author: Mr. PRESIDING JUSTICE STOUDER

text:
    James E. O’Toole, Admr. of the Estate of William H. Russell, Plaintiff-Appellant, v. Central Laborers’ Pension & Welfare Funds et al., Defendants-Appellees.
    (No. 72-181;
    Third District
    July 17, 1973.

      Pratt & Hogan, of Peoria, (Michael W. Hogan, of counsel,) for appellant.
    Thomas J. Penn, Jr., of Peoria, for appellee.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Petitioner-Appellant, James O’Toole, administrator of the Estate of William H. Russell, commenced this action in the Circuit Court of Peoria County as part of probate proceedings. A petition was filed to compel payment of life insurance proceeds and death benefits to the estate held by defendant, Central Laborers’ Welfare Fund and Central Laborers’ Pension Fund. Following an objection to the petition by defendant, Patricia Russell, the designated beneficiary of the applicable policies, both parties submitted memoranda of law to the court. The circuit court denied the petition and directed payment of the proceeds to defendant, Patricia Russell. This is an appeal by petitioner from that order.

Proceeds from two separate funds are involved, those payable through certificates of insurance issued in conjunction with the Central Laborers’ Welfare Fund and those death benefits payable through the Central Laborers’ Pension Fund. While William Russell, the plaintiff’s decedent, was a participating member of the Central Laborers’ Welfare and Pension Trust, he designated defendant, Patricia Russell, his wife, as beneficiary of the policies thereunder. Subsequent to such designation, Patricia Russell was granted a decree of divorce from William Russell. A property settlement agreement was incorporated in the decree. The agreement disposed of a few specific items of property including an interest in real estate, an automobile, household goods and furniture, with no mention of insurance policies or proceeds. Thereafter a general clause stated, “each party is further barred as to any and all claims or interests whatsoever in and to the property of the other now owned and hereafter acquired”. Subsequent to the divorce no change was made in the designation of Patricia Russell as beneficiary of the insurance policies and death benefits payable at the death of William Russell. Two months after the divorce decree was entered, William Russell died intestate, leaving his mother, Elizabeth O’Toole, as his only heir at law. She was appointed administratrix of the estate of her son; however, following her death thereafter, James O’Toole, step-father of the decedent, was appointed and duly qualified as administrator of William Russell’s estate.

Petitioner asserts that due to the divorce decree and property settlement, Patricia Russell is no longer entitled to the insurance proceeds despite the fact no change in the beneficiary was made or attempted by the insured. According to petitioner’s argument, the “insurance proceeds payable under contractual agreement with deceased-insured constitutes ‘Property’ within the meaning of interests which may be the subject-matter of a divorce decree and property settlement.” We do not find this argument persuasive. In Equitable Life Assurance Society v. Stilley, 271 Ill.App. 283, it is stated that when the insured reserves a right to change a beneficiary, the beneficiary has a mere expectancy during the insured’s lifetime. This expectancy would not be considered property and would not be included in a contract between the parties for division of property rights unless specifically included or so intended by the language of the agreement. In the instant case, the parties agree the language of the property agreement is general and there is no specific provision regarding insurance.

Illinois follows the majority rule that a decree of divorce in no way affects the rights of the divorced wife as a beneficiary in a husband’s life insurance policy. (See, 22 I.L.P. Insurance, sec. 93 and 44 Am.Jur.2d Insurance, sec. 1740.) Only if a property settlement agreement should specifically include a termination of the beneficiary’s interest, will the right to the proceeds of a policy on the life of the husband be affected, unless the policy itself or a statute provides otherwise. (Couch on Insurance 2d ed., sec. 27:111.) We find no provision regarding insurance in the property settlement agreement nor is there a provision in the policy or a statute which terminates a spouse’s interest as beneficiary upon divorce. Nor is there any indication of an intention of the insured to make a change. Surely, if the insured had wished to substitute another person or his estate as beneficiary following the divorce, he would have at least attempted to effect a change with the insurer or included a provision in the property settlement agreement indicating such intention.

Petitioner suggests the insurance policies under the Welfare Fund should not be treated as an ordinary life insurance policy because ownership of the insurance proceeds was vested in the Trustees. In our opinion, the policies are merely group life insurance policies. The Trustees only had power and control over the proceeds prior to the insured’s death. Beneficiary rights are separate and vest at the death of the insured. We are therefore not persuaded by the petitioners argument and do not find any incident fundamentally different from an ordinary life insurance policy.

In reference to benefits to which the defendant as beneficiary is entitled under the Pension Fund, it appears that death of the insured and application for funds by the beneficiary are the requirements for vesting of the right to receive such benefits. Again we find no provision in the Pension Fund distinguishing it from ordinary life insurance.

For the reasons stated above, the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

DIXON and SCOTT, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ALLOY

license: Public Domain

text:
    The City of Joliet, Plaintiff-Appellant, v. James L. Gregorec, Defendant-Appellee.
    (No. 72-208;
    Third District
    July 17, 1973.

      James M. P. D’Amico and Thomas M. Monahan, both of Joliet, for appellant.
    McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet, for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The City of Joliet appeals from an order entered in the Circuit Court of Will County in which the court found, at the close of evidence presented by the city, that defendant James L. Gregorec was not guilty of the commission of the crime of theft in violation of section 21 — 3(a)(1) of the Ordinances of the City of Joliet. The ordinance referred to is substantially the same as section 16 — 1, ch. 38 of Illinois Revised Statutes.

While no court reporter recorded the testimony presented at the trial, the record before us has been supplied by defendant’s counsel from his recollection pursuant to Illinois Supreme Court Rule 323(c). From such record it appears that defendant was observed by two witnesses for the city. One female security officer saw the defendant first carrying a woman’s brown shirt in his hand, and then, when observed later, stated that the brown shirt was not being earned visibly. When the defendant was stopped by another security representative who said that he had reason to believe that the defendant had on his person some property which belonged to the store, defendant removed from his outer coat a womans red shirt from one pocket and a woman’s blue shirt from another pocket. The security officer later noticed a bulge in the groin area of defendant’s trousers from which defendant then removed the woman’s brown body shirt. All three shirts were the property of the store. Defendant had reached the cashier at a checkout counter but then turned and walked back to the main portion of the store. It was at that time that he was stopped and interrogated by the security personnel. The value of the shirts was $11.91.

The store was a Topps Discount Department Store, a self-service discount department store. The checkout counters were located near the exit and were separated from the area of the store in which the merchandise was generally found. The shirts were displayed within the merchandise area. The checkout counters were the only places in the store at which payment could be made for merchandise. Defendant was specifically charged with knowingly exerting “unauthorized control over property # # three woman’s body shirts * * * with intent to deprive said Topps Discount Department Store permanently of the use or benefit of said property in violation of ordinance section 21 — 3(a)l.” Joliet City Ordinance § 21 — 3(a)l.

Two security representatives of the. Discount Department Store testified that they had respectively observed defendant when he first had the brown shirt in view and then when none of the shirts were in view., at the time defendant had moved first to the checkout counter, and then returned without going through the checkout counter. When the store security man asked defendant whether he had on his person some property which belonged to the store, defendant removed from his coat a woman’s red shirt and a woman’s blue shirt stating that he wished to return these shirts. The security man thereafter asked him, “What do you have in your pants?” Defendant replied, “Nothing.” After he had been requested to go to the security office and had gone there, the security officer again asked defendant what he had in his pants and defendant reached into his pants and produced a woman’s brown body shirt.

Upon trial of the cause, when the City had rested, the defendant moved for a finding' of not guilty on the ground that the city’s evidence was insufficient as a matter of law to sustain a conviction of theft. The court granted defendant’s motion and explained the decision of the court by stating, “the city’s evidence as presented and taken at its best may indicate that defendant may have had an intention to steal or deprive its owner of the use and benefit of its property, but until such time as this defendant passed the area where he could have made a purchase and paid for the merchandise or returned it, there is no theft.” It is, therefore, clear that the court had the firm determination that no theft of the store’s merchandise could have been committed irrespective of an intent presumed or shown, until the accused transported the items of the suspected theft beyond the cashier’s coúnter where the customer would have been required to pay for the purchased items.

In People v. Baker, 365 Ill. 328, 6 N.E.2d 665 (1937), the accused had rémoved some women’s silk suits from the third floor of the department store and took them into a restroom on the second floor. Later, she deposited the merchandise on a table in the restroom. Employees of the store saw her descend the staiiway to the second floor. She was carrying her coat on her arm and tucking her coat in on the bottom. An employee saw her leave the restroom with her coat on and her hands across a protrusion at her abdomen. The employee followed the defendant into the restroom, sat next to a table, left for a moment, and returned to find the garments on the table with defendant standing next to it. Other employees saw the items fall from beneath defendant’s coat to the table as defendant was standing in the restroom. Another witness saw defendant take items from the store table and place them beneath her coat. Defendant testified that she never had secreted the articles beneath her coat, and that she had no intention of stealing them. In the Baker case, the defendant contended that there could be no larceny since the clothes were not taken from the store premises and, also, that the evidence was insufficient to establish the intent to steal. The jury found the defendant guilty and the Illinois Supreme Court affirmed such conviction.

While we note a distinction in the instant case from the Baker case, in view of the fact that in the Baker case a self-service store was not involved and payment was required to be made at various locations throughout the store, the facts and issues, however, are parallel. As stated in the Baker decision:

“An essential element of larceny is a felonious taking by which the owner is deprived of possession and the thief acquires possession for an appreciable period of time, though such period may be but for a moment. It has been held that where the thief, having taken possession of the property and on being discovered abandons or returns it, he nevertheless has committed larceny. One who takes the goods of another and places them in a place convenient for removal is guilty of felonious taking of property. So where one, with intent to steal, takes property from the place where it is regularly kept the crime is complete though he is detected and stopped before the goods are actually carried from the owner’s premises. Any change of location whereby the control of the article is, with intent to steal, transferred from the true owner to the thief is sufficient evidence of taking away.” (365 Ill. 328, 332.)

See also: People v. Lardner, 300 Ill. 264, 133 N.E. 375 (1929), where the court found that larceny could be involved if the accused had taken possession of the owner’s merchandise even if the merchandise had never been removed entirely from the owner’s premises.

As stated in 50 Am.Jur.2d Larceny § 143; Larceny § 50, some shoplifting statutes penalize the concealment of unpurchased goods while still within the store premises. It is also pointed out that identical circumstances may support a criminal charge under either the shoplifting statutes or the larceny statutes. Unauthorized control, if involved through concealment of a garment, under circumstances justifying a conclusion that such concealment is for the purpose of stealing the garment, can be a basis for prosecution even if the accused has not passed the checkout counter. There is no implied consent on the part of the owner to permit such type of concealment even though there is consent to permit the customer to carry the articles from the place where the articles may be displayed to the checkout counter for the purpose of paying for the articles. The only true issue which confronted the court in the instant case, in view of the evidence presented, was whether the evidence of concealment of the articles could sustain a factual finding that defendant possessed the requisite intent permanently to take the articles without paying for them and with intent to deprive the store owner of its shirts. In People v. Baker, 365 Ill. 328, 6 N.E.2d 665, the court stated (at 365 Ill. 332-333):

“Intent may seldom be proved by direct evidence for the reason that one may not know what is in the mind of another, but intent may be deduced from acts committed and circumstances in evidence.”

In the cause before us, the concealment of the merchandise by defendant could be determined by a finder of fact to be inconsistent with the motive of purchasing and paying for such items. It is apparent, therefore, that the trial court erred in stating that even though defendant may have had the intention of stealing or depriving the owner of the use or benefit of his property, until such time as defendant passed the area where he could have made the purchase or return it, there is no theft. The taking of the articles and concealment if determined to be done with the intention of stealing or depriving the owner of the use or benefit of the property, however brief, could constitute a theft. The circumstance that the defendant, at that time, had not reached the area where the garments would be required to be paid for would not prevent a finding and conviction of the crime of theft in violation of the ordinance of the city of Joliet.

For the reasons stated, therefore, the judgment of acquittal for the reasons as stated by the circuit court of Will County was improper and should be reversed. This case will, therefore, be reversed and remanded to the circuit court of Will County for retrial.

Reversed and remanded.

STOUDER and SCOTT, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mack T. Cole, Defendant-Appellant.
    (No. 72-252;
    Third District
    July 17, 1973.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Donald DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Mack T. Cole pleaded guilty to the offense of voluntary manslaughter in the Circuit Court of Rock Island County. He was then sentenced to a term of from 12 to 20 years in the Illinois State Penitentiary in accordance with the plea bargaining arrangement made between defendant and the prosecution. On appeal now, defendant contends that the sentence imposed prior to the effective date of the Unified Code of Corrections, should now be reduced to conform with the Unified Code. This court had allowed the defendant to file a late notice of appeal in this cause.

The Code of Corrections applies to negotiated pleas. (People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731.) As indicated by the Illinois Supreme Court in People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, the fact that the 1 to 3 ratio was prescribed by the Code as to minimum and maximum sentences, made the sentence under the Code less than under the prior law which was in effect when the prosecution was commenced. As noted in the Harvey case, a defendant in such situation correctly maintains that sentences are in excess of those which were imposed for the similar crime by virtue of the fact that the minimum term of incarceration is required to be not greater than one-third of the maximum term fixed in the case by the court. Ill. Rev. Stat. (1972 Supp.), ch. 38, par. 1005 — 8 — 1 (c)(4).

In compliance, therefore, with the Harvey case and under the precedent of People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1, defendant may avail himself of the provisions of the Unified Code of Corrections, since a direct appeal was not finally adjudicated prior to the effective date of that statute.

The judgment of the Circuit Court of Rock Island County is, therefore, affirmed, but this cause is remanded to the Circuit Court of Rock Island County with directions to such Court to conduct a new sentencing hearing herein and to appropriately resentence defendant.

Affirmed and remanded with directions.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE SCOTT

text:
    Community Bank of East Peoria, Plaintiff-Appellant, v. Meister Bros., Inc., Defendant-Appellee.
    (No. 72-275;
    Third District
    July 17, 1973.

      Moehle, Moehle, Reardon & Assoc., of East Peoria, (Robert G. Day, of counsel,) for appellant.
    Gaskins and Sutkowski Assoc., of Peoria, (Edward F. Sutkowski, of counsel,) for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This appeal involves an action of replevin whereby plaintiff, Community Bank of East Peoria, a secured creditor, seeks to recover possession of a Model 580 Diesel Powered Hy Hoe and a General 12 ton trailer with Pintle Hook, the collateral, from the defendant, Meister Bros., Inc., the purchaser at a federal tax sale.

On February 14, 1970, the Community Bank of East Peoria, Peoria County, Illinois, made a $7,000 loan to PSD Sewer Contractors, Inc., who at that time executed a note for $7,000 due May 13, 1970, and as security therefor executed a financing statement listing a Model 580 diesel powered Hy Hoe ditcher and a General 12 ton trailer. The financing statement was filed with the Illinois Secretary of State on February 18, 1970, and in the Recorder’s Office of Peoria County, Illinois, on February 19, 1970. On or about May 13, 1970, the PSD Sewer Contractors, Inc. paid the interest to date on the note but nothing on the principal indebtedness. The note was stamped “Paid” and returned to the maker. A new note dated May 13, 1970, was signed for $7,000 due 90 days after date. On September 29, 1970, again the interest was paid to date and a new note dated September 29, 1970, for $7,000 due 90 days after date was executed. On or about January 29, 1971, the borrower corporation paid the interest to date and $100 on the principal indebtedness, and a new note dated January 29, 1971, due 60 days after date for $6,900 was executed. On or about March 30, 1971, interest was paid to date, and a new note dated March 30, 1971, due 60 days after date for $6,900 was executed. On or about May 29, 1971, interest was paid to date and $100 paid on the principal indebtedness, and a new note dated May 29, 1971, due 90 days after date for $6,800 was executed. All five notes state on their face that “this loan is secured by security interests on the property above described.” The above described property lists the equipment herein mentioned. All notes dated prior to May 29, 1971, were stamped “Paid” when new notes were executed in accordance with the usual practice of the bank.

On April 8, 1971, the Internal Revenue Service filed in the Recorder’s Office of Peoria County, Illinois, its notice of federal tax lien against the taxpayer PSD Sewer Contractors, Inc., pursuant to section 6323(a) of the Internal Revenue Code, 26 U.S.C.A. 6323(a). Sometime in August, 1971, the Community Bank of East Peoria received a notice that the Hy Hoe and trailer had been attached for non-payment of taxes and were to be sold on October 3, 1971. An officer of the bank attended the sale and in an open discussion with the federal officer in charge of the sale asserted the bank’s security interests in the equipment to be sold. The sale was postponed until November 4, 1971, when one Jack Koehl submitted the high bid of $4,000, which bid was accepted. An officer .of the bank attended the sale and immediately after the bid was awarded informed Mr. Koehl of the bank’s claim of a prior security interest in the equipment sold. On November 5, 1971, Jack Koehl sold the equipment to the defendant, Meister Bros., Inc., who took possession of the property. On or about November 12, 1971, the bank requested Meister Bros, to deliver up possession of the equipment and Meister Bros, declined.

On November 16, 1971, the bank obtained a certificate of title to a 1965 General flatbed trailer in the name of Community Bank of East Peoria, the application for which was signed on November 14, 1971.

On January 11, 1972, the bank filed an action in replevin seeking the recovery of the Hy Hoe and trailer. On July 3, 1972,. a decision was. rendered in favor of defendant Meister Bros., Inc. and against the plaintiff Community Bank of East Peoria, from which decision plaintiff appealed.

The defendant Meister Bros., Inc. argues that the lien of the bank in the trailer is subordinate to the tax lien since the bank’s security interest was never perfected by the delivery to the Secretary of State of the existing certificate of title for the endorsement of the lien thereon as required by chapter 95Vz, sections 3 — 202(a) (b), Illinois Revised Statutes 1971. Plaintiff bank contends that its lien, even though unper-fected, is superior to the hen of the purchaser at the tax sale since the purchaser acquired the property with knowledge of the security interest of the bank.

We concur with the appellee in regard to the trailer. The relative priority of a United States hen for unpaid taxes is a federal question. (United States v. Acri, 348 U.S. 211, 213, 99 L.Ed. 264, 267, 75 S.Ct. 239 (1955).) The security interest of the bank to prevail over a valid Federal tax hen must be choate (that is, the identity of the henor, the property subject to the hen and the amount of the hen must be established) and perfected. However, a federal tax hen shah not be considered valid with respect to certain interests even though notice of the hen is filed under sections 6323(b) and (c) of the Internal Revenue Code, none of which exceptions apply to this case. Therefore, the federal rule “first in time is first in right” apphes to the trailer, since the bank failed to deliver the certificate of title to the Secretary of State to note its hen thereon as required by statute, and the federal hen is a vahd lien as against the creditor’s hen in this case. There is no apparent reason why the bank did not perfect its hen as required by statute and should be excused for not doing so in this case. The record fails to disclose that appellee had any knowledge of the unperfected interest of the appellant bank. The effort of the appellant to impart knowledge to the purchaser at the tax sale (namely Jack Koehl) of a prior unperfected security interest in the property about to be sold (and in this case after sealed bids had been submitted) served no lawful purpose. This is not such “actual knowledge” to the appellee of the existence of a prior hen which will make the federal hen invalid under section 6323(c) and within the definition of section 6323(b). To rule otherwise would make a Federal tax lien sale a nonentity and could lead to many abuses. We concur with the view that the government’s hen should prevail over the bank’s hen in this case. United States v. Equitable Life, 384 U.S. 323, 327, 86 S.Ct. 1561, 1564, 16 L.Ed.2d 593 (1966); Gilmore, Security Interest in Personal Property (Little, Brown (1965) vol. II, ch. 40, pp. 1047-1073, referred to in Sams v. Redevelopment Authority, 261 A.2d 566 (Pa. 1970).

With respect to the diesel powered Hy Hoe, a different question is presented. Was the bank’s hen perfected on February 18 and 19,1970, on filing of the financial statement, which was long before the filing of the notice of the government’s lieri against the taxpayer, PSD Sewer Contractors, Inc., on April 8, 1971? Appellee argues that the bank’s lien was not perfected. He apparently contends that the federal law determines the nature of the taxpayer’s interest in the property to which the lien attaches as well as a priority. He cites Code section 6323(h)(1) to the effect that the bank’s lien came into being on the date May 29,1971 (the date of the last note), and not on February 14, 1970 (the date of the fire note), and therefore, the bank’s lien is subordinate to the federal lien which became effective on April 8, 1971, when the notice of tax lien was filed.

We disagree. The state law and not the federal law controls the nature and extent of the security interest or lien. The several notes given to the- bank dated from February 14, 1970 (the first), to May 29, 1971 (the last), were intended by the parties as a single, related transaction in the simplest form. “The general rule is that where a note is given merely in renewal of another note and not in payment, the renewal does not extinguish the original debt nor change the debt except that it postpones the time of payment.” Continental Illinois Nat. Bank & Trust Co. v. Cardwell, 287 Ill.App. 227, 4 N.E.2d 770.

The bank’s security interest in the Hy Hoe attached when the agreement was made and became “choate and perfected” by filing the financial statement on February 18 and 19, 1970, as required by the Uniform Commercial Code, sections 9 — 201 and 9 — 304(1), ch. 26, Sec. 9 — 201, 9 — 304(1) Illinois Revised Statutes 1971. A valid tax lien was filed on April 8, 1971. The bank’s lien had priority over the federal lien and “is not extinguished by the tax sale but continues to be a lien on the property since what is sold is the taxpayer’s right, title and' interest in the property when the later federal lien attached upon filing.” (Streule v. Gulf Finance Corp., 265 A.2d 298 (1970); 26 U.S.C.A. 6323, 6339(a) (2).) Under the federal law the creditor’s security interests are protected and the bank’s lien continues to have priority over the Federal lien for unpaid taxes. ■

We conclude that appellee is entitled to possession of the General 12 ton trailer with Pintle Hook, but that the Model 580 diesel powered Hy Hoe is wrongfully detained by the appellee and that appellant is entitled to recover possession of the same.

Since the record of the appeal shows no proof of damages for wrongful detention of the Hy Hoe by the defendant, there is no basis for a ruling with respect to damages.

Affirmed in part. Reversed in part.

STOUDER and DIXON, JJ., concur.


text:
    Patricia A. Reddig, Plaintiff-Appellant, v. Cal J. Reddig, Defendant-Appellee.
    (No. 72-331;
    Third District
    July 17, 1973.
    Winstein, Kavensky & Wallace, of Rock Island, (Dorothea O’Dean, of counsel,) for appellant.
    Robert Brinn, of Rock Island, for appellee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court;

Patricia A. Reddig, the plaintiff, and Cal J. Reddig, the defendant, were divorced by the circuit court of Rock Island County on July 27, 1970. The decree of divorce granted to the plaintiff the care, custody and control of three minor children subject to reasonable visitation rights by the defendant. The defendant was directed to pay child support in the sum of $97.50 payable on the 15th and 30th day of each month.

On August 3, 1971, the plaintiff filed a petition to modify the decree to the extent that she would be permitted to remove the children to West Liberty, Iowa, where she was to be employed. The defendant filed an answer resisting the modification but after a hearing the court granted the plaintiff’s petition subject to the posting of a bond guaranteeing that she would return the children to Illinois when ordered to do so by the court.

While employed in Iowa the plaintiff met a Mr. Kruger, who was employed by the same company as she was, and their acquaintanceship blossomed into a romance so that at the time of the filing of this appeal it was their intention to become married. There is nothing in the record that would support any accusation or finding that the relationship between the plaintiff and Mr. Kruger was other than one based upon good moral standards.

Mr. Kruger left his employment in Iowa and accepted a position as chief engineer of a company known as Plantation Foods in Waco, Texas. Desiring to join Mr. Kruger for the purpose of becoming married, the plaintiff on September 8, 1972, filed a petition to again modify the decree of divorce so that she could take the minor children to Texas. The defendant filed an answer to this petition wherein he resisted the prayer for modification and he further cross-petitioned for a modification of the divorce decree and prayed that the care, custody and control of the minor chüdren be awarded to him.

A hearing on plaintiff’s petition to modify and defendant’s cross-petition for modification was had and on October 5, 1972, the trial court filed an order finding that both parties were fit and proper persons to have the care, custody and control of the minor children and that the plaintiff’s petition to modify the decree of divorce so as to permit her to remove the children to Texas was denied and further the cross-petition to modify by changing custody from the plaintiff to defendant was also denied.

It should be noted that the record discloses that subsequent to the order of October 5, 1972, from which this appeal stems, the plaintiff took the chffdren to Waco, Texas, and after a hearing on a petition for rule to show cause the trial court found the plaintiff to be in wilfull contempt on the grounds that the removal was in violation of its order.

The plaintiff presents as her sole issue in this appeal that the trial court erred in refusing to permit her to remove the minor children in her custody to the state of Texas. The defendant’s contention is, of course, otherwise and he further urges as a proposition of law that the plaintiff’s appeal can be given no consideration since she is in contempt of the order from which she appeals.

We find it unnecessary to recount and review the testimony and evidence received by the trial court, nor are we obliged to consider the defendant’s argument that the plaintiff has no standing in this court because she has been found to be in contempt of the trial court’s order. Without ruling on the correctness or incorrectness of the trial court’s finding of contempt we do note, however, that the plaintiff advised the defendant that she intended to go to Texas and in fact he loaned her several suitcases for use on the trip. It should also be noted that after the children’s removal to Texas the defendant ceased sending child support payments to the plaintiff, but instead has regularly placed the payments in a checking account at the State Bank of Milan.

As near as we can determine from the record in this cause the three minor children of the plaintiff and defendant are now 16, 12 and 9 years of age. They are apparently in Texas and have been there for a period in excess of six months. As a result of their removal to Texas they have undergone a change of environment. They have pursued their education in schools of that State and undoubtedly have acquired new friends and acquaintances. The paramount question involved when the custody and welfare of children is an issue in divorce actions and post divorce actions is not what the parents wish, nor is it a question of who was right or wrong when the decree was entered, nor is it a question of punishing the father or mother; instead the real issue to be decided is what is for the best interests of the children. See Dent v. Dent, 83 Ill.App.2d 394, 227 N.E.2d 787; Dokos v. Dokos, 88 Ill.App.2d 330, 232 N.E.2d 508.

The trial court, by virtue of ch. 40, sec. 14, Ill. Rev. Stat., is empowered to permit or to deny the removal of minor children from the State of Illinois and we do not hold that this discretionary power of the trial court was abused in the instant case when the order of October 5, 1972, was entered denying the plaintiff’s request to take the children to Texas. We do, however, recognize the fact that the children are in Texas and have been there for a period of months and we deem it to be in the best interests of such children that the trial court conduct a further hearing regarding their removal from the State of Illinois. A change of circumstances has ensued and further evidence should be adduced as to the present situation of the children as to housing, education, financial well being, health, moral atmosphere and as to the preference of the children.

For the reasons herein set forth we believe that the best interests of the children require us to remand the cause to the circuit court of Rock Island County with directions to conduct a new hearing on the question of their removal from the State of Illinois. Accordingly we so remand.

Remanded with directions.

ALLOY, P. J., and STOUDER, J., concur.


text:
    Joliet Federal Savings and Loan Association, Plaintiff-Appellee, v. O’Hare International Bank, as Trustee, et al., Defendants-Appellants.
    (No. 73-40;
    Third District
    July 17, 1973.
    William M. Ahlenius, of Peoria, and Codo & Bonds, of Joliet, (Alexander Bonds, of counsel,) for appellants.
    O’Hern, Wombacher & Bradley, and Frederick Sweat, both of Peoria, Robson, Masters, Ryan, Brummund & Belom, of Joliet, and Thomas E. Moran, of Chicago, (Sidney Z. Karasik, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-Appellee, Joliet Federal Savings and Loan Association commenced this action in the Circuit Court of Peoria County to enforce its mortgage on real estate, the title to which was in O’Hare International Bank as trustee. The complaint also named Shirley Fahey and Norman Codo as defendants, said parties being the beneficial owners of the real estate. Pursuant to Ill. Rev. Stat. 1971, ch. 77, sec. 18d, the complaint included a provision seeking a decree in accord with such section of the statute if the defendants, O’Hare International, Shirley Fahey and Norman Codo, consented thereto. In substance this section of the statute provides that under certain conditions ownership of the mortgaged property may be vested in the mortgagee in full satisfaction of the mortgage indebtedness, free and clear of any claims of the mortgagor. The defendants-appellants, O’Hare International, Fahey and Codo, answered the complaint including their written consent as required by this section of the statute. They thereafter moved for the entry of a decree in accord with the request contained in the plaintiff’s complaint, but at this time the plaintiff withdrew its consent by amending its complaint and eliminating its request for any relief pursuant to this section of the statute. The trial court permitted the amendment of the complaint and at the same time denied defendants’ motion for the entry of a decree in accord with the prayer of the complaint as it existed prior to the amendment. It is this order denying defendants’ motion which is the subject of this appeal.

Appellants have argued the court erred in denying their motion because once their consent was filed there was in effect a stipulation contractual in nature, binding on all parties. However, the appellee in addition to contesting appellants’ claims of error on its merits has raised a preliminary question regarding the appealability of the order in question and has moved to dismiss the appeal because the order is not appealable. We agree with the appellee the order in question is not appealable and consequently, the merits of the appeal will not be considered.

The general rule is that only final judgments are appealable to this court unless the judgment or order comes within one of the exceptions described in the Supreme Court Rules. Supreme Court Rule 304 (Ill. Rev. Stat., 1971, ch. 110A, sec. 304) provides for appeals in cases where not all issues have been adjudicated or where issues between less than all the parties have been adjudicated. Supreme Court Rules 306, 307 and 308 (Ill. Rev. Stat., 1971, ch. 110A, secs. 306, 307 and 308) provide for appeals from orders or judgments interlocutory and not final. However, appellants, in their response to appellee’s motion, concede that the order in this case does not come within any of the exceptions described in the rales, but according to appellants the order must be considered final and hence appealable.

Eefore a judgment or order is considered final, it must dispose of or terminate the litigation or some definite part of it on the merits of the cause. (Village of Niles v. Szczesny, 13 Ill.2d 45, 147 N.E.2d 371 and LaVida, Inc. v. Robbins, 33 Ill.App.2d 243, 178 N.E.2d 412.) If the court retains jurisdiction for future determination of matters of substantial controversy, the order is not final. Bernard Bros. Inc. v. Deibler, 344 Ill. App. 222, 100 N.E.2d 512 and Impey v. City of Wheaton, 60 Ill.App.2d 99, 208 N.E.2d 419.

While there are no Illinois cases which have specifically considered the finality of an order entered pursuant to a motion such as that filed in this case by the appellants, it can be concluded the order does not terminate the litigation on its merits. The gist of appellee’s action is the enforcement of a mortgage and tire order entered does not determine the rights of the parties relative to the enforcement of the mortgage. The. motion which is the basis of the order, is similar to defendant’s motion for judgment on the pleadings or a motion for summary judgment. In either case it might be said the court’s adverse ruling or order may be dispositive of the issue raised by the motions but such orders are nevertheless related to and not independent of, issues yet to be resolved by the court. If a decree of foreclosure is entered in this case, then a final appealable order will have been entered. An appeal from such order would enable this court then to consider the merits of appellants’ contentions as a part of the determination of the entire controversy on its merits.

For the foregoing reasons, the appeal from the order of the Circuit Court of Peoria County is dismissed.

Appeal dismissed.

DIXON and SCOTT, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven E. Davis, Defendant-Appellant.
    (No. 73-150;
    Third District
    July 17, 1973.

      Kritzer, StanseU & Critser, of Monmouth, (Kenneth E. Critser, of counsel,) for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Steven E. Davis, was placed on probation for two years upon the condition that he spend 60 days in the Warren County Jail during the summer of 1973 during school vacation.

On appeal in this court defendant requests that this court modify the sentence by eliminating the jail sentence as a part of the probation sentence.

In accord with People v. Rhinehart (1973), 11 Ill.App.3d 859, and People v. Adkisson, post, p. 1015, applying the new Corrections Act (Ill. Rev. Stat. 1971, ch. 38, sec. 1005 — 6 — 3(b) (1) • * * (d)), it is our conclusion the jail sentence prescribed as a condition of probation is inappropriate.

We find that it is proper that the judgment be modified to eliminate the 60 day period of incarceration so as to constitute a sentence solely of probation for a period of two years. The sentence is accordingly modified to probation only for a period of two years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

ALLOY, P. J., and DIXON, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Bruce Adkisson, Defendant-Appellant.
    (No. 73-151;
    Third District
    July 17, 1973.

      Kritzer, Stansell and Critser, of Monmouth, (Kenneth E. Critser, of counsel,) for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant, David Bruce Adkisson was placed on probation for two years upon the condition that he spend 60 days in the Warren County Jail during the summer of 1973 during school vacation.

On appeal in this court defendant requests that this court modified the sentence by ehminating the jail sentence as a part of the probation sentence.

At the time of sentencing of defendant on Oct. 26, 1972 it was permissible to imprison a defendant as a part of the condition of the sentence of probation imposed by a court. Under the new Unified Code of Corrections, effective Jan. 1, 1973, a court may not require as a condition of probation that the defendant be committed to a period of imprisonment unless the imprisonment is “periodic” (Ill. Rev. Stat. 1971, ch. 38, sec. 1005 — 6 — 43(b)(1) * * * (d).

The exact issue was previously decided by this court in People v. Rhinehart (1973), 11 Ill.App.3d 859, where we found in the provision with respect to elimination of imprisonment as a condition of probation, “a substantial and mitigating basic public policy” and that rehabilitation of defendant” calls for application of the spirit of the change and modification as expressed in the Unified Code of Corrections to eliminate the imposition of incarceration as to defendant in this cause”.

We find that it is proper that the judgment be modified to eliminate the 60 day period of incarceration so as to constitute a sentence solely of probation for a period of two years. The sentence is accordingly modified to probation only for a period of two years.

The judgment of conviction and the sentence as modified are affirmed.

Affirmed as modified.

ALLOY, P. J., and STOUDER, J„ concur.


author: Mr. JUSTICE EGAN

text:
    Eugene Puszkiewicz et al., Plaintiffs-Appellees, v. S. David Friedlander et al., Defendants-Appellants.
    (No. 56327;
    First District (1st Division)
    June 18, 1973.

      Freeman, Freeman & Haas, of Chicago, (Adolph L. Haas, of counsel,) for appellants.
    Edward R. Vrdolyak and Clifford A. Silverman, both of Chicago, for appellees.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

In an amended petition for injunction the plaintiffs, Eugene Pusz^ kiewicz, his wife, Helen, and Dewey Johnston and his wife, Iva, alleged that they and the defendants, S. David Friedlander and his wife, Bernice, owned property abutting Forest Hills Road in Calumet City; that the defendants blocked and barricaded a part of Forest Hills Road thereby depriving the plaintiffs the use of the road; that even though the road had not been dedicated to Calumet City as a public road, it was the intention of the original grantors to have the road dedicated for highway purposes; that the use of the road by the plaintiffs for over 14 years had given them a prescriptive easement to the use of part of the defendants’ property; and that the continuous use of the road for several years and the continuance of maintenance and repair of the road by the City indicated that the defendants had consented to an easement by implication. After the trial and a memorandum opinion of the trial court, by leave of court the plaintiffs filed an amendment to the amended petition alleging that Forest Hills Road had become a highway under the provisions of Illinois Revised Statutes 1969, ch. 121, sec. 2 — 202. The trial judge found that an easement by implication, as well as by necessity, existed on the east 20 feet of the defendants’ property; and that the road was a public highway under the provisions of ch. 121, sec. 2 — 202. The defendants were ordered to remove a brick wall and hedges from their property. It is the defendants’ principal contention that the findings of the trial judge are against the manifest weight of the evidence.

On October 3, 1957, Anthony J. Micheli acquired an irregular tract of Forest Preserve land bounded on the north by Michigan City Road, which runs diagonally southeast and northwest, and on the south by a line 330 feet wide extending east and west. To the south of that line is another tract, also 330 feet wide, which is bounded by 159th Street on the south. Micheli did not subdivide the tract but sold it one piece at a time by metes and bounds. The entire tract, as it exists today, consists of six lots; three lots on the east section and three lots on the west section. The lot in the northwest corner of the tract was retained by Micheli and later conveyed to its present owner, Polloto, in 1966, by a deed which contained no reservation for public highway purposes. Immediately south of the Polloto lot is the land presently owned by Tyrell, who obtained his property by deed in 1955 which contained a reservation of the east 20 feet from highway purposes. Immediately to the south of Tyrell is the lot acquired by the defendants, the Friedlanders, in 1956. Their deed contained no reservation for public highway purposes. The three lots in the east section all contained express reservations of the west 20 feet for highway purposes. Chura became the owner of the northeast lot by a deed in 1951. Directly south of Chura in the middle of the east section is the lot owned by the plaintiffs, Johnstons, which they acquired by deed in 1955. To the south of the Johnstons in the southeast corner lies the plaintiffs, Puszkiewiczs’ lot which they acquired by deed in 1951.

Access to the Micheli tract from Michigan City Road is accomplished by the use of Forest Hills Drive (also called Forest Hills Road). All of the lot owners, except Chura, have driveways abutting Forest Hills Drive, which runs roughly through the center of the tract to a dead end at the southern edge of the tract. Forest Hills Drive is not straight nor does it confine itself to the areas reserved for public highway purposes; it varies in width from approximately 12 feet at one point to approximately 40 feet at another. The center lines of the lots do not correspond to the center line of the road. The roadway is seal-coated from Michigan City Road up to the south end of the Puszkiewiczs’ driveway, which is several feet south of the Friedlander driveway. From the Puszkiewicz driveway south to the dead end, the roadway consists only of unsurfaced stones, trees, bushes and a brick planter, and is approximately 70 feet long. It lies entirely between the lots of Puszkiewicz and Friedlander. This area is the focal point of the lawsuit.

On that part of his lot reserved for highway purposes, Puszkiewicz planted several trees and a row of bushes 9 feet south of his driveway extending 59 feet south. They have been there between 10 and 15 years. He also has flagstone running from his driveway south to his trees and bushes; the flagstone is between 8 and 12 inches high and extends 2 feet into the space reserved for a highway.

Johnston also has the same type of flagstone 2Yz feet within the reserved area running from his driveway to that of Puskiewicz.

Friedlander planted hedges on the east 20 feet of his property approximately 4 years ago with no complaints from the plaintiffs. He also built a brick planter at the dead end of the roadway on the east 20 feet of his property in July of 1970; it is L-shaped, 6 feet high, extending 9 feet north, and is 3 feet wide. The trial judge ordered the defendant to remove these hedges and this planter.

In August of 1966 Calumet City seal-coated Forest Hills Drive at the request of the people living in the area. The work included stoning, asphalting and chipping, and rolling south of Michigan City Road to the front of the Puszkiewicz residence. In 1967 a water condition existed at the intersection of Forest Hills Drive and Michigan City Road, and the City, at the request of the adjoining property owners, installed a cátch basin to alleviate the problem. Friedlander had complained before the installation about the hazardous condition that would be created in the winter due to the water. In 1969, the City resealed the road, again at the request of the residents in the area including the defendant, who told the building commissioner that the street was getting into a deplorable condition. The City also plowed the snow and picked up the garbage on Forest Hills Drive. Every resident of the City paid for garbage service at the rate of $.50 per month. The City maintained services of repair and snowplowing on all the roads within the City limits whether they were public or private. The records of Calumet City do not show Forest Hills Drive going south.

William Hubbell, the street commissioner, when first appointed, was told by the mayor that Forest Hills Drive was a private roadway and would have to be dedicated. The defendant introduced a letter from Thomas R. Bobak, the city attorney, to the building commissioner dated July 2, 1970, in which Bobak took the position that the City of Calumet City had no interest in the dispute between the property owners of Forest Hills Drive for the reason that the road was a private roadway. Delivery men, salesmen, guests of the residents and spectators used the road, as did the school bus to pick up children.

At the time of the first sale to Chura in 1950, there was no roadway. The first use of the roadway was made by vehicles used in the construction of the Puszkiewicz home. The vehicles did not use any established route or particular section of the roadway and often got stuck. The roadway assumed its present physical characteristics within the last 10 years when the City began putting stone and asphalt on it. A sewer line was installed within the roadway after Chura’s house was built.

Initially, it must be noted that we are concerned with the east 20 feet of Friedlander’s lot, which did not, unlike those of the plaintiffs’, contain a reservation for highway purposes; and it is that area over which the plaintiffs must prove an easement.

The essential elements which must exist to create an easement by implication on severance of ownership are that there must be a separation of title, that prior to separation the use which would give rise to an easement must have been so long continued and manifest as to show that the use was meant to be permanent, and that use of the claimed easement must be essential to the beneficial enjoyment of the land granted or retained. (Carter v. Michel, 403 Ill. 610, 617, 87 N.E.2d 759.) In describing the requirements of the last element, the Supreme Court has said: “In such cases it is not necessary that the claimed easement be absolutely necessary for the enjoyment of the estate granted, but it is sufficient that it is reasonable and highly convenient and beneficial thereto.” (Deisenroth v. Dodge, 7 Ill.2d 340, 346, 131 N.E.2d 17.) Mere convenience is not sufficient to establish the easement but it must be “reasonably necessary” to the proper enjoyment of the estate. (Traylor v. Parkinson, 355 Ill. 476, 482, 189 N.E. 307.) All the facts and circumstances surrounding the sale must be considered to determine whether it was the actual intent of the parties that such an easement be created. Frantz v. Collins, 21 Ill.2d 446, 449, 173 N.E.2d 437.

The undisputed evidence shows that at the time of the first sale to Chura, who had direct access to Michigan City Road, there was no roadway in existence, nor was there one in existence at the time of the sale to Puszkiewicz. Indeed, it was the vehicles used in the construction of Puszkiewiczs’ home that established the present contours of the roadway. In all the cases cited by the plaintiffs, the use existed while the property was in common ownership. That necessary element is absent in this case.

Puszkiewicz testified that hedges 4Vz to 5 feet tall run through the front of his property for the entire 80 feet. A tree is located 9 or 10 feet south of the driveway beside the bushes; another tree is located to the north of the bushes. His bushes begin 4 or 5 feet south of his driveway and the defendants’ bushes begin 9 feet south of his driveway; the defendants have none north of the driveway. He testified that the defendants’ bushes do not obstruct him but make it difficult in turning. It is apparent that both Johnston and Puszkiewicz have approximately 40 feet in which to back up or turn without coming near the bushes of the defendants. There is parking space between Puszkiewiczs’ driveway and the dead end. There is no evidence from which it could be inferred that the planter constituted any obstruction to traffic. The defendants’ bushes had been planted several years before without objection by the plaintiffs. “Difficulty in turning” falls far short of the proof required to show that an easement is “reasonably necessary” to the enjoyment of the plaintiffs’ estate. (See Wetmore v. Ladies of Loretto, Wheaton, 73 Ill.App.2d 454, 463, 220 N.E.2d 491.) For these reasons we conclude that the plaintiffs have failed to prove two essential elements necessary to establish an easement by implication.

In support of their contention that the evidence supports a finding of easement by necessity, the plaintiffs cite Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226. In that case the grantee had no access to a public highway except over the land of the grantor. In this case, not only do the plaintiffs have access to Michigan City Road by means of Forest Hills Drive from their driveways north, but, if they wish to avail themselves of a drive of some 50 odd feet south to a dead end, it can be accomplished quite easily by removing the obstructions placed by Puszkiewicz in the west 20 feet of his lot, which has been expressly reserved for highway purposes. Furthermore, Puszkiewicz bought the property immediately to the south and there now exists a road running from the southern edge of his property south to 159th Street. Puszkiewicz testified that he built the road about 2% years before, that it is wide enough to “accommodate an automobile cautiously,” and that he has used it to reach his residence from 159th Street. Under this evidence we must conclude that the plaintiffs have failed to prove an easement by necessity.

The plaintiff next argues, and the court found, that the road was a public highway since it had been used by the public for at least 15 years. Section 2 — 202 of the Illinois Highway Code (Ill. Rev. Stat. 1969, ch. 121, sec. 2 — 202), includes in the definition of a highway “any public way for vehicular travel which has been * * * used by the public as a highway for 15 years, 9 9 9.” To constitute a road as a highway under this section, there must be a user for a statutory period which is open, continuous and uninterrupted, and under a claim of right in the public. People v. Waitkus, 30 Ill.2d 335, 338, 196 N.E.2d 668.

The plaintiffs place particular emphasis on the fact that the roadway was worked by Calumet City as a “strong indication that it is a public highway.” First, the City did not work on the road south of the Puszkiewiczs’ and Friedlanders’ driveways. Second, the City maintained services of repair and snowplowing on all roads, private or public. Third, the City did not begin seal-coating until 1966. Last, although not controlling, the City officials regarded the road as a private one. Consequently, the fact that the City has done some work on the road is entitled to no weight. See People ex rel. Porten v. Geske, 119 Ill.App.2d 152, 255 N.E.2d 753.

The mere fact that residents, visitors, and people serving the residents use the road did not satisfy the requirements necessary to establish public use. (Harris v. Schwartz, 351 Ill.App. 351, 355, 115 N.E.2d 345.) The characteristics of the road were such that travel over it would hardly constitute notice of a claim of right in the public generally. (People v. Waitkus, 30 Ill.2d 335 at page 338.) And finally, as was pointed out in Miller Brothers Lumber Co. v. Mayfair Lumber Co., 4 Ill.App.3d 616, 279 N.E.2d 389, 392, the plaintiffs’ own use of the reserved portion of their property is a “persuasive argument against their position that a public highway was created on the roadway. * 9 9 [I]t is unreasonable to urge that a highway by prescription has been created as to defendant’s portion of the roadway, but apparently not as to that part owned by plaintiff[s].” We conclude therefore, that the plaintiffs failed to maintain their burden of proving that the roadway was a public highway under section 2 — 202.

Finally, although the trial court found to the contrary, the plaintiffs contend that the proof established a common law dedication of the roadway, the requirements of which are: (1) an intent on the part of the owner to donate the land to public use; (2) acceptance by the public; (3) clear, satisfactory and unequivocal proof of these facts. (McCue v. Berge, 385 Ill. 292, 52 N.E.2d 789.) The trial court’s finding that the plaintiffs had failed to provide such proof was correct. However, for the reasons previously ascribed, we conclude that the court should have denied the prayer to enjoin the defendants from obstructing the road. Accordingly, the judgment of the circuit court is reversed.

Judgment reversed.

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


author: Mr. PRESIDING JUSTICE BURKE

text:
    Bituminous Casualty Corporation, Plaintiff-Appellee, v. Merchants Motor Freight, Inc. et al., Defendants,—(Admiral Merchants Motor Freight, Inc., Defendant-Appellant.)
    (No. 56844;
    First District (1st Division)
    June 18, 1973.

      Dowd, Dowd and Dowd, of Chicago, (Joseph V. Dowd and Philip J. McGuire, of counsel,) for appellant.
    Kane, Doy & Harrington, of Chicago, (Arthur O. Kane and Samuel J. Doy, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

This is an appeal from an order granting summary judgment in favor of plaintiff, Bituminous Casualty Corporation and against defendants Admiral Merchants Motor Freight, Inc., (successor to Merchants Motor Freight, Inc., hereinafter referred to as “Merchants”) and George Dietz. No appeal has been taken by George Dietz.

On September 14, 1961, George Dietz was an employee of Western Transportation Company, plaintiff’s insured. George Dietz was injured while he was assisting the driver of a truck belonging to defendant Merchants.

The injury occurred while Dietz was helping the driver release his trailer, and while doing so Dietz was run over by the Merchants truck. As a result of the accident, Dietz suffered a severe fracture of his right leg.

On September 25, 1962, plaintiff, as the Workmen’s Compensation insurer of Western Transportation Company, entered into a settlement with George Dietz under which Dietz was paid a lump sum of $4,000 by plaintiff.

George Dietz had previously received Workmen’s Compensation benefits of $230 from the plaintiff. The settlement was approved by the Industrial Commission as provided by the Workmens Compensation Act.

George Dietz had previously instituted a common law action in the Superior Court of Cook County against defendant-appellant, Merchants.

On October 3, 1961, plaintiff sent defendant, Merchants, notice of its subrogation lien arising out of Workmen’s Compensation benefits paid to George Dietz and Merchants acknowledged receipt of the notice of lien.

Thereafter, defendants Merchants and George Dietz entered into a settlement of the common law action without satisfying or in any manner protecting the lien of the plaintiff, Bituminous Casualty Corporation.

Plaintiff then filed a complaint for breach of its lien against both Merchants and Dietz seeking recovery of the $4,230 in Workmen’s Compensation benefits it had paid to Dietz.

Defendant Merchants answered the complaint denying the allegation that Dietz was within the scope of his employment by Western Transportation Company at the time he was injured, and alleging that his injuries therefore did not arise out of and in the course of his employment. Merchants also alleged as affirmative defenses that the injuries did not arise out of and in the course of Dietz’ employment and that the voluntary payments made by plaintiff to George Dietz did not enable plaintiff to acquire á lien under the terms and provisions of the Workmen’s Compensation Act.

Plaintiff subsequently filed a motion for summary judgment and on October 7, 1971, summary judgment was granted against both defendants, Merchants and George Dietz. On the motion of defendant Merchants, the order of October 7, 1971, was vacated as to defendant Merchants only and the plaintiff’s motion for summary judgment was reset for argument. On October 15, 1971, the trial judge again granted summary judgment in favor of plaintiff and against defendant, Merchants. Merchants appeals.

Defendant argues that summary judgment was improperly granted because the pleadings did not establish as a matter of law that the Workmen’s Compensation Act was applicable to the injuries sustained by George Dietz. Defendant premises this argument primarily on the fact that the Workmen’s Compensation settlement contract entered into by George Dietz and Western Transportation Company (Dietz’ employer and plaintiff’s insured) recited in part:

“Terms of settlement and reasons therefore: Respondent, Western Transportation Co., denies that the injuries sustained by George Dietz arose out of and in the course of his employment, but to avoid prolonged litigation, Western Transportation Co. agrees to pay and George Dietz agrees to accept the sum of $4,000.00 In A Lump Sum in full of any and all claims of any kind, nature and/ or description on account of the accident on September 14, 1961 and all known or unknown injuries which allegedly resulted from the said accident * *

In addition, defendant also states that the printed form for lump sum settlement petition approved by the Industrial Commission was modified by inserting the typewritten word “allegedly” in the printed statement that Dietz was injured “in an accident that arose out of and while in the employment of Western Transportation Co.” Defendant states that the “facts under which the trial court determined that summary judgment was warranted * * * fall far short of showing that the issue of liability is free from doubt.”

Section 5 (b) of the Workmen’s Compensation Act of Illinois (Ill. Rev. Stat. 1971, ch. 48, par. 138.5(b)) provides inter alia that if the employee brings an action against the third party tort-feasor, and if judgment is obtained or settlement made, whether with or without suit, “° * * then from the amount received by such employee * * * there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee # This section also provides that:

“If the injured employee * * * agrees to receive compensation from the employer or accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party. In such actions brought by the employee * * *, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which such suit is brought, filing proof thereof in the action. The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages hy reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee * * *, except in the case of the employers, such consent shall not be required where said employer has been fully indemnified or protected by Court order.
In the event the employee * * * fails to institute a proceeding against such third person at any time prior to 3 months before such action would be barred at law the employer may in his own name, or in the name of the employee, * * * commence a proceeding against such other person for the recovery of damages on account of such injury or death to the employee, and out of any amount recovered the employer shall pay over to the injured employee * * * all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this Act, * * * and cost, attorney’s fees and reasonable expenses as may be incurred by such employer in making such collection or in enforcing such liability.” (Emphasis supplied.)

Plaintiff argues that a distinction must be made between remedies sought under Section 5 (b) (Ill. Rev. Stat. 1971, ch. 48, par. 138.5(b)) by an employer or by the injured employee against the negligent third party tort-feasor and an action, such as the present case, brought by the employer or the employer’s subrogee against both the employee and the third party tort-feasor for breach of the employer’s lien.

In support of his argument, plaintiff relies upon the decision in Employers Mut. Cas. Co. v. Trimon Elevator Co., 71 Ill.App.2d 124, 217 N.E.2d 391. In the Employers case, this court was concerned with a case where the employee, Richard Moore, was injured while in the employ of Clark-Maple Chevrolet. Moore brought suit against Trimon Elevator as ,a third party tort-feasor and the plaintiff, as the insurance carrier for Clark-Maple, notified Trimon of their claim for a lien under the Workmen’s Compensation Act. On November 19, 1957, plaintiff sent further notice to Trimon stating that they had compensated Moore in the amount of $1,500.00 to that date and demanding reimbursement. Trimon, through its agent acknowledged receipt of this letter. Subsequently, a settlement was effected in the suit between Moore and Trimon, Trimon, paid $4,000.00 directly to Moore and the suit was dismissed without in any manner satisfying or protecting the plaintiffs lien. On February 25, 1964, plaintiff brought suit against Trimon and Moore to enforce its lien rights which was dismissed by the trial court on the ground of the statute of limitations. This court in reversing the trial court held that the plaintiff’s cause of action to enforce its statutory lien accrued on February 6, 1963, the date of the settlement, and was therefore timely filed.

Significantly, this court in Employers case stated at 71 Ill.App.2d 124, 133, 217 N.E.2d 391, 396 that:

* * [I]n the instant case, plaintiff is not standing in the shoes of the employee in bringing this action against the third party tort-feasor, but rather, is bringing the action in its own name in order to enforce its right against both the employee and the third party tort-feasor who have failed to give proper regard to the employer’s lien rights.”

In Employers the court also stated that although under Section 5(b) of the Workmens Compensation Act the employer is given the right to join in the third party action after he had been given notice of a suit being brought by his employee against the third party tort-feasor, that this right does not provide the exclusive remedy under the Workmen’s Compensation Act. The Employers court made the further pronouncement that: “There would seem to be no reason in logic or in law why the plaintiff could not enforce that lien in a separate action as it attempted to do.” 71 Ill.App.2d 124, 136, 217 N.E.2d 391, 397.

In the present case, when the plaintiff notified defendant Merchants, on October 3, 1961, that the plaintiff claimed a lien under the Workmen’s Compensation Act, the plaintiff established its lien. Defendant does not dispute the fact that the notice of lien was received and acknowledged by defendant Merchants nor does it dispute the sufficiency of the notice.

We are of the opinion that the defense asserted by the defendant to justify its action of knowingly paying monies to the injured employee, without satisfying or protecting the lien of plaintiff, does not absolve defendant of liability for the breach of plaintiff’s lien. The question raised by defendant, namely whether the accident arose out of and in the course of Dietz’ employment, is in our opinion, not pertinent in a case such as the present one, where the plaintiff’s cause of action is predicated solely on the breach of lien.

Moreover, the Workmen’s Compensation award made to George Dietz in the present case was approved by the Industrial Commission. In Harrison Sheet Steel Co. v. Industrial Com., 404 Ill. 557, 565, 90 N.E.2d 220, 224, the Illinois Supreme Court stated that: “[A] commission-approved settlement agreement is, in legal effect, an award. (Dyer v. Industrial Com. 364 Ill. 161; Hartford Accident and Indemnity Co. v. Industrial Com. 320 Ill. 544.).” We are of the opinion that defendant Merchants cannot now be heard to question the validity of the Workmen’s Compensation settlement after defendant summarily disregarded plaintiff’s lien rights under Section 5(b).

We are of the opinion that the trial court properly rendered summary judgment in favor of plaintiff, Bituminous Casualty Corporation, and against defendant, Merchants. As this court stated in Tau Delta Phi, Tau Eta Chapter v. Gutierrez, 89 Ill.App.2d 25, 32-33, 232 N.E.2d 205, 210:

“The purpose of the summary judgment proceeding is to test whether there exists a genuine issue of material fact and to summarily dispose of those cases wherein no such issue exists, thereby avoiding congestion of trial calendars and the expense of unnecessary trials. Ill. Rev. Stats. 1965, Ch. 110, Par. 57; Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576; Giampa v. Sunbeam Corp., 68 Ill.App.2d 425, 429, 216 N.E.2d 233. Whether an issue of fact exists is to be determined from the pleadings, depositions, admissions and affidavits, if any, on file in the case. Giampa v. Sunbeam Corp., 68 Ill.App.2d 425, 216 N.E.2d 233.”

It appears from the record that there exists no genuine issue as to any material fact. For these reasons, the judgment is affirmed.

Judgment affirmed.

GOLDBERG and EGAN, JJ., concur.


author: Mr. JUSTICE LEIGHTON

text:
    Stephen Trisko, Plaintiff-Appellant, v. Vignola Furniture Company, Defendant-Appellee.
    (No. 56115;
    First District (2nd Division)
    June 19, 1973.

      Jay S. Judge, of Arlington Heights, for appellant.
    Mass, Miller, & Josephson, of Chicago, (Thomas A. Mass, of counsel,) for appellee.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This appeal involves a controversy between the plaintiff, Stephen Trisko, and the defendant, Vignola Furniture Company, concerning “two tufted love seats” which plaintiff purchased from defendant for $1,008. The transaction was evidenced by a written contract dated on or about April 28, 1967.

On June 12, 1970, acting as his own lawyer, Trisko filed a suit in which he alleged that, when defendant made the sale, it “s * * warranted both expressly and impliedly that the love seats were of merchantable quality”; that on or about June 1, 1967, he discovered the seats were defective and gave defendant immediate notice of this fact; that defendant breached the express and implied warranty it made at the time of the sale. Plaintiff prayed for judgment in the sum of $1,000 and costs. Summons was served on June 16, 1970; but defendant did not appear, nor did it file an answer to plaintiff’s complaint. On September 23, 1970, a default judgment was entered in favor of plaintiff in the sum of $1,000 and costs. Thereafter, by a letter received on October 2, plaintiff advised defendant of the default and furnished it with a copy of the judgment. On October 16, 1970, execution was served on defendant; and levy on its property was made by the sheriff on December 5, 1970. On December 7, defendant appeared in court for the first time and filed a petition to set aside the default judgment.

In its petition, defendant admitted having been sérved with summons but alleged that one of its principal officers visited plaintiff to ascertain the nature of his complaint; that plaintiff told defendant of his dissatisfaction with the merchandise he had purchased; that defendant agreed with plaintiff to repair the merchandise and plaintiff verbally agreed with defendant to withhold action in the suit until the repairs were complete; that defendant unsuccessfully attempted to obtain the love seats from plaintiff in order to repair them; and defendant thereafter learned that on September 23, 1970, plaintiff had obtained the default judgment in breach of the verbal agreement. Defendant prayed that the judgment be set aside. Plaintiff filed a written objection in which he denied the material allegations of defendant’s petition. After hearing arguments of counsel, the trial court sustained defendant’s petition, opened the judgment with leave to defend, and stayed all proceedings until further order of the court. Contending that this ruling was error, plaintiff appeals. Three issues are presented for our review. (I.) Whether the order that set aside the default judgment was final and appealable. (II.) Whether either party to this appeal is entitled to an award of reasonable expenses and reasonable attorney’s fees under the provisions of section 41 of the Civil Practice Act. (III.) Whether on defendant’s petition it was proper for the trial court to open the default judgment and give defendant leave to defend.

I.

Defendant’s petition to set aside the default judgment was verified and was filed more than 30 days after the judgment was entered. Therefore, it must be construed, as having been filed under section 72 of the Civil Practice Act, Ill. Rev. Stat. 1969, ch. 110, par. 72. (Schuman v. Department of Revenue, 38 Ill.2d 571, 232 N.E.2d 732; Mehr v. Dunbar Builders Corp., 7 Ill.App.3d 881, 289 N.E.2d 25.) Plaintiff objected to the petition and denied its material allegations. The objections were not verified; however, lack of verification of plaintiff’s objections was not raised in the trial court; it cannot be raised in this appeal. Hopkins v. Kraft Foods Co., 44 Ill. App.2d 373, 194 N.E.2d 680.

Concerning the reasons for the order sustaining the petition, we do not have the benefit of a trial court opinion. Under these circumstances, we will assume that all of plaintiff’s objections were overruled and that defendant’s contentions were sustained. Rector v. Board of Appeals et al., 342 Ill.App. 51, 95 N.E.2d 99; compare Macie v. Clark Equipment Co., 8 Ill.App.3d 613, 290 N.E.2d 912.

As we have pointed out, defendant’s petition was a proceeding under section 72 of the Civil Practice Act. It is the law in this State that an order denying or granting any relief prayed for in such a petition is final and appealable. Hie time to appeal does not begin to run until disposition of a motion to vacate the order granting or denying relief. (Werner v. International Association of Machinists, 11 Ill.App.2d 258, 137 N.E.2d 100; Holcomb v. Flavin, 37 Ill.App.2d 359, 185 N.E.2d 716; Central Bond & Mortgage Co. v. Roeser, 323 Ill. 90, 153 N.E. 732; Schuman v. Department of Revenue, 38 Ill.2d 571, 232 N.E.2d 732; Lynn v. Multhauf, 279 Ill.App. 210; Davis Furniture Co. v. Young, 102 Ill.App.2d 415, 242 N.E.2d 457; see Annot., 8 A.L.R. 3d 1272.) Therefore, the order that sustained defendant’s petition and opened the default judgment with leave to defend was final and appealable.

II.

This being so, the appeal is properly before us. However, this is not true of every issue presented. For example, we are requested to decide whether either party is entitled to an award of reasonable expenses and reasonable attorney’s fees under the provisions of section 41 of the Civil Practice Act. This request is made despite tire fact that, when the trial court sustained defendant’s petition, it reserved ruling on assessment of attorney fees and costs. It is well settled that we do not have authority to consider a matter not passed on by the trial court or one which, because of a ruling on a motion, was left unresolved. (Waupoose v. Kusper, 8 Ill.App.3d 668, 290 N.E.2d 903; Murphy v. Kumler, 344 Ill.App. 287, 100 N.E.2d 680; see Cohn v. Receivable Finance Co., 7 Ill.App.3d 869, 288 N.E.2d 894.) Therefore, we will not decide whether either party to this appeal is entitled to an award of reasonable expenses and reasonable attorney’s fees under the provisions of section 41 of the Civil Practice Act.

III.

We turn, then, to the issue dispositive of this appeal: whether on defendant’s petition it was proper for the trial court to open the default judgment and give defendant leave to defend. In doing so, we observe that the judgment was entered after the trial court heard plaintiff’s evidence, argument of his counsel, and, based on the undenied complaint, made findings in his favor. In evaluating these findings, we notice plaintiff’s allegations that on or about April 28, 1967, under a written contract that expressly and impliedly warranted their merchantability, he purchased two love seats from defendant; that on or about June 1, 1967, he discovered that they were defective; and that he immediately gave defendant notice of this fact. Defendant was served with summons. On October 2, 1970, in a letter from plaintiff, defendant received a copy of the judgment and notice of its entry, but took no action. Then, when a levy was made, defendant filed a petition to set aside the default judgment alleging that after being served with summons, it had sent one of its principal officers to see plaintiff and had learned of his complaint concerning its merchandise.

Plainly, the allegations of defendant’s petition did not disclose due diligence in acting against the default judgment nor did they disclose an excusable mistake for not having done so. (Davis Furniture Co. v. Young, 102 Ill.App.2d 415, 419, 242 N.E.2d 457; MFA Insurance Com panies v. Saduddin, 4 Ill.App.3d 361, 280 N.E.2d 503.) In fact, the allegations show defendant’s lack of diligence in responding to the summons of a court and in acting against a default judgment that had been entered against it. (Mehr v. Dunbar Builders Corp., 7 Ill.App.3d 881, 289 N.E.2d 25.) These allegations made defendant’s petition insufficient as a matter of law. Compare Stampley v. Collins, 90 Ill.App.2d 11, 234 N.E.2d 356.

Defendant argues that its petition alleged a meritorious defense, namely, that plaintiff failed to reject delivery of the merchandise he had purchased. Defendant supports this argument with the claim that, after its principal officer had visited plaintiff, a verbal agreement was reached by the parties whereby plaintiff was to take no action in the pending law suit until defendant had repaired the love seats. This argument overlooks plaintiff’s undenied allegations (later found true when the trial court entered the default judgment) that defendant had sold him unmerchantable goods and that he had given defendant prompt notice of this fact. These allegations and findings show that defendant was under a legal duty to repair the unmerchantable goods which were sold in violation of express and implied warrantieá. A promise to do that which one is already legally obligated to do is no consideration and does not create a new obligation. Moehling v. W. E. O’Neil Construction Co., 20 Ill.2d 255, 266, 170 N.E.2d 100; Macks v. Macks, 329 Ill.App. 144, 67 N.E.2d 505.

Therefore, defendant’s petition showed lack of diligence, its claimed meritorious defense was contrary to the allegations of plaintiff’s undenied complaint, and the alleged verbal agreement was nudum pactum. For these reasons, it was error for the trial court to grant defendant the relief it prayed for in the section 72 petition. (Houston v. Churchill, 100 Ill.App.2d 56, 241 N.E.2d 560; Bennett v. Gollant, 127 Ill.App.2d 224, 262 N.E.2d 34.) Accordingly, the order sustaining defendant’s petition is reversed and the cause is remanded with directions that the default judgment be reinstated and plaintiff be allowed to proceed with execution, levy or other supplementary proceedings, consistent with the views expressed in this opinion.

Reversed and remanded with directions.

SCHWARTZ and HAYES, JJ., concur.


author: Mr. JUSTICE HAYES.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Evans, Defendant-Appellant.
    (No. 57066;
    First District (2nd Division)
    June 19, 1973.
    James J. Doherty, Public Defender, of Chicago, (Elliot M. Samuels, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Elmer C. Kissane and James Staruck, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE HAYES.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Russell Spratt, Defendant-Appellant.
    (No. 56964;
    First District (3rd Division)
    June 21, 1973.
    James J. Doherty, Public Defender, of Chicago, (V. James Cerri, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and Nicholas J. Motherway, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE McGLOON.


author: Mr. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tommie Lee Smith, Defendant-Appellant.
    (No. 57050;
    First District (3rd Division)
    June 21, 1973.

      James J. Doherty, Public Defender, of Chicago, (Donald S. Honchell and Michael Weininger, Assistant Public Defenders, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Robin Auld and Thomas White, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court: •

A jury found the defendant, Tommie Smith, guilty of burglary and he was sentenced to the penitentiary for a term of three to eight years. He contends that he did not receive a fair trial and that an oral statement made by him while in custody should not have been received in evidence.

Smith was arrested by two Chicago police officers about 9:30 P.M. on the night of December 20, 1970. The officers received two radio reports that burglaries were in progress in the 1800 block of South Ridge-way Avenue, which was in the area they were patrolling. They spoke to residents at the addresses given in the reports and were given a description of a man who had attempted to break into one apartment. Upon returning to their squad car they received a third message of a burglary attempt on South Lawndale Avenue — less than a block away and across the alley from the first two addresses. They hurried into the alley and saw Smith running in their direction. They apprehended him and as they did so he pulled a gun from his pocket; they threw him to the ground and handcuffed him. The gun proved to be a starter pistol which used blank cartridges. Smith answered the description they had just received; he was searched and a portable radio was recovered from under his jacket. He said the radio was his. It had the name “Vickie Parks” inscribed on the inside of the back cover. A subsequent investigation revealed that it had been stolen that night from her home, 1811 South Ridgeway.

The police officers, Frank Corcoran and Rochelle McClain testified at the defendant’s trial. After Corcoran related the events of the night of December 20th and the details of the arrest, the prosecutor asked him about a conversation with the defendant at the police station:

“Q. What, if anything, did you say to the defendant?

A. I just kept asking where he got the radio.

Q. Did the defendant speak to you in response to questions being made by you and the other officers?

A. He told me, directly to me, that it was his own radio. He said it was his radio.

Q. Did he tell you his name, the defendant? Did he tell you his name?

A. Yes, sir, he did.

Q. What name did he tell you?

A. Tommie Lee Smith.

Q. Did he say anything else to you?

A. He said he had been smoking reefers and drinking wine.

Q. After he said that did he say anything else to you?

A. He said something to the effect, when I do a job I do it well.’

Q. Do you know what he meant by doing a job?

Defense Attorney: Object.

The Court: Sustained.

Prosecutor: How many jobs were mentioned?

A. At that time I think it was about 6 jobs.

Defense Attorney: Your Honor, I object.

The Court: Sustain the objection. Let’s go on with it.

Q. What, if anything, did the defendant say after that?

A. I don’t recall.”

McClain was also questioned about talking to the defendant at the station:

“Q. Where did you see him?

A. In the squad room.

Q. Did you have any conversation with Mr. Tommie Lee Smith at that time?

A. Yes, sir, I did.

Q. What, if ánything, did you say to Mr. Smith?

A. I asked Mr. Smith if it was his radio.

Q. What, if anything, did he say?

A. He said it was his radio.

Q. Did he say anything else to you?

A. He said that he had puUed 4 jobs—

Defense Attorney: Your Honor, I object.

The Court: Sustain the objection.

Prosecutor: What if anything did you say to Mr. Scott [sic] after he indicated the radio was his?

A. I asked him what he was doing in the neighborhood.

Q. What, if anything, was said?

A. He said he was visiting friends.

Q. What, if anything, else did he say?

A. He said he just got out of jail, he was on probation.

Defense Attorney: Your Honor, I object.

The Court: Sustain the objection.

Defendant Attorney: Can I be heard?

The Court: Sustain the objection. The answer is stricken and the jury is instructed to disregard it.”

The answers to the prosecutor’s questions: “At that time I think it was about 6 jobs,” “He said he had pulled 4 jobs” and “He said he just got out of jail, he was on probation” were extremely prejudicial. The answers were elicited by the prosecutor and wére responsive to his questions.

An unwritten rule of trial practice is not to ask a witness a question on direct examination unless you know what the answer will be, and its corollary is not to ask a question on cross-examination unless you are reasonably sure what the answer will be. The corollary is often not observed because of the eagerness of the cross-examiner or his willingness to gamble; but there is no excuse for violating the primary rule. We must assume that the prosecutor talked to his witnesses before he called them to the stand and that he anticipated the answers by his persistence in asking Officer Corcoran the repetitive questions: “Did he say anything else to you?” and “After he said that did he say anything else to you?” The prosecutor’s intention to extract damaging testimony is disclosed by his asking Corcoran these follow-up questions: “Do you know what he meant by doing a job?” and “How many jobs were mentioned?” Further confirmation of his purpose can be seen in his directing, despite the objections previously sustained by the court, identical questions to Officer McClain: “Did he say anything else to you?”, “What, if anything, was said?” and “What, if anything, else did he say?” If the prosecutor had been surprised by Corcoran’s responses, he certainly was not by McClain’s. The questions asked McClain were deliberate and the solicited responses could not have been unexpected.

When prejudicial testimony has been heard by a jury the harm to a defendant cannot always be prevented by sustaining objections and cannot always be removed by striking it from the record and instructing the jury orally or in writing to disregard it. See: People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120; People v. Buckminster (1916), 274 Ill. 435, 113 N.E. 713; People v. Pitts (1971), 1 Ill.App.3d 120, 273 N.E.2d 664.

The cumulative damage to the defendant resulting from the prosecutor’s probing questions and the replies forced out of the officers, was not cured by the court’s rulings and cautionary instructions. The defendant’s motion for a mistrial should have been granted. He did not receive a fair trial and, despite clear evidence of guilt, his conviction must be reversed and the cause remanded for a new trial.

In view of this conclusion, it is unnecessary to consider the defendant’s second point or the motion made in oral argument to reduce his minimum sentence in accordance with section 1005 — 8 — lc(3) of the Illinois Unified Code of Corrections.

Reversed and remanded with directions.

McNAMARA and McGLOON, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. C. B. Caldwell, Defendant-Appellant.
    (No. 57281;
    First District (5th Division)
    June 22, 1973.
   PER CURIAM.

ENGLISH, J., took no part.

Zane M. Cohn, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago, (Elmer C. Kissane and William D. Wolter, Assistant State’s Attorneys, of counsel,) for the People.