author: JUSTICE "VAN DEUSEN

text:
    DAVID R. HILL et al., Plaintiffs-Appellants, v. BEN FRANKLIN SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    Second District
    No. 82—106
    Opinion filed February 9, 1983.

      Thomas J. Sisul, of Sisul, Marks & Fleming, of Downers Grove, for appellants.
    Gary L. Taylor, of Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   JUSTICE "VAN DEUSEN

delivered the opinion of the court:

The trial proceedings in this matter are illustrative of the procedural morass in which litigants can find themselves when both a motion to confirm a judgment by confession brought pursuant to section 12 of the wage deduction act (Ill. Rev. Stat. 1981, ch. 62, par. 82) and a motion to open a judgment by confession made pursuant to Supreme Court Rule 276 (73 Ill. 2d R. 276) are pending at the same time.

A rather detailed review of the trial proceedings in this matter are necessary for an understanding of the problems present in this appeal.

During June and July 1981, Ben Franklin Savings & Loan Association (Ben Franklin) filed several mortgage foreclosure actions designated respectively as 81 CH 538, 81 CH 599 and 81 CH 661 in the circuit court of Du Page County against homebuilder David R. Hill and Linda L. Hill, his wife. On July 24, 1981, Ben Franklin also filed a complaint and confession on a judgment note secured by the mortgage that is the subject of 81 CH 661. On that same day, a judgment in the amount of $69,697.14 was granted on the judgment note against the Hills. Also, on that same day, a summons to confirm the judgment by confession was issued, and it was subsequently served on the Hills on August 12, 1981.

On August 27, 1981, the Hills filed suit number 81 CH 810 in the circuit court of Du Page County against Ben Franklin, its president and its former loan officer. Among other matters, the complaint sought to temporarily and permanently enjoin Ben Franklin from proceeding with the pending foreclosure actions and the pending action at law on the confession of judgment in 81 L 964 and for a court order that Ben Franklin specifically perform a March 23, 1981, agreement to settle the existing financial dispute between the parties and for other relief.

The Hills filed their appearances in the Ben Franklin cases, including 81 L 964, the action for confession of judgment, on September 11, 1981, and, on September 14, 1981, they filed motions to consolidate these cases together with their own case. On September 29, 1981, Ben Franklin served a notice and motion to confirm the judgment by confession in 81 L 964. On November 19, 1981, the Hills filed in 81 L 964 a response to Ben Franklin’s motion to confirm judgment by confession and prayed that the motion to confirm be denied. Further, in their prayer for relief, the Hills moved to open the judgment by confession in the matter and to set the cause for hearing. On December 2, 1981, an order was entered by agreement of the parties consolidating cases 81 CH 538, 81 CH 599, 81 CH 661 and 81 L 964 with the Hills’ suit, 81 CH 810.

On December 9, 1981, the parties appeared before the trial court for a hearing on Ben Franklin’s motion to confirm judgment by confession. At the same time, the parties treated the Hills’ motion to open the judgment, contained in the prayer for relief in their response to Ben Franklin’s motion to confirm, as if it were a separate motion brought pursuant to Supreme Court Rule 276 (73 Ill. 2d R. 276).

At the onset of the hearing, the attorneys for Ben Franklin argued successfully but erroneously that since the Hills had been served on August 12, 1981, with a summons to confirm judgment by confession and had not filed an answer or other response within 30 days as required by the summons, the Hills were barred from filing any pleading except a petition made pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401). The trial judge agreed and did not proceed with a hearing on the motion to confirm judgment or on the purported motion to open the judgment, contained in the Hills’ response to the motion to confirm, but rather entered an order granting the Hills 14 days to file a “section 72 motion.”

The trial judge’s requirement that the Hills file a section 72 petition because they did not file an answer or response within 30 days of the date the summons to confirm was served upon them was improper. In the first place, a review of the record indicates the Hills did comply with the requirements of the summons and did file their appearance within 30 days as required. Further, a section 72 petition is the proper method for attacking a judgment by confession in those cases where, unlike the case at bar, the judgment debtor is not seeking to open the judgment for the purpose of obtaining a trial on the merits. (Service Finance Co. v. Hammitt (1982), 109 Ill. App. 3d 326, 327-28, citing Kankakee Concrete Products Corp. v. Mans (1980), 81 Ill. App. 3d 53, 56.) Supreme Court Rule 276 governs the procedure that is to be followed in all ordinary cases in obtaining relief from a confessed judgment (Service Finance Co. v. Hammitt (1982), 109 Ill. App. 3d 326, 328; Burkett v. Finger Lake Development Corp. (1975), 32 Ill. App. 3d 396, 403) and, while a defendant must show that he has been diligent in presenting a motion to open judgment made pursuant to that rule, there is no requirement that it be made within 30 days (Whitely Estates Corp. v. Cappelletti (1969), 112 Ill. App. 2d 157, 159).

On December 4, 1981, the Hills filed a motion to open the judgment by confession entered in consolidated case 81 L 964 stating that the motion was being made pursuant to “chapter 110, section 72, Illinois Revised Statutes.” On January 6, 1982, the trial court held a hearing and denied the Hills’ motion to open the judgment. However, the same order also gave them, in substance, the relief sought in their motion, since it provided that the judgment in 81 L 964 should stand but that all supplemental proceedings were stayed thereon and no levy should be taken thereon without leave of court. (See 73 Ill. 2d R. 276.) On February 3, 1982, the trial court entered an order. The contents of that order which are pertinent to this matter denied the Hills’ motion to reconsider the denial of their alleged section 72 petition and found there was no just reason for delaying the enforcement or appeal of the order of February 3, 1982.

On February 5, 1982, the Hills filed a notice of appeal from the judgment by confession in case 81 L 964 entered on July 24, 1981, in the amount of $69,697.14 and the denial of their motion to open that judgment by confession entered January 6,1982.

At the outset we note that a serious question exists regarding the appealability of the two orders referred to in the notice of appeal. Even though the question is not raised by the parties, the appellate court has the duty to consider its jurisdiction over the appeal. (Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 992.) Where there is no appealable order, it is the duty of the court to dismiss the appeal for want of jurisdiction, even if the parties are willing to forego questioning the court’s jurisdiction. Bell v. Home Federal Savings & Loan Association (1976), 38 Ill. App. 3d 652, 654.

Supreme Court Rule 301 (87 Ill. 2d R. 301) provides in pertinent part that every final order in a civil proceeding is appealable as a matter of right. Considering the current procedural posture of this matter, it does not appear that the orders from which this appeal is taken were final orders. Nor does the finding of the trial court made on February 3, 1982, that there was no just reason for delaying enforcement or appeal of that order bestow the necessary finality. (Oak Brook Bank v. Citation Cycle Co. (1977), 45 Ill. App. 3d 1053, 1057.) Such a finding, when made, simply makes appealable a final order in a multiple claims context. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 395-96.) A final order which is necessary for this court to have jurisdiction on appeal from the trial court must terminate the litigation on the merits or dispose of the rights of the parties upon the entire controversy or some definite part thereof. Irvin v. Poe (1974), 18 Ill. App. 3d 555.

The orders entered in this cause from which the Hills seek to appeal did not in any way terminate the litigation on the merits of the entire case or any part thereof. There is no doubt that, upon entry, the July 24, 1981, order granting judgment against the Hills in the amount of $69,697.14 was a final order. However, it ceased to be a final judgment when Ben Franklin caused the summons to issue to confirm the judgment by confession. “Once summons issues, the confirmation proceeding is conducted as a trial de novo with all matters of the trial, such as pleading and discovery, governed by the Civil Practice Act. Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.” (City-Wide Realty Co. v. Fryer (1979), 70 Ill. App. 3d 649, 652.) Once the confirmation proceeding is initiated, the defendant has a right to plead and the judgment is to be disregarded. See 70 Ill. App. 3d 649, 653.

However, while it was unnecessary in this case for the Hills to file a motion to open judgment under Rule 276 or a petition to vacate the judgment under section 72, the fact remains that they did file a motion to open judgment, and the court denied that motion. While the Hills’ motion to open judgment was designated as being brought pursuant to section 72, it was, in fact, a Rule 276 motion and should be considered as such. Service Finance Co. v. Hammitt (1982), 109 Ill. App. 3d 326, 327-28; Lyons Brothers Lumber & Fuel Co. v. Shepherd (1980), 81 Ill. App. 3d 213, 216; see Whitely Estates Corp. v. Cappelletti (1969), 112 Ill. App. 2d 157, 158-59.

Ordinarily, the denial of a Rule 276 motion, for whatever reason, is a final order because its effect is to let stand the judgment by confession. (See Larsh v. Green Gold Farms, Inc. (1966), 68 Ill. App. 2d 113, 116; 2 Ill. L. & Prac. Appeal and Error sec. 132 (1953).) However, as pointed out above, because of the pendency of the confirmation proceeding in this cause, the judgment on the confession note was no longer final. Nevertheless, the Hills, as defendants in the confession of judgment proceeding 81 L 964, chose to have the court rule on their motion to open the judgment. In so doing, they submitted two issues to the court for determination: (1) whether the defendants had a meritorious defense and (2) whether defendants had been diligent in presenting their motion. 73 Ill. 2d R. 276.

While the trial judge did not set forth specifically his grounds for denial of the motion to open the judgment, an examination of the record discloses that the trial court did not deny the motion on the grounds that the Hills did not have a meritorious defense. Rather, his ruling indicates to the contrary and discloses that the court’s intent was that the Hills, in fact, were entitled to a determination and a hearing on the merits of their defense at the hearing to be held on Ben Franklin’s motion to confirm the judgment. Counsel for Ben Franklin, with refreshing frankness, agrees that such was the intent of the trial court in denying the Hills’ motion.

We must necessarily conclude that, under the rather novel circumstances created by the procedural steps present in this case, there has yet been no decision on the merits on the issues pending between the parties. Therefore, neither order appealed from is presently a final and appealable order, and this appeal must be dismissed.

Appeal dismissed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE HARRISON

license: Public Domain

text:
    BELLEVILLE NATIONAL BANK, a/k/a Belleville National Savings Bank, Plaintiff-Appellee, v. MARGARET W. TRAUERNICHT, Defendant-Appellant.
    Fifth District
    No. 82—232
    Opinion filed February 18, 1983.
    Weihl & Millard, Ltd., of Belleville (Donald E. Weihl, of counsel), for appellant.
    Johnson & Johnson, of Belleville (P.K. Johnson, Sr., of counsel), for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

The defendant, Margaret W. Trauernicht, appeals from a final judgment of the circuit court of St. Clair County which, after a trial on the merits of the case, quieted title to certain real estate in favor of the plaintiff, Belleville National Bank. The defendant contends first that a contingent remainder created by deed in 1913 under section 6 of the Illinois Conveyances Act (Ill. Rev. Stat. 1919, ch. 30, par. 6, current version at Ill. Rev. Stat. 1981, ch. 30, par. 5) could not be destroyed in 1919 by conveyances merging the life estate and the reversion in fee in a third party (the plaintiff’s predecessor in interest). Second, the defendant asserts that the deed creating the contingent remainder precluded destruction of the contingent interest by virtue of an implied covenant. The defendant’s final contention is that the deed which created the contingent remainder also created a trust sufficient to preserve the contingent interest. We affirm.

In 1913, the defendant’s grandparents, William C. Penn and Margaret A. Penn, executed a deed conveying to their daughter, Gladys L. Penn, a life estate in certain real property. The deed provided that the “conveyance is made subject to the following terms, conditions and reservations, to-wit:

First - The said grantors hereby reserve to themselves a life estate in the above described real estate to continue and exist during the joint lives of these grantors and also during the lifetime of the survivor of them; *** Second - And upon the death of both of these grantors, then and in that event, any Court having legal jurisdiction of the matter, shall appoint some competent person or corporation to act as trustee for the said grantee, and such trustee after giving a good and sufficient bond for the faithful performance of his duty as such trustee, shall thereupon have the control and management of said real estate, ***. Said trustee shall from time to time, and as often as it may practically done, pay over to the said grantee the net rent and income collected by said trustee from said real estate, during her natural lifetime; and said net rent and income shall by said trustee be paid in cash into the hands of the said grantee in person, or by draft or check payable directly to her, and not upon any written or verbal order, nor upon any assignment or transfer made by the said grantee. And at the death of said grantee said trust shall cease and be determined and said real estate shall vest in the heirs of the body of the said grantee, and in default of such heirs, said real estate shall descend to the heirs of the body of the said William C. Penn then living, according to the laws of the State of Illinois, then in force regulating descents.
This conveyance is made by the grantors for the purpose of assuring to their said daughter Gladys Lucille Penn a fixed income, after the death of these grantors, during the remainder of her natural life.”

The parties stipulated that when William C. Penn died on January 14, 1914, his only heirs at law were Margaret A. Penn, his widow, and his children Frederick H. Penn, Eugene A. Penn, and Gladys L. Penn. William C. Penn’s last will was admitted to evidence pursuant to stipulation.

On October 30, 1919, Margaret A. Penn, Eugene A. Penn, Gladys Lucille Penn, Frederick H. Penn and his wife Roxie Penn, executed a conveyance to the Belleville National Bank and Trust Company. This conveyance recited that “it is the aim, object and intention of the life tenants, Margaret A. Penn and Gladys Lucille Penn, as also the other heirs of William C. Penn, deceased, viz: Frederick H. Penn and Eugene A. Penn, to convey an absolute fee simple title to a part of said real estate, and to destroy all contingent remainders created by said deed of conveyance ***.”

On September 15, 1926, Gladys Lucille Penn married S. M. Wallace and on September 2, 1927, the defendant, Margaret Penn Wallace, was bom of that marriage. Gladys Penn Wallace gave birth to no other children. On September 7, 1949, Margaret Wallace married Carl Trauernicht. On December 8,1980, Gladys Penn Wallace died.

The Belleville National Bank, successor in interest to the Belleville Bank and Trust Company, filed this action to quiet title. The defendant filed an answer and amended counterclaim and the case was submitted to the court on the exhibits, stipulations, and briefs of counsel. The trial court rendered judgment for the plaintiff and concluded that the 1919 deed “did effectively vest the fee simple title in the grantee” and “did destroy the contingent remainder in favor of the heirs of the body of Gladys Lucille Penn ***.” The court also concluded that the 1913 deed did not create a trust which would preclude Margaret Penn from conveying her life estate, nor did it create a completed trust, and that no intervening estate was created to prevent destruction of the contingent remainder. The court also concluded that the reversion in the property was in the heirs of the body of William C. Penn, under the terms of the 1913 deed, rather than in the devisees under his will. The court ordered title quieted in favor of the Belleville National Bank and the defendant thereafter perfected an appeal to this court from that order.

The defendant’s first contention on appeal is that a contingent remainder created by deed in 1913 under section 6 of “An Act concerning conveyances” (current version at Ill. Rev. Stat. 1981, ch. 30, par. 5) could not be destroyed in 1919 by conveyances merging the life estate and the reversion in fee in a third party. We disagree.

Initially, we note that although a statute prevents the destruction of contingent remainders, it did not become effective until 1921 — after the conveyances in question (see Ill. Ann. Stat., ch. 30, par. 40, Historical Note, at 520 (Smith-Hurd 1969)) — and was not retroactive. Edmiston v. Donovan (1921), 300 Ill. 521, 525, 133 N.E. 237.

As the statute does not apply to the instant case, we next consider the defendant’s argument that Frazer v. Board of Supervisors (1874), 74 Ill. 282, is authority for the proposition under consideration. Although Frazer supports the defendant’s contention, a substantial line of cases decided after Frazer held that a conditional remainder could be destroyed by the premature termination of the life estate supporting the remainder through a merger of the life estate and the reversion in fee. (See, e.g., Edmiston v. Donovan (1921), 300 Ill. 521, 524-25; Brinkerhoff v. Butler (1921), 296 Ill. 368, 370-71, 129 N.E. 742; Lewin v. Bell (1918), 285 Ill. 227, 230, 120 N.E. 633; Messer v. Baldwin (1914), 262 Ill. 48, 51, 104 N.E. 195; Bond v. Moore (1908), 236 Ill. 576, 591-92, 86 N.E. 386.) The rule before 1921 was that:

“Every remainder requires a particular estate to support it, and a contingent remainder must vest during the continuance of the particular estate or eo instanti that it determines. (2 Blackstone’s Com. 168.) If the particular estate comes to an end before the event upon the happening of which the contingent remainder is to take effect occurs, the remainder is defeated; and this is so whether the preceding estate reaches its natural termination or is brought to a premature end by merger, forfeiture or otherwise.” (Bond v. Moore (1908), 236 Ill. 576, 591.)

The defendant argues that Frazer is nevertheless applicable to the instant case for two reasons. First, she contends that because Frazer involved estates in land which were created by deed, rather than by will, Frazer is distinguishable from, and therefore not necessarily overruled by, the line of cases beginning with Bond v. Moore. Second, the defendant argues that under the 1872 act concerning conveyances, estates fee tail constituted an exception to the general rule of merger and destructibility. (See Bond v. Moore (1908), 236. Ill. 576, 593.) These arguments will be considered sequentially.

Although a distinction was formerly drawn between contingent remainders created by deed and those created by will, this distinction went to whether a contingent remainder, which was to vest in some person not yet in esse, would be considered as in abeyance or as vested in the grantor subject to divestment upon the happening of the contingency. (See Pinkney v. Weaver (1905), 216 Ill. 185, 193-95, 74 N.E. 714 (abrogating the distinction just noted).) This distinction does not bear on the facts of the case sub judice and consequently we find it no reason to distinguish Frazer from subsequent contrary cases. In any event, the different treatment of inter vivos and posthumous conveyances was eliminated by Pinkney in 1905, before any of the conveyances at issue were executed.

The defendant also argues that, under the 1872 act concerning conveyances, estates fee tail constituted an exception to the rule of merger and destructibility and that therefore Frazer is distinguishable from the line of contrary cases. (See Bond v. Moore (1908), 236 Ill. 576, 593.) This exception was short-lived, however, for in subsequent cases (e.g., Danberg v. Langman (1925), 318 Ill. 266, 149 N.E. 245; Brinkerhoff v. Butler (1921), 296 Ill. 368; Lewin v. Bell (1918), 285 Ill. 227), the statute was held not to preserve the contingent remainder following a fee tail when the life estate was merged with the reversion.

We therefore hold that at the time of the 1919 conveyance, Frazer was not the law, and we conclude that the law permitted the destruction of the contingent remainder at issue.

At this point a brief discussion of the development of the common law concerning the fee tail would aid an understanding of the issues on appeal. Under the common law prior to 1285, a gift to a grantee “and the heirs of his body,” was construed by the courts as a fee simple conditional on issue being born. (Frazer v. Board of Supervisors (1874), 74 Ill. 282, 286, citing 2 W. Blackstone, Commentaries 110; see also Digby, History of the Law of Real Property 222-23 (5th ed. 1897) (hereinafter cited as Digby).) When the condition was performed the estate became absolute. In 1285 parliament adopted the statute of Westminister II or de donis conditionalibus (13 Edw. I, ch. 1, reprinted in Digby, at 226-30), which divided the fee simple conditional estate created by the words “heirs of the body,” into two parts: the fee tail (from “taille,” meaning cut off) and a reversion in fee simple. (Digby, at 225; Frazer v. Board of Supervisors (1874), 74 Ill. 282, 287.) In 1872 the Illinois legislature adopted “An Act concerning conveyances.” (Ill. Rev. Stat. 1919, ch. 30, par. 1 et seq.; see Ill. Ann. Stat., ch. 30, par. 5, Historical Note, at 345 (Smith-Hurd 1969).) In 1919, section 6 of the Act provided that:

“In cases where, by the common law, any person or persons might hereafter become seized, in fee tail, of any lands, tenements or hereditaments, by virtue of any devise, gift, grant or other conveyance, hereafter to be made, or by any other means whatsoever, such person or persons, instead of being or becoming seized thereof in fee tail, shall be deemed and adjudged to be, and become seized thereof, for his or her natural life only, and the remainder shall pass in fee simple absolute, to the person or persons whom the state would, on the death of the first grantee, devisee or donee in tail, first pass, according to the course of the common law, by virtue of such devise, gift, grant or conveyance.” (Ill. Rev. Stat. 1919, ch. 30, par. 6.)

Under this statute persons, who at common law after 1285 would have been seized in fee tail, instead received a life estate with the remainder in fee simple absolute to the person or persons to whom the estate tail would have passed under the common law. Lewin v. Bell (1918), 285 Ill. 227, 229.

Additionally, the Rule in Shelley’s Case was in full force in Illinois until 1953. (Compare Johnson v. Buck (1906), 220 Ill. 226, 233, 77 N.E. 163, with Ill. Rev. Stat. 1981, ch. 30, par. 186.) Under the rule, “ ‘where the ancestor takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs, either in fee or in tail, the heirs are words of limitation of the estate and not words of purchase.’ ” Johnson v. Buck (1906), 220 Ill. 226, 233.

“That rule is in force in this State in all cases of limitations of a freehold estate to one with remainder to his heirs generally, and confers the inheritance on the ancestor; but it has been abolished as to estates tail by the sixth section of the Conveyance act. As to limitations controlled by that section, the only use made of the rule is for the purpose of determining whether by the common law a fee tail would have been created. If it would, the person who would have been seized in fee tail is seized for her or his natural life, only, and the remainder passes in fee simple absolute to the person or persons to whom the remainder is limited.” (Emphasis added.) (Winchell v. Winchell (1913), 259 Ill. 471, 473-74, 102 N.E. 823.)

We therefore must apply the common law rules to determine whether a fee tail was created and hence whether the statute applies.

Applying these principles to the 1913 deed, we hold that the grantors reserved to themselves joint life estates in the property and conveyed to Gladys L. Penn a remainder for life with a subsequent remainder over to her heirs of the body. Although the parties cited no case which applied the Rule in Shelley’s Case to a remainderman’s interest to merge the ancestor’s remainder with that of the descendants, the appellate court recently determined that the rule does apply to such a case. (Evans v. Giles (1980), 80 Ill. App. 3d 270, 273, 399 N.E.2d 664, affirmed (1980), 83 Ill. 2d 448, 415 N.E.2d 354.) Following Evans we conclude that Gladys L. Penn had a remainder in fee tail which, under section 6 of “An Act concerning conveyances,” became a remainder estate for life with a remainder in fee simple to the heirs of her body. (83 Ill. 2d 448, 454.) Because Gladys L. Penn had no heirs of the body at the time of either the 1913 or 1919 conveyances, the remainder in fee simple to the heirs of her body was contingent. (Lewin v. Bell (1918), 285 Ill. 227, 229.)

“The rule of the common law was that a contingent remainder of a freehold estate which waits for and depends upon the termination of the estate preceding it required a particular estate of freehold to support it, and if the particular estate came to an end before the time for vesting of the remainder the remainder would fail. The law on that subject originated from the rule that the seisin or feudal possession must never be without an owner, and if it was not at once parted with it remained in the devisor. That is still the law where the necessity of a preceding particular estate of freehold to support a contingent remainder has not been abolished by statute and the recipient of a benefaction of a testator may thwart his will by merging the life estate in the reversion in fee, by which the life estate comes to an end, and when the one who would be entitled to the remainder comes into being he finds that the interest designed by the testator for him was at the mercy of the life tenant and has been destroyed. The common law is still the law of this State, and where a devise comes within the terms of section 6 of the Conveyance act, the remainder being contingent until the birth of issue, it may be destroyed by the termination of the life estate through a merger with the reversion.” (Lewin v. Bell (1918), 285 Ill. 227, 230.)

In the instant case, as of October 30, 1919, Margaret A. Penn owned a possessory life estate, Gladys Lucille Penn owned a vested remainder for life, and Eugene A. Penn and Frederick H. Penn owned the reversionary interest. (As the trial court noted, this interest was created by the 1913 deed, rather than by William C. Penn’s will.) On that date, or shortly thereafter, all of these people executed a deed to the Belleville Bank & Trust Company with the express intention “to convey an absolute fee simple title *** and to destroy all contingent remainders ***.” The deed conveyed the described real estate, together with “the reversion and reversions, remainder and remainders, *** and all the estate, right, title, interest, claim or demand, whatsoever, of the [sellers], either in law or equity, of, in and to the above bargained premises ***.” This deed effectively conveyed all interest in the property which the grantors owned. A conveyance of the life estate, the remainder for life, and the reversion left no existing estate to support the contingent interests, and these were therefore destroyed. Danberg v. Langman (1925), 318 Ill. 266, 270; Messer v. Baldwin (1914), 262 Ill. 48, 51; see also 1 Grigsby, Illinois Real Property sec. 56, at 105-06 (1948).

The defendant next contends that destruction of the contingent remainder would breach an implied covenant in the 1913 deed and therefore is impermissible. This point was not presented to the trial court and is therefore waived. See Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417.

The defendant also argues that the 1913 deed created a trust which prevented a transfer of the property or the destruction of the contingent remainder. In dictum, the supreme court in Lewin v. Bell noted that “the only method by which a testator devising such remainders can preserve them and prevent his intention being frustrated and his will defeated is a resort to a trust.” (Lewin v. Bell (1918), 285 Ill. 227, 230.) Such a trust would support the remainder by holding a legal estate until the happening of the contingency. (See Bond v. Moore (1908), 236 Ill. 576, 592.) Unless the trust actually existed and held the legal title, the contingent remainder would still lack the supporting estate and hence would be destroyed by merger. (See Fuller v. Black (1921), 298 Ill. 351, 353-54, 298 N.E. 351.) In the instant case, as in Fuller, no trustee was actually appointed because the merging conveyances were executed before the contingencies on which the trusts were to commence had occurred. The trust provisions in the deed failed to transfer to an existing trust the legal title to the property. Before the trust which was contemplated in the deed would have taken effect the conveyance destroying the defendant’s interest was executed. We therefore hold that the destruction of the contingent remainder in the instant case was not prevented by a trust because none existed at the time of either conveyance. Accordingly, the defendant’s contingent interest was destroyed by the 1919 conveyance to the plaintiff’s predecessor in interest.

Similarly, because the trust was not in existence at the time of the 1919 conveyance, we find no merit in the defendant’s assertion that the conveyance was in breach of the trust.

We therefore affirm the judgment of the circuit court.

Affirmed.

WELCH and KASSERMAN, JJ., concur.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISIDRO G. GALLARDO, Defendant-Appellant.
    First District (5th Division)
    No. 81—1033
    Opinion filed February 4, 1983.

      Steven Clark and Bruce Mosbacher, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, David A. Stoioff, and James Klein, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of murder and sentenced to a term of 60 years. He contends on appeal that (1) he did not receive effective assistance of counsel; (2) he was denied a fair trial when the jury was given an unintelligible instruction on voluntary manslaughter, and the court, outside the presence of defendant or his counsel, failed to answer the jury’s question on this issue; and (3) the trial court abused its discretion in sentencing him to an extended term of 60 years.

At a pretrial hearing on defendant’s motion to suppress his statements as involuntarily made, police officers testified that they approached defendant in Witort’s Tavern at approximately 5:30 p.m. on June 26, 1980, and after identifying themselves as police officers, said they wanted to talk to him; that he was told he was not under arrest, but they did not tell him he was not required to accompany them; that he was taken to the Melrose Park police station along with Guillermo Castillo, another suspect, for investigation; that defendant spoke some English, but when he indicated a desire for a Spanish interpreter, questioning ceased until the interpreter arrived; that the interpreter, after participating in the questioning of Castillo, met with defendant at approximately 10 p.m. and, speaking Spanish, identified himself as a police officer; that he read Miranda warnings to defendant in Spanish, which defendant acknowledged he understood; that defendant then agreed to make an oral statement in which he admitted killing the victim; that defendant was not physically or mentally coerced, was allowed food and drink, did not appear to be intoxicated, and received no promises of leniency; that his responses to questions were appropriate, and the interpreter had no difficulty communicating with him; that defendant signed a waiver of his Miranda rights which, although written in English, was orally translated into Spanish; that he then wrote out a statement in Spanish and later made a further oral statement to Assistant State’s Attorney Speh after again being informed, in Spanish, of his Miranda rights and stating that he understood them; that he acknowledged his written statement to Speh but, when asked to tape record a statement, he declined and requested a lawyer — at which point all questioning ceased; and that, during this time, defendant was not free to leave, although he was not informed that he was under arrest until after he made the first oral statement.

Defendant testified that he was intoxicated when the police picked him up at Witort’s Tavern, and he therefore did not remember most of what happened at the police station; that the interpreter did not identify himself as a police officer and spoke broken Spanish which was difficult to understand; that he was never read his rights and, although he said from the beginning that he wanted to speak to a lawyer, none was provided; and that he was physically abused before making his statement.

The motion to suppress was denied and, at the subsequent trial, Chris Kempf testified that he left the Anchor Inn Tavern (the tavern) between 1 and 1:30 a.m. on June 26, 1980; that the only other person present at that time was the bartender, Frank Turso; and that the tavern was equipped with a system which prevented entry unless someone on the inside pressed a buzzer.

Harold Sziviski, owner of the tavern, testified that he arrived at approximately 3:15 a.m. to check the cash receipts; that as he approached he noticed that the outside lights were turned off but the interior lights, usually extinguished at closing, were still burning; that he looked through a window and saw several stools overturned and Turso lying face down in a pool of blood; that he entered the tavern but could not remember whether the door was locked; that $340 and a box of Puffs facial tissues were missing from the bar, but the safe, normally left unlocked, was locked and the handle was covered with blood; and that, when the safe was later opened, the night’s receipts were inside.

Castillo testified that when defendant came to his apartment at the Broadway Main Hotel between 2 and 3 a.m. on June 26, 1980, he had a cut on one hand and explained that a black man beat him up and robbed him; that later that day defendant’s hand was bandaged, and he cautioned him (Castillo) not to talk about the injury; and that he (Castillo) had told all of this to the police.

While testimony of police officers was essentially the same as that presented at the pretrial hearing, they added that upon their arrival at the tavern, they noted signs of a struggle with blood all over and traces of hair and human tissue on the base of a metal coat rack; that the following afternoon they noticed a trail of blood which led across the street to the Broadway Main Hotel and up to Castillo’s apartment, where they found blood on the door; that after talking to Castillo, who had no visible signs of injury, they began searching for defendant and found him at Witort’s Tavern, where they identified themselves to defendant as police officers and asked him to step outside; that when they inquired about the bandage on his hand, he explained that he cut his hand on some broken glass at Witort’s the previous evening; that an immediate check with the bartender at Witort’s failed to corroborate this explanation, and he was taken to the police station where, after waiving his Miranda rights, he told the officers that he left Witort’s at approximately 1:30 a.m. on the night in question and went to a friend’s home, but this story was denied by the friend; that in searching defendant’s apartment, they found a shirt, a box of Puffs facial tissues, and a brown paper bag — all bloodstained — behind the refrigerator; and that there were bloodstains on the pants and shoes defendant wore at the time of his arrest.

Dr. Tae An, Assistant Cook County Medical Examiner, testified that the victim was 63 years old, five feet three inches tall, and weighed 130 pounds; that he had multiple lacerations on his scalp, temple, face and neck, multiple skull fractures, and four fractured ribs; that, in his opinion, the injuries were inflicted by no less than two blows of considerable force with a blunt instrument; and that the cause of death was cerebral injury due to skull fracture and hemorrhaging.

Officer Galvan testified that, while he was acting as interpreter, defendant related in an oral statement that on the night in question, after he left Witort’s with a six-pack of beer, a black man confronted him and, thinking that the man had a weapon, he looked around and saw the victim standing in the doorway of a tavern; that the victim called out, “Hey, Mexican, come here,” and he ran to him; that as he entered the tavern, the victim grabbed him with one arm and put his other hand in his (the victim’s) pocket; that he (defendant) then pulled a knife and threw the victim to the floor; that when the victim got up, he threw him to the floor again and struck him three or four times with a barstool; that he cut his hand in the struggle and went to Castillo’s to wash his wound, telling Castillo he had a fight with a black man.

Abiel Gonsalez, an official court interpreter, translated the statement written in Spanish by defendant, which related substantially the same events, except that defendant stated he killed the victim because he (defendant) thought the victim was reaching for a knife when he put his hand in his pocket.

Defendant testified that he was 25 years old; that he had been drinking heavily on the night in question and left Witort’s Tavern at approximately 1:30 a.m.; that when a black man approached him and tried to steal his beer, he looked around and saw the victim who called him over; that as soon as he entered the tavern, the victim grabbed him; that he struck the victim with his fist, then with a bottle; that the victim grabbed him again, and he (defendant) hit him twice with a chair, causing him to fall; that when he left immediately thereafter, the victim was alive and trying to get up from the floor; that the only injury he (defendant) received was a 1/2-inch cut on his right hand; that he went to Castillo’s apartment and told him about the black man and about the fight in the tavern; that he did not hit the victim hard enough to kill him; and that he was afraid the victim was reaching for a switchblade or a small gun when he put his hand in his pocket.

Opinion

Defendant first contends that he was denied effective assistance of counsel. He supports his position by alleging that his appointed counsel failed to move to suppress his statements as fruits of an illegal arrest; failed to argue to the jury or request an instruction on the theory of self-defense; and told the jury that defendant had the burden of raising a reasonable doubt. The State responds that the record, when considered as a whole, reflects the competency of defense counsel. It further argues that the motion to suppress would have been futile; that the question of what defenses to raise is a question of trial tactics and therefore not subject to review; and that defendant has failed to show any prejudice in his counsel’s statement of what the evidence would show.

An accused has the right to effective assistance of counsel in State criminal proceedings pursuant to the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill. 2d 276, 362 N.E.2d 681), but effective assistance means competent, not perfect, representation (People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64); therefore, we will not require counsel to do a futile act (People v. Murphy (1978), 72 Ill. 2d 421, 381 N.E.2d 677) nor extend our review to areas involving the exercise of judgment, trial tactics, or strategy, even where appellate counsel or this court might have acted differently (People v. Smith (1980), 81 Ill. App. 3d 764, 401 N.E.2d 1017), and we will consider the totality of the circumstances in determining the competency of counsel, rather than focusing on isolated instances during trial (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210). In order to establish a violation of his constitutional rights, defendant must show within the above limitations that his appointed counsel was actually incompetent in carrying out his duties as a trial attorney, resulting in substantial prejudice without which the outcome probably would have been different. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.

Turning to defendant’s first allegation of incompetence, we note that the decision whether or not to file a motion to suppress is generally characterized as a matter of trial tactics and is therefore outside the scope of our review (People v. Hines (1975), 34 Ill. App. 3d 97, 339 N.E.2d 489), particularly where it appears that the decision was based on counsel’s informed judgment (People v. Reppa (1982), 104 Ill. App. 3d 1123, 433 N.E.2d 1091). Here, counsel attempted to develop the illegality of defendant’s arrest in questioning the State’s witnesses at the hearing, and argued to the trial court:

“But I think what we have here, Judge, first of all we’ve got an illegal arrest. There is no question about that, and I think this court has the authority even at this point to consider that.”

Defendant maintains that failure to act on his belief proves that defense counsel was unaware of the decisions in Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, and Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, which establish that a custodial detention for investigatory purposes is tantamount to an illegal arrest if grounded on less than probable cause, and triggers the same safeguards as an illegal arrest; i.e., exclusion of statements obtained as the fruits thereof. We find this argument unpersuasive, since counsel could have characterized the detention here as an illegal arrest only if he did have knowledge of the principles established by Dunaway and Brown. In addition, nothing in the quoted statement shows that counsel was unaware of the exclusionary rule as it relates to illegal arrests.

It is more likely that defense counsel concluded that the court could find probable cause for defendant’s arrest, rendering a motion based on illegal arrest frivolous. We do not consider this judgment patently incorrect (People v. Stanley (1978), 62 Ill. App. 3d 638, 378 N.E.2d 1351) since, although the arresting officers stated that defendant was taken into custody for “questioning,” and was being held “on suspicion,” their subjective belief, while relevant to whether probable cause existed (People v. Thomas (1980), 80 Ill. App. 3d 1121, 400 N.E.2d 1019), does not control the issue (People v. Moody (1981), 97 Ill. App. 3d 758, 423 N.E.2d 566), and the court would consider whether, objectively, the officers had probable cause to arrest the defendant (People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831). The objective facts in this case support a finding of probable cause. At the time defendant was asked to accompany the officers to the police station, they knew that a murder had occurred between 1:30 and 3 a.m.; that a trail of blood led from the murder scene across the street to Castillo’s apartment; that defendant had arrived at Castillo’s apartment, bloodstained and with a cut on his hand, between 2 and 3 a.m.; that defendant was secretive about his injury; that entirely different explanations for the injury were given to them and to Castillo; and that the explanation offered to them was untrue. Compare People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.

Defendant further argues that counsel was incompetent in neither arguing to the jury nor requesting an instruction on self-defense. He asserts that, in the alternative, counsel should have argued that his actions constituted voluntary manslaughter, based on an unreasonable belief that his use of force was justified.

Generally, the decision to rely on one theory of defense to the exclusion of others is a matter of trial tactics. (People v. Tennyson (1979), 75 Ill. App. 3d 341, 394 N.E.2d 418). Here, defense counsel chose to argue that the State failed to prove his client guilty beyond a reasonable doubt. He relied heavily on defendant’s testimony that the victim was alive when he left the tavern and the blows struck were not sufficient to kill him, arguing to the jury that, if defendant were guilty, he would have fled; that it was possible that someone else, seeing the victim in a vulnerable position, killed him in the process of stealing the missing cash; and that the police, given the names of several other suspects, failed to investigate those leads and failed to take fingerprints at the scene. Clearly, a defense based on self-defense would have been incompatible with this theory, since it would require that defendant admit to the killing.

Moreover, it is not incompetent for counsel to refrain from raising issues which he has determined are without merit, unless his appraisal of merit is patently incorrect. (People v. Stanley (1978), 62 Ill. App. 3d 638, 378 N.E.2d 1351.) Here, counsel might well have concluded that a defense based on self-defense, even one based on an unreasonable belief that force was necessary, would be unsuccessful. There was evidence of a robbery motive but no evidence that the victim was of a violent nature, from which the jury might well conclude that defendant’s story of the victim calling him into the tavern in order to attack him was not worthy of belief, as no motive therefor was evident. In addition, the victim, who was 63 years old, five feet three inches tall, and weighed 130 pounds, was brutally beaten, apparently in several areas of the tavern, as he attempted to escape his attacker; while defendant, who was 25 years old, five feet eight inches tall, and weighed 196 pounds, received only a small cut on his hand. While appellate counsel might have chosen a different defense, given trial counsel’s lack of success with the defense chosen, we cannot say that the decision made was patently incorrect; nor can we say, given the above evidence, that the failure to argue self-defense showed actual incompetence resulting in substantial prejudice without which the outcome would have been different.

Defendant further argues that defense counsel was incompetent in making the following remarks during his opening statement:

“All that we are required to do, or that we will do is try to raise the question of reasonable doubt in the mind of you people.
We will be asking questions, we will be constantly sparring with the State’s Attorney, we will be attacking their witness, this is to raise certain questions, which we feel are relevant to the case.
* * *
We, and the defendant, feel we can raise a question or reasonable doubt. We will pose questions, and questions arise in your mind. You have to add up all these questions, weigh all the evidence, and if you find that there is reasonable doubt, that Mr. Gallardo did commit the offense of murder, he is entitled to a not guilty verdict.”

He maintains that this passage placed in the jury’s minds the erroneous belief that defendant had the burden to raise a reasonable doubt in this case.

Initially, we note that immediately prior to the above quotation, defense counsel stated:

“Now, the State has brought the charge of murder against the defendant. They must prove to you all of the elements of the case. They must prove all these elements beyond a reasonable doubt.”

When read in context, it appears that counsel intended to convey that defendant need not present any evidence but could rely on the reasonable doubts left by the State’s case, doubts that he would be pointing out through cross-examination of the State’s witnesses. The quote, when read in its entirety, cannot be said to have implanted an erroneous impression of the law in the jury’s minds.

Even assuming arguendo that the above passage did imply that defendant bore some burden in this matter, that implication was corrected by trial counsel’s additional comment in his opening statement that the State had the burden of proof; by his reminder of the proper burden during closing argument; and by the court’s instruction that the State had the burden of proving defendant guilty beyond a reasonable doubt and that he need not prove his innocence. Additionally, given the overwhelming evidence of defendant’s guilt, we do not believe that these remarks caused substantial prejudice without which the outcome probably would have been different.

Moreover, when the circumstances of the trial are viewed in totality, it appears to us that defendant was competently represented. Counsel filed a timely, albeit futile, motion to suppress, thoroughly cross-examined the State’s witnesses and skillfully directed his own witness, made timely and appropriate objections, presented an organized closing argument, and timely filed a motion for a new trial.

Defendant next contends that he was denied a fair trial when (a) the jury was given a confusing instruction on the definition of voluntary manslaughter, and (b) the trial court, outside the presence of defendant or his counsel, failed to answer the jury’s question concerning language in the instruction. He argues that the jury’s question proves that it was confused on this issue, and therefore it could not have performed its function properly. The State maintains that defendant is estopped from claiming error in giving an instruction which he tendered.

We first consider the question of estoppel, and find People v. Dunigan (1981), 96 Ill. App. 3d 799, 421 N.E.2d 1319, dispositive. There, defendant contended that the trial court erred in denying his motion for a mistrial, arguing that the jury’s questions proved that they were confused by the instructions. We held that the defendant was estopped from arguing that an instruction tendered by him was inadequate and confused the jury.

Defendant maintains that the instant case is distinguishable because he has raised serious questions as to defense counsel’s competence. We have already addressed that issue and have found that defendant received effective representation. Furthermore, we fail to see how defendant was prejudiced by the tendered instruction and any resulting confusion. The instruction in question states:

“A person commits the crime of voluntary manslaughter who kills an individual who if at the time of killing he acts under sudden and intense passion resulting from serious provocation from the deceased’s conduct to excite an intense passion in a reasonable person.”

This appears to be an attempt to paraphrase Illinois Pattern Jury Instruction, Criminal, No. 7.03 (1968), which provides in relevant part:

“A person commits the crime of voluntary manslaughter who kills an individual if, at the time of the killing, he acts under a sudden and intense passion resulting from serious provocation by [the deceased] ***. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.”

Defendant asserts that the instruction, as given, is confusing — a conclusion he maintains is apparent from the jury’s question whether “resulting from serious provocation by the deceased” means serious in the eyes of the defendant. However, if such confusion was indeed caused by the instruction in question, it was actually favorable to defendant, since the proper standard is whether there is objective evidence of serious provocation rather than defendant’s subjective mental state (see People v. Simpson (1978), 57 Ill. App. 3d 442, 373 N.E.2d 809; Ill. Rev. Stat. 1979, ch. 38, par. 9—2), thus negating any possibility of prejudice.

Defendant further suggests that Supreme Court Rule 451(c) (73 Ill. 2d R. 451(c)), which provides in relevant part that “substantial defects [in criminal instructions] are not waived by failure to make timely objections thereto if the interests of justice require,” is applicable to the facts of this case.

Rule 451(c) is a limited exception (People v. Underwood (1978), 72 Ill. 2d 124, 378 N.E.2d 513) applicable to waiver by failure to object (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331). Defendant has not cited, nor has our own research discovered, any case in which this rule has been applied to estoppel. In addition, the cases relied upon by defendant are factually distinguishable and involve more “substantial defects” than the awkward phraseology involved here. People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532 (conflicting instructions, one of which was an erroneous statement of the law); People v. Nugin (1981), 99 Ill. App. 3d 693, 425 N.E.2d 1163 (instruction misstated the law); People v. Mitchell (1975), 27 Ill. App. 3d 117, 327 N.E.2d 158 (court refused to give an instruction supported by the evidence).

We next consider defendant’s contention that the trial court answered the jury’s question on the issue of voluntary manslaughter outside his and his counsel’s presence. While defendant has a constitutional right to be present, either in his own right or by counsel, at proceedings involving his substantial rights (People v. Mallett (1964), 30 Ill. 2d 136, 195 N.E.2d 687), which includes communications with the jury during its deliberations (Parker v. Gladden (1966), 385 U.S. 363, 17 L. Ed. 2d 420, 87 S. Ct. 468), violation of this right is not per se prejudicial (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697); rather, we must determine whether there is such a probability of prejudice to the defendant that the communication must be “deemed inherently lacking in due process” (People v. Rhoden (1981), 101 Ill. App. 3d 223, 427 N.E.2d 1292).

Here, the trial court received the following communication from the jury:

“May or could the words in the Judge’s charge ‘resulting from serious provocation by the deceased’ mean or include serious in the eyes of the defendant?”

The court asked if counsel would enter into an “agreed order” that he answer “no.” After a short conversation, Assistant State’s Attorney Kearney, who represented the State at the trial, and Ms. Placek, whose status does not appear on the record, agreed that the following response should be returned:

“You have received all the instructions and explanations you will receive in the trial of this matter.”

Defendant relies on the fact that Ms. Placek was not his attorney-of-record and had made no previous appearance in this case in arguing that he was not represented by counsel. It is reasonable to assume that Ms. Placek spoke on behalf of the public defender’s office, which was charged with defendant’s defense, since it is doubtful that the trial court would have sought an “agreed order” from someone unconnected with the case.

We need not resolve this factual question, however, since even if we assume that the court communicated with the jury while defendant and his counsel were absent, we see no probability of prejudice. The court could have responded to the jury’s question by answering in the negative, for the question whether sufficient provocation existed is to be judged by an objective standard. The other alternative, and the one employed in this case, was to refuse further instruction. As we noted earlier, defendant was not prejudiced by this response, since it allowed the jury to apply a more lenient, subjective standard in determining the issue of voluntary manslaughter.

An analogous situation arose in People v. Rhoden (1981), 101 Ill. App. 3d 223, 427 N.E.2d 1292. There, the jury asked for a magnifying glass during its deliberations, and the trial court, outside the presence of defendant or his counsel, responded “none available.” This court found that his response was the only appropriate reply under the circumstances and the communication was therefore “nonprejudicial to the defendant’s sixth amendment right to be present during all proceedings.” (101 Ill. App. 3d 223, 227, 427 N.E.2d 1292, 1295.) Here, although there were two proper alternatives, the one which was actually less harmful to defendant’s case was given, and we therefore find no prejudice to his right to be present.

Finally, defendant contends that the trial court abused its discretion in sentencing him to an extended term of 60 years. He argues that the sentence is not warranted by the facts of the homicide or by the nature of the defendant, and asks that we exercise our authority pursuant to Supreme Court Rule 615(b)(4) (73 Ill. 2d R. 615(b)(4)) and reduce his sentence.

Sentencing decisions are matters of judicial discretion, and so long as the sentence imposed is within the statutory limits, we may not exercise our power to reduce it absent a finding that the court has abused that discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882; People v. Givens (1977), 46 Ill. App. 3d 1035, 361 N.E.2d 671), since the trial court has a better opportunity to acquire information about the defendant (People v. Garrett (1978), 57 Ill. App. 3d 906, 373 N.E.2d 792) and assess factors in aggravation and mitigation (People v. Frazier (1977), 53 Ill. App. 3d 884, 369 N.E.2d 398). A rebuttable presumption arises that the sentence imposed was proper (People v. Berry (1980), 86 Ill. App. 3d 755, 408 N.E.2d 466), and is only overcome by an affirmative showing (People v. Clune (1980), 82 Ill. App. 3d 545, 402 N.E.2d 928) that the sentence imposed varies greatly from the purposes and spirit of the law (People v. Lloyd (1981), 92 Ill. App. 3d 990, 416 N.E.2d 371) or is manifestly violative of constitutional guidelines (People v. Scott (1977), 45 Ill. App. 3d 487, 359 N.E.2d 878), which provide that “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship” (Ill. Const. 1970, art. I, sec. 11), factors entitled to equal weight in fixing punishment (People v. Simpson (1978), 57 Ill. App. 3d 442, 373 N.E.2d 809).

Here, the trial court expressly found that the murder was “accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” as required by section 5 — -5—8.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5— 3.2(b)(2)) before imposing a sentence under the extended term provisions of section 5 — 8—2 (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2), which allows a sentence of not less than 40 nor more than 80 years. This finding is certainly supported by the facts of this case, which show even more brutality than we found in People v. Davis (1981), 98 Ill. App. 3d 461, 424 N.E.2d 630, where we upheld imposition of a 70-year extended term for murder. It appears from the evidence that repeated blows were struck as the victim tried to escape from his' attacker, who literally beat him to death.

Defendant maintains, however, that “the court made no finding that the defendant lacked rehabilitative potential,” and asserts that the record shows his potential for restoration to useful citizenship is great. Initially, we note that the trial court need not make an express finding that defendant lacked rehabilitative potential before imposing an extended sentence, since that factor is not entitled to greater weight than the nature of the offense. (People v. Hayes (1979), 70 Ill. App. 3d 811, 388 N.E.2d 818.) Furthermore, the court indicated that it had considered all of the facts and circumstances in reaching its decision, and the mitigating factors defendant relies on in his argument are contained in either the presentencing report or defense counsel’s argument at the sentencing hearing. Although defendant has no prior criminal record, the evidence shows that the murder was particularly brutal, and we do not believe that the sentence imposed was greatly at variance with the purpose and spirit of the law. We conclude that the trial court did not abuse its discretion in imposing this extended term of 60 years.

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

Affirmed.

WILSON, P.J., and LORENZ, J., concur.


author: JUSTICE JIGANTI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DR. PAUL SCHYVE, Acting Director, Illinois State Psychiatric Institute, et al., Respondents-Appellants.
    First District (4th Division)
    No. 82—1719
    Opinion filed February 10, 1983.

      Louis B. Garippo, of Chicago, for appellants Dr. Paul Schyve and Illinois State Psychiatric Institute.
    Tyrone C. Fahner, Attorney General, of Springfield (Maureen Mudron, Special Assistant Attorney General, of counsel), for appellants Dr. Ivan Pavkovic and Department of Mental Health and Developmental Disabilities.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Richard T. Sikes, Jr., Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

Contempt proceedings were brought against Dr. Paul Schyve, Acting Director of the Illinois State Psychiatric Institute (ISPI), and ISPI for allowing Gary McConnell to escape from ISPI. McConnell had been involuntarily committed to the Illinois Department of Mental Health and Developmental Disabilities (DMHDD), after being found not guilty by reason of insanity (hereinafter NGRI). While the contempt hearing was going forward, the State subpoened Dr. Ivan Pavkovic, Director of the DMHDD, to testify regarding the contempt charge and also to testify regarding the escape of another NGRI. Dr. Pavkovic testified on June 24, 1982. On the same day, the trial court, in response to a petition by the State, issued the following order. The court found:

“That the Illinois Department of Mental Health has recklessly allowed numerous NGRI residents to escape from its custody over the past several months.
That the Illinois Department of Mental Health has violated the constitutional rights of numerous NGRI residents to adequate and humane care and treatment.
That the Illinois Department of Mental Health by and through its Director, Ivan Pavkovie has failed to comply with Illinois Revised Statute, 1981, ch. 38 Sec. 1005 — 2—4.
It is Ordered:
1. That the Director of the Illinois Department of Mental Health immediately identify those NGRI residents who are dangerous to others.
2. That the Director of the Illinois Department of Mental Health immediately separate such persons from the general population and place them in a secure area.
3. That the Illinois Department of Mental Health give ten days written notice to the Court from which an NGRI resident is committed and to the State’s Attorney of Cook County in which the Court is located whenever it plans to transfer an NGRI resident to a less secure area. The notice shall include not only the fact that the resident is being transferred but also that he or she will be in a less secure area and the reasons for the intended action and the facts upon which those reasons are based.”

The court characterized the above order as a temporary restraining order and issued it while the contempt proceedings were still pending.

On July 8, 1982, Dr. Schyve and several NGRI interveners (the defendants) moved to vacate the order on the grounds that the court lacked the jurisdiction and authority to take such actions; that the TRO which the court issued did not meet the statutory requirements for such relief; and that the court’s actions were an unconstitutional encroachment upon executive authority. Without discussion, the court denied the defendants’ motion to vacate.

On appeal, the defendants challenge the court’s jurisdiction to issue such a comprehensive order which allegedly involves an unconstitutional encroachment upon executive authority. The State defends the court’s jurisdiction to issue such an order claiming that the court has general supervisory power over the defendants pursuant to statute, that the court has equity jurisdiction to issue such a comprehensive order and that the order is in fact a writ of mandamus.

The State’s first defense of the court’s jurisdiction to issue the order in the instant action rests upon its contention that the trial court has the authority to issue such an order pursuant to its general supervisory powers over “Proceedings after acquittal by reason of insanity.” (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—4.) Under this section, the court is given the following supervisory powers relating to NGRI’s and the DMHDD. The court can order the involuntary admission of NGRI’s to the DMHDD; the court can require the Director of the DMHDD to create a treatment plan for each NGRI and file it with the court. The court can direct the DMHDD not to permit a NGRI to be at large in the community unless in accordance with the treatment plan; the court can order the DMHDD to discharge a NGRI. However, this statute does not empower the court with general supervisory powers over the DMHDD as the State claims. Neither does the statute specifically empower the court to require the DMHDD to identify those NGRI residents who are dangerous to others; to separate such persons from the general population and place them in a secure area; or to give 10 days written notice plus a reason to the court and to the State’s Attorney whenever a NGRI is transferred to a less secure area. Therefore, we believe that the court overstepped its supervisory powers under this statute in issuing this comprehensive order. See also People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187.

The State next contends that the court had jurisdiction to issue this order by virtue of the court’s equity jurisdiction. We have addressed ourselves specifically to the limits of a court’s equity jurisdiction in People v. Roush (1982), 111 Ill. App. 3d 618. Roush is a case which we find to be indistinguishable from the instant cause. There the trial court issued an order mandating specific procedures to be followed in regard to NGRI’s by the Director of the Manteno Health Center and Manteno. We held in Roush that the trial court had equity jurisdiction to enter the order but that it ought not to have exercised that jurisdiction. In Roush, we concluded that equity jurisdiction should , only be assumed over the discretionary acts of public officials in the presence of fraud, corruption, oppression, gross injustice or gross abuse of power. Furthermore, quoting from Roush, “an institution which would allow NGRI’s to escape and is alleged to be poorly administered does not equate with the kind of fraud, corruption, oppression, gross injustice or gross abuse of power which is necessary for equity jurisdiction.” (111 Ill. App. 3d 618, 622.) In Roush, no such factors were alleged. Therefore, we held that there was no reason for the court to exercise its equitable powers. Similarly in the instant case, no such factors were alleged. Therefore, we hold there was no reason for the court to issue an order which interferes with the public duties and discretionary acts of Schyve, ISPI, Dr. Pavkovic or the DMHDD. See also In re Washington (1976), 65 Ill. 2d 391, 359 N.E.2d 133 (the circuit court had no power to enjoin certain practices of the Department of Corrections where the effect was to establish department procedures and guidelines for care).

The State further argues that a court has equity jurisdiction to issue such a comprehensive order when the civil and constitutional rights of citizens are imminently in danger. The State claims that the recklessness of Schyve and ISPI in allowing McConnell to escape has endangered the constitutional rights of NGRI patients to receive proper treatment and the constitutional rights of the public at large to be free from any danger posed by the escapees.

The State’s first constitutional argument depends on the theory that if such patients are allowed to escape, they cannot receive proper treatment. The constitutional right to adequate treatment was set forth in Donaldson v. O’Connor (5th Cir. 1974), 493 F.2d 507, vacated (1974), 422 U.S. 563, 45 L. Ed. 2d 396, 95 S. Ct. 2486. Donaldson is cited in American Federation of State, County & Municipal Employees v. Walker (1975), 27 Ill. App. 3d 883, 327 N.E.2d 568, a case heavily relied upon by the State to support its argument that when constitutional rights are violated, judicial intervention is required. Donaldson held that a patient who is being incarcerated for treatment has a due process right to receive such treatment as will help him to be cured or to improve his mental condition.

The United States Supreme Court in vacating the Court of Appeals decision in Donaldson refused to give support to a constitutional right to treatment. The court stated: “We have concluded that the difficult issues of constitutional law dealt with by the Court of Appeals are not presented by this case in its present posture. Specifically, there is no reason now to decide whether mentally ill persons dangerous to themselves or to others have a right to treatment upon compulsory confinement by the State.” (422 U.S. 563, 573, 45 L. Ed. 2d 396, 405, 95 S. Ct. 2486, 2492.) Since at present, there is no constitutionally guaranteed right to treatment, we fail to see how the State can support its claim that if patients are allowed to escape, they cannot receive their constitutional right to treatment.

The State’s second constitutional argument depends on a theory of law that a court can assume equity jurisdiction to protect the constitutional rights of the public at large. The State specifically contends that the constitutional rights of the public at large are being infringed because they are presented with a dangerous situation posed by escaping NGRI’s. Our response to this contention is two-fold. We have searched the record and can find no factual basis for this claim. In addition, the law is well established that a court of equity will not act to determine abstract questions. (30 C.J.S. Equity sec. 14 (1965).) “Courts of equity should and must decide cases as private, not as public, as real, not as abstract, controversies, and determine them accordingly.” (30 C.J.S. Equity sec. 14, at 802 n.33 (1965); see O’Malley v. Bank of Montreal (1953), 349 Ill. App. 224, 110 N.E.2d 473.) Applying this rule of law to the instant facts, the State must do more than just speculate that the constitutional rights of others are being infringed before equity jurisdiction is appropriately exercised.

The State’s final argument is that the court’s order sounds in mandamus. According to the State, a writ of mandamus will issue against a public officer or governmental body to compel the performance of a mandatory or clear public duty and the appellants here have a clear statutory duty to keep committed NGRI patients confined. The State contends that all the elements for a writ of mandamus are met because the trial court’s order does no more than direct the DMHDD to comply with its already established duties. The defendants respond that this is not a mandamus because the trial judge specifically characterized his order as a “temporary restraining order.”

We believe that the defendant’s response to the State’s contention is persuasive in regard to the proper characterization of the court’s order. Furthermore, we do not believe that the court’s order was in fact a writ of mandamus. Unlike an injunction, a mandamus is used only to compel a specific kind of behavior — compliance with a ministerial duty of an office. It does not issue to compel action that is discretionary. (Dobbs, Remedies sec. 2.10, at 112 (1973); Stafford v. Bowling (1980), 85 Ill. App. 3d 978, 407 N.E.2d 771.) In the instant case, the court did more than issue a general order to the defendants to perform their ministerial duty. The order went so far as to prescribe the exact steps that the defendants must take to execute this duty. Therefore it seems clear that although the court had the statutory authority to issue a mandamus to direct the appellants to keep the NGRI’s incarcerated, the court did not possess the authority under the guise of a writ of mandamus to direct the manner in which this order should be carried out.

For the above reasons, we reverse the order of the trial court.

Reversed and remanded.

JOHNSON and LINN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE COUNTY OF KENDALL, Plaintiff-Appellee, v. AVERY GRAVEL COMPANY, INC., et al., Defendants-Appellants. — (Gordon Fletcher et al., Intervenors-Appellees.)
    Second District
    No. 82—504
    Opinion filed February 15, 1983.
    Roy J. Solfisburg, Jr., and Noel C. Davis, both of Banbury, Banbury & Davis, of Aurora, for appellants.
    Patrick M. Flaherty, William C. Murphy, and Patrick M. Kinnally, all of Reid, Ochsenschlager, Murphy and Hupp, of Aurora, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Kendall County, filed a complaint for declaratory judgment and sought injunctive relief to prevent defendants, Avery Gravel Company, Inc., their officers, directors, and shareholders, and the legal titleholders to the subject property, from crushing, grading, or washing any stone mined at the site where they were operating a strip-mine until appropriate rezoning was obtained from the county. While other parties were allowed to intervene in the trial court, their interests on appeal are identical to that of Kendall County and they will not be hereinafter referred to by name separately from the county. After the denial of the defendants’ motion to dismiss, the trial court found that interlocutory appeal was necessary pursuant to Supreme Court Rule 308(a) (87 Ill. 2d R. 308(a)) and identified five questions of law involved. We allowed this interlocutory appeal.

In its appellate brief, defendants raise only two issues for our review: (1) whether Kendall County through its zoning ordinances can require defendants to obtain a zoning change to “crush, wash, and screen their limestone”; and (2) whether the trial judge improperly considered House Bill 134, later Public Act 82 — 114, which provided for the amendment of section 2 of the Surface-Mined Land Conservation and Reclamation Act (Reclamation Act) (Ill. Rev. Stat. 1981, ch. 96 1/2, par. 4502) and section 39 of the Environmental Protection Act (Ill. Rev. Stat. 1981, ch. 111 1/2, par. 1039) and became effective on August 8, 1981.

A brief chronology of the history of the litigation between the parties is necessary. In Union National Bank & Trust Co. v. Board of Supervisors (1978), 65 Ill. App. 3d 1004, 382 N.E.2d 1382, this court reversed the circuit court of Kendall County which had upheld Kendall County’s denial of the plaintiffs’ (defendants herein) petition for a special use permit to strip-mine limestone on its property. We remanded with directions to the trial court “to enter a declaratory judgment in favor of plaintiffs stating that they may engage in the desired strip-mining as long as they comply with all the requirements of the Reclamation Act and the Environmental Protection Act, any county zoning to the contrary notwithstanding.” (65 Ill. App. 3d 1004, 1011, 382 N.E.2d 1382.) We determined in our opinion that non-home-rule counties have no right to regulate strip-mining operations pursuant to their zoning powers since the Reclamation Act preempted non-home-rule counties from regulating such strip-mining activities. 65 Ill. App. 3d 1004,1009, 382 N.E.2d 1382.

Upon remánd, however, the circuit court entered an order permitting the plaintiffs (defendants herein) to “conduct and engage in limestone, strip and surface-mining, and necessary related operations” so long as they complied with the requirements of the Reclamation Act and the Environmental Protection Act. Upon rehearing before the trial court, Kendall County argued that the order did not comply with the mandate and that the judge should clarify whether the crushing and grading of the limestone quarried would be permitted under the order. The trial court denied rehearing and Kendall County appealed to this court. In a Rule 23 order (87 Ill. 2d R. 23), we reversed, holding that the order of the trial court was broader than our mandate, and we did not consider whether crushing and grading of the limestone were within the State preemption of county zoning granted by the Reclamation Act because it was not properly before the trial court.

Thereafter, on June 3, 1981, Kendall County filed this action for declaratory judgment and sought injunctive relief, inter alia, to prevent defendants “from crushing, grading, or washing any stone at the site” until appropriate rezoning is obtained. The defendants’ motion to dismiss brought pursuant to sections 45 and 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, pars. 45, 48) maintained, in pertinent part, that they had permits from the Environmental Protection Agency which allowed them to conduct the crushing, screening, and washing of their deposits, and that the Kendall County zoning ordinances pertinent to location of such activity are preempted by the State under the Reclamation Act and the Environmental Protection Act. The trial court denied the motion to dismiss holding that there was a conflict in our opinions in Union National Bank and County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, 380 N.E.2d 540, and that in view of amendments to the Reclamation Act and Environmental Protection Act by Public Act 82 — 114, effective August 8, 1981, the legislature intended that a permit for surface-mining shall not relieve compliance with local ordinances regulating the commencement, location, or operation of surface-mining facilities.

Defendants’ primary contention on appeal is that Kendall County through its zoning ordinances cannot require them to obtain a zoning change to permit crushing, grading, and washing of limestone since the Environmental Protection Act superseded local zoning ordinances regulating the use of land for surface-mining operations including the crushing, grading, and washing of limestone. They rely on our decision in County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, 380 N.E.2d 540. Kendall County argues that the crushing, grading, and washing of limestone is mineral processing not within the purview of the Reclamation Act. It further maintains that our decision in Union National Bank holds that the Environmental Protection Act, by itself, does not preempt the right of counties to regulate by zoning ordinance where a strip-mining operation can be located and, consequently, mineral processing is subject to local zoning regulations as to land use despite the issuance of permits to operate from the Environmental Protection Agency.

The first question which we must consider is whether the crushing, grading, and washing of limestone is separate and distinct from surface-mining and land reclamation in order to determine if this process is regulated by the Reclamation Act. In County of McHenry v. Sternaman (1978), 63 Ill. App. 3d 679, 380 N.E.2d 540, the defendant therein operated a sand and gravel pit which was a use permitted under the county zoning ordinance. However, washing and screening of sand and gravel was allowed only by a special use permit which had not been granted. Defendant was charged with six violations (unspecified) of the county zoning ordinance and argued unsuccessfully before the trial court that the county zoning ordinance had been preempted by the Environmental Protection Act. The issue before our court was “whether the EPA [Environmental Protection Act] was intended to supersede the McHenry County zoning ordinance enacted pursuant to the powers conferred by the county zoning act insofar as such ordinance relates to gravel pit operations.” (63 Ill. App. 3d 679, 680, 380 N.E.2d 540.) In Sternaman, the question was not directly raised or decided whether such washing and screening of sand and gravel was a surface-mining operation within the scope of the Reclamation Act. Our mere reference to the Reclamation Act’s provision requiring compliance with all Environmental Protection Agency rules and regulations was not a holding that a washing and screening activity was within the Reclamation Act.

Defendants have not cited us any other authority in case law or in the legislative history of the Reclamation Act which indicates that the crushing, grading, and washing of limestone alleged to be occurring here is an activity coming within the scope of that Act. A reading of the Reclamation Act discloses that the policy of the Act is to provide for conservation and reclamation of lands affected by surface-mining in order to restore them to optimum future use. (Ill. Rev. Stat. 1979, ch. 96 1/2, par. 4502.) There is no language in that Act evincing an intent to regulate the activity of crushing, grading, and washing of minerals. While this activity may occur primarily at the site of the surface-mining, the only express purpose of the Act is to regulate surface-mining in order to provide for land conservation and reclamation. Had the activity of crushing, grading, and washing minerals been intended to be within the scope of the Act, the legislature could have expressly so provided. We further note that the permit for surface-mining is issued by the Bureau of Mines pursuant to the Reclamation Act, whereas the permits for defendants’ activity involved here were issued by the Environmental Protection Agency. Thus, we conclude that the crushing, grading, and washing of minerals is not an activity regulated under the Reclamation Act.

Defendants also contend, however, that under Sternaman we determined that the Environmental Protection Act supersedes county zoning both for environmental protection problems such as noise and smoke emission and the like, and as to the location of particular land uses. To the extent that our opinion holds that the Environmental Protection Act supersedes a local county zoning ordinance as it relates to the location of particular land uses in addition to control of environmental problems, except sanitary landfill operations, we decline to follow it. We believe that this distinction was implicit in our later decision in Union National Bank & Trust Co. v. Board of Supervisors (1978), 65 Ill. App. 3d 1004, 382 N.E.2d 1382, wherein we stated:

“We do not fully agree, however, with the further argument of plaintiffs that apart from the Reclamation Act they need not comply with local zoning since compliance with the Environmental Protection Act is required (Ill. Rev. Stat. 1977, ch. 111%, par. 1001 et seq.), and compliance with county zoning is therefore excused pursuant to O’Connor v. City of Rockford, 52 Ill. 2d 360 (1972), and related cases. The Reclamation Act does provide that all requirements of the Environmental Protection Act ‘shall be complied with fully at all times during mining, reclamation, and after reclamation.’ (Ill. Rev. Stat. 1977, ch. 96%, par. 4507(g).) But we read this provision merely as a legislative statement that any person who seeks to operate a strip-mine is not exempted from any applicable provision of the Environmental Protection Act by reason of the operation of the Reclamation Act.
Section 21(e) of the Environmental Protection Act requires that any person who wishes to ‘[c]onduct any refuse-collection or refuse-disposal operations’ must first obtain a permit from the agency. (Ill. Rev. Stat. 1977, ch. 111%, par. 1021(e).) It was this type of statutory permit involving both location and operation, that was involved in O’Connor v. City of Rockford, 52 Ill. 2d at 366-67 (1972). It does not appear that the Environmental Protection Act by itself preempts the right of counties to regulate, pursuant to the County Zoning Act, where a strip-mining operation will be located.” (65 Ill. App. 3d 1004, 1009-10, 382 N.E.2d 1382.)

The fact that the Environmental Protection Act authorizes the Pollution Control Board to regulate activities of an environmental nature does not supersede a county’s use of its zoning powers to regulate the location of such activity merely because the activity is potentially subject to regulation by the Pollution Control Board. (65 Ill. App. 3d 1004, 1010, 382 N.E.2d 1382.) Accordingly, Kendall County may regulate by its zoning ordinances the location of mining related activities concerned with the crushing, grading, and washing of limestone even though the defendants have permits from the Environmental Protection Agency authorizing them to conduct such activities in compliance with its environmental regulations.

In view of this holding it is unnecessary to consider whether the trial court improperly considered Public Act 82 — 114 which was effective August 8, 1981, a time subsequent to defendants obtaining permits from the Environmental Protection Agency and filing of this suit. We do note that Public Act 82 — 114, which made amendments to both the Reclamation Act and the Environmental Protection Act, in essence, now specifically provides that issuance of permits under both Acts shall not relieve the permittee from its duty to comply with any applicable local law regulating the commencement, location, or operation of surface-mining facilities.

For the foregoing reasons, we affirm the order of the circuit court of Kendall County and remand for further proceedings consistent with this opinion.

Affirmed and remanded.

UNVERZAGT and HOPF, JJ., concur.