text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Henry Hutson, Defendant-Appellant.
    (No. 11777;
    Fourth District —
    August 13, 1973.

      Theodore G. House, of Schmiedeskamp, Robertson, House, Neu & Mitchell, of Quincy, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, (John A. Beyer, Circuit Attorney Project, of counsel,) for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On July 13, 1971, the grand jury returned an indictment charging the defendant-appellant Lawrence Henry Hutson and one Eugene Earl Fred with the crime of armed robbery. The scene of the alleged occurrence was the Cedar Club Tavern at 2001 Cedar Street in Quincy, Illinois. Fred is not a party to this appeal. Hutson was tried before a jury, convicted and sentenced to an indeterminate term of 5 to 10 years.

On September 29, 1971, Fred entered his plea of guilty to the charge. The trial of defendant Hutson commenced on September 30, 1971, and the first witness called by the People was Eugene Earl Fred. The record discloses that during his initial questioning by the State’s Attorney, Fred was a reluctant witness, and it supports the trial judge’s finding that the defendant had made prior statements inconsistent with his testimony, that the People were indeed taken by surprise and that the witness was evasive. He testified, initially, when asked to identify defendant as one who had participated in the robbery, that “Well, sir, it looks like the defendant. I’m not actually positive though.” When asked if he met with the defendant on the day of the crime Fred responded, “As I said sir, that’s quite awhile back.” Eventually the State’s Attorney advised the Court that defendant had, just prior to being placed on the witness stand, made statements to the State’s Attorney which were entirely inconsistent with his testimony. Fred recounted his own participation in the crime as well as that played by the person who “resembled” the defendant. The gist of the problem was presented by his refusal to identify the defendant. The State’s Attorney’s motion that Fred be called as the Court’s witness was then allowed over defendant’s objection.

The trial judge then told Fred that he was being called as the Court’s witness, suggested to him that he was under oath and subject to penalties for contempt and perjury. The jury was then brought in and Fred recounted the details of the crime which he and defendant had committed and positively identified defendant as his co-participant.

Defendant contends that the calling of Fred as the Court’s witness after he had initially been called and testified as a witness for the People “improperly reinforced the adverse effect of Fred’s testimony in the eyes of the jury.” We find no merit in this contention. Under the circumstances revealed by this record the People had no advance warning or indication that Fred would evade identification of the defendant until after he had been called and had commenced his testimony. This chain of events, and the timing involved is not uncommon and the designation of a witness as a Court’s witness after he has given testimony is not, in itself, an abuse of discretion. (People v. Routt, 100 Ill.App.2d 388, 241 N.E.2d 206; People v. Williams, 22 Ill.2d 498, 177 N.E.2d 100, cert, denied 82 S.Ct. 646, 369 U.S. 806.) Defendant also contends that in eliciting from Fred the fact that he had made prior inconsistent statements (prior to his being designated a Court’s witness) the State’s Attorney was impeaching his own witness. “However, when a witness for the State gives surprise testimony the court may permit the State to examine the witness to show that he is giving unexpected testimony, and such procedure does not amount to impeachment.” People v. Williams, 22 ill.2d 498, 504, 177 N.E.2d 100.

After designating Fred as a Court’s witness the trial judge conducted a lengthy and detailed examination of the witness, following which the State’s Attorney asked only three questions and these related to certain exhibits. The defendant argues that this extensive questioning by the trial judge usurped the function of the State’s Attorney and served to unduly emphasize Fred’s testimony. We first note, that the trial judge stated to counsel that he intended to question the witness and would then turn the witness over for cross-examination by them. The State’s Attorney agreed to this procedure as did defense counsel who stated, in reply to the Court’s question, “Do either of you wish to be heard on the procedure that the Court suggests?”, “Your Honor, that seems to be an entirely proper procedure.” Defendant cites People v. Rothe, 358 Ill. 52, in support of this assignment of error. In Rothe the trial judge was criticized for his examination of a witness and for a statement made to the jury at the conclusion of his examination. The court stated “* * * we have pointed out the impropriety and dangers attendant upon the trial court attempting any extended examination of a witness. We have said that such examination is more properly the function of counsel, and explained the dangers of giving the appearance of bias in this particular method of procedure.” We note that Rothe opinion also recites that “The evidence is close, highly conflicting and entirely irreconcilable.” People v. Giacomino, 347 Ill. 523, 180 N.E. 437, cited by the People, is not in conflict with the holding in Rothe, but stands for the additional proposition that lengthy examination of a witness may be, warranted where the trial judge is justified in concluding that the witness is not telling the truth. The extent to which a trial judge may indulge in an examination of a witness * * rests largely in his discretion but in its exercise he must not forget the function of a judge * # People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.

The evidence here is not “* * * close, highly conflicting and entirely irreconcilable.” The evidence as to Hutson’s guilt is clear, uncontradicted and overwhelming. He was positively identified by one Larry Hunter, an eyewitness to the crime, during a lineup at the police station on the day following the robbery, identified him again at the preliminary hearing and during the trial before the jury. Hutson was also identified by Vernon Gardner, another eyewitness to the crime, who was doing some carpenter work at the Cedar Club at the time. He engaged in conversation with Hutson for several minutes prior to the robbery. The witness Cookson related that on June 6, 1971, the day following the robbery, Hutson told “* * * something about robbing a tavern the day before around 20th and Cedar somewhere, him and two or three other guys, and that they divided at one guy’s house * *

The witness Groseclose testified to a statement of similar import made to him by Hutson on June 6, 1971. The defendant did not testify. On this record we find no merit in defendant’s contention that the trial judge committed reversible error in his examination of the defendant as a Court’s witness.

There are numerous other assignments of error concerning admissibility of evidence, refusal of the trial court to grant a continuance and allegations that the trial court improperly considered certain evidence in imposing sentence which is urged to be excessive. None of these contentions were mentioned in defendant’s post trial motion, and the admission of the evidence in question was not objected to during the trial. When a defendant fails to object to the admission of evidence and secure a ruling on the objection the objection is waived. (People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.) We will not consider errors raised for the first time on appeal. (People v. Irwin, 32 Ill.2d 441, 207 N.E. 76.) “Where the grounds for a new trial are stated in writing, the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived.” People v. Hairston, 46 Ill.2d 348, 367, 263 N.E.2d 840.

A detailed recital of the evidence would unduly lengthen this opinion, nor would such detail have any precedential value. Examination of the record convinces us that defendant was fairly tried and his guilt established beyond any reasonable doubt and that no reversible error occurred in the proceedings.

Defendant also maintains that his sentence is excessive in comparison to that imposed upon Fred. Fred received a sentence of 5 to 15 years. Defendant was a willing and active participant in the robbery and shared in the proceeds. The sentence imposed is within the statutory limits, and in such instance a reviewing court will not disturb the sentence unless it is clear that it constitutes a great departure from the spirit and purpose of the law. (People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702.) Mindful of the guidelines stated in People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, we find nothing in this record which would warrant sentence reduction in this court. We accordingly affirm the judgment of the trial court.

We note that this case was initially presented on an Anders brief. We denied the motion to withdraw and appointed counsel with request for further briefing. We deem it appropriate to express the court’s appreciation for the diligent effort which ensued.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Kenneth Pohlmann, Defendant-Appellee.
    (No. 11828;
    Fourth District —
    August 13, 1973.

      Paul R. Welch, State’s Attorney, of Bloomington, (John A. Beyer, Assistant State’s Attorney, of counsel,) for the People.
    Harold M. Jennings, of Bloomington, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by the State under Illinois Revised Statutes 1971, chapter 110A, paragraph 604(a)(1) from an order suppressing evidence allegedly illegally seized.

The defendant, Kenneth Pohlmann, was indicted for the break-in of the University High School at Normal, Illinois, which took place on January 31, 1971. Count I of the indictment charged defendant with burglary, and Count II charged him with theft over $150. Among the items taken were a video monitor, recorder, camera ensemble, view finder and Iense. Ralph Warsaw, a codefendant, was also indicted on the same charges, pleaded guilty, and was subsequently given probation.

The search that gave rise to this appeal took place on the campus of Western Illinois University at Macomb where Ralph Warsaw was a student. The search was conducted by the Western Illinois University Security Police in March 1971. The security police picked up Warsaw’s car because its parking sticker was on the university’s tow list due to its excessive parking violation. In order for the officer to tow the automobile, it was necessary for him to enter the vehicle and secure the steering wheel. Before gaining access to said vehicle, the police officer noticed the blade of a knife protruding from under the front seat of the car. Once the car was impounded, the knife, a .32 caliber automatic pistol, and a .22 caliber pistol were removed from under the seat. The police officers then entered the trunk of the Warsaw vehicle and found a television set. The search and seizure of the item found in the trunk was not pursuant to a warrant. Moreover the parties to this appeal stipulated that the search was not consented to by Ralph Warsaw or by his father, the owner of the vehicle. When confronted with the television set, Warsaw initially contrived a story concerning how he acquired possession of the item. He eventually confessed to the January 31 burglary and theft of the TV monitor from University High School. In his confession he implicated the defendant. At that time defendant was a student at the University of Illinois in Champaign-Urbana.

After defendant was arraigned and entered a plea of not guilty to the charges brought against him, he moved to suppress aH evidence resulting from the aHegedly iUegal search of the Warsaw automobile. The State moved to strike defendant’s motion to suppress for lack of standing and the court took the matter under advisement. On January 5,1972, an order allowing defendant’s motion to suppress was entered. Defendant then presented another motion to suppress the testimony of Ralph Warsaw as the fruits of an iHegal search. This motion was also granted.

The State appealed as to each of these orders.

The State submits that there are three issues for this court to consider on appeal. We find it necessary to take cognizance of but one of these issues, that is, did the defendant have standing to make a motion to suppress?

In their briefs, both parties extensively discussed People v. De Filippis, 34 Ill.2d 129, 214 N.E.2d 897 and its application. Defendant contends that De Filippis is dispositive. However, we find that People v. McNeil, 43 Ill.2d 187, 290 N.E.2d 602, governs this case.

In the McNeil case our supreme court discussed the problem of standing to suppress and many of the major United States Supreme Court cases dealing with the subject — including Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, and Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. The court noted that there is a recognizable distinction between an unreasonable search and seizure and the problems of the admission of the fruits thereof.

The court stated that:

“In the light of both Alderman and Jones, and the rationale of the dissent in De Filippis, we adhere to the rule requiring a defendant to establish the manner in which his constitutional rights have been violated before permitting him to challenge the validity of the search and seizure. We find that Jones compels no deviation from this rule and that Alderman requires its observance. Accordingly, any language in People v. De Filippis (1965), 34 Ill.2d 129, to the contrary is hereby overruled, and again our views in this evidentiary area stand in accord with Federal decisions.” 53 Ill.2d 187, 192, 290 N.E.2d 602.

In Alderman v. United States, the Supreme Court stated that standing to suppress evidence obtained as a result of a violation of the fourth amendment exists only when one can show that his constitutional rights were violated by the search and seizure, and “not by those who are aggrieved solely by the introduction of damaging evidence. Co-conspirators and co-defendants have been accorded no such standing.” 394 U.S. 165, 172.

In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, the Supreme Court noted that the fourth amendment protects individuals and their reasonable expectation of privacy. In Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, the court accentuated this rule by holding that a union official had standing to challenge the search of a large office shared by several other persons on the grounds that under the circumstances the defendant had a “reasonable expectation of freedom from governmental intrusion.”

The viability of the Mancusi doctrine was reaffirmed by the United State Supreme Court in Combs. v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308, 311, when the Court remanded for further findings by the district court to “determine whether petitioner had an interest in connection with the searched premises that gave rise to a “reasonable expectation [on his part] of freedom from governmental intrusion upon those premises. [Citations omitted.]”

This court in People v. Nunn, 7 Ill.App.3d 601, 288 N.E.2d 88, discussed the problem of what constituted a reasonable expectation of privacy as laid out in the Just-mentioned United States Supreme Court cases. We concluded that questions of consent, agency and property interest were secondary to the ultimate issue of whether an individual had a reasonable expectation of privacy. The critical question in this case at bar is whether defendant had a reasonable expectation of privacy in the integrity of the trunk of the- car searched. We find that he did not.

Defendant did not own, or for that matter, have a right of access to the automobile in question. It was located in a community over 100 miles away from defendant’s residence. The TV monitor was placed in the trunk of the car and it could be removed at any time by any person who had access thereto. We hold that under the circumstances defendant could not have a reasonable expectation of privacy and thus no constitutional rights were violated. Defendant had no standing to assert such in the motion to suppress.

With the determination of the threshhold issue of standing, this court need not consider the other issues raised. The trial court was in error in granting defendant’s motion to suppress and its order is reversed and this cause is remanded for further proceedings.

Judgment reversed and cause remanded.

TRAPP and SMITH, JJ., concur.


author: Mr. JUSTICE SIMKINS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Howard Wilson, Defendant-Appellant.
    (No. 11914;
    Fourth District —
    August 13, 1973.
    John F. McNichols, Deputy Defender, of Springfield, (Bruce L. Herr, Assistant Defender, of counsel,) for appellant.
    No appearance for the People.
   Opinion by

Mr. JUSTICE SIMKINS.


text:
    Max Burnstine, Plaintiff-Appellant, v. Charles Hagaman, Defendant-Appellee.
    (No. 12223;
    Fourth District —
    August 13, 1973.
    Howarth Law Offices, of Springfield, (David N. Howarth, of counsel,) for appellant.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE SIMKINS.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William F. Dunham, Defendant-Appellant.
    (No. 11768;
    Fourth District —
    August 13, 1973.

      Kenneth L. Gillis, District Defender, of Defender Project, of Chicago, and Brian David, Senior Law Student, for appellant.
    Thomas P. Carmody, State’s Attorney, of Carlinville, and Michael Prall, of Circuit Attorney Project, for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

In a bench trial, the defendant was found guilty of attempting to burglarize a jewelry store, theft of nine spools of copper wire worth approximately $4400, burglarizing a hardware store and theft of a quantity of items from the hardware store. He was sentenced to not less than 1 nor more than 3 years on these charges with the sentences to run concurrently. On appeal, the defendant contends that the evidence does not establish guilt beyond a reasonable doubt and that he was too intoxicated to form a specific criminal intent. He was tried with his co-defendant, Bobby Street, and in an opinion filed in this court (11 Ill. App.3d 243, 296 N.E.2d 606), we affirmed that conviction, but reversed the judgment entered on the charge of theft for the reasons that the acts constituting the burglary and theft of the contents were not independently motivated or otherwise separable. The defendant’s conviction of theft of items in the hardware store must be reversed here for a like reason. People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24.

Another codefendant, Paul Cook, pleaded guilty to all the charges and was sentenced to concurrent 2 to 5 year terms in the penitentiary and testified in the trial of Dunham and Street. He gave a complete account of the evening’s activities and asserted that he planned and carried out the offenses completely by himself, with Street and Dunham being passed out in the cab of the truck without any knowledge of the offenses. As to the jewelry store, two witnesses identified Paul Cook as the man using the pry bar and Dunham as the second man who appeared to be acting as a lookout. The truck involved bore the legend “Street Construction Co.” Cook testified that after leaving the jewelry store, Dunham and Street passed out and he drove the truck and alone entered the hardware store and carried the fishing equipment and the electrical appliances and then drove to the telephone company where he alone moved nine rolls of copper wire weighing approximately 290 lbs. into the back of the truck. Shortly thereafter, Dunham awoke complaining about the rough riding truck, then learned of the theft and insisted he wanted no part of such business. At about that same time Street awoke and felt well enough to take over driving and. he likewise objected to any part in the theft.

The police officers making the arrest in Bunker Hill at 10:45 P.M. saw no evidence of intoxication nor did other police officers who saw the defendant in jail immediately after the arrest. The two witnesses at the jewelry store testified that the defendant returned to the truck there without any evidence of intoxication at about 9 P.M. Where a jury is waived, the credibility of witnesses and the weight to be given their testimony are for the trial court who saw and heard the witnesses testify. (People v. Smith, 41 Ill.2d 158, 242 N.E.2d 198.) The inferences to be drawn from the facts and evidence are for the trial court and unless they are inherently impossible or unreasonable, they should be accepted on appeal. (People v. Coleman, 127 Ill.App.2d 38, 261 N.E.2d 705). The evidence of intoxication in this case is essentially one- depending upon the credibility of the witnesses and Cook’s testimony taken in totality leaves much to be desired. It is a bit strange that Street could wake up shortly after the incident and take over the driving of the truck, and showed no evidence of intoxication at the time of the arrest. Likewise Cook’s testimony that he alone loaded the 290 lbs. of copper wire into the truck is at least a strain on credulity. While it is true that most of the evidence in this case is circumstantial, the recent possession of this stolen property is not in any way disputed and in addition, the actual happenings were related by Dunham and by Street. Dunham's defense was that he didn’t participate and couldn’t participate because of intoxication. We cannot say from the totality of the evidence that the trial judge’s conclusion of guilty beyond a reasonable doubt is so implausible as to raise a reasonable doubt as to the defendant’s guilt.

A discussion of the trial judge’s refusal to admit this defendant to probation becomes now fundamentally an academic exercise. First of all our review of such refusal is limited to the extent of ascertaining whether the trial court did, in fact, exercise discretion or whether it acted in an arbitrary manner. (People v. Saiken, 49 Ill.2d 504, 275 N.E.2d 381.) The trial court’s consideration of the balancing factors indicates that the court considered all factors and acted neither arbitrarily nor did it abuse its discretion. Likewise it is stated in the appellant’s brief that this defendant was admitted to parole two months before the defendant’s brief was filed in this court. His penitentiary sentence has been served and the supervisory aspects of rehabilitation are in operation. No sound reason for disturbing this process has been presented.

Accordingly, the conviction of the defendant for the theft of the hardware store is reversed, and in all other respects the judgments of guilt and the sentences imposed are affirmed. The cause is remanded to the trial court with directions to issue an amended mittimus.

Affirmed in part; reversed in part and remanded with directions.

CRAVEN, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE TRAPP

text:
    Norbert L. Hutchens et al., d/b/a Hutchens and Mann, Plaintiff-Appellee, v. James Wade, Defendant-Appellee—(James Wade, as Sheriff of Pike County, Defendant-Appellant.)
    (No. 11804;
    Fourth District —
    August 13, 1973.

      William E. Lowry, State’s Attorney, of Pittsfield, for appellant.
    Norbert L. Hutchens and Richard E. Mann, of Hutchens and Mann, of Winchester, pro se.

   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiffs sued Wade, individually, and Wade as Sheriff, for legal fees earned and expenses incurred by Mann. The complaint in one Count alleges that “defendants” employed Mann and promised to pay the values of the services performed in such employment. In such employment Mann brought action against the County Board of Supervisors seeking a declaratory judgment that Wade, as sheriff, was entitled to office space in the County Court House. In such litigation it was determined that the county board controlled the assignment of office space in the court house. (Wade v. County of Pike, 104 Ill.App.2d 426, 244 N.E. 2d 209.) In the action for declaratory judgment the then State’s Attorney disqualified himself because of conflict of interest and the county board retained private counsel.

In this action for fees, the trial court entered judgment in favor of Wade individually, and judgment for plaintiffs against Wade as sheriff in the sum of $1996. Wade, as sheriff, by the present State’s Attorney, appeals and plaintiffs cross-appeal from the judgment that plaintiffs take nothing from Wade individually.

At a bench trial evidence was heard upon the plaintiffs’ complaint. Plaintiff Mann, and Wade testified concerning certain discussions resulting in an agreement pursuant to which Mann filed the lawsuit in question. According to Mann, Wade did not make clear to him whether payment for the lawsuit would come from Wade’s personal funds or from the funds of the sheriff. Mann sent his bill to “Mr. James Wade, Sheriff, Pike County, Pittsfield, Illinois.” Wade testified that Mann told him not to worry about the attorneys’ fees from the lawsuit, because the county would pay since Wade was bringing suit as sheriff and not as an individual. A letter from Mann to Wade, which itemized attorney’s fees and expenses for the lawsuit, states, “I have said before that the expense is a proper expenditure of the sheriff’s office.”

In the trial court Wade argued that it was the statutory duty of the State’s Attorney to represent him (Ill. Rev. Stat. 1965, ch. 14, par. 5) which is apparently projected to mean that where the State’s Attorney is disqualified, Wade, as sheriff, was entitled to some legal representation at county expense.

The statutory procedure by which county funds become liable to pay the services of a private attorney is in Ill. Rev. Stat., ch. 14, par. 6:

“Whenever the attorney general or state’s attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, * *

It is agreed that in the declaratory judgment action no attorney was appointed by the court to represent Wade as sheriff. It is urged, however, that the trial judge acquiesced in the appearance of Mann as attorney for Wade, sheriff.

The trial court found that Wade was not liable individually, and further found that the trial court’s acquiescence in Mann’s appearance in the declaratory judgment action corrected whatever error existed in the failure to procure his appointment as provided by statute.

The appointment of a special state’s attorney involves the exercise of judicial discretion in the determination of whether a contingency authorizing the exercise of such power has arisen. (Lavin v. Commrs. of Cook County (1910), 245 Ill. 496, 92 N.E. 291. See also People v. Sears (1971), 49 Ill.2d 14, 273 N.E.2d 380.) The jurisdiction of the trial court in such a matter may be initiated by the petition of the state’s attorney or by the petition of a citizen. (People v. Howorth (1953), 415 Ill. 499, 114 N.E.2d 785.) There is dicta in People v. Northup (1914), 184 Ill. App. 638, to the effect that the jurisdiction of a court to appoint a special state’s attorney may be invoked even upon the court’s own motion. In any event, for a meaningful exercise of judicial discretion, the court’s attention must in some way be directed to the subject matter requiring a decision. There is no showing that this was done in the case for which attorneys’ fees are sought here. In the absence of appointment, the plaintiffs are not entitled to payment from county funds. Ashton v. County of Cook (1943), 384 Ill. 287, 51 N.E.2d 161.

The court’s conclusion that Wade was not liable individually is sustained in the authorities. In Mann v. Richardson, 66 Ill. 481, it was held that when a public agent acting within the scope of his general powers contracts in good faith with parties having full knowledge or equal means of knowledge of the extent of the public agent’s authority, the latter does not become individually liable unless the intent to incur personal responsibility is clearly expressed, although through ignorance of law his authority is exceeded. See also 4 McQuillin, Municipal Corporations, p. 159, par. 12.214.

Ill. Rev. Stat. 1965, ch. 53, par. 37a, provides that the county board shall fix the compensation of the sheriff and shall also fix necessary clerk hire and “other expenses.” In Coles County v. Messer, 195 Ill 540, 63 N.E. 391, it was said that expenses of the sheriff which are not fixed in advance by the county board cannot be recovered. In People v. Frick, 367 Ill. 446 at p. 450, 11 N.E.2d 955, it is said:

“County officers have no power to create a liability against the county for office expenses except within some limit already fixed by the county board, and while expense allowance for an office may be changed from time to time as circumstances may require, there is no liability unless an allowance has previously been made.”

Here, as in Frick, the burden of proof upon plaintiff was to show what action, if any, had been taken by the county board and nothing in this record meets such burden. Plaintiffs, as attorneys, are chargeable with knowledge of such law and may contract accordingly.

The finding of the trial court that the parties did not intend Wade to be individually liable is not contrary to the manifest weight of the evidence.

Under our conclusions, it is not necessary to discuss the contentions concerning the proper amount of fees allowed.

The judgment in favor of Wade individually is affirmed. The judgment in favor of plaintiff partnership against Wade as sheriff is reversed.

Reversed in part, affirmed in part.

SMITH, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE EBERSPACHER Mr. JUSTICE JONES

text:
    Carolyn L. Crawley, f/k/a Carolyn L. Bauchens, Plaintiff-Respondent-Appellant, v. Robert N. Bauchens, Defendant-Petitioner-Appellee.
    (No. 71-224;
    Fifth District —
    August 6, 1973.

      JONES, J., dissenting.
    James W. McRoberts, Jr., of East St. Louis, for appellant.
    Thomas Carter O’Brien, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

defivered the opinion of the court:

This is an appeal from an injunction order entered by the Circuit Court of Madison County, against Carolyn Crawley pursuant to post-divorce petitions filed by Robert Bauchens, her former husband. This was a non-jury proceeding, the subject matter of which was the parties’ minor child, Eric.

The parties herein were divorced in August, 1969. They had one child, Eric, who was 16 months old when the parties separated. The divorce decree of the Circuit Court of Madison County awarded custody of Erie to Carolyn, reasonable visitation to Robert, and Robert was ordered to pay $25 per week in support. For eleven months following the divorce, Robert lived near Chicago and Carolyn lived in Madison County. Carolyn allowed Robert to visit Eric whenever he asked. Robert visited three or four times for part of two or three days each time.

In March 1970, Carolyn met Major Joseph B. Crawley, a career army officer. Major Crawley had received orders in January 1970 transferring him to the Canal Zone as of April 5, 1970 for three years. Major Crawley is not a resident of Illinois but may be considered a resident of either Florida or the Canal Zone or both.

Beginning in May 1970, correspondence was exchanged between Carolyn and Robert wherein she advised him, first, that she was considering remarriage and, then, that she had decided to go to the Canal Zone and marry Major Crawley. Robert’s reaction was solicited and he wrote, with regard to going to the Canal Zone, that he would not “counter” what Carolyn felt was the proper course of action. On this basis Carolyn’s lawyer advised her that it was unnecessary to petition the court for leave to remove Eric from the state. No such petition was filed. In July 1970, Carolyn and Eric went to the Canal Zone where Carolyn married Major Crawley. They have resided in the Canal Zone continuously since that time.

In May 1970, Carolyn received a letter from Robert’s attorney stating that definite visitation arrangements should be made, considering her possible remarriage and residence at a distance. The suggestion was made by Robert’s counsel that Eric return for several weeks in the summer to visit Robert. Carolyn and Eric did not return to Illinois from July 1970 to June 1971. On or about June 21, 1971, Carolyn advised Robert through their respective attorneys, that Eric was in Madison County and available for visitation from June 21 to June 28 and from July 5 to July 11.

A month or two after Carolyn and Eric initially went to the Canal Zone, Robert stopped paying child support. When asked about the arrearage, Robert told Carolyn he had opened a bank account for Eric with himself as trastee. Since August 1970, Major Crawley has provided the sole support of Eric.

In March 1971, Major Crawley and Carolyn saw a lawyer about Major Crawley adopting Eric. Carolyn gave her consent to the adoption. Major Crawley filed a petition for adoption March 30, 1971 in the United States District Court for the Canal Zone, together with Carolyn’s consent. Notice of the adoption proceeding was served on Robert April 23, 1971. On April 30, 1971 Robert filed a petition in the Circuit Court of Madison County, Illinois for citation of Carolyn Crawley for removing Eric from Illinois to the Canal Zone ten months previously. Carolyn’s motion to dismiss was denied.

June 15, 1971 Robert appeared by counsel and filed responsive pleadings in the Canal Zone adoption proceedings, challenging the jurisdiction of the United States District Court on the grounds of Major Crawley’s non-residence. On July 8 and 9, 1971, additional petitions were filed by Robert in the Circuit Court of Madison County to enjoin Carolyn from proceeding with the adoption in the Canal Zone, to require her to withdraw her consent filed in the adoption and to restrain her from removing Eric from Illinois. Carolyn’s motions to dismiss were denied.

The trial court found that:

(1) Robert Bauchens was $1250 in arrears for child support but that such arrearage was not contemptuous;

(2) Carolyn Crawley’s removal of Eric to the Canal Zone was not contemptuous.

The trial court ordered:

(1) Robert Bauchens to pay the arrears and in future pay the child support directly to Carolyn Crawley:

(2) Carolyn Crawley be enjoined from removing Eric until $2500 bond is posted, bond further conditioned on (3), (4) and

(5);

(3) Eric be returned to Madison County for a one week visit in each of the months of September, December and July of every year at Carolyn’s expense;

(4) Carolyn to withdraw her consent filed in the adoption proceeding in the U.S. District Court for the Canal Zone;

(5) Carolyn to do nothing further to cause or permit Eric’s adoption.

These are two broad, basic issues:

(1) Did the Circuit Court of Madison County have jurisdiction of Carolyn Crawley and Eric Bauchens in this cause? and,

(2) Did the Circuit Court of Madison County have the right and authority to order Carolyn Crawley to withdraw her consent and to do nothing further to cause or permit Eric’s adoption?

The initial question to be answered, the sine qua non, is whether the Circuit Court of Madison County has jurisdiction over Carolyn Crawley (formerly Bauchens), Eric Bauchens and Robert Bauchens. The answer, briefly, is that the Illinois Circuit Court maintains jurisdiction over all three. It is true that the domicile of Carolyn is that of her new husband, Major Crawley. (Hildebrand v. Hildebrand, 105 Ill.App. 2d 261, 244 N.E.2d 866; U.S. ex rel. Boraca v. Schlotfedt, 109 F.2d 106). The general rule is that the domicile of a minor child of divorced parents is that of the parent to whom custody has been granted although the question would not appear to have been specifically decided in Illinois. (Yarborough v. Yarborough, 290 U.S. 202, 78 L.Ed. 269, 54 S.Ct. 181, 90 A.L.R. 924, 13 A.L.R.2d 313; State Tax Com. v. Felt, 331 Mass. 63, 117 N.E.2d 166; Bergen v. Bergen, (C. A. Virgin Islands) 439 F.2d 1008.) However, the law is clear in Illinois that subsequent to a divorce decree, the court granting such decree retains continuing jurisdiction of the parties with regards to children of the marriage, custody and support. (Eggemeyer v. Eggemeyer, 86 Ill.App.2d 224, 229 N.E.2d 144; Carlson v. Carlson, 80 Ill.App.2d 251, 225 N.E.2d 130.) Illinois courts have but recently reiterated the specific rule that a party may not avoid this continuing jurisdiction of the trial court which entered the original divorce decree by moving outside the court’s geographical jurisdiction. (McClellan v. McClellan, 125 Ill.App.2d 477, 261 N.E.2d 216; Sharpe v. Sharpe, 77 Ill.App.2d 295, 222 N.E.2d 340.) Further, it is to be noted that Eric Bauchens is a ward of the Circuit Court of Madison County Hale v. Hale, 5 Ill.App.2d 90, 124 N.E.2d 596.

Since the Circuit Court of Madison County had acquired jurisdiction over these parties, the salient interrogatory becomes whether that court had the authority to issue the orders that it did. Appellant prays that the entire order of the circuit court be reversed or alternatively that it be reversed in those parts (1) ordering appellant to withdraw her consent filed in the U.S. District Court in the Canal Zone, (2) ordering that she post $2500 bond to guarantee visitation and (3) ordering visitation at appellant’s expense for one week at a time in the months of September, December and July in Madison County each year.

The first and third orders deal solely with issues of support and visitation. Under the Divorce Act, 40 SHA § 14, § 19, the court is given authority to fix and amend on petition visitation (custody) and child support. The court’s jurisdiction over these matters, as arising out of the original divorce grant, is continuous and at least arguably exclusive. (Eggemeyer, supra; Carlson, supra; McClellan, supra; Sharpe, supra; Hale, supra, respectively.) The setting of the terms of support and custody (visitation) is discretionary with the court, (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Froman v. Froman, 73 Ill.App.2d 421, 218 N.E.2d 808). The general rule is that this judicial discretion is subject to review by an appellate court only for abuse thereof. (Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Scalfaro v. Scalfaro, 123 Ill.App.2d 23, 259 N.E.2d 644; Carroll v. Carroll, 116 Ill.App.2d 172, 252 N.E.2d 759.) No cases have been discovered which indicate that such .a visitation order as this constitutes an abuse and certainly no cases indicate that enforcement of a child support order made in the original decree is an abuse. On the other hand, in Schmidt v. Schmidt, 346 Ill.App. 436, 105 N.E.2d 117, an order similar in terms to this circuit court’s order on custody, visitation and payment therefore by the parent with custody was held not to constitute an abuse of judicial discretion. We note from the record that Carolyn Crawley testified that visitation such as this would be “unwise” because Robert Bauchens is a musician and is absent from home in the evenings and because of the extreme length of the journey in light of the child’s tender age. However, the Report of Proceedings reveals that, Carolyn Crawley, through her attorney, agreed with the court and the defendant appellee, Robert Bauchens, on the terms of visitation in the court’s order.

The second order of the circuit court ordered Carolyn Crawley to post a security bond in the sum of $2500 to assure that Eric would be returned in compliance with the visitation order and to assure her compliance with the fourth and fifth orders. Under the Divorce Act, 40 SHA § 14, the court may require the party removing the child from Illinois to give reasonable security guaranteeing the return of such child. $2500 does not seem to be an inordinantly unreasonable sum to guarantee compliance with the court’s visitation order. The question of the ability of the court to order a security bond for conformance to its fourth and fifth orders is better left until after a discussion of the court’s ability to enter those orders.

The fourth order is a mandatory injunction requiring Carolyn Crawley to withdraw her previously filed consent to the adoption of Eric in the District Court of the Canal Zone. The appellant has cited a number of cases holding that an Illinois court will not restrain the prosecution of a suit which has already been commenced in another jurisdiction. (Kleinschmidt v. Kleinschmidt, 343 Ill.App. 539, 99 N.E.2d 623; James v. Grand Trunk Western R.R., 14 Ill.2d 356, 152 N.E.2d 858.) However, these cases involved courts of another State, not a Federal court.

The appellant also cites three early Illinois decisions for the principle that a state does not have the power to restrain a person from litigating in a Federal court or to enjoin the Federal proceeding. (Munson v. Harroun, 34 Ill. 422; Logan v. Lucas, 59 Ill. 237; and Sproehnle v. Dietrich, 110 Ill. 202.) And there do not appear to be any more recent Illinois cases.

However, a decision of the United States Supreme Court seems dis-positive of the present case. In Donovan v. City of Dallas, 377 U.S. 408, the Supreme Court granted certiorari to review a decision by the highest court in Texas which had directed the Texas Civil Court of Appeals to enjoin plaintiffs in a Federal suit from proceeding further in the Federal court. Some of the plaintiffs had even been found in contempt by the time the Court granted certiorari. In holding that the Texas court had exceeded its jurisdiction, the Court held, at 413, that: “Petitioners being properly in the Federal Court had a right granted by Congress to have the Court decide the issues they presented, and to appeal to the Court of Appeals from the District Court’s dismissal # 6 *. That right was granted by Congress and cannot be taken away by the State.” Emphasizing that this principle applied to an in personam action which has already been initiated in a Federal court. Mr. Justice Black reviewed the historical precedents and quoted at length from Peck v. Jenness, 7 How. 612, at 625:

“[W]here the jurisdiction of a court, and the right of the plaintiff to prosecute his suit in it, have once attached, the right cannot be arrested or taken away by proceedings in another court * # *. The fact, therefore, that an injunction issues only to the parties before the court, and not to the court, is no evasion of the difficulties that are the necessary result of an attempt to exercise that power over a party who is a litigant in another and independent forum.”

The difficulty in applying this reasoning to the present case is that Carolyn Crawley is not a party in the adoption proceeding in the district court. However, since her consent there is essential to the adoption proceeding, the withdrawal of her consent, if it is possible at all, would preclude further proceeding there. Her consent is the sine qua non of the adoption proceeding. She is as essential to the proceedings as are her husband and child. Accordingly, we hold that the effect of the trial court’s order is to interfere with the proceeding in the United States District Court, and to interfere with the rights of the parties in that proceeding, granted by Congress, to have that court decide the issues there presented. Such rights cannot be taken away by the State. As a result, as in Donovan, the State court has exceeded its jurisdiction. In support of the conclusion we have reached, we have researched State and Federal decisions and we have found no cases dealing with the question whether a State court can enjoin a nonparty, whose participation is essential to the proceeding in the district court. However, the approach taken by Mr. Justice Black, in relying on the Peck case, seems equally applicable to the present case.

It has been suggested that the United States District Court for the Canal Zone is not a “constitutional” court, created by art. Ill, sec. 1 of the United States Constitution, but is what is termed as a “legislative” court, the jurisdiction of which is derived from the constitutional power of Congress to legislate in furtherance of constitutional aims; that in this particular case the district court for the Canal Zone is a “legislative” court established by Congress pursuant to article IV, sec. 3 of the United States Constitution which confers upon Congress the power to make all needful rules and regulations respecting territory belonging to the United States. See; American Insurance Co. v. Canter 1 Pet. 511, 7 L.Ed. 242; McAllister v. United States (1891), 141 U.S. 174; Glidden Co. v. Zdanok 370 U.S. 530 at 544-547; and Palmore v. United States (1973), 93 S.Ct. 1670.

We consider the impact of those decisions is that despite the distinction between article III courts and those which exercise jurisdiction over matters not included within the article III powers, the courts not created pursuant to article III may exercise jurisdiction,- such as domestic relations jurisdiction of the Canal Zone Court. What is significant is that the right to maintain actions in the Canal Zone Court is a right created by Congress. In Donovan v. City of Dallas, supra, the holding is not limited to an Article III court; and the case makes it clear that Congress has created a “right to federal-court remedies” and that the right thus created “cannot be taken away by the States”. Even though it is not expressly stated, the basis of the decision would appear to be Article VI of the U.S. Constitution, “The Constitution, and the Laws of the United States which shall be made in pursuance thereof * * * shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in this Constitution, or Laws of any State to the Contrary notwithstanding”.

Furthermore, even if we were to determine that the status of this matter in the Canal Zone Court was the same as if the matter were pending in a sister State court, Kleinschmidt v. Kleinschmidt and James v. Grand Trunk Western R.R. Co., heretofore cited, would lead us to conclude that since the Canal Zone Court has jurisdiction of the subject matter, and all the interested parties, action there should not be restrained.

Since the trial court cannot order Carolyn Crawley to withdraw her consent in the Canal Zone proceeding, then it cannot condition a security bond on the performance of an act it cannot order. Furthermore, the same reasoning acts to invalidate the fifth order, providing that she is to do nothing further to cause or permit Eric’s adoption.

This decision is not inimical to the public policy of the State of Illinois. The District Court has jurisdiction over Major Crawley, Carolyn Crawley, Eric Bauchens and Robert Bauchens. There is no reason to believe that the court will not act in the best interests of Eric. All interested persons are within the court’s jurisdiction and it is in the best position to render a decision. Even in those cases involving the enjoining of parties or proceedings in other State courts, our courts have taken the position that they will not issue an injunction unless there is fraud, gross wrong or oppression, or unless suit was initiated in another State to circumvent Illinois law. (Kleinschmidt v. Kleinschmidt, supra; James v. Grand Trunk Western R.R., supra.) None of these factors are present in this case.

Accordingly, those parts of the trial court order dealing with child support and visitation are affirmed; that part of the order requiring the posting of a bond is affirmed to the extent conditioned on Carolyn’s compliance with the visitation order, those parts of the order requiring Carolyn’s withdrawal of consent and prohibiting her from doing anything further to cause or permit the adoption are reversed.

Affirmed in part, reversed in part.

CREBS, J., concurs.

Mr. JUSTICE JONES

dissenting:

The majority have succeeded in making a federal case out of an ordinary adoption action and on the basis of the supremacy clause of the United States Constitution they have voided the injunction of the Illinois court.

Because of the nature of this case I do not believe that the supremacy clause of the constitution is invoked nor that the Illinois court was acting beyond its proper power in issuing the injunction in this case. Accordingly, I respectfully dissent.

The majority recognize that there is a distinction that may be made in the origin of Federal courts, that all of them are not the so-called art. Ill or “constitutional” courts. Some Federal courts are created by acts of Congress implementing other provisions of the constitution and these courts have only the jurisdiction prescribed by Congress. (See ex parte Bakelite Corp., 279 U.S. 438, 49 S.Ct. 411.) These courts have been termed “legislative” courts and their jurisdiction is not “the judicial power of the United States” as established by art. Ill, sec. 1 of the United States Constitution. (Good v. Martin, 95 U.S. 90; McAllister v. United States, 141 U.S. 174.) However, the jurisdiction and power of a “legislative court” may be so conferred as to include that of an art. Ill court. (Palmore v. United States, 93 S.Ct. 1670.) In the case under consideration, then, the District Court for the Canal Zone is a “legislative court” established by Congress pursuant to art. IV, sec. 3 of the constitution which confers upon Congress the power to make all needful rules and regulations respecting territory belonging to the United States.

While recognizing the fact that the District Court of the Canal Zone is a “legislative court,” the majority point to the origin of its jurisdiction in adoption cases as an act of Congress and on the basis of Donovan v. City of Dallas, 37 U.S. 408, hold the supremacy clause of the constitution preempts any consideration of state court action. No attention is given to the rules of the conflict of laws.

Crucial, I believe, to the proper resolution of the issues in this case is a consideration of the type of proceeding before the Canal Zone Court, i.e., an ordinary adoption, a domestic relations matter. While it is true that the Canal Zone court was created by Congress, it must also be considered that in an adoption proceeding that court is not exercising the “judicial power of the United States” as defined in art. III. Rather it is exercising power conferred by Congress in providing laws for the internal governance of the Canal Zone. The Canal Zone adoption law is special and limited in the scope of its application to that territory; it is not a generic law applicable to all the States. Adoption is a proceeding peculiarly and exclusively the concern of the States. The issuance of the injunction controlling the adoption in the Canal Zone does not interfere with nor is it in contravention of the constitution or any law made by Congress pursuant thereto. An adoption statute, limited in the scope of its application to the Canal Zone, having no application to the several States, not in any way invoking the judicial power of the United States as defined and conferred by art. Ill, and not in any way involving a federal-state relationship, does not confer jurisdiction on a Canal Zone court, albeit a federal court, to effectively require, or even permit, it to override the State court and oust it from jurisdiction in this case. The question presented here would not even have arisen but for the fortuitous circumstances that sent the plaintiff-wife to the Canal Zone; had she gone to any State in the union a federal cotut could not have become involved. I believe the relative powers of the two courts to decide the case in question are to be determined by the traditional rules of the conflict of laws. (See Restatement of the Law, Conflict of Laws, 2d, sec. 3, comment a.) In Applegate v. Applegate, 39 F.Supp. 887, a divorced wife was seeking to garnishee her ex-husband’s wages to recover alimony in arrears. The original decree for divorce and alimony was rendered in the U.S. District Court for the District of Columbia. The garnishee proceeding was in the U.S. District Court for the Eastern District of Virginia. The court stated:

“Federal Courts outside the District of Columbia and of certain territories have no jurisdiction generally pertaining to divorce and alimony. That has been left entirely to the State courts. * * * In coming into this court upon a decree of the District Court for the District of Columbia, the plaintiff to all practical purposes occupies the same position as if she were relying upon the decree of a competent court of one of the States.” (Emphasis supplied.)

Also see Simms v. Simms, 175 U.S. 162.

I believe that in this case we are to consider the Federal District Court in the Canal Zone in the same manner and position as the court of any of the other States of the United States and not as a court exercising “the judicial power of the United States” as that phrase is used in art. Ill of the United States Constitution. Donovan v. City of Dallas does not, and it was not intended, to abolish the distinction between courts created pursuant to art. Ill and those “legislative” courts created in the implementation of other articles of the constitution. The Donovan case was concerned with an art. Ill federal court exercising its traditional “judicial power of the United States” jurisdiction. Accordingly, I believe Donovan inapplicable to this case.

Departing from the “federal court” rationale, the majority claim support for their result under the traditional conflict of laws concept that the first court to obtain jurisdiction of a cause may proceed to exercise that jurisdiction to the conclusion of the case and no court of another State will interfere. They cite for this proposition Kleinschmidt v. Kleinschmidt and James v. Grand Trunk West. R.R. Co. I am in agreement with the rule and the authorities but differ with the majority in their application in this case. They require its affirmance rather than its reversal.

In this case the wife had thoroughly litigated the custody question in the Circuit Court of Madison County, submitting herself and the child to the jurisdiction of that court. When she failed to get the desired result she forthwith went to the Canal Zone with the child and, according to the record, went with her new husband to seek a lawyer for an adoption proceeding in the Canal Zone. To me this circumstance shows the plaintiff-wife had a complete disregard for the order of the Circuit Court of Madison County and places her in the position of a scofflaw. In consenting to the adoption in the Canal Zone proceeding the mother of the child is committing an act of contempt against the Madison County court since she is directly subverting its jurisdiction and contradicting an order touching the custody of the child. Her action will serve to deprive the father of his custody rights under the Illinois decree as well as to deprive him of his child. We are not dealing here with the authority of the court of another State in which the child is present to make new or different orders of custody based upon a change of circumstances having occurred following a prior custody order in another State. Unquestionably, such amendatory orders are proper. (People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382; Wilner v. Wilner, 131 Ill.App.2d 891, 266 N.E.2d 918.) The proceeding in the Canal Zone is not one arising out of a “change in circumstance” of the child nor is it a proceeding to determine what is in the best interests of the child. It is a proceeding totally alien to the award of custody in the Illinois court.

Of salient importance in the determination of the validity of the injunction is the fact that the plaintiff-wife appeared, with counsel, and litigated the injunction question before the Illinois court and she remains subject to its jurisdiction and subject to its injunctive order. Furthermore, the plaintiff-wife is not a party to the Canal Zone adoption proceeding.

Restatement of the Law, Conflicts of Laws, 2d, sec. 53 states that:

“A state has power to exercise judicial jurisdiction to order a person, who is subject to its judicial jurisdiction, to do an act, or to refrain from doing an act, in another state.”

As noted above, sec. 3 of the same Restatement provides that the word “state” includes the Canal Zone. In James v. Grand Trunk West. R.R. Co. the court states:

“* * * while we quite agree with defendant’s repeated assertion that a court of equity has power to restrain persons within its jurisdiction from instituting or proceeding with foreign actions (Cole v. Cunningham, 133 U.S. 107, 33 L.ed. 538; 6 A.L.R.2d 896), we note that the exercise of such power by equity courts has been deemed a matter of great delicacy, invoked with great restraint to avoid distressing conflicts and reciprocal interference with jurisdiction. [Citations.]
Illinois has consistently followed the course of refusing to restrain the prosecution of a prior instituted action pending in a sister State unless a clear equity is presented requiring the interposition of the court to prevent a manifest wrong and injustice; and neither a difference of remedy afforded by the domicile and the forum nor mere inconvenience and expense of defending will constitute grounds for such an injunction. [Citations.] That course is based on the policy that after suits are commenced in one State, it is inconsistent with inter-State harmony if their prosecution be controlled by the courts of another State.”

Here we have a case of clear and overriding equity; it is the interest of a capable, fit and proper father in retaining his son. The question has been litigated. Must the father now go into any jurisdiction which the wife may select for further litigation to preserve his parental rights?

There are cases in which it has been held that an out of State decree awarding custody may not deprive a court of a State in which a child is present of jurisdiction to entertain an adoption action. (See People ex rel. Bachleda v. Dean, 48 Ill.2d 16, 268 N.E.2d 11; In re Adoption of Greer, Okla., 463 P.2d 677; In re Lewis’ Adoption, Okla., 380 P.2d 697; In re Adoption of Rule, Mo.App., 435 S.W.2d 35; In re Burton’s Adoption, Calif., 305 P.2d 185.) However, those cases should not be applicable here because of the injunction which has issued after notice and a hearing in which the plaintiff-wife has participated.

I would affirm the order of the trial court.

       See Canal Zone Code, Title 8, Ch. 11, §§ 381, 382, 76A Stat. 690.
      “§ Adoption Generally
      (b) Written consent to the adoption must be given by the child, if of the age of 14 years, and:
      (1) by each living parent who is not incompetent, intemperate, or otherwise unfit, or has not abandoned the child; * * *
      § Adoption by stepfather or stepmother
      (b) Written consent of the adoption is required, as provided by section 381 of this title, except that if the custody of the child has been awarded to the petitioner’s spouse, the consent of the other parent is not required.”


author: Mr. JUSTICE JONES

text:
    Marjorie Wallace, Plaintiff-Appellee, v. Blue Cross Hospital Service, Inc., Defendant-Appellant.
    (No. 72-289;
    Fifth District —
    August 8, 1973.

      Schlafly, Godfrey & Fitzgerald, of Alton, and Keefe, Schlafly, Griesedieck & Ferrell, of St. Louis, Missouri, (J. F. Schlafly and F. M. Lawder, of counsel,) for appellant.
    Chapman, Talbert & Chapman, of Granite City, (James F. Thebeau, Jr., of counsel,) for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This is an appeal in a small claims action instituted by the plaintiffappellee against the defendant-appellant insurance company to recover hospital expenses. The trial court, sitting without a jury, entered judgment for the plaintiff-appellee. Following denial of a motion to set aside and vacate the judgment, notice of appeal to this court was filed on August 4, 1972.

Marjorie Wallace, the appellee, was employed by Venture Stores in March 1969. Her employment continued until voluntarily terminated on March 12, 1971. While an employee of Venture Stores she was provided with group hospitalization coverage, originally through Travelers Insurance Company. On November 1, 1970, this group coverage was changed to Blue Cross-Blue Shield.

The record shows that appellee knew when she voluntarily left Venture her group hospitalization coverage would end. She was told by Venture at that time that she could apply for individual or Direct Pay Membership with the appellant. She was told and understood that membership in the Direct Pay Membership plan would be for the quarter April 1, 1971, to July 1, 1971.

From May 14, 1971, to May 29, 1971, appellee was hospitalized in St. Elizabeth’s Hospital in Granite City, Illinois. The admitting diagnosis for this period of hospitalization, made by Dr. W. W. Bowers, her family physician, stated:

“ADMITTING DIAGNOSIS: Post laminectomy syndrome. Possible recurrent disc.
This 44 year old female is admitted again to the hospital because of severe pain in her back with radiation into both legs, especially the right leg. The patient has had numerous previous hospitalizations with similar complaints. She was hospitalized from 9-27-70 to 10-3-70 and had intensive physiotherapy to her back with improvement. The patient had a laminectomy and removal of scar tissue, disc material on 3-29-65 and the patient had had previous admission in April 1964 at which time the herniated disc at the level of L5-S1 was removed. The past history is given.”

It was for this hospitalization that the claim against the appellant was made.

Though there is some conflict in the testimony regarding the date on which the appellee remitted her premium for coverage under the Direct Pay Membership plan for the period April 1 to July 1, we think it established that this premium was remitted on June 10, 1971. This was after the period of her hospitalization and one day prior to receipt of her claim by the appellant. The late premium payment was accepted by appellant, however, and there is no question about the Direct Pay Membership plan being in effect for the appellee during this period. Again there is conflict in the testimony regarding receipt by the appellee of her Direct Pay Membership certificate. This certificate states the terms and conditions of membership. In view of conflicting answers given by the appellee; in view of the statement by the appellant that the certificate was enclosed with a copy of the bill and mailed to the appellee; and in view of the fact that a copy of the bill was returned with her payment, it is not unreasonable to assume that the appellee received a copy of the certificate.

The Direct Pay Membership certificate provides (section V. B.) that coverage does not include hospital care during the first year after the effective date of the participant’s current membership for:

“1. Any illness or condition (whether or not known to the participant) which is the same as or develops from an illness, condition, or symptom existing before said effective date, or
2. Any illness or condition which is the same as or develops from an illness, condition or symptom for which the participant was under a physician’s care or for which medical or surgical care was recommended before said effective date.”

This section of the certificate further provides that:

“A participant, continuously enrolled, who has an aggregate of one year’s membership, under this Certificate, or under a prior membership which also provided benefits for prior conditions after a waiting period, shall be deemed to have satisfied the one-year waiting period hereunder.”

Appellant argues that the certificate constitutes its contract with appellee and that provisions in the certificate preclude recovery by the appellee because she was in the hospital for a pre-existing condition, and her total time of coverage by the appellant is less than one year since coverage by appellant under its group plan at the time appellee was employed by Venture commenced only in November 1970.

Appellee argues that the certificate does not constitute her contract with appellant; that certain statements in the Direct Pay Membership certificate and in an information leaflet to members, coupled with verbal statements to appellee by personnel of the appellant that she would be covered, have the effect of continuing the same coverage she had under the group plan when she was employed by Venture. Appellant and appellee agree that under this latter plan hospitalization or treatment for a pre-existing condition, though occurring during the first year of coverage, does not prevent recovery. It should be noted that a copy of the group plan was not put in evidence and is not in the record.

The trial court found for the appellee in the amount of $989.10, stating that there was continuous coverage under Blue Cross during her employment and thereafter until July 1, 1971, and that under such coverage the less restrictive provisions of the Venture group plan applied.

We disagree with the finding of the trial court. We are mindful of the accepted rule established by a long line of Illinois cases that the reviewing court does not disturb findings of fact and the resolving of

conflicts in evidence by the trial court unless the judgment or order appealed from is against the manifest weight of the evidence. In support of this principle appellee cites Croft v. Lamkin, 112 Ill.App.2d 321, 251 N.E.2d 88; and Marine Trust Co. of Buffalo v. Reynolds, 308 Ill.App. 595, 32 N.E.2d 366. But our Illinois courts have also recognized that though a strong presumption exists in favor of the trial court’s findings, it is a rebuttable presumption. Illinois Supreme Court Rule 366(b)(1) (ii) (Ill. Rev. Stat, ch. 110A, sec. 366(b) (1) (ii)) states:

“Any error of fact, in that the judgment or order appealed from is not sustained by the evidence or is against the weight of the evidence, may be brought up for review.”

In Reed v. Washington National Insurance Co., 6 Ill.App.2d 49, 126 N.E.2d 517, the plaintiff applied for reinstatement of a lapsed policy. To reinstate she was required to present evidence “* * * satisfactory to the company of the sound health of the insured * * Evidence submitted to the trial court showed that she was not in sound health. Nevertheless the trial court found for the plaintiff on the theory that she did not know that she was in bad health and thus did not intentionally mislead the insurer. The reviewing court, upon examination of the record, concluded that she did know that she was not in sound health at the time of applying for reinstatement and reversed the judgment of the lower court.

In Friedman Electric Co. v. St. Clair County Housing Authority of East St. Louis, 23 Ill.App.2d 16, 161 N.E.2d 473, the court states:

“If, from a consideration of the whole record, it appears to us that the evidence does not justify the judgment, it is our plain duty to reverse.”

Almost identical language is used in Sharkey v. Sisson, 310 Ill. 98, 141 N.E. 427. We conclude that the rule announced in these latter two cases, in the Reed case, and in Supreme Court Rule 366 are applicable in the instant case.

Appellee had continuous coverage -until July 1, 1971, first under a group plan while she was employed by Venture and then under her Direct Pay Membership certificate from April 1 to July 1. Though we do not know what the terms and conditions under the group plan were, we do not agree that as a matter of contract the same terms and conditions of coverage which applied under the group plan were continued when she left Venture Stores and secured coverage under the Direct Pay Membership plan.

In the absence of some ambiguity which we would be compelled to resolve in favor of the insured and in the absence of facts showing that she has been mislead by being wrongly or inadequately informed, her rights must be determined by applicable contractual provisions, namely those contained in the Direct Pay Membership certificate. It should be noted that at the time appellee stated that she was told by employees of appellant that her claim would be paid she had previously remitted her premium and had been released from the hospital. Any rights she had were determinable from facts then in existence. Statements made by agents of an insurance company must be considered in context, and an “off the cuff” incorrect statement by an agent who is not familiar with the existing contractual status of his company and a particular insured does not change the contract between his company and the insured.

Though the informational leaflet referred to in the record is not part of the insurance contract, the trial court based its decision in part on the following language from the leaflet:

“One of the big advantages of Blue Cross-Blue Shield is that you can take it with you wherever you go. Your membership can be transferred with continuous protection to the plan serving your community.”

But this informational leaflet goes on to say:

“The enclosed statement of dues will cover the period needed to complete transfer. During this time your coverage will be that of the Direct Payment program as explained in the enclosed certificate.” (Emphasis added.)

We interpret this to mean that though one’s membership can be transferred with continuous protection, identical policies or types of coverage will not necessarily be transferred; that continuous coverage does not have to be identical coverage.

In support of its decision the trial court cited tibe section on conversion privilege (VIII A) of “Terms and Conditions of Membership” under the Direct Pay Membership certificate. A careful reading of this section shows that it does not apply to the conversion rights of a participant but provides that an eligible dependent of a participant may within 30 days after termination of the participant’s coverage, death of the participant member, or termination of his own eligibility to be covered as a dependent, apply for membership in Blue Cross Hospital Service.

While we recognize the rule that ambiguous or equivocal expressions whereby an insurer seeks to limit its liability will be construed strongly against the insurer and liberally in favor of the insured (Mosby v. Mutual Life Insurance Co. of New York, 405 Ill. 599, 92 N.E.2d 103; Lenkutis v. New York Life Insurance Co., 374 Ill. 136, 28 N.E.2d 86), we are also mindful that this rule does not authorize a distortion of Ianguage or the exercise of inventive powers for the creation of ambiguity where none exists (Crosse v. Supreme Lodge Knights and Ladies of Honor, 254 Ill. 80, 98 N.E. 261) and that it must yield to reasonable construction (Lundquist v. Illinois Life and Accident Insurance Co., 24 Ill.App.2d 316, 164 N.E.2d 293; Broccolo v. Horace Mann Mutual Casualty Co., 37 Ill.App.2d 493, 186 N.E.2d 89.) We find no ambiguity in the contractual provisions applying to the appellee and no evidence of acts on the part of the appellant which would prevent the language of the certificate from applying.

The appellee entered a new contract with the appellant when she entered the Direct Pay Membership plan, and the terms and conditions of membership in her certificate are binding. One of the conditions is that coverage does not extend during the first year to hospitalization for a pre-existing condition. The record shows that she was admitted for a pre-existing condition before the certificate, coupled with her prior coverage at Venture, had been in force for one year.

Judgment reversed.

EBERSPACHER, P. J., and CREBS, J., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    Roy J. Smiley and Patricia Emanuel, Admr. of the Estate of Byron E. Emanuel, Deceased, Plaintiffs-Appellees, v. Manchester Insurance and Indemnity Company of St. Louis, Defendant-Appellant.
    (No. 72-189;
    Second District —
    August 23, 1973.

      Barrick, Jackson, Switzer, & Long, of Rockford, (Peter S. Switzer, of counsel,) for appellant.
    Reese, Schlueter & Ecklund, of Rockford, for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant, Manchester Insurance and Indemnity Company of St. Louis, appeals from a summary judgment awarding plaintiffs damages in excess of policy limits due to defendant’s negligence and bad faith in refusing to settle within policy limits.

Plaintiffs’ complaint and accompanying documents set forth that Roy J. Smiley and Byron E. Emanuel were involved in an automobile accident with Charles Toney, who held a policy of insurance with defendant having limits of $10,000 per person and $20,000 per accident. Emanuel and Toney were killed in the accident, and Smiley was badly injured. Smiley and the Administrator of Emanuel’s estate sued the Administrator of Toney’s estate for negligence, asking damages of $50,000 and $100,000 respectively. The case went to trial and, after jury selection but prior to opening statements, each plaintiff offered to settle their claim for $10,000. Defendant’s attorney refused. Judgment was thereafter rendered in favor of Smiley for $25,000, and in favor of Emanuel’s estate for $30,000. No appeal was taken.

The Administrator of Toney’s estate assigned any right of action it might have against defendant to plaintiffs in return for their agreement not to collect the excess judgments, amounting to $35,000, from the estate. Plaintiffs then instituted this action, alleging that liability in their action against Toney’s estate was not questionable, and that defendant negligently and in bad faith failed to settle plaintiffs’ claims within policy limits, thereby damaging Toney’s estate in the amount of $35,000. The complaint listed ten specific acts of bad faith and negligence on the part of defendant.

Defendant filed an answer denying each of the allegations of plaintiffs’ complaint, and setting forth some sixty affirmative defenses.

An evidence deposition of Robert C. Bourland, Jr., the Administrator of Toney’s estate, indicated that after notifying defendant of plaintiffs’ original lawsuit, he received a letter from Attorney Clifford Stoner stating that Stoner represented some people who were passengers in Toney’s automobile. Bourland sent this letter to defendant, and later received a letter from the law office of Knight and Knight stating that it was handling the plaintiffs’ lawsuit on the part of defendant, and saying “Refer Mr. Stoner to us.” Bourland had no further written correspondence with defendant or its attorney regarding plaintiffs’ claims, and was not informed of any offers of settlement or the possibility of an excess verdict. He stated that an inventory of the estate showed Toney’s only asset to be the insurance policy of defendant.

Samuel J. Goldenhurst, Vice President and General Counsel of defendant, William Blackwell, Claims Supervisor of defendant, and William D. Knight, Jr., defendant’s attorney in the original suit, appeared before the court in response to plaintiffs’ motion to produce and demand for admission of facts.

Mr. Knight stated that Blackwell authorized him to expend the $20,000 limit, with $17,000 going for the plaintiffs’ claims, and $3,000 being held for the claims of the two people represented by Attorney Stoner. He said he later received a memo from Blackwell saying “Confirming our conversation of this date, you do have authority to offer our policy limij twenty thousand dollars, dispose of the pending suits should the need arise.” He said that he made no offer of $17,000 to plaintiffs, and that when plaintiffs demanded $20,000, he refused the offer and let the case go to trial because accepting it would have left nothing for the other two possible claims.

Mr. Goldenhurst stated that the insurance company employed the firm of Knight and Knight to defend the original suit, and said he had seen this file from the beginning and reserved it for $21,000 (which included $1,000 for property damage). He said the company knew it had a serious case, and “it was just an outright case of negligence * * He agreed that the medical was more than adequate to support the verdict of $10,000 in favor of Smiley, and admitted that each of the plaintiffs offered to settle their respective claims for $10,000. He said that Knight had both written and oral authorization to expend the full $20,000 amount of the pohcy, and that Knight was instructed to try to settle the two cases for $17,000, but if his back was against the wall, to pay the $20,000. Goldenhurst said he didn’t know if it was bad faith or negligence on Knight’s part, but “he was acting in direct violation of our instructions.” He said, “I respectfully submit that this case should never have been tried. The case should have been settled in accordance with the instructions. The case was not settled in accordance with the instructions.”

Goldenhurst then made a sworn statement in which he stated that he was aware that this was a pohcy limits case, and that his examination showed recovery definitely might run in excess of the pohcy limits. He said Knight raised the question of expending the full coverage on the two matters in litigation and leaving the two unfiled claims open, and said the company decided to authorize Knight to pay the fuH $20,000 and so advised him by telephone and in writing. He closed by saying, “I would ask the Court under the circumstances to evaluate the proposed situation as I think we now understand it. It is down to what our responsibihty is and in the light of BiH Knight’s conduct.”

Mr. Blackwell, defendant’s claim supervisor, stated to the court that Knight was given responsibihty to negotiate with plaintiffs for settlement purposes both prior to and during the course of the trial.

Plaintiffs filed a motion for summary judgment on the basis of this testimony and the documents and pleadings before the court, and the motion was granted.

An insurance company may so conduct itself as to be hable for an entire judgment recovered against its insured, irrespective of its pohcy limits. Conduct constituting fraud, negligence, or bad faith may render the insurer so liable for its failure to settle a case. (Olympia Fields Club v. Bankers Indemnity Insurance Co., (1945), 325 Ill.App. 649, 673; Cernocky v. Indemnity Insurance Co. of North America (1966), 69 Ill.App.2d 196, 204.) No duty arises on the part of the insurer to the insured unless recovery may exceed the pohcy Emits of the insured’s protection, but if it may, the insurer has the duty “to give to the insured’s interest consideration, at least equal to that of its own.” (Court’s emphasis.) Cernocky v. Indemnity Insurance Co. of North America (1966), 69 Ill.App.2d 196, 207.

Defendant argues that plaintiff failed to reply to the affirmative defenses stated in its answer, that they are therefore admitted, and that issues of fact preventing summary judgment are thus presented. (DiBattista v. Centennial Insurance Co. (1964), 52 Ill.App.2d 84, 85.) It argues that even absent this failure on plaintiffs’ part, issues of fact as to defendant’s negligence and bad faith in refusing to settle exist, and that summary judgment is improper.

We have concluded, however, that the statements and admissions made to the court on the part of the insurance company waived the issues raised by the pleadings and by the failure to file a reply, and admitted the ultimate fact of bad faith.

Goldenhurst’s statements on the part of the insurance company admitted that the case was one of clear negligence on the part of the insured; that he considered it a policy limits case, with a good possibility of recovery in excess of policy limits; and that the case should never have gone to trial, but should have been settled. He said the company’s attorney was authorized and instructed to settle the case for policy limits if it could not be settled for $17,000, and that Knight acted in direct violation of instructions when he failed to do so. The sole question he asked the court to consider was whether the company was responsible for Knight’s conduct. This issue has not been raised on appeal.

Defendant argues that Goldenhurst’s testimony does not establish that plaintiffs’ claims should have been settled, because the testimony does not show that the company considered the other two possible claims against the policy when it instructed Knight to settle for policy limits. However, Goldenhurst’s affidavit states that these claims were brought to the company’s attention by Knight, and the company then decided to authorize payment of the full policy amount to plaintiffs.

Goldenhurst’s statements stand as an admission that plaintiffs’ claims should and would have been settled for policy limits but for the bad faith of Knight, and waive the failure to reply to the affirmative defenses. No question of fact exists as to defendant’s bad faith in failing to settle plaintiffs’ claims.

Defendant further contends that recovery cannot be had because the insured’s estate contained no assets except this insurance policy, and therefore could not be damaged by any judgment against it. There being no possibility of damage, defendant argues that the insured’s estate received no consideration for the assignment of its claim, and the assignment was invalid.

The question of whether an insolvent estate can be damaged by a judgment against it was answered affirmatively in Wolfberg v. Prudence Mutual Casualty Co. of Chicago (1968), 98 Ill.App.2d 190. The court conducted a comprehensive analysis of authorities in other jurisdictions, including Dumas v. Hartford Accident & Indemnity Co. (N.H., 1942), 26 A.2d 361, cited by defendant, and concluded that the very fact of entry of judgment constitutes damage and harm sufficient to permit recovery. It said the damage to the estate is the creation of the liability for the judgments, and the rule of damages is that incurrence is equivalent to outlay. It also said the insured would have had an action if alive, though insolvent, and his death is no reason to give a boon to the insurer; and that, were payment the rule, an insurer with an insolvent insured would be encouraged to unreasonably refuse to settle. See Annotation, 40 A.L.R.2d 168.

We agree with the reasoning of Wolfberg, and note further that the possibility exists that further assets could be discovered and the estate would be forced to satisfy a seemingly worthless judgment. Defendant discounts this in the case before us, saying that the estate has in fact been closed, with no claim filed against it by plaintiffs, and that the claims would thus be barred even if assets were discovered. However, this overlooks section 204 of the Probate Act, which allows later claims to be filed if the executor or administrator files an inventory listing estate not previously inventoried. Ill. Rev. Stat. 1971, ch. 3, par. 204; In re Estate of Bird (1951), 410 Ill. 390, 396.

Childress v. State Farm Mutual Auto. Insurance Co. (1968), 97 Ill. App.2d 112, cited by defendant, is distinguishable and, in fact, was decided concurrently with and distinguished by the Wolfberg case. In Childress, the insured was wholly insulated from ever incurring any personal liability by reason of an intervening covenant by the terms of which his liability and subjection to damages were wholly removed. The insured thus could not incur liability to pay an excess judgment, regardless of what assets he possessed. Here, in contrast, judgment could be and was taken against the administrator of the estate, and the question then became the ability of the estate to pay the claim.

The judgment of the circuit court is affirmed.

Affirmed.

GUILD, P. J., and DIXON, J., concur.