an error on the part of the court clerk’s office and that this case should not have been assigned from the Law Division to the Municipal Division since the defendant’s counterclaim exceeded $15,000. The same day Judge Horan issued an order vacating the judgment, reinstating the counterclaim, and transferring the case to tire Presiding Judge for reassignment to the Law Division.

On May 27, 1971, pursuant to the written motion of the plaintiff, the court vacated its order of May 14, 1971, and the case was set for hearing on the motion call for June 24, 1971. On that date, the defendant filed a section 72 petition and the plaintiff filed a motion to strike and dismiss. After a hearing Judge Horan allowed the defendant’s petition, vacated the judgment, and reinstated the counterclaim.

The plaintiff contends that the defendant has failed to allege or prove a meritorious defense, due diligence or unconscionable circumstances justifying the invocation of the court’s equitable powers.

The verified petition of the defense attorneys, Sol August and Lawrence Jacobs, alleged as follows: On September 16, 1970, following the announcement that the case had been transferred to the Municipal Department, August appeared in the office of Chief Judge Boyle and pointed out that the case should not have been transferred because the amount involved exceeded $15,000. He was referred to Irving Gold, the Assistant Chief of Records. Pursuant to instructions from Gold, the attorney wrote out the title and number of the case and was assured by Gold that the case would be transferred back to the Law Division. In the days that followed, he checked the daily call of the Law Division appearing in the Chicago Daily Law Bulletin, and this case did not appear.

He first learned of the judgment when his client was notified by the National Bank of Albany Park of the summons that had been served upon it. Upon learning of the judgment, the attorneys searched the files and docket in the Law Division, then in the Municipal District, and discovered that the judgment had been entered in the Municipal District. They took the file into the office of Charles J. Visk, Chief of Court Records, who took them to Judge Horan’s chambers. After reviewing the file Judge Horan made a telephone call to the plaintiffs attorney, Mr. Heldrich, informing him that the order of March 25th would be vacated. The judge advised Mr. Heldrich to contact the National Bank of Albany Park and advise them of the situation.

The plaintiff’s motion to strike and dismiss alleges in substance that various paragraphs of the petition are vague and indefinite, not supported by affidavits as required by section 72, or contain hearsay. While the record shows that the trial judge did not pass on the motion to strike, we conclude that it would have been properly denied. Of significance, however, is the fact that the plaintiffs motion does not assign, as grounds to strike, the failure to allege facts showing a meritorious defense, due diligence or unconscionable circumstances. Any objection to the petition j on those grounds is, therefore, waived. Stanard v. Stanard, 108 Ill.App.2d 240, 243-244, 247 N.E.2d 438.

At the hearing the plaintiff’s attorney told the judge that he had a motion to strike, and, if that were denied, he wanted leave to file an answer instanter. After the judge said he was going to grant the motion, no further reference to an answer was made. Instead, the plaintiff’s lawyer immediately indicated that he would appeal. No point is made in the plaintiff’s brief on the procedure at the hearing. Under this state of the record, since nothing in the petition was denied, we must accept the allegation of the petition as true. Stidham v. Pappas, 78 Ill.App.2d 402, 403, 223 N.E.2d 318.

All of the cases cited by the plaintiff in support of his contention that the petitioner must show that he has a meritorious defense involve default judgments. Even so, in Taylor v. Coghlan, 73 Ill.App. 378, 379, where the defendant had been defaulted before the time for pleading had expired, the court said in rejecting the same argument made here:

“But when the defendant is not properly in default, through his own failure, hut because of a mistake or oversight on the part of the court in defaulting him when he had complied with the rules, there can be no reason, and we know of no authority, for requiring him to disclose his defense in order to have this mistake set right.”

We find the rationale of that case even more compelling here. This was not, nor could it have been, tried as a default matter since an answer had already been filed and had not been stricken. (Koenig v. Nardello, 99 Ill.App.2d 480, 483, 241 N.E.2d 567; 23 I.L.P. Judgments, sec. 57, page 174.) To accept the plaintiff’s argument, we could conclude that the trial judge should have denied relief on the original complaint but that he properly allowed the reinstatement of the counterclaim. Such a result is manifestly unrealistic, as is the requirement of proof of a ¡ “meritorious defense” when there is already an answer on file.

A petition under section 72 is addressed to the equitable powers of the court, and only where there is an abuse of discretion will a reviewing court interfere. (Stackler v. Village of Skokie, 53 Ill.App.2d 417, 420, 203 N.E.2d 183.) Our examination of the record discloses no abuse of discretion on the part of the trial judge in finding due diligence on the part of the defendant or in his invocation of his equitable powers.

Unfortunately, all too many cases like this one occur, and needlessly. The plaintiff may argue that the defendant’s attorney did not exercise the same degree of diligence that he did; but, as was stated in Stidham v. Pappas, 78 Ill.App.2d at 407: “The court recognizes that telephones are available and that courtesy among lawyers is and should be the rule rather than the exception.”

Judgment affirmed.

BURKE, P. J„ and GOLDBERG, J„ concur.


author: Mr. JUSTICE LEIGHTON

text:
    The People ex rel. Walter Fleming, Plaintiff-Appellee, v. James B. Conlisk, Jr., Superintendent of Police, Defendant-Appellant.
    (No. 56852;
    First District (2nd Division)
    May 8, 1973.

      Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel,) for appellant.
    John J. Cogan, of Oak Brook, for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This was a complaint for a writ of mandamus. Plaintiff Walter Fleming sued defendant James B. Conlisk, Jr., Superintendent of the Chicago Police Department, to compel restoration of his position as a patrolman in the Chicago police force. After an amended complaint was filed, defendant moved to strike and dismiss on the ground that it did not state a cause of action. Defendant alleged that on the face of the complaint, it appeared plaintiff was guilty of laches in failing to prosecute his cause of action within six months after it accrued. The trial court, however, found that plaintiff was not guilty of laches and overruled the motion to dismiss. Defendant elected to stand on his motion. The trial court then issued the writ of mandamus commanding the defendant reinstate plaintiff to his position as a patrolman in the Chicago police department. In this appeal, the only issue is whether plaintiff’s complaint for mandamus was barred by laches. This issue is resolved by an appraisal of the allegations in plaintiff’s one-count complaint. See Boyd v. Racine Currency Exchange, Inc., 8 Ill.App.3d 140, 141, 289 N.E.2d 218.

I.

The amended complaint alleged that plaintiff was employed as a Chicago patrolman on February 1, 1958. On March 1, 1967, he took a one year leave of absence which was extended by two annual applications to March 1, 1970. During this leave, plaintiff was employed in the security department of Sears, Roebuck and Company. On February 1, 1970, he was arrested and charged with theft. Plaintiff reported this fact to the chief of the internal investigations division of the Chicago police department. On March 1, 1970, not having requested extension of his leave, plaintiff reported for duty. He was instructed to report to the personnel department of the force. Plaintiff followed these instructions and reported to Sergeant Robert Killion. Then, plaintiff was ordered to return to the same office on Monday, March 2, 1970. When he returned, he remained there all day and was ordered to report March 3. He did so; and on that day, Sergeant Killion ordered plaintiff to return home, telling him that the police department would contact him. A month later, on April 3, 1970, plaintiff was indicted for theft. Thereafter, from time to time, he telephoned Sergeant Killion inquiring about his status with the Chicago police department. He was advised each time that no action had been taken.

On November 30, 1970, plaintiffs lawyer wrote defendant a letter inquiring whether any charge had been preferred against him because if none had, plaintiff desired to return to his patrolmans position immediately. There was no reply to the letter. In the meantime, plaintiff’s indictment for theft was pending. On May 11, 1971, he was tried and acquitted. On the same day, he reported this disposition to Sergeant Killion. Plaintiff was ordered to report for duty on May 17, 1971 at 8:30 A.M. in the office of the personnel director of the Chicago police department. Plaintiff did, but at the end of the day he was told to return home because he would not be reinstated until the receipt of certain files from the office of the State’s Attorney. Thereafter, daily, until this suit was filed, plaintiff called the police department but was advised that no action had been taken on his case. On May 24, 1971, plaintiff’s lawyer wrote to defendant calling his attention to the letter of November 30, 1970 and demanding plaintiff’s return to his patrolman’s position immediately. There was no response. The complaint in this case was filed two days later. It prayed for issuance of a writ of mandamus directed to the defendant requiring him to return plaintiff to his- position in the Chicago police department.

II.

These allegations disclose that on February 27, 1970, because his leave of absence was to expire on March 1, plaintiff requested return to duty as a Chicago police department patrolman. Defendant, however, took no action nor made any ruling on this request. Although a criminal charge was pending against plaintiff, defendant did not suspend him nor tell him he was not going to be restored to his patrolman’s position. After he was acquitted of the charges against him, plaintiff again returned to defendant’s personnel director and reported for duty. He was told that he would not be reinstated until some undefined papers or files were received from the State’s Attorney of Cook County. Again, no action was taken by defendant on plaintiff’s request that he be returned to his position as a Chicago patrolman. On May 26, 1971, one day less than fifteen months after February 27, 1970, plaintiff filed his suit for mandamus. Defendant contends that passage of this length of time was laches that barred plaintiff from any relief. Defendant argues that it was error for the trial court to grant plaintiff the writ of mandamus.

Laches is neglect for an unreasonable and unexplained length of time when the circumstances permit the doing of that which in law should have been done. (See Selsor v. Shelby, (Mo.App. 1966), 401 S.W.2d 169; Hanns v. Hanns (1967), 246 Ore. 282, 423 P.2d 499; 30A C.J.S. Equity § 112.) It is said that laches is inexcusable delay in asserting a right. (See Cory v. City of Hillsboro, 205 Ill.App. 49, Lulay v. Lulay (1967), 247 Ore. 497, 429 P.2d 802.) The doctrine of laches applies to mandamus proceedings. (People ex rel. Ballinger v. O’Connor, 13 Ill.App.2d 317, 142 N.E.2d 144.) The period of six months has been established as the time within which a complaint for mandamus must be filed, unless a reasonable excuse is shown for the delay. (People ex rel. Cronin v. Cahill, 118 Ill.App.2d 18, 254 N.E.2d 161.) Particularly, the doctrine of laches applies to proceedings to reinstate a discharged public employee. See Annot., 145 A.L.R. 767, 804.

There is no absolute rule by which laches can be determined. 30A C.J.S. § 115. What facts will combine to constitute laches depend on tire circumstances of each case. (Pyle v. Ferrell, 12 Ill.2d 547, 553, 147 N.E.2d 341; Monroe v. Civil Service Commission of City of Waukegan, 35 Ill.App.2d 354, 204 N.E.2d 486.) Moreover, existence of laches is a question addressed to the sound discretion of the trial court. See People ex rel. McCoy v. McCahey, 296 Ill.App. 310, 15 N.E.2d 988; Kadon v. Board of Fire and Police Commissioners, 45 Ill.App.2d 425, 195 N.E.2d 751.

In this case, the facts aUeged in plaintiff’s amended complaint, illumined as they were by plaintiff’s testimony when defendant’s motion was heard, do not show neglect for an unreasonable and unexplained length of time. The trial court, after reviewing the complaint, listening to plaintiff’s testimony and hearing defendant’s argument that plaintiff was guilty of laches, ruled that “* * * he [plaintiff] didn’t really know what his rights were. He didn’t know what his status was. And I believe him.” In oral findings, the trial court concluded that defendant’s failure to act on plaintiff’s requests to return to work explained why plaintiff did not take legal action within six months after his leave of absence expired. The trial court ruled that under these circumstances plaintiff was not guilty of laches. We agree. Laches cannot be imputed to one who has been justifiably ignorant of a right or a cause of action. (Corcoran v. Waugh, 368 Ill. 318, 13 N.E.2d 961; 30A C.J.S. Equity § 128.) The judgment is affirmed.

Affirmed.

STAMOS, P. J., and SCHWARTZ, J., concur.


author: Mr. JUSTICE McNAMARA

text:
    Christine E. Hartman, Plaintiff-Appellee, v. Arlie A. Hartman et al., Defendants—(James E. Hartman et al., Defendants-Appellants.)
    (No. 54209;
    First District (3rd Division)
    April 5, 1973.

      Rehearing denied May 3, 1973.

      J. Edward Jones, of Blue Island, for appellants.
    Korean Movsisian, of Chicago, for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Christine E. Hartman, filed a suit for partition of three parcels of realty, and requested that, as to one of the parcels, a forfeiture be declared against one of the defendants, her step-son, James E. Hartman, and his wife. James E. Hartman filed a motion under Section 48 of the Civil Practice Act asking that the suit be dismissed with regard to himself and his wife. Plaintiff filed a counter-motion to strike James’ motion to dismiss on the grounds that it was insufficient in law and consisted of conclusional and argumentative material. The court denied defendant’s Section 48 motion, and upon James Hartman’s refusal to plead to the complaint, the trial judge entered an order by default declaring a forfeiture against James Hartman and finding that he and his wife had no interest in the subject property. On appeal James and Jeanette Hartman urge that the plaintiff did not have the ownership rights essential to maintain the suit and that, therefore, the court erred in denying their motion to dismiss the action.

It should be noted here that the suit affecting the instant parcel was filed against James Hartman and his wife, Mary Beth Hartman. It developed that James and Mary Beth had been divorced, and that James had married Jeanette Hartman.

On April 25, 1968, appellee brought this action seeking to declare a forfeiture and also asking other relief. The complaint, as it pertains to these appellants and to the subject property, alleged that appellee and her ex-husband, Arlie A. Hartman, were the owners in joint tenancy of the subject property located at 13929 Park Avenue in Dolton, Illinois.

Arlie was the father of James Hartman by an earlier marriage. In October, 1967, appellee obtained a divorce from Arlie, and in March, 1968, a supplemental divorce decree was entered providing that appellee and Arlie were owners in joint tenancy of the property in question.

The complaint went on to state that on May 25, 1963, appellee and Arlie as sellers entered into Articles of Agreement for a deed to the subject property with James and Mary Beth Hartman as purchasers. The contract price was $10,823.71, and was to be paid by the purchasers in monthly installments. The contract provided that the sellers would furnish a deed if the purchasers made all the necessary payments on the contract.

The contract also provided that if the purchasers failed to make any of the payments the contract would be forfeited, the sellers could retail all payments made as damages, and the sellers would be able to reenter and take possession of the property. The complaint went on to state that the purchasers had defaulted in the monthly payments, that the last payment had been made in February, 1967, and that by virtue of filing this complaint, appellee was electing to declare a forfeiture of the contract.

James Hartman was served with summons in April, 1968, but, although he testified as a witness on behalf of Arlie in another portion of the proceedings, he did not file an appearance or an answer to this complaint. In February, 1969, appellee notified all parties that she would seek a default order. At that time, James Hartman was given time by the trial court to plead, and thereafter filed his Section 48 motion to dismiss. The gist of the argument and the motion to dismiss the cause of action was that an equitable conversion of property had taken place at the time of the execution of the Articles of Agreement, and that the purchasers rather than the sellers had become the owners of the subject property.

In addition to the motion to dismiss, James Hartman filed a rambling and conclusional affidavit. The material facts contained in that affidavit are as follows: $100 per month had been paid on the contract from July, 1963, through February, 1967; at this time a balance of $9,383.64 remained unpaid on the contract price; payments in conformity with the contract ceased at this point, but thereafter payments of $69 per month were made to Arlie by Hannes Ver Wey under agreement with the appellants, except for three months of 1967 and the month of March, 1968; in 1966, at the request of Arlie, appellants paid $85 in taxes above the amount of the contract price.

After hearing, the trial court denied appellants’ motion to dismiss the complaint. At the time of his ruling, the trial court declared that, even accepting all the facts in James’ affidavit as true, he would have to deny appellants’ motion to dismiss. After denying the motion to dismiss, the trial judge requested appellants to file an answer to the complaint and to proceed to trial. When appellants refused to plead to the complaint, the trial judge reluctantly entered a default order declaring a forfeiture and finding that appellants had no interest in the subject property.

As we have observed, appellants maintained in the trial court that their Section 48 motion established, as a matter of law, that an equitable conversion of the property had taken place. They argued therefore that their motion conclusively demonstrated that appellee had no ownership rights in the property, and that the trial court thus had no jurisdiction to entertain the complaint. It is axiomatic that issues not presented to the trial court cannot be raised for the first time on appeal. (People ex rel. Gustafson v. Calumet City, 101 Ill.App.2d 8, 241 N.E.2d 512.) Therefore, that is the only issue which will be considered by this court on appeal.

A suit for partition will lie only where the plaintiff is a co-owner of the realty involved. (Ill. Rev. Stat. 1967, ch. 106, par. 44.) But within a suit for partition, the trial court is also empowered to determine the ownership rights of the property and to remove clouds upon title. (111. Rev. Stat. 1967, ch. 106, par. 67.) Under the doctrine of equitable conversion upon the execution of a valid, enforceable contract for the sale of realty, the purchaser becomes the equitable owner of the realty holding the purchase money as trustee for the seller. The seller becomes trustee of the legal title for the purchaser with a lien on the land as security for the purchase money. (Shay v. Penrose, 25 Ill.2d 447, 185 N.E.2d 218.) However, the doctrine of equitable conversion does not apply where equitable considerations intervene or where the parties intend otherwise. Eade v. Brownlee, 29 Ill.2d 214, 193 N.E.2d 786.

In the instant case, the doctrine of equitable conversion is clearly not applicable. James Hartman’s affidavit conceded that appellants were in default in accordance with the terms of the contract. Many payments on the contract were late, others were less than the required amount and some payments were not made at all. Indeed, over $8,500 of the purchase price still remained unpaid.

Citing Boardman v. Bubert, 325 Ill. 38, 155 N.E. 784; Monson v. Bragdon, 159 Ill. 61, 42 N.E. 383; and, Watson v. White, 152 Ill. 364, 38 N.E. 902, appellants contend that appellee, in failing to give any notice of her intention to declare a forfeiture beyond the filing of this suit, waived any breach of contract on the part of appellants. The cited cases however are distinguishable from the instant case. In those cases, the only defaults on the part of the purchasers were delays in payment, while in the present case, there was a suspension of payments on the part of appellants. In the Monson case, supra, the court explicitly noted that a different result would have been indicated if, rather than a delay in payment, a suspension of payment had been involved.

We find no merit in appellants’ argument that the forfeiture clause in the contract was so harsh and inequitable in its application to them as to render it void, thereby leaving appellants as equitable owners of the property. The validity of such forfeiture clauses has been recognized by the courts. (McDonald v. Bartlett, 324 Ill. 549, 155 N.E. 477; Robnett v. Miller, 303 Ill 515, 135 N.E. 705.) Indeed, the equities seem to rest with the appellee. Appellants defaulted in payments, and, despite having the use of the property for several years, reduced the unpaid balance of the contract by only a small amount. Moreover, even if the forfeiture clause is declared invalid, a breach by the purchaser of an essential provision of a contract may be sufficient to defeat the purchaser’s claim to title and to re-invest the entire title in the vendor. (O’Malley v. Cummings, 86 Ill.App.2d 446, 229 N.E.2d 878.) From the affidavit of James Hartman, appellants’ breaches of the contract are manifest.

The trial court correctly found that appellants’ motion failed to demonstrate, as a matter of law, that the appellee had no ownership rights to the subject property essential to maintain the suit. Therefore, there was a jurisdictional basis for this suit to proceed to full litigation. In view of appellants’ refusal to further plead to the complaint, the trial court correctly declared a forfeiture and found that appellants had no interest in the subject property.

For the reasons stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

DEMPSEY, P. J., and McGLOON, J., concur.