text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL ZOZAK, Defendant-Appellant.
    Fifth District
    No. 80-255
    Opinion filed October 14, 1981.

      John H. Reid, of State Appellate Defender’s Office, of Mt. Vernon, and Patrick M. Carmody, research assistant, for appellant.
    John Clemons, State’s Attorney, of Murphysboro (Martin N. Ashley and Gillum Ferguson, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant was charged by information with possession of .19 grams of cocaine, a controlled substance, in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56%, par. 1402(b)). Defendant was convicted as charged after a bench trial at which all facts were stipulated by the parties.

In this appeal, defendant contends that (1) the trial court erroneously denied his motion to suppress a foil packet containing cocaine, and (2) because all facts at the bench trial were stipulated, defendant should have been admonished pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1979, ch. 110A, par. 402) as though he had pleaded guilty.

Two witnesses testified at the hearing on defendant’s motion to suppress, David Allen and Michael Teas, both Jackson County detectives. According to these witnesses, pursuant to a search warrant listing items taken in a burglary, they entered defendant’s residence, an 8- by 10-foot room in an 80- by 30-foot shed behind the residence of Barbara Trent in Makanda, Illinois. The victims of the burglary, Dr. Hunter and Dr. Ellert, and Ms. Trent were also present when the search warrant was executed. Defendant arrived while the detectives were present and was arrested. Numerous items related to the burglary were, in fact, seized during the search, including three bracelets, two watches, a knife, a typewriter, a calculator, and a down jacket.

Detective Allen testified that he had been a Metropolitan Enforcement Group officer for five years, that he had participated in 50 to 60 prior drug-related arrests and that he had attended various classes pertaining to narcotics. Allen related that when he entered defendant’s room, he noticed an aluminum foil “packet” located on the corner of a night stand beside the bed. Allen then stated that the packet was “folded in such a manner that it indicated to me it could be a controlled substance.” He elaborated that “it was folded basically in half and lipped, but there was [sic] creases on it indicating it had been folded into a smaller packet at one time, which is very common for the sale or storage of controlled substances.” He conceded that legitimate substances might be enclosed in foil, “but not usually in that size.” He could not ascertain its contents without opening it. He did so and discovered that it contained white powder. To Allen’s knowledge they were not looking for anything the size of the foil packet under the search warrant. Allen also found “drug paraphernalia” of an unspecified nature inside the top drawer of the night stand.

Detective Teas testified that he did not see the foil packet until Allen told him he had found it and was seizing it. Teas was unaware whether Allen had already looked inside it. Teas’ first good look at it was at the sheriff’s office. He described it as approximately one and one-quarter inches square.

The trial court stated his finding that the nature of the packet, and the place and circumstances in which it was found, gave the officer probable cause to believe defendant had committed the offense of unlawful possession of a controlled substance. The court reserved the question of whether the search warrant sufficiently described the premises to be searched, a question he later resolved against defendant.

Defendant concedes that the officers were within his room pursuant to a valid search warrant. The parties dispute, however, whether Allen’s discovery of the unspecified drug paraphernalia preceded Allen’s seizure of the foil packet and thus could have been a fact contributing to Allen’s belief that the packet contained narcotics. The dispute is based on Allen’s answers to two questions. The first was posed by the State’s Attorney:

“Q. And did you notice that paraphernalia prior to your noticing the aluminum packet?
A. No, sir. It was after.”

The second was asked by defense counsel on cross-examination:

“Q. So then when you saw the tinfoil packet did you proceed to pick it up and open it?
A. That’s correct.”

Defendant contends that these questions and answers show Allen seized and opened the packet prior to discovering the “paraphernalia.” The State characterizes these responses as ambiguous with respect to that inquiry. The State also notes in this regard that (1) it was initially defendant’s burden to show that the seizure of the packet was unlawful (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(b); People v. Normant (1975), 25 Ill. App. 3d 536, 323 N.E.2d 553), and (2) in reviewing the ruling of the trial court on the motion to dismiss, it is this court’s duty to affirm the result reached unless the ruling of the trial court was “manifestly erroneous.” People v. Smith (1977), 51 Ill. App. 3d 87, 366 N.E.2d 426.

We find the two questions and answers recited above to be sufficiently unambiguous to show that Allen seized the packet before discovering the “paraphernalia.” However, this finding does not, in our view, necessitate reversal of the judgment if Allen had probable cause when he seized the packet to believe it contained narcotics. As the State notes and defendant concedes, our supreme court’s disposition of People v. Davis (1965), 33 Ill. 2d 134, 210 N.E.2d 530, implies that the sighting of a foil packet may constitute probable cause to believe that it contains narcotics. Defendant cites authority from other jurisdictions which appears contrary to Davis on this point (People v. Young (1979), 89 Mich. App. 753, 282 N.W.2d 211; Remers v. Superior Court of Alameda County (1970), 2 Cal. 3d 659, 470 P.2d 11, 87 Cal. Rptr. 202). However, we feel compelled to follow Davis which we view as essentially indistinguishable from the case at bar.

In Davis, the defendant was arrested for two minor traffic violations. When the defendant got out of his car, the arresting officer observed a tinfoil package on the floor of the driver’s side of the front seat and picked it up. The defendant stated he did not know what the package was or how it got in his car. The officer seized and opened the package. Our supreme court affirmed without discussing whether the sighting of the foil package constituted sufficient cause to seize it; however, it appears the cause could not have been affirmed had the answer to that question been other than affirmative.

In the instant case Detective Allen had at least as much reason to suspect the packet contained narcotics as did the officer in Davis. Here, the officer had considerable training and experience in the detection of narcotics. The package was of a size appropriate for carrying such a substance, and was allegedly folded in a manner characteristic of narcotics packaging.

Defendant urges, however, that Davis is distinguishable in that the instant seizure occurred, not in defendant’s car, but in his home. Defendant urges that “the intrusion into the sanctity of [one’s] home may require a higher standard of probable cause than the intrusion into one’s automobile.” The State, while urging that this argument is without basis in law, notes that defendant concedes that the officers were properly within defendant’s home when the foil packet was discovered. We agree with the State that under these facts it is not significant that the seizure occurred within defendant’s home rather than his vehicle.

Defendant urges for comparison this court’s recent decision in People v. Wright (1980), 80 Ill. App. 3d 927,400 N.E.2d 731. In Wright, this court held that a police officer did not have probable cause to seize two hand-rolled white cigarettes located in plain view in the defendant’s car. We find Wright distinguishable in view of the fact that defendant does not suggest, nor can we envision, any legitimate substance that is characteristically packaged in a wrapper similar to the foil packet sized. Further, absent Officer Allen’s drug arrest expertise and his familiarity with the packaging of narcotics in aluminum foil, the packet in question would have presented no special significance. Allen’s testimony did not indicate that he believed all foil packets, or all small foil packets, contained controlled substances. Our conclusions in this regard are ably articulated by the court in United States v. Bolden (D.C. App. 1981), 429 A.2d 185,186, a case involving a tinfoil package “wrapped in a manner in which PCP is packaged,” in which the court stated:

“® ° * We hold as a matter of law that the officer had the requisite experience to determine that the tinfoil package probably contained contraband and this fact, together with his other observations, gave him probable cause to seize the package.”

We turn to defendant’s final contention on appeal, that the trial court should have given Rule 402 admonitions before permitting a bench trial on entirely stipulated facts. In the instant bench trial, both parties waived opening and closing statements and evidence was presented in the form of a stipulation. The State’s Attorney recited in the stipulation that Detective Allen found the foil packet while executing the search warrant and that analysis of its contents revealed .19 grams of cocaine. The trial judge immediately announced his verdict of guilty, and the parties waived the presentence report and proceeded to sentencing.

We find defendant’s contention sufficiently rebutted by the opinion of this court in People v. Daminski (1980), 80 Ill. App. 3d 903, 400 N.E.2d 708. Here, as in Daminski, defendant has preserved for review a genuine legal defense (the propriety of the seizure of the foil packet), an issue which would have been waived by an effective plea of guilty. Accordingly, Rule 402 admonitions need not have been given. The instant cause is distinguishable from People v. Smith (1974), 59 Ill. 2d 236, 319 N.E.2d 760, cited by defendant. There, unlike the instant case, the stipulation included actual conduct by the defendant and included the stipulation that the facts presented were sufficient to prove the defendant’s guilt. In the instant case the record does not indicate that there was an agreed result of the trial, and the court was required to decide defendant’s conduct by inference since it was not stipulated. See also People v. Sullivan (1979), 72 Ill. App. 3d 533, 391 N.E.2d 241, reaching the same result on similar facts.

Although we resolve the issues raised by defendant in favor of the State, this cause must be remanded for resentencing for two reasons. First, defendant and the State agreed to waive the presentence report. The State recommended two years imprisonment and the defendant recommended probation with the first six months in custody. Pursuant to section 5 — 3—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 3—1), a defendant “shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court” unless “both parties agree to the imposition of a specific sentence * * Under this provision, the parties were without authority to waive the presentence report and the court was without authority to accept the purported waiver. People v. Youngbey (1980), 82 Ill. 2d 556, 413 N.E.2d 416.

Second, it appears that the trial judge and the parties were unaware of the range of sentences of imprisonment which was available. The trial court stated repeatedly that the offense in question, a violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56M, par. 1402(b)) was a Class 3 felony, and remarked that the sentence he imposed, two years, was the minimum possible penitentiary sentence. The instant offense occurred January 10, 1980. By act effective September 14,1979, violation of section 402(b) became a Class 4 felony (People v. Kimmons (1979), 79 Ill. App. 3d 601, 399 N.E.2d 187; Pub. Act. 81-583), punishable inter alia by a sentence of from one to three years imprisonment.

For the above reasons, we affirm the judgment of the circuit court of Jackson County denying defendant’s motion to suppress and find that said court committed no error in failing to give defendant the admonitions prescribed by Supreme Court Rule 402. However, we reverse the judgment of the circuit court of Jackson County relative to defendant’s sentencing and remand this cause for preparation of a presentence report and for resentencing.

Affirmed in part; reversed and remanded in part.

KARNS and WELCH, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE KASSERMAN

license: Public Domain

text:
    ALFRED ANDERSON, Plaintiff-Appellee, v. ST. MARY’S HOSPITAL, Defendant-Appellant.
    Fifth District
    No. 80-298
    Opinion filed October 14, 1981.
    — Rehearing denied November 12, 1981.
    G. Keith Phoenix and Reed W. Sugg, both of Shepherd, Sandberg & Phoenix, of St. Louis, Missouri, for appellant.
    Michael A. Katz, of Collinsville, for appellee.
   Mr. PRESIDING JUSTICE KASSERMAN

delivered the opinion of the court:

This appeal arose out of a medical malpractice suit filed by plaintiff, Alfred Anderson, against St. Mary’s Hospital, Dr. Sana Ullah, and Dr. Surit Gosh. The hospital and its attorney, G. Keith Phoenix, appeal from an order of the circuit court of St. Clair County finding Mr. Phoenix in contempt of court and fining him $100 for failing to produce a document for an in camera inspection as ordered by the trial court. The appellants contend on appeal that it was not contumacious conduct to refuse to produce the document due to the fact that it is exempt from discovery either because it is protected by the attorney-client privilege or because it constituted the attorney’s work product.

For purposes of the record on appeal, the parties have entered a stipulation regarding the facts as permitted, by Supreme Court Rule 323(d) (Ill. Rev. Stat. 1979, ch. 110A, par. 323(d)). The stipulation stated that on January 17,1980, Mr. Phoenix, as attorney for St. Mary’s Hospital, informed plaintiff’s attorney that he had conversed with Dr. Ezenwa concerning plaintiff’s lawsuit and that no written record was made of the conversation. Dr. Ezenwa was the doctor who treated plaintiff after Dr. Ullah and Dr. Gosh. It was further stipulated that Mr. Phoenix sent a regular evaluation report to his client which in part referred to his conversation with Dr. Ezenwa.

Plaintiff requested that Mr. Phoenix produce those portions of a document sent to the hospital’s insurance carrier which contained a summary of Mr. Phoenix’s conversation with Dr. Ezenwa. Mr. Phoenix refused on the grounds that the report was privileged. On January 28, 1980, plaintiff filed a motion requesting that the court order Mr. Phoenix to produce the document for inspection or, alternatively, that the court inspect it and order production of any discoverable portions. The trial court found that it could not determine whether the document was privileged without reading it, and Mr. Phoenix was ordered to turn it over to the court within ten days for an in camera inspection. Mr. Phoenix refused to comply with this order, and plaintiff filed a motion for sanctions.

At the hearing on the motion for sanctions on May 21, 1980, Mr. Phoenix again refused to produce the document. The trial court then entered the following order:

“Defendant continues to refuse to produce on the basis of attorney-client privilege the letter from counsel to its defendant client which report admittedly contains, among other matters, one or two paragraphs about defense counsel’s conversations with Dr. Ezenwa. The Court finds defense counsel, G. Keith Phoenix in civil contempt and assesses a fine of $100.00. Appeal Bond waived.”

Appellants contend that the contempt order should be reversed because it was based on an erroneous discovery order. They argue that the letter reporting the conversation with Dr. Ezenwa to St. Mary’s insurer is protected from discovery by the attorney-client privilege or, alternatively, by reason of the fact that it constituted the attorney’s work product. Appellants further maintain that it was an abuse of discretion to order an in camera inspection of the letter because the facts established that it was not discoverable.

Before addressing the issues raised by appellants, we note that the trial court specifically held defendant’s counsel in civil contempt of court and fined him $100. Civil and criminal contempt are distinguishable primarily by reason of the purpose each serves. Criminal contempt proceedings are directed to the preservation of the dignity and authority of the court while civil contempt orders are used to enforce the rights of private parties and compel obedience to orders or decrees for the benefit of opposing parties. (Marcisz v. Marcisz (1976), 65 Ill. 2d 206, 357 N.E.2d 477.) Generally, criminal contempt seeks to punish, while civil contempt seeks to coerce. (Estate of Shlensky (1977), 49 Ill. App. 3d 885, 364 N.E.2d 430.) If the purpose of the contempt order is punitive, then a specific fine or set term of imprisonment is appropriate. However, if the purpose is to coerce the party into complying with a court’s order, then the fine or imprisonment continues until the contemnor complies with the court’s order. People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736; D. Dobbs, Law of Remedies §2.9, at 98-99 (1973).

In the instant case, although the trial court’s order found Mr. Phoenix to be guilty of civil contempt, a punishment was assessed, indicative of a criminal contempt proceeding. A fine of a set amount fails to achieve the purpose of civil contempt, which is to induce compliance. Be that as it may, the sanction to be imposed for failure to comply with a discovery order is within the trial court’s discretion; nominal fines, such as the one imposed here, have been upheld as an appropriate sanction for failure to comply with a court order. (Consolidation Coal Co. v. Bucyrus-Erie Co. (1980), 93 Ill. App. 3d 35, 416 N.E.2d 1090.) We find no abuse of discretion in the sanction herein imposed.

At the outset, we note that a contempt citation is an appropriate method for testing the propriety of a discovery order. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) If the trial court’s order was improper, defense counsel cannot be held in contempt of court. (Banter v. Reding (1979), 68 Ill. App. 3d 171, 385 N.E.2d 886.) Hence, we must examine the underlying discovery order in this case.

Appellants first assert that the letter sent to St. Mary’s insurer is protected by the attorney-client privilege, referred to in Supreme Court Rule 201(b)(2) (Ill. Rev. Stat. 1979, ch. 110A, par. 201(b)(2)). This rule states, in part, that “privileged communications between a party or his agent and the attorney for the party, are privileged against disclosure through any discovery procedure.” (Ill. Rev. Stat. 1979, ch. 110A, par. 201(b)(2).) While there is a conflict of authority as to the extent to which the common law privilege covers communications from lawyer to client (see State ex rel. Great American Insurance Co. v. Smith (Mo. 1978), 574 S.W.2d 379), it is well settled that since the purpose of discovery rules is to promote disclosure, the party asserting the attorney-client privilege has the burden of proving it. (Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728, 327 N.E.2d 92; Monier v. Chamberlain (1966), 66 Ill. App. 2d 472, 213 N.E.2d 425, aff’d (1966), 35 Ill. 2d 351, 221 N.E.2d 410.) Further, the mere assertion that a matter is protected by the attorney-client privilege is insufficient to prove the existence of such a privilege. Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 386 N.E.2d 112; Shere v. Marshall Field & Co.

In the case at bar, defendant’s attorney failed to offer any proof at trial, other than his assertion, that the communication sought to be discovered was protected under the attorney-client privilege. In fact, the contempt citation was issued because Mr. Phoenix persisted in his refusal to produce the document for court inspection in camera. This refusal deprived the trial court of a reasonable opportunity to determine whether or not the document fell within the attorney-client privilege. As stated by the court in Johnson v. Frontier Ford, Inc. (1979), 68 Ill. App. 3d 315, 321, 386 N.E.2d 112, 116:

* * In the absence of other sufficient proof of the claimed privilege [attorney-client] the in camera examination of the disputed documents ordered by the trial court appears to us to be a reasonable effort by it to find a basis to protect the privilege if it existed, and to prevent its application where it might not exist. [Citations.]”

Since no attorney-client privilege was shown to exist, we conclude that the trial court’s contempt order was not erroneous on the ground that the material sought to be discovered was protected by such privilege.

Appellants further assert that the trial court erred by ordering an in camera inspection of the document in question because it constituted Mr. Phoenix’s work product and was therefore protected from discovery by the plaintiff. Their argument is that there is sufficient evidence before this court to indicate that the document is exempt from discovery on this basis. In light of the stipulated facts and record before us, we do not agree.

Under Supreme Court Rule 201(b) (2), “[m]aterial prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party’s attorney.” (Ill. Rev. Stat. 1979, ch. 110A, par. 201(b)(2).) The leading case on the subject of “work product,” upon which this portion of Rule 201 is based (see Ill. Ann.. Stat., ch. 110A, par. 201, Historical and Practice Notes, at 122 (Smith-Hurd 1968)), is Monier v. Chamberlain (1966), 35 Ill. 2d 351, 221 N.E.2d 410. Under Monier, work product includes:

«o a o Qnjy t}j0se memoranda, reports or documents which reflect the employment of the attorney’s legal expertise, those ‘which reveal the shaping process by which the attorney has arranged the available evidence for use in trial as dictated by his training and experience,’ [citation] 9 9 *. Thus, memoranda made by counsel of his impression of a prospective witness, as distinguished from verbatim statements of such witness, trial briefs, documents revealing a particular marshalling of the evidentiary facts for presentment at the trial, and similar documents which reveal the attorney’s ‘mental processes’ in shaping his theory of his client’s cause, are documents ‘made in preparation for trial’ and exempt from discovery 9 9 9.” 35 Ill. 2d 351, 359-60, 221 N.E.2d 410, 416.

The evidence in the case at bar fails to indicate that the document sought to be discovered fits the criteria for work product set forth in Monier. Here, the record discloses that the document sought was, in fact, “a regular evaluation report” which discussed defense counsel’s conversation with Dr. Ezenwa. Since this document is not before us, the nature and content of the document are not discernible from the record on appeal.

As we previously have indicated, where there is a genuine dispute as to the nature or content of the document sought to be discovered, an attorney must ordinarily comply with the trial court’s order for an in camera inspection of the document or be subject to sanctions for contempt. (Johnson v. Frontier Ford, Inc.) In the case at bar, it is impossible for this court, and was also impossible for the trial court, to determine whether or not the letter sought to be discovered contained material which fell within the work product exception referred to in Monier. The record on appeal does not establish that the document sought to be discovered contained only documents which are protected from discovery and not factual information; therefore, we find that the pretrial order to produce the document for an in camera inspection does not amount to an abuse of discretion.

Since Mr. Phoenix refused to comply with the pretrial order which directed him to produce for in camera inspection by the court a document which was not shown to be exempt from discovery, we conclude that the order was proper. Since it has not been established that the pretrial order was erroneous, the finding of contempt must stand. For these reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

JONES and WELCH, JJ., concur.


author: Mr. JUSTICE KARNS

text:
    ODESSA BALLARD et al., Plaintiffs-Appellants, v. FRED E. RAWLINS, M.D., INC., et al., Defendants-Appellees.
    Fifth District
    No. 80-534
    Opinion filed October 14, 1981.
    Johnson & Johnson, of Metropolis (Dolores J. Johnson and Louis P. Johnson, of counsel), for appellants.
    Roy L. Camine, of Campbell, Furnall, Moore & Jacobsen, P. C., of Mt. Vernon, and Richard Steele, of Finch, Bradshaw, Strom & Steele, of Cape Girardeau, Missouri, for appellees.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

Plaintiffs, Odessa Ballard and Edward Ballard brought an action against defendant, Fred E. Rawlins, a medical doctor who resides and practices in Cape Girardeau, Missouri, for alleged malpractice. Defendant appeared specially objecting to the jurisdiction of the Circuit Court of Pulaski County over his person. Plaintiffs appeal from the order quashing service of summons and entering judgment of dismissal for defendant contending that the trial court obtained personal jurisdiction over the defendant pursuant to section 17 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17).

Plaintiffs, residents of the State of Illinois, filed a five-count complaint against the defendant alleging that he negligently treated Odessa Ballard. The complaint alleged that the defendant failed to examine plaintiff after being informed of the seriousness of her condition. The complaint further alleged that the defendant prescribed a drug, Benedictin, used for the treatment of nausea, although the plaintiff’s condition indicated she was suffering from toxemia. As a result of the alleged negligent treatment, a premature Cesarean section was performed on plaintiff, causing the death of plaintiff’s baby and serious injury to plaintiff.

In the complaint, plaintiffs alleged that defendant transacted business within Illinois in that he solicited patients in Illinois, called prescriptions to Illinois pharmacies, and accepted payments for medical services from the Illinois Department of Public Aid. The defendant was personally served with summons in Missouri.

In the affidavit accompanying defendant’s appearance and motion, he stated that he is a physician specializing in obstetrics and gynecology, is licensed by the State of Missouri and is president of a Missouri professional corporation with offices located in Cape Girardeau, Missouri. The defendant is not licensed to practice medicine in Illinois, does not practice in Illinois and does not have any offices or employees in Illinois.

For the convenience of patients, defendant occasionally calls prescriptions to pharmacies located in Illinois. The affidavit further states that defendant treated plaintiff for her pregnancy, such treatment occurring solely in Missouri. In addition, the defendant avers that he did not solicit plaintiff as a patient but rather plaintiff voluntarily sought his professional services. Finally, defendant states that although he treats patients that reside in Illinois, these patients initiate the relationship and treatment"occurs entirely within the State of Missouri.

After a hearing on the motion to dismiss, the trial court found that jurisdiction was not proper in Illinois, citing Muffo v. Forsyth (1976), 37 Ill. App. 3d 6, 345 N.E.2d 149, as controlling authority.

Section 17 of the Civil Practice Act provides, in pertinent part, the following:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(a) The transaction of any business within this State;
(b) The commission of a tortious act within this State;
e # #
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this Section * ” Ill. Rev. Stat. 1979, ch. 110, pars. 17(1) (a) (b) and (3).

The Illinois Supreme Court has held that section 17 of the Act is intended to expand personal jurisdiction over nonresident defendants to the full extent permitted by the due process clause of the Fourteenth Amendment to the United States Constitution. Nelson v. Miller (1957), 11 Ill. 2d 378, 389, 143 N.E.2d 673, 679.

In order for a State court to exert jurisdiction over a nonresident defendant consistently with the Constitution, there must exist sufficient minimum contacts between the defendant and the forum State such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S. Ct. 154; Milliken v. Meyer (1940), 311 U.S. 457, 463, 85 L. Ed. 2d 278, 283, 61 S. Ct. 339, 342.) The determination as to what constitutes sufficient minimum contacts depends upon the facts of each case. Muffo v. Forsyth (1976), 37 Ill. App. 3d 6, 345 N.E.2d 149; Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 371 N.E.2d 161.

As noted above, the trial court in the instant case premised its decision on Muffo v. Forsyth (1976), 37 Ill. App. 3d 6, 345 N.E.2d 149. In Muffo, the plaintiff, an Illinois resident, appealed from an order of the trial court dismissing the complaint for lack of jurisdiction over the defendants, a Missouri hospital and doctor. The complaint alleged that the defendants were negligent in their treatment of the plaintiff in that they continued to prescribe a certain drug for the plaintiff after she had experienced a common reaction to the drug. The court held that the defendants were not subject to Illinois jurisdiction. The court reasoned that jurisdiction could not be premised on the unilateral act of the plaintiff in seeking medical treatment from a nonresident hospital and doctor. The important jurisdictional facts were that the plaintiff sought medical treatment from the defendants and that the treatment occurred entirely within Missouri. The fact that the prescription was filled in Illinois was considered an insufficient contact with the State because there was no showing that the defendants directed the plaintiff to fill the prescription in Illinois or that they received any benefit from the plaintiff doing so.

The plaintiffs here contend that the defendant had many more contacts with Illinois than did the defendant in Muffo. Their initial contention in that regard is that the defendant here solicited plaintiff, Odessa Ballard, as a patient in the State of Illinois. We find, however, that the evidence does not support this assertion.

At the hearing on the motion, plaintiff testified that she first became a patient of the defendant while she was a Missouri resident. When she later moved to Illinois, the defendant charged her a reduced office fee for a period of time after being told that plaintiff could no longer afford the customary charge in addition to the increased expense of travel. Plaintiff received the reduced fee only until she remarried and there was no showing that defendant charged plaintiff a reduced fee for the treatment of her pregnancy. The affidavit of defendant states that he did not solicit plaintiff as a patient, but rather plaintiff voluntarily sought his professional services.

Where jurisdiction is denied by the defendant, the burden of proving its presence rests upon the party asserting it. (Stephens v. Northern Indiana Public Service Co. (1980), 87 Ill. App. 3d 961, 409 N.E.2d 423.) The evidence here indicates that the physician-patient relationship between plaintiff and defendant arose entirely within the State of Missouri and had existed for several years before defendant reduced his office fee. In addition, the fee reduction itself occurred within Missouri, and was only in effect for a period of time before plaintiff’s pregnancy. Viewing the evidence as a whole, we find the reduction of defendant’s office fee an insufficient basis for asserting jurisdiction over defendant in this State.

Plaintiffs also attempt to distinguish this case from Muffo with the argument that defendant, through accepting payments from the Illinois Department of Public Aid, purposefully invoked the benefits and protection of the laws of the State. At the hearing, evidence was introduced showing that the defendant had received payments from the State for medical treatment provided to Illinois public aid patients. It is unclear, however, whether defendant was billing the State of Illinois at the time the present cause of action arose. The defendant no longer accepted Illinois public aid patients at sometime during 1977, the year the present cause of action arose. In addition, the plaintiff, during the entire course of her treatment, was a private-paying patient. Section 17 of the Practice Act “requires that the activities which are relied on to sustain jurisdiction must give rise to the suit in question, at least in part * # (Chicago Film Enterprises v. Jablanow (1977), 55 Ill. App. 3d 739, 742, 371 N.E.2d 161, 164.) In the instant case, the activity which plaintiff relies on to sustain jurisdiction is the receipt of public aid payments by defendant at a previous time. The suit, however, arose from the alleged negligent treatment of plaintiff, a private-paying patient. The public aid payments are not connected with the instant litigation; hence, they do not support jurisdiction in Illinois; furthermore, we do not mean to suggest that such a “contact” would support the exercise of jurisdiction over a defendant in a like situation.

Plaintiff next contends that defendant committed “tortious acts” within the meaning of the Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 17). In support of this contention, plaintiff makes two arguments. First, it is argued that defendant in calling the prescription to an Illinois pharmacy instead of examining plaintiff at defendant’s office in Missouri, chose to treat plaintiff in Illinois, and, thereby, submitted to the jurisdiction of the State of Illinois. As in Muffo, there is no showing that the defendant encouraged the plaintiff to fill the prescription in Illinois or that the defendant received any benefits from the plaintiff doing so. The mere fact that defendant asked plaintiff for the name of a drug store close to the plaintiff, such drug store being in Illinois, is an insufficient basis for subjecting the defendant to the jurisdiction of Illinois. Second, plaintiff argues that the defendant’s negligent treatment of plaintiff constituted a breach of contract, such breach occurring in Illinois. As in Muffo, the plaintiff initially sought out the defendant for medical treatment. This treatment occurred entirely within the State of Missouri. Even assuming arguendo, that a breach of contract is a tortious act within the meaning of the Illinois Practice Act, the breach occurred in the State of performance, which was Missouri.

Finally, plaintiffs contend that it is reasonable to exercise jurisdiction over the defendant because the Illinois court is located within fifteen miles of the defendant’s office. The concept of “minimum contacts” serves two functions: (1) To protect the defendant from the burdens of litigating in an inconvenient forum, and (2) to restrain the exercise of the power of the States congruent with our Federal system of government. (World-Wide Volkswagen Corp. v. Woodson (1980), 444 U.S. 286, 62 L. Ed. 2d 490, 100 S. Ct. 559.) Because we find that the plaintiffs have failed to demonstrate sufficient affiliating circumstances showing a relationship between the defendant, the State of Illinois and this lawsuit, the relative convenience of the location of the Illinois tribunal is not sufficient to establish personal jurisdiction over the defendant.

For the foregoing reasons, the judgment of the Circuit Court of Pulaski County is affirmed.

Affirmed.

KASSERMAN, P. J., and JONES, J., concur.


author: Mr. JUSTICE JONES

text:
    ROBERT S. WOLFF et al., Plaintiffs-Appellants, v. EDWARD D. GROSHONG et al., Defendants-Appellees.
    Fifth District
    No. 81-17
    Opinion filed October 14, 1981.
    Robert Weiner and Terry L. Fields, both of Springfield, for appellants.
    G. Edward Moorman, of East Alton, for appellees.
   Mr. JUSTICE JONES

delivered the opinion of the court:

This appears to be a case of first impression presenting the question: Does the lien of a judgment expire at the end of the statutory life of the judgment notwithstanding the revival of the judgment? The answer to the question, and the resolution of the issue of this case, involves consideration of section 1 of “An Act in regard to judgments 6 ° (Ill. Rev. Stat. 1979, ch. 77, par. 1).

On December 9, 1971, the plaintiffs, Robert S. Wolff, Nancy M. Wolff and Wolff Development, Inc., obtained a judgment against defendant, Edward Groshong, an attorney, in the amount of $5,832. On December 16,1971, plaintiffs filed with the recorder of deeds of Madison County a memorandum of the judgment in order to perfect the lien of the judgment, as provided by section 1 of the Act.

The judgment debtor and his wife, defendant Birdine Groshong, owned and resided upon certain real property in Madison County. About four years after the memorandum of judgment was filed the judgment debtor quitclaimed his interest in the real property to his wife. On October 20,1978, almost seven years after the judgment was obtained and the memorandum of it recorded, plaintiff Robert Wolff filed an affidavit for scire facias to revive the still unpaid judgment. On January 4, 1979, plaintiffs obtained an order reviving the judgment of December 9, 1971. However, after obtaining the order reviving judgment plaintiffs did not file a transcript, certified copy or memorandum of the order of revival in compliance with the lien provisions of section 1 of the Act.

Thereafter, on March 6, 1979, Edward and Birdine Groshong quit-claimed their interest in the real property to Birdine Groshong and to the couple’s children, defendants Dell M. Dively and Donald E. Groshong, also an attorney. Consideration for the transfer was “love and affection.” On September 11, 1979, plaintiffs filed a petition for special execution, and on the same date the trial court granted the petition by an order which particularly described the Groshong real estate above referred. At that time the judgment and interest amounted to $8,569.34. On September 20, 1979, defendants moved that the order for special execution of September 11, 1979, be quashed, and after a hearing the trial court, in the order from which plaintiffs appeal, granted the motion. At that hearing, Edward Moorman, attorney for defendants, acknowledged that the grantees of the quitclaim deed of March 6, 1979, were not bona fide purchasers and stated,

“[Undoubtedly everybody involved [in the conveyance of March 6,1979] knew about the judgment.
It’s not a matter of whether this property was sold or given away. And the fact is that it was given away.”

Edward and Birdine Groshong have continued to reside upon the real property so conveyed.

Section 1 of “An Act in regard to judgments 0 0 *” (Ill. Rev. Stat. 1979, ch. 77, par. 1) provides in pertinent part:

“[A] judgment shall be a lien on the real estate of the person against whom it is rendered * ° * only from the time a transcript, certified copy or memorandum of the judgment is filed in the office of the recorder of deeds in the county in which the real estate is located.
A judgment shall not be a lien on real estate for longer than 7 years from the time it is rendered or revived.
When a judgment is revived it shall be a lien on the real estate of the person against whom it was rendered 0 0 0 from the time a transcript, certified copy or memorandum of the order of revival is filed in the office of the recorder of deeds in the county in which the real estate is located.”

In his findings the trial court stated,

“11. That the lien of judgment was not perfected as to the revived judgment prior to the transfer and was not and is not a lien against the property subsequent to December 9, 1978.
12. That despite the arguments of Petitioners’ counsel, there is no case law preventing officers of this Court from taking advantage of Illinois Revised Statutes, Chapter 77, Section 1, to avoid creditors.”

Defendants contend that because no transcript, certified copy or memorandum of the order reviving the judgment was filed, as required by section 1, the lien of the judgment was never revived and, consequently, on March 6, 1979, no lien existed upon the real property quitclaimed at that time by Edward and Birdine Groshong. According to defendants, the grantees could not have taken the property subject to the alleged judgment lien because there was no judgment lien after December 9, 1978. Plaintiffs argue in their brief, “A strong inference is created by these undisputed facts that Defendants were seeking to defraud Plaintiffs, as creditors, of their only security for recovering on the judgment. This situation required the court to exercise its equitable jurisdiction.”

Plaintiffs did not, however, plead and prove fraud. They placed only one issue before the trial court, whether the grantees took the real property conveyed on March 6, 1979, subject to a judgment lien, created in accordance with the provisions of section 1. Thus, there is but one issue before us today. In view of the plain language of the Act we can only conclude that a revived judgment is not a lien on the real estate of a judgment debtor unless and until a transcript, certified copy or memorandum of the order of revival is filed in the office of the recorder of deeds in the county in which the real estate is located pursuant to section 1. Any other conclusion would compromise the integrity of the system for liens contemplated by the Act. Since the judgment creditors in this case recorded no one of the three items specified in section 1, the revived judgment was not a lien upon the real property in question at the time the crucial transfer was made. The judgment lien created on December 16, 1971, when the memorandum of the judgment rendered on December 9, 1971, was filed, had expired on December 9, 1978, seven years from the date the judgment was rendered. Nothing further having been recorded, the grantees took free of the alleged judgment lien.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.

       Illinois precedent or other authorization for proceeding by the petition for special execution is not shown of record, and our cursory search reveals none.


text:
    THE VILLAGE OF CAMBRIA, Plaintiff-Appellee, v. STEVEN DUNAWAY, Defendant-Appellant.
    Fifth District
    No. 81-72
    Opinion filed October 20, 1981.
    C. Robert Hall, of Carbondale, for appellant.
    James R. Moore, of Cartersville, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant, Steven Dunaway, appeals from a judgment of the circuit court of Williamson County which resulted in the issuance of a permanent mandatory injunction directing defendant to remove a building which he had placed in the Village of Cambria, the plaintiff. We consider whether the structure in question is a mobile home within the purview of an ordinance of the plaintiff Village and, if that structure be found to be a mobile home, whether the ordinance compels its removal.

On May 13, 1980, plaintiff filed its complaint for preliminary and permanent injunctions against defendant alleging that at the beginning of that month defendant began installing a building in violation of a Village ordinance. A hearing on the petition for preliminary injunction was commenced the following day, and plaintiff presented the testimony of its water, street and sewer superintendent, Bruce Hagler. Hagler described the building then under construction by defendant as a prefabricated building with metal siding and a metal superstructure which had been brought to the site in halves upon flatbed trailers. Hagler related that defendant had told him that the building was going to be used as a day-care facility for children. Defendant had never applied for a permit to place the structure on the property as required by the Village’s mobile home ordinance. Hagler stated that there were potential problems with the structure as it then existed, such as a lack of plumbing. However, he indicated that there was no problem with the structure that could not be remedied upon completion of the project other than its being what he termed a “mobile home.”

During Hagler’s testimony pictures of the structure were accepted into evidence, and the court took judicial notice of the Village ordinance, which in pertinent parts provided:

“Section 1. Definitions:
A. A Mobile Home is a dwelling unit, usually factory built and assembled, designed for conveyance after fabrication, on streets and highways on its own wheels or on flatbed or other trailers, and arriving at the site where it is to be occupied as a dwelling unit complete and ready for occupancy except for minor and incidental unpacking and assembly operations, and having no foundation other than wheels, blocks, skids, jacks, horses, or skirting.
<* # e
Section 2.
No camper, travel trailer, or recreational van shall be occupied as a dwelling within the Village except as may be otherwise provided in this ordinance.
<* 0 #
Section 4.
No more than one mobile home may be placed upon any lot within the Village without the written permission of all owners of contiguous properties and the issuance of a letter of permission from the Village Board. Such letter of permission shall be issued by the Board or its appointee upon proof of the written permission of the owners of the contiguous property which shall be filed for record in the Village Clerk’s Office.
# O O
Section 12.
A. Location of a mobile home must be approved by the Village of Cambria through issuance of a permit by the Village Clerk. Said Village Clerk’s permit shall issue only upon compliance with all sections of this ordinance in-eluding any additional permits, letters and approvals required herein.”

After the court denied defendant’s motion for judgment at the close of plaintiff’s case, defendant testified on his own behalf. He stated that the first half of the unit had been brought to the site 2}á weeks, and the second half, a week before the hearing. The Illinois Department of Transportation, which issued a permit to move the units over the highways, considered the units to be modular structures and not mobile homes. Defendant described the units as “modular classrooms” and said they had been used by St. Lukes Hospital in Chicago as classrooms. According to defendant, the units were not structurally equipped to accommodate wheels, and at the time of the hearing the units had been joined into one structure and placed on a permanent foundation. The foundation consisted of concrete blocks which were separately laid in a prepared foundation trench. Some of the blocks were below ground level, and others extended above. The steel frame of the structure was already bolted to the foundation with six-foot-long double-threaded bolts, and in the near future rods would be placed through the blocks and welded to the frame to complete the process. His electrician had already begun work on the project and his brother-in-law, a trained plumber, was ready to begin work although the Village had refused to issue a plumbing permit.

During his testimony defendant related a conversation he had had with the village president shortly before moving the units to Cambria. According to defendant’s undisputed testimony, he described the units to the president and was told by him that they would not be considered mobile homes and that a permit would not be needed to use the structures as a day-care center in Cambria. Defendant also stated that he asked for a copy of the ordinance but was told that none was available.

Following the hearing the court denied the preliminary injunction, stating that although the structure was undeniably mobile at the time of the hearing, the real issue was whether the structure would be a mobile home at the time of completion. Since that issue could be determined only upon substantial completion of the structure, the court ruled that a hearing for permanent injunction would come after that time.

When the structure was completed and the hearing was held on the complaint for permanent injunction, the parties stipulated that the court was to consider the evidence presented at the hearing on the motion for preliminary injunction. The Village presented no further evidence, and defendant testified on his own behalf. He related that construction was completed except for the water hookup. Defendant also attempted to introduce letters of approval of the structure for use as a day-care center from both the State Fire Inspector and the Bi-County Health Department. However, an objection to those items was sustained, the court ruling that both the letters were hearsay and went to the ultimate issue to be decided by the court.

Following the hearing the trial court entered judgment in favor of the Village and enjoined defendant “from permitting the structure now located on said property from remaining on said property.” Defendant appeals asserting (1) the ordinance does not apply to the structure in question, (2) the ordinance is invalid and (3) the city is estopped to enforce the ordinance.

Defendant’s uncontradicted testimony that the village president told him no copies of the ordinance were available to him, coupled with uncontradicted testimony of the president’s affirmative assurances that defendant’s proposed structure would not be in violation of the ordinance, raises an interesting question, whether the president induced defendant’s action and thereby estopped the Village from asserting any violation of the ordinance. (See Ganley v. City of Chicago (1980), 81 Ill. App. 3d 877, 401 N.E.2d 1184, and City of Evanston v. Robbins (1969), 117 Ill. App. 2d 278, 254 N.E.2d 536.) However, in view of our disposition of the case, we need decide only the first issue.

Defendant asserts that the trial court erred in ruling that the ordinance applied to him for two reasons. First, the modular structure is not a mobile home for purposes of the ordinance. Second, even if the structure is a mobile home it is not governed by. the ordinance which, by its express terms, regulates only those mobile homes used as “a dwelling.”

As previously noted, the ordinance attempts to define the term “mobile home,” but it has done so in terms so general that easy and specific application in this case is not possible. However, construction of the term “mobile home” has been the subject of considerable litigation throughout the United States in cases interpreting both zoning law and restrictive covenants. The Illinois Supreme Court had occasion to consider the matter and interpret the extensive case law in Brownfield Subdivision, Inc. v. McKee (1975), 61 Ill. 2d 168, 334 N.E.2d 131. There, the court was confronted with a steel framed “double-wide” building with a steel superstructure that had been prefabricated and placed on a permanent foundation. Thus, the court in Brownfield Subdivision, Inc. was considering units and erection modes similar to those involved in this case. The court recognized that manufacturers and various regulating agencies used the terms “modular unit” or “sectional home” to describe the structure in question. Nevertheless, the court held that the structure fell within the generic classification of mobile home and violated a restrictive covenant’s prohibition against a “structure of a temporary character, trailer-o e The court recognized that there was a split of authority throughout the country. It was noted that although several courts had held that a building lost its mobile home character once it was placed on a permanent foundation, the majority of jurisdictions held that a permanent foundation does not change the structure’s essential character. In adopting the majority rule the supreme court cited with approval language of the Supreme Judicial Court of Massachusetts. The Massachusetts court, when confronted with a mobile unit that had been placed on a permanent concrete foundation of 20 feet by 50 feet, stated:

“The words of the by-law, interpreted ‘according to their natural import in common and approved usage’ [citations], have equal application to this type of unit whether equipped with wheels or without them. They refer, we think, to this species of self contained unit, which frequently is in form a mobile trailer, in contrast with the conventional type of house usual in, and appropriate to, a single family residence district. In ordinary parlance the unit shown in the exhibits will be spoken of as a trailer or a mobile home, even if it has not been sold with wheels or its wheels have been taken away, and even if it has been affixed to the land. It looks like a trailer, has the qualities of a trailer superstructure, and has been built as a trailer.” Town of Manchester v. Phillips (1962), 343 Mass. 591, 595-96, 180 N.E.2d 333, 336-37.

In view of our supreme court’s holding in Brownfield, and its approval of the language in Town of Manchester, we conclude that the trial court properly held the structure in question to be a mobile home as defined in the ordinance. However, that the structure in question is a mobile home does not answer the question of whether it was subject to the ordinance which regulated mobile homes “occupied as a dwelling.” It is axiomatic that in construing both statutes and ordinances words must be given their common and ordinary meaning (Brownfield, citing with approval Town of Manchester; Berwyn Lumber Co. v. Korshak (1966), 34 Ill. 2d 320, 215 N.E.2d 240; Dean Milk Co. v. City of Chicago (1944), 385 Ill. 565, 53 N.E.2d 612.) The issue in the case thus becomes whether this mobile home was to be occupied as a dwelling. Some guidance is offered by section 2 — 6 of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 2 — 6), which defines dwelling as “a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for human habitation, home or residence.” This definition is similar to the definition of “dwelling” given by Webster’s Third New International Dictionary 706 (1961), “a building or construction used for residence: abode, habitation.”

The Village argues that children “habítate” a day-care center and, thus, a day-care center is a dwelling for purposes of the ordinance. However, a similar argument can be made for any commercial facility at which people spend a portion of their day. If the ordinance were intended to restrict the use of mobile homes for any and all purposes then it would have been easy to have it so state.

Because the structure involved was not intended for use as a dwelling, it was error for the court to hold it to be in violation of the ordinance. We therefore reverse the judgment of the trial court.

Reversed.

KASSERMAN, P. J., and KARNS, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEXANDER ROGERS, Defendant-Appellant.
    Fifth District
    No. 80-355
    Opinion filed October 21, 1981.
    John J. Barrett and Mary Robinson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

. Defendant, Alexander Rogers, appeals the sentence of 30 years’ imprisonment imposed by the circuit court of St. Clair County after defendant was convicted of rape upon a plea of guilty.

On January 30, 1979, defendant withdrew his not guilty plea and entered a plea of guilty to the charge of rape. In exchange for that negotiated plea the State agreed to (1) recommend a sentence of 20 years’ imprisonment and (2) dismiss count II of the indictment charging defendant with aggravated kidnapping. At that point the trial judge admonished defendant that the court was not bound by the State’s recommendation. In response to questioning by the court, defendant stated that his plea was voluntary and that he understood sentencing to be exclusively the prerogative of the court. After determining that the plea was not induced by use of threats or promises and after ascertaining that defendant had prior convictions for rape and robbery, the court advised defendant of the possible sentences that could be imposed and fully admonished him pursuant to Supreme Court Rule 402 (73 Ill. 2d R. 402).

Following those admonitions, the court asked for the factual foundation of the plea. The prosecutor stated that at approximately midnight one evening defendant and his companion pulled their van behind an automobile which had stalled in.St. Louis, Missouri. They helped the driver get her vehicle started, but once that was accomplished defendant’s companion grabbed the woman by the neck and forced her into the van. As she continued to struggle defendant threw a blanket on top of her and began choking her. Defendant’s companion then drove the van to St. Clair County, Illinois, and during the next three hours the two men raped her twice. The court then accepted defendant’s guilty plea and held the cause over for a sentencing hearing on March 9,1979.

At sentencing no evidence was offered in aggravation or mitigation. After indicating that defendant had been admonished several times that the recommended sentence was not binding on the court, the trial judge stated that he had given the matter a lot of thought and in his opinion men who grab innocent women off the streets are “the lowest form of human life 0 * * like some vulture waiting to prey on the defenseless.” The court stated that it had considered the fact that serious bodily harm was inflicted and that in view of his prior record it found defendant’s rehabilitative potential to be low and the need to deter and to protect others to be high. After imposing a sentence of 30 years’ imprisonment the court stated: “I might say in imposing this sentence I have nothing but the greatest contempt for people like you ” #

After imposing sentence, the trial court advised defendant that he had 30 days to file a written motion seeking to withdraw the guilty plea. No written motion was filed by the April 9, 1979, deadline, but shortly thereafter defendant wrote to both the circuit court clerk and the appellate defender stating that his retained counsel had not followed his directions to file such a motion. Thereafter the trial court ordered the circuit clerk to prepare a notice of appeal to this court. This court entered a rule upon defendant to show cause why the appeal should not be dismissed for failure to file a motion to withdraw his guilty plea as required by Supreme Court Rule 604(d) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(d)). Defendant’s response was an affidavit stating that his attorney neglected to act as instructed. We therefore issued an order remanding the cause with directions that defendant be allowed to file a motion to withdraw his plea, and we discharged the rule to show cause.

Following remand, the motion to withdraw the plea of guilty was filed, supported by an affidavit alleging his attorney’s failure to follow instructions. A hearing was held and defendant testified that his attorney told him that if he pleaded guilty he would only receive a 20-year sentence. Defendant did admit that he remembered stating that he understood the court was not bound by the plea negotiation, but he stated that he did not fully understand the admonishment because he was so nervous at the time of sentencing. In denying the motion to withdraw the plea of guilty, the court stated that defendant had not appeared nervous at sentencing and that defendant had fully understood the admonitions he had been given.

Following denial of his motion to withdraw plea, defendant filed notice of appeal, and the State Appellate Defender was appointed to represent him. The State Appellate Defender moved to withdraw representation of defendant, claiming a conflict of interest due to its prior representation of defendant’s companion in the crime, Elvis Jefferson, who was also convicted of rape in a separate trial. This court denied that motion, and the supreme court denied the application by the State Appellate Defender for a writ of mandamus directing this court to grant the motion to withdraw.

Defendant now appeals contending (1) the Appellate Defender should be allowed to withdraw and (2) the 30-year sentence was excessive.

Defendant’s co-defendant, Elvis Jefferson, was represented in his appeal by the deputy defender of the Fifth District Office in Mt. Vernon. In that case it was argued that Jefferson’s 30-year sentence was excessive in view of the fact that he was a 22-year-old first offender who had received the same sentence as defendant Rogers who was more culpable and also had a prior record of convictions. The Jefferson case, our number 79-382, was disposed of by an order filed on May 16, 1980.

Presumably in order to avoid a potential conflict, the State Appellate Defender assigned the representation of defendant in this appeal to the deputy defender from the Second District Office in Elgin. As noted, one of the points raised in the brief filed on behalf of defendant raises the issue regarding permission to withdraw because of the asserted conflict of interest.

The parties are not in agreement over the extent to which a conflict of interest as to one attorney in one district State Appellate Defender’s Office disqualifies all members of the State Appellate Defender’s staff in all districts. In People v. Robinson (1979), 79 Ill. 2d 147, 402 N.E.2d 157, the supreme court held that a conflict as to one attorney in a public defender’s office is not a per se conflict as to all attorneys in that office. The court noted that there is no statewide public defender system and that substantial differences exist as to the degree of centralization within individual offices, making a case-by-case determination necessary.

Unlike the public defender system, the State Appellate Defender system is statutorily centralized by the State Appellate Defender Act as a single entity separated into five district offices. (Ill. Rev. Stat. 1977, ch. 38, par. 208 — 1 et seq.). Section 3 of the State Appellate Defender Act (Ill. Rev. Stat. 1977, ch. 38, par. 208 — 3) creates the office of State Appellate Defender, and section 10 (Ill. Rev. Stat. 1977, ch. 38, par. 208 — 10) of the Act defines his powers and duties. Section 9 of the Act (Ill. Rev. Stat. 1977, ch. 38, par. 208 — 9) directs the State Appellate Defender to appoint a deputy defender for each judicial district to serve as the administrator of the district office. It is within this framework that the State Appellate Defender performs his duty, imposed by section 10 of the Act, of representing indigent persons on appeal in criminal cases.

Although an argument can be made that a conflict as to one assistant state appellate defender is a conflict as to all, it is evidence that appellate representation does not involve to the same extent the risk attending trial representation that confidential communications will be abused or that divided loyalty will interfere with an attorney’s ability to develop a favorable trial record. (See Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173.) We believe these critical distinctions dictate that a standard less rigorous than the one applied to conflict of interest in trial representation ought to be applied in determining whether an assistant appellate defender is confronted with a conflict of interest as the result of action taken by another member of the appellate defender’s staff. At the same time that we hold the standard less rigorous for determining whether a conflict of interest exists where co-defendants are represented by the State Appellate Defender, whether from the same or separate district offices, we nevertheless believe that consideration of the matter should be within the ambit of the guidelines laid down by the supreme court for public defender’s offices in People v. Nelson (1980) 82 Ill. 2d 67, 73. 411 N.E.2d 261. 264-65.

“In People v. Robinson (1979), 79 Ill. 2d 147, this court declined to adopt a per se rule that attorneys in a public defender’s office are members of an entity. We expressed the opinion that ‘the decisions of the Supreme Court and this court (see Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173; People v. Stoval (1968), 40 Ill. 2d 109; People v. Kester (1977), 66 Ill. 2d 162; People v. Berland (1978), 74 Ill. 2d 286; People v. Vriner (1978), 74 Ill. 2d 329) furnish guidance adequate to avoid conflicts of interest which will impede the furnishing of effective assistance of counsel.’ (79 Ill. 2d 147, 159-60.) In People v. Miller (1980), 79 Ill. 2d 454, we said that where the question of conflict of interest arises ‘a case-by-case inquiry is contemplated whereby it is determined whether any facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office. See, e.g., People v. Smith (1967), 37 Ill. 2d 622.’ 79 Ill. 2d 454, 462.”

We need not decide here exactly what standard for determination of the existence of a conflict of interest is to be applied because we believe there was no inconsistency in the positions taken by the two assistant appellate defenders from the separate district offices.

In this case and the Jefferson case there was no time at which both defendants were simultaneously represented by the State Appellate Defender. In addition the argument that Jefferson’s sentence was excessive in no way conceded the propriety of Rogers’ sentence. We therefore conclude that our prior ruling denying the Appellate Defender leave to withdraw was correct. We find no conflict presented by the Appellate Defender’s prior representation of Jefferson.

Defendant’s contention that his sentence is excessive is based primarily upon People v. Bolyard (1975), 61 Ill. 2d 583, 388 N.E.2d 168. In that case defendant was sentenced to an indefinite term of 6 to 18 years’ imprisonment for taking indecent liberties with a child. The supreme court remanded for resentencing since the record there showed that the sentence imposed was a byproduct of the trial judge’s personal biases. In that case the trial court stated that there was no excuse for the “most sinful, reprehensible act of all offenses.” Although that statement is similar to the statement made by this trial court, Bolyard was not remanded for that statement. That case was remanded because in denying defendant’s request for probation the trial court did not follow statutorily mandated standards but instead stated that it would follow his circuit’s unwritten policy of not considering probation for such an offense. The record here does not reveal any such arbitrary action by which statutory standards were ignored. In this case the trial judge stated that defendant’s actions represented “the lowest form of human life.” Such statement was doubtless prompted by the brutality and the abduction which accompanied this particular rape. It also reflects consideration by the trial court that the circumstances of the offense bears directly upon whether (1) “defendant’s conduct caused or threatened serious harm” and (2) “the sentence is necessary to deter others,” both of which are to “be accorded weight in favor of imposing a term of imprisonment.” (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 5—3.2.) In addition to considering properly the exceptionally reprehensible conduct which accompanied this rape, the court also considered defendant’s prior criminal history. On the basis of all of these considerations we cannot conclude that the 30-year sentence was an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Accordingly we affirm.

Affirmed.

KASSERMAN, P. J., and KARNS, J., concur.


text:
    LOUIS H. GURLEY, Plaintiff-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellant.
    Fifth District
    No. 80-559
    Opinion filed October 21, 1981.

      Stephen W. Thomson, of Reed, Armstrong, Gorman & Coffey, of Edwards-ville, for appellant.
    Richard A. Cagle, of Alton, for appellee.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant, State Farm Mutual Automobile Insurance Co. (State Farm), appeals from a declaratory judgment entered by the circuit court of Madison County. In entering the judgment that court ruled that at the time plaintiff, Louis Gurley, was struck by a motorist, an insurance policy issued by defendant, containing an uninsured motorist clause, was in full force and effect. On appeal defendant contends (1) plaintiff’s policy had lapsed by its express terms because of failure to pay the premium within prescribed time limits and (2) there was insufficient evidence to establish that the motorist striking defendant was “uninsured.”

It is undisputed that on April 7, 1969, defendant issued automobile liability insurance policy number 663162 — D07—13 (the policy) to plaintiff. The policy term was from April 7,1969, through October 7,1969, and for those succeeding six-month periods for which the required renewal premium was paid. In addition to providing uninsured motorist protection of $10,000, the policy contained clauses which in pertinent parts provided:

“Cancellation * * ° The company agrees as to each coverage in force on- such effective date:
A. to continue such coverage in force until the expiration of the current policy, and
B. to renew the policy for the succeeding policy period # # #
These agreements shall be void and of no effect * * * if the named insured fails to discharge when due any of his obligations in connection with the payment of premium * * *.
Changes — The terms of this policy may not be waived or changed except by policy endorsement attached hereto, signed by an executive officer of the company.”

It is also undisputed that plaintiff did not pay the October 7, 1974, renewal premium by that date. Thereafter defendant sent, and plaintiff received, a notice which stated that his policy had expired on October 7, 1974, at 12:01 a.m. The notice further provided that “payment within 10 days after expiration date reinstates this policy as of the expiration date for six months, if paid thereafter, you will be advised if payment has been accepted for reinstatement.” Despite receiving that notice plaintiff did not make the premium payment until plaintiff’s wife delivered the payment to defendant’s agent on October 19, 1974, which was 12 days after its due date. This payment was made one day after plaintiff, as a pedestrian, sustained injuries when struck by a car driven by Deborah S. Francis. In return for the premium payment plaintiff’s wife was given what plaintiff characterizes as an “Unconditional Receipt.” That receipt, signed by defendant’s agent, stated:

“Receipt is hereby acknowledged by:
State Farm Auto
Seventy-five-------------93/100 Dollars ($75.93)
From Louis H. Gurley
Pol. No. 6663 162 D07-13.”

At the time of the injury plaintiff had also been issued from defendant policy number 6670 644 F23 13B (the other policy) for another automobile which plaintiff owned, and that policy was in force. This other policy also contained $10,000 of uninsured motorist protection. Arbitration proceedings as provided for in the other policy were held and resulted in an award to plaintiff of the full amount of the uninsured motorist coverage provided by the other policy. Defendant paid that award to plaintiff, with plaintiff expressly reserving his rights to claim coverage under the policy now under consideration. Following payment of the first award, plaintiff instituted the declaratory action now before this court.

In his complaint plaintiff alleged that despite the late premium payment the policy remained in full force because defendant had induced plaintiff to make a late payment by establishing a course of conduct of allowing late payments or, in the alternative, defendant waived the requirement that a timely payment be made. In its answer defendant denied all material allegations of the complaint, and the cause proceeded to a bench trial.

Plaintiff’s wife testified that at 6 p.m. on Friday, October 18, 1974, she telephoned the office of defendant’s agent, Tom Cox. Mrs. Gurley stated that she had asked if she could come right over and pay the premium. In response she was told everyone would be gone from the office but that it would be all right to come in and pay it the next morning. The plaintiff, Mr. Gurley, was struck and injured two hours later. Mrs. Gurley further testified that the next morning she took the expiration notice with her to Cox’ office and after making a cash payment she received the previously described receipt. Mrs. Gurley stated that she was worried about her husband and related his injury to Cox as he wrote out the receipt. However, she admitted that nothing was said about a potential claim, nor were any assurances given that coverage was in effect at the time of the injury. Mrs. Gurley also testified that while her husband was still in the hospital a check for $5.25 was received from defendant. She stated that although the only notation on the check itself was “includes dividend” she concluded it was for overpayment of premium. Mrs. Gurley could not remember the accompanying notice which stated:

“Unless continuous coverage is indicated, this policy was not in force between 12:01 a.m. on the termination date and the time the policy was reinstated on the reimbursement date as provided under established company procedures. You were not billed for this period.”

Defendant’s agent, Tom Cox, also testified at trial that he did not remember meeting with Mrs. Gurley when she paid the premium on Saturday, October 19,1974. Cox stated that although the signature on the receipt was his, the other writing appeared to be that of his wife. He therefore assumed that he had presigned the receipt and his wife had filled it in, as was often done when he was out of the office. Cox first learned about the accident after reading about it in the newspaper.

Mrs. Cox also testified, stating that she did not remember issuing the receipt or meeting with Mrs. Gurley, although she did believe the handwriting on the receipt to be hers.

Plaintiff also testified at the trial. He stated that he was in the practice of making premium payments a few days past their due date, but always before the 10-day retroactive reinstatement period had lapsed. On this occasion he had received two premium notices. The first notice, received prior to October 7, 1974, indicated that date as the due date. A second notice was received a few days after the due date. Plaintiff admitted that he was aware that he had only 10 days to avail himself of automatic retroactive reinstatement. He stated that he failed to do so within that time because “I got hurt. And I did not think they would use that against me. I had no reason for me to want to drop that policy or anything.” Over objection plaintiff also stated that even though he did not make payment within the 10 days, he instituted this action because “it was through my attorney which brought it up that I found out there was coverage on that.” Plaintiff further testified that he did not remember endorsing any refund check and that he was never advised by defendant that retroactive reinstatement would not be afforded until after defendant had cashed his premium check.

On the basis of this evidence the trial court entered judgment in favor of plaintiff, ruling that the policy was in full force and effect at the time of the accident. Ten days later defendant filed a motion to reconsider, alleging that plaintiff had not met his burden because he had failed to present any evidence at trial to prove that the motorist was uninsured. Shortly thereafter, plaintiff filed a petition to reopen the case for further evidence in order to establish that the motorist was in fact uninsured. The petition to reopen was allowed over objection, and a hearing was held. Plaintiff testified over objection that Deborah Francis had told him she was uninsured and that no one from defendant had disputed this fact during arbitration of the other policy, which contained an identical provision for uninsured motorist coverage. Also over objection, plaintiffs attorney testified that an investigation made on his behalf failed to reveal any insurance coverage on either the automobile or the driver and that in her deposition the driver denied the existence of any insurance.

Following the reopened hearing, plaintiff again made a motion to reopen the case in order to present certain documents establishing that the motorist, Deborah Francis, and her vehicle were uninsured. The motion was denied, and after plaintiff made an offer of proof, the trial court entered judgment in favor of plaintiff, holding that there was no reason to alter its previous determination. Defendant appeals,

In asserting his position that defendant’s course of conduct either induced late payment or waived the requirement of timely payment, plaintiff relies primarily upon the doctrine of estoppel. Estoppel occurs when the party claiming benefit of the doctrine has relied upon actions or representations of the other party which are inconsistent with the position taken by the other party at trial. (Levin v. Civil Service Com. (1972), 52 Ill. 2d 516, 288 N.E.2d 97; Monarch Gas Co. v. Illinois Commerce Com. (1977), 51 Ill. App. 3d 892, 366 N.E.2d 945; Reynolds v. Guarantee Reserve Life Insurance Co. (1976), 44 Ill. App. 3d 764, 358 N.E.2d 940.) In this record we find nothing which would constitute any type of misrepresentation or misleading act by the defendant or its agents. The premium notice unequivocally stated that plaintiff would automatically receive retroactive coverage only if payment was made within the 10-day grace period. Both plaintiff and his wife testified that they were fully aware that the premium payment must be made within 10 days for automatic continuous coverage. Yet plaintiff failed to make payment within 10 days. According to plaintiff’s wife, plaintiff’s payment was not on time because his own paycheck had been late. Unfortunate as that situation was, the late payment was in no way induced by any action or forbearance on defendant’s part. In addition, the evidence was undisputed that even though plaintiff was habitually late with his premium payments, he had always made his payments on prior occasions within the 10-day grace period, and Cox had repeatedly reminded plaintiff of the 10-day maximum late payment allowance. Therefore, no previous actions by defendant or its agent either waived the 10-day grace period or estopped it from asserting nonpayment within that period as a defense.

Even though no prior action by defendant constituted waiver, or could amount to estoppel, plaintiff asserts that defendant’s action in unconditionally accepting his premium check amounted to a waiver of the 10-day limitation period. We cannot agree with this contention for several reasons. First, the policy terms could only be changed by a written endorsement signed by an officer of the defendant company. No contention is made that such was done here. Second, the receipt signed by defendant’s agent merely acknowledged that defendant had received $75.93 from plaintiff which was to be applied to the policy. The receipt in no way indicated the time period for which the payment was being received, nor did it imply that defendant waived its option to reinstate the policy prospectively rather than retroactively.

Although it has often been stated that forfeiture of an insurance contract for nonpayment of premium is not favored in the law (see Van Hulle v. State Farm Mutual Automobile Insurance Co. (1969), 44 Ill. 2d 227, 254 N.E.2d 457), it is not the province of the court to misconstrue unequivocal language merely so that an insurance carrier will bear the loss. Furthermore, the case at bar is readily distinguishable from cases cited by plaintiff in which insurance coverage has been decreed despite a late payment. In Cullotta v. Kemper Corp. (1979), 78 Ill. 2d 25, 397 N.E.2d 1372, it was held that once a check is accepted within the specified time limits, a fact not occurring here, its later dishonor by the bank does not result in a cancellation of the insurance contract unless it is shown that the original acceptance of the check was conditioned upon the bank’s honoring the check.

Plaintiff also cites Van Hulle, but the facts there are far different from those presented in this case. In Van Hulle the insured tendered a premium check on the date of an accident which occurred 62 days after the due date of the premium. There, the insured expressly told the agent that if the insurer would not afford coverage for the accident he wanted the check returned since he no longer needed coverage on the demolished automobile. After holding the check for three weeks the insurer cashed it. The insurer had retroactively reinstated lapsed policies on prior occasions. In addition, the agent knew before the check was cashed that its tender was conditioned upon retroactive reinstatement, and the company accepted this condition by cashing the check with that knowledge. Neither of those facts are present in this case, and for that reason Van Hulle is not controlling.

Instead, we find the nearly factually identical case of Shiaras v. Chupp (1975), 61 Ill. 2d 164, 334 N.E.2d 129, to be controlling here. In Shiaras approximately one month ahead of the due date State Farm mailed to its insured a notice reminding him that his auto renewal premium was due on June 8, 1971. When payment was not received by that date State Farm mailed a second notice on June 11,1971, which stated:

“To have continuous protection make payment to the Company or a State Farm agent within 10 days after policy due date. If payment is not made within 10 days after due date, but is made in less than 40 days, protection will be reinstated as of date payment is received by the Company, subject to established Company procedures.”

Plaintiff failed to make payment until June 21, 1971, on which date his policy was prospectively reinstated. The court held that under those facts defendant was not covered for an intervening accident occurring on June 18,1971.

Plaintiff seeks to distinguish the Shiaras case on two grounds. First, he states that the insured there was not given a receipt for his premium payment, whereas plaintiff here received the previously described receipt, which plaintiff characterized as “unconditional.” However, we find that the receipt given here did no more than acknowledge that a cash payment was received and was to be applied to the policy. Nothing in that receipt indicated that the payment was not to be applied to the policy under the terms which defendant had communicated to plaintiff by means of its notice. To hold that such a receipt changes previously stated terms would require every cash receipt to restate explicitly the major terms of the insurance contract or, at the very least, to state that the receipt does not change them. Such a holding would exalt form over substance and would be an improper basis for distinguishing Shiaras.

Defendant also seeks to distinguish Shiaras on the basis that the notice there stated that the company after 10 days would reinstate prospectively, whereas here it said that after 10 days the company reserved the right to notify plaintiff as to whether retroactive reinstatement would be afforded. The mere fact that defendant may not have notified plaintiff would only indicate that retroactive reinstatement was not to be afforded and does not serve as a basis for distinguishing the cases.

Finding that the policy here had lapsed, as did the policy in Shiaras, we reverse the judgment of the circuit court.

Reversed.

KASSERMAN, P. J., and KARNS, J., concur.


text:
    SHRINERS HOSPITALS FOR CRIPPLED CHILDREN, Petitioner-Appellee, v. FIRST NATIONAL BANK OF DECATUR et al., Respondent-Appellee.—(ILLINOIS MASONIC HOME, Respondent-Appellant.)
    Fifth District
    No. 81-11
    Opinion filed October 21, 1981.
    Charles R. Young and Charles C. Hall, both of Young, Welsch, Young and Hall, of Danville, for appellant.
    John P. Ewart, Richard F. Record, Jr., and Millard S. Everhart, all of Craig & Craig, of Mattoon, for appellee Shriners Hospitals for Crippled Children.
    Stephen J. Allison, of Gollings, Allison and Gollings, of Moweaqua, for appellees Glenn Giles and Eleanor Giles.
    Robert D. Winters, of Armstrong, Winters, Prince, Featherstun & Johnson, of Decatur, for appellee First National Bank of Decatur.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Respondent, Illinois Masonic Home (Masonic Home), appeals from orders entered by the circuit court of Shelby County which (1) allowed petitioner, Shriners Hospitals for Crippled Children (Shriners), to have its will contest petition dismissed with prejudice and (2) denied Masonic Home’s motion to amend its answer to Shriners’ petition by filing a counterclaim to contest the will of the late Jessie C. Burkitt.

It is undisputed that Jessie C. Burkitt, a resident of Shelby County, Illinois, died on April 13,1979, leaving no known blood relatives. On June 12, 1979, the circuit court admitted to probate a purported last will and testament dated June 5, 1978. The beneficiaries under the will included Mrs. Burkitt’s sister-in-law, several friends and several charitable organizations, including Masonic Home. On September 14,1979, Shriners filed a three-count complaint which contested the June 5, 1978, document and referred to an earlier will, under which both it and Masonic Home were listed as beneficiaries. Count I of the complaint alleged that decedent’s attorney-in-fact, Glenn Giles, had taken advantage of his fiduciary relationship and deprived decedent of her free agency. Count II alleged that Giles had exercised undue influence. Count III alleged that decedent was of unsound mind and incapable of making a will on June 5,1978.

On March 14, 1980, Masonic Home filed its answer to Shriners’ will contest petition. In substance the answer filed by Masonic Home stated that it had insufficient knowledge to form a belief as to the truth or falsity of any of the allegations made by Shriners and prayed that Shriners be required to make strict proof of its allegations. On November 26, 1980, Shriners moved to have its petition to contest the will dismissed with prejudice. Masonic Home opposed that motion and on December 11, 1980, Masonic Home sought leave to amend its answer by adding a three-count counterclaim contesting Jessie C. Burkitt’s purported will of June 5, 1978. The proposed counterclaim was virtually identical to the Shriners’ petition which Shriners sought to have dismissed with prejudice. The circuit court denied Masonic Home leave to amend its answer by adding the counterclaim and allowed Shriners’ motion to have its own petition dismissed with prejudice. Masonic Home appeals those rulings.

Masonic Home contends that its attempt to change its position and to become a contestant of the will admitted to probate is subject to the liberal pleading rules of the Civil Practice Act. Under section 38(2) of that Act (Ill. Rev. Stat. 1979, ch. 110, par. 38(2)), a “counterclaim shall be part of the answer,” and section 46 of that Act (Ill. Rev. Stat. 1979, ch. 110, par. 46) would allow for liberal amending of the answer. Section 46, subsections 1 and 2, states:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, introducing any party who ought to have been joined as plaintiff or defendant, discontinuing as to any plaintiff or defendant, changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.
(2) The cause of action, cross demand or defense "set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving as aforesaid the cause of action, cross demand or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

The appellees contend that the liberalized pleading standards of the Civil Practice Act are inapplicable to the controversy here in view of the substantive law of will contests. They point to section 8 — 1 of the Probate Act (Ill. Rev. Stat. 1977, ch. 110?2, par. 8 — 1), which at the time pertinent here provided:

“Within 6 months after the admission to probate of a domestic or foreign will in any court of this State, any interested person may file a petition 0 ° 0 to contest the validity of the will.”

According to their theory, the substantive law of Illinois requires that any interested person wishing to attack the validity of a will must do so within 6 months of its admission to probate. They contend that the 6-month requirement is absolute regardless of whether the validity is challenged by way of a petition to contest the will or whether the will is challenged, as here, by way of a counterclaim. The question before us thus becomes whether Masonic Home was required to plead its claim of invalidity within 6 months in order to vest the court with jurisdiction or whether jurisdiction over the issue of invalidity had attached for all purposes as soon as any contestant had claimed invalidity within the 6-month period.

Masonic Home’s contention, that jurisdiction attached for all purposes once Shriners had filed its petition, is based primarily on the cases of Nupnau v. Hink (1965), 33 Ill. 2d 285, 211 N.E.2d 379, and Watt v. Farmers State Bank (1979), 71 Ill. App. 3d 455, 389 N.E.2d 947. In Nupnau plaintiffs filed their will contest within the statutory period but failed to include all necessary parties within that time. After expiration of the statutory period, plaintiffs sought leave to add the omitted parties by amendment, and defendants moved to dismiss for lack of jurisdiction. The trial court dismissed the case, and the appellate court affirmed. The supreme court reversed, citing its earlier language in a case predating the Probate Act:

“ ‘While the statute authorizing the contest of a will in chancery is not properly a limitation law but is a statute conferring jurisdiction, it goes further than merely conferring jurisdiction and prescribes the time within which the jurisdiction conferred must be invoked. If the jurisdiction conferred is invoked by filing the bill within the time limited the bill must be entertained, and the failure to make a necessary party a defendant to the bill within [the statutory period] ° 0 ° is not a failure to invoke the jurisdiction ° * V ” 33 Ill. 2d 285, 287, 211 N.E.2d 379, 380, citing Stephens v. Collinson (1911), 249 Ill. 225, 236, 94 N.E. 664, 668.

In Watt plaintiffs also filed their will contest within the statutory period, but their petition failed to refer to a codicil to that will within that period. After expiration of the statutory period, plaintiffs sought to amend their petition to attack the validity of both the will and the later-drawn codicil which reaffirmed the will in every respect except for the naming of the executor. The trial court dismissed the cause with prejudice, holding that the codicil had republished the will and, in effect, cured any undue influence associated with the original will. Since the codicil itself had not been attacked within the statutory period, the trial court ruled there was not a timely challenge. The appellate court reversed, holding that a will and its codicil are part of the same “transaction” within the meaning of section 46(2) of the Civil Practice Act and that plaintiff’s proposed amendment should have been allowed by a liberal interpretation.

A broad reading of Nupnau and Watt might suggest that section 46 of the Civil Practice Act is controlling once a will contest has been timely filed by any party. However, it is important to note that in neither of those cases, nor in any other case cited by those courts, was a party seeking to change its position from that of a party supporting the will to that of a party attacking the will. Such a realignment would have the effect of allowing one party to take advantage of another party’s timely actions, even though each party originally had its own cause of action to contest the will and one party chose not to do so within the required time.

In essence, this is what has happened. Masonic Home had a cause of action for the contest of the decedent’s purported will for the 6-month statutory period. It chose not to assert that cause of action. In like manner, Shriners also had a cause of action for contest of the decedent’s purported will. It chose to assert its cause of action by commencing this suit. Masonic Home entered the case by filing an answer which was silent as to its own cause of action. It chose alignment in the suit as a defendant, or perhaps as a neutral, rather than as a contestant. When Shriners then withdrew its suit, Masonic Home moved to be permitted to assert the cause of action possessed by Shriners. We hold that even a liberal interpretation of section 46 of the Civil Practice Act does not permit such realignment in this case.

Illinois law has traditionally favored the early settlement of estates. Allowing such a realignment would work against early settlement of estates by permitting the filing of a will contest months, or conceivably years, after expiration of the limitation period provided in the statute.

Subsection 1 of section 46 of the Civil Practice Act permits amendment of pleadings to “enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.” (Ill. Rev. Stat. 1979, ch. 110, par. 46.) Since the cross-demand of the Masonic Home was its cause of action for contest of the purported will, that demand had been barred by the 6-months’ limitation statute. The cross-demand Masonic Home sought to assert by its untimely counterclaim was the cause of action of Shriners. We think, therefore, that section 46 would not permit the filing of the counterclaim by Masonic Home.

In the substantive law of will contests is the case of McCreery v. Bartholf (1922), 305 Ill. 325, 137 N.E. 242, which we find to be controlling. In that case decedent died leaving three uncles as his only heirs at law. One uncle filed a will contest within the statutory period. After expiration of that period another uncle sought leave to be realigned as a co-complainant. When that was denied he filed an answer admitting all the allegations in the petition to contest the will. However, later in the proceedings the uncle who brought the petition was granted leave to withdraw it with prejudice. On appeal the supreme court affirmed, holding that since the second uncle had failed to act within the statutory period the trial court properly denied his motion to be made co-complainant.

The substantive teaching of McCreery is apparent, and even though procedural law has changed greatly since 1922, it has had no effect on the substantive law of will contests. Part of that substantive law as developed in McCreery is that a party seeking to contest a will is required to assert its own claim within the statutory period in order to vest the court with jurisdiction. Masonic Home could have done this either by filing its own petition or by filing its counterclaim to Shriners’ petition within the statutory period. Since Masonic Home failed to do this, its claim was not timely and the trial court acted properly. We therefore affirm.

Affirmed.

KASSERMAN, P. J., and EARNS, J., concur.