author: Mr. PRESIDING JUSTICE SCOTT Mr. PRESIDING JUSTICE STOUDER

text:
    Harry Fredman, Plaintiff-Appellee, v. Kent Clore et al., Defendants-Appellants.
    (No. 72-332;
    Third District —
    August 24, 1973.

      STOUDER, J., dissenting.
    Whitney Hardy, of Land of Lincoln Legal Assistance Foundation, of Danville, for appellants.
    Herbert Fredman, of Peoria, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Harry Fredman, the plaintiff, is the owner of an apartment building in the City of Peoria and on November 15, 1971, he entered into an oral agreement with Kent and Kathy Clore as to the rental of an apartment within the building on a month to month basis for the consideration of $112.00 per month.

During the months of February, May and August of 1972 inspections were conducted by the Peoria Department of Environmental Development of the apartment rented by the defendants and of the apartment building generally. Certain violations of the Peoria Housing Code were found, i.e., leaking roof, falling plaster, peeling paint, improper wiring, inadequate heat, and plaintiff was notified as to these violations and directed to correct them.

The defendants allege in certain pleadings that the defendant was aware of some of the defects at the time they rented their apartment and agreed to have them remedied. Also the defendants allege that the inspections made by the Department of Environmental Development were made pursuant to their complaint.

On June 13, 1972, the defendants commenced making payment of their rental money to the Director of the Department of Environmental Development pursuant to section 16 — 113.5 of the Peoria Housing Code, which provides:

"Sec. 16 — 113.5 After inspection and due notice of violation by the Director, any tenant directly affected by a violation of this Code by the owner or lessor, and so long as the violation exists, may place all rents due to the owner or lessor in escrow with' the consent of the Director. The Director shall hold the rents in a separate account, as Escrow Agent for the tenant, until such time as the violation is corrected and if the owner is prosecuted, convicted and fined, until such fine and costs are satisfied in full. Thereupon, the Director shall release the escrowed funds or so much as may remain less any fine and costs to the owner or lessor.”

On July 13, 1972, the defendants received from the plaintiff notice to terminate the lease agreement of their apartment within thirty days and the notice was given pursuant to Ill. Rev. Stat., ch. 80, sec. 6, the applicable portion of which states:

“In all cases of tenancy for any term less than one year, other than tenancy from week to week, where the tenant holds over without special agreement, the landlord may terminate the tenancy by thirty days’ notice, in writing, and may maintain an action for forcible entry and detainer or ejectment.”

On August 15, 1972, the defendants filed in the circuit court of Peoria County a verified complaint for a declaratory judgment and injunctive relief against the plaintiff, the City of Peoria, and the Director of the Department of Environmental Development of the City of Peoria which sought (1) compensating damages in the amount of the sum of rent paid to the plaintiff, (2) a mandatory injunction against the plaintiff directing him to repair the premises in a manner to meet the minimum requirements of the housing code, (3) a permanent injunction enjoining plaintiff from seeking eviction proceedings against the defendants, (4) a mandatory injunction against the Director of the Department of Environmental Development directing him to perform a thorough inspection of the premises and further directing him to report all violations of the Housing Code to the court, (5) a mandatory injunction requiring the Director of Environmental Development to continue accepting rental payments and to place them in escrow, and (6) reasonable attorney fees, court costs and other relief as the court might deem proper.

On August 17, 1972, the plaintiff filed an action which results in this appeal, namely a suit in forcible entry and detainer against the defendants. This suit was predicated upon the statutory provisions found in Ill. Rev. Stat. 1971, ch. 80, sec. 6. The defendants filed a motion to dismiss this action or in the alternative to have it consolidated with their previously filed suit for declaratory judgment and injunctive relief. The plaintiff filed an answer to this motion and also a motion for summary judgment which was supported by affidavit. The defendants filed a reply to the plaintiffs’ answer, and both parties filed additional affidavits in support of their various pleadings. Lastly, as far as the pleadings are concerned, the defendants filed an answer and set forth affirmative defenses to the plaintiff’s action in forcible entry and detainer.

On November 6, 1972, the circuit court of Peoria County denied the defendants’ motion to dismiss or consolidate and granted the plaintiff’s motion for summary judgment and possession of the premises in question. This appeal stems from this order of the trial court.

The defendants raise several issues in this appeal, the first of which is that the trial court erred in denying their motion to dismiss the forcible entry and detainer action, or in the alternative consolidating it with the previous action filed by them.

With this contention of the defendants we do not agree. Their motion to dismiss or consolidate was filed pursuant to Ill. Rev. Stat., ch. 110, sec. 48(c), which provides:

“48. Involuntary dismissal based upon certain defects or defenses. (1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleadings attacked the motion shall be supported by affidavit:
(a) * * *
(b) 6 * *
(c) That there is another action pending between the same parties for the same cause.”

The defendants’ motion to dismiss or consolidate on its face does not satisfy the statutory requirements in that it fails to identify any other pending action between the same parties for the same cause. Nor was this failure corrected by a supporting affidavit, which is understandable since it would have been impossible to do so. Section 48(c) of chapter 110, Ill. Rev. Stat., in order to become operative requires an identity of parties and causes between two actions before a motion for dismissal or consolidation can be found to be well taken. In the instant case no such identity is present since the parties are the plaintiff Harry Fred-man and the defendants Kent and Kathy Clore, while in the suit filed by the defendants we find the Clores as plaintiffs pitted against the defendants Harry Fredman, The City of Peoria, and the Director of the Department of Environmental Development for the City of Peoria. As to the identity of “causes” set forth in the two suits wé find no resemblance whatsoever. True that they both stemmed from the same rental agreement, but there the identity ceases. One suit, namely the one now before us, is an action in forcible entry and detainer which presents the issue as to right of possession of rented premises. The other is a class action in equity seeking compensatory damages, injunctive relief and attorney fees. The purpose of section 48 (c) of the Civil Practice Act is to foster orderly procedure by preventing a multiplicity of actions. (People ex rel. Lehman v. Lehman, 34 Ill.2d 286, 215 N.E.2d 806.) To have granted defendants’ motion to dismiss or consolidate would have resulted in a situation that would have presented such divergent theories and different prayers for relief that a most difficult if not impossible trial would have been presented to the trial court. We believe that the trial court correctly denied the defendants’ motion.

The defendants further contend that the public policy of the State of Illinois and the duty of every person is to provide and maintain a healthful environment and that every person has a right to such environment and in support of this contention cites the Illinois Constitution, 1970, article XI, sections 1 and 2, as well as the Municipal Housing Code of the City of Peoria and Ill. Rev. Stat., ch. 80, sec. 71. We quarrel not with this contention of the defendants. Our constitution does in fact set forth such a policy. We also recognize that the provisions of the Housing Code of the City of Peoria and the Landlord and Tenant Act cited by the defendants both provide for the protection of tenants from a retaliatory eviction should they complain to certain authorities as to violations of a building code by an owner. In examining the record we fail to find any evidence that the plaintiff was aware of the defendants’ complaints as to his violation of the Building Code in the City of Peoria, llie defendants in their pleadings aver that the defendant was aware of their complaints but a mere allegation is not sufficient to create a material issue of fact. Mere allegations or denials in pleadings controverted by affidavit are insufficient to create a genuine issue as to a material fact. (St. Louis Fire and Marine Insurance Co. v. Garnier, 24 Ill.App.2d 408, 164 N.E.2d 625.) The defendants’ argument that the plaintiff’s suit for possession is an act of retaliation presupposes that the plaintiff had knowledge of complaints as to building code violations. The only reference as to such awareness on the part of the plaintiff is found in the pleading of the defendants. Such allegations can only be considered as self-serving and are not sufficient to invoke the provisions of the retaliation provision contained in the Housing Code of the City of Peoria or in our state statutes.

The defendants further urge that if the rights they claim as tenants, to-wit, a healthful environment and freedom from retaliatory actions are not deemed to be a “special agreement” encompassed by Ill. Rev. Stat., ch. 80, sec. 6, then such statute is unconstitutional. We have already determined that there is no basis for the defendants’ charge of “retaliatory action” on the part of the plaintiff so it is unnecessary for us to consider this attack on the constitutionality of the statute.

In analyzing the argument of the defendants it becomes clear that they want this court to hold that in a forcible entry and detainer suit when no rent is claimed by the landlord the tenants may nevertheless raise equitable defenses in an effort to defeat the claim for possession. The defendants desire that this court extend the holding in Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, so as to permit equitable defenses in an action where no rent but only possession is claimed. In Spring our supreme court held that where the landlord claims rent due, the tenants claim for damages, resulting from a breach of implied warranty of habitability, can be raised to determine the issue of whether the tenant owes the landlord any rent. It should be noted that our supreme court specifically limited the application of the law as set forth in the case of Spring by stating:

“* * e [W]e make clear precisely what this case does not involve.’ It does not involve nor purport to adjudicate issues which might arise in an action based on notice given in accordance with any section of the Landlord and Tenant Act (Ill. Rev. Stat. 1969, ch. 80) except section 8, which is here specifically involved.”

We are concerned with an action based on notice given in accordance with section 6, not section 8, of the Landlord and Tenant Act and in view of the precise limitation set forth in Spring we deem the holding in that case inapplicable to the instant case and further consider the “limitation” as an admonition against extending the law as set forth in Spring to actions resulting from other sections of the Act.

For the reasons set forth we hereby affirm the trial court’s order denying the defendants’ motion to dismiss or consolidate and its further order granting plaintiff’s motion for summary judgment.

Affirmed.

DIXON, J., concurs.

Mr. PRESIDING JUSTICE STOUDER

dissenting:

I do not agree with the majority of the court. In my opinion the trial court was in error in its holding that the defense of retaliation is inappropriate in this forcible entry and detainer action. The final order issued by the trial court granting plaintiff’s motion for summary judgment states matters germane to the distinctive purpose of the proceedings are not raised. Although my colleagues address. their attention initially to the question of whether there is a basis for the defendants’ defense of retaliation, the basis for the defense does not become an issue until a determination is made as to whether the defense is procedurally appropriate.

According to section 5 of the Forcible Entry and Detainer Act (IU. Rev. Stat. 1971, ch. 57, par. 5), matters not germane to the distinctive purpose of the proceeding shaH not be introduced. The purpose of this summary statutory proceeding is to adjudicate rights to possession and the proceeding should not be impeded by collateral matters not directly connected with the question of possession. (Bleck v. Cosgrove, 32 Ill. App.2d 267, 177 N.E.2d 647.) Matters which are germane to the question of the litigants right to possession may be raised in these proceedings. (Rosewood Corp. v. Fisher, 46 Ill.2d 249, 263 N.E.2d 833.) In Rosewood, defendants raised defenses going to the validity and enforceability of the contracts upon which plaintiffs based their claim of right to possession. The court held these defenses were germane to the distinctive purpose of a forcible entry and detainer action. In Marine Park Associates v. Johnson, 1 Ill.App.3d 464, 274 N.E.2d 645, the court in a forcible entry and detainer action brought by the lessor, aUowed the lessee to raise a defense based on the Civil Rights Act of 1968 after the lessor refused to renew a lease on the apartment because of racial reasons.

In recent cases where a landlord has sought possession through a forcible entry and detainer action based on failure of a tenant to pay rent, the Illinois Supreme Court has held the tenant may raise issues pertaining to the question of whether the tenant owes rent which is due and unpaid. (Jack Spring, Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, and Peoria Housing Authority v. Sanders, 54 Ill,2d 478, 298 N.E.2d 173.) The defenses raised were based on allegations of breach of express covenant to repair, breach of implied warranty of habitability and an unconstitutional rental policy. The question of whether rent is owed is germane to the question of who has the right to possession. Since plaintiff does not base his right to possession on faUure to receive rent from defendants, the defense raised in the present case is different from those in the above cases. Nonetheless, I believe it should be considered germane since it relates to who has the superior right to possession.

Defendants claim the notice to vacate sent to them by plaintiff was in violation of section 16 — 118 of the Housing Code of the City of Peoria. That section reads:

“Sec. 16 — 118 Retaliatory Eviction by Owner
No owner or lessor shall evict or cause to evict or terminate the tenancy of a renter or lessee solely as retahation because that renter or lessee complains to the City of Peoria or the Circuit Court of Peoria County against the owner charging the owner with violation of this Code or with violation of any warranty of habitability accruing to the rentor or lessee from the owner.
The fact that the rent or lease consideration of the renter or lessee is not more than thirty (30) days delinquent at the time the owner gives notice of eviction or termination of lease or rental and the fact that, within six (6) months prior to the notice of eviction or termination of the lease or rental, the renter or lessee has not been convicted of creating a nuisance at the dwelling or dwelling unit from which eviction is sought and the renter or lessee has not been convicted of violation of sections 16 — 116 and 16 — 117 of this Code, shall be prima facie evidence that the eviction or termination of lease or rental by the owner is solely retaliatory because that renter or lessee has complained against the owner charging him with violation of this Code;
Any person convicted of violating this section shall be fined not less than two hundred dollars ($200.00) nor more than five hundred dollars ($500.00).”

Section 71 of the Landlord and Tenant Act (Ill. Rev. Stat. 1971, ch. 80, par. 71) recognizes a similar right of a tenant to be free from retaliatory actions by a landlord. This section reads:

“It is declared to be against the public policy of the State for a landlord to terminate or refuse to renew a lease or tenancy of property used as a residence on the ground that the tenant has complained to any governmental authority of a bona fide violation of any applicable building code, health ordinance, or similar regulation. Any provision in any lease, or any agreement or understanding, purporting to permit the landlord to terminate or refuse to renew a lease or tenancy for such reason is void.”

The historical note following this section in the Illinois Annotated Statutes (S.H.A. ch. 80, par. 71) states that the Act is “to protect the right of tenants to complain of violations of governmental regulations.” When a defense raised is based on rights set forth in a statute or code section which limit a landlord’s right to terminate a lease and regain possession, this is surely related to a landlord’s possessory rights. Although there is an absence of Illinois cases based on similar fact, there is other judicial authority relating to the problem facing the court under similar eviction statutes in other states. In Edwards v. Habib (1968), 397 F.2d 687, cert, denied (1969), 393 U.S. 1016, the court held landlords could not use eviction statutes to retaliate against tenants invoking their rights under housing and sanitation codes of the District of Columbia. The landlord had given the tenant who rented on a month to month basis, a notice to vacate after the tenant complained to the District of Columbia housing officials of violations of the code which the landlord refused to repair. The court said the code impliedly effected a change in the rights of landlords and tenants so that retaliation constituted a defense in an action of eviction. The Supreme Court of California in Schweiger v. Superior Court of Alameda County, 3 Cal.3d 507, 90 Cal. Rptr. 729, 476 P.2d 97, found a tenant could defend an unlawful detainer action on grounds that the landlord increased rent and commenced an action for eviction in retaliation for a tenant’s demand that certain repairs be made. The court stated, “If wé deny tenants a defense against retaliatory eviction in unlawful detainer actions, we lend the exercise of judicial process to aid landlords in punishing those tenants with the audacity to exercise their statutory rights.”

It is in the public interest to require a landlord to maintain leased premises in a habitable condition and tenants have the right to complain of code violations. The effect on this statutory right would be to treat it as a nullity if landlords were allowed to invoke a forcible entry and detainer action whenever a tenant complains of code violations. It is hard to imagine how a defense aUeging that the landlord terminated a lease and is seeking possession in retaliation and in violation of a statute, can be said to be collateral to the distinctive purpose of a forcible entry and detainer action. The defendants are merely seeking to assert their paramount right to possession by stating facts upon which they base their right. It is maintained by my colleagues that to permit such defense would be an extension of the holding in Jack Spring Inc. v. Little, 50 Ill.2d 351, 280 N.E.2d 208, since plaintiff’s claim to possession is not based upon failure to pay rent. The statute does not require possession to be based upon rent before a germane matter can be introduced by defendants. Also, in cases such as Rosewood, supra, and Marine Park, supra, possession is claimed with no question of rent being involved. Furthermore, I do not believe the Illinois Supreme Court in Spring set forth an admonishment against application of the law allowing germane defenses in different factual situations, rather, it merely stated the court was not adjudicating issues other than the precise issue before it. In fact, it seems to me that Spring requires the defenses raised in this case be permitted in a forcible entry and detainer action. Otherwise the landlord’s duties and obligations may be easily and simply evaded, thereby nullifying the holding in Spring. In this connection it should also be observed the plan contemplated by Peoria’s ordinance for payment of rent to the housing administration obviates some of the problems and objections raised in the dissenting opinions in the Spring case. The tenant is required to make the rental payment agreed upon during the continuance of the controversy and cannot arbitrarily decline to make payments to anybody on the excuse the property is in poor condition.

Both the trial court and the majority determined retaliation was an inappropriate defense, nevertheless both ruled there were no facts relating to retaliation presented in the pleadings and affidavits. Having found the defense not germane, it is difficult to understand how either could consider the sufficiency of facts constituting retaliation. The conclusion reached by the majority which proclaims an absence of facts showing plaintiff was aware of the defendants’ complaints of his violation of the Peoria Building Code is contrary to my belief. The defendants started making rental payments to the Director of the Department of Environmental Development pursuant to section 16 — 113.5 on June 13, 1972. However, the plaintiff did not give defendants notice to vacate until a month later on July 13, 1972. It is stated in the affidavit of Frank E. Naven, Director of the Department of Environmental Development of the City of Peoria, that he notified plaintiff on June 13, 1972, the future rental payments on defendants’ apartment would be held in escrow until all violations had been corrected. In an affidavit by defendant, Kent Clore, he states in June, 1972, Mr. Harry Fredman stated more than once that no repairs would be made until defendants moved out. There is no denial by plaintiff of these facts nor does he at any time state he was not aware of the complaints made by defendants. In fact, he states in his affidavit notice was not initiated for retaliatory reasons but in preparation to upgrade the condition of the premises. No facts are stated in the affidavit and therefore, there is no basis to determine what his intention was for such plans for upgrading. The affidavit falls short of the requirements for an affidavit set forth in the Illinois Supreme Court Rules (Ill. Rev. Stat. 1971, eh. 110A, sec. 191), and therefore, could not in any event form a basis for summary judgment. Also, plaintiff’s affidavit by attempting to negate an inference of retaliation is an indication that plaintiff knew of defendants’ complaints of building code violations. Section 16— 118 of the Peoria Housing Code cited above, sets the requirements for establishing prima facie evidence of retaliation. Applying those requirements to this case; first, the defendants are not more than 30 days delinquent in rent at the time the owner gave notice of termination, and second, the defendants have not been convicted of creating a nuisance at the dwelling nor convicted of section 16 — 116 (Reckless Criminal Damage by Occupant) nor 16 — 117 (Wilful Criminal Damage by Occupant). Defendants have alleged these facts in tire pleadings and affidavits and it therefore seems to me a question of fact on the issue of retaliation is raised. Due to the fact it is not clear whether the trial judge ruled on the question of whether there were sufficient facts to constitute the defense of retaliatory eviction, I would reverse and remand directing the court to consider the defense.

FinaUy, I believe the trial court erred in denying defendants’ motion to consolidate this action with the prior action initiated by the defendants. The majority bases its affirmance of the denial on section 48, Subsection 1 (c) of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 48, subpar. 1 (c)). Only a motion to dismiss is governed by this section. A different section of the Civil Practice Act, section 51 (Ill. Rev. Stat., ch. 110, par. 51), governs a motion to consolidate. It provides, * ° actions pending in the same court may be consolidated, as an aid to convenience, wherever it can be done without prejudice to a substantial right.” Under the Civil Practice Act, consolidation has been effected where parties are not the same and where the plaintiff in one action is the defendant in the other. (See, 3 Nichols Illinois Civil Practice, sec. 2530, at 144.) It is apparent the subject matter of the suits and the rights of plaintiff and defendants are the same in both actions. Since the two actions contained common questions of law and fact, it would be most convenient for the court to hear and determine the cases at the same time. Prejudice to a substantial right of a party is not likely to occur. If retaliation is an inappropriate defense as considered by the majority of the court, the necessity of consolidating the actions becomes even more apparent. Although consolidation is in essence discretionary with the court, I believe the court should have granted the motion to consolidate. However, standing alone, I do not consider such denial as reversible error.


source: Caselaw Access Project

author: Mr. JUSTICE SCOTT Mr. JUSTICE STOUDER

license: Public Domain

text:
    Norton Kent Clore et al., Individually and On Behalf Of All Others Similarly Situated, Plaintiffs-Appellants, v. Harry Fredman et al., Defendants-Appellees.
    (No. 73-80;
    Third District —
    August 24, 1973.

      Rehearing denied September 17, 1973.

      STOUDER, J., concurring in part and dissenting in part.
    Whitney D. Hardy, of Land of Lincoln Legal Assistance Foundation, of Danville, for appellants.
    Herbert L. Fredman and Jeffrey J. Estes, both of Peoria, for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

We have previously considered one aspect of this appeal in the case of Fredman v. Clore, ante, p. 903. In that case we affirmed the action of the circuit court of Peoria County in refusing to dismiss the action of forcible entry and detainer instituted by the landlord Fredman against the Clores, the tenants, and also the trial court’s refusal to consolidate the forcible entry and detainer action with a class action for declaratory judgment and injunctive relief filed by the Clores. We also affirmed the trial court’s action in granting the landlord Fredman’s motion for summary judgment in his favor against the Clores in the forcible entry action.

An adequate statement of the facts and proceedings which resulted in this appeal and in the appeal in the case of Fredman v. Clore, ante, p. 903 is set forth in the latter case.

We now have before us an appeal which raises not only the issues heretofore decided by us but in addition presents an additional issue.

This additional issue stems from Count II of the complaint of the Clores hereinafter referred to as the plaintiffs. In Count II the plaintiffs, individually and on behalf of other tenants occupying the apartment building in question, complain of the City of Peoria and Frank E. Naven, director of the Department of Environmental Development, by alleging that there has not been a compliance with the Housing Code of the City of Peoria in regard to making adequate inspections of the rental premises in question and that further after such inspections as were made there was a failure to adequately report violations. The plaintiffs alleged that Count II of their complaint is brought in the nature of an action in mandamus and they prayed that the Department of Environmental Development of the City of Peoria be ordered to continue accepting plaintiffs’ rent and that the same be placed in escrow until further order of court. It was also prayed that the defendants be ordered to conduct a thorough inspection of the apartment building and that a determination be made whether the premises meet the minimum standards set forth in the Housing Code of Peoria and that such report of inspection and determination be filed with the trial court.

We should note that the plaintiffs had summons served on the landlord Fredman, the defendant Frank E Naven, Director of the Department of Environmental Development, and Robert O. Wright, City Manager of the City of Peoria.

The trial court also in this action granted the landlord Fredman’s motion for summary judgment. A like motion for summary judgment filed on behalf of Frank E. Naven was granted and a motion to quash the summons served on Robert O. Wright, the City Manager, was granted on the grounds that he was not a proper party to receive service of process for the City of Peoria, nor was he properly made a party to the lawsuit.

It is this action of the trial court that the plaintiffs complain of and which we are concerned with in this appeal. It is the contention of the plaintiffs that the trial court erred in refusing to consolidate the instant cáse with the case of Fredman v. Clore, ante, p. 903. As we have stated, this court has ruled otherwise and therefore we need not further consider this contention. The plaintiffs also argue that the plaintiffs stated a prima facie case against all defendants and that this cause should be remanded to the trial court for further proceedings.

The plaintiffs present several arguments in opposition to the defendants’ contention, to-wit, that plaintiffs do not have the requisite standing pursuant to chapter 24, section 11 — 13—15 of the Illinois Revised Statutes to maintain this action; that an action in mandamus will not lie where the governmental functions sought to be performed have already been performed; that the plaintiffs have failed to exhaust the administrative remedies available to them under the local ordinances and that there was a complete failure on the part of the plaintiffs to present to this court anywhere in their brief any issue relating to the decision of the trial court in regard to Count II and therefore there has been an abandonment on appeal of the purported causes of action sought to be raised therein and further there has been an abandonment of any alleged error by the trial court in regard to Count II.

As to the defendant Fredman we need not in this opinion concern ourselves as to the correctness of the trial court’s ruling when his motion for summary judgment was granted. We have already held that the trial court’s action in Fredman v. Clore, ante, p. 903, should be affirmed and to now say that the granting of his motion for summary judgment in the instant case was erroneous would not only be inconsistent but would be contrary to the reasoning set forth in our prior opinion concerning these parties, which was derived from the same factual and procedural situation.

As to the defendant Naven and City Manager Robert O. Wright, we concur in their contention that the plaintiffs’ failure to present to this court any issue in regard to the trial court’s action as to Count II of their complaint constitutes an abandonment of any alleged error by the trial court.

The plaintiffs make no mention in their brief of any error relating to Count II of their complaint. An examination of their brief in detail, i.e., “The Nature of the Case, Points and Authorities, Issues Presented and Argument,” fails to disclose any assignment of error on their part as to the trial court’s action on Count II which sought relief against the defendant Naven and City Manager Wright. It is also to be noted that the plaintiffs’ notice of appeal is of a general nature and fails to specify any particular error. Ordinarily the failure to urge or discuss an assignment of error will be considered an abandonment or waiver thereof, and an assignment of error will be regarded as waived and no consideration will be given to it where it is not argued or briefed. See Appeal and Error, 3 I.L.P., sec. 852, p. 110, and City of Lawrenceville v. Maxwell, 6 Ill. 42, 126 N.E.2d 671.

There has been a failure of the plaintiffs to comply with Supreme Court Rule 341 (Ill. Rev. Stat., ch. 110A, sec. 341) in that the rule specifically requires an appellant to set forth in his brief a statement of the issue or issues presented for review. To hold that failure to comply with this requirement will constitute an abandonment of an assignment of error may at first blush appear to be a harsh sanction, but upon reflection such a result should naturally follow, for to hold otherwise would seriously prejudice the appellee and be quite unfair to the trial court and the reviewing court. Neither the appellee or this court should have the burden of speculating as to what possible errors may have been committed. In the instant case the defendant Naven and the City Manager Wright have no way of knowing what issues they are confronting on appeal and thereby they have been deprived of the right to respond to arguments and authorities which should have been briefed by the plaintiffs. Appellees are not required to be placed in a position where they must be ready to present arguments and authorities to this court on every conceivable error that may have occurred in the trial court. It is fundamental that the appellant can claim error but if he does so he must comply with Supreme Court Rule 341, for failure to do so would be doing violence to the principles of judicial review.

In the reply brief filed by the plaintiffs they call upon this court to examine the record in order to establish a determination as to the issues which they assign as error. Suffice to say neither this court nor the defendant-appellees should be required to ponder over the record and then indulge in conjecture in order to establish issues which in the first instance should have appeared in the plaintiff-appellant’s brief. What occurred in the trial court may well be interpreted as a valid issue by one party while another might consider such a contention frivolous and without merit.

It is our opinion that the plaintiffs have effected a total abandonment and waiver as to any alleged error committed by the trial court in its rulings upon Count II of their complaint.

For the reasons set forth the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

DIXON, J., concurs.

Mr. JUSTICE STOUDER

concurring in part and dissenting in part:

If, as the majority holds, the trial court acted properly in dismissing Count I of the complaint, I agree that Count II was also properly dismissed, as the majority holds in this case. If Count I was improperly dismissed, as I believe it was, then it would follow that Count II should not have been dismissed since it is dependent upon and supplemental to Count I. Whether any relief could or should have been afforded by Count II depends on whether or not plaintiff was entitled to retain possession of the premises.

The majority holds the issues raised by Count I of the complaint and the errors urged respecting the trial court’s dismissal of such Count have been conclusively disposed of by the reasoning in Fredman v. Clore, ante, p. 903. In such collateral case the majority of the court determined three issues; first, since the action was one for forcible entry and detainer, the defense of retaliation or ordinance violation was not a proper defense in such an action; second, as a matter of law the pleadings and affidavits were insufficient to infer either retaliation or violation of the ordinance; and third, the forcible entry and detainer action, even though filed subsequent to this action, should neither have been dismissed, heard after this action, or consolidated with this action. Since I dissented from the views of the majority in the collateral case referred to, I am also in disagreement with the majority of the court in this case to the extent the decision in the collateral case is relevant, pursuasive or controlling to the issues raised in this case. I should like to note, however, that the reasoning employed in the collateral case is not necessarily applicable to this case even though the result, i.e. granting plaintiffs claim that he is entitled to possession, does preclude a granting of part of the relief sought by Count I in this case, namely, the enjoining of defendant from instituting or maintaining a forcible entry and detainer action. Whether defendant’s proposed defense in the collateral action was germane to the special purpose of a forcible entry and detainer action is not necessarily the issue to be determined where the tenant, as in this case, seeks to prevent his eviction in an independent and prior equitable action. Also, it may well be that whether the pleadings and affidavits disclose facts sufficient to sustain the defendant’s cause of action, as in the instant case, presents a different posture so far as the facts are concerned in determining whether the defendant has any rights depending upon the application of the doctrine of retaliation or the violation of a city ordinance. Lastly, the fact the majority believes its decision in the collateral case is conclusive on the issues raised in this case would seem to add additional support to my position the cases should have at least been consolidated pursuant to section 51 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 51) or alternatively, this case should have been disposed of first as being the case filed first in point of time.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    Robert Kimpling et al., Plaintiffs-Appellees, v. Ross M. Canty, Admr. of the Estate of Patricia Marie Sitarski, Deceased, et al., Defendants—(Travelers Indemnity Company et al., Intervenors-Appellants.)
    (No. 11880;
    Fourth District —
    August 23, 1973.
    Bayler & Noetzel, of Peoria, (Richard G. Leiser, of counsel,) for appellants.
    Moehle, Moehle, Reardon & Associates, of Washington, (Melvin O. Moehle, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

Travelers Indemnity Company and Kimpling, Inc., intervenors-appelIants, appeal from an order of the circuit court denying their request that the defendant-debtors of the plaintiff Robert Kimpling place their judgment drafts in escrow and that the attorneys for the intervenors be authorized to execute all releases and/or satisfactions of judgment in behalf of the intervenors in their Petition for Order Protecting Lien. On October 10, 1969, plaintiff Kimpling, who was an employee of Kimpling, Inc., was involved in an auto accident with Patricia Marie Sitarski. Sitarski, who was a member of the religious order of the Daughters of St. Francis of Assisi, died as a result of that accident and plaintiff sustained severe injuries. Plaintiff as an employee filed an application for adjudication of claim with the Illinois Industrial Commission on August 11, 1970. Subsequently, plaintiff brought a common law negligence action against the estate of Sitarski and the Daughters of St. Francis of Assisi. On December 17, 1971, plaintiff recovered a judgment against the defendants in the amount of $55,000. Travelers Indemnity Company as the insurer of the Daughters of St. Francis was liable for $30,000 under its policy as a result of that judgment. This was the extent of the liability coverage under the terms of the policy. The Workmens Compensation application was, and so far as this record shows it, still pending.

In November 1970, Travelers Indemnity Company, as the workmen’s compensation carrier covering Kimpling, Inc., was granted leave to file a petition to intervene to enforce lien granted to an employer under section 5(b) of the Illinois Workmen’s Compensation Act (Ill. Rev. Stat. 1969, ch. 48, sec. 138.5(b)). The petition alleged that Travelers Indemnity Company had paid to the plaintiff compensation benefits in the amount of $4550 in addition to medical, surgical, and hospital bills totaling $7,048.43. Following the judgment in favor of plaintiff in the third-party action, the intervener filed a petition for an order protecting its lien. Plaintiff Kimpling filed a petition for pro rata share of costs, expenses, and attorney’s fees and assessment of additional charges in interest against the intervenor. At the hearing, the intervenors requested the court to mention in his written order that the employer-intervenor would have a credit as to future compensation payments pursuant to any future ruling by the Industrial Commission. The trial court noted that matter concerned an issue that might properly be raised in a declaratory judgment proceeding.

The court ordered Travelers Indemnity Company to pay plaintiff Kimpling the sum of $30,000 for the limit of its liability under the policy of the insurance issued to the Daughters of St. Francis; plaintiff Kimpling to pay to the employer the amount of workmens compensation benefits received from the employer in the sum of $11,733.53; the employer to pay its pro rata share of costs and reasonably necessary expenses to the plaintiff Kimpling in the sum of $251; and the employer to pay to plaintiffs attorney the sum of $3,911.18. In addition, plaintiff Kimpling’s request for reasonable attorney fees to be assessed against Travelers Indemnity Company was denied.

On appeal, intervenors-appellants contend that they should be granted a right to credit a recovery from the third-party tortfeasor against the intervenors’ obligation to pay future workmen’s compensation benefits to the plaintiff Kimpling and that they are entitled to a rebate for excess attorney fees paid to plaintiffs attorney. The first issue (right to credit, etc.) is not before this court on appeal since it was not determined by the trial court.

The Workmen’s Compensation Act provides that an employee who has received compensation under the Act is required to reimburse an employer from any recovery the employee receives from a third party legally responsible for the employee’s injuries. (Ullman v. Wolverine Ins. Co., 48 Ill.2d 1, 269 N.E.2d 295.) A lien upon a recovery by an employee for the amount of benefits is provided for the employer. In addition, the statute provides for attorney’s fees to be paid by the employer. According to section 5(b):

“Out of any reimbursement received by the employer pursuant to this Section, the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement.”

The intervenors-appellants interpret the phrase “in the absence of other agreement” to mean in the absence of an express agreement between an employee or his attorney and the intervenor. Plaintiff Kimpling contends that this phrase means in the absence of an agreement between the employee and his attorney. Here, the plaintiff-employee agreed to pay his attorney one-third of the judgment received in the third-party action on a contingent fee basis. This issue was considered in Railkar v. Boll, 125 Ill.App.2d 203, 260 N.E.2d 851, where the plaintiff-employee’s attorney claimed that he was entitled to 50% of the judgment recovered in a third-party action because of his contingent fee agreement with the plaintiff. The court stated;

“We agree with interveners’ [sic] contention that the provisions of the Workmen’s Compensation Act for a 25% fee provide the only basis for recovery of plaintiff’s attorney’s fees as against the employer. There was no contractual relationship between the employee Railkar or his attorney Howard and the interveners, [sic] The inclusion of the provision of payment by the employer of a pro-rata share of costs, together with attorney’s fees in section 5 of the Workmen’s Compensation Act as amended in 1957, constitutes the only basis of the employer’s liability to share the employee’s burden of expenditures for recovery against a third party. [Citation.] * * 125 Ill.App.2d at 203.

Railkar is the only Illinois case in which this issue has been considered. The legislature has provided for an employer to pay part of the necessary costs including attorney’s fees in order to prevent an unjust enrichment on the part of the employer who has a right of reimbursement from the amount recovered by the employee. (Reno v. Maryland Casualty Co., 27 Ill.2d 245, 188 N.E.2d 657.) In Hardwick v. Munsterman, 15 Ill.2d 564, 155 N.E.2d 638, the court referred to section 5 of the Workmen’s Compensation Act noting that the Act as amended in 1957 provided “that a proportionate amount of the plaintiff-appellee’s costs and attorney’s fees (the latter limited to 25% of the recovery or settlement) be borne by the employer out of his reimbursement figure.” Considering the context in which it is used, the phrase “in the absence of other agreement” must refer to an agreement between the employer-intervenor and the employee or his attorney. The phrase immediately precedes and explains when “the employer shall pay such attorney 25% of the gross amount of such reimbursement.” Therefore, the portion of the trial court order providing for payment of one-third of $11,733.53 as attorney’s fees is reversed. The remaining portion of the judgment order is affirmed.

Plaintiff filed a motion to dismiss, which was taken with the case. The motion asserted that the intervenors’ action in paying over the judgment and executing a release of judgment extinguished the employer’s and employer’s insurer’s lien over the proceeds of the judgment. The motion to dismiss is denied.

The cause is remanded with directions to assess attorney s fees on the basis of 25% of $11,733.53.

Affirmed in part, reversed in part, remanded with directions.

TRAPP and SIMONS, JJ., concur.


text:
    William V. Pye, Plaintiff-Appellee, v. Jack Marco, As Acting Director of the Environmental Protection Agency, et al., Defendants-Appellants.
    (No. 12319;
    Fourth District —
    August 23, 1973.

      Rehearing denied September 26, 1973.

      William J. Scott, Attorney General, of Springfield, (John W. Russell, Special Assistant Attorney General, of counsel,) for appellants.
    James M. Drake, of Springfield, for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

The named state officers, defendant-appellants, appeal the issuance of a temporary injunction by the circuit court of Sangamon County enjoining them from approving charges seeking the discharge of the plaintiff from his employment by the state Environmental Protection Agency or from removing him from the payroll. We reverse.

Essentially, there are no factual issues in this interlocutory appeal. However, a somewhat detailed and chronological statement of the facts and circumstances attendant upon this litigation is necessary for an understanding of the case.

Plaintiff William V. Pye was appointed to his position with the Environmental Protection Agency in February of 1972. His position is under “jurisdiction B” of the Personnel Code being a position to which persons must hold appointment upon the basis of merit and fitness. (See Ill. Rev. Stat. 1971, ch. 127, par. 63(b) 104(a).) No question is raised as to the appointment and the classification.

On June 18, 1973, the defendant Marco, as acting director of the Environmental Protection Agency, requested the defendant Jones, as director of personnel, to take such steps as would be necessary to immediately terminate the employment of Pye. This request was by letter and some seven pages of charges or reasons for discharge accompanied the request. Essentially, it was asserted that the plaintiff did not possess the management abilities required of a division manager in the Environmental Protection Agency. The plaintiff was then manager of the Land Pollution Control Division and the Water Pollution Control Division of the Environmental Protection Agency.

These charges were “approved”’ by the director of personnel and the plaintiff was given notice thereof and was given notice of “separation-discharge for cause” effective June 19, 1973.

On June 20, 1973, the plaintiff filed an application for a temporary restraining order and a temporary injunction seeking an order of the circuit court, without prior notice to the defendants and without bond, restraining and enjoining the defendants from discharging the plaintiff pending a determination of the legal and alleged constitutional issues set forth in the seven page verified complaint. The requested temporary restraining order was issued on the date of the filing of the complaint. It was issued without notice and without bond.

On June 20, 1973, the defendants sought and obtained a modification of the temporary restraining order. By its terms, the modification permitted the defendants to grant plaintiff a “preliminary administrative hearing” on the charges for discharge and to relieve the plaintiff of his duties but to continue him on the payroll. In the context of this record the so-called “prehminary administrative hearing” was to be a hearing to determine whether the defendant director of personnel was to approve the charges. Thus, upon the defendants making such a motion we take it to be conceded that the prior act of approval of the charges was vacated or withdrawn. We so hold. We make such observation to indicate that the director of personnel could not have a “preliminary administrative hearing” to determine whether he should approve charges which, in fact, he had previously approved.

The record before us includes a transcript of a purported administrative hearing held on July 12, 1973. A hearing officer announced that the hearing was to be pursuant to the court order modifying the temporary restraining order and that it was being held to allow plaintiff “to respond to charges served upon him”. The hearing officer then announced that he would accept any evidence, comments or opinion that any interested party might wish to offer. From that beginning, the hearing developed difficulties with reference to procedure and substance and ultimately the so-called “prehminary administrative hearing” terminated. The plaintiff returned to the circuit court of Sangamon County. On July 13, 1973, the court entered an order finding that the hearing, a transcript of which was before the court, did not satisfy constitutional requirements of due process. The court then ordered the issuance of a temporary injunction enjoining the defendant state officers from approving any charges for discharge of the plaintiff. Further, the defendants were enjoined from removing the plaintiff from the payroll until the further order of the court. The interlocutory appeal we now consider is from that order.

The parties have discussed the requirements attendant upon dismissal from public employment. We are urged to conclude that the minimal requirements of substantíve and procedural due process are not found in the applicable statutory provisions of the Personnel Code nor in the rules of the Department of Personnel. The parties have likewise discussed the requirement in the area of public employment that termination of protected employment must comport with due process. It is urged that the following cases are applicable to this proceeding: Board of Regents of State Colleges v. Roth, 408 U.S. 564, 33 L.Ed.2d 548; Morrissey v. Brewer, 408 U.S. 471, 33 L.Ed.2d 484; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287; Perry v. Sindermann, 33 L.Ed.2d 570; and Connell v. Higginbotham, 403 U.S. 207, 91 S.Ct. 1772, 29 L.Ed.2d 418.

We hold that the minimal standards for termination of public employment as outlined in the foregoing cases are found in our statutory provisions.

Illinois Revised Statutes 1971, chapter 127, paragraph 63(b)111, provides that no officer or employee under jurisdiction B shall be removed or discharged except for cause upon written charges approved by the Director of Personnel and after an opportunity to be heard in his own defense if he makes written request to the Civil Service Commission within 15 days after the serving of written charges upon him. Paragraph 63(b) 108, chapter 127, Ill. Rev. Stat. 1971, provides that the Director of the Department of Personnel shall prepare and submit to the Civil Service Commission certain proposed rules and that if such rules are not disproved within 30 days after submission, they shall become effective and have the force and effect of law. Certain rules and regulations have been adopted pursuant to this procedure and those rules and their inteipretation seem to be at the root of the difficulty in this case.

In substance, the rules seem to contemplate that upon receipt of approved charges for discharge, the employee shall leave the premises, all salaries and benefits of the employee shall be stopped, and that he may “appeal” to the Civil Service Commission, provided that such “appeal” is requested in writing within 15 days of receipt of such approved charges. Thus, it would appear that the plaintiff is correct in his contention that the rules provide for discharge upon receipt of the approved charges and prior to hearing to determine the validity of and an evidentiary basis for such charges. The “appeal” could result in reinstatement in the event of success by the employee.

It is axiomatic that the authority of an administrative agency or department to adopt rules and regulations is limited by statutory language under which the rules are to be adopted. To the extent that any such rule, although adopted in conformity with the rule making procedure, is in conflict with the statute, it is invalid. In this case, the statute says clearly and explicitly that no officer or employee shall be removed or discharged except for cause and after an opportunity to be heard in his own defense if he requests such a hearing. The rules cannot detract from that statutory right.

Thus, the approval of charges by the director of personnel does not, as of the moment of that approval, constitute the discharge of an employee under jurisdiction B. Discharge comes only after a hearing in conformity with the cited statutory provisions. In this connection, we note the authority of the appointing agency to suspend for 30 days and the authority of the Civil Service Commission to suspend for an additional time period. We also note that the final administrative decisions of the Civil Service Commission are subject to the provisions of the Administrative Review Act by reason of Ill. Rev. Stat. 1971, ch. 127, par. 63(b)111(a).

In view of the foregoing, the plaintiff did have and still has adequate administrative procedures available to him to determine the evidentiary basis for and the sufficiency of the charges seeking his removal.

The circuit court of Sangamon County was in error in issuing a temporary injunction upon the facts and circumstances of this case. Its action in so doing is reversed and this cause is remanded to that court with directions to dismiss the complaint for want of equity. The motion for stay of the injunction taken with the case need not be considered.

Reversed and remanded with directions.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE UNVERZAGT

text:
      In re Application of County Collector of Lake County—(Jay Drobnick, Appellant.)
    (No. 72-90;
    Second District —
    September 6, 1973.

      Mark Drobnick, of Waukegan, for appellant.
    Frank M. Daly and William R. Stanczak, both of Waukegan, for appellee.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

This action was brought by the Foss Park District seeking to have a tax sale judgment and order of sale against certain parcels of real estate vacated and the tax sale certificates cancelled. The court below entered such an order from which this appeal is taken. We affirm.

In 1968 the Foss Park District filed its petition to condemn certain parcels of real estate, title to which was in the First National Bank of Waukegan as trustee under Trust No. 616, and to acquire fee simple title thereto for park purposes and uses. A jury subsequently entered a verdict of just compensation to be made to the owner etc. of the parcels in the amount of $75,202. The trial court entered judgment on the jury's verdict. After denial of defendant’s post trial motion, the defendant appealed to this court. On July 6, 1970 this court affirmed the judgment of the trial court, and on July 30, 1970 denied defendant’s petition for rehearing. (Foss Park District v. First National Bank of Waukegan (1970), 125 Ill.App.2d 276, 260 N.E.2d 474.) The Illinois Supreme Court denied defendant’s petition for leave to appeal. The United States Supreme Court denied certiorari on April 19, 1971 (402 U.S. 907), and denied rehearing on June 1, 1971 (402 U.S. 1013).

On May 6, 1971, the mandate of this court was issued to the clerk of the trial court. On July 29, 1971, the Foss Park District deposited the amount of the judgment with the county treasurer and on August 4, 1971, the trial court entered the order vesting fee simple title in the Foss Park District to the parcels taken. The defendant appealed from that order and the trial court was again affirmed. Foss Park District v. First National Bank of Waukegan (1973), 9 Ill.App.3d 560, 292 N.E.2d 584.

During the above described litigation, the general taxes on the subject parcels were not paid. Taxes were extended and levied against the property, and application for judgment and sale as to each parcel was made and entered.

The property in question was sold on November 18, 1969 and November 19, 1969 to one Jay Drobnick, who alleges that he is the owner of the tax sale certificates. Drobnick subsequently paid the taxes for the years 1969 and 1970. Drobnick served the Foss Park District with a notice stating that he would file a petition in this captioned matter praying that the court order tax deeds to issue conveying the property to him if the Foss Park District did not redeem before November 18, 1971.

On October 13, 1971, the Foss Park District filed its petition to vacate and set aside the order of sale and to cancel the tax certificates. A hearing was held on that petition, and the trial court entered an order vacating and setting aside the tax sale certificates and cancelling the same. Drobnick, the tax buyer, takes his appeal from that order.

Defendant Jay Drobnick is not one of the defendants in the eminent domain proceeding.

Defendant contended in the trial court that the park district had not sought a fee simple title to the land but only sought to acquire a base or determinable fee for golf course purposes and on cessation of that use the estate expires. The most recent appeal resolved this point against the defendant. Foss Park District v. First National Bank of Waukegan (1973), 9 Ill.App.3d 60, 292 N.E.2d 584.

Defendant further contends that the depositing of the condemnation award with the county treasurer did not terminate his right as a tax buyer to obtain a tax deed. We resolve this issue in favor of the plaintiff.

The case of Board of Junior College District 504 v. Carey (1969), 43 Ill.2d 82, 250 N.E.2d 644, is controlling as to the question before this court. The court there held that section 27(a), an amendment to the Revenue Act of 1939 (Ill. Rev. Stat. 1965, ch. 120, par. 508(a)) was unconstitutional. While that section is not an issue here, the comments of the court are directly applicable to the factual situation before us. The court stated that once the petition for condemnation is filed, and when the compensation award is determined and paid or deposited,

“* * * the title which passes to the condemnor, by operation of law, relates back to the date the petition was filed. [Citations.]
* * * Accordingly, the rights of the condemning Board of Junior College to the parcels and the rights of the appellants as to the land’s valuation were fixed as of the time of the filing of the eminent domain petition, and though the Board’s right to title vested when the award was deposited, the Board’s title is deemed to have been acquired on the date of the filing of the petition. (43 Ill.2d 82, at 85.)
* * * Prior to the invalid 1963 amendment to the Revenue Act discussed, Section 28.1 of the Revenue Act, as is relevant, provided that whenever fee-simple title to real property is taken for a tax-exempt use, such property shall be exempt from taxes from the date of the vesting of title.’ (Ill. Rev. Stat. 1961, ch. 120, par. 509.1.) In Public Building Com. of Chicago v. Continental Illinois Nat. Bank and Trust Co., 30 Ill.2d, 115, we construed this provision to mean that where there is a taking of title under eminent domain, the date of the filing of the condemnation petition is intended to be the termination date for liability for taxes on the land, and, therefore, general real-estate taxes for the year in which the petition is filed are to be prorated as of the date of the filing of the petition.
The appellants are therefore Hable for 1965 real-estate taxes on the tracts taken, prorated as of October 13, 1965, the date of the filing of the condemnation petition, and, as has been seen, they are not hable for any portion of the 1966 real estate taxes assessed against the parcels taken.” 43 Ill.2d 82, at 87.

See also Chicago Park District v. Downey Coal Co. (1953), 1 Ill.2d 54, 115 N.E.2d 223; and City of Chicago v. McCausland (1942), 379 Ill. 602, 41 N.E.2d 745.

In résumé, in the case before us the petition to condemn was filed July 23, 1968. Over a year later, on November 18 and 19, 1969, Drobnick purchased the property in question at a tax sale and subsequently paid the 1969 and 1970 taxes. The condemnation award was deposited July 29, 1971, which by operation of law passed title to the condemnor as of July 23, 1968. So, at the time Drobnick purchased the property, during the pendency of the condemnation proceeding, the property was in fact exempt from taxation.

The judgment of the trial court is affirmed.

GUILD, P. J., and ABRAHAMSON, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Theodore Floyd Burnett et al., Defendants—(Theodore Floyd Burnett, Appellant. )
    (No. 11521;
    Fourth District —
    September 5, 1973.

      Supplemental opinion filed upon denial of rehearing October 2, 1973.

    John F. McNichols, Deputy Defender, of Springfield, for appellant.
    Thomas P. Carmody, State’s Attorney, of Carlinville, (Michael Prall, of Circuit Attorney Project, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant was found guilty by a jury of the theft of a truck valued at over $150. Motion'for new trial was denied and a sentence of 1 to 2 years in the penitentiary was imposed by the circuit court of Macoupin County. Originally indicted with him were Cornelius Lamar, Gloria Lamar and Henry Lamar. During the course of the trial Cornelius pleaded guilty with an agreement with the State’s attorney that he would be sentenced to a period of 1 to 2 years to run concurrently with a Federal sentence he was serving. His sentence was not imposed until the conclusion of the trial. Gloria and Henry were granted immunity from prosecution and all three were witnesses for the People in the case. The defendant contends that his guilt was not established beyond a reasonable doubt, that it was reversible error to deny the defendant’s motion to exclude witnesses and that the court erred in denying the defendant’s motions for withdrawal of a juror, mistrial and severance.

A supplemental record filed in this case establishes as a matter of fact that the witnesses were excluded and thus there is no basis for this assignment of error.

The defendant’s motions for withdrawal of a juror, a mistrial, a severance and a continuance were properly denied. The court adjourned for lunch on October 26, 1970, and did not reconvene until 9 A.M. the following morning. At that time Cornelius Lamar’s counsel indicated that he had conversed with the State’s attorney that morning to see if he could get the State’s attorney to recommend a term of years of not less than 1 nor more than 2 on a plea of guilty. The State’s attorney agreed to recommend that the sentence of 1 to 2 years run concurrently with the Federal sentence. It was likewise agreed that Cornelius Lamar’s wife, Gloria, and his brother, Henry, would be granted immunity and be dismissed out of the case. The court denied a severance, denied a motion to withdraw a juror and declare a mistrial, and denied a continuance on the grounds that what had transpired required this defendant to adopt different tactics. The court advised the jury that Cornelius had pled guilty, that Henry and Gloria had been granted immunity from prosecution and that the case is now the People v. Theodore Floyd Burnett alone. It will be apparent from the testimony hereafter recited that the trial court committed no error in this procedure.

Cornelius testified that he was presently incarcerated at the United States Penitentiary in Marion, Illinois. On the morning of May 27, he and the defendant had a conversation about the location of some trucks. They proceeded to Carlinville to Weatherford Motors, inquired about a truck, and Burnett obtained a key code number to the truck. They then went to another Ford dealer and had a duplicate key made. They returned to St. Louis, separated and agreed to meet in Alton, Illinois, later that evening with Henry and Gloria. In Alton, truck license plates were obtained. They then departed for Carlinville in Cornelius’ 1968 Buick with Burnett following in a tan Ford pickup truck. Burnett parked the tan track in Carlinville and proceeded to the Weatherford Motors lot. Burnett then picked up a green truck from the parking lot and they drove back to where they had parked the tan truck. Here Burnett got out of the green truck and into the tan one and Cornelius drove the green truck. Henry and Gloria followed in the 1968 Buick. This testimony was substantially the same as that given by Henry and Gloria. The people in the Buick ran into a highway police roadblock and were thus apprehended. Gloria testified that Burnett told her that he abandoned the tan track when he ran out of gas, went off the side of the road through a ditch, went across the field, and was later picked up by a State trooper. The Carlinville city police as well as the State trooper testified that the defendant wore a white sweater-type shirt, dark pants and had muddy, narrow-toed shoes when seen at the Macoupin County jail in the early morning. The defendant’s fingerprints were found on both the green and tan track.

The testimony above given is further supported by a witness who was walking along the street and saw a person get out of a 1968 Buick and look through the front door of the showroom. He was about 70 to 80 feet from the person when he made the observation that the person was a Negro male, wore a white sweater, and had on dark pants. The Buick was driven east and this same Negro male walked east. He went behind some vehicles at a gas station. The witness then saw another person, talked with him and they returned to the gas station to investigate what was going on. The witness again saw the Buick with three people in it. These two witnesses went to investigate at the used car lot and suddenly there were long horn blasts and a green track pulled out fast and then the 1968 Buick which they had seen earlier with three occupants in it sped away in the same direction. These two witnesses then reported what they had seen to someone at Weatherford’s garage, and headed east on Route 108. They then saw the tan and green tracks parked along the side of the road. Tire green truck was the one they had seen driven away from the garage lot. The garage notified the sheriff’s office and the roadblock was set up. The garage owner testified that after he was notified, he and a friend headed out of Carlinville east on Route 108, saw a tan track, a State trooper searching the nearby bushes and a car speeding away. A little farther on they saw his green truck. They came back to the trooper and noticed quite a bit of mud and some fresh footprints. The footprints had a sharp pointed toe impression. At 5:30 that morning, he saw Mr. Burnett in the county jail. His pant legs were wet, his shoes were muddy and his shoes had narrow pointed toes.

The State trooper heard a radio message about a stolen green track and observed three vehicles proceeding in an easterly direction at a high rate of speed. He turned around, headed back and came upon a light colored truck with a 1968 Buick next to it. The car took off rapidly and the person who had been standing next to the car ran away.

We think every issue raised on this appeal has been decided adversely to the defendant in People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d 490, or People v. Mentola, 47 Ill.2d 579, 268 N.E.2d 8. In the latter case the Illinois Supreme Court referred to the oft-stated rule that the testimony of an accomplice is necessarily received with caution but that such testimony even if uncorroborated is sufficient to warrant a conviction if it satisfies the trier of facts beyond a reasonable doubt. They likewise pointed out in that case that material corroboration or direct contradiction of an accomplice’s testimony is entitled to great weight. They there held that supportive testimony uncontradicted was clearly sufficient to justify the jury’s verdict, and so it is here. Likewise in Wollenberg, at page 484, it is stated that “it is also well established that the testimony of an accomplice, even though it is attended with infirmities (such as malice towards the accused, promises of leniency, etc.) and uncorroborated, is sufficient to sustain a guilty finding if it satisfies the jury beyond a reasonable doubt [citations], and that we will not disturb a conviction based thereon unless it is plainly apparent that such degree of proof is lacking.” In Wollenberg the testimony of an accomplice was corroborated by hair taken from a cap found inside the victims’ apartment and which the victims had testified their assailant was wearing. The accomplice had testified that defendant Wollenberg had just such a cap. The corroborating testimony in the case here is sufficiently overwhelmingly to completely sabotage any possible doubt about trustworthiness of the Lamar testimony.

Wollenberg was reaffirmed in People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473, and it was there pointed out that the jury was well aware of the accomplice’s conviction, his former use of narcotics and the fact that he had been promised leniency. The jury was fully informed of those circumstances and nevertheless believed the accomplice’s testimony. A like situation exists here where the jury were fully informed by testimony as to what happened and where undisputed corroborative testimony furnishes a solid foundation for the testimony of the accomplice or accomplices.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

TRAPP and SIMKINS, JJ., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

Mr. PRESIDING JUSTICE SMITH delivered the opinion of the court:

In his petition for rehearing, the defendant contends that he did not receive a fair trial because his codefendants who afterwards became witnesses against him participated in the selection of the first 9 jurors. No specific authority is cited nor do we perceive from this record any possible prejudice to the defendant. A severance or a mistrial or a retrial would present to a newly chosen jury the same basic and fundamental knowledge that it had in this case. In People v. Pulaski, 15 Ill.2d 291, 155 N.E.2d 29, two defendants were tried by the jury and at the same time a codefendant waived a jury trial and was ultimately convicted by the trial judge. The defendant contended that such a joint trial violated due process in that it was irregular, tended to prejudice the jury by their knowledge that one of the defendants waived a jury trial, and that the judge had a broader latitude in receiving evidence, in interrogating witnesses and then commenting upon the evidence in a bench trial. As pointed out in that case, there is no showing of antagonistic defenses or that the circumstances involved would deny one or more defendants a fair trial nor just how the defendant would be prejudiced. All 12 jurors were of this defendant’s own choice albeit 9 had likewise been approved by his codefendants. On the record here presented, we see no abuse of discretion in denying the severance, refusing to withdraw a juror and declare a mistrial, or in denying the motion for new trial.

Accordingly, we adhere to our original opinion in this case.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. David James Hundley, Defendant-Appellee.
    (No. 11863;
    Fourth District —
    September 5, 1973.

      John G. Satter, Jr., State’s Attorney, of Pontiac, (George S. Dzielak, Assistant State’s Attorney, of counsel,) for the People.
    John F. McNichols, Deputy Defender, of Springfield, (J. Daniel Stewart, Assistant Appellate Defender, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

This is an appeal by the State from a judgment discharging the defendant for the State’s failure to bring him to trial within 120 days.

On July 24, 1971, the defendant, along with two others, attempted to escape from the Illinois State Penitentiary at Pontiac, wherein they were lawfully imprisoned. The defendant was indicted on August 31, 1971, and arraigned on September 7, 1971, on the charge of attempted escape. At the arraignment defendant was found to be indigent and counsel was appointed. A recess was called to permit the defendant to confer with bis appointed counsel concerning his plea. After the recess defendant’s counsel informed the court that defendant desired to address it concerning his need for psychiatric care. The defendant essentially stated that he was suffering adversely from being incarcerated in his cell with nothing to do and that he felt a great deal of pressure to his brain. He stated that he had told the prison officials of his need for psychiatric care but that they had done nothing.

The court ordered that counsel prepare a formal motion supporting defendant’s request. The judge noted that he was concerned and stated that defendant should consult his attorney on this matter, and that the court would consider the matter “in connection with these charges”. In the same proceedings, the defendant pleaded not guilty and the cause was continued for a trial.

On September 14, 1971, defendant submitted a motion with supporting affidavits requesting psychiatric care. The motion states in full:

“Comes the defendant, David James Hundley, by his attorney, Chester Crabtree, Public Defender of Livingston County, Illinois, and moves the court to appoint a psychiatrist to examine and treat him, for the reason that there are times when he has mental lapses, has dizzy spells, when the floor on which he stands appears to move, and when he is often unable to think clearly.
The defendant, in support of his motion, submits his affidavit hereto attached and made a part of this motion as if set out in full.”

The defendant’s supporting affidavit states in full:

“David James Hundley, being first duly sworn, on oath deposes and says that he needs to be treated by a psychiatrist for the reason that he often suffers mental lapses when he cannot think clearly, has dizzy spells, when the floor on which he stands appears to move, when objects in his room appear to move round and round, and when he seems to be floating through the air.”

The motion was granted.

On January 12, 1972, defendant’s attorney filed a motion to dismiss the cause on the grounds that defendant had been in custody for more than 120 days without being brought to trial on the charges pending. At the hearing on the motion, defendant submitted that he had caused no delays that resulted in tolling the 120-day time limitation. On January 18, 1972, the trial court granted said motion. The State appealed.

The limited issue is whether the trial court erred in discharging the defendant under the mandate of the 120-day rule of section 103 — 5(a) of the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 5(a)). Defendant contends that his original request for general psychiatric care was unrelated to his competency to stand trial on the charges, and, therefore, did not constitute a delay. The State submits that defendant’s request was for an examination for competency which tolled the 120-day limitation.

The right to a speedy trial is an absolute right emanating from the federal and state constitutions and is implemented by the 120-day rule. The statutory 120-day limitation commences to run from the time defendant is incarcerated on charges, or, as in this case, from the time defendant was arraigned while incarcerated on unrelated charges. People v. Vaughn, 4 Ill.App.3d 51, 280 N.E.2d 253.

In People v. Nunnery, 54 Ill.2d 372, 375, 297 N.E.2d 129, 130, the supreme court has stated:

“The controlling question in determining if the defendant was entitled to discharge under the 120-day rule is whether the delay of the trial beyond 120 days was occasioned by the defendant,’ and if answered affirmatively, he was not entitled to discharge. * #

A request for a competency examination and hearing by defendant is a delay chargeable to him and will toll the 120-day statute People v. Siglar, 49 Ill.2d 491, 274 N.E.2d 65.

A defendant can request a competency examination or the court may so order such an examination on its own motion. In either case, if a competency examination is ordered, section 104 — 2 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, par. 104 — 2) requires that the trial court suspend the proceedings until the defendant’s status is finally determined. After a competency examination is completed, a competency hearing is then held at which time defendant’s competency is adjudicated. The suspended proceedings are not reinstated until defendant is again found to be competent.

In the case at bar, we are unable to glean from the record the nature of defendant’s request and how the trial court interpreted it. Defendant made a broad request for psychiatric care at his arraignment. After his request was made, the court did not suspend the proceedings. Rather, the court accepted defendant’s plea of not guilty and refused to consider defendant’s request until a formal motion was submitted to the court. Yet, the trial court stated it was concerned with the defendant’s request as it related to these charges; then the court continued the proceedings until trial. Even after defendant’s formal motion was submitted to the court and granted, the proceedings were not suspended. It is unclear what the trial court meant by its statement in connection with its conduct.

The State cannot be held accountable for the delays caused by a defendant, but it is responsible for the ultimate disposition of a case when not attended by delays occasioned by defendant’s conduct. (Strunk v. United States, (U.S.), 93 S.Ct. 2260, 37 L.Ed.2d 56.

We reverse and remand for an evidentiary hearing so the trial court can enter an appropriate order based on the evidence presented, either granting or denying the defendant’s motion requesting a discharge under the 120-day rule. If defendant’s request was for a competency examination, the 120-day limitation was tolled and he cannot be discharged; but if his request was for general psychiatric care, the 120-day limitation was not tolled and he must be discharged. The judgment of the trial court is reversed and remanded for further proceedings.

Reversed and remanded with directions.

SMITH and TRAPP, JJ., concur.