author: MR. JUSTICE McCORMICK

text:
    The People of the State of Illinois, on the Relation of Victor B. Aramburu, et al., and Said Relators on Behalf of Themselves and All Other Persons Similarly Situated, Plaintiffs-Appellants, v. City of Chicago, a Municipal Corporation, and Sidney D. Smith, Acting Commissioner of Buildings, Department of Buildings of the City of Chicago, Defendants-Appellees.
    Gen. No. 50,310.
    First District, Fourth Division.
    July 15, 1966.

      Johnson, Colmar, De Pree, La Varre & Fitzgerald, of Chicago (Howard J. De Pree, of counsel), for appellants.
    Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellees.
    Anthony S. Zummer, of Chicago, for Consulting Engineers Association of Illinois, Chicago Chapter of Illinois Society of Professional Engineers, amicus curiae.

      Marvin W. Mindes, of Chicago (Stephen A. Schiller, of counsel), for Chicago Chapter, American Institute of Architects, amicus curiae.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

An action was brought by the plaintiffs for a writ of mandamus to command the City of Chicago and Sidney D. Smith, Acting Commissioner of Buildings, City of Chicago, to do certain acts alleged to be required under an ordinance of the City of Chicago. The complaint asks first for a declaratory judgment to declare the rights and other legal relations of the plaintiffs and defendants created by reason of the statutory provisions of the State of Illinois and an ordinance of the City of Chicago. The amended complaint was filed as a representative action for the plaintiffs and others similarly situated. On motion of defendants the amended complaint was dismissed and judgment was entered in favor of the defendants.

In the amended complaint it is set out that. the enumerated plaintiffs are engineers duly registered under the Professional Engineering Act of the State of Illinois and are actively engaged in the practices allowed under the said statute. It is further alleged that the plaintiffs join in the suit under section 23 of chapter 110 of Illinois Revised Statutes (1965); that if separate actions were brought on their several causes of action, a common question of both law and fact would arise; and that plaintiffs bring this suit for themselves and other persons in similar circumstances. The amended complaint sets out chapter 45, paragraph 45-2 of the Municipal Code of Chicago, as well as the following other provisions:

“45-2. No plans shall be approved for permit unless such plans are signed and sealed either by an architect licensed to practice architecture, as provided by the Illinois Architectural Act, or by a structural engineer licensed to practice structural engineering, as provided by the Illinois Structural Engineering Act, or by a registered professional engineer licensed to practice professional engineering as provided by The Illinois Professional Engineering Act, provided, however, that the person who signs and seals such plans shall be permitted to do so within the limitations of the particular act under which he is licensed to practice, and provided further, that plans for installations which involve the design of or changes in the supporting structure or which materially affect the structural loadings must be signed and sealed by an architect or structural engineer duly licensed as aforesaid. [Amend Coun J 7-22-49, p 4609.]”

Ill Rev Stats 1963 — Professional Engineering Act, ch 481/2, § 33:

“A person practices professional engineering, within the meaning of this Act, who plans or designs the physical parts of the following: railroads, railways, highways, subways, tunnels, canals, harbors, river improvements, docks and drydocks; levees; irrigation works; aircraft, airports and landing fields; waterworks, sewers; sewage disposal works; plants for the generation of power; engines or motors for the utilization of power; boilers; refrigeration plants; air conditioning plants; heating plants; plants for the transmission or distribution of power; electrical plants which produce, transmit, distribute, or utilize electrical energy; works for the extraction of minerals from the earth; plants for the refining, alloying or treating of metal; chemical works and industrial plants involving the use of chemical and chemical processes. . . .”

Ill Rev Stats 1965 — Architects, ch 10½ § 2:

“Architect means a person who is technically qualified and registered under the laws of this State to practice architecture. The practice of architecture within the meaning and intent of this Act includes the offering or furnishing of any professional services such as consultation, planning, aesthetic and structural design, drawings and specifications, or responsible supervision of construction, or erection, in connection with the construction of any private or public buildings, building structures, building projects, or addition to or alteration thereof.” [As amended by Act approved July 11,1957.]

Ill Rev Stats 1963 ch 48½, § 34:

“The practices and acts described in paragraphs 1 to 15 inclusive of this Section are exempt from the provisions of this Act:
“1. The practice of structural engineering as defined in the ‘Illinois Structural Engineering Act.’
“2. The practice of architecture as defined in the ‘Illinois Architectural Act.’
“3. The engaging in the business of a master plumber as defined in ‘The Illinois Plumbing License Law,’ filed June 26,1951, as amended.”

Ill Rev Stats 1965 ch 10½, § 1.1 :

“Nothing in this definition or in this Act shall be deemed or construed to prevent the practice of structural engineering as defined in the Illinois Structural Engineering Act or the practice of professional engineering as defined in the Illinois Professional Engineering Act.” [Added by Act approved July 11,1957.]

Paragraph 14 of the amended complaint states the conclusion that the Act does not say that architects may practice professional engineering. Paragraph 15 of the complaint states: “That, by virtue of said ordinance provision and statutes of the State of Illinois, it became, was and is, the duty of defendants to require a registered professional engineer practicing professional engineering as provided by the Illinois Professional Engineering Act to sign and seal plans encompassing professional engineering activities.”

It is further alleged in the complaint that the defendant, Commissioner of Buildings, “has wholly failed and refused, and still fails and refuses, to require said Professional Engineers Seal certifying that said plans and specifications were submitted to the Department of Buildings as required by statute, despite numerous and repeated demands made by plaintiffs upon him to do so.” It is alleged that plaintiffs have demanded that the issuing of building permits without a professional engineer’s seal on the plans should be discontinued; that such permits have been issued on various designated buildings; and [par 21] that the “Commissioner will so continue to approve and issue building permits unless restrained and enjoined by order of this court.”

It is further alleged that the action of the Commissioner oí Buildings is “arbitrary, capricious, unlawful and unreasonable.” Paragraph 25 alleges that an actual controversy exists between the plaintiffs and defendants as to the “present operativeness and interpretation of said ordinance and statutes, and by the term of section 57.1 of the Civil Practice Act of Illinois (Ill Rev Stats c 110, § 57.1), this court is invested with the power to declare the rights of the Professional Engineers under the provisions . . . and adjudicate the final rights and duties of all parties hereto. . . .”

Paragraph 27 alleges that “plaintiffs will be virtually out of business unless the enforcement of the said Acts is required pending final adjudication and determination of the matters and issues of the matters herein set forth, . . . the citizens of Illinois will suffer irreparable injury and loss; . . .”

The prayer in the amended complaint is that the court declare the rights and other relations of the plaintiffs and the defendants created by the Municipal Code of Chicago and the statutes of the State of Illinois; that the court declare that only legally qualified professional engineers may perform and practice professional engineering, as defined in the Professional Engineering Act; that the court declare the design of heating, air conditioning, electrical and mechanical systems normally installed in buildings “are encompassed to the practice of professional engineering”; that a temporary injunction be issued against defendants, pending the final determination of the issues herein stated, and that upon such determination they be permanently enjoined “from allowing plans and specifications involving professional engineering work to be filed with Department of Buildings of the City of Chicago without a Professional Engineer’s Seal”; that a writ of mandamus may be issued commanding the defendants to perform all acts and take all steps necessary or requisite to the lawful filing of plans and specifications.

The plaintiffs had originally filed a complaint in which the Chicago Association of Consulting Engineers were party-plaintiffs, together with certain individuals. The defendants filed a motion to strike that complaint and it was stricken, apparently on the ground that an action of this character could not be brought by an association. No appeal is taken from that order and it is not before this court. The plaintiffs thereupon filed an amended complaint to which the defendants filed a motion to strike, setting up, among other things, that the action is not a proper class action; that mandamus and declaratory judgment are not correlative remedies; that the plaintiffs failed to name as defendants any architects of whom they complain, and that such architects would be necessary and proper parties; that the articles of the complaint are vague, indefinite and too general in their scope.

The motion also alleges that the court cannot act in an administrative capacity; that the Department of Registration and Education of the State of Illinois exercises the respective functions, powers and duties under chapter 48% pertaining to professional engineering, chapter 10% pertaining to architecture, chapter 131% pertaining to structural engineering, and chapter 111% pertaining to plumbers and plumbing; and that the Department may investigate the conduct of any one holding a certificate under any of those provisions; that the Department has the power to make final administrative decisions pertaining to the conduct of all pertinent persons.

The motion to strike also states that the complaint fails to state a cause of action. During the argument the trial court stated that paragraph 45-2 of the ordinance in question is in the disjunctive, not adjunctive, and quoted the ordinance: “No plans shall be approved for permit unless such plans are signed and sealed either [the court then said the ‘either’ was very significant] by an architect licensed to practice architecture as provided by the Illinois Architectural Act, or by a structural engineer licensed to practice structural engineering [sic] as provided by that Act.” The court continued: “The language is very clear, that one or the other is sufficient. For that reason the motion to dismiss is sustained, the complaint is dismissed.”

In this court the plaintiffs argue that in construing a statute or an ordinance the court should change the disjunctive to the conjunctive where the conversion is required by the context of the statute or ordinance. However, in Campbell v. Prudential Ins. Co., 15 I112d 308, 155 NE2d 9, the plaintiff had contended that the word “or” should be read “and” in a certain statute. The Supreme Court held that a substitution of the conjunctive “and” for the disjunctive “or” is permissible only when a literal reading is inconsistent with an apparent legislative purpose, and cited cases to that effect.

In the case before us the ordinance as set out in the complaint is not complicated or ambiguous. It specifically provides that the Building Department of the City of Chicago shall not approve a permit for a building to be erected in the City of Chicago unless the plans are signed and sealed, either by an architect or, in certain limited situations, by a structural engineer or registered professional engineer, each of whom may be properly licensed. The plaintiff here argues that in all cases where the plans of a building involve refrigeration plants, air conditioning plants, or heating plants, etc., the plans should be signed and sealed by a professional engineer, alone or together with the architect. The complaint alleges that the defendant issues building permits without the seal of a registered professional engineer on such plans; however, the permits which the complaint alleges were issued by the defendant indicate that the plans were signed and sealed by an architect. In our opinion, the signing and sealing of the plans by the architect was a sufficient compliance with the ordinance.

In 5 Am Jur2d, Architects, § 3, it is stated:

“What amounts to architectural services within license requirements is a question which has arisen in a number of cases, and in the determination of the matter the particular license regulations which are applicable, and also the circumstances present in each instance, are important factors to be considered. . . .
“It has been recognized that there may be an overlapping of architectural and engineering services —that is, that the same services may in one instance constitute architectural services and in another instance engineering services. But the courts generally conclude that where either a licensed architect or a licensed engineer performed services which could properly be regarded as within the reach of the statute licensing his profession and also within the statute licensing the other profession, he performed such services under the statute under which he was licensed and was not affected by the fact that they came incidentally within the purview of the other licensing statute. . .

Also see 82 ALR2d 1016.

The trial court properly dismissed the complaint. No request was made to file any further pleadings and judgment for the defendants was properly entered.

The amended complaint, which asks for a declaratory judgment, an injunction, and that a writ of mandamus issue, was filed as a representative or class suit. Fundamentally it is a mandamus action. The complaint prays that a writ of mandamus be issued ordering the Commissioner of Buildings of the City of Chicago to refuse to issue any building permits unless the plans are signed and sealed by a professional engineer. The Illinois law governing class or representative suits is all case law. The class suit is an invention of equity to enable it to proceed to a decree in suits where the number of those interested in the subject of the litigation is so great that their joinder as parties in conformity to the usual rules of procedure is impracticable. Winger v. Chicago Bank & Trust Co., 394 Ill 94, 67 NE2d 265. A mandamus action, such as the instant suit, cannot be brought as a representative or class suit.

In Liquor Dealers Ass’n v. Schreiber, 382 Ill 454, 47 NE2d 462, the court said: “Mandamus is a law action in which representative suits are unknown.” The plaintiff cites Baumgardt, d/b/a A & B Shop v. Isaacs, 29 Ill 2d 29, 193 NE2d 31, in opposition to the Liquor Dealers case. The Baumgardt case is not applicable, and no rule is stated therein with reference to representative suits. In 29 ILP, Parties, § 13, it is stated:

“Inasmuch as the nature of class representation is essentially equitable, the representative party being regarded as a quasi — trustee for the represented parties, the use of the class representation technique is limited to courts of chancery and there can be no class or representative suits in law actions. . . .”

On this ground alone this court could dispose of the case by affirming the judgment of the trial court; however, we will discuss some further reasons why the judgment entered in the trial court was proper.

In 26 ILP, Mandamus, § 2, it is set out that:

“A writ of mandamus is a summary writ issued from a court of competent jurisdiction commanding the officer to whom it is addressed to perform some specific duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform.”

It is not a writ of right, and the granting or refusal of the writ is a matter resting with the discretion of the court. People ex rel. Woll v. Graber, 394 Ill 362, 68 NE2d 750; People ex rel. Adamowski v. Dougherty, 19 Ill2d 393, 167 NE2d 181. In MacGregor v. Miller, 324 Ill 113, 154 NE 707, the Supreme Court laid down the rule that where the performance of an official act or duty involves the exercise of judgment or discretion the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter, and where an officer, in the exercise of a discretionary power, has considered and determined what his course of action is to be he has exercised his discretion, and his action is not subject to review or control by mandamus; and if any reasonable doubt exists as to the question of discretion or want of discretion the courts will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer. It is also the rule that a petition for mandamus must show the duty of the person sought to be coerced to perform the acts for performance of which mandamus is sought. 26 ILP, Mandamus, § 143. In People ex rel. Pignatelli v. Ward, 404 Ill 240, 88 NE2d 461, the court laid down the rule that a proceeding for a writ of mandamus is an action at law and the pleadings therein are governed by the same rules applying to other actions of law. The petition stands as a complaint and must present a prima facie case, and the petition must show that it is the clear duty of the person against whom the writ of mandamus is sought to perform the act.

The Commissioner of Buildings of the City of Chicago is an administrative officer. He has the right and duty under the ordinance to require that the plans for a proposed building shall be signed as we have indicated above. In 26 ILP, Mandamus, § 172, it is stated:

“In a mandamus action against administrative officials, the court will not inquire into the merits of the controversy so that it may substitute its own judgment or discretion for that of the administrative body.”

Defendants in their brief raise the point that, in any case, the matter is one which falls within the duties of the Department of Registration and Education, and this contention is supported by chapter 48%, section 36, Illinois Revised Statutes 1965, an act to regulate the practice of professional engineering. Section 36, paragraph 6, provides the Department shall: “Formulate rules as may be required to administer this Act.”

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.

       The following sections of the statutes were not set out in the motion to strike: Ill Rev Stats 1965, ch 48% — Engineers and Engineering, § 36. Functions, powers and duties of department:
      “6. Formulate rules as may be required to administer this. Act.” Ch 131½ — Structural Engineers, § 3a. Powers and duties of department:
      “(6) Formulate rules and regulations when required in any Act to be administered.”


source: Caselaw Access Project

author: JUSTICE ABRAHAMSON.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Goodrich, Defendant-Appellant.
    Gen. No. 65-123.
    Second District.
    July 18, 1966.
    Arthur C. Holt, of Waukegan, for appellant; Bruno W. Stanczak, State’s Attorney, of Waukegan (Jack Hoogasian, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. PRESIDING JUSTICE MORAN

text:
    In the Matter of the Estate of Henry Boysen, Jr., Deceased. Beth Scofield and Ann M. Conley, Claimants-Appellants.
    Gen. No. 65-127.
    Second District.
    July 18, 1966.

      Haft, Shapiro & Haft, of Chicago, for appellants.
    Don E. Maxon, of Libertyville, and Diver, Diver, Ridge and Brydges, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

The decedent, Henry Boysen, Jr., held a mechanic’s lien on certain premises owned by one Beth Scofield in Lake County. Boysen joined with other lienors in foreclosing the property and, subsequently, at a sale held pursuant to a decree of foreclosure, Boysen bought the property.

Subsequently, Beth Scofield had conversations with one Ruth White, Boysen’s daughter, regarding Scofield’s offer to repurchase the property for Eighty Thousand ($80,000) Dollars, with Eight Thousand ($8,000) Dollars or ten percent earnest money deposit. A memorandum of agreement was actually entered into between Beth Scofield, Ruth White and another party who was joining Beth Scofield in the purchase. The Eight Thousand ($8,000) Dollars was paid to Ruth White and then a few days later Ruth White returned the money.

Upon Boysen’s death Beth Scofield filed a claim in his estate asking that his executrix, Eda M. Boysen, be required to carry out the agreement or in the alternative that the estate be held for damages.

The executrix filed a motion for Summary Judgment supported by the affidavit of Ruth White stating in substance that she was not the agent of Henry Boysen, the decedent, and that she had never been authorized in writing to act on his behalf. The trial court granted judgment on the motion and this appeal followed.

The question before us is whether or not there are any issues of fact requiring a trial on the merits. The trial court determined that there were no issues of fact and treated the case as purely a law matter.

The claimant raises two issues in this court, first, that the agency of Ruth White raises a question of fact not determinable by Summary Judgment and second, that the executrix is estopped from raising the statute of frauds as a defense.

Chap 59, sec 2, Ill Rev Stats, 1965 prohibits an action brought to charge any person upon a contract for the sale of lands unless founded on some memorandum executed by the party to be charged or by some person authorized by him in writing. Ruth White was never authorized in writing to act as the agent of Henry Boysen, Jr. It is elementary that agency cannot be proved by the statement of the agent made outside of the presence of the principal and not subsequently approved by him. Winger v. Richards-Wilcox Mfg. Co., 33 Ill App2d 115, 178 NE2d 659 (1961). In this case the claimant filed an affidavit alleging agency based on the statement of Ruth White. It is not claimed that such statement of agency was made in the presence of Henry Boysen, Jr., and there is no allegation that Boysen ratified such agency.

Where the agent is not authorized in writing and where a principal does not subsequently ratify the act of the agent, there can be no binding obligation concerning a contract for the sale of land. Kozel v. Dear-love, et al., 144 Ill 23, 32 NE 542 (1892).

The mere fact that the claimant filed an affidavit does not raise an issue of fact because the affidavit must show on its face that the party, if called as a witness, could properly testify to the matters set forth in the affidavit. Obviously, even if the matter were tried on the merits the claimant could not give the testimony set forth in her affidavit. It is replete with conclusions and immaterial matters contrary to Supreme Court Rule 15. Chap 110, sec 101.15, Ill Rev Stats, 1965. The Estate’s answer, as well as the affidavit of Ruth White, both state as a fact that Ruth White, at no time, had written authority from Henry Boysen, Jr., to enter into any agreement in connection with the real estate which is the subject matter of this suit. Nowhere does the claimant’s affidavit state that Ruth White was authorized in writing by Henry Boysen, Jr. to enter into the alleged agreement. “That the agreement signed by Ruth White was made as the duly authorized agent of Henry Boysen, Jr. . . .” is a conclusion and insufficient to create an issue of fact.

The claimant finally urges that an equitable estoppel has occurred and that the Estate and its representatives may not raise the defense of the statute of frauds.

In the case of Ozier v. Haines, 411 Ill 160, 103 NE2d 485 (1952), our Supreme Court recited six conditions which must occur to give rise to an equitable estoppel. The six conditions are found at page 163 and page 164:

“1. Words or conduct by the party against whom the estoppel is alleged amounting to a misrepresentation or concealment of material facts;
“2. The party against whom the estoppel is alleged must have knowledge, either actual or implied, at the time the representations were made, that they were untrue;
“3. The truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time they were made and at the time they were acted on by him;
“4. The party estopped must intend or expect that his conduct or representations will be acted on by the party asserting the estoppel or by the public generally;
“5. The representations or conduct must have been relied and acted on by the party claiming the benefit of the estoppel; and
“6. The party claiming the benefit of the estoppel must have so acted, because of such representations or conduct, that he would be prejudiced if the first party is permitted to deny the truth thereof.”

The claimants do not allege and they could not prove that Henry Boysen, Jr. misrepresented anything. In fact, the record does not show any conversation between Boysen and the claimants. Likewise, the record does not show that Boysen knew that any representations were being made on his behalf. The claimants cannot allege that they relied upon any representations because they are presumed to know the statutory requirement that an agent must be authorized in writing in matters of this nature.

The Supreme Court has laid down clearly established guidelines for us to follow in determining the existence of the doctrine of equitable estoppel, none of the guidelines appear in the case before us.

We conclude that there were no justiciable issues of fact presented to the trial court. The trial court was correct in dismissing the claim and granting judgment for the Estate.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


text:
    Savanna Community High School District No. 200, Plaintiff-Appellant, v. County Board of School Trustees of Carroll County, Illinois, et al., Defendants-Appellees.
    Gen. No. 65-137.
    Second District.
    July 18, 1966.

      Smith and Smith, of Savanna, for appellant.
    Eaton and Leemon, and William B. Petty, State’s Attorney of Carroll County, of Mt. Carroll, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This is an action under the Administrative Review Act to review a decision of the County Board of School Trustees of Carroll County authorizing the detachment of territory from the Savanna Community High School District and the Zion Community Consolidated Grade School District and the annexation of that territory to Mt. Carroll Community Consolidated Grade School District and Mt. Carroll Community High School District.

The action was apparently precipitated when the only teacher in the Zion Grade School District resigned the day school opened in the Fall of 1964. Acting in an obvious emergency, the Zion School Board parceled out its children to various other grade school districts for the school year. Subsequently, a petition was filed which in effect divides up the Zion Grade School District and incidentally disconnects a part of the Savanna Community High School District in so doing.

The decision of the County Board of School Trustees granting the petition was affirmed in the trial court and only the Savanna High School District appealed. All other parties, including the Zion Grade School District, are apparently satisfied with the decision and have not filed ■any appeal.

The Savanna Community High School District brings two issues to this court. First, that there was a lack of technical statutory compliance in the conduct of the hearing, and, second, that the decision of the County Board of School Trustees is against the manifest weight of the evidence.

Section 7-6 of the School Code (c 122, § 7-6, Ill Rev Stats 1965) provides that prior to the hearing before the County Board of School Trustees the secretary of the board shall submit maps of the districts involved and a written report of the financial and educational conditions of the districts and the probable effect of the proposed changes to each trustee. We have searched the record and find that this report was in fact filed. It is true that there were certain technical errors in the report, but these were all corrected at the hearing and it does not appear that any prejudice thereby resulted. This is not like the case of Bellevue Realty Co. v. School Dist. No. 111, 7 Ill App2d 196, 129 NE2d 231 (1955), where no report was filed, or like the case of Crainville School Dist. No. 37 of Williamson County v. County Board of School Trustees, 32 Ill App2d 143, 177 NE2d 248 (1961), where a mere drawing and no map was filed and where the financial report was so inadequate as to be meaningless.

We conclude that statutory compliance was had and that the Board had before it sufficient information upon which to base its decision. This is especially true when viewed in light of all the testimony presented to the Board.

The next technical objection made by the Savanna District is that a copy of the order of the Board was not furnished to the parties within thirty days after the hearing as is required by section 7-6 of the School Code, supra. The first hearing on the petition was held April 5, 1965. At the conclusion of the hearing the County Board of School Trustees continued the matter until April 19, 1965, at which time their decision was made. Copies of the order were mailed on May 6, 1965, and thereby complied with the statutory requirement. The statute requires that the order be delivered within thirty days after the conclusion of the hearing. Since the hearing was continued it appears obvious that there was adequate technical compliance with the statute in this case. In this connection it should be noted that section 275 of chap 110 of the Illinois Revised Statutes provides that technical errors in administrative proceedings are not grounds for reversal unless it appears that they materially affected the rights of the parties or resulted in substantial injustice. We cannot find that to be the case in this controversy.

The Savanna High School District finally asserts that the decision of the County Board of School Trustees is against the manifest weight of the evidence. The Administrative Review Act provides that the findings of facts of the administrative agency are prima facie true and correct. Chap 110, sec 274, Ill Rev Stats 1965. The legislature has wisely decided that these questions should be determined on the local level. We have no right to substitute our judgment for that of the County Board of School Trustees. We are only authorized to determine whether or not the record supports their findings.

It is to be noted that the legislature did not grant unfettered power to local authorities to change school boundaries. In determining these questions local authorities must consider the best interests of the schools in the area and the educational welfare of the school children. Section 7-6 of the School Code, supra.

This case cannot be fairly considered as a high school problem only, since the County Board of School Trustees considered and changed not only the high school boundaries but also the boundaries of the grade school districts involved. The Zion Grade School District had a problem, its only teacher quit her job the day school opened. To meet this emergency, the Zion School Board sent its pupils to other grade school districts for the school year on a tuition basis. This circumstance gave rise to the petition for detachment. The record shows that the Mt. Carroll High School was closer to the territory involved than the Savanna High School. As a result the school children spent less time on the school bus. There was a more extensive curriculum at the Mt. Carroll High School and Mt. Carroll provided a course in agriculture which was not provided at Savanna High School. In an agriculture area this has obvious benefits. The teacher-student ratio at Mt. Carroll High School is lower than at Savanna High School. All of these factors bear on the educational welfare of the children.

Counsel for the Savanna High School District argues that merely because the petitioners find it more convenient to go to one school district than another is not a sufficient reason to change school boundaries. There is no question that this is a correct statement of the law as far as it goes. However, if factors involving the educational welfare of the children dictate a change in school boundaries the mere fact that the change is more convenient to the parents will not prohibit the change in school boundaries. Burnidge v. School Trustees of Kane County, 25 Ill App2d 503, 167 NE2d 21 (1960), and Virginia Community Unit School Dist. No. 64 v. County Board of School Trustees of Cass County, 39 Ill App2d 339, 188 NE2d 886 (1963). The mere fact that the parents may find the boundary change convenient, while not persuasive, cannot be used as a deterrent if educational factors indicate the change.

Based upon the record as a whole, we cannot say that the decision of the County Board of School Trustees of Carroll County was against the manifest weight of the evidence. The trial court correctly decided that the record sustained the County Board of School Trustees and that technical statutory compliance was present. The judgment is, therefore, affirmed.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.


author: PER CURIAM.

text:
    Gerald Cole and Almeda Cole, Plaintiffs-Appellees, v. William Willhoft and Betty Willhoft, Defendants-Appellants.
    Gen. No. 65-107.
    Fifth District.
    July 20, 1966.
    A. Alan Hart, of Alton, for appellants; Edward W. Groshong, of East Alton, for appellees.
   Opinion

PER CURIAM.

Not to be published in full.


author: MORAN, J.

text:
    Tyrus W. Setliff and Katherine D. Setliff, Plaintiffs-Appellants, v. Homer G. Reinbold and Mary Eva Reinbold, Defendants-Appellees.
    Gen. No. 66-1.
    Fifth District.
    July 20, 1966.

      R. W. Harris, Harris, Holbrook & Lambert, of Marion, for appellants.
    J. C. Mitchell, of Marion, for appellees.
   MORAN, J.

This is an appeal from the Circuit Court of Williamson County, Illinois, from a dismissal of the complaint of the plaintiffs-appellants in an action to determine the correct boundary line between two adjacent tracts of land, to enjoin the defendants from interfering with the existing boundary line, from trespassing, and from proceeding in another case, and to require the defendants to repair that part of the boundary line which they destroyed.

The issue on appeal concerns the extent to which a party seeking to rely upon the principle of res judicata must show what was determined by the court in the prior judgment and what is common to the subsequent action.

The amended complaint alleged that the plaintiffs owned a piece of property designated Tract 1 and that the defendants owned another piece designated Tract 2. In 1913, when the adjacent tracts were owned respectively by Emil and Fred Krump, a boundary line was established between them by a parol agreement and a fence was built pursuant to the agreement. The fence was maintained and kept as the established boundary line until a dispute arose between the plaintiffs and the defendants in 1954. Subsequently, the defendants in this case, Homer and Mary Eva Reinbold, filed a suit in the Circuit Court of Williamson County, Illinois, against the plaintiffs in this suit, Tyrus and Katherine Setliff, making application for survey and for the appointment of disinterested surveyors “to establish the boundary line between the above described tracts.” The complaint in the present case alleged that the Reinbolds could not have a commission appointed to survey and determine the line because they are precluded from disputing the boundary line; for the boundary had been established by agreement and by continued acquiescence therein between adjoining landowners with undisputed possession up to the agreed line for more than forty-one years. After alleging that the defendants trespassed and threatened to continue to trespass by moving a portion of the fence from the established boundary line, the complaint prayed that the court determine the correct boundary, enjoin the defendants from destroying or further interfering with the fence line, enjoin the defendants from trespassing, enjoin the defendants from proceeding in their suit, and require the defendants to repair that part of the fence which was removed.

The defendants filed a motion to dismiss the complaint, which was unsupported by an affidavit. Attached to the motion was a copy of the final order of the prior proceedings in the Williamson County Circuit Court, showing that the court had appointed a commissioner of surveyors over the objections of the Setliffs; that a report of survey was duly made to the court on June 25, 1959; that no objections were filed until June 17, 1960, at which time the Setliffs filed written objections; that a hearing was held on the objections; and that, on February 27, 1962, the court approved the report and allocated the costs of the survey. In support of the motion, the defendants alleged that the main issue presented by the complaint was the determination of the boundary line, that this issue had been the subject matter of the previous suit, and, therefore, that the present suit is barred by the principles of res judicata. The lower court sustained the motion and dismissed the complaint. From this decision the plaintiffs appealed.

It has been repeatedly stated by courts in Illinois that “the burden of proof is always upon the defendant, who pleads res judicata because of a former judgment, to set up that judgment, and show what was determined by it, and what is common to the subsequent action. The proof must be clear, certain, and convincing.” Board of Directors of Chicago Theological Seminary v. People ex rel. Raymond, 189 Ill 439, 444, 59 NE 977; Svalina v. Saravana, 341 Ill 236, 173 NE 281; Brown v. Brown, 286 Ill App 471, 3 NE2d 945; Ramsay v. Ramsay, 10 Ill App2d 459, 125 NE2d 172; Sullivan v. Bard, 44 Ill App2d 16, 194 NE2d 18; Johnston v. East St. Louis Homes, 71 Ill App2d 79, 218 NE2d 38. The fact that the precise question was raised and determined in the former suit may appear on the face of the record or may be shown by extrinsic evidence. Svalina v. Saravana, supra.

From the copy of the order attached to the motion to dismiss, it is clear that the prior suit in the Williamson County Circuit Court involved the determination and establishment of the correct boundary line between Tracts 1 and 2. The plaintiffs admit that the prior suit did involve this determination. However, it is urged that, since the motion to dismiss was unsupported by an affidavit, the record is barren concerning what was determined by the prior judgment and what is common to the present suit. Suffice it to say that, assuming an affidavit was required for the motion to dismiss, the plaintiffs did not object at any time before the trial court to the form or substance of the motion to dismiss; and therefore, they “cannot now for the first time raise the point on appeal.” Department of Finance v. Schmidt, 374 Ill 351, 354, 29 NE2d 530.

The actual dispute raised in the plaintiffs’ complaint is the same determination as that involved in the prior suit. Both suits involve an effort to establish a disputed boundary line between adjacent tracts of land. The plaintiffs’ initial prayer is for judgment that “the court determine and establish the correct boundary line.” Even though there are additional prayers for relief they are essentially incidental to and dependent upon the court’s establishment of the correct boundary and, therefore, not determinative of the question of the identity of issues. The prayers that the court enjoin any interferences and trespassing and that it require the defendants to repair that part of the fence which they destroyed, clearly depend upon the determination of the correct boundary line.

The appellants maintain that there is no identity of issues between the matters alleged in their complaint and the dispute which existed between them as a result of which the prior judgment was entered. They maintain that the main issue raised by their complaint is that Emil and Fred Krump, “not knowing the boundary between them, established it by parol agreement, fixing the location of the unascertained boundary line.” They thereby pray judgment that the court enjoin the defendants from proceeding in the former suit. However, the appellants fail to recognize that any alleged oral agreement relates solely to the determination of the boundary line and that this determination was the issue in both cases. In all cases where the second suit is based upon the same issue and between the same parties or their privies, the doctrine of res judicata “extends to all grounds of recovery or defenses which might have been presented.” Chicago & W. I. R. Co. v. Alquist, 415 Ill 537 at 541, 114 NE2d 713; People v. Kidd, 398 Ill 405, 75 NE2d 851; Leitch v. Hine, 393 Ill 211, 66 NE2d 90.

Illinois Revised Statutes, chapter 133, section 14 provides that “(t)he corners and boundaries established in said survey, if approved in the final judgment of the court, if not appealed from within thirty days, shall be held and considered as permanently and unalterably established according to said survey.” Therefore, since no appeal was taken, the judgment of the court in the prior suit has become final and the boundary line shall be considered as permanently established.

For the foregoing reasons, the judgment of the lower court is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Lee Brown (Impleaded), Defendant-Appellant.
    Gen. No. 49,900.
    First District, Fourth Division.
    July 20, 1966.
    Marshall Patner, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Albert J. Armonda, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

CHARGE

Burglary.

JUDGMENT

After a bench trial, the court found defendant guilty and imposed a sentence of two to eight years.

POINTS RAISED ON APPEAL

(1) The State should have produced one Stovall as a witness.

(2) The charge was not proved beyond a reasonable doubt.

TESTIMONY OF STATE WITNESSES

Rosie Lyes

She operated a beauty shop at 3438 South Parkway. Upon leaving the premises at about 10:00 p. m. on April 28, 1964, she locked the doors. When she returned the next morning at about 5:20 a. m. police officers were there and she learned that the place had been “broken into.” An electric hair clipper, a small jar containing coins, and a number of other more valuable items were missing. Later she saw the hair clipper and the jar of coins at the police station.

Albert Henry, a police officer

He arrived at the premises at about 4:30 a. m. At the front of the shop he heard noises inside, so he went to the rear to investigate. The back door was hanging with one hinge off and the lock on the inner door was broken. He was joined by Sergeant Kinnerk, as defendant and one Gibson walked out through the back door of the shop. Upon being asked why he was there, defendant said he had heard noises and had gone in to investigate. Henry searched defendant and found the hair clipper and jar of coins in his pockets. A search of Gibson revealed nothing, but upon coming out the door he had been seen to drop pliers and a screwdriver.

Patrick Kinnerk, a police sergeant

He arrived at the front of the shop as Officer Henry was at the rear. He heard voices inside and, upon signal by Henry, he went to the rear also and saw Henry backing defendant and Gibson into the shop. Kinnerk’s testimony corroborated Henry’s as to the search of defendant and recovery of the clipper and jar of coins.

Ronald Kirk, a detective

He talked to defendant at the police station at about 5:00 a. m. Defendant admitted that he had entered the shop after hearing noises from across the alley. He also said, however, that he went in with Gibson “to see what they could steal.”

TESTIMONY OF DEFENSE WITNESSES

Defendant

His testimony was exculpatory (he had found the clipper in the alley and went in to see what was going on, when Gibson handed him the jar of coins).

George Gibson, codefendant

He had pleaded guilty. His testimony corroborated that of defendant, and he added that he and one Stovall had broken into the shop; that Stovall had run out and dropped the clipper in the alley. Stovall had run, upon defendant’s approach, because he thought defendant was the owner of the shop. Gibson handed the coin jar to defendant, also in the mistaken notion that he was the owner. Gibson testified that Stovall was apprehended and charged with the burglary.

OPINION

(1) Except for Gibson’s testimony, the record does not indicate anything about the existence of a third man at the scene of the crime. The State did not offer a witness by the name of Stovall and claims no knowledge of such a person. The defense made no request that Stovall be called, but in this court makes a point of the fact that he should have been produced by the State, citing People v. Wilson, 24 Ill2d 425, 182 NE2d 203. That case involved reversal of a conviction because a key witness had been deliberately sent beyond the jurisdiction of the court by federal narcotics agents. Before trial, defense counsel had sought a court order to produce the witness, and there were still other grounds on which that case is distinguishable from the one now before us. We see no basis for reversal in defendant’s claim that the State had the duty to offer the testimony of a witness whose existence it denies.

(2) Defendant also contends that he was not proved guilty beyond a reasonable doubt, as the trial judge based his decision on the weakness of defendant’s case rather than the strength of the State’s case. It is true that the trial judge stated that he did not believe the testimony of defendant and Gibson. This, however, does not bring the case within People v. Coulson, 13 Ill 2d 290, 298, 149 NE2d 96 (relied on by defendant), for there the court determined that the State’s evidence was “improbable, unconvincing and completely unsatisfactory . . . .” Such a situation does not exist in the instant case. Here we find that the State proved its case according to law if its witnesses were to be believed. An experienced, highly qualified trial judge did find their testimony credible. Under all these circumstances, we would not be justified in disturbing his findings even if we thought otherwise, and we do not.

At the hearing in mitigation and aggravation, it was disclosed that defendant had twice previously been sentenced on four burglary charges (the last time, in 1949, for two to twenty years). The present sentence of two to eight years cannot, therefore, be considered excessive.

DECISION

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McCORMICK, J., concur.


text:
    Creeco Company, a Corporation, and Lillibridge Manufacturing Company, a Corporation, Plaintiffs-Appellants, v. Northern Illinois Gas Company, a Corporation, and Porter Contracting Company, a Corporation, Defendants-Appellees.
    Gen. No. 65-99.
    Second District.
    July 21, 1966.
    Rehearing denied September 7, 1966.

      Clausen, Hirsh, Miller & Gorman, and Robert J. Rafferty, all of Chicago, for appellants.
    Carroll, Leali & Gitlin, of Woodstock, and Robert C. Liston, of Wheaton, for appellees.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

Plaintiffs appeal from orders entered in favor of the defendants dismissing the complaint on the grounds of estoppel by verdict.

Plaintiffs Creeco Company, a corporation, herein referred to as Creeco, and Lillibridge Manufacturing Company, a corporation, herein referred to as Lillibridge, sued Northern Illinois Gas Company, herein referred to as Northern and Porter Contracting Company, a corporation, herein referred to as Porter. The complaint filed in the circuit court of McHenry County charges Northern and Porter with both negligence and wilful and wanton misconduct in causing an explosion and resultant fire in a building owned by Creeco and occupied by Lillibridge. Creeco sued for damages to the building and Lillibridge sued for damages to the contents.

In a prior action arising out of the same explosion, one Mildred Peterson filed suit in Kane County charging Creeco, Lillibridge, Northern and Porter with negligence. The various defendants filed answers but no cross-pleadings or counterclaims were filed. Creeco was voluntarily dismissed as a defendant. Northern and Lillibridge were found guilty of negligence and Porter was found not guilty.

During the Peterson trial it was established that one D. F. Creedon was President of both Lillibridge and Creeco; that the other officers were identical in both corporations and that there was some common ownership of the shares of the two corporations. During the Peterson trial Mr. Creedon testified that he had observed a gas leak in the vicinity of the plant and had mentioned it to an employee of Northern and had also observed Porter doing excavating work in the area. A witness named Valine who is an employee only of Lillibridge also testified to having detected gas odors prior to the explosion. Creedon and Valine were both cross-examined extensively by the attorneys for Northern and Porter and it is alleged that Valine was impeached in certain aspects of his testimony. In the instant case the motions for judgment contained transcripts of the testimony of both Creedon and Valine in the prior case and the defendants successfully contended in the trial court that they were entitled to judgment on the basis of estoppel by verdict.

The rules pertaining to estoppel by verdict have been stated on numerous occasions by Illinois courts of appeal. The most recent statements were by this court in Chas. Ind Co. v. Cecil B. Wood, Inc., 56 Ill App2d 30, 205 NE2d 786 (1965), and by the First District Appellate Court in Lynch v. Chicago Transit Authority, 62 Ill App2d 220, 210 NE2d 792 (1965).

Briefly stated the doctrine of estoppel by verdict is that when some specific fact or question has been actually and directly an issue and has been adjudicated in a former suit and the same fact or question is again put in issue in a subsequent suit between the parties or their privies who were parties in a former suit, the determination of that fact or question in the former suit, if properly presented and relied on, is conclusive upon the parties and their privies in the latter suit, without regard to whether or not the cause of action is the same in both suits. It is not necessary that the parties in the prior litigation were on opposite sides or that the issues between them were raised by pleadings so long as the parties were adversaries in fact.

The Ind case arose after a motorist had struck a concrete traffic signal which was being constructed on a traffic island in Rockford. The motorist sued the general contractor Ind, the subcontractor Wood and the City of Rockford. Ind was found guilty and Wood and the City of Rockford were found not guilty. Thereafter, Ind filed an action for indemnity against Wood charging that Wood was guilty of active negligence and that Ind was guilty only of passive negligence. In reviewing the proceedings in that case we came to the conclusion that the plaintiffs in the first suit earnestly sought to impose liability on the three defendants and that Ind, in conducting the defense, actively sought to establish the negligence of Wood. We held that Ind, having actively sought in the first suit to establish responsibility on Wood and having failed to do so, was estopped from making the same claim in the second case.

In the Lynch case the litigation involved a collision between an automobile driven by Lynch and a bus. In the first case a bus passenger sued both Lynch and the Transit Authority. Lynch was charged with negligence. The plaintiff obtained a verdict against both parties. In the second case Lynch sued the Transit Authority for negligence and it was held that the finding of negligence against him in the prior litigation was determinative of the question of his due care and, therefore, acted as a bar in his action against the Transit Authority.

In considering the case at bar we will first examine the claim of Lillibridge against Porter. Lillibridge charges Porter with both negligence and wilful and wanton misconduct. In the Peterson case Lillibridge was found guilty of negligence and Porter was found not guilty and it would appear from the affidavits and transcripts submitted in support of the motion to dismiss that there was an intensive effort made in the trial of the Peterson case by Porter to establish the negligence of Lillibridge. Although there were no pleadings in the Peterson ease by Lillibridge against Porter, they were in fact in an adversary position by reason of the proof offered. The finding of negligence against Lillibridge is determinative of the question of its due care and such finding bars its action against Porter charging Porter with negligence.

With respect to the charge of wilful and wanton misconduct against Porter we hold that the finding in the Peterson case that Porter was not guilty of negligence precludes any possibility of an award here by Lillibridge against it on the grounds of wilful and wanton misconduct. A comparison of the charges of negligence in the Peterson case against Porter with the charges of wilful and wanton misconduct in the Lillibridge complaint against Porter shows that except for technical differences the allegations are substantially similar. Lillibridge is not entitled to a second day in court on these matters.

Considering then the claim of Lillibridge against Northern we feel that as in the Porter case there was a determined effort on that part of Northern to show negligence on the part of Lillibridge, and it further appears there was a similar effort on the part of Lillibridge to show negligence on the part of Northern. We hold that the verdict in the Peterson case is determinative of the question of due care on the part of Lillibridge and that its charge of negligence against Northern is therefore barred.

This situation is different from that presented in Sherman House Hotel Co. v. Butler St. Foundry & Iron Co., 168 Ill App 549 (1912), where one of the defendants in the former case was granted a directed verdict before presenting its case. It was there held that in a subsequent action by one of the defendants against the other, the question of which of the two defendants in the prior case was liable for the injury as between themselves had not yet been determined.

The wilful and wanton charge by Lillibridge against Northern is still undetermined. There was no adjudication absolving Northern from fault. With respect to this portion of the complaint Lillibridge has not yet had its day in court.

Northern’s contention that the complaint against it charging wilful and wanton misconduct is defective for failure on the part of the plaintiffs to allege freedom from contributory wilful and wanton misconduct was not raised in the circuit court and cannot be raised for the first time on appeal. Ill Rev Stats c 110, § 43; Continental Illinois Nat. Bank & Trust Co. of Chicago v. National Casket Co., 27 Ill App2d 447, 169 NE2d 853 (1960).

With respect to the claim of Creeco against both Porter and Northern we have the added factor that Creeco was dismissed in the Peterson case so it was not a party at the time of verdicts. Although the officers of Creeco and Lillibridge are the same there are two corporate entities with different interests and they are not in privity. Chicago Bar Ass’n v. Friedlander, 24 Ill App2d 130, 164 NE2d 517 (1960); Smith v. Bishop, 26 Ill2d 434, 187 NE2d 217 (1963).

The witness Valine was an employee only of Lillibridge. He had no relationship with Creeco and Creeco is not chargeable with his acts or omissions. His knowledge of a dangerous condition prior to the explosion might be indicative of negligence or lack of due care on the part of Lillibridge but would in no way reflect upon Creeco.

Similarly, we do not feel that the fact that both Creeco and Lillibridge were insured by the same insurance company creates a condition of privity.

The motions which we have considered in this case were motions to dismiss based upon the doctrine of estoppel by verdict. These motions were supported by affidavits and transcripts of evidence at the former trial. These motions are to be distinguished from motions for summary judgment and we have not considered them as such.

The motions to dismiss should not have been allowed with respect to Lillibridge’s charge of wilful and wanton misconduct against Northern and with respect to Creeco’s charges of both wilful and wanton misconduct and negligence against both Porter and Northern and those portions of the judgment in favor of the defendants are reversed and the cause is remanded for further proceedings not inconsistent with this opinion. In all other respects the judgment is affirmed.

Reversed and remanded in part and affirmed in part.

DAVIS and ABRAHAMSON, JJ., concur.


author: MR. JUSTICE DAVIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earle K. Booher, Defendant-Appellant.
    Gen. No. 65-139.
    Second District.
    July 21, 1966.

      Gary W. Cordes, of DeKalb, for appellant.
    James E. Boyle, State’s Attorney, of Sycamore, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, who was charged with burglary, was tried by the court, found guilty, and sentenced to the penitentiary for an indeterminate term of not less than 2 nor more than 5 years. On appeal, he contends that the trial court erred in finding him guilty in that the evidence did not prove beyond a reasonable doubt that he entered the DeKalb Appliance Store with intent to commit therein a felony or theft.

Section 19-1 (a) of the Criminal Code (Ill Rev Stats 1965, c 38, par 19-1 (a)) provides that a person commits burglary when without authority he knowingly enters or without authority remains within a building with intent to commit therein a felony or theft.

A partner of the Appliance Store testified that he came to the store in the early morning hours of July 13, 1965, noticed that the front door was ajar, went inside and found the defendant in the store office— crouched and partially hidden behind a filing cabinet. At the time of apprehension in the office, the defendant was searched, and later he was further searched at the police station. The searches yielded a ball point pen of one partner, the keys of the other, about $5 in cash, a silver dollar on a key chain, certain receipts and tools. The defendant admitted ownership of the tools. The fruits of the searches were offered and admitted in evidence.

At the time of his apprehension, the defendant answered no questions asked of him by the partner concerning his presence in the store. However, he did tell the policemen that he was sleeping there; and that earlier in the evening he was in the store drinking with two unidentified persons. The police officers found the store cashbox open, empty, and on the desk in the office, when they arrested the defendant.

The defendant testified that he got off the bus at DeKalb; that he took his suitcase, bedroll and timepiece and placed them behind a tree; that he then went to a tavern where he remained until it closed; that he there tried to sell certain tools and in so doing met two men with whom he drank; that he told them he was an electrician and wanted a job; that one of the men said he worked at the Appliance Store; that when the tavern closed they went to the Appliance Store and the men stated that they lived in the back of the store; that one man unlocked the door and, as he did so, the key chain broke; that the defendant picked up the keys and the silver dollar — which the man told the defendant to keep; that the men then told defendant to go inside and wait and that they would come right back; and that the defendant went inside the store, stayed, and was there when the partner and later the police officers came to the store. The defendant denied opening the cashbox and taking any money. However, his testimony was without corroboration.

Defendant argues that his testimony tends to reasonably explain his presence in the building and that there are no circumstances inconsistent with his explanation. This argument is based on the false premise that the court must believe defendant’s testimony. However, it has long been the law that the statements of a defendant or witness may be so inherently improbable as to induce the court or jury to disregard his evidence, even in the absence of any conflicting testimony. The witness may be contradicted by the facts which he states as completely as by direct adverse testimony and there may be so many omissions in his account of the transaction, that his entire story is discredited. Under such circumstances, the testimony contains its own impeachment. The People v. Malmenato, 14 Ill2d 52, 59, 150 NE2d 806 (1958); The People v. Davis, 269 Ill 256, 270, 271, 110 NE 9 (1915). The trier of a fact is not required to believe the uncontradicted testimony of the defendant if it is so unreasonable as to be adjudged improbable, or so fantastic as to seem incredible. When a defendant elects to justify or explain his presence at or near the scene of a crime, he must tell a reasonable story or be judged by its improbabilities. The People v. Malmenato, supra, 59, 60.

In the case at bar — when we consider the admitted facts surrounding the offense — we find such an inherent improbability in the testimony of the defendant as to justify the trial court in disregarding it. The defendant’s testimony contained its own impeachment.

We will not reverse a judgment of conviction on the ground that the evidence fails to sustain the judgment unless there is a reasonable and well founded doubt as to the guilt of the accused and the judgment is palpably contrary to the weight of the evidence. The People v. Lobb, 17 Ill2d 287, 294, 161 NE2d 325 (1959); The People v. Prohaska, 8 Ill2d 579, 589, 590, 134 NE2d 799 (1957). The credibility and weight to be given to the testimony is a question for the trial court, as the trier of the fact, and we will not substitute our judgment for that of the trial court. The People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631 (1964). We believe that the elements of the offense of burglary were proven beyond a reasonable doubt and the judgment of the trial court must be affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rafael Sanchez Marichez, Defendant-Appellant.
    Gen. No. 50,530.
    First District, Third Division.
    July 21, 1966.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall A. Patner, Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

Upon a trial without a jury the defendant was convicted of the illegal sale of narcotics and sentenced to ten years to ten years and a day in the State Penitentiary. The issue to be determined on this appeal is whether a stipulation entered into between defendant and the State was sufficiently precise to constitute proof that the items defendant sold, charged to have been narcotics, were within the definition of those narcotic drugs, the sale of which is prohibited by statute.

State Narcotics Inspector William Sutphen testified that on three separate occasions defendant sold him products which in his opinion were narcotics, and that these products were placed in separate packages and submitted for chemical analyses to the Chicago Police Department Crime Laboratory. The packages were offered as People’s Exhibits Nos. 1, 2 and 3, and a stipulation was entered into between the parties which provided that the chemist who analyzed the contents, if called as a witness, would testify that as to Exhibit No. 1, the substance was “cannabis sativa, commonly referred to as marijuana, from which the resin had not been extractedas to Exhibit No. 2, “that it was crushed green plant, and that it was also marijuana;” and as to Exhibit No. 3, “that it was marijuana from which the resin had not been extracted.”

The statute, Ill Rev Stats, c 38, § 22-2 (r) (3) (1963), provides as follows:

“(3) 'cannabis’ includes all parts of the plant Cannabis Sativa L (commonly known as marihuana), whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of such plant which is incapable of germination.”

Defendant contends that the stipulation does not permit the court to find that the substance found in defendant’s possession was the prohibited part of the plant, as all the possible exceptions are not negatived by the express terms of the stipulation. Defendant adds that it is the State’s burden to show that the substance was not composed of mature stalks or those other items enumerated in the statute as not included in the definition of “cannabis.”

This contention advanced by defendant is contrary to the statute (Ill Rev Stats, c 38, § 22-44 (1963)) dealing with the burden of proof, and to cases construing that provision. That section provides as follows:

“In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this Act, it shall not be necessary to negative any exception, excuse, proviso or exemption, contained in this Act, and the burden of proof of any such exception . . . shall be upon the defendant.” (Ill Rev Stats, c 38, § 22-44 (1963).) (Emphasis added.)

In People v. Yeargain, 3 Ill2d 25, 119 NE2d 752, the Supreme Court upheld an indictment charging the sale of cannabis, saying it “sufficiently described a narcotic drug as defined by statute, stated the offense in the terms and' language of the statute creating the offense, and that it was not necessary that the indictment negative the exceptions contained in the statute defining the regulated drug.” (Emphasis added.) Defendant says that this case is not applicable, in that it dealt with an indictment, but the statute includes “any action or proceeding” and is not limited to preliminary proceedings.

Also supporting the State’s position is People v. Austin, 22 Ill2d 587, 177 NE2d 97, in which a stipulation that the contents of a package was a derivative of opium was sufficient to sustain the conviction. The defendant there argued that a stipulation that the drug was a derivative of opium did not bring it within those drugs proscribed by statute, in that a certain opium derivative was exempt. The court said the burden was not upon the State to show that the drug in question was not the exempted drug. Defendant in the case before us concedes the validity of that holding and attempts to distinguish it from the instant case by noting that the indictment in the Austin case did specify which opium derivative was present. Defendant in fact contends that in a marijuana case the State must negative in the indictment (or in the stipulation, if one is made) all the exceptions enumerated in the statute.

A better rule is suggested in People v. Williams, 23 Ill2d 549, 179 NE2d 639, where the court said (p 556):

“Thus, if there is in the record evidence sufficient to raise a reasonable possibility that the defendant comes within the exemption thus creating a reasonable doubt of his guilt, the defendant has met the burden of proof imposed upon him by the statute. Where, as was the case in People v. Palumbo, 5 Ill2d 409, there is no suggestion in the record that the substance containing narcotics is a medicinal preparation, the State is not required to prove the concentration.”

In the instant case, since no evidence was introduced showing that the items sold by defendant were within the exceptions to the statute, the stipulation adequately supports the judgment.

Judgment affirmed.

SULLIVAN, P. J. and DEMPSEY, J., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    Bell Auto Repair & Painting Corporation, Plaintiff-Appellee, v. Manuel Henderson, Defendant-Appellant.
    Gen. No. 50,632.
    First District, Third Division.
    July 21, 1966.

      Charles A. Wilson, of Chicago, for appellant.
    Byron A. Eisenstein, of Chicago, for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

This involves an appeal from an order denying defendant’s petition to vacate and set aside a judgment by confession on a promissory note.

Judgment was entered April 23, 1962, against the defendant and in favor of the plaintiff. On January 8, 1965, the defendant filed a petition under section 72 of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72), setting forth that the judgment was void and should be set aside and vacated because it was procured through fraud and fraudulent concealment of the cause of action by the respondent (plaintiff). The petition then alleged the following:

“2. a. That the suit is based upon a fraudulent promissory confession note, the existance (sic) of which was never made known to your Petitioner, but was fraudulently concealed from him for over a period of three years, to-wit from the date of the note Nov. 11, 1961 up until Petitioner’s homestead was sold by virtue of levy made thereon by Respondent to satisfy said judgment.
“b. That Execution was never served on Petitioner and Petitioner was not aware that suit had been instituted against him at any time.
“c. That the levy was made and served Nov. 20,1963 against Petitioner’s real estate by the Bailiff of the City of Chicago to satisfy said Judgment, no Notice as is required by the Illinois Revised Statutes, Chap 77, Sect 15.2 was ever Served on Petitioner.
“d. That said note is not the note of Petitioner, is without consideration, is false and fraudulent, was never written, signed, or executed by him.
“e. That the Cognovit in this cause, is signed by an Attorney who is wholly unknown to Petitioner, and the Cognovit is therefore false.
“f. That Defendant’s real estate was sold by virtue of said levy, December 16th 1964, by the Bailiff of the City of Chicago, under Execution 537606.”

The petition also set forth that at the time of the entry of the judgment the aforementioned facts were unknown to the court and to the petitioner, and that the petitioner was without fault or negligence. Among other relief requested the petitioner prayed that the judgment be set aside and vacated, and held null and void. The petition was sworn to by the defendant.

The defendant also attached to the petition an affidavit in which he set forth that he had a good defense on the merits to the whole of plaintiff’s demand; that the nature of his defense was fraud and fraudulent concealment of the cause of action in that the plaintiff fraudulently concealed from the defendant the fact that the plaintiff held a promissory note on which defendant’s name appeared as maker; that defendant did not know of the existence of said note, had never heard of it, had never signed it and had never authorized anyone to sign his name to said note, and that if his name appeared as maker on said note, the plaintiff, through false and fraudulent representations had induced the defendant to sign his name to a blank piece of paper; that if defendant had signed a note it was fraudulently concealed from him by the plaintiff; that said note remained fraudulently concealed in the possession of the plaintiff for over three years, and that defendant was unaware of its existence ; that defendant had taken his automobile to plaintiff’s shop for repairs and agreed to pay plaintiff the sum of $649 for the work to be done on the car, and $110 was to be paid down and $35 per month until the full amount of $649 was paid; that the sum of $649 was the total cost of said repairs as represented by the plaintiff, and that the defendant owed the plaintiff nothing after the said amount had been paid; that the full amount of $649 and more had been paid by the defendant and that during all of the time the defendant was making monthly payments of $35 the plaintiff fraudulently concealed from him the fact of the existence of said note. The defendant further set forth in his affidavit that the judgment by confession was entered against him on April 23, 1962, in the sum of $1,498.95, based upon the concealed note held by the plaintiff, and that the defendant was unaware that judgment had been entered against him on said note until the defendant’s real estate was sold by the Bailiff of the city of Chicago December 16, 1964. The defendant further set forth that he had never been served with execution or with other notice. Defendant further alleged that the plaintiff fraudulently concealed from the defendant the judgment until more than two years had lapsed after its entry; that the homestead jointly owned by the defendant and his wife was sold in accordance with a levy made on November 20, 1963. The defendant further set forth in his affidavit that the falsity of the note did not appear of record and that the defendant has not had his day in court, nor has the court been advised as to the foregoing fraud perpetrated on him.

The plaintiff filed neither a motion to strike the petition nor an answer to the petition. The record before us is not clear as to the reason why the trial judge refused to vacate the judgment, but it is argued that it was because the petition to set aside the judgment was filed more than two years after its entry. Section 72 (3) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 72 (3)) reads as follows:

“The petition must be filed not later than two years after the entry of the order, judgment or decree. Time during which the person seeking relief is under legal disability or duress or the ground for relief is fraudulently concealed shall be excluded in computing the period of two years.”

The matters set forth in the petition to vacate and in the affidavit of the defendant attached thereto were sufficient to show fraudulent concealment of the existence of a note or the existence of a judgment until after the two-year period had expired. Therefore, the two-year period did not operate as a limitation upon the defendant in seeking relief under section 72 of the Civil Practice Act. Indeed, the plaintiff does not in this court question the sufficiency of the petition but in its brief argues matters which appear nowhere in the record before us. The plaintiff in its brief has not seen fit to follow the record, nor has it adverted to the abstract of record at any time either in its alleged statement of facts or in its argument.

Paragraph (2) of section 72 of the Civil Practice Act reads as follows:

“The petition must be filed in the same proceeding in which the order, judgment or decree was entered but it is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.”

The petition must be filed in the same proceeding but it is not a continuation of said proceeding, and, in fact, it is the filing of a new action and subject to the usual rules governing civil cases. Wilson v. Wilson, 56 Ill App 2d 187, 205 NE2d 636; Brockmeyer v. Duncan, 18 Ill2d 502, 165 NE2d 294. As in any other case, the burden is on the petitioner to prove his right to the relief sought. This he must do by competent evidence. The petition is a substitute for a complaint and only confers jurisdiction upon the court. Topel v. Personal Loan & Savings Bank, 290 Ill App 558, 566, 9 NE2d 75. The petition standing alone is not evidence. However, in the instant case there was an affidavit filed in addition to the sworn petition. Section 69(2) of the Civil Practice Act reads in part as follows:

“If evidence is necessary concerning any fact which according to law and the practice of the court may now be supplied by affidavit, the court may, in its discretion, require the evidence to be presented, wholly or in part, by oral examination of the witnesses in open court, upon notice to all parties not in default, or their attorneys. . . .”

Since paragraph (2) of section 72 of the Civil Practice Act provides the petition is to be supported “by affidavit or other appropriate showing,” that section taken together with section 69 (2) of the Civil Practice Act indicates that the issues may be tried and established by affidavit. In Wilson v. Wilson, 56 Ill App 2d 187, 195, 205 NE2d 636, the court said:

“The procedural aspects of such petition are worthy of note. Section 72 (2) of the Civil Practice Act provides that, as to the matters not of record, the petition must be supported ‘by affidavit or other appropriate showing.’ This, together with Section 69 (2) of the Civil Practice Act (Ill Rev Stats 1963, c 110, par 69(2)), indicates that the evidence may be presented and the issues tried by affidavit, at least where the facts set forth in the affidavits do not controvert one another. Isaacs v. Shoreland Hotel, 40 Ill App2d 108, 114, 188 NE2d 776 (1st Dist 1963).”

In the instant case the plaintiff filed no answer or affidavit controverting the petition and affidavit of the defendant. By authority of the statutes and Wilson, supra, the affidavit of the defendant could have been considered as evidence by the court.

In Elfman v. Evanston Bus Co., 27 Ill2d 609, 190 NE2d 348, the court on page 613 said:

“Since our decision in Ellman v. DeRuiter, 412 Ill 285, subsequently adopted by the legislature (Laws of 1955, p 2270,) it has become certain that a petition filed under section 72, such as we have here, invokes the equitable powers of the court, as justice and fairness require, to the end that one may not enforce a default judgment attended by unfair, unjust or unconscionable circumstances.”

In the instant case the court’s order read as follows:

“It is ordered by the Court that the motion to open up (sic) judgment be and the same is hereby overruled.”

The defendant did not file a motion but filed a petition under section 72. The defendant did not ask the court to open the judgment. The defendant asked that the judgment be vacated and set aside, and we are of the opinion that the defendant was entitled to that relief upon the record before us.

The judgment of the trial court is hereby reversed and the cause remanded with directions to the trial court to vacate and set aside the judgment, to grant the defendant sufficient time to answer the complaint filed herein, and to proceed with the trial of this case on its merits.

Reversed and remanded with directions.

SCHWARTZ and DEMPSEY, JJ., concur.