author: PRESIDING JUSTICE SEIDENFELD

text:
      In re CUSTODY OF JACQUELINE M. BOUREY (David Giagnoni, Petitioner-Appellee, v. Julie Bourey, Respondent-Appellant).
    Second District
    No. 2—83—0721
    Opinion filed September 24, 1984.
    Rehearing denied October 18, 1984.

      Jo Ann L. Nieman, of Waukegan, and Janet Rubel, of Chicago, for appellant.
    Anderson, Bazos, Kramer & Castillo, of Elgin, H. Joseph Gitlin, of Woodstock, and David Giagnoni, of McHenry, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Julie Bourey, the mother of an infant child, Jacqueline M. Bourey, appeals an order of the circuit court which awarded custody of the child to the putative father, David Giagnoni.

Petitioner, David Giagnoni, and respondent, Julie Bourey, both 18 years old at trial, had dated for 21/2 months when Julie first suspected she was pregnant. In January 1982, she became depressed under the stress of the expected pregnancy, took an overdose of a cold medication, and was admitted to Ridgeway Hospital, where the pregnancy was confirmed. After discussions with her parents, David, and her doctor, she determined it would be in the best interest of the child if it were adopted. David at first refused to surrender his parental right, then signed the surrender paper, revoked his surrender within the three-day period, told Julie he would sign the paper again, but finally refused to surrender his right.

After the child was born, September 2, 1982, she lived for a week in a foster home while Julie lived in David’s father’s apartment with David. When it became apparent David would not agree to the adoption, Julie decided to take custody of the child.

On October 13, 1982, David filed a petition seeking custody of the child. On the same day Julie filed a paternity action (Ill. Rev. Stat. 1983, ch. 40, par. 1351 et seq.). The court consolidated the actions, and Julie filed a counterpetition for custody.

After hearing testimony from the parties, Julie’s father, David’s mother, and a social worker, the trial judge, in his letter of decision, applied the general guidelines of section 602 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par. 602.) The court rejected the “tender years” doctrine, finding that there is no longer a presumption in Illinois that a mother should have custody of a young child simply because she is the mother. In seeking the “most stable environment for the child,” the court determined that Julie showed “less emotional and mental stability” than David. The letter concluded:

“[C]onsidering all of the factors involved, including the mental and emotional stability and maturity and all other factors referred to and circumstances surrounding the birth of the child, it is the Court’s opinion that the custody of the minor child, *** should be awarded to the father, David B. Giagnoni provided he shall be able to raise her with the assistance of his mother; otherwise, the child shall remain in the custody of the natural mother.”

The final order, filed August 8, 1983, awarded custody to David, omitting the provision that he is to raise the child with the assistance of his mother. Julie was ordered to pay $24 per week child support.

Julie filed a post-trial motion raising the new fact that a named individual has proposed marriage to her, and also raising, in a memorandum of law, the objections to the ruling raised on appeal here.

Notice of appeal was filed August 23, 1983. This court stayed enforcement of the trial court order. On August 26, 1983, pursuant to the stay and the posting of an appeal bond, the trial court returned custody to Julie.

I

Julie initially contends that the trial court erroneously applied section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 602) to resolve the custody issue. We note that the trial judge in his letter announcing his opinion applied the “best interest of the child” standard and noted that he had examined section 602 “for a general guideline in determining the best interest of the child.”

The question of what statute applies to proceedings for custody of a child of unmarried parents is not clearly agreed in Illinois law. Traditionally, habeas corpus (Ill. Rev. Stat. 1983, ch. 110, par. 10—101 et seq.) has been held to be the proper proceeding in which to determine a custody dispute between unmarried parents. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 208; In re Ritchie (1978), 58 Ill. App. 3d 1045, 1050.) In actions between an unwed biological parent and grandparents, the Probate Act (Ill. Rev. Stat. 1983, ch. 1101/2, par. 11—7) has been applied. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 509; In re Custody of Roberts (1982), 107 Ill. App. 3d 913, 915.) In one appellate decision the Illinois Marriage and Dissolution of Marriage Act was applied in custody proceedings between unmarried parents. (In re Custody of Myer (1981), 100 Ill. App. 3d 27, 32.) However, the Illinois Supreme Court has refused to apply the Illinois Marriage and Dissolution of Marriage Act to determine property rights between unmarried partners, referring to legislative policy behind the Act and also to that behind the statute making common law marriages invalid. (Hewitt v. Hewitt (1979), 77 Ill. 2d 49, 61-62. See also In re Mac Harg (1983), 120 Ill. App. 3d 753 (attorney fees).) We need not, however, and do not, decide which act applies since the best interest of the child guides the decision, no matter what form the proceedings may take. See In re Custody of Townsend (1981), 86 Ill. 2d 502, 509; In re Custody of Roberts (1982), 107 Ill. App. 3d 913, 915; In re Ritchie (1978), 58 Ill. App. 3d 1045, 1051.

In the application of the best-interest-of-the-child test to a custody dispute between unmarried parents, we also recognize that there is no longer a presumption in favor of either parent. See, e.g., People ex rel. Slawek v. Covenant Children’s Home (1972), 52 Ill. 2d 20, 22; People ex rel. Irby v. Dubois (1976), 41 Ill. App. 3d 609, 612.

II

The trial court has broad discretion in awarding custody. (In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 244.) The trial court’s decision is not to be disturbed unless contrary to the manifest weight of the evidence or unless it works manifest injustice. (In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 1039.) After examining the record, however, we conclude that the trial judge’s ruling that the consideration of the best interest of the child dictated that custody be given to the putative father is against the manifest weight of the evidence.

The United States Supreme Court has recognized that its prior decision giving a cognizable and substantial interest to an unmarried father in the care and custody of a child (Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208) does not foreclose the consideration that the unmarried father’s “interests are readily distinguishable from those of a separated or divorced father ***.” (Quilloin v. Walcott (1978), 434 U.S. 246, 256, 54 L. Ed. 2d 511, 520, 98 S. Ct. 549, 555). In Quilloin, the court noted that in a marriage relationship “even a father whose marriage has broken apart will have borne full responsibility for the rearing of his children during the period of the marriage.” (434 U.S. 246, 256, 54 L. Ed. 2d 511, 520, 98 S. Ct. 549, 555.) Other courts have applied Quilloin, distinguishing between the process due a putative father who has established a custodial relationship with his child or who has provided support to the mother of the child before notice of the custody hearing, and that due those who have not. (See In re Barlow (1978), 404 Mich. 216, 226-27, 273 N.W.2d 35, 38.) A putative father has been required to show a substantial concern for the child before he has been given standing to assert his interests. (See Kendrick v. Everheart (Fla. 1980), 390 So. 2d 53, 60.) Thus, we conclude that the conduct of an unmarried parent in meeting the responsibility of providing for the child and of establishing a significant relationship with the child must be considered among the circumstances which the trial court must recognize in determining the best interest of the child.

These factors weigh substantially against the father, although the trial court found both parties to be fit parents. Until ordered by the court, and even after that, David did not meet his support obligations. In fact, the record shows that he has been held in contempt of court for what the court found to be a wilful and contumacious refusal to do so. From the record it also appears that he has seen the child only for brief periods, which he spent with his mother.

Julie, on the other hand, has been supporting the child, paying $50 per week as rent to her father and $40 per week for baby care. She and her family appear to have paid the medical bills with little contribution from David. She has taken full care of the child. She has taken her for regular medical check-ups and has baptized her in the Catholic faith. She has purchased most of the child’s toys and clothing, while David has purchased few.

Other facts in the record similarly support the conclusion that custody should properly be awarded to Julie. Julie outlined plans for the future, including a budget allowing her to live on her own with Jacqueline and to be in school while continuing to work, but David outlined no plans except to live with his mother while he continues his work. David’s mother, divorced from his father, is unemployed and resides with her elderly mother and second husband. David testified that he would live with his mother should he get custody and that she would help him care for the child.

On the facts before him, the trial judge found that the parties’ qualities were evenly balanced but awarded custody to the father, concluding that he was more mature. However, the facts show a mother who had been caring for her child for approximately seven months at the time of trial, for approximately one year at the time of the final order (and who has now had custody for another year pending this appeal), and who had made plans to care for her in the future, compared to a father who had not met his court-imposed obligations and who had made no plans to care for the child except to move in with his mother. We conclude that the manifest weight of the evidence shows that Julie has made more responsible plans concerning custody of the child. Considering all of the factors, the judgment awarding the custody to the father is against the manifest weight of the evidence.

Ill

Julie has challenged the award of fees to the attorney who was appointed to represent the interest of the child. The court had the power to appoint an attorney to best represent the interest of the child. (Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 24.) The attorney fees were presented in a written report to which Julie objected generally but failed to object specifically. We conclude that the attorney fees were properly ordered. See In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1121.

The judgment of the circuit court of McHenry County awarding custody to the father is reversed, the judgment awarding attorney fees is affirmed.

Affirmed in part; reversed in part.

NASH and HOPE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WHITE

license: Public Domain

text:
    INLAND REAL ESTATE CORPORATION, Plaintiff and Counterdefendant and Third-Party Plaintiff-Appellant and Cross-Appellee, v. OAK PARK TRUST AND SAVINGS BANK, Trustee, et al., Defendants (Hans Seifert et al., Defendants and Counterplaintiffs-Appellees and Cross-Appellants; and Thomas C. Hynes, Cook County Assessor, et al., Third-Party Defendants-Appellees).
    First District (3d Division)
    No. 81—2531
    Opinion filed December 14, 1983.
    Modified on denial of rehearing October 15, 1984.

      Theodore A. Shapero and Thomas F. Geselbracht, both of Rudnick & Wolfe, of Chicago, for appellant.
    Joseph B. Platt, of Chicago, for appellees Hans Seifert, Eleonore Seifert, and Oak Park Trust and Savings Bank.
    Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey and Bruce R. Meckler, Assistant State’s Attorneys, of counsel), for appellees Thomas C. Hynes and Edward J. Rosewell.
   JUSTICE WHITE

delivered the opinion of the court:

This case involves interests in real property located at 229 Marengo Street in Forest Park. In 1970, this land and a 63-unit apartment building located thereon were owned by Stanley K. De-Furgalski and Brenda DeFurgalski, his wife. On December 19, 1972, Stanley DeFurgalski entered into a written agreement with Dr. Hans Seifert and Ronald Rynes whereby DeFurgalski was to convey the property to Seifert and Rynes. The parties agree that the total value that Seifert and Rynes were to pay for the property was $915,000. Paragraph 12(a) of the agreement provided that DeFurgalski shall convey to Seifert and Rynes “good and marketable fee simple title, free and clear of all liens, encumbrances, restrictions, easements and leases of any nature whatsoever.” Paragraph 5 of this agreement provided that DeFurgalski “represents and warrants that the 1971 Real Estate taxes [on the subject real estate] were $2,117.02.” Other evidence in the record shows that the taxes for 1970 and 1972 were $2,081.50 and $2,196.34, respectively. On December 26, 1972, De-Furgalski and his wife, Brenda, conveyed title to Seifert and Rynes by warranty deed. In partial payment for the real estate, on December 29, 1972, Seifert and Rynes executed a promissory note payable to bearer in the face amount of $105,000, payable over 15 years and bearing interest at the rate of 9% per annum. This note was secured by a trust deed on the subject property executed the same day, and a rider attached to the trust deed provided that it was a junior mortgage expressly subordinate to an earlier mortgage not involved in this appeal. Both the note and the trust deed expressly provided that Seifert and Rynes would not be personally liable under the note and that all sums due under the note would be payable only out of the real estate described in the trust deed. On January 20, 1973, Seifert, Rynes, and each of their wives transferred the property to the Oak Park Trust and Savings Bank, as land trustee under trust No. 6743, with Seifert and Rynes named as beneficiaries. Since April 1973, Katherine Sipal, as an officer of Sipal Realty, Inc., was in charge of management of the apartment building for and on behalf of Seifert and Rynes, and her duties included the payment of all mortgage payments, taxes and expenses in connection with the property.

On December 30, 1974, DeFurgalski sold and assigned to Inland Real Estate Corporation his interests in the $105,000 note. Payments by Sipal to Inland on the note and second mortgage, which began in March 1975 and continued for 53 consecutive months through July 1979, totalled $56,445. The payments ceased in August 1979.

On May 31, 1977, the county assessor sent to Sipal Realty a notice of his intention to back tax omitted assessments. The notice stated that the assessment against the real property involved herein was defective because the assessment of the building was omitted for the years 1970 through 1976 and that a hearing would be held on June 14, 1977, at the assessor’s office. Neither Sipal Realty nor Seifert or Rynes appeared at the scheduled hearing. Subsequently, on April 5, 1978, J. Douglas Donnenfeld, an attorney for Sipal Realty, appeared at a hearing in the assessor’s office. On October 16, 1978, the county assessor imposed back taxes, interest and penalties totalling $128,584.51 for the years 1970, 1971 and 1972.

As noted above, no payments were made on the note secured by the second mortgage after July 1979. On November 8, 1979, Inland filed its complaint to foreclose the second mortgage. The named defendants in this action included Oak Park Trust and Savings Bank, as trustee under trust No. 6743, Hans Seifert, Eleonore Seifert, Ronald Rynes, Sipal Realty, and First Savings and Loan Association of South Holland, the first mortgagee. On December 21, 1979, Oak Park Trust and Savings Bank, Hans Seifert and Eleonore Seifert filed an answer to the complaint. The answer contained a “set-off and counterclaim,” in which the bank and the Seiferts alleged that the back taxes for 1970 through 1972 were for years when the De-Furgalskis owned the building and claimed that they were entitled to set off the amount of the back taxes against the debt represented by the note and second mortgage. They also claimed that they were entitled to “repayment of all sums heretofor paid under said note to plaintiff herein [Inland] for and on behalf of the DeFurgalskis in amount sufficient to pay for balance of back taxes, interest, and attorney’s fees incurred.” The answer also contained a third-party claim by the bank and the Seiferts against Stanley DeFurgalski, which sought recovery in the amount of the back taxes. Ronald Rynes filed an answer which contained a counterclaim and a third-party claim similar to those of the bank and the Seiferts. On April 10, 1980, Sipal Realty, as agent for the Seiferts, paid back taxes, interest and penalties for the years 1970, 1971 and 1972 in the amount of $123,584.81, without protest.

On July 18, 1980, Inland filed its answer to the counterclaim of Rynes. Inland denied liability on the counterclaim and raised certain affirmative defenses. Inland also filed a third-party action against the DeFurgalskis for the amount of any setoff or judgment obtained by the bank and the Seiferts against Inland.

On December 18, 1980, Inland filed a third-party complaint against Thomas C. Hynes, in his official capacity as Cook County assessor, and Edward J. Rosewell, in his official capacity as Cook County treasurer and collector. The complaint alleged: “Counterclaimants [Oak Park Trust and Savings Bank, as trustee, Hans Seifert, Eleonore Seifert and Ronald Rynes] and Inland, as subrogee, are entitled to return of all tax payments received by the Collector, as a result of the subject real estate being back-taxed for the years 1970, 1971 and 1972.” The prayer for relief asked for judgment in favor of Inland and against the county defendants “for the amount of the tax payments, plus interest received, as a result of the subject real estate being back-taxed for the years 1970,1971 and 1972.”

Subsequently, the Seiferts moved for summary judgment in their favor and against Inland on Inland’s complaint to foreclose and for summary judgment in their favor and against Inland on their counterclaim for setoff. Inland also moved for summary judgment in its favor on its complaint to foreclose and for summary judgment in its favor on the Seiferts’ counterclaim. In addition, the county defendants, Hynes and Rosewell, moved for summary judgment in the third-party action against them. Inland also filed a motion for summary judgment in its favor in this third-party action. In response to these motions, the circuit court entered the final judgment order from which this appeal is taken. The circuit court ruled as follows:

“(1) INLAND’S motion for summary judgment and entry of a decree of foreclosure and sale against HANS and ELEONORE is denied, and INLAND’S Complaint for Foreclosure is dismissed;
(2) HANS’ and ELEONORE’s motion for summary judgment against INLAND is granted and the Court adjudges that HANS and ELEONORE are entitled to set-off $128,584.51 against the balance of purchase price due under the trust deed and note. The lien of the subject trust deed is void and can-celled of record;
(3) Judgment in favor of HANS and ELEONORE is entered against INLAND for $23,584.51 (the difference between the amount of their set-off and the face value of the $105,000 note);
(4) HANS’ and ELEONORE’s motion for entry of a judgment for $56,445 plus interest and costs against INLAND for repayment of sums paid to INLAND by HANS and ELEONORE is denied;
(5) HYNES’ and ROSEWELL’s motion for summary judgment is granted, INLAND’S Third Party Complaint directed against them is dismissed, and HYNES and ROSEWELL are dismissed as third parties Defendant herein.”

In reaching these conclusions the circuit court apparently reasoned that the unpaid 1970, 1971 and 1972 taxes on the property violated the terms of the DeFurgalski agreement of December 19, 1972, to convey the property free and clear of all liens and violated the terms of the warranty deed that followed, and that the back taxes on the property incumbered the title that Seifert and Rynes obtained from the DeFurgalskis.

Inland’s first argument on appeal is that there was no breach of the Defurgalskis’ warranty of no incumbrances. The warranty deed given to Seifert and Rynes was substantially in the form set forth in section 9 of “An Act concerning conveyances” (Ill. Rev. Stat. 1973, ch. 30, par. 8), and accordingly, contained three statutory covenants: the covenant of seisin and of good right to convey; the covenant against incumbrances; and the covenant of quiet enjoyment. We also observe that by the express terms of the written agreement between Stanley DeFurgalski and Seifert .and Rynes, DeFurgalski agreed to convey title free and clear of all incumbrances.

Relying on the well-settled rule that a covenant against incumbrances is a covenant in praesenti, that is breached, if at all, at the moment it is made (Firebaugh v. Wittenberg (1923), 309 Ill. 536, 543, 141 N.E. 379; Meyers v. Veres (1923), 245 Ill. App. 127, 130; see Fechtner v. Lake County Savings & Loan Association (1975), 33 Ill. App. 3d 307, 308-09, 337 N.E.2d 193, rev’d (1977), 66 Ill. 2d 128), Inland contends that there was no breach of that covenant because the sales agreement was executed and the warranty deed delivered in 1972, and the back taxes were not imposed until 1978. According to Inland, since at the time the warranties in this case were made there were no tax liens of record, no back taxes levied or unpaid, no reassessment of the premises, and no notice of intention to back tax, the covenant against incumbrances was not breached and the Seiferts had no defense to its foreclosure action.

In our opinion, Inland takes too narrow a view of the covenant against incumbrances. In Brown v. Lober (1979), 75 Ill. 2d 47, 551, 389 N.E.2d 1188, our supreme court defined an incumbrance as “any right to, or interest in, land which may subsist in a third party to the diminution of the value of the estate, but consistent with the passing of the fee by conveyance.” In this regard, we also note that in Firebaugh, our supreme court recognized that an inchoate right of dower was a valuable right and one that affected the market value of land, and that in popular understanding was an incumbrance. (Firebaugh v. Wittenberg (1923), 309 Ill. 536, 544.) We hold that if the claim of the county defendants for back taxes was a lawful claim or demand enforceable against the Seiferts, then the unexercised authority of these defendants to impose the back taxes constituted an incumbrance on the property at the time of transfer from the De-Furgalskis to Seifert and Rynes.

Inland next argues that even if the unpaid back taxes breached the DeFurgalskis’ covenant, Inland could not be held responsible for the breach. It gave no warranty deed to Seifert and Rynes, made them no guarantees and gave no assurances. Rather, it merely purchased and was assigned a note and mortgage from a creditor of Seifert and Rynes. Thus, in Inland’s view, this defense which the Seiferts might have raised in a foreclosure action by the DeFurgalskis was not available to them in this foreclosure action by Inland. We disagree.

It is a well-established general rule that the assignee of a trust deed in the nature of a mortgage takes it subject to the same defenses that existed between the original parties to the instrument. In King v. Harpster (1922), 306 Ill. 202, 209, 137 N.E. 823, our supreme court stated:

“The doctrine of an innocent purchaser for value, which applies to commercial paper, has no application to a mortgage. The assignee of a mortgage takes it subject to the same equities it was subject to in the hands of the assignor. The assignee of a mortgage knows that it is not assignable at common law but only in equity and that he takes it subject to all equities existing in favor of the mortgagor. It is therefore the duty of the assignee to inquire of the mortgagor if there is any reason why it should not be paid.”

See also Olds v. Cummings (1863), 31 Ill. 188.

In the instant case, Stanley DeFurgalski assigned his interest in the $105,000 note and trust deed to Inland. “The assignment of the mortgage note carried with it an equitable assignment of the trust deed by which it was secured.” (Miller v. Frederick’s Brewing Co. (1950), 405 Ill. 591, 596, 92 N.E.2d 108.) The right of Inland to recover on the note against the Seiferts is not involved in this case. Rather, we are concerned with the trust deed on which Inland seeks to foreclose. Applying the principles stated in King v. Harpster, it was Inland’s duty to inquire of Seifert and Rynes, the mortgagors, if there was any reason why the mortgage should not be paid. There is nothing in this record indicating that Inland made inquiry of Seifert and Rynes about the taxes for the years 1970, 1971 and 1972. Such inquiry may have disclosed the billed taxes to be abnormally low, $2,000 annually for property which sold for $915,000.

Inland argues, however, that its duty to inquire of possible defenses was satisfied by a search of the public record and cites Connor v. Wahl (1928), 330 Ill. 136, 161 N.E.2d 306, in support of its argument. We fail to see how Connor supports Inland’s argument. We can see no reason to depart from the general rule that the assignee of a mortgage takes it subject to the same equities it was subject to in the hands of the assignor. Connor v. Wahl (1928), 330 Ill. 136, 141, 161 N.E.2d 306.

Inland next contends that even assuming the imposition of back taxes could breach the covenant against incumbrances, there was no breach of the covenant here because the back taxes were improperly assessed and levied. According to Inland, Illinois statutes barred the imposition of back taxes on the property for the years 1970, 1971 and 1972. Therefore, Inland argues that there was no defense to Inland’s foreclosure action and that it should have been granted summary judgment. Preliminarily, we note that Inland has standing to contest here the validity of the back taxes to the extent necessary for a determination of whether the back taxes constituted a breach of the covenant against incumbrances.

First, it is argued that the county assessor could not revise the assessment of the subject property pursuant to section 220 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 701). Section 220 deals with property omitted from an assessment and states:

“If any real or personal property is omitted in the assessment of any year or number of years, so that the taxes thereon, for which such property was liable, have not been paid, or if any such property, by reason of defective description or assessment thereon, fails to pay taxes for any year or years, in either case the same property, when discovered, shall be listed and assessed by the board of review or, in counties having a board of appeals, by the assessor either on his own initiative or when so directed by the board of appeals. For purposes of this Section, ‘defective description or assessment’ includes a description or assessment of real property which omits all the improvements thereon as a result of which part of the taxes on the total value of the real estate as improved remain unpaid.”

The “Notice of Intention to Back-Tax Omitted Assessments” sent by the county assessor to Sipal Realty stated that the assessment of the real property involved herein was defective because the building was omitted from the assessment for the years 1970 through 1976.

According to Inland, both the land and improvements thereon were included in the 1970, 1971 and 1972 assessments, and therefore, the assessments for those years could not be reviewed in a subsequent year. Inland relies primarily upon the following language from our supreme court’s opinion in People ex rel. McDonough v. Birtman Electric Co. (1934), 359 Ill. 143, 147, 194 N.E. 282:

“In the case of improved real estate the entity is composed of two components: one land and the other buildings and improvements. If both are listed and valued separately for assessment purposes the assessment cannot be reviewed in a subsequent year, but if either the land itself or the building and improvements have been omitted then that component part which was so omitted becomes a subject of assessment for taxation in a subsequent year.”

(See also People ex rel. Schuler v. Chapman (1939), 370 Ill. 430, 440, 19 N.E.2d 351.) The Birtman Electric Co. case also stated:

“Where real estate has been assessed by proper description and the taxes extended thereon have been fully paid, the board of review has no power in a subsequent year to review that assessment and increase or diminish it, but if no assessment was made then the board of review may make an assessment of the omitted property in a subsequent year.” (People ex rel. McDonough v. Birtman Electric Co. (1934), 359 Ill. 143, 145, 194 N.E. 282.)

See also Holiday Inns of America, Inc. v. Tully (1982), 106 Ill. App. 3d 1004, 1009, 436 N.E.2d 592.

The Seiferts, in their brief on appeal, observe that this argument as to the illegality of the back-tax assessment was not raised in the court below. Our review of the record confirms this observation. Thus, this argument has been waived for purposes of appellate review. See Brown v. Lober (1979), 75 Ill. 2d 547, 556, 389 N.E.2d 1188.

We note, however, that in its initial brief on appeal, Inland argued:

“For 1970, 1971 and 1972, 229 Marengo was assessed as improved by single-family residences (which apparently had preceded the apartment building). But a misassessment is not an omitted or a defective assessment. The Assessor could not collect back taxes after its error. It could only reassess for subsequent years.”

Assuming the facts contained in this statement to be true, we note that the property still was subject to back-tax liability under that portion of section 220 concerning property defectively assessed. The subject real estate was improved by an apartment building in 1970, 1971 and 1972 and not by single-family residences. The property was defectively assessed for those years because the assessments omitted all the improvements thereon, namely, the apartment building.

Inland’s second basis for arguing that the back taxes were improperly assessed and levied is that back taxes could not be imposed on omitted property once ownership of the property changed hands. This argument is based upon section 221 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 702), which provides:

“No such charge for tax and interest for previous years, as provided for in Section 220 of this Act, shall be made against any property prior to the date of ownership of the person owning such property at the time the liability for such omitted tax was first ascertained. Ownership as used in this section shall be held to refer to bona fide legal and equitable titles or interests acquired for value and without notice of the tax, as may appear by deed, deed of trust, mortgage, certificate of purchase or sale, or other form of contract.”

In Birtman Electric Co., our supreme court stated the policy underlying this provision:

“In order to safeguard the rights of purchasers and certain transferees of either real or personal property from the danger of assessments for back taxes, the legislature has provided that no charge for tax for previous years shall be made against any property prior to the date of ownership of the person owning such property at the time the liability for such omitted tax was ascertained.” People ex rel. McDonough v. Birtman Electric Co. (1934), 359 Ill. 143, 148, 194 N.E. 282.

According to Inland, the transaction between DeFurgalski and Seifert and Rynes changed the ownership of the subject property and prevented any charge against the property for back taxes for the years 1970, 1971 and 1972. (See People v. Sears (1931), 344 Ill. 189, 194-200, 176 N.E. 273.) Thus, Inland argues that the revisions in the assessment of the property were improper.

Although section 221 does prevent back taxing of omitted property for years prior to the date of ownership of the person owning the property at the time liability for such omitted tax was first ascertained, that section also defines ownership as “bona fide legal and equitable titles or interests acquired for value and without notice of the tax.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 120, par. 702.) Thus, the mere change of ownership alone was insufficient to preclude a back tax of the property for years prior to the acquisition of the property by Seifert and Rynes. If Seifert and Rynes took the property with notice of the tax, then section 221 would not bar the imposition of the back taxes.

The parties agree that the total value that Seifert and Rynes were to pay DeFurgalski for the property was $915,000, and that the written agreement between Seifert and Rynes and DeFurgalski stated the 1971 real estate taxes were $2,117.02. The Seiferts argue on appeal that there was notice of the possibility of a back tax by virtue of the amount of the taxes considering the total value of the property. We agree that if the taxes vis-a-vis the total value of the property were abnormally low, this may have indicated that Seifert and Rynes acquired the property “with notice of the tax.” There is, however, no evidence in the record from which the circuit court could have concluded that the taxes were so low as to give notice of the possibility of back taxing. Nothing in the record indicates that the amounts of the taxes were unusual for the neighborhood in which the property was located or for the level of improvement on the property. This, in our opinion, gives rise to a question of fact which cannot be resolved given the present state of the record.

In sum, we hold that there is a genuine issue of material fact as to whether Seifert and Rynes acquired the property without notice of the tax. If they acquired the property “without notice of the tax,” the back taxes were invalid and could not constitute an incumbrance on the property. If, however, Seifert and Rynes acquired the property with notice of the tax, then the back taxes were valid, and consequently, would constitute an incumbrance on the property. Accordingly, this cause must be remanded for further consideration of this issue.

Although there will be a remand, we must also consider Inland’s remaining argument as to the invalidity of the back taxes, because if accepted, this argument would require the reversal of the summary judgment in favor of the Seiferts and the granting of summary judgment in favor of Inland.

Inland’s third argument concerning the propriety of the back taxes is that the imposition of back taxes was null and void because the assessor did not comply with the notice requirements for assessing omitted property set forth in section 221 of the Revenue Act of 1939 (Ill. Rev. Stat. 1979, ch. 120, par. 702). The last sentence of this section provides: “The owner of property, if known, assessed under this and the preceding section shall be notified by the assessor, board of review or Department, as the case may require.”

The record shows that the only ‘Notice of Intention to Back-Tax Omitted Assessments” was sent to Sipal Realty. As noted above, Sipal Realty managed the subject property on behalf of Seifert and Rynes. It is Inland’s position that since Sipal Realty was never the owner of the property, the provisions of section 221 requiring notice to the owner were violated and the back taxes were null and void. We note that under section 116 of the Revenue Act of 1939 (Ill. Rev. Stat. 1981, ch. 120, par. 597), dealing with notice of increased assessments, notice to the taxpayer’s agent is specifically sanctioned. (See In re Application of Rosewell (1979), 73 Ill. App. 3d 225, 234, 390 N.E.2d 1294.) In In re Application of Rosewell, a case involving section 220 of the Revenue Act of 1939, the appellate court rejected taxpayers’ arguments that back taxes were assessed without proper notice where notice was sent to the taxpayers’ attorney and it was undisputed that the taxpayers received actual notice. (73 Ill. App. 3d 225, 234.) Inland does not argue that Seifert and Rynes did not receive actual notice of the back-tax proceedings. In fact, when making an estoppel argument in its appellate brief, Inland states that “[t]he Seiferts knew that the back tax proceeding, in fact, was going on.” On April 5, 1978, J. Douglas Donnenfeld, an attorney for Sipal Realty, and therefore a representative of the interests of Seifert and Rynes, appeared before the assessor’s office, and the back taxes were not imposed until October 16, 1978. Under these circumstances, we are of the opinion that sending notices to Seifert’s and Rynes’ agent and not to them personally did not render the back taxes invalid.

Inland argues that notice should have been given to Oak Park Trust & Savings Bank, as trustee under trust No. 6743, and to De-Furgalski, as well as to Seifert and Rynes. Inland bases this argument on the broad definition of ownership contained in section 221 of the Revenue Act of 1939, which is quoted earlier in this opinion. We think that for the same reasons that the failure to send notices to Seifert and Rynes did not render the back taxes invalid, the failure to send such notice to the bank did not render them invalid.

Inland also contends that DeFurgalski should have been given notice of the assessor’s intent to back tax, because DeFurgalski was a mortgagee of public record when the assessor imposed the back taxes, and thus an owner within the meaning of the statute. We need not reach this argument. We are here concerned with whether the back taxes were properly assessed with respect to the interests of Seifert and Rynes. We have already held that Seifert and Rynes were given adequate notice of the back tax proceedings; if the back taxes were otherwise properly assessed and levied, they were valid as to Seifert and Rynes. If this is so, the back taxes constituted an incumbrance which breached DeFurgalski’s covenant of no incumbrances. For the same reason we need not decide whether Inland was entitled to notice of the back tax proceeding.

Inland further contends that it could not be held liable for the back taxes because the Seiferts waived or were estopped by their conduct from seeking to pass the back taxes on to Inland. Inland contends that an estoppel arose in the following manner:

1. The Seiferts concealed the material fact of the back-tax proceedings and lulled Inland into believing that there was no pending proceeding.
2. The Seiferts knew that the back-tax proceeding, in fact, was going on.
3. Inland did not know of the back-tax proceedings, being uninformed by the assessor, the Seiferts or the DeFurgalskis.
4. The Seiferts did not intend to tell Inland of the proceedings, and so meant to keep them in the dark.
5. Inland relied on the Seifert concealment, thus failing to assert the complete defenses to the Assessor’s proceedings that were available.
6. Inland was prejudiced by being found liable for a claim without ever being able to defend itself.

We do not agree that the Seiferts are estopped from raising their payment of the back taxes as a setoff against their liability to Inland on the note. In our opinion there can be no estoppel here because the Seiferts were under no duty to notify Inland, as the assignee of the second mortgage, of any back-tax proceedings. Inland cites no factually similar cases which would support a duty. Moreover, we disagree with the sixth element of Inland’s estoppel theory. Inland has been able to litigate issues relating to the validity of the back taxes in the context of its action to foreclose the second mortgage. Inland will only be held liable on remand for a breach of the covenant against incumbrances if the circuit court finds that those taxes were properly imposed. In short, Inland has failed to set forth a factual basis for estoppel.

Inland also argues that if an estoppel did not arise here, then the Seiferts waived their right to assert the payment of back taxes as a setoff. Inland asserts that it must be presumed that the Seiferts knew of their defenses to the revised assessments and back taxes and that the Seifert’s failure to raise the proper objections to the assessor’s revision of the assessments can only be considered to be intentional. Inland further asserts that the Seiferts’ continued monthly payments on the note negated their claim that payment of the back taxes extinguished their liability on the note. This waiver argument assumes, however, that the Seiferts had completely valid defenses to the reassessment and back taxes. Since it is not clear at this point whether this was true, we cannot say that the Seiferts waived their right to assert the payment of back taxes as a setoff.

Inland’s last argument with respect to the counterclaim by the Seiferts appears to be that since the voluntary-tax-payment doctrine clearly prevented the Seiferts from recovering from the county defendants taxes which they paid voluntarily, their attempt to assert a setoff against Inland should also have been barred. This argument is based on the assumption that the Seiferts voluntarily, without protest, paid invalid back taxes. Since at this point in this litigation we cannot say that the back taxes were invalid, we cannot accept Inland’s argument.

On cross-appeal, the Seiferts contend that the circuit court erred in fixing the amount of the judgment in their favor. We decline to address this issue at this time, because if on remand the circuit court determines that the back taxes were improperly imposed, there was no breach of the covenant against incumbrances. In that instance, of course, the Seiferts will recover nothing on their “set-off and counterclaim.”

Finally, Inland contends that the circuit court erroneously granted summary judgment in favor of the county assessor and county treasurer-collector, thereby erroneously dismissing Inland’s third-party complaint against them. In that action, Inland sought the return of all tax payments received by the county collector as a result of the subject real estate being back-taxed for the years 1970, 1971 and 1972. With respect to these defendants, Inland argues that the revision of the assessments on the property and the imposition of back taxes were improper for the same reasons that it asserted that they were improper in its action against the Sieferts. According to Inland, if it must reimburse the Seiferts, then the county defendants must reimburse it.

We have already held that if the back taxes were imposed improperly, then they do not constitute a breach of the covenant against incumbrances, and the counterclaim of the Seiferts against Inland must fail. Thus, if the back taxes were invalid, Inland has no obligation to pay them, or any part of them, by means of setoff or otherwise.

In any event, we believe that any action by Inland against the county defendants is barred by the voluntary-payment doctrine. As noted in the statement of facts, on April 10, 1980, Sipal Realty, as agent for the Seiferts, paid back taxes, interest, and penalties for the years 1970, 1971 and 1972 in the amount of $123,584.81, without protest. It is well-settled law in Illinois that taxes voluntarily, though erroneously, paid cannot be recovered unless recovery is authorized by statute. (Getto v. City of Chicago (1981), 86 Ill. 2d 39, 48, 426 N.E.2d 844 cert, denied (1982), 456 U.S. 946, 72 L. Ed. 2d 468, 102 S. Ct. 2012; S.A.S. Co. v. Kucharski (1972), 53 Ill. 2d 139, 142, 290 N.E.2d 224; Burley v. Lindheimer (1937), 367 Ill. 425, 429, 11 N.E.2d 926; Jansen Real Estate Corp. v. Cullerton (1977), 49 Ill. App. 3d 231, 236, 364 N.E.2d 905.) Since there is no statute authorizing the recovery of the taxes involved in this case, no relief can be obtained from the county defendants.

Inland argues, however, that the voluntary-payment doctrine applies against the Seiferts because they paid the taxes in this case, but that it cannot apply to Inland because Inland paid no taxes and seeks no refund. According to Inland, it is not suing for a refund, but for damages to it and its interest in real property caused by the county defendants. Inland cites no case which indicates that the voluntary-payment doctrine is inapplicable to this case, and we refuse to dilute this doctrine under the facts and circumstances of this case.

In reaching this conclusion we observe that if the back taxes were imposed improperly on the subject property, the Seiferts’ counterclaim for a setoff must fail. Inland will only be liable to the Seiferts if the circuit court on remand concludes that the back taxes were properly imposed.

For the aforementioned reasons, we affirm the judgment of the circuit court dismissing Inland’s third-party complaint against the county assessor and the county treasurer-collector. We reverse the following:

1. The dismissal of Inland’s complaint for foreclosure.
2. The part of the final order which adjudged that the Seiferts are entitled to set off $128,584.51 against the balance of the purchase price due under the trust deed and note and declared the lien of the trust deed cancelled and void.
3. The judgment in favor of the Seiferts and against Inland for $23,584.51.

Affirmed in part; reversed and remanded in part.

McGILLICUDDY and O’CONNOR, JJ., concur.

       Inland’s brief states that it denied the counterclaim of the bank and the Seiferts and raised eight affirmative defenses. However, the citation to the record for this statement is to Inland’s answer to Rynes’ counterclaim. Since the counterclaims were similar, we will treat Inland’s answer as an answer to the counterclaims of Rynes, the bank, and the Seiferts.

       The General Assembly has abolished the estate of dower. (Ill. Rev. Stat. 1981, ch. 1101/2, par. 2—9.) However, that does not affect the reasoning of Firebaugh that an inchoate right can be an incumbrance.

       In making this argument, Inland does not distinguish between liability for the 1970 and 1971 taxes and liability for the 1972 taxes. A distinction may be possible since DeFurgalski delivered the warranty deed to Seifert and Rynes on December 26, 1972. No party to this appeal emphasizes this possible distinction, and therefore, we treat all the years, i.e., 1970 through 1972, similarly for purposes of this appeal.


author: JUSTICE PERLIN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BEN GOMEZ, Defendant-Appellant.
    First District (2nd Division)
    No. 83—1326
    Opinion filed September 18, 1984.

      James J. Doherty, Public Defender, of Chicago (Alison Edwards, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and Mark L. LeFevour, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE PERLIN

delivered the opinion of the court:

Ben Gomez (defendant), and two codefendants (Jacob Santana and Jesse Alanis) whose cases are not before us, were tried for murder (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(1)) and armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A—2) in a joint bench trial. Defendant was convicted of murder and found not guilty of armed violence. He was sentenced to 25 years’ imprisonment.

The parties stipulated: The victim, 17-year-old Serafín Gonzalez, died of multiple gunshot wounds. Pellets from two different caliber guns, four .32-caliber and two .22-caliber, were found at the scene. An additional .32-caliber pellet and two other .22-caliber pellets were also recovered from the body. In the opinion of firearms examiner Richard Fournier, two weapons were used in the shooting.

At trial, Rogelio Valasquez testified: On June 11, 1982, at approximately 11:40 p.m., he saw two men wearing hoods run through a gangway adjacent to his home. Soon after, he heard eight or nine gunshots, and then heard the men run back through the gangway.

Chicago police detective John Leonard testified: On July 11, 1982, he interviewed defendant Gomez. After being read his Miranda rights, defendant stated that on the night of the shooting he was with codefendants, Alanis and Santana, in Alanis’ car. Gomez was driving. He stopped the car in an alley. Santana and Alanis got out of the car. They were wearing hooded grey sweatshirts and both were armed. Santana and Alanis walked through a vacant lot while Gomez waited in the car. He then heard several shots, and Alanis and Santana ran back to the car. They told Gomez that they had “hit” somebody. Gomez then drove back “to their neighborhood.”

Leonard further testified that he then interviewed codefendant Santana, who told him: Prior to the shooting, the three codefendants were in Alanis’ car. Alanis was driving. Gomez and Santana were each armed and wearing hooded grey sweatshirts. While Alanis waited in the car, Gomez and Santana walked through a vacant lot. Gomez alone shot the victim. After Gomez and Santana returned to the car, Santana threw his gun out the window.

Following Detective Leonard’s testimony, defendant’s attorney moved for a mistrial, alleging the State had violated discovery. Defendant contended that the various documents tendered by the State to defendant had all indicated that Santana’s custodial statement made to Leonard and others had stated that Gomez was only an unarmed passenger in the defendant’s car, and that Gomez had not been involved in the shooting. Gomez’ attorney argued that Leonard’s trial testimony, in which he stated that Santana’s custodial statement was to the effect that Gomez was the actual shooter, was contradictory to all of the discovery provided defendant, and that the State had violated its duty to advise defense counsel that Leonard was going to testify to this completely different statement by Santana. The court denied the motion for a mistrial.

Assistant State’s Attorney Edward Pietrucha testified: On July 11, 1982, he and Detectives Leonard and Herigodt interviewed Santana. Santana told them that on the night of the shooting, the three codefendants were together smoking marijuana. Santana said Alanis wanted to “do a burn” on a member of a rival gang, so the three of them agreed to do so. Alanis went to his home and got a .32-caliber pistol. Santana went to his home and got a .38-caliber pistol. Alanis drove his own car, with Gomez riding in the front seat and Santana in the back. Upon seeing a youth riding a bicycle, Alanis stopped the car. Santana and Alanis, who were wearing grey hooded jackets, exited the car. Alanis alone shot the victim. They returned to the car, and Alanis drove away. Santana threw his gun out of the window.

Detective Michael Herigodt testified to the same custodial statement by Santana as Assistant State’s Attorney Pietrucha.

Assistant State’s Attorney Rima Cernius testified to an interview he conducted with codefendant Alanis on July 12, 1982: Alanis there told him that on the night of the shooting Gomez and Santana approached him and told him they each had weapons. Alanis said he saw a bulge in Santana’s pants pocket. Alanis told Santana that he would not lend Santana his car, but that he would drive them. Alanis heard Santana and Gomez discuss “burning somebody” from a different gang. As they drove past a person working on his bicycle, Alanis saw Gomez and Santana looking at that person. Alanis parked the car. Gomez and Santana then left, and Alanis drove off immediately and headed home. Later, Gomez and Santana met Alanis at his home and told him that they “had unloaded” and that Alanis should “be careful.”

At the conclusion of the State’s case, Gomez moved for a directed verdict, which was denied. The court granted Alanis’ motion for a directed verdict, finding that the evidence against Alanis (primarily his own custodial statement) showed only that he had “abandoned somebody” a few blocks away from the subsequent murder and that such was insufficient to hold Alanis accountable for the murder. Santana’s motion for a directed verdict was denied.

Gomez presented no evidence in his own behalf. Santana testified in his own behalf, presenting an alibi and denying having made any incriminating statements to the police. At the conclusion of the trial, the court found Santana and Gomez guilty of murder. Santana was sentenced to 25 years’ imprisonment. Gomez was also sentenced to 25 years, from which he now appeals.

Gomez first contends that the trial court erred when it refused to consider Santana’s custodial statement when weighing the evidence against Gomez. At the outset of the trial, the court had denied Gomez’ motion for severance, and stated that each of the defendants’ custodial statements would “only be used against the individual making the statement unless it is exculpatory.” At the conclusion of the trial, the court reversed itself and stated that in considering the evidence against each defendant, it would consider only the particular defendant’s own custodial statement and not any of the statements of the codefendants. Defendant contends that Santana’s alleged custodial statement, wherein he said that Gomez was an unarmed passenger who remained in the car during the shooting, should have been considered by the court because it was “exculpatory” to Gomez. Defendant contends that Santana’s statement was probative and relevant to the issues and therefore should have been considered by the court as evidence favorable to Gomez.

In Illinois, to be held accountable for a crime, the evidence must show that the defendant (1) solicited, aided, abetted, agreed or attempted to aid another in the planning or commission of the offense and (2) that defendant’s participation took place before or during the offense and (3) that defendant’s participation was accompanied by the concurrent, specific intent to promote or facilitate commission of the offense. (Ill. Rev. Stat. 1981, ch. 38, par. 5—2; People v. Tillman (1971), 130 Ill. App. 2d 743, 265 N.E.2d 904.) Here, it was the State’s theory that Gomez, pursuant to his admission to being the driver of the getaway car, was accountable for the shooting.

Gomez contends that Santana’s custodial statement, in which he stated that Gomez was only an unarmed passenger in the car, was exculpatory to Gomez. Gomez posits that Santana’s statement was admissible as to Gomez pursuant to Chambers v. Mississippi (1973), 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038.

Arguing that the trial court construed the accountability standard “narrowly” in granting codefendant Alanis’ motion for a directed verdict, Gomez contends that if the court had considered Santana’s statement with regard to Gomez, the court would be compelled to find Gomez not guilty.

The State responds that the court properly refused to consider Santana’s statement in Gomez’ case because: (1) pursuant to Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, a court may not consider the hearsay statement of a codefendant; (2) defendant’s own statement was a confession to the crime of murder under the theory of accountability pursuant to People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121, and therefore Santana’s statement “could not have helped” Gomez, and (3) Santana’s statement does not “explicitly exculpate” Gomez.

In reply, Gomez contends the State’s arguments are incorrect: (1) Bruton does not apply here, as that case holds only that a court should not admit the statement of a codefendant who does not testify and whose hearsay statement “inculpates” his codefendant. Here, Santana testified, and his hearsay statement “exculpates” Gomez; (2) notwithstanding Gomez’ own alleged custodial statement, either Gomez or Santana was lying, and the trial court had to determine which statement was true and so should have considered both statements in determining guilt or innocence; (3) Santana’s custodial statement is in fact exculpatory to Gomez because the statement made' Gomez a “passive non-participant” in the shooting, and mere presence does not constitute accountability.

In our opinion the present situation is inapposite to Bruton v. United States. That decision, based upon the right to confront adverse witnesses, is inapplicable because Santana did, in fact, testify and thus did not abridge any right of Gomez to confrontation. The rationale of Bruton did not preclude consideration of Santana’s custodial statement as to Gomez.

We believe also that Santana’s statement was relevant to the issue of the nature and degree of Gomez’ involvement in the murder and, further, that it met the “indicia of trustworthiness” test set forth in Chambers v. Mississippi. There the United States Supreme Court held that a trial court errs when it excludes hearsay evidence of a third party’s alleged confession to the crime charged to defendant in those situations where it is “obvious” that justice requires a departure from the rules of evidence barring admission of such evidence, and the hearsay evidence passes a four-prong test for trustworthiness. (See People v. Woodruff (1978), 62 Ill. App. 3d 949, 379 N.E.2d 907.) We find that the trial court here should have admitted Santana’s custodial statement in weighing the evidence against Gomez.

We do not find, however, that Gomez was prejudiced by this error. To warrant a new trial, a defendant must show that the outcome of his trial would have been different if the improperly excluded testimony had been admitted. (See People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091.) We cannot say that had the trial court considered Santana’s custodial statement (which, at trial, Santana denied making), the court would have believed such statement and disbelieved defendant’s own admission to being the getaway driver, and thereupon found defendant not guilty. A review of the record demonstrates that the trial court found Gomez guilty on the basis of Gomez’ own statement. It has been held in Illinois that a person who knowingly drives a getaway car is accountable for the crimes committed. See People v. Baynes (1980), 87 Ill. App. 3d 1001, 410 N.E.2d 894; People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121.

Defendant next argues that he is entitled to a new trial because of the State’s alleged discovery violation. As noted previously, defendant contends that the discovery materials provided by the State included summaries of codefendant Santana’s custodial statement which indicated that Santana had said, inter alia, that Gomez was unarmed and remained in the car during the shootings. We have heretofore noted that at trial Detective Leonard testified that Santana, in his custodial statement, charged that Gomez was the person who had fired the shots which killed the victim. Defendant contends that the State violated discovery when it failed to advise defendant that Leonard would testify to a statement which was different than that reflected in the discovery documents.

The State contends it “substantially” complied with discovery. It learned only immediately prior to trial that Leonard was going to testify differently than was indicated in his police reports. The State contends that it had no duty to advise the defendant that one of its witnesses was going to testify in a manner “inconsistent” with that witness’ written report. Even if it technically violated the discovery rules, the State urges that defendant was not prejudiced thereby.

In our opinion, the State’s failure to advise defendant that Detective Leonard was going to testify differently than was indicated in his reports was improper under discovery rules in Illinois. The State’s contentions that Leonard’s substantially different testimony was unimportant or not discoverable are without merit:

“Clearly the spirit, if not the express language, of Supreme Court Rules 412 and 415 require a prosecutor to disclose to defense counsel any errors in documents that have been tendered to the defense as soon as the prosecution has such knowledge.” (People v. Burgin (1979), 74 Ill. App. 3d 58, 72, 392 N.E.2d 251.)

However, we do not find that the State’s misconduct requires a new trial because defendant suffered no prejudice thereby. “When prejudice is not shown by virtue of inaccurate discovery material, a new trial will not be ordered.” (People v. Pugh (1982), 106 Ill. App. 3d 901, 908, 436 N.E.2d 737.) The record makes clear both that Officer Leonard’s recollection was faulty and that the judge and the parties were aware of his error. In fact, Santana’s custodial statement was that Gomez was an unarmed passenger in the car. The State presented the testimony of Assistant State’s Attorney Pietrucha and Detective Herigodt, both of whom were present at Santana’s interrogation, who agreed that Santana had not named Gomez as the shooter.

It is evident that the court was aware of the contradiction between Leonard’s testimony and the written reports. It is also clear that the trial court did not understand Santana’s statement to have named Gomez as the shooter. The State’s theory of the case, and the stated basis for the court’s guilty verdict as to Gomez, was that Gomez admitted that he knowingly drove his codefendants to and from the murder scene. More significantly, the trial court stated that it would not consider Santana’s statement with regard to Gomez, and thus Gomez was not prejudiced by Leonard’s testimony respecting Santana’s custodial statement.

Defendant’s third argument is that “the ends of justice were not served” when the trial court directed a verdict in favor of Alanis but convicted defendant based solely on confessions which, defendant asserts, were very similar. Although Gomez does not base his argument on any specific statutory or constitutional theory, he articulates a “discomfort” with the seemingly inconsistent verdicts. Defendant asserts:

“Gomez, who was convicted, was no more culpable than Alanis, who was not. *** The similarities in their two statements are much more striking than the differences. Gomez waited in the car for the others to return, whereas Alanis claimed he drove off immediately. This fact, however, is more than offset by the fact that Alanis was the owner of the car, by the fact that he told the others not to shoot out of the car, by the fact that he apparently saw * * * the target, before letting the others out. If Alanis was not guilty, neither was Gomez. If one considers the exculpatory portions of Santana’s statement in reviewing the evidence as to Gomez *** Gomez was less culpable than Alanis. Gomez was merely an unarmed passenger in Alanis’ car and remained there the entire time.”

In our opinion, the trial court’s action in granting Alanis a directed verdict does not undermine the guilty verdict as to Gomez since “the failure to convict a codefendant does not raise a reasonable doubt as to the guilt of the other defendant unless the evidence presented against both parties is identical.” (People v. Hiller (1980), 92 Ill. App. 3d 322, 325, 415 N.E.2d 1202.) Here the evidence, primarily each defendant’s confession, was not identical. Gomez’ argument must therefore be rejected. The evidence here, if believed, is sufficient to prove Gomez guilty beyond a reasonable doubt. While we understand defendant’s chagrin that the trial court, upon granting Alanis’ motion for a directed verdict, denied defendant’s same motion before Gomez’ attorney even had an opportunity to present argument in support of it, such conduct does not alter our determination that the court’s ruling is supported by the evidence.

In a final argument, defendant contends generally that Gomez received “unequal” treatment by the trial court because Gomez was indigent and thus could not raise bail nor hire a private attorney, and the result is “discrimination based on wealth.” We must reject defendant’s argument; the record demonstrates no such discrimination against defendant. The verdict was supported by the evidence, and defendant has not alleged, nor would the record support, a claim of ineffective assistance of counsel.

Both parties agree that the mittimus incorrectly reflects that defendant was convicted of armed violence when, in fact, the court found defendant not guilty of that offense. We direct the trial court to amend the mittimus to provide that defendant was found not guilty of the charge of armed violence.

For the reasons herein stated, defendant’s conviction for murder is affirmed.

Affirmed.

HARTMAN, RJ., and DOWNING, J., concur.


author: PRESIDING JUSTICE MEJDA

text:
    JUPITER ORRINGTON CORPORATION, Plaintiff-Appellee, v. THOMAS R. ZWEIFEL, Representative of the Estate of Earl T. Zweifel, et al., Defendants-Appellants (The First National Bank of Chicago, Defendant).
    First District (5th Division)
    No. 83—2562
    Opinion filed June 22, 1984.

      Herbert B. Olfson, Robert C. Keck, Jr., and Sidney I. Schenkier, all of Chicago (Jenner & Block, of counsel), for appellants.
    Ronald Barliant, Barry A. Miller, and Lawrence M. Knowles, all of Miller, Shakman, Nathan & Hamilton, of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

Defendants, Thomas R. Zweifel, as administrator of the estate of Earl T. Zweifel, and Peoria Motors, Inc., appeal from an order of the circuit court of Cook County granting a preliminary injunction which enjoined them from presenting a $2,685,000 letter of credit to the First National Bank of Chicago (the bank) and enjoined the bank from honoring any attempt to draw on the letter of credit. The sole issue presented for review is whether the circuit court abused its discretion in issuing the preliminary injunction. We reverse and remand.

Plaintiff delivered to Earl T. Zweifel and Peoria Motors, Inc., a note in the amount of $2,685,000 in connection with the purchase of the Orrington Hotel in Evanston, Illinois. The note provided that plaintiffs obligation “shall at all times be secured by an irrevocable standby letter of credit in the amount of the principal balance hereon from an institution satisfactory to [defendants] in a form satisfactory to [defendants].” The note further provided that “[s]hould said letter of credit at any time have a termination date of earlier than November 15, 1992, it shall be a default hereunder if [plaintiff] shall not, on or prior to the fortieth day preceding the termination date of said letter of credit, provide to [defendants] a new letter of credit meeting the requirements hereof.” In brief, the evidence introduced by the parties indicated that a renewal letter of credit was not provided within 40 days of the expiration date of the original letter of credit and that defendants indicated their intent to present the letter of credit to the bank for payments. Plaintiff brought this action seeking to enjoin defendants from presenting the letter of credit to the bank and to enjoin the bank from honoring it if presented.

At the hearing on the motion for preliminary injunction, various witnesses testified concerning the tender of an amended letter of credit to Zweifel and whether the amendment was accepted. The parties also introduced evidence concerning the extension of a 10-day cure period, and discussions between bank personnel and representatives of defendants.

The trial court heard arguments concerning various contract defenses, including waiver and estoppel, and entered an order granting a preliminary injunction finding that: plaintiff had a protectable right; plaintiff, would suffer specified irreparable injuries; plaintiff had no adequate remedy at law; and the equities favored plaintiff. This appeal followed.

Opinion

Defendants contend that the circuit court erred in entering the preliminary injunction in the absence of evidence indicating fraud in the transaction or a likelihood that presentment would fail to conform to the terms of the letter of credit. Plaintiff addresses these arguments on their merits but also raises the threshold issue of whether general contract law or the rules applicable to letter of credit transactions should govern the disposition of this case.

The instant case is distinguishable from the typical posture of letter of credit transactions which have reached the reviewing courts of this State in that the beneficiary of the letter of credit, rather than the issuer of the credit, is the party who has been enjoined. (Compare, e.g., Pastor v. National Republic Bank (1979), 76 Ill. 2d 139, 390 N.E.2d 894; First Arlington National Bank v. Stathis (1983), 115 Ill. App. 3d 403, 450 N.E.2d 833; Professional Modular Surface, Inc. v. Uniroyal, Inc. (1982), 108 Ill. App. 3d 1046, 440 N.E.2d 177; Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 430 N.E.2d 1; and First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288, with Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 357 N.E.2d 1307.) Plaintiff argues, based on that fact, that traditional contract law should govern this case. More spetifically, plaintiff argues that because defendants have not yet presented the credit and demanded payment, the instant dispute implicates only the underlying contract and not the independent contract (represented by the letter of credit) which secures performance of the primary contract.

Analysis of this contention would be aided at this point by a brief review of the basic structure of a typical letter of credit transaction.

“Three separate agreements are involved in the issuance of a letter of credit by the bank for the benefit of a beneficiary. [Citation.] The first is the contract between the beneficiary *** and the customer ***, which is the agreement underlying the letter of credit. Under the second contract, the customer procures a letter of credit, often from a bank, in return for consideration or collateral. The third agreement consists of the bank’s agreement to pay the beneficiary the amount of the letter of credit, if the beneficiary complies with the terms of the credit.” (Baker v. National Boulevard Bank (N.D. Ill. 1975), 399 F. Supp. 1021, 1024.)

The type of letter of credit which is at issue in the case sub judice is a standby letter of credit. The typical standby letter of credit obligates the issuer to pay the beneficiary upon presentation of documents specified in the credit which indicate that a default has occurred. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 807, 413 N.E.2d 1288.) The general rule is that if the documents presented conform to the requirements of the credit, the issuer is not permitted to refer to the underlying contract between its customer and the beneficiary of the credit to determine whether to honor the demand for payment. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 808, 413 N.E.2d 1288.) This rule is known as the independence principle and requires the issuer of the credit to pay the beneficiary even where the beneficiary nonfraudulently breached the underlying contract. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288.) With these principles in mind, we now turn to an analysis of plaintiff’s contention.

Plaintiff argues that because the credit has not yet been presented to the bank (the issuer), the bank has no duty to pay, and the dispute concerns only defendants’ right to make a demand. Thus, argues plaintiff, the instant suit turns on the construction of the underlying contract and principles of contract law therefore govern the case. Defendants respond that plaintiff has not sought a declaration of rights under the contract or an injunction against prospective breach thereof, but only injunctions concerning the letter of credit itself and that this argument has in effect been waived.

We do not believe that plaintiff waived this contention in the trial court; on the contrary, plaintiff’s entire trial presentation was predicated on this theory. Moreover, an appellee may assert any argument supporting affirmance if the necessary factual basis for the determination of the point appears of record. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.) Testimony sufficient to establish a factual basis for decision of this issue was introduced in the trial court, and we accordingly consider this question on its merits.

Defendants argue that, as a matter of policy, letter of credit principles must govern this case. We agree. We observe initially that to permit an injunction to issue against presentment of a letter of credit when such an injunction would not be proper against its payment by the issuer (see generally Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 925, 430 N.E.2d 1), would be tantamount to allowing a party to accomplish indirectly that which he is forbidden to do directly. Under section 5—114(2)(b) of the Uniform Commercial Code (Ill. Rev. Stat. 1983, ch. 26, par. 5—114(2)(b)), as interpreted by the courts of this State, an injunction against honor is limited to situations where the wrongdoing of the beneficiary has so vitiated the entire transaction that the independence principle no longer serves its purposes. Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 430 N.E.2d 1.

This rule is based on the rationale that a letter of credit once issued should remain viable in the commercial world. (See Stringer Construction Co. v. American Insurance Co. (1981), 102 Ill. App. 3d 919, 925, 430 N.E.2d 1, citing the specially, concurring opinion in Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 237, 357 N.E.2d 1307 (Jiganti, J., specially concurring).) As a New York court of appeals has stated:

“It would be a calamity to the business world engaged in transactions of the kind mentioned in this complaint, if for every breach of a contract between buyer and seller a party may come into a court of equity and enjoin payment on drafts drawn upon a letter of credit issued by a bank.” (Frey & Son, Inc. v. E. R. Sherburne Co. (1920), 193 App. Div. 849, 854, 184 N.Y.S. 661, 664.)

We conclude therefore that an injunction against presentment of a letter of credit must be based on fraud by the beneficiary of the credit which so vitiates the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. See First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 810-11, 413 N.E.2d 1288.

Plaintiff contends that any attempt by defendants to demand payment of the credit would be “wrongful and fraudulent” in that any certification of default would be false. Plaintiff adds in specific support of this argument that any technical default which may have occurred was cured and that defendants waived any right they may have had to claim a default under the note. These arguments, however, pertain to performance of the underlying contract; the fraud required to support an injunction must be fraud relating to the formation of the underlying contract. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 810-11, 413 N.E.2d 1288.) Fraudulently calling a letter of credit is insufficient to support injunctive relief. (First Arlington National Bank v. Stathis (1980), 90 Ill. App. 3d 802, 413 N.E.2d 1288.) Accordingly, the injunction was improperly issued.

Plaintiff also argues that if defendants are allowed to declare a default and draw on the letter of credit, a forfeiture will occur. Plaintiff, however, as the procurer of the letter of credit, must bear the risk of loss created by its issuance. (See Ill. Ann. Stat., ch. 26, par. 5—114, Uniform Commercial Code Comment, at 601 (Smith-Hurd 1963); also see Edgewater Construction Co. v. Percy Wilson Mortgage & Finance Corp. (1976), 44 Ill. App. 3d 220, 237, 357 N.E.2d 1307 (Jiganti, J., specially concurring).) Any dispute concerning allegations of defendants’ breach of contract or the bank’s breach of duty must be resolved by other litigation.

For the foregoing reasons, the order of the circuit court is reversed and the cause .is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

LORENZ and SULLIVAN, JJ., concur.

       The bank as issuer of the credit in this case was also enjoined; plaintiff argues that this injunction was merely ancillary to the primary injunction against defendants and was necessary to protect the jurisdiction of the court in the event that defendants presented the credit in violation of the injunction. We will accept this contention solely for purposes of argument.

       Justice Wilson participated at oral argument. Following his demise, Justice Sullivan has substituted, listened to the tape of the oral argument, and reviewed the record and briefs.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH BAKER, Defendant-Appellant.
    First District (3rd Division)
    No. 82—582
    Opinion filed August 1, 1984.

      Steven Clark, of State Appellate Defender’s Office, and Mark W. Solock, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Maria Elena Gonzalez, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

In a jury trial the defendant, Kenneth Baker, was found guilty of murder and home invasion and was sentenced to terms of 35 years and 25 years respectively, the sentences to run consecutively. On appeal, Baker claims that the trial court erred in denying his petition for discharge based on statutory right to speedy trial filed January 5, 1982. He was arrested February 14, 1981, and his petition alleged that more than 120 days had passed since he indicated that he was ready for trial and that he was entitled to discharge for want of prosecution as provided in section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 103—5). That statute mandates that every person in custody “be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, ***.” The controlling question in determining whether defendant was entitled to discharge under the speedy trial statute is whether the delay of his trial was occasioned by the defendant; if so, he is not entitled to a discharge. (People v. Leonard (1974), 18 Ill. App. 3d 527, 310 N.E.2d 15.) Between defendant's arrest and the date of his motion for discharge there were 301 calendar days. During this period there were numerous continuances, some on motion of defendant, some on motion of the State; others were by agreement. The continuances by agreement and upon defendant’s motion were, of course, delays chargeable to defendant. When the delay is caused by the defendant, the 120-day period starts anew from the date to which the defendant has caused a delay. People v. Lee (1969), 44 Ill. 2d 161, 254 N.E.2d 469.

Application of these principles to this case makes the court proceedings of August 11, 1981, critically important. Defendant contends that “although the Memorandum of Orders indicates that this date was B/A [by agreement] the transcript of the proceedings on that date clearly indicate [sic] that this continuance cannot be attributable to the defendant.” The State does not contest defendant’s entitlement to a discharge if this statement were true. However, the State asserts that it is not true, and we agree.

The transcript of proceedings for August 11, 1981, shows the following:

“THE COURT: I believe that in this matter most of the discovery has been completed.
[DEFENSE COUNSEL]: We are ready for trial. To be set for trial.
[ASSISTANT STATE’S ATTORNEY]: The answer will be the defendant will—
THE COURT: Affirmative defense for the purpose of the State?
[DEFENSE COUNSEL]: That is correct. Self-defense matter.
THE COURT: This matter will be a bench or jury?
[DEFENSE COUNSEL]: Jury, Judge.
THE COURT: Jury requested. I will give you a longer date because I am tied up. That is a case involving three policemen which can be a month trial. Right after that I got another murder trial. I can give you a tentative date but you will have to check with the State’s Attorney to find out what our position is at that particular time. I cannot justifiably say this is an absolute date. Accordingly, I will suggest September 21st, if that is satisfactory, with subpoenas, for purpose of trial.
[DEFENSE COUNSEL]: Fine.
THE COURT: By agreement. I will ask you prior that you check with the State’s Attorney so we can know where we are at.”

It will be noted that Judge Arthur J. Cieslik, who was presiding at the proceedings on August 11, 1981, concluded that the continuance was by agreement and stated so on the record. To this there was no objection. The hearing on defendant’s petition for discharge was also before Judge Cieslik who, in denying the petition, said that after examining the transcript of proceedings, the sheets he prepared at the time the case was heard and signed at the close of the day, as well as the common law record, that “by agreement” was a proper statement of the record and that accordingly, the motion for discharge was not well taken and was denied.

The order of continuance on August 11, 1981, in the common law record is unambiguous and clearly by agreement. After a review of the transcript of proceedings upon which defendant relies, the trial court found that the common law record spoke the truth. The statement of defense counsel in the transcript of proceedings can be interpreted to mean that defendant was ready for trial or to mean that he was ready to have his case set for trial. There was no objection when the court indicated that the case would be given a future date for trial and when the date was set, defense counsel said, “Fine.”

Defendant relies on People v. Beyah (1977), 67 Ill. 2d 423, 367 N.E.2d 1334, where our supreme court held that a continuance was not a delay occasioned by the defendant. In that case, the court held that no waiver of the right to a speedy trial occurred merely because of defense counsel’s failure to object to the court’s entry charging a continuance to him. However, the record in Beyah showed that the trial judge and counsel for the parties were actually engaged in the trial of another case. Similar considerations buttressed the appellate court’s ruling that a continuance was not occasioned by the defense in People v. Parker (1978), 59 Ill. App. 3d 302, 375 N.E.2d 465. In Parker, the common law record read “by agreement” but the undisputed evidence was that defense counsel was not in court on the date the continuance was ordered. Further, the trial judge knew that a jury trial was in progress. These cases are thus distinguishable from the case at bar. The determination of accountability for delay rests in the judgment of the trial court and its decision should be sustained on appeal unless it is clearly shown that the court’s discretion was abused. (People v. Parker (1978), 59 Ill. App. 3d 302, 304.) We cannot say on this record that the trial judge misinterpreted what was happening before him, mistakenly recorded the continuance as by agreement, and erred in denying the petition for discharge. Selvaggio v. Kickert School Bus Line, Inc. (1964), 46 Ill. App. 2d 398, 197 N.E.2d 128.

Defendant was charged in a five-count information. The first count charged that defendant murdered Ira E. Clark in violation of section 9—1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(1)). The second count charged that defendant murdered Ira E. Clark in violation of section 9—1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(2)). The third count charged that defendant murdered Ira E. Clark while committing a forcible felony (home invasion) in violation of section 9—1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3)). The fourth count charged defendant with committing the offense of home invasion in violation of section 12—11(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2)). The fifth count charged defendant with committing the offense of armed violence. Prior to trial the State nol-prossed the armed violence count.

Defendant contends that home invasion is a lesser included offense of felony murder, and that therefore his conviction of the lesser offense must be vacated, citing People v. Devine (1981), 98 Ill. App. 3d 914, 424 N.E.2d 823, cert, denied (1982), 458 U.S. 1109, 73 L. Ed. 2d 1371, 102 S. Ct. 3490. The weakness of defendant’s argument is that with three possible bases for the general guilty of murder verdict, it is impossible to state that the verdict was based on the felony murder count alone. If a jury returns a general verdict of guilty when the defendant is charged with several counts of an offense, defendant will be deemed guilty on each count. (People v. Lloyd (1981), 93 Ill. App. 3d 1018, 418 N.E.2d 131.) Indeed, defendant’s reply brief “concedes that he was convicted of murder in each of three manners possible.” The jury’s guilty verdict indicates an intention to convict defendant of murder under sections 9—1(a)(1) and 9—1(a)(2) (Ill. Rev. Stat. 1981, ch. 38, pars. 9—1(a)(1), 9—1(a)(2)), as well as under the felony murder section 9—1(a)(3) (Ill. Rev. Stat. 1981, ch. 38, par. 9—1(a)(3)). No reason is advanced why a murder verdict on the basis of sections 9—1(a)(1) and 9—1(a)(2) should not stand with the conviction for home invasion.

Defendant claims numerous instances of prosecutorial misconduct. However, under the harmless error doctrine, they do not singly or collectively constitute reversible error unless the error or errors resulted in substantial prejudice to the defendant and can be said to have contributed to the guilty verdict. People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Hilliard (1982), 109 Ill. App. 3d 797, 441 N.E.2d 135.

Defendant argues that the evidence here was sufficiently close to put the case beyond the reach of the harmless error doctrine. The State’s case was simple and straightforward. Baker went on a rampaging jealous rage, culminating in his kicking open the door of Gwendolyn Thompson’s apartment and entering with a knife in his hand. Present in the apartment were Gwendolyn, her sister, Charlotte Jackson, Ira Clark, the deceased, and Stephanie Watson, defendant’s common law wife. Defendant overpowered Clark, who was unarmed, and stabbed him to death. This was the substance of the testimony of both Gwendolyn and Charlotte. Defendant and Stephanie testified that defendant was peacefully admitted into the apartment, that Ira came at him armed with a tire iron or crowbar and that defendant stabbed him in self defense. The State’s case, however, was supported by irrefutable physical evidence of defendant’s violence: the damaged apartment door, which had to be repaired; photographs of the depredation of Stephanie’s apartment, which she shared with defendant; and of her coat, which defendant had cut to pieces. Stephanie, in her testimony for her common law husband, was thoroughly impeached. For example she denied that defendant had struck her during the events leading to the killing, then admitted that she did have a black eye but claimed it was the result of defendant’s punch three weeks earlier. No motive for testifying other than to the truth was shown for Gwendolyn and Charlotte. The testimony of these two credible eyewitnesses, corroborated by the physical evidence, compels the conclusion that defendant is guilty and that the judgment is right. It will not be reversed for errors which do not affect the substantial merit of the case. (People v. Dixon (1948), 400 Ill. 449, 81 N.E.2d 257.) We have examined all of the prosecutorial conduct claimed by defendant to have denied him a fair trial. The jury by its verdict rejected defendant’s claim of self defense. We cannot say that the misconduct of the assistant State’s Attorney contributed to this verdict. A point-by-point discussion of each of the numerous prosecutorial misconduct errors would be cumulative and is unnecessary, but we will comment on some because they represent pointless misconduct which occurs too frequently.

Defendant contends that he was denied a fair trial when the prosecutor on cross-examination asked impeaching questions of defendant and defense witness Stephanie Watson, then failed to complete the impeachment with proof of the act denied by the witness. This was clearly error, but we hold that the unsupported innuendos arising from the questions do not require a reversal when on the basis of properly admitted evidence the guilt of the defendant is manifest.

Defendant points out several instances of impropriety in the State’s closing argument, including a comment about events that allegedly occurred during the trial but not on the record, which was obviously improper. The test in determining whether remarks of the prosecutor during closing argument constitute reversible error is whether the comments were such that if not made the jury might have reached a different result. (People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) As indicated above, we find the guilt of the defendant manifest.

Defendant contends that the trial court erred when, on the third day of trial, the court denied his motion to amend his list of witnesses submitted pursuant to Supreme Court Rule 413(d) (87 Ill. 2d R. 413(d)) to include the name of his mother, Laverne Baker. At the commencement of the trial the court had ordered the exclusion of witnesses, and Mrs. Baker had been in the courtroom throughout the trial. The trial judge denied defendant leave to add his mother to the list of witnesses. In defendant’s offer of proof it appears that the mother’s testimony was expected to rebut the presumption of guilt arising from defendant’s flight from the city, and explain that defendant fled because he was afraid the police would kill him. There was no showing why the mother was not put on the list originally. Whether to allow one who has been in the courtroom in violation of the trial court’s order to testify is within the sound discretion of the trial court and the court’s ruling will not be disturbed unless the party offering the witness was deprived of material testimony without his fault. People v. Bridgeforth (1972), 51 Ill. 2d 52, 63, 281 N.E.2d 617, appeal dismissed (1972), 409 U.S. 811, 34 L. Ed. 2d 66, 93 S. Ct. 100.

During the cross-examination of Jonathan Regenberg, a rebuttal witness, defense counsel moved for the production of Regenberg’s logbook. The prosecutor said the information in the logbook had already been produced. A recess was declared to determine if the logbook contained relevant information not previously produced by the State. At the end of the recess, the trial judge determined that it did not, and so informed the jury:

“Ladies and Gentlemen, for purposes of this record and for the record, let the record show that the request heretofore made by counsel was unreasonable and dilatory in nature; that there was no basis at law or in fact for the delay that was required of this case.”

Defendant claims that this was a rebuke of counsel which should not have been delivered in front of the jury. We note that the dispute arose before the jury and the jury was entitled to know its resolution. We fail to see prejudice to the defendant.

Lastly, defendant claims that the trial court erred in excusing a prospective juror. Illinois statutory law provides that “It shall be sufficient cause of challenge of a petit juror *** that he is a party to a suit pending for trial in that court.” (Ill. Rev. Stat. 1981, ch. 78, par. 14.) The juror had a case pending in the building court of the circuit court of Cook County. He was removed by the trial judge, who said:

“I believe the statute provides if anybody has a case in Cook County they are excused as prospective jurors. And accordance with that statute I excused him, okay.”

The court’s interpretation of the word “court” is supported by statutory definitions of the word “court.” (Ill. Rev. Stat. 1981, ch. 40, par. 1202; Ill. Rev. Stat. 1981, ch. 37, par. 701—8; Ill. Rev. Stat. 1981, ch. 116, par. 43.103.) We agree with it.

For the foregoing reasons the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.