author: JUSTICE EARNS JUSTICE EARNS

text:
    ERMA L. ROBERTSON et al., Plaintiffs-Appellants, v. ORVILLE J. ROBERTSON et al., Defendants-Appellees.
    Fifth District
    No. 83 — 64
    Opinion filed March 27, 1984.
    Supplemental opinion filed on denial of rehearing May 9, 1984.

      Douglas Marti, of Greenville, for appellants.
    Joseph R. Brown, Jr., of Mudge, Riley & Lucco, of Edwardsville, for appellees.
   JUSTICE EARNS

delivered the opinion of the court:

Plaintiffs are defendant Orville J. Robertson’s former wife from his second marriage and their five children. They appeal from a judgment of the circuit court of Montgomery County, sitting without a jury, denying in its entirety their claim brought to set aside certain conveyances which were alleged to have prevented them from collecting the full amount of another judgment of the same court for child support. The complaint filed by the plaintiffs in the present suit alleged, inter alia, fraudulent conduct on the part of each defendant in a series of title transfers, two of which occurred before and two of which occurred after the parties were divorced, so as to defeat Erma’s marital rights. Each disputed conveyance relates to an approximately 48-acre parcel of land located in Montgomery County.

Defendant Clara A. Robertson is Orville’s mother. She was unable to testify in the instant proceeding because of incompetency. Defendant Helen V. Robertson is Orville’s first and current wife with whom he resides in El Paso, Texas. She presently holds record title to the property in question except for two lots which she holds in joint tenancy with defendants Geneva and Everett Neathery, Orville’s sister and brother-in-law.

Defendants’ motion to dismiss this appeal was taken with the case and is based on plaintiffs’ alleged failure to file a timely notice of appeal. The parties have argued various points relating to the nature and effect of a record sheet entry made by the trial court dated August 25, 1982. Defendants contend that the entry is a final judgment from which an appeal must have been prosecuted within the time limit set out in Supreme Court Rule 303 (87 Ill. 2d R. 303), and plaintiffs’ failure to do so requires dismissal of this appeal. Plaintiffs contend that the entry was not a final judgment and, even if it were, the facts of this case warrant special consideration to permit their right to appeal nonetheless.

The trial court took the case under advisement following a trial on the merits in April 1982. Briefs were submitted in May and June. The disputed record sheet entry reflects that reasoned consideration was given to testimony, exhibits, briefs and arguments of counsel. After almost three years of protracted litigation, the court concluded: “[T]he Plaintiffs [sic] claim is denied in its entirety at the plaintiffs [sic] cost; clerk to notify counsel of courts [sic] decision.” Immediately following this entry, dated August 25, 1982, is the following entry: “12/28/82 Copies sent.”

On January 17, 1983, plaintiffs filed a motion to vacate and reenter judgment alleging that neither counsel had any knowledge whatsoever of the court’s decision of August 25 until after the clerk sent copies on December 28. A hearing on plaintiffs’ amended motion to vacate was held on January 24, 1983. Counsel for plaintiffs filed a supporting affidavit and a stipulation which recited the lack of notice. The parties also agreed that plaintiffs’ counsel made several attempts in September and thereafter to determine the status of the case. Following arguments of counsel, the court denied plaintiffs’ motion. Plaintiffs’ notice of appeal was filed January 26, 1983, and was directed to the August 25 and January 24 orders.

While plaintiffs question the finality of the August 25 order, the words used by the court make it clear in whose favor the judgment was entered, and it terminated the litigation.

While the order of the court was brief, lacking in form and not a model of clarity, it nevertheless bears sufficient indicia to indicate that the court was entering a final order. The order recited that plaintiffs’ “claim is denied in its entirety.” We think the denial of a “claim” is to be equated with the dismissal of a “cause” or a “cause of action,” both of which terms have been found to be sufficient to denote finality in an order. (Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 400 N.E.2d 724; Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 347 N.E.2d 286; Kita v. YMCA (1964), 47 Ill. App. 2d 409, 198 N.E.2d 174.) Additionally, the order assessed costs against the plaintiffs, an event that generally accompanies the entry of a judgment or final order. The court’s omission of proper possessive case apostrophes does not create any ambiguity, as alleged. Each plaintiff’s claim was the same and each one was implicitly denied. Supreme Court Rule 304 (87 Ill. 2d R. 304) is inapplicable. Nor does omission of the words “order,” “adjudged,” or “decreed” affect the validity or finality of the judgment. Further, plaintiffs have cited no Illinois authority to support their theory requiring the signature rather than the initials of the judge to render the judgment effective. No statute or Supreme Court Rule provides for a judicial signature or initials to a judgment and, indeed, Supreme Court Rule 272 (87 Ill. 2d R. 272) gives express recognition to the fact that a final judgment may be rendered without the signature of the judge. In any event here there is no dispute about who entered the August 25 judgment on the record sheet. The judge’s initials appear beside the entry. In short, plaintiffs’ arguments attacking the form of the judgment are without merit. The order terminated the litigation between the parties on the merits of the cause so as to leave no doubt the order was a final judgment. Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480; see Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48, 146 N.E.2d 371, 372, and cases cited therein.

Supreme Court Rule 303(a) provides that “the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion.” (87 Ill. 2d R. 303(a).) The record does not establish lack of diligence on the part of plaintiffs’ attorney. To the contrary, the parties agreed that plaintiffs’ counsel made several attempts in September and thereafter to determine the status of the case, although the nature of those attempts is not described. The case was taken under advisement some months before the judgment was entered. Both parties could expect notification of the court’s judgment. The court directed the clerk to send copies of the judgment. Through no fault of either side, both learned of the judgment four months after its entry. These facts bring the case within the rule explained and relied upon in our case of Commonwealth Loan Co. v. Baker (1966), 67 Ill. App. 2d 359, 214 N.E.2d 904, that a judgment is not rendered until such time as it is rendered in public situs of the case. The Commonwealth Loan case followed, in part, the supreme court case of People ex rel. Schwartz v. Fagerholm (1959), 17 Ill. 2d 131, 161 N.E.2d 20, an opinion that predated the adoption of Rule 272. The Fagerholm case, in discussing where, when and how a judgment or decree was entered, held that the judge’s decision in a case must be expressed publicly, in words, and at the situs of the proceedings before it will be considered a rendition of a judgment. At the time the case was decided, a judgment at law became effective when it was orally pronounced in court. In equity, the mere oral pronouncement of the decision was of no effect until the decree was reduced to writing, approved by the chancellor and filed for record. The time and manner of entry of a decision in a declaratory judgment action was made to depend upon whether the requested relief was legal or equitable in nature. Supreme Court Rule 272 was adopted to make uniform the rendition of decisions in actions both legal and equitable. However, the Rule addressed only the time and manner of entry of a final judgment, whether at law or in equity. Thus, Rule 272 made no change in the Fagerholm rule that a judgment must be rendered in public at the situs of the case. In the case under consideration there is no question under Rule 272 that the manner of rendition of the judgment was by a record sheet (docket) entry and that no written judgment was to be prepared and submitted.

Commonwealth Loan Co. v. Baker (1966), 67 Ill. App. 2d 359, 214 N.E.2d 904, was a garnishment action by a judgment creditor to reach funds of a debtor allegedly held by his employer. A hearing was held on July 9. The judge took the case under advisement and took the docket sheet and court file into his chambers, where they remained until November 5 or 6. It was undisputed that plaintiff’s attorney made inquiry of the clerk on several occasions to determine whether there had been any decision in the case, always to learn that the file and docket sheet had not been returned. Finally, on November 5 the attorney contacted the judge concerning the case, and on that day or the next the file and docket sheet were returned to the clerk’s office. It was then that plaintiff’s attorney learned that judgment had been entered against his client by an entry on the docket sheet made by the judge on July 22. It was further learned that the garnishee-defendant, defendant’s employer, had somehow learned of the judgment and after 30 days had delivered the funds in question to the defendant. The garnishee-defendant moved against plaintiff’s appeal because the notice of appeal had not been filed within 30 days after the entry of the judgment. This court, following the Fagerholm case, held that the judgment had not been rendered until November 5 or 6 when the court file and docket sheet had been returned to the clerk’s office and thereby made public. We stated:

“A clerk has no more license or duty to invade the privacy of the Judge’s Chambers to determine if judgment has been rendered, than have counsel for the litigants. *** The rendering of a judgment is not and must not be a secret process, it must be a public act. To hold otherwise would destroy public confidence in the entire judicial system.” 67 Ill. App. 2d 359, 367, 214 N.E.2d 904, 908.

The facts of the case under consideration make the Commonwealth Loan case particularly apt. Here, the plaintiffs’ attorney made several attempts in September and thereafter to determine the status of the case, to no avail. It appears from the record that neither of the parties had any knowledge of the August 25 judgment until the clerk, on December 28, sent copies to them. From those facts and from the requirement of sections 14 and 15 of “An Act to revise the law in relation to clerks of courts” (Ill. Rev. Stat. 1981, ch. 25, pars. 14, 15) (circuit clerk is required to enter of record all judgments as soon after rendition as practicable and is to be adjudged guilty of a petty offense for his failure to do so within 45 days from rendition), we presume that the judgment of August 25 was not made public, and accordingly not rendered, until on or shortly before December 28, the date the notices were sent by the clerk as directed by the judgment. Accordingly, the judgment was not effective for purposes of appeal until its rendition and entry were pronounced by the court through the clerk’s notice on December 28. After learning in January that judgment had been entered, plaintiffs filed their post-trial motion.

For the foregoing reasons we believe plaintiffs have filed a timely notice of appeal after the denial of their post-trial motion which was filed within 30 days after the August 25 judgment which became effective, or was entered, on December 28,1983.

Orville and Helen Robertson were married in 1936 and had 10 children between 1936 and 1959. They have never been divorced. Orville and Erma Robertson were married in 1959 and had five children between 1956 and 1964. Between 1956 and 1964 it appears that Orville was living occasionally with each family. His employment as a traveling salesman and preacher oftentimes required him to be away from both families. After October 1964, Orville’s visits with Erma came only weeks, sometimes months, apart. He continued his periodic living arrangement with Helen, although he did not stay with her permanently until several years later.

In September 1965, Orville, as sole record owner, conveyed his entire interest in the subject property to his mother, Clara, for the recited consideration of one dollar. In September 1966, Clara executed a quitclaim deed to herself and Helen as joint tenants for the recited consideration of one dollar.

In July 1967, Orville filed a complaint for divorce against Erma in the circuit court of Montgomery County. Erma counterclaimed alleging desertion. A hearing followed in December of that year and Orville was ordered to pay temporary support in the amount of $285 per month. He paid temporary support for nearly two years totaling $5,530. Nevertheless, at the final divorce hearing in October 1969, he was found to be in arrears $740 and adjudged to be in contempt and sentenced to a six-month jail term. The court found that Orville and Erma had been lawfully married and that Orville had wilfully deserted Erma during October 1964. Erma was granted a divorce on that basis. Additionally, the court increased Orville’s support obligation to $500 per month. His support payments did not continue after the divorce was granted.

From 1966 to 1977, the subject property remained held jointly by Clara and Helen. In July 1977, Clara executed a quitclaim deed of her remaining interest to Helen for the consideration of “One and other Dollars.” Five months later, Helen executed a warranty deed conveying two lots of the parcel to the Neatherys, who paid $17,500 for them.

Several hearings were held in early 1979 regarding Orville’s 10-year arrearage. He was sentenced and jailed for contempt. Judgment was entered against him in the amount of $44,772.60 for past-due child support in favor of Erma. The amount was reduced by $2,000 for money paid to Erma, and Orville was released from jail.

The instant complaint was filed in November 1979. In their amended complaint, plaintiffs alleged that their cause of action was based upon the facts and circumstances of the above described conveyances, knowledge of which they first acquired at a series of hearings in early 1979. The cause was tried in November 1981, by the court sitting without a jury. Additional evidence was presented in April 1982, and the court granted leave to file briefs. On August 25, 1982, the circuit court denied plaintiffs’ claim in its entirety.

Plaintiffs bring this appeal praying that each conveyance be declared void or, that the record titleholders be declared to hold title only as trustees for the benefit of plaintiffs and that the premises be sold to satisfy the balance due on the judgment for child support or, that Helen be ordered to pay to plaintiffs the proceeds from the sale of the two lots to the Neatherys or, finally, that this cause be remanded for a new trial or for the taking of additional evidence.

Title to the subject property was acquired by Orville in 1961 when Clara and his sisters conveyed their interests in the property to him. When asked why he transferred the property to his mother in 1965, Orville responded, “[S]he like the rest of them I had borrowed money from her and I owed it to her.” He testified that he owed her as much as or more than the value of the land. Clara paid nothing, although the property was appraised to be worth between $6,000 and $8,250 at that time. He testified that there were no agreements as to how Clara was to treat the property nor any tacit understanding that she was to hold it for his benefit or that the transfer was restricted in any way. In fact, he testified, he never discussed the transfer with her prior to the conveyance. He also testified he never discussed the transfer with Helen. He testified he did not pay taxes on the property after 1965. Asked if he conveyed the property to Clara for purposes of avoiding child support, Orville responded that he did not and added, “I did not even know there was such a thing that was hanging over me at the time.” Further, he testified that at the time of this conveyance he intended to continue to provide support to Erma and her children but thereafter simply did not have enough to go around.

The record establishes that before the transfer to Clara, Orville also owned his home, subject to a mortgage, in El Paso. At approximately the same time he conveyed his real estate interest in Montgomery County to his mother, he also attempted to transfer ownership of his El Paso home to his son by his first marriage. According to Orville, he was not afraid that Erma would be able to make any claim to this property, but stated simply, “I could not make the payments on the house”; however, Orville continued to appear as the record owner, and the tax bill still is sent to his home address. Orville admitted that at the time of these two transfers, these properties were the only assets he had. He had no substantial income from 1964 to 1966 though he worked occasionally.

Regarding the 1966 conveyance from Clara to Helen, Orville testified that neither of them ever mentioned it to him before it occurred. He could think of no reason for the transfer “other than because Helen was like a daughter to her and *** she felt like if anything happened to her that it was, it was her wish that Helen have it, I guess.” He testified that he did not know about Clara’s conveyance to Helen until after he resumed living with Helen after leaving Erma. He said he never really discussed the matter with his mother since “that was her business, it wasn’t mine ***.” Helen testified that she paid no value for this joint interest nor could she offer any explanation for the transfer aside from pure love and affection. She testified that she knew nothing about it until after it happened and that there was no prior conversation with Clara regarding any possible interest that Orville may have had in the future. Helen stated that she did not pay real estate taxes on the property from 1966 to 1977 nor was she ever requested by Clara to do so. She did not receive any of the income from the ongoing sharecrop arrangement during that period.

Orville testified about the temporary support that was paid to Erma between 1967 and 1969. Some of it was paid by him and some of it was borrowed from members of his family. Orville testified that he recognized his obligation to support, both before and after the divorce decree, and that if he could have paid support after the decree he would have. “I had borrowed money and just about done everything that I could to keep the family above the water and it just reached the point that I couldn’t do it any more and there was no way that I could.”

Indeed, the record establishes that during this entire period Orville was in dire financial straits. He had suffered a serious heart attack in 1963 and another in 1971. His annual income in 1964 through 1966 was not substantial, though he worked some. He was trying to support two families on an annual income of $4,500 in 1967 through 1969. In 1970 and 1971 he received income of no more than a few thousand dollars. To date, regular income in his name amounts to about $300 per month in disability pay.

Orville testified that from the time Helen received complete title to the subject real estate in 1977, she has been receiving income from a sharecrop arrangement estimated to be about $500 per year. Helen testified likewise. The money is deposited in a joint account that includes Orville’s name. The account is used for household expenses from which expenditures he benefits, although the account is managed by Helen who writes most of the checks. Plaintiffs introduced evidence establishing that Orville had written checks on this account as well as an account kept in Montgomery County from which money was drawn to improve the property and pay taxes there.

As in the case of the conveyance to her in 1966, Helen testified that she paid nothing in 1977, and the conveyance must have been motivated by considerations of love and affection. She had no prior conversation with Clara about the transfer. Since Clara was incompetent at trial, she did not testify. However, Doris Thacker, Orville’s sister, testified that she was present when their mother quitclaimed her remaining interest to Helen. When asked if there was any discussion with her about the reasons Clara had, Doris responded, “She was at that age when she felt it was time that she should make amends as to Helen and to get her affairs straightened out.” She added that Clara never indicated she was conveying the property for Orville’s benefit nor for the purpose of keeping from Erma and her children any benefit from the property.

Finally, with regard to Helen’s conveyance to the Neatherys, Orville testified that he did not know what Helen did with all of the $17,500 purchase money but he knew some of it was used to purchase a savings bond in an amount unknown to him. Helen did not testify specifically about this matter. The bond was not purchased in his name nor was any of the money deposited in the joint account with Helen. He said he did not receive any direct benefit from the Neatherys’ purchase money but probably received some benefit indirectly. Geneva Neathery testified that although she knew of each of the previous conveyances, she really did not know much about Orville and Erma’s money dispute. She testified that at the time of her purchase she was not aware that there was any claim by Erma that the property had originally been conveyed to defraud her. The Neatherys both testified that they relied on good title from Helen. A title examination prior to their purchase revealed clear title in Helen. Geneva testified that they would not have purchased the two lots had she known otherwise.

Throughout their various pleadings, defendants asserted the equitable defense of laches. They also raise it as an issue on appeal. Defendants argue that plaintiffs’ lack of diligence in prosecuting this cause is manifested by their sitting idly by while $500 monthly arrearages accumulated over 10 years, the subject property gradually increased in value and the property was transferred and improved over the years while they waited to file suit until defendants’ “crucial witness” became incompetent to testify. Defendants would have us believe that plaintiffs’ behavior in these respects was calculated and designed to ensure victory in the trial court. We do not believe the record supports this reasoning, nor do we believe the doctrine of laches is applicable to this situation.

Since plaintiffs’ claim is based on allegations of fraud, we think they were required to file their complaint no earlier than the date when they first acquired knowledge of circumstances upon which the alleged fraud is based and not when they may have had knowledge of any of the several conveyances without knowledge of significant additional facts. It was not until the series of hearings in early 1979 that plaintiffs learned about the details surrounding the conveyances. They discovered that neither Clara nor Helen had paid value for their respective interests, that income from the property was being used in part for Orville’s benefit after 1977 and that Orville did not have assets other than the subject property.

Although a substantial lapse of time has occurred since the original conveyance at issue, the record does not establish lack of diligence. Erma testified that she requested money from Orville on his infrequent visits from October 1964 to September 1965. She attempted to enforce Orville’s obligation regularly through the Department of Public Aid, legal aid and the State’s Attorney’s office. She made diligent efforts to acquire Social Security benefits for her children by virtue of Orville’s disability. She caused a mittimus to issue for his arrest in 1972. Contempt proceedings were pending against Orville from 1959 to 1979 for nonsupport as well as failure to produce financial records of income, during which time he continuously lived out of State. These proceedings are all related to the very child support Erma is now trying to collect under the 1979 judgment. Only after Orville submitted himself to the court’s jurisdiction in 1979 and testified about the conveyances did all of the above facts become apparent. The instant suit was filed within several months after these facts were made known to plaintiffs. We cannot say that defendants have met their burden of proving the equitable defense.

Plaintiffs have assigned numerous errors which can be conveniently grouped into one central issue: Do the circumstances before us establish a fraud perpetrated upon Erma’s marital rights? The trial court found that the burden was on the plaintiffs to prove clearly that the initial conveyance was made with the specific intent to defeat Erma’s right to receive support for their minor children. The evidence as presented, said the court, was such as to create a doubt as to Orville’s intention at the time of the conveyance but concluded that suspicious circumstances were not sufficient to show clearly that it was made with the specific intent required. Consequently, plaintiffs’ claim was denied. We are of the opinion that the burden of proof was improperly assigned to plaintiffs and are further of the opinion that defendants failed to rebut the presumptive fraud created by the initial conveyance.

With respect to her marital rights, the law affords the same protection to a wife as it does to a creditor, and it is generally held that a disposition of property made with specific intent to defeat such rights may be set aside. (See Laterza v. Murray (1954), 2 Ill. 2d 219, 117 N.E.2d 779; Deke v. Huenkemeier (1919), 289 Ill. 148, 124 N.E. 381.) We agree that plaintiffs are in a position not unlike that of continuing creditors by virtue of their relationship as wife and children of Orville. Plaintiffs’ right to receive support accrued by reason of the 1959 marriage at which time, the evidence proves, two children had already been born of Erma and Orville. Orville’s obligation to support these children was not contingent upon the judgment of any court directing him to provide such support. The 1967 temporary order and the 1969 divorce decree, however, provide conclusive evidence of the amount of support required. Further, the decree is conclusive evidence of his desertion of his family in October of 1964. We are persuaded that plaintiffs should be afforded the same protection as that which would be afforded a creditor under similar circumstances.

Regarding Erma’s relationship to Orville:

“There are two distinct classes of cases whereby a conveyance by a debtor may be set aside as fraudulent vis-a-vis creditors. When there is consideration for the conveyance, the creditor must prove that there was an actual intent to defraud, hinder, or delay creditors. In those cases where there is no consideration, or a grossly inadequate consideration, the transfer is deemed to be voluntary. If it appears that the rights of creditors directly tend to be or are impaired, the question of actual fraud or fraudulent intent is immaterial. The fraud is presumed from the circumstances. The principle involved is that one must be just before he is generous. If the transfer impairs the rights of creditors, this principle is violated and there is what is usually referred to as a ‘fraud in law.’ Birney v. Solomon, 348 Ill. 410, 181 N.E. 318 (1932); Wilkey v. Wax, 82 Ill. App. 2d 67, 225 N.E.2d 813 (1967); Second Nat. Bank of Robinson v. Jones, 309 Ill. App. 358, 33 N.E.2d 732 (1941).” (Till v. Till (1967), 87 Ill. App. 2d 358, 360-61, 231 N.E.2d 641, 642-43.)

See also Thompson v. Williams (1955), 6 Ill. 2d 208, 127 N.E.2d 457; Montgomery Ward & Co. v. Simmons (1970), 128 Ill. App. 2d 186, 261 N.E.2d 555.

Moreover, where a husband makes a voluntary conveyance to his wife and afterward becomes insolvent, the burden of proof is on him to disprove the implication of fraud as to creditors at the time of making the conveyance. (McKey v. McKean (1943), 384 Ill. 112, 123, 51 N.E.2d 189, 194; Dillman v. Nadelhoffer (1896), 162 Ill. 625.) A similar situation is presented here with regard to a voluntary conveyance from a son to his mother for a grossly inadequate consideration. Not only does this relationship excite suspicion, but plaintiffs’ evidence proved that the very conveyance at issue was made at a time when Orville’s assets consisted solely of that property and his equitable interest in his home in Texas which he attempted to place in his son’s name at approximately the same time. These two transfers rendered him insolvent. Erma’s rights were clearly placed in jeopardy. The debt allegedly owed to his mother equal to the value of the property, according to his testimony, was undocumented. We cannot consider such testimony, nor Helen’s general assertion that he owed his mother money, sufficient to overcome the implication of fraud. “[T]he law requires in cases of this nature that the proof be clear and satisfactory that the [creditor] has a valid, subsisting debt and where the debtor is thereby rendered insolvent by the preference, the burden of disspelling the implication of fraud as against the pre-existing creditors is upon the debtor and his grantee.” (Thompson v. Williams (1955), 6 Ill. 2d 208, 214, 427 N.E.2d 457, 471.) We can infer from the evidence present that Clara’s testimony in this regard would have been cumulative and of no substantial import. That Orville paid temporary support from 1967 to 1969 under court order and under threat of citations for contempt has little bearing on his alleged good intentions to provide for future support at the time of the conveyance. Nonetheless, as stated in Birney v. Solomon (1932), 348 Ill. 410, 415, 181 N.E. 318, 320, “[w]hat may be in the mind of the grantor when he makes a voluntary conveyance to his wife or child [or mother] is immaterial, for if it results in hindering, delaying or defrauding creditors it must be regarded as fraudulent. A donor may make a conveyance with the most upright intentions, and yet *** it may be set aside as fraudulent. [Citations.]”

The burden of proof in this case was shifted to the defendants when plaintiffs were able to prove in their prima facie case that the initial conveyance was for no consideration, or a grossly inadequate consideration if we accept the consideration recited in the deed, and that by the conveyance, and especially a conveyance to another family member, Orville was left with insufficient assets to meet his obligation to support his children. The presumption of fraud has not been overcome.

The conveyance in 1965 from Orville to Clara has been established as fraudulent in law as to Erma’s marital rights. The evidence, however, failed to sustain fraud in fact, that Orville maintained a specific intent to deprive Erma of her marital rights; that Clara and Helen participated with fraudulent intent; or that Neatherys were anything but bona fide purchasers for value. Accordingly, these equities must be recognized. A transfer of property fraudulent and void as to creditors is nevertheless valid as between the parties thereto. (DeMartini v. DeMartini (1943), 385 Ill. 128, 52 N.E.2d 138.) The initial conveyance was valid as between Orville and Clara. Likewise, each subsequent conveyance was valid as between the grantor and grantee. The fraud in law related to Erma’s right to receive support. She did not lose that right because of the transfers, nor were Helen, Clara or the Neatherys obliged to acknowledge Erma’s rights by renouncing ownership or forebearing purchase, absent proof of fraudulent intent. Her judgment may be enforced against the current title holder to the same extent as it might have been had the property remained in Orville’s hands all along. Therefore, this cause is remanded for entry of an order establishing a lien on the subject real estate in favor of Erma for the amount of the judgment, less $2,000, and less that portion purchased and improved by Neatherys, and for whatever proceedings are necessary for the execution of the judgment. Interest on the judgment is to be awarded to plaintiffs.

Plaintiffs pray finally for attorney fees under section 508(a)(2) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(2).) The statute provides for discretion to be exercised by the court. Plaintiffs have not persuaded us that the court abused its discretion in denying their motion. Nor are we persuaded that it would be equitable to award additional fees to plaintiffs after considering the financial resources of the parties now.

The judgment of the circuit court of Montgomery County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

JONES and KASSERMAN, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE EARNS

delivered the opinion of the court:

Defendants have called our attention to what they perceive to be an ambiguity regarding the lien imposed on the property. Helen does not own two lots in joint tenancy with the Neatherys; however, this oversight does not affect our disposition. Helen presently holds record title to the entire parcel except for two lots which she sold to the Neatherys in 1977. Regardless of the amount of acreage retained by Helen, the lien is to attach to the property she holds, or proceeds therefrom, if susceptible to tracing or identification. (See 37 C.J.S. Fraudulent Conveyances sec. 278 (1943).) The Neatherys are protected as bona fide purchasers, and as such their property is not subject to attachment to enforce the judgment for child support. See, e.g., Lyon v. Moore (1913), 259 Ill. 23; see also Ill. Rev. Stat. 1983, ch. 59, par. 5.

JONES and EASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL JUSTICE CAMPBELL

license: Public Domain

text:
    THE CITY OF CHICAGO, Plaintiff-Appellee, v. THADDEUS PUDLO et al., Defendants-Appellants.
    First District (1st Division)
    No. 82 — 2256
    Opinion filed December 30, 1983.
    Supplemental opinion filed on denial of rehearing May 7, 1984.

      Dennis M. Doherty, of Chicago, for appellants.
    James D. Montgomery, Corporation Counsel, of Chicago (Jerome A. Siegan, Frank W. Nagorka, and Allison K. Bethel, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendants Thaddeus Pudlo and Walter J. Pudlo were found guilty of violating chapter 130, sections 6.1, 6.4 and 9 of the Municipal Code of Chicago (Chicago, Ill., Municipal Code 1980, ch. 130, secs. 6.1, 6.4, 9) which regulates wholesale and retail food establishments in the city. The issues on appeal include: (1) whether chapter 130 — 9 of the Municipal Code which authorizes warrantless searches of food establishments is unconstitutional; (2) whether the issuance of an administrative search warrant was proper; (3) whether lack of counsel at trial constituted reversible error; (4) whether trial errors deprived defendants of due process of law; (5) whether the trial court acted properly with respect to possible jury contamination; and (6) whether defendants are entitled to return of their seized weapons.

Three separate complaints were filed in this case. On July 1, 1981, Thaddeus Pudlo was charged with two .violations of the Municipal Code. Count I alleged a violation of chapter 130 — 9 for refusing to allow an inspection of his food establishment. Count II alleged a violation of chapter 16 — 5 for obstructing an inspector in the performance of his duties. On July 15, 1981, a complaint was filed against both defendants charging them with three violations of the Municipal Code. Count I alleged a violation of chapter 130 — 6.1 for failure to hold a license for the business; count II alleged a violation of chapter 130 — 6.1 and prayed for judgment finding a daily violation for not holding a license; count III alleged a violation of chapter 130 — 6.3 for failure to pay a truck license fee. The third complaint was filed on July 15, 1981, against both defendants charging them with three additional violations of the Municipal Code. Count I alleged a violation of chapter 130 — 6.16 for having a dog on the premises; count II alleged a violation of chapter 130— 6.4 for unsanitary conditions on the premises; and count III alleged a violation for chapter 130 — 6.18 for rubbish on the premises.

On July 15, 1981, an inspection of defendant’s business, Pudlo Food Products, was conducted by the Department of Consumer Services for the city of Chicago (Department). The inspection was made pursuant to the issuance of a warrant and with the accompaniment of Chicago police officers. The record is unclear as to events transpiring before this date except that unsuccessful attempts were made to gain access to the defendants’ premises for purposes of making an inspection.

John R. Colletti, supervising food inspector for the Department, testified that he, along with Inspector John Sharkey and Chicago police officers, conducted the July 15, 1981, inspection of defendants’ food establishment. Colletti enumerated his findings at trial and summarized those findings as follows: “And the place was not kept neat and clean.” Inspector Sharkey and Officers Eugene Seyfert and Judith Schultz corroborated Colletti’s testimony regarding the condition of defendants’ premises.

Defendants first argue that their convictions should be reversed because chapter 130 — 9 of the Municipal Code violates the fourth amendment of the United States Constitution because that chapter authorized warrantless searches of any establishment within the city of Chicago. The provision of chapter 130 — 9 pertinent to this case provides:

“A representative of the Department of Health, after proper identification, shall be permitted to enter, at any reasonable time, any establishment within the City of Chicago for the purpose of making an inspection to determine compliance with this ordinance. He shall be permitted to examine the records of the establishment to obtain pertinent information relating to food, water, beverages and supplies received or used, and persons employed.”

In light of the fact that the inspection in this case was conducted pursuant to a warrant, it will not be necessary to reach the issue as to the constitutionality of warrantless searches under chapter 130 — 9.

Defendants’ second argument is that because there was no probable cause to issue the search warrant, the trial court erred in denying defendants’ motion to quash the warrant. It is clear that an administrative inspection warrant is to issue only upon a showing of probable cause. (Donovan v. Federal Clearing Die Casting Co. (7th Cir. 1981), 655 F.2d 793.) Although the degree of probable cause that is required is unclear (Burkart Randall Division of Textron, Inc. v. Mar shall (7th Cir. 1980), 625 F.2d 1313), it is clear that probable cause in the criminal sense is not required for the issuance of an administrative inspection warrant. (Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 56 L. Ed. 2d 305, 98 S. Ct. 1816). In the Barlow’s case, the United States Supreme Court held that “probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular [establishment].’ ” 436 U.S. 307, 320, 56 L. Ed. 2d 305, 316, 98 S. Ct. 1816, 1824, citing Camara v. Municipal Court (1967), 387 U.S. 523, 538,18 L. Ed. 2d 930, 941, 87 S. Ct. 1727,1736.

In determining the reasonableness of a particular inspection, and in turn, the existence of probable cause for that inspection, the need for the inspection must be balanced against the invasion which the search entails. (Camara v. Municipal Court; see also Morris v. United States Department of Labor (S.D. Ill. 1977), 439 F. Supp. 1014.) The Camara court added that a valid public interest would justify issuance of a suitably restricted warrant.

The public interest asserted by the government is the protection of the health and safety of consumers through regulations such as approved sources of food supplies and storage procedures to prevent contamination of food products. The scope of the intrusion is limited by the Code to areas where there is food production or storage. The record disclosed that the search was initially made pursuant to a computer listing which named all food establishments in Chicago. At the hearing, Inspector Colletti stated that defendants had been issued a license to operate a food establishment in 1979 and 1980. Colletti noted, however, that the defendant’s license had been suspended in 1980 for unsanitary conditions and had never been reinstated. Colletti further testified that defendants were still operating the food establishment. The search warrant was then issued over defendants’ objections.

The record reveals that the inspection was initially attempted pursuant to an administrative plan to ensure compliance with Code regulations and therefore not arbitrary. Defendants’ refusal to permit entry at that time prompted the need to apply for a warrant. It would appear that the court considered the allegations presented at the hearing to have been sufficient for probable cause under the circumstances and we find no error in that ruling.

Defendants next contend that it was reversible error for the trial court to deny them appointed counsel to assist in their defense. Defendants argue that there was no voluntary and knowing waiver of counsel, but that they in fact made it clear throughout the proceedings that they wanted legal assistance. Defendants further argue that they were not given the opportunity to fill out an affidavit of assets and liabilities in order to secure the services of a public defender.

The city asserts, however, that the sixth amendment does not obligate courts to furnish counsel for indigent defendants in quasi-criminal actions where there is no possibility of imprisonment. (City of Danville v. Clark (1976), 63 Ill. 2d 408, 348 N.E.2d 844, cert. denied (1976), 429 U.S. 899, 50 L. Ed. 2d 184, 97 S. Ct. 266.) The city further argues that it was through defendants’ own actions that the requisite affidavit for establishing indigency was not completed.

The constitutional right to appointed counsel is limited to criminal proceedings which result in actual imprisonment (Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, 92 S. Ct. 2006; see also Scott v. Illinois (1979), 440 U.S. 367, 59 L. Ed. 2d 383, 99 S. Ct. 1158), and the statutory right to counsel is similarly limited. (See Ill. Rev. Stat. 1981, ch. 38, pars. 103 — 4, 113 — 3(b); ch. 34, par. 5604.) The issue of an indigent defendant’s right to appointed counsel in a prosecution for violation of municipal ordinances has not been ruled upon by the courts of this State. The determination of whether a party is entitled to appointed counsel, however, is a matter within the trial court’s discretion which must be delicately decided always with a mind toward protection of the indigent party from any possible impairment. See People v. Whitney (1974), 24 Ill. App. 3d 685, 321 N.E.2d 317 (abstract).

In the instant case, the record is replete with instances where the various trial judges who participated in this matter admonished both defendants of their need for counsel. The record indicates that defendants failed and refused to comply with the eligibility requirements for appointment of counsel by not supplying the requisite information regarding their financial situation. The record also shows that the trial court made attempts to ascertain the indigency of defendants, but defendants refused to cooperate in the court’s inquiry. The trial court, in a further attempt to determine defendants’ financial situation, requested that defendants complete the requisite affidavit for appointment of a public defender. Again, defendants failed to cooperate with the court by choosing not to complete the form. Since defendants failed and refused to supply the basic information required to support their request for court appointed counsel due to their indigency, the court was justified in refusing to appoint a public defender or other counsel to assist defendants in their defense.

Defendants next contend that the cumulative effect of trial errors deprived them of their due process right to a fair trial. The errors enumerated in defendants’ brief amount to an allegation that the rules of evidence were not strictly followed. Defendants argue that the errors would not have occurred had they been represented by counsel. The city counters by asserting that errors of which defendants complain have been waived for failure to include them in their post-trial motion.

Generally, the failure by a defendant to raise an issue in his post-trial motion constitutes a waiver of that issue and cannot be urged as a ground for reversal on review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Rule 615(a) (87 Ill. 2d R. 615(a)) provides that a reviewing court may consider issues which amount to plain error affecting substantial rights although the issues were not included in the defendant’s post-trial motion.

After examining the record before us, we are not persuaded that the alleged errors are plain errors affecting defendants’ right to a fair trial, and we see no reason to depart from the general rule that issues not properly preserved for review are waived.

Defendants also contend that the trial court erred in denying their motion for mistrial which they based upon an allegation of jury contamination. Defendants argue that the trial court failed to adequately investigate the defendants’ charge that the city’s main witness was conversing and laughing with the deputy sheriff in the presence of the jury during a side bar.

The decision whether or not to grant a mistrial rests within the sound discretion of the trial court based upon the particular circumstances of the case. (Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 410 N.E.2d 249.) A mistrial should be declared only as the result of some occurrence of such character and magnitude that a party is deprived of its right to a fair trial. (Benuska v. Dahl; Needy v. Sparks (1977), 51 Ill. App. 3d 350, 366 N.E.2d 327.) The moving party must demonstrate actual prejudice as a result of the ruling or occurrence. (Williams v. Board of Education (1977), 52 Ill. App. 3d 328, 367 N.E.2d 549.) Finally, the trial court’s ruling on a motion for mistrial will not be disturbed on review absent a clear abuse of discretion. Stuart v. Rahn (1974), 16 Ill. App. 3d 315, 306 N.E.2d 66.

The record reveals that immediately after defendants brought the allegation of jury contamination to the attention of the court, the court called for a side bar with both defendants, the prosecutor, Colletti and the deputy sheriff participating. Defendants account of the occurrence was categorically denied by Colletti and the deputy sheriff. Thereafter, the court denied defendants’ motion for mistrial. Later in the trial, Donald Warden, a spectator, testified that he observed Colletti and the deputy sheriff conversing and laughing while a side bar was taking place. The court then conducted a voir dire of the jurors and alternates individually. The court asked each juror and alternate essentially the following question:

“There’s been an allegation that on Tuesday morning when the court and the defendant and the prosecutor and the court reporter were in chambers here discussing a legal matter, the deputy sheriff and the first witness Mr. Colletti were talking and laughing in the presence of the jury. Do you remember such an incident?”

On the basis that 13 of the jurors said they did not remember such an incident, and the one juror who said: “That I’m not sure,” the court again denied the defendant’s motion. Apparently, the court was satisfied after conducting the voir dire that no prejudice to defendants had occurred. We are not persuaded that the court acted improperly in attempting to ascertain whether or not there had been jury contamination.

Defendants’ next contention is that they are entitled to the return of two firearms which were seized by police during the city’s inspection of defendants’ business. The record reveals that the weapons were seized from defendants’ upstairs living quarters. At trial, the court granted the motion to suppress the firearms. Thereafter, pursuant to a request from an assistant State’s Attorney who was assigned to that courtroom, the court issued an order to confiscate and destroy the weapons. In denying defendant’s motion for a new trial, the court stated:

“As far as the return of your weapons sir, I did suppress those weapons. As far as evidence being presented in your case, there was an order to confiscate and destroy. Your legal remedy would be a civil action in replevin to recover those weapons. I would tell you had you been registered properly with all the authorities, I would have returned those weapons to you.”

The record is clear in this case that defendants filed a timely motion for return of their weapons at the conclusion of the trial. The court denied the motion and directed defendants to seek relief in civil court. In People v. Jackson (1975), 26 Ill. App. 3d 845, 849, 326 N.E.2d 138, 141, a case in which defendant was similarly directed by the court to seek the return of his revolver in civil court, the court stated:

“We perceive no justification for the imposition of such a procedural burden *** The unmistakable trend of recent court procedures is to avoid the duplication of legal controversies when a disposition of the subject matter and personal property before the court can be made conveniently.”

We believe the holding in Jackson is applicable to the case at bar. There was no adequate showing as to why the trial court should not have conducted a hearing on this issue in light of the fact that the weapons were seized during the inspection by the city. We do not favor the splitting of cases in instances, such as this, where all the necessary evidence to decide the matter is before the trial court. Accordingly, we reverse the order of the trial court which denied the defendants’ motion seeking return of their weapons and direct the circuit court to conduct a hearing as to the merits of the issue.

Defendants finally ask this court to vacate the conviction of Walter J. Pudlo for violation of chapter 130, section 9 of the Code since he was never charged with that violation. In view of the fact that the city confesses error as to this particular conviction, the conviction is hereby vacated.

For the foregoing reasons, that part of the circuit court’s judgment based on the motion for return of defendants’ weapons is reversed and remanded with directions. Additionally, the conviction of Walter J. Pudlo is vacated and in all other respects, the judgment of the circuit court is affirmed.

Judgment affirmed in part; vacated in part; reversed and remanded with directions.

BUCKLEY, P.J., and McGLOON, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JUSTICE CAMPBELL

delivered the opinion of the court:

Subsequent to the filing of this opinion, defendant Thaddeus Pudlo filed a petition for rehearing urging, inter alia, that this court specifically address the issue whether warrantless searches of food establishments under section 130 — 9 of the Municipal Code of Chicago (Chicago, Ill., Municipal Code (1980), ch. 130, sec. 9) are constitutional. We have reconsidered the issue and, in order to give full consideration to the points raised by defendant, the City was requested to file an answer thereto, and defendant was allowed to file a reply, and despite the fact that the inspection in this case was conducted pursuant to a warrant, we now address the issue.

Defendant argues that section 130 — 9 is unconstitutional in that it violates the fourth amendment of the United States Constitution, which requires a warrant for inspections of commercial premises which are not within a “pervasively regulated business.” (United States v. Biswell (1972), 406 U.S. 311, 316, 32 L. Ed. 2d 87, 92, 92 S. Ct. 1593, 1596; see also Donovan v. Dewey (1981), 452 U.S. 594, 69 L. Ed. 2d 262, 101 S. Ct. 2534.) Defendant claims that the food industry is not within the exception to the warrant requirement and therefore the ordinance is unconstitutional and his conviction thereunder must be vacated. In its response to the petition for rehearing, the City argues that warrantless searches of food establishments under the Code are constitutional and therefore defendant’s conviction should not be vacated. We agree.

At the outset we note that at oral argument counsel for defendant alleged that defendant’s food establishment was not open to the public. This allegation was not clearly presented by defendant as a basis for contending that a warrant was required to inspect defendant’s premises. Nevertheless, the record before this court supports the contrary. At trial, two witnesses, John Sharkey, a Consumer Services officer, and John R. Colletti, a Consumer Services inspector, each testified that they observed members of the public going to and from the premises carrying packages. On the basis of this evidence, the jury could have found that defendant’s food establishment was open to the public and thus subject to public inspection.

In the cases, United States v. Biswell and Colonnade Catering Corp. v. United States (1970), 397 U.S. 72, 25 L. Ed. 2d 60, 90 S. Ct. 774, the Supreme Court ruled that businesses dealing with firearms or liquor were subject to warrantless inspections. (See also Daley v. Berzanskis (1971), 47 Ill. 2d 395, 269 N.E.2d 716, cert. denied (1971), 402 U.S. 999, 29 L. Ed. 2d 166, 91 S. Ct. 2173.) These two cases upheld statutorily authorized warrantless searches and became known as the Biswell-Colonnade exception. The rationale behind the Biswell-Colonnade exception is implied consent. By accepting the benefits of a trade which is closely regulated, the business person also accepts the burden of such regulation and thereby impliedly consents to warrantless inspections. (Almeida-Sanchez v. United States (1973), 413 U.S. 266, 37 L. Ed. 2d 596, 93 S. Ct. 2535.) The Supreme Court also noted that some regulatory statutes “apply only to a single industry, where regulations might already be so pervasive that a Colonnade-Biswell exception to the warrant requirement could apply.” (Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 321, 56 L. Ed. 2d 305, 317, 98 S. Ct. 1816, 1825.) The court added that the reasonableness of a warrantless search provision in a regulatory statute “[would] depend upon the specific enforcement needs and privacy guarantees of each statute.” Marshall v. Barlow’s, Inc. (1978), 436 U.S. 307, 321, 56 L. Ed. 2d 305, 317, 98 S. Ct. 1816,1825.

We must therefore consider whether the food industry is one in which regulations are so pervasive that subjecting businesses within the industry to warrantless inspections would be constitutional. The parties have not offered, nor has our research revealed any Illinois cases on this issue. Therefore, an examination of cases from other jurisdictions will be helpful. One such representative case is United States v. New England Grocers Supply Co. (D. Mass. 1980), 488 F. Supp. 230.) In New England Grocers, defendants were convicted of causing certain food stuffs to become adulterated while being held for sale after shipment in interstate commerce. Defendants attacked the constitutionality of a Federal statute which, like the one in the instant case, authorized the warrantless administrative search of their warehouse. The district court upheld the constitutionality of the search noting “the pervasive nature and long history of federal regulation of the food and drug industry, *** and *** the urgent public health interests that are served by the inspections.” (488 F. Supp. 230, 238.) With regard to the public health interests, the district court adopted the following statement by the court in United States v. Business Builders, Inc. (N.D. Okla. 1973), 354 F. Supp. 141,143:

“It would be an affront to common sense to say that the public interest is not as deeply involved in the regulation of the food industry as it is in the liquor and firearms industries. One need only to call to mind recent cases of deaths occurring from botulism. Modern commerce has devised such an efficient and rapid means of distribution of food products to the consumer that a batch of contaminated food may cause widespread illness and death before the public can be warned and the contaminated products removed from the market.”

Other jurisdictions have similarly determined that warrantless administrative searches of establishments within the food industry are constitutional. See cases cited in United States v. New England Grocers Supply Co. (D. Mass. 1980), 488 F. Supp. 230, 238; contra, United States v. Roux Laboratories, Inc. (M.D. Fla. 1978), 456 F. Supp. 973.

We agree "with the reasoning of the courts in the New England Grocers and the Business Builders cases. Defendant’s argument that the regulation of the food industry in Chicago is somehow less important or less necessary than regulation of the firearms or liquor industries is untenable. The food preparation industry in Chicago is heavily regulated by ordinance. Regulations in chapter 130 — 6.4 of the Code (Chicago, Ill., Municipal Code (1980), ch. 130, sec. 6.4) govern the entire industry from requiring approval for sources of supply, to specifying precautions to be taken to prevent contamination. Further, the Code incorporates by reference the Federal standards for wholesomeness and sanitation within the industry. That there has been long-standing regulation of the food industry, and that such regulation is a necessary and proper function of the government’s police power to protect the welfare of its citizens cannot be contradicted. As noted by our supreme court in Daley v. Berzanskis (1971), 47 Ill. 2d 395, 269 N.E.2d 716, cert. denied (1971), 402 U.S. 999, 29 L. Ed. 2d 166, 91 S. Ct. 2173, a case in which the warrantless inspection of liquor businesses was held constitutional:

<<*** any restriction or requirement such as consent to a warrantless search, which is necessary to protect public health, safety and morals, is a reasonable exercise of the police power of the State.” (47 Ill. 2d 395, 399.)

Therefore, we hold that based on the long-standing and pervasive regulation of the food industry and mindful of the great public interest served by such regulation, section 130 — 9 of the Municipal Code, which authorizes the warrantless inspections of food establishments within the city of Chicago is not unconstitutional for any of the reasons assigned by defendant.

This is not to say that the food industry is subject to the unfettered discretion of the city inspectors. The Code is specific in limiting the inspections to reasonable times, to the inspection only of the books and records of the business, and to the inspection only of areas where food preparation or storage is conducted.

Defendant’s petition for rehearing also requests a reevaluation of this court’s decision on all of the remaining issues raised on appeal. Because defendant’s various contentions were considered by us in rendering our opinion, we see no purpose to be served in reconsidering those issues. Therefore, defendant’s request is denied.

Accordingly, the decision of the circuit court finding defendant guilty of violating section 130 — 9 of the Code is affirmed.

Judgment affirmed.

BUCKLEY, P.J., and McGLOON, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOBBIE G. DAVIS, Defendant-Appellant.
    Fourth District
    No. 4 — 83—0647
    Opinion filed April 4, 1984.
    Daniel D. Yuhas and Jonathan Haile, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John B. Leonard, State’s Attorney, of Mt. Sterling (Robert J. Biderman, of State’s Attorneys Appellate Service Commission, of counsel), for the Peopie.
   JUSTICE GREEN

delivered the opinion of the court:

The principal issue in this case is whether the circuit court may properly revoke a sentence of probation conditioned on the defendant’s securing inpatient treatment for drug and alcohol dependency problems, for the sole reason that there are no treatment facilities in the State which are willing to accept the defendant for inpatient treatment. We conclude that probation revocation is proper under these circumstances where the principal condition of probation has been frustrated. Accordingly, we affirm.

On June 21, 1983, the defendant was placed on 30 months’ probation following a conviction of aggravated battery. On July 18, 1983, the defendant admitted that he violated the terms of his probation in that he committed the offenses of battery and obstruction of a peace officer in the performance of his official duties on June 24, 1983, and June 28, 1983, respectively. His probation was therefore revoked.

Following a hearing held on August 1, 1983, the defendant was, however, sentenced to a new 30-month period of probation. In addition to the usual terms, the probation order also provided that “[t]he defendant shall participate in, cooperate with and complete the program of rehabilitation prescribed by Gateway House, Springfield, Illinois, and *** defendant’s performance shall be monitored through T.A.S.C., Inc., [Treatment Alternatives to Street Crime, Inc.] during his period of probation and T.A.S.C., Inc. shall provide the State’s Attorney and Probation Office with regular reports, at least quarterly, of the defendant’s performance.” The defendant was further ordered to spend the first 120 days of his probation in the Schuyler County jail, subject to vacation of the balance of the 120-day term upon his entering the Gateway House program, and although not a condition of probation, “it [was the] court’s considered recommendation that the defendant shall be granted no passes or liberty prior to six months from the commencement of his participation in the Gateway House Program.”

On August 25, 1983, the court, on its own motion, after being advised that Gateway had determined that defendant did not qualify for its program of treatment and that defendant had been rejected from the Gateway facility (Kedzie House in Chicago) to which he had been sent, ordered that T.A.S.C., Inc., submit defendant to McFarland Zone Center in Springfield, “for inpatient evaluation and treatment as determined necessary and appropriate as a condition of probation ***.” In a further order dated August 31, 1983, the court stated that it had been advised that defendant “has been determined not serviceable” by both Gateway and McFarland, and on its own motion ordered the defendant to serve the balance of the 120-day sentence previously imposed as a condition of his probation.

On the same day, the State filed a petition for revocation of the defendant’s probation, alleging that defendant violated the terms of his probation in that he “failed to participate and cooperate with the rehabilitation prescribed by Gateway House, Springfield, Illinois.” A hearing was held on this petition on September 6, 1983. The State’s sole witness was Michael S. Straton. Straton stated that he is area coordinator for T.A.S.C., Inc., which services the Eighth Judicial Circuit (which includes Brown County). T.A.S.C. had previously serviced clients for placement in the Gateway House facilities in both Chicago and Springfield. Straton had been involved with the treatment of defendant since May 1983, when defendant was placed at the Western Illinois Council on Alcoholism at Quincy. Eventually, following some evaluations concerning defendant’s emotional wellbeing, he was found to be “no longer appropriate” for the facility and was discharged and returned to Mt. Sterling, his home town. The defendant was subsequently evaluated by the Brown County mental health center and found to be in need of “drug rehabilitation.” The center recommended attendance at a program such as Gateway House.

Straton then attempted to obtain defendant’s admission to the Gateway House facility in Chicago, known as Kedzie House. When Straton saw defendant following the defendant’s rejection from the Kedzie House facility, defendant told Straton that (apparently during the interview process at Kedzie House) he made statements to the effect that “he did have a fear of getting in fights with people, that if he went to Gateway, somebody would say something to him — confront him in a verbal way that would make him angry” and spoke of “his fear that he would harm someone.” Straton believed that the above statements were a material factor in defendant’s rejection by the Gateway House program.

According to Straton, McFarland Zone Center declined to provide defendant with treatment because he “did not fall within a criteria of a health treatment, but that he needed some type of controlled environment to meet his needs.” On the date of the hearing, T.A.S.C. discharged defendant by means of a “mutual discharge,” which meant that T.A.S.C. had made unsuccessful efforts to place the defendant in the programs which it felt were attuned to his age, type of treatment required, and criminal history. T.A.S.C. had no alternative “but to say basically that we can no longer provide service for him.” Straton responded in the negative to a question of the court as to whether Straton knew of any programs offered in Illinois which, in Straton’s professional opinion, would provide services that would meet the defendant’s needs. The defendant did not present any evidence.

At the conclusion of the hearing, the court revoked defendant’s probation. Following a sentencing hearing held on the same day, the defendant was sentenced to three years’ imprisonment.

The defendant was 20 years old at the time of his conviction of the underlying offense of aggravated battery. Prior to committing this offense, the defendant had been convicted of a number of other misdeeds, including battery, reckless driving, theft of property worth more than $150, and disorderly conduct.

The defendant first asserts that the trial court abused its discretion in revoking his probation because he engaged in no culpable or wilful misconduct during his final term of probation. In support of this assertion, the defendant relies on section 5 — 6—2(c) of the Unified Code of Corrections, which provides:

“The court may at any time terminate probation or conditional discharge if warranted by the conduct of the offender and the ends of justice ***.’’ (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6— 2(c).)

The defendant’s position is premised on the assumption that the above statutory language proscribes the revocation of probation in the absence of a wilful violation of the conditions of probation. This argument, however, fails to take into account the following statutory language relevant to probation revocation, also appearing in the Unified Code of Corrections:

“Probation *** shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial obligations upon the offender unless such failure is due to his wilful refusal to pay.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 6— 4(d).)

The above statutory provisions are obviously in pari materia, since they both relate to the circumstances under which probation may be revoked, and in pari materia statutes should be construed so as to give effect to all statutory provisions in order that no portions of the statutes are rendered inoperative, superfluous, or ineffective. (See Gillespie v. City of Maroa (1982), 104 Ill. App. 3d 874, 433 N.E.2d 688.) It follows that a construction of subsection 5 — 6—2(c) of the Unified Code of Corrections as mandating wilful misconduct on the part of a defendant as a prerequisite of probation revocation would be violative of the above tenets of statutory construction, because such an interpretation of this subsection would render subsection 5 — 6—4(d) superfluous and unnecessary.

In support of his argument that the revocation of his probation was an abuse of the trial court’s discretion, defendant also relies on People v. Welch (1979), 78 Ill. App. 3d 184, 397 N.E.2d 94, but that case is inapposite because unlike in the instant case, it had not been determined that there were no available treatment alternatives for the defendant’s problems. Thus, none of the authorities cited by defendant provides support for his position that under Illinois law, one’s probation may not be revoked in the absence of a wilful violation of the terms of probation.

While the probationer’s culpability in violating the conditions of his or her probation ordinarily occupies a preeminent position among the factors considered in determining whether probation should be revoked, an approach to the probation revocation question which regards this factor as the sole touchstone of whether a probation violation has occurred ignores the fact that circumstances other than conduct chargeable to the probationer may frustrate the purposes of probation. The most important purpose of probation is, of course, to bring about the rehabilitation of the offender without sentencing him or her to prison. Also of importance is the protection of the public from the type of conduct on the part of the defendant which led to the defendant’s being placed on probation. (See People v. McClendon (1970), 130 Ill. App. 2d 852, 265 N.E.2d 207.) In still other circumstances, probation may be imposed for reasons having little, if any, relationship to the goals of rehabilitating the offender or protecting the public from the type of crimes which the offender committed, such as where a defendant is placed on probation solely to enable him to continue support of his family, thereby preventing the members of his family from becoming public charges. See, e.g., Genet v. United States (10th Cir. 1967), 375 F.2d 960.

When the varied purposes of probation are fully considered, it becomes readily apparent that nonculpable conduct on the part of a probationer may frustrate the goals of a probationary sentence. For instance, criminal acts committed while a defendant is insane, although not providing a basis for the imposition of criminal sanctions, indicate nonfulfillment of both the rehabilitative purpose of probation and the objective of protecting the public from violent acts on the part of the probationer. (See State v. O’Meal (1977), 116 Ariz. 307, 569 P.2d 249; State ex rel. Lyons v. Department of Health & Social Services (Wis. App. 1981), 105 Wis. 2d 146, 312 N.W.2d 868.) Likewise, the inability of a probationer to support his family, even when due to circumstances beyond the probationer’s control, frustrates the fundamental purpose of the defendant’s probation where that purpose is to prevent the defendant’s family from becoming public charges. (See Genet.) Thus, although the defendant’s fault is, in most cases, of great importance in determining whether the conditions of probation have been violated, circumstances beyond the defendant’s control may provide an adequate basis for probation revocation where such circumstances frustrate the fundamental purpose or reason for the imposition of a sentence of probation. See generally Note, Judicial Discretion & the Problem of the Mentally Ill Probation Violator, 5 U.C.L.A. — Alaska L. Rev. 284 (1976).

Turning to the facts of the present case, it is apparent that the sole purpose of placing defendant on a new term of probation following revocation of the probation imposed on June 21, 1983, was to enable the defendant to obtain treatment for his drug and alcohol problem. In view of the refusal of both the Gateway program and the McFarland Zone Center to treat defendant (and his earlier dismissal from the Western Illinois Council on Alcoholism at Quincy) and Mr. Straton’s statement that he knew of no programs in Illinois which provided the type of services that defendant required, it was apparent to the trial court that the purpose for which defendant’s probation was granted would not be accomplished. Since defendant had not achieved and could not achieve the principal objective of his probation, the court did not abuse its discretion in revoking his probation. See Humphrey v. State (1981), 290 Md. 164, 170-75, 428 A.2d 440, 444-46 (Rodowsky, J., dissenting).

We note parenthetically that this issue would have been obviated had the court determined whether inpatient treatment for defendant’s drug and alcohol abuse problem was feasible before sentencing defendant to a new term of probation. Commitment of a defendant for evaluation under the presentence commitment for study provision of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 3—3) provides a highly desirable alternative to the practice of placing a defendant on probation before it is known whether the defendant qualifies for participation in a substances abuse program which is a condition of probation.

The defendant’s second allegation of error is that Mr. Straton was not properly qualified as an expert on the treatment alternatives for defendant’s drug and alcohol problems which are available in Illinois and was not shown to have the necessary expertise to properly assess defendant’s need for rehabilitation. An examination of the record of defendant’s probation revocation hearing reveals that defendant did not at any time object to the adequacy of the evidence as to Straton’s qualifications and expertise. Thus, the trial court had no opportunity to rule on the adequacy of the foundation for Straton’s expert testimony, and the defendant waived this question for purposes of review. People v. Robertson (1976), 43 Ill. App. 3d 143, 356 N.E.2d 1180; see People v. Minnis (1983), 118 Ill. App. 3d 345, 357, 455 N.E.2d 209, 218.

Generally an individual may testify as an expert if experience and qualifications give him knowledge which is not common to the world and his testimony will aid the trier of fact in reaching its determination. (People v. Beil (1979), 76 Ill. App. 3d 924, 395 N.E.2d 400.) We cannot say that the evidence presented as to Straton’s qualifications and experience constituted such an insufficient foundation for his testimony that the revocation of defendant’s probation on the basis of this testimony amounted to so substantial a violation of defendant’s rights as would necessitate our ignoring the defendant’s waiver of this issue in the circuit court. See People v. Washington (1981), 101 Ill. App. 3d 409, 428 N.E.2d 553.

The defendant finally asserts that we should reduce his sentence of three years’ imprisonment for the offense of aggravated battery (which carries a maximum penalty of five years’ imprisonment and a minimum of two years (Ill. Rev. Stat. 1981, ch. 38, pars. 12 — 4(e), 1005 — 8—1(6))) to two years. In support of this assertion, defendant points out that he did nothing during his final term of probation which would militate against a finding that his imprisonment was not necessary for the protection of the public or that probation would not deprecate the seriousness of his conduct. When the record is viewed as a whole, however, it is seen that defendant did commit the offenses of battery and obstruction of a peace officer while on probation for the underlying offense of aggravated battery, and that the court’s sole purpose in placing defendant on probation anew was to enable him to obtain inpatient treatment for his drug and alcohol problems if such were available. In view of the number and seriousness of defendant’s prior offenses, we cannot say that the trial court abused its discretion (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344) in imposing the sentence that it did.

Finding no reversible error, we affirm the revocation of defendant’s probation and the sentence imposed.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE TRAPP

text:
    PETER J. VOGEL et al., Plaintiffs-Appellees, v. JIM G. DAWDY et al., Defendants (Norman Suttles et al., Defendants-Appellants).
    Fourth District
    No. 4 — 83—0510
    Opinion filed April 4, 1984.
    Steven N. Mottaz, of Thomas, Mottaz, Eastman & Sherwood, of Alton, for appellants.
    Edwin R. Parkinson, of Jacksonville, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

The plaintiffs, Peter and Gerda Vogel, commenced an action in forcible entry and detainer on June 11, 1980, seeking possession of an 811-acre tract that they had sold to Jim and Caroline Dawdy on contract. Subsequent amendments to the complaint named as defendants Norwood and Barbara Ashley and Norman and Lula Mae Sutiles, who were subsequent purchasers of parcels subdivided by the Dawdys. The Dawdys and the Ashleys defaulted, and summary judgment was entered against them on April 25, 1983. They are not parties to the present appeal. The case against the Surtieses proceeded to a bench trial. On June 28, 1983, the circuit court entered judgment in favor of the Vogels and against the Surtieses. The Surtieses appeal.

The basic facts are not disputed. On March 14, 1979, the Dawdys signed a real estate escrow installment contract to purchase 811 acres of farmland in Greene County from the Vogels. Two days later, on March 16, 1979, the Dawdys entered into a contract for deed to sell 426 acres of the same land to the Surtieses. On May 9, 1979, the Dawdys entered into a similar contract with the Ashleys concerning the remaining 385 acres of the parcel. When the Vogels discovered the subsequent transactions, they brought suit for possession of the land against the Dawdys, the Surtieses, and the Ashleys.

The original complaint was filed on June 11, 1980, and was twice amended to correct the names of the defendants. The second amended complaint, filed October 1, 1980, alleged that the Vogels were entitled to immediate possession of the land, because of several breaches of the Vogel-Dawdy contract. A second count, directed against the Ashleys and the Surtieses, realleged the breaches of the Vogel-Dawdy contract and asserted that any rights of the subsequent purchasers were derivative of the rights of the Dawdys. Four distinct breaches of the Vogel-Dawdy contract were alleged: (1) that the Dawdys assigned their interest in the Vogel-Dawdy agreement without consent of the Vogels, in violation of the terms of the agreement; (2) that the Dawdys removed or suffered the removal of valuable timber from the land, in violation of the terms of the agreement; (3) that the Dawdys failed to provide the insurance required by the agreement; and (4) that the Dawdys failed to pay the 1979 taxes or to evidence payment of same as required by the agreement. The complaint asserted that each of the alleged breaches constituted default warranting forfeiture under the terms of the agreement.

At the trial, only Peter Vogel and Norman Sutiles testified. Vogel testified that he and his wife owned the 811 acres in issue, and that they entered into an installment contract with the Dawdys for the sale of the entire parcel on March 14, 1979. He stated emphatically that they had entered no contract with the Suttleses. Moreover, the Dawdys have been given no permission to resell or subdivide the 811-acre parcel. Vogel explained that the 811 acres was an “economic unit,” in that the crop land constituting the majority of the acreage was necessary to support the feed lot located on the property.

Vogel testified he learned that persons other than the Dawdys were living on the land in November or December 1979, when a rumor to that effect was communicated by one of Mrs. Vogel’s cousins. The Vogels were residing in California at the time. Vogel stated that he called Dawdy immediately and Dawdy assured him that there had been no sale. After that, Vogel sent his farm manager to investigate. The report he received indicated that the Dawdys were not in possession of the land and that the mailbox carried the name “Suttles.” Vogel called Dawdy again and was told that the land was being leased; the Dawdys referred him to their attorney.

In January 1980, Vogel called the Dawdys and their attorney perhaps as many as 20 times to determine the status of the land. During the first week of February 1980, he returned to Illinois to investigate. After repeated attempts failed to find anyone at home when he visited the land, Vogel visited the Dawdys’ lawyer. He advised the lawyer that he knew the land had been sold and demanded to see the contracts. The lawyer allowed Vogel a brief view of the contracts but did not permit him to copy the documents. Vogel testified that this was his first knowledge of the subdivision of the land and sales to the Ashleys and Suttleses.

On February 27, 1980, Vogel sent a letter to the Dawdys and their lawyer informing them of his determination that the contract had been breached. The letter stated that legal action would be initiated if the breaches were not cured within 30 days. In particular, the letter noted the sale of the property and the failure to insure the premises as actionable breaches. Vogel testified that he never received evidence from Dawdy or anyone else that the insurance and taxes were being paid on the property. He stated that he did not know the Suttleses had any claim or interest in the land when he wrote to the Dawdys; however, the Suttleses later contacted Vogel after payments were due on the Vogel-Dawdy contract. Vogel received payments from the Dawdys in 1980 and 1981, but no payments were ever received directly from the Suttleses.

Norman Suttles testified that he entered a contract for deed to buy 426 acres from the Dawdys on March 16, 1979. The contract expressly recognized the Vogel-Dawdy contract and authorized the Suttleses to verify the Dawdys’ payments on the Vogel-Dawdy contract through direct communication with Vogel. Suttles testified that his first contact with Vogel occurred when he telephoned Vogel to confirm that the Dawdys had made their first payment under the Vogel-Dawdy contract. He stated that he told Vogel of his arrangement with the Dawdys. Suttles did this after each payment came due under the Vogel-Dawdy contract. Meanwhile, Suttles himself was making regular payments to the Dawdys pursuant to the contract for deed on the 426 acres.

Although he knew that the Dawdys were buying the land on contract from the Vogels, Suttles testified that he did not check with Vogel to determine whether it was permissible to buy the land, because he relied on his real estate agent to do so. Suttles stated that he read his contract with the Dawdys, but he did not read the Vogel-Dawdy contract. Specifically, he denied any knowledge of the nonassignability clause in the Vogel-Dawdy contract.

Suttles testified that he originally attempted to protect his interests by writing the checks jointly to Dawdy and Vogel, but Dawdy rejected this mode of payment, and Suttles never made a payment directly to Vogel. He testified that he paid the taxes on the land throughout his possession and also kept the place insured. Suttles acknowledged that some trees had been cut down on the property, but he said that the logging had been done before he took possession.

On June 27, 1983, the circuit court entered judgment against the Suttleses and in favor of the Vogels. The court found that the Vogel-Dawdy contract had been breached in several particulars. Further, since the Suttleses knew of the Vogels’ interest prior to signing the Dawdy-Suttles contract, the court found that the Suttleses were not good-faith purchasers and the rights were merely derivative of any rights held by the Dawdys. Accordingly, the court held that the Vogels were the legal owners of the land and entitled to possession free and clear of any claim or interest of the defendants.

On appeal, the Suttleses argue that the trial court erred in entering judgment for the Vogels, because (1) the Vogels waived their rights under the nonassignment clause of the Vogel-Dawdy contract; (2) the statutory action in forcible entry and detainer cannot be maintained absent proper notice and demand; (3) an order granting possession is not binding upon one not joined as a defendant; and (4) the right to the crops on the land has not been resolved.

The nonassignment clause in the Vogel-Dawdy contract provided as follows:

“BUYERS AGREE:
(4) not to sell, assign, grant, set over or convey the premises herein conveyed nor to assign their interest, nor any part thereof, in this contract without the prior written consent of the Sellers, which will not be unreasonably withheld.”

The Suttleses argue that the Vogels waived their rights under this clause by accepting payments from the Dawdys after learning of the purported sale to the Suttleses.

The record before this court reveals only two payments made from the Dawdys to the Vogels. The first was made on or about February 15, 1980. According to the uncontradicted testimony of Mr. Vogel, this predated the Vogels’ awareness of the Dawdy-Suttles transaction. The second, due February 15, 1981, occurred after the filing of the initial complaint. The Vogels’ knowledge of the Dawdy-Suttles transaction at the time of the second payment is not disputed; the filing date of the original complaint is, of course, a matter of record.

In support of their waiver argument, the Suttleses cite the general rule that a contract vendor may waive his right to strict compliance with contract provisions if his contract is inconsistent with an intention to strictly enforce the contract terms. This principle is often cited in “late payment” cases, and is based on the theory that a vendor may not lull a vendee into loose compliance with contract terms and later claim such imperfect compliance as breach of the contract. (See Miles Homes, Inc. v. Mintjal (1974), 17 Ill. App. 3d 642, 307 N.E.2d 724.) The Suttleses have not cited any authority, however, to support the application of this principle under the circumstances presented in this case. As noted earlier, the Vogels received only one payment after becoming aware of the purported sale to the Suttleses. That payment was made in February 1981, many months after the complaint was filed. We find it plain that no act committed by the vendor after the filing of the complaint would lull the vendee into imperfect compliance with the contract terms. The waiver rule cited by the Suttleses has no application on these facts.

Moreover, even if it could be found that the Vogels waived the nonassignment clause, there is other sufficient proof of breach to sustain the judgment. One violation alleged in the complaint concerned the defendants’ failure to insure the property according to the terms of the Vogel-Dawdy contract. On appeal, the Suttleses virtually ignore this branch of the case. The Vogel-Dawdy contract specified what type of insurance was to be maintained for the property and also required that proof of proper coverage be supplied to the Vogels. Although Norman Sutiles testified that the property was insured in some manner, the imprecision in his testimony precludes a certain determination that the coverage satisfied the requirements of the contract. It was undisputed, however, that the Vogels never received proof of the required coverage.

Under the terms of the Vogel-Dawdy contract, nonperformance of the insurance requirement was defined as a default. The trial court specifically found that the failure to comply with the insurance clause constituted a breach of the Vogel-Dawdy contract. In consequence, the judgment could be sustained on the allegation and proof of the violation of the insurance clause, even if the Vogels had waived their rights under the nonassignment clause.

In their second argument on appeal, the Surtieses argue that the forcible entry and detainer action may not be maintained, because they were not served with the notice and demand required under the statute. (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 102.) The Vogels do not contend that statutory demand and notice were delivered. Since certain subsections of the statute require written demand and others do not, however, it is necessary to determine the precise statutory basis for this action. Section 9 — 102 sets forth several distinct factual settings under which an action in forcible entry and detainer may be commenced. The Surtieses maintain that the action could be brought against them only pursuant to subsection 9 — 102(5) of the statute. Subsection 9 — 102(5) states that an action in forcible entry and detainer may be brought:

“When a vendee having obtained possession under a written or verbal agreement to purchase lands or tenements, and having failed to comply with the agreement, withholds possession thereeof, after demand in writing by the person entitled to such possession.” (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 102(5).)

This subsection describes one of the three situations in which a written demand is expressly required prior to the commencement of an action under the statute. Section 9 — 104 states an additional notice requirement for actions brought under subsection 9 — 102(5). The requirement of written demand is a strict condition precedent for an action of this variety. Eddy v. Kerr (1981), 96 Ill. App. 3d 680, 422 N.E.2d 176; see French v. Willer (1888), 126 Ill. 611,18 N.E. 811.

We disagree that the action against the Surtieses could be brought pursuant to subsection 9 — 102(5). As to the Vogels, who are the persons “entitled to the possession of the lands” (first sentence of section 9 — 102), the Surtieses clearly are not “a vendee” described in subsection 9 — 102(5). We are persuaded that the action was properly brought under subsection 9 — 102(2), however, which applies “[w]hen a peaceable entry is made and possession unlawfully withheld.” (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 102(2).) This provision more closely describes the method by which the Suttleses came to possession. The Suttleses appear to be more the peaceful trespassers anticipated by subsection 9 — 102(2) than the good-faith purchasers anticipated by subsection 9 — 102(5). Moreover, subsection 9 — 102(5) appears to require privity, whereas subsection 9 — 102(2) does not.

Prior notice and demand for possession are not required in an action brought under subsection 9 — 102(2). (Sullivan v. Culp (1931), 260 Ill. App. 443.) Plainly, no such requirement appears in the provision itself. In reference to the other subsections of the statute that do not mention demands, the courts have uniformly concluded that no demand is necessary when the statute does not expressly require it. (See Stillman v. Palis (1890), 134 Ill. 532, 25 N.E. 786 (subsection 9— 102(1)); Travis v. Geiger (1919), 215 Ill. App. 461 (subsection 9— 102(4)).) The authority cited by the Suttleses to the contrary is unpersuasive, for it is pure dicta. West Side Trust & Savings Bank v. Lopoten (193.4), 358 Ill. 631, 193 N.E. 462, did not address the question examined here; further, the language relied upon by the Suttleses is itself based on dicta from prior decisions. We hold that the action against the Suttleses was properly brought under subsection 9 — 102(2) and consequently no demand or notice was required.

The Suttleses’ third issue on appeal suggests that the judgment is not binding upon the Suttleses’ son Steven, because he was never joined as a defendant. We find this contention utterly devoid of merit. First, although Steven Suttles plainly was not joined as a defendant, there also is nothing in the record to suggest that he has any relation to the controversy. The record on appeal bears no mention of this name. Second, Steven Suttles has not made any effort to become a party to this appeal. If he were aggrieved by the judgment, it would be he, rather than his parents, who would have standing to vindicate those rights. Third, the only order referred to in the Suttleses’ argument on this point is the writ of restitution, which is not an order preserved for appeal by the notice of appeal. As such, this court lacks jurisdiction to consider the question. 87 Ill. 2d R. 301.

Finally, the ■ Suttleses request this court to determine rights relating to the 1983 crops grown on the land. Prior to hearing oral argument on the merits of this case, this court remanded the cause to the trial court for the purpose of appointing a receiver to preserve the crops, to oversee the harvest, and to invest the proceeds therefrom. This procedure served to facilitate the order of protection previously entered in the trial court. The question of the right to the crops was never raised prior to this appeal, however. This is conceded by the parties to this appeal. Insofar as there is no ruling on the question, there is nothing to review in this regard.

We find no error in the judgment of the trial court. The cause is remanded to the trial court for the purpose of winding up the receivership in a manner consistent with the views expressed herein.

Affirmed; remanded in part with directions.

MILLER and WEBBER, JJ., concur.