author: Mr. JUSTICE LINN Mr. JUSTICE JIGANTI,

text:
    ROHN HEBEL, Plaintiff-Appellant, v. SHERMAN EQUIPMENT, Defendant-Appellee.
    First District (4th Division)
    No. 80-1871
    Opinion filed October 8, 1981.

      JIGANTI, J., dissenting.
    Braun, Lynch, Smith & Strobel, Ltd., of Chicago (James W. Ford, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Howard T. Brinton, William J. Rogers, and Ruth E. Van Demark, of counsel), for appellee.
   Mr. JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Rohn Hebei, appeals from an order of the circuit court' of Cook County granting summary judgment in favor of defendant, Sherman Equipment. Plaintiff’s strict liability action seeks damages for an injury allegedly caused by a defective conveyor drive chain mechanism which admittedly defendant did not manufacture or sell. On appeal, plaintiff contends that a material question of fact exists as to whether defendant held itself out to be the manufacturer of the conveyor drive chain mechanism and therefore can be held strictly liable as the apparent manufacturer of the conveyor mechanism.

We reverse and remand. The pertinent facts follow.

Plaintiff’s amended complaint filed on July 31, 1978, alleges that on February 22,1976, plaintiff, who was then 16 years old, was employed by the Glenbrook Standard Station and Car Wash (Glenbrook). His employment necessitated working “on or about” the automatic car washing machinery. This machinery, the amended complaint charged, was designed, manufactured and sold by defendant in a defective and unreasonably dangerous condition in that there was a hole in the cover of the conveyor drive chain mechanism. Although the hole was uncovered, the machinery remained operating. Plaintiff’s foot “slipped” into the hole and was “caught in and mangled by the moving drive chain mechanism.”

Defendant’s answer, filed on September 11, 1978, admitted that it designed and manufactured “certain portions” of the automatic car washing machine for Glenbrook and sold those “certain portions” to Glenbrook. Defendant’s answer denied that the machine and its component parts left defendant’s control in a defective and unreasonably dangerous condition because of the hole in the cover of the conveyor drive chain mechanism.

On December 5, 1978, defendant filed its motion for summary judgment and attached the affidavit of John H. Thacher, Jr., the president of Sherman Industries, Inc. Thacher stated that his review of all invoices, purchase orders, bills of lading, and sales memoranda for sale of car washing equipment to Glenbrook disclosed that Sherman never sold a conveyor or any conveyor parts to the Glenbrook station. The trial court denied defendant’s motion.

On July 10,1979, defendant again moved for summary judgment. In this motion, defendant identified the Flapan Car Wash Equipment Company (Flapan) as the manufacturer and seller of the conveyor drive chain mechanism which allegedly caused plaintiff’s injuries because of faulty design and manufacture. The affidavits of Seymour Motel, an employee of Flapan, and J. L. Bates, the western regional manager for Sherman Industries, Inc., were attached. Motel asserted that Flapan, and not Sherman, had designed, manufactured, and sold a conveyor drive chain mechanism to Glenbrook for its automatic car washing machine. Bates stated that he examined the automatic car washing machine on April 10, 1979, and he asserted that defendant did not design, manufacture, or sell the conveyor drive chain mechanism for the automatic car washing machine at Glenbrook.

On February 11,1980, plaintiff filed a response to defendant’s motion asserting that defendant had held itself out to be the manufacturer of the conveyor drive chain mechanism. Attached as exhibits to plaintiff’s response were excerpts from the depositions of Thacher and Motel, several promotion flyers and the Haverberg-Glenbrook contract for the sale and installation of automatic car washing equipment at Glenbrook. Defendant’s reply incorporated other excerpts of the same depositions.

In his deposition, Thacher stated that prior to July 1, 1976, Sherman Industries’ official name was Sherman Car Wash Equipment Company. Sherman Industries, which owns three local car wash companies, is owned by Sherman Supersonic Industries. Sherman Supersonic Industries also owns the stock of Smith-Thacher, an “affiliated distributorship” of Sherman products in Eastern Pennsylvania, Central New Jersey, and Delaware. Sherman Supersonic Industries does not own the stock of any of the other distributors of its products. Thacher identified Flapan Car Wash Equipment and Haverberg Auto Laundry (Haverberg) as “authorized distributors” of Sherman Supersonic Industries, although he denied that Sherman Industries or Sherman Supersonic Industries had any “legal relationship” with either Flapan or Haverberg.

Thacher also identified several purchase invoices sent by Haverberg to Sherman Car Wash Equipment Company (now called Sherman Industries) for the car washing equipment which was installed at Glen-brook. The Sherman equipment was sold to Haverberg and shipped to Glenbrook. Thacher asserted that, although he had not personally examined the equipment at Glenbrook, Sherman Industries did not manufacture or sell the conveyor drive chain mechanism portion of the car washing machinery installed at Glenbrook. Thacher based this conclusion on the statement of Motel and Flapan that there never was a Sherman conveyor at that site. Thacher explained that “once in a while,” Sherman Industries manufactures a conveyor drive chain mechanism which can be used in a Sherman automatic car washing system.

After examining his records, Thacher stated that Sherman Industries did not ship a conveyor drive chain mechanism to Glenbrook, although they did ship other automatic car washing equipment to Glenbrook. Thacher further claimed that he did not know who designed the conveyor drive chain mechanism which was installed at Glenbrook. He thought that the conveyor drive chain mechanism was manufactured for Flapan by another company and that Flapan or Haverberg sold, installed, and serviced the conveyor drive chain mechanism.

Thacher also described how Sherman products were marketed prior to 1976: “their biggest advertisement is the work of our distributors * * *. We sold through distributors.” Thacher acknowledged that when a Sherman car washing machine system is installed, the Sherman name is displayed on the front of the machinery. Some equipment castings also have the Sherman name embossed on them. He also noted that a Sherman brochure showed the Sherman name on the front of the automatic car washing unit. He did not describe whether the Sherman name appeared as “Sherman” or “Sherman Industries” or “Sherman Supersonic Systems.”

Seymour Motel, the Flapan employee, asserted that the Flapan name was a “trade name” and Haverberg was the “corporate name” of the same corporate entity. He described Haverberg as a sales, service and manufacturing company for the car wash industry. Motel also stated that the sale of a conveyor drive chain mechanism together with the Sherman equipment which his company (Flapan-Haverberg) distributed, would comprise everything necessary for a “tunnel type” of car wash. Motel explained that Sherman Industries orders conveyor drive chain mechanisms from either Flapan or Haverberg and Flapan or Haverberg then ships the conveyor drive chain mechanism to the “end user” and bills Sherman Industries for payment. This method of doing business has been going on for 10 to 12 years.

Motel further stated that the conveyor drive chain mechanism sold to Glenbrook was designed by an employee of Flapan or Haverberg. Haverberg directly sold the conveyor to Glenbrook; Sherman Industries did not manufacture any portion of the conveyor installed at Glenbrook. Motel also identified a document, the “Sherman equipment purchase order,” which was used to order automatic car washing equipment from Sherman for installation at Glenbrook. He acknowledged that this order form was labelled at the top as follows: “Sherman Supersonic Systems Interdepartmental Equipment Order.” Motel also identified the sales contract entered into by Haverberg Auto Laundry Equipment Company and Glenbrook. The contract listed various car washing equipment items which were sold to Glenbrook. One of the items, a “Sherman-Haverberg wheel washer,” was manufactured solely by Haverberg. Sherman did not manufacture any part of it.

Motel further stated that the conveyor drive chain mechanism which was installed at Glenbrook contained no name plate or serial number; the name “Flapan” or “Haverberg” did not appear anywhere on the conveyor drive chain mechanism. Motel also acknowledged that when a salesperson from his company discussed a car washing system with a potential buyer, he provided expert advice on what type of system would be best to use.

The Haverberg-Glenbrook contract lists 12 pieces of car washing equipment. “Sherman” alone is named as the type of equipment for nine of the pieces (e.g., “Sherman Glo-wax”); Sherman and Haverberg are named together on one of the pieces (e.g., “SHERMAN-HAVERBERG”), and Haverberg alone is named on a type of conveyor drive chain mechanism (e.g., “Haverberg 80 hookless demand”). Haverberg installed all of the equipment. The invoices of the “Sherman Car Wash Equipment Company,” listing some of the equipment identified in the contract, bear the heading of “Sherman Supersonic Systems.” The various items were sold to Haverberg and shipped to Glenbrook.

The Sherman Car Wash Equipment Company promotional literature pictures an automatic car washing system which has on the front of the system the logo, “Sherman Supersonic Systems.” Two additional promotional flyers of Sherman Supersonic Industries, Inc., each describing a different type of car washing system, have pictures of the car washing systems which both bear the logo “Sherman Supersonic Systems” on their front top panels. The promotional flyers describing the two different types of conveyor drive chain mechanisms have the name “Haverberg” on one side of the flyer and, on the other side, the flyers have both Sherman’s name and Haverberg’s name as follows:

"Sherman
Haverberg Auto Laundry Equipment Company, Inc.”

After reviewing these exhibits, the trial court granted defendant’s summary judgment motion. Plaintiff’s motion for rehearing also was granted and the trial court, after further hearing, again entered summary judgment for defendant. Plaintiff appeals, contending summary judgment was improperly granted.

Opinion

Plaintiff contends that a genuine issue of material fact exists as to whether defendant may be held strictly liable in tort because it held itself out as the apparent manufacturer of the allegedly defective conveyor belt, and that therefore the trial court erred in determining the issue as a matter of law. We agree.

Summary judgment proceedings test for the existence of any genuine triable issue of fact. (Clausen v. Ed Fanning Chevrolet, Inc. (1972), 8 Ill. App. 3d 1053, 291 N.E.2d 202.) The right of the movant to summary judgment, however, must be free from doubt, and the affidavit and attachments supporting the motion should be construed strictly against the moving party and liberally in favor of the opponent, and must leave no question as to the movant’s right to judgment. (Doran v. Pullman Standard Car Manufacturing Co. (1977), 45 Ill. App. 3d 981, 360 N.E.2d 440.) The purpose of summary judgment is not to try an issue of fact and, although inferences may be drawn from undisputed facts, the motion should not be granted unless those facts are susceptible of but a single inference. (Doran v. Pullman Standard Car Manufacturing Co.; Stanfield v. Medalist Industries, Inc. (1975), 34 Ill. App. 3d 635, 340 N.E.2d 276.) If reasonable persons could draw different inferences from the facts adduced, a triable issue exists.

Plaintiff’s contention that defendant held itself out as the manufacturer of the conveyor drive chain mechanism is based on two factors: first, that defendant allowed its name to be used on literature and materials promoting the conveyor drive chain mechanism actually manufactured by Flapan; and second, that a reasonable person viewing the automatic car washing system bearing defendant’s name would perceive it as one machine such that the unlabeled conveyer drive chain mechanism would be considered a component part of the whole system. Defendant maintains that since it did not participate in the actual manufacture or distribution of the conveyor drive chain mechanism, then as a matter of law, it cannot be held strictly liable in tort if the conveyor drive mechanism was defective and caused the injury.

In Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155, our supreme court considered and rejected defendant’s contention that such participation is an essential element for the imposition of strict liability. The court reasoned that the societal purposes underlying Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 210 N.E.2d 182, mandate that the strict liability doctrine be applicable to one who, for a consideration, authorizes the use of his trademark, “particularly when, ” ” ”, the product bears no indication that it was manufactured by any other entity.” (75 Ill. 2d 393, 411, 389 N.E.2d 155, 163.) In considering whether the doctrine of strict liability was applicable to the defendant on the basis that the allegedly defective product bore its trademark, the court cited the Suvada court’s reliance on Lill v. Murphy Door Bed Co. (1937), 290 Ill. App. 328, 8 N.E.2d 714. In Lili, an allegedly defective bed bore the Murphy name and label although it was actually manufactured by the Simmons Bed Company. The Murphy Company sold the bed to owners of buildings. Literature issued by the Murphy Company described the bed as sturdy and referred to “the makers” of the bed offering “more” than a bed. There was no evidence that the Murphy Company received consideration from the Simmons Bed Company for the use of its name. The court nevertheless held there was no difference between the liability of a manufacturer and the liability of one who holds himself out to be the apparent manufacturer.

In the instant case, Flapan and Haverberg distributed defendant’s automatic car washing equipment and prepared promotional flyers bearing defendant’s name for two different types of conveyor drive chain mechanisms. The automatic car washing system at Glenbrook bore only defendant’s name. In Sipari v. Villa Olivia Country Club (1978), 63 Ill. App. 3d 985, 380 N.E.2d 819, this court held that a genuine issue of fact existed as to whether the defendant, who did not manufacture the allegedly defective golf cart but whose logo appeared on the golf cart, sufficiently held itself out as the manufacturer of the golf cart. Similarly, considering the evidence presented here in its aspect most favorable to plaintiff as we are required to do (Doran), we believe that reasonable persons could draw different inferences, and therefore, a genuine issue of fact exists as to whether defendant held itself out to be the manufacturer of the conveyor drive chain mechanism. In our view, the trial court erroneously granted summary judgment.

The judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

ROMITI, P. J., concurs.

Mr. JUSTICE JIGANTI,

dissenting:

The culpability of Sherman eludes me. The pertinent facts are few and rather straightforward. The two facts that led the majority to find that a question of fact is presented centered around two separate factual settings that need some clarification. One concerns Sherman’s name appearing on certain items of equipment that were in the car wash and the other on advertising literature.

Sherman manufactured familiar pieces of equipment that are seen in a car wash. Among those items, for example, were a large inverted “U” shaped car rinser with enormous brushes, a similarly shaped washer and a dryer. On each piece of equipment Sherman manufactured it placed its own name. Sherman sold these individual pieces of equipment through distributors. Sherman in fact sold several pieces of equipment used by the car wash in this case to Haverberg. Haverberg in turn sold the equipment to Glenbrook. Haverberg also provided expertise and installed the equipment at Glenbrook. Sherman of course neither manufactured nor sold the conveyor in which the plaintiff was allegedly injured. Haverberg manufactured the conveyor itself. There was no designation on the conveyor identifying Sherman. It was on this conveyor that the plaintiff was allegedly injured while working at Glenbrook.

I believe some comment should be made on the statement of facts in the majority opinion. I believe that they lead to a mistaken impression. The majority states that Haverberg sold “a Sherman car washing system.” Sherman did not sell a car washing “system.” Haverberg may have sold Glenbrook a system which included not only certain items manufactured by Sherman but also included items manufactured by Haverberg. Sherman only sold individual pieces of equipment that it manufactured. The opinion quotes Thacher as saying that when a Sherman car washing machine system is installed, the Sherman name is displayed on the front of the machinery. Thacher said that the name was an integral part of each piece of equipment and is not a separate sign. The opinion points out that the contract between Haverberg and Glenbrook, which of course Sherman was not a party to, states that Sherman and Haverberg are named together on one of the items sold as “Sherman-Haverberg.” The contract did indeed identify a wheel washer as being a “Sherman-Haverberg” wheel washer. The contract is not in fact correct. That piece of equipment was manufactured by Haverberg and has nothing to do with Sherman.

The only other alleged involvement of Sherman in this transaction results from the advertisements. There are not one but two separate sets of advertisements with two different authors. Sherman issued common advertisements for the products it sells and in fact did sell to Haverberg, that is, the rinser, the washer and the dryer. The advertisements contained pictures and rather precise details of the equipment such as its exact size, electrical and plumbing equipment and other facts. That would be helpful to a prospective purchaser. There was no literature concerning a conveyor belt.

The allegedly inculpatory literature was issued by Haverberg. It consists of a single sheet of very colorful red and white paper that unfortunately would not take to reprinting with the issuance of this opinion. On the front side at the top prominently displayed in black letters is “Jack Flapan’s Haverberg Equipment Company.” The name “Haverberg” is on a separate line and is in print larger than the other wording. Also on the front side is a picture of a conveyor belt with no designation on the conveyor belt as to its manufacturer. There is nothing on the front side that identifies Sherman. On the back are the same pictures that are on the front and text extolling the virtues of the conveyor belt. At the very bottom of the page is the single word Sherman, as is indicated in the majority opinion, followed on the next line by the words Haverberg Auto Laundry Equipment Company, Inc., along with Haverberg’s address and telephone number.

Reduced to its essentials Sherman manufactured individual pieces of equipment that could be used in a car wash. On each piece of equipment that it manufactured it placed its own name. The majority holds that Sherman was wrong in placing its name on the individual items of equipment that it manufactured. I fail to see what Sherman should have done. I do not believe that it can be said that Sherman should not put its own name on its own equipment. Nor do I believe that if Sherman wanted to place its own name on its own equipment it should have issued some sort of disclaimer along with its name to the effect that although it manufactured the rinser it was not necessarily the manufacturer of any other piece of equipment that a party may see in a car wash.

The majority accepts the contention of the plaintiff that a reasonable person viewing the automatic car washing system would perceive that it was one machine and that the unlabeled conveyor drive chain mechanism would be considered a component. part of the system. Neither the plaintiff nor the majority cite any case law to support the legal efficacy of this statement. The apparent rationale is that a plaintiff has a right to rely on his own mistaken impression. None of the cases cited by the plaintiff, which will be discussed momentarily, support this rationale. Under the majority’s all encompassing view, if a person were run down by a vehicle on the street due to the vehicle’s defective brakes, the manufacturer of the automobile would be responsible even though the car’s brakes had been replaced and someone else’s braking system was placed in that vehicle. In line with the reasoning in this case the majority apparently holds that even if Sherman had sold the entire system including a conveyor if the conveyor was replaced with another conveyor Sherman would be responsible.

There is more of a duty on a plaintiff to find the proper defendant than to merely glance at something and assume who the defendant should be. As applied to this case the result is particularly inappropriate because the plaintiff knew that he was injured on the conveyor. The conveyor of course did not bear the name of Sherman because it was manufactured by Haverberg. The plaintiff’s remedy was to investigate and to discover the proper defendant. I do not believe that the plaintiff has a right to make Sherman financially responsible because of the plaintiff’s unwarranted assumptions.

I see no legal significance in the brochure that was issued by Haverberg and which contained the name Sherman on the back page. The plaintiff did not see the advertisement. Sherman did not authorize the advertisement. Sherman did nothing to induce anyone to buy a conveyor that it did not even manufacture. The majority opinion makes a manufacturer responsible for every product the distributor sells simply because the distributor advertises that it distributes for a particular manufacturer.

The case law provides no support to the plaintiff. Cited are four cases that are patent examples of holding out: Connelly v. Uniroyal, Inc. (1979), 75 Ill. 2d 393, 389 N.E.2d 155; Sipari v. Villa Olivia Country Club (1978), 63 Ill. App. 3d 985; Lill v. Murphy Door Bed Co. (1937), 290 Ill. App. 328, 8 N.E.2d 714, and Davidson v. Montgomery Ward & Co. (1912), 171 Ill. App. 355. In each of them the defendant permitted its name to be placed on the product that caused the injury. Implicit in the holding out doctrine is the notion that the defendant has done something to give the plaintiff the erroneous impression that the product which injured him was manufactured by the defendant. More specifically it has been held that a party who leads others to believe that he is the manufacturer by placing his name on a product, label, by advertising or by other means may be held to the same liability for the defective product as if he were actually the manufacturer. He is effectively estopped from denying his identity as the manufacturer. Annot., 51 A.L.R.3d 1344, 1361 (1973).

In the instant case Sherman did not do anything to create the impression in the mind of the plaintiff that it had manufactured the conveyor. The plaintiff in the instant case worked at the gas station where he was injured and was obviously familiar with the machinery. The complaint alleged that he was injured by the conveyor drive chain mechanism belt which had a hole in its cover. The plaintiff could readily see that the defendant’s name or trade mark did not appear on this particular piece of machinery. Thus, the plaintiff could not have been misled into thinking that the defective conveyor was manufactured by the defendant.

In Connelly, the court in ruling on a case involving a licensor that allowed a product to be manufactured with the licensor’s name on it set out the policy rationale for applying the holding out doctrine:

“A licensor is an integral part of the marketing enterprise, and its participation in the profits reaped by placing a defective product in the stream of commerce [citation] presents the same public policy reasons for the applicability of strict liability which supported the imposition of such liability on wholesalers, retailers and lessors. The societal purposes underlying Suvada mandate that the doctrine be applicable to one who, for a consideration, authorizes the use of his trademark, particularly when, as here, the product bears no indication that it was manufactured by any other entity.”

Sherman did not reap any profits and did not place the conveyor into the stream of commerce.

For the reasons stated I would affirm the judgment of the trial court.

       Plaintiff sued defendant as “Sherman Equipment.” Defendant’s true name is Sherman Industries, Inc. Prior to 1976, Sherman Industries, Inc., was known as the Sherman Car Wash Equipment Company. Sherman Industries, Inc., is owned by Sherman Supersonic Industries. Defendant’s affiants made no distinction between the companies when discussing the sale of car washing equipment and they refer to “Sherman,” “Sherman Industries Inc.,” “Sherman Equipment,” and “Sherman Car Wash Equipment Company” interchangeably.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM JACKSON (Impleaded), Defendant-Appellant.
    First District (5th Division)
    No. 80-175
    Opinion filed October 9, 1981.

      Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and Mark R. Fuller, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted of armed robbery, acquitted of attempt murder, and sentenced to 11 years. On appeal, he contends that (1) the State failed to prove beyond a reasonable doubt that his conduct was not compelled; (2) prejudicial remarks of the prosecutor denied him a fair trial; and (3) the sentence was excessive.

Hilario Lara testified through an interpreter that two black men approached him as he waited for a bus; that the shorter man grabbed him by the neck, covered part of his face, and put a pistol to his head; that the taller man, whom he identified as defendant, was wearing red pants; that one of the men demanded money; that he heard no talking before money was demanded, although the men said things he did not understand; that he told the men he had no money; that defendant said, “You have a bag” and took it; that the bag contained clothing and a towel; that when a police officer carrying a gun shouted at them, the shorter man fired twice at the officer from behind him (Lara) while defendant stood slightly behind and approximately 2 to 3 feet to his right; that the shorter man and defendant then fled; and that at no time did the shorter man point the gun at defendant.

Victor Reese, a 10-year-old child, testified that he was playing with friends when from approximately 10 feet away he saw two black men robbing a white man; that the shorter man stood behind the victim holding a gun to his head while the taller man, wearing red pants, was in front searching the victim; that he heard no talking and never saw the gun pointed at defendant; that a police officer arrived carrying a gun and said, “Halt. Police”; that the shorter man ordered the officer to drop his gun and, when he refused, the shorter man fired at him; that defendant was standing beside the shorter man at the time; that he (Victor) then ran home, where he saw defendant at the back door holding a brown paper bag; that defendant asked Victor’s mother for short pants “due to the heat”; that defendant then entered the apartment, put the bag on a couch, and went into the bedroom of Victor’s 3-year-old sister and told her to cover him with clothes; and that defendant was arrested a few minutes later.

Officer McHugh testified that he saw a man wearing red pants, whom he identified as defendant, holding a bag while searching a white man; that this man was in front of and facing the victim, and a shorter black man was behind him; that he left his car and, with his gun drawn, came within five feet of the men and shouted, “Police. Put your hands up”; that the shorter man got behind the victim, ordered McHugh to drop his gun, and fired twice as McHugh ran back to his car; that the gun held by the shorter man was never pointed at defendant; that both assailants fled, with defendant following the shorter man and carrying the bag; and that he and another officer found defendant hiding under a pile of clothes in the apartment of Dorothy Reese, the mother of Victor.

Officer Opiola testified that he heard three gunshots and then observed McHugh in the street, a Latin man on the sidewalk, and two black men running south; that the taller of the two was wearing red pants and carrying a brown bag; that he and McHugh were directed by Mrs. Reese to her house, where they found defendant hiding under a pile of clothes in the bedroom of a 3-year-old girl; and that a bag of clothes was also found on a couch in the front room.

Defendant testified that while he was drinking in a bar, Ollie Williams approached him and said he needed money; that defendant offered him a job; that he and Williams had been members of the Vice Lords street gang in 1965, but he (defendant) was no longer involved with the gang; that Williams said, “[Ojnce a Vice Lord, always a Vice Lord” and told him they were going to get some money; that Williams showed him a gun and said he heard that defendant had been shot in 1976 for disobeying gang orders; that he was afraid of Williams because he was a gang chief and because of his prior trouble with the gang; that he had been whipped and struck in the head with a pipe in 1968 or 1969 for refusing to obey gang orders; that in 1976, after the Vice Lords had sent word from prison to punish defendant for disobeying orders, he was shot in the back underneath the right arm; that he went with Williams because he feared he or his family would be harmed; that Williams ordered him to go in front of a man they saw standing on a corner; that Williams told him to search the man and take his bag; that he searched the victim because Williams could not do it and still hold the gun; that he did not attempt to flee, because he feared Williams would shoot him; that when McHugh interrupted the robbery, he (defendant) moved closer to the victim and Williams; that he ran with the bag when he heard the gunshots because he was frightened, and since he was on parole he thought the police would not believe his story; that he entered the Reese home but did not tell the Reese girl to cover him with clothes; and that when he was first questioned about the robbery, he lied about the identity of the other man involved for fear the gang would kill him if he gave Williams’ name.

Defendant admitted that he did not tell the police of his fears, of the gang problem, or the version of the robbery that he testified to at trial. He also admitted, but later denied, that after his arrest he told an Assistant State’s Attorney he was standing outside the bar talking to a girl before walking over to Williams, whom he saw robbing someone.

The jury was polled on its initial verdict of not guilty of attempt murder and guilty of armed robbery, and when one juror dissented, they were sent back for further deliberation. Thereafter, they returned the guilty verdict on the armed robbery charge.

Opinion

Defendant presents, as his principal contention, the State’s failure to prove beyond a reasonable doubt that his conduct was not compelled. He maintains that he reasonably believed Ollie Williams would shoot him if he did not participate in the armed robbery and that, based on his prior experience in the Vice Lords gang, this threat would be carried out.

Section 7 — 11(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 11(a)) provides:

“A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.”

Compulsion is an affirmative defense (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 14), so that if some evidence is presented thereon, the State has the burden of disproving it as well as each element of the crime beyond a reasonable doubt (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 2). Moreover, as stated in People v. Byer (1979), 75 Ill. App. 3d 658, 672, 394 N.E.2d 632, 642:

“The defense of compulsion is a question of fact which the trier of fact must resolve. [Citation.] The trier of fact ° 6 ° must determine the credibility of witnesses, and weigh their testimony. This determination is a matter peculiarly within the province of the jury and a reviewing court will not substitute its judgment unless the proof is so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt.”

There is no dispute that defendant presented “some evidence” so as to raise the issue of compulsion. (See People v. Unger (1977), 66 Ill. 2d 333, 362 N.E.2d 319.) He testified that he was told by Williams to help him get money and, when he refused, Williams reminded him of their prior gang association and warned him that such ties could never be broken without retribution. When defendant said that he was not involved in such activities, Williams showed him a gun and mentioned that he heard defendant had been shot in 1976 for refusing to follow a gang order. Defendant further testified to being beaten by gang members on another occasion for a similar refusal; that he did not attempt to extricate himself from the robbery, even after the police arrived, for fear Williams would shoot him; and that he lied about Williams’ identity for fear of gang revenge. Also see People v. Robinson (1976), 41 Ill. App. 3d 526, 354 N.E.2d 117.

There was, however, contrary evidence supporting the opposite conclusion. Lara testified that defendant noticed his bag of clothing and took it; that defendant moved slightly behind and to the right of him (Lara) when confronted by McHugh; and that the gun held by the shorter man was never pointed at defendant. Victor Reese testified that defendant searched Lara while his partner held a gun to Lara’s head; that he heard no talking during the incident and never saw the gun pointed at defendant; and that defendant remained standing beside Lara when gunfire was exchanged. McHugh also testified that defendant searched Lara while holding a bag; that the gun was never pointed at defendant; and that, when the men fled, defendant was following the gunman and carrying the bag. Absent from the testimony is any indication that the threat against defendant would soon thereafter have been carried out had he failed to follow Williams’ orders.

The compulsion defense does not apply to criminal acts under which the threat of death or great bodily harm is not imminent. (See People v. Ricker (1970), 45 Ill. 2d 562, 262 N.E.2d 456; People v. Colone (1978), 56 Ill. App. 3d 1018, 372 N.E.2d 871; People v. Davis (1974), 16 Ill. App. 3d 846, 306 N.E.2d 897; also see Ill. Ann. Stat., ch. 38, par. 7 — 11, Committee Comments — 1961, at 432 (Smith-Hurd (1972).) At most, there appears to have been a threat of future injury, and such threat “is not sufficient to excuse criminal conduct.” Robinson, 41 Ill. App. 3d 526, 529, 354 N.E.2d at 120.

We note, in addition, several latent contradictions in defendant’s account of the incident. He testified that he searched the victim on Williams’ orders, but he also stated that he did so because Williams could not hold the gun and search the victim at the same time. Furthermore, defendant’s testimony of moving closer to the victim and Williams when confronted by McHugh appears to us to be inconsistent with the assertion that he was compelled, for doing so suggests his belief that Williams would protect him while he used Lara as a shield against any shot fired by McHugh. Defendant also gave an account of his story at trial which differed significantly from the story he told the police and the Assistant State’s Attorney shortly after his arrest, and he initially did not tell the police that Williams was a Vice Lord or that he (defendant) was afraid of him. Moreover, defendant’s statement that he ran because he was on parole and believed the police would not accept his story does not explain why he moved closer to Lara and Williams when McHugh appeared or why he carried Lara’s bag with him when he fled. “Evidence of flight is admissible as a circumstance tending to show consciousness of guilt” (People v. Harris (1972), 52 Ill. 2d 558, 561, 288 N.E.2d 385, 387), and defendant’s testimony that he fled for other reasons presented a question of his credibility which was for the jury to determine. Similarly, while Lara may not have understood all that was said during the robbery, that fact too only affected the credibility of his testimony.

Additionally, we note significant factual parallels between the present case and People v. Johnson (1976), 42 Ill. App. 3d 194, 355 N.E.2d 577, where the court held that the jury properly rejected the defense of compulsion in finding the defendant guilty of armed robbery. In Johnson, both victims stated that neither robber spoke to the other and that no order was issued to defendant, who searched one of the victims and removed his valuables and also took his wristwatch. Defendant then spontaneously asked the other victim for money, and when she gave it to him, he asked if she had more. Also, after the robbery, defendant ordered the victims to move to another location and lie down. When defendant was apprehended, he said nothing about being coerced but rather that he and his partner were taking a shortcut to a party. Similarly, in the case before us, Lara testified that he heard no conversation before the robbery and, although he stated that things could have been said during the robbery, such statement only affected the weight of his testimony. Moreover, the two assailants fled, and defendant also fabricated the events he related both to Mrs. Reese and initially to the police and Assistant State’s Attorney. Therefore, in light of the facts presented herein, we cannot say the evidence that defendant was not compelled was so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt of guilt.

Defendant also makes reference to various comments by the State during opening statement and closing argument, contending these were not based on the evidence and were inflammatory. Having examined each of these statements and the law applicable thereto, we have determined that they were either based on the evidence, were reasonable inferences therefrom, or were proper responses to remarks of defendant. In view of the evidence otherwise presented, we find no prejudicial error in the State’s comments.

Finally, we turn to defendant’s contention that the sentence was excessive, as the trial court failed to take his rehabilitative potential into account. We disagree.

Although a reviewing court is empowered to reduce sentences under Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1979, ch. 110A, par. 615(b)(4)), it must bear in mind that a trial court is in a superior position during trial and sentencing to observe the accused and determine the appropriate sentence (People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330), and its decision should be given “great deference and weight,” as it is in a “better position to determine a sentence than that which a cold record affords a reviewing court.” (People v. Baker (1979), 72 Ill. App. 3d 682, 689, 391 N.E.2d 91, 96.) Moreover, as stated in People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545, the “standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused.”

The 11-year sentence here was within the permissible range of not less than 6 nor more than 30 years for the offense of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2(b), 1005 — 8—1(a)(3).) In determining the sentence, the trial court stated that defendant’s guilt was firmly established and that other significant factors weighed heavily against him. The court emphasized that defendant had been imprisoned for two robbery convictions in 1973; that a gun was discharged during the commission of the instant crime, which endangered children nearby; that by entering a home and hiding in a child’s bedroom, he could have caused physical and emotional danger to that child; and that defendant was over 30 years of age. Implicit in the court’s reasoning was the consideration of defendant’s rehabilitative potential. Although defendant was married, had three children, and worked with his father — all of which were brought to the court’s attention — it seems clear that the court rejected those factors and found them to be outweighed by his culpability and the circumstances of the offense. We believe, therefore, that the trial court conscientiously assessed the gravity of the offense, the interests of society, and defendant’s rehabilitative potential (see People v. Cain (1979), 70 Ill. App. 3d 1, 388 N.E.2d 54), and we do not regard the sentence imposed as an abuse of discretion.

The conviction and the sentence are affirmed.

LORENZ and WILSON, JJ., concur.


author: Mr. JUSTICE DOWNING

text:
    ROBERT BALZER, Plaintiff-Appellee, v. INLAND STEEL CO., Defendant.—(McDOWELL-WELLMAN ENGINEERING CO., Defendant-Appellant.)
    First District (2nd Division)
    No. 81-506
    Opinion filed October 13,1981.
    William J. Stellman, of Wegner, Stellman, McCord, Wood & Dalton, of Chicago (Paul R. DeRensis and David M. Gravallese, both of Powers and Hall, of Boston, Massachusetts, of counsel), for appellant.
    Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Judith E. Fors, of counsel), for appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

In this product liability action based upon the theory of strict liability in tort, the circuit court denied defendant McDowell-Wellman Engineering Co.’s (M-W) motion to dismiss the claim against it pursuant to the statute of repose. (Ill. Rev. Stat. 1979, ch. 83, par. 22.2.) From an order entered by the circuit court, this court granted a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (73 Ill. 2d R. 308).

The question identified by the circuit court is, as paraphrased, whether the statute of repose should be applied to a cause of action “existing” prior to the effective date of the statute so as to bar plaintiff Robert Balzer’s (Balzer) claim against M-W.

In 1959 and 1960, M-W engineered, built, and delivered a steel sintering plant to defendant Inland Steel Co. (Inland). Balzer was employed by a company hired by Inland to do construction work at the latter’s plant. On January 31, 1978, Balzer was injured while working near the sintering plant.

Balzer filed a complaint against Inland on July 27,1978. On February 6, 1979, Balzer amended the complaint and added M-W as a party defendant. Thereafter, M-W filed a motion to dismiss the count against it. The basis for this motion was M-W’s contention that the statute of repose barred Balzer’s claim against it. The circuit court denied the motion and later certified the matter for interlocutory appeal pursuant to Rule 308. This court granted M-W leave to appeal.

I

M-W argues that the language of the statute of repose and the legislative history of that provision demonstrate that the legislature intended the statute to apply to all causes of action based upon strict liability in tort, whenever accrued, and that such retroactive application of the statute acts to bar Balzer’s claim against it.

The general rule utilized where a statute decreases the time in which an action may be filed is that the statute will not be retroactively applied unless there exists a reasonable amount of time after its effective date for filing of claims which “existed” prior thereto. (Nergenah v. Norfolk & Western Ry. Co. (1980), 81 Ill. App. 3d 866, 868, 401 N.E.2d 1154, 1155-56; Anderson v. Wagner (1978), 61 Ill. App. 3d 822, 825, 378 N.E.2d 805, 807-08, affd (1979), 79 Ill. 2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54; see generally 2 Sutherland, Statutes & Statutory Construction §41.09 (4th ed. 1973).) Contrary to the argument of M-W, the period which is scrutinized by the courts for its reasonableness is, as noted, not the period between the passage of the statute and its effective date. Rather, examination of cases on the subject demonstrates that the relevant period is that time between the statute’s effective date and the date on which the pre-existing cause of action would be barred under the new statute as applied. (See Hupp v. Gray (1978), 73 Ill. 2d 78, 83, 382 N.E.2d 1211, 1213-14; Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 166, 380 N.E.2d 782, 784-85; Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 359, 288 N.E.2d 423, 426; Jones v. Brill (1981), 97 Ill. App. 3d 943, 944-45, 423 N.E.2d 930, 930-31; Charles v. Meyer Medical Group, S.C. (1981), 96 Ill. App. 3d 275, 277, 421 N.E.2d 334, 335; Thurston v. City of East Alton (1980), 85 Ill. App. 3d 382, 384, 406 N.E.2d 876, 877-88.) The cases also indicate that the determination of whether the statute will be applied is made on a case by case basis.

In the instant case, retroactive application of the statute of repose would bar Balzer from proceeding against M-W on the strict product liability cause of action. M-W delivered the product which allegedly caused Balzer’s injury in 1960. Balzer suffered the injury in 1978. Clearly, this injury occurred outside of the limitation period of the statute. Thus, were the statute applicable here, Balzer’s action against M-W would have become barred immediately upon the provision’s effective date, January 1, 1979. Since there was no period of time whatsoever for Balzer to have filed the action after the statute’s effective date, clearly there cannot be found the reasonable period required to allow retroactive application of the provision here.

M-W also asserts that the legislature clearly intended that the statute of repose have retroactive application. In support of the contention, M-W can only point to the fact that an amendment which allegedly would have made the statute of prospective effect was tabled. M-W reasons that this action demonstrates that the legislature thus intended a retroactive application. Examination of the legislative proceedings shows only that the tabling action did in fact occur. (House of Rep. debate on H. B. 1333, May 25, 1978.) There was no discussion of the substance of that action, nor is there any indication elsewhere that the legislature had the assigned intent. This vague activity certainly does not support M-W’s argument, nor does it contradict the general rule, stated above, concerning retroactivity of such enactments.

Finally, this court will not address Bglzer’s pro forma constitutional arguments as they are unnecessary to resolution of the case.

For the reasons stated, we find that the circuit court of Cook County correctly denied M-W’s motion to dismiss by refusing to apply the statute of repose in this case.

Affirmed.

HARTMAN, P. J., and STAMOSJ., concur.

       The statute of repose states, in relevant part:
      “[N]o product liability action based on the doctrine of strict liability in tort shall be commenced except ° ° ° within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff ° ° (Ill. Rev. Stat. 1979, ch. 83, par. 22.2(4)(b).)
      The statute had an effective date of January 1, 1979.

       M-W relies chiefly upon Orlicki v. McCarthy (1954), 4 Ill. 2d 342,122 N.E.2d 513. We have examined that holding and find no contradiction therein with the holdings of the numerous authorities cited in the succeeding text of our opinion. In Orlicki, the supreme court based its decision to retroactively apply a new limitation statute upon a legislative intent which is not apparent in the present provision, and upon a procedural-substantive distinction which we consider tangential to this case. We note that, had the Orlicki court chosen to make the analysis we make, the statute there still would have been retroactively applied, since the plaintiff had 23 months to file after the statute’s effective date, but failed to do so. Certainly, that period constituted a reasonable time so as to allow retroactive application.

       Here, January 1,1979.

         In this case, since the product was sold no later than 1960, under facts read most favorably to Balzer, the statute of repose would bar any action in 1972, 12 years after the sale.

       M-W expressed concern on oral argument that adoption of this rule would allow each court to determine for itself when the statute “became effective.” We merely point out that the question is not when the statute becomes effective (which clearly is on that date prescribed by the legislature), but is whether the statute as effected is to be applied to a particular fact situation.

       Under the statute of limitations otherwise applicable here, Balzer would have had two years, or until January 31,1980, to file an action against M-W. Ill. Rev. Stat. 1979, ch. 83, par. 15.


author: Mr. JUSTICE WHITE

text:
    BEVERLY BANK, Plaintiff-Appellee, v. PENTAGON INVESTMENT COMPANY et al., Defendants-Appellants.
    First District (3rd Division)
    No. 79-2147
    Opinion filed October 14,1981.

      William T. Halvorsen, of Chicago, for appellants.
    Joseph A. Coakley, of Oak Lawn, for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County entered on November 28, 1979, denying a petition filed under section 72 of the Illinois Civil Practice Act. The only question presented on appeal is did the trial court abuse its discretion when it entered the order. We hold it did not.

Beverly Bank was the holder of an installment note secured by a trust deed on certain real estate located in Cook County, Illinois. The trust deed, executed on May 29,1968, named Instant Clean, Inc., as mortgagor and Beverly Bank as trustee. Subsequently, this real estate was conveyed by Instant Clean, Inc., to Dan Terzakis and Vicki Terzakis, his wife; Eleftherios Chronopoulos and Martha Chronopoulos, his wife; Petros Nikitas and Mary Kaye Nikitas, his wife; Theodor G. Spyropoulos and Erika Spyropoulos, his wife; and Tom Katris and Helen Katris, his wife. As part consideration for the conveyance, the above-named individuals executed an agreement on July 31, 1972, whereby they assumed the mortgage indebtedness.

On October 7, 1965, Beverly Bank filed a complaint to foreclose the mortgage. The defendants included: Pentagon Investment Company, a partnership; Instant Clean, Inc.; Danny Terzakis, Theodor G. Spyropoulos, Terry Chronopoulos and. Petros Nikitas, doing business as Pentagon Investment Company; and all of the above named individual grantees from Instant Clean, Inc. Appearances were filed by Pentagon Investment Company, and all the individual defendants, except Eleftherios and Martha Chronopoulos. Pentagon Investment Company, Dan Terzakis and Vicki Terzakis also filed an answer to the complaint.

On June 21, 1977, plaintiff moved to default Mr. and Mrs. Theodor G. Spyropoulos, Mr. and Mrs. Tom Katris, and Mr. and Mrs. Petros Nikitas for failure to answer or otherwise plead to the complaint. On December 22, 1977, a default judgment was entered against these defendants. This order also granted plaintiffs motion for summary judgment, and entered judgment for Beverly Bank and against defendants Dan Terzakis, Vicki Terzakis and Pentagon Investment Company. On the following day, a decree of foreclosure was entered by the trial court.

Pursuant to the decree of foreclosure, the real estate was sold by the sheriff at a public sale to Beverly Bank for $15,000. On February 9, 1978, the trial court entered an order approving sheriff’s report of sale and distribution. The trial court found that there was a deficiency of $48,811.24, and judgment was entered against certain defendants, including Theodor Spyropoulos, Erika Spyropoulos, Tom Katris, Helen Katris, Petros Nikitas, Mary Kaye Nikitas, and Vicki Terzakis, for $48,811.24.

On September 20, 1978, these defendants, through their attorneys, Burke, Nash and Shea, Ltd., filed a petition to set aside and vacate the order approving sheriff’s sale and distribution and report thereof pursuant to section 72 of the Illinois Civil Practice Act. This petition was subsequently amended, and on September 12, 1979, the amended petition was denied.

On November 5,1979, Pentagon Investment Company and the same defendants except Vicki Terzakis by their attorney, William T. Halvorsen, filed a second petition to vacate and set aside the decree of foreclosure, and order approving sheriff’s sale and distribution and report in accordance with section 72 of the Illinois Civil Practice Act. On November 28, 1979, the trial court heard arguments of counsel and entered an order denying this petition. It is from this order that these petitioners appeal.

Section 72 of the Civil Practice Act provides a procedure for obtaining relief by petition from final orders, judgments and decrees after 30 days from the date of entry thereof. (Ill. Rev. Stat. 1979, ch. 110, par. 72; David Plywood & Lumber Co. v. Sloan (1977), 52 Ill. App. 3d 71, 74, 367 N.E.2d 101.) This section enables a party to bring before the court rendering a judgment facts not appearing of record which, if known to the court at the time the judgment was entered, would have prevented its rendition. (Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464, 467, 236 N.E.2d 719; American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 643, 400 N.E.2d 102.) A petition under section 72, however, is not intended to relieve a party from the consequences of his own mistake or negligence, and a petitioner must show “that through no fault or negligence of his own, the error of fact or the existence of a valid defense was not made to appear to the trial court.” (Esczuk, 39 Ill. 2d 464, 467; Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 505, 165 N.E.2d 294; Eastman Kodak Co. v. Guasti (1979), 68 Ill. App. 3d 484, 487, 386 N.E.2d 291.) Section 72 “was never intended to give a party a new opportunity to do that which should have been done in an earlier proceeding.” Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805.

The burden is upon a petitioner under section 72 to allege and prove facts sufficient to justify relief (Esczuk, 39 Ill. 2d 464, 467), and the quantum of proof necessary to sustain a section 72 petition is a preponderance of the evidence. (Holland, 80 Ill. App. 3d 638, 643; David Plywood & Lumber Co., 52 Ill. App. 3d 71, 74.) When seeking relief from a default judgment, the petition must affirmatively set forth facts showing both the existence of a meritorious defense and the exercise of due diligence on the part of the petitioner in presenting both a defense to the lawsuit and the section 72 petition. (Holland, 80 Ill. App. 3d 638, 643; David Plywood & Lumber Co., 52 Ill. App. 3d 71, 74-75.) In order to obtain relief from a default judgment under that section, a petitioner must show that his failure to defend against the lawsuit was the result of an excusable mistake and that he acted reasonably, and not negligently, when he failed to initially resist the judgment. Holland, 80 Ill. App. 3d 638, 643; David Plywood & Lumber Co., 52 Ill. App. 3d 71, 75.

Furthermore, it is well settled that a section 72 petition is addressed to the sound discretion of the trial court, and that a reviewing court is justified in disturbing the judgment of the trial court on such a petition only when there has been an abuse of discretion. Holland, 80 Ill. App. 3d 638, 643; David Plywood & Lumber Co., 52 Ill. App. 3d 71, 74; Taylor v. City of Chicago (1975), 288 Ill. App. 3d 962, 965, 329 N.E.2d 506.

In the instant case, a default judgment was entered against each of the individual petitioners and summary judgment was entered against petitioner Pentagon Investment Company. These petitioners now contend that certain letters and a statement obtained by them on October 15,1979, and attached to their petition justify relief under section 72.

The new evidence consisted of (1) a letter dated June 12, 1974, from Richard T. Hardy, Jr., vice president of Beverly Bank, to Pentagon Investments in care of “Danny Boy” Terzakis concerning a building violation on the mortgaged property; (2) a letter dated August 24, 1974, from Hardy to Pentagon Investments in care of “Danny Boy” Terzakis concerning unpaid real estate taxes on the mortgaged property; (3) a letter dated November 8, 1974, from Hardy to “Danny Boy” Terzakis, Pentagon Investments requesting a response to the second letter; (4) a check dated August 20,1975, made payable to the order of Beverly Bank for $815 and signed by Vicki Terzakis; and (5) a statement dated December 31,1977, from Beverly Bank to Pentagon Investment Company to assist Pentagon in the preparation of its income tax return.

Petitioners-appellants’ briefs do not indicate how the three letters from Hardy or the check are material. Their petition suggests that these letters, the check, and the December 31, 1977, statement indicated that the bank had released the individual petitioners from their obligation on the trust deed and note. The petition, in fact, alleged that between 1972 and 1974 petitioners Tom Katris, Petros Nikitas, and Theodor Spyropoulos sold their interest in Pentagon Investment Company to Dan “Danny Boy” Terzakis, that Beverly Bank accepted and acknowledged this sale, and that Beverly Bank orally released the individual petitioners from their obligation on the trust deed and note. We do not understand how the new evidence indicates that Beverly Bank released the individual petitioners of their liability for the mortgage indebtedness. Furthermore, with respect to the alleged oral release, we note that the petition alleges that such a release occurred between 1972 and 1974. No reason is given for the failure to raise this alleged defense in response to the complaint to foreclose or in the first section 72 petition. In fact, no excuse or explanation is given for the individual petitioners’ failure to answer or defend the lawsuit. The individual petitioners have failed to demonstrate the exercise of due diligence in presenting any alleged defense on the basis of an oral release.

Furthermore, we conclude that neither the three letters from Hardy nor the check are material because they are not evidence of a release of the individual petitioners by Beverly Bank. They are not of such a character that, if known to the trial court at the time judgment was entered, they would have prevented its rendition.

The statement from Beverly Bank dated December 31,1977, requires special attention. That statement indicated that Pentagon Investment Company’s balance as of that date was $21,765.72. Thus, the statement suggests that the deficiency in the amount of $48,811.24 was too great. This apparent inconsistency, however, is explained by the uncontroverted affidavit of Richard T. Hardy, which explained that the statement reflected the principal balance, less amounts charged to the bank’s bad debt reserve, and plus miscellaneous charges such as court costs. The affidavit also stated that the statement was mechanically produced and erroneously mailed to Pentagon Investment Company and that the statement did not reflect the balance owed to Beverly Bank, but was a statement of internal bank accounting procedures. Under these circumstances, the trial court could properly conclude that the statement of December 31, 1977, was not inconsistent with the amount of deficiency found below.

We also note that in order to obtain a new trial because of newly discovered evidence, it must appear that reasonable diligence was used to procure the evidence prior to trial. (Petrauskas v. Motejunas (1971), 133 Ill. App. 2d 293, 296, 272 N.E.2d 805; Ulrich v. Glyptis (1967), 79 Ill. App. 2d 447, 454, 224 N.E.2d 581.) The petition in the instant case, however, merely states, “That petitioners on or about the 15th day of October 1979, obtained copies of certain letters written and mailed by plaintiff BEVERLY BANK TO DANNY ‘DANNY BOY’ TERZAKIS, PENTAGON INVESTMENTS, ° ° No attempt is made to explain why the three letters dated in 1974 or the check dated in 1975 could not have been discovered or obtained prior to the entry of the default judgment and summary judgment. In fact, the petition does not even allege that petitioners did not have knowledge of these items prior to entry of the judgments.

There is authority for the position that a default judgment may be set aside if justice and good conscience so require, even though there has been a lack of due diligence in presenting a defense. (American Reserve Corp. v. Holland (1980), 80 Ill. App. 3d 638, 646, 400 N.E.2d 102; Burkitt v. Downey (1968), 102 Ill. App. 2d 373, 377, 242 N.E.2d 901.) But, “the ambit of section 72 relief must not be overbroadened to such an extent that principles of equity and an ordered concept of justice are diluted.” Holland, 80 Ill. App. 3d 638, 646; David Plywood & Lumber Co. v. Sloan (1977), 52 Ill. App. 3d 71, 75, 367 N.E.2d 101.

For the aforementioned reasons, we are of the opinion that the trial court did not abuse its discretion in denying the section 72 petition. Accordingly, the order of the circuit court of Cook County entered on November 28,1979, is affirmed.

Affirmed.

RIZZI, P. J., and McNAMARA, J., concur.

       This argument by petitioners is apparently concerned only with the liability of the individual petitioners and not the liability of Pentagon Investment Company.


text:
      In re MARRIAGE OF GENEVA THOMAS, Petitioner-Appellant, and DONALD THOMAS, Respondent-Appellee.
    First District (3rd Division)
    No. 80-1315
    Opinion filed October 14,1981.
    Helen R. Rogal, of Chicago, for appellant.
    No brief filed for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

Petitioner, Geneva Thomas, was granted dissolution of her marriage and given custody of her two children, ages 4 and 10. Thé judgment of dissolution, however, denied her the use of her maiden name. From that portion of the judgment petitioner appeals.

At the hearing below, petitioner was asked by her counsel if she wished to resume her maiden name, she answered yes, and this colloquy followed:

“THE COURT: Mrs. Thomas, I always consider the best interest of the children, do you feel that by you assuming another name and the children having the name Thomas, that it won’t confuse the children?
THE WITNESS: I don’t know.
THE COURT: Well, if you don’t know, I am not going to let you resume your former name.
MS. ROGAL: I believe she has a basic right to resume it just for asking for it.
THE COURT: Under the best interest — if she is telling me she is doing it for professional use—
MS. ROGAL: The Act says—
THE COURT: It has never been tested. Take it up. Her petition is denied.”

This was all of the evidence before the trial court on the issue of the restoration of petitioner’s maiden name.

Petitioner contends that the trial court erred in denying her request, asserting that the statutory language is mandatory and leaves the court no discretion as to whether to grant or deny a request for restoration of a maiden name. The Appellate Court, Fourth District, in a recent case has so construed the statute. (In re Marriage of Dorks (1981), 98 Ill. App. 3d 1046.) Section 413(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 413(c)) provides, “Upon request by a wife whose marriage is dissolved or declared invalid, the court shall order her maiden name or a former married name restored.”

By the common law, every person is free not only to assume any surname he or she pleases, but also to change it at any time. In Reinken v. Reinken (1933), 351 Ill. 409, 413, 184 N.E. 639, our supreme court said:

“At common law, and in the absence of statutory restriction, an individual may lawfully change his name without resort to any legal procéedings, and for all purposes the name thus assumed will constitute his legal name just as much as if he had borne it from birth. (45 Corpus Juris, 381.) Our ‘act to revise the law in relation to names’ [citation] permits an individual to apply to the circuit court for the entry of an order changing his name. These statutory provisions are, however, not exclusive but are merely permissive, and they do not abrogate the common law right of the individual to change his name without application to the courts.”

Petitioner also contends that the trial court misapplied the best interests of the child concept when presented with petitioner’s request for restoration of her maiden name. We agree with her contention. We reach this conclusion whether or not we interpret the language of section 413(c) as mandatory, although we recognize that “shall” is generally held to be mandatory, particularly when addressed to a public official. The best interests of the child are to be considered by the trial court in selecting the custodial parent. The name which the parent uses has not been held to be one of the relevant factors. The welfare of the child becomes an important consideration where the custodial parent petitions to change the name of the minor child (Solomon v. Solomon (1955), 5 Ill. App. 2d 297, 302, 125 N.E.2d 675), but not where the custodial parent seeks to change his or her own name. In the trial court no evidence was adduced and no facts were found upon which to conclude where the bests interests of petitioner’s children lay. It appears that the only possible basis for refusing to allow the restoration of petitioner’s maiden name is that the children would have a name different from their mother’s. This, without more, is not a sufficient basis for a pronouncement of a child’s best interests. Elwell v. Elwell (1973), 132 Vt. 73, 313 A.2d 394; Brown v. Brown (D.C. App. 1977), 384 A.2d 632.

In Sneed v. Sneed (Okla. 1978), 585 P.2d 1363, the trial court refused to restore Mrs. Sneed’s maiden name because she had a minor child. The statute (Okla. Stat. tit. 12, §1278 (1976 Supp.)) provided: “When a divorce is granted, the wife shall be restored to her maiden or former name if she so desires * *

The Oklahoma appellate court held that the statute did not leave discretion to the trial court but that it recognized the common law right of a married woman to change her name back to her maiden, or previously used name, and the fact that a child was born did not operate to deprive the wife of the use of her preconjugal name. The court noted that it was not unusual for children and parents to be living together with different last names since many marriages involve a divorced woman who has children and who changes her name to the name of her new husband.

The trial court erred in summarily denying petitioner’s request for restoration of her maiden name. Accordingly, that portion of the judgment of dissolution of marriage which denied petitioner’s request to resume use of her maiden name is reversed.

Reversed.

RIZZI, P. J., and McGILLICUDDY, J., concur.


author: Mr. PRESIDING JUSTICE ROMITI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BOOKER VAUGHN, Defendant-Appellant.
    First District (4th Division)
    No. 79-1770
    Opinion filed October 15,1981.

      Ralph Ruebner and Nancy Abrahams, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Joan S. Cherry, and Alexander Vroustouris, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Following a jury trial defendant Booker Vaughn was convicted of two counts of attempted murder, two counts of armed robbery, one count of attempted armed robbery, and one count of unlawful restraint. For these crimes he was sentenced to concurrent terms ranging from 20 to 30 years for each count of armed robbery to one to three years for unlawful restraint. The sole issue on appeal is whether the trial court erred in refusing to declare a mistrial or hold an evidentiary hearing on the basis of defendant’s contention that the prosecution used its peremptory challenges to systematically exclude blacks from jury service solely because of their race.

We affirm.

Because of the narrow focus of defendant’s contention we summarize only that portion of the proceedings below relating to jury selection. We do note, however, that our review of the entire record on appeal has established to our satisfaction that defendant was convicted on the basis of proper and sufficient evidence.

After jury selection began a mistrial was declared on defendant’s motion because of potentially prejudicial remarks made by one prospective juror. The following day selection began anew with another venire. When the trial court made a general inquiry as to whether any prospective jurors knew any of the parties one man responded that he was the United Parcel Service delivery man for one of defendant’s attorneys. Without objection from defendant the court excused that man. A second potential juror was excused by the court because she knew one potential police witness and indicated this might affect her determination of his credibility. Defense counsel then objected to the dismissal of the prior potential juror, asserting that his status as a delivery man for one of defendant’s attorneys was not in itself a sufficient basis for disqualification. (In response to this the court noted that it customarily excused any potential juror who knew any of the parties.) Counsel further noted that this left only one black out of a venire of 33 people, and he predicted that the prosecution would use its peremptory challenges to obtain an all-white jury to try the defendant, who was black. Counsel moved that jury selection be postponed until additional black prospective jurors could be available. The court considered this as a challenge to the jury panel and denied the motion.

After the court questioned a number of potential jurors the court reporter was excused without objection from either side. The record on appeal thus indicates only that thereafter a jury was selected and duly empaneled; those proceedings were not transcribed. The court then stated:

“The jury selection is complete and [defense counsel] has indicated that he is going to, on Monday, file a motion charging the State with a systematic exclusion of blacks from the jury by the use of his pre-emptories [sic] and the facts were that there were thirty-five jurors in the original venire, ten additional jurors were brought up. Of those forty-five jurors there were four blacks. The State excused three and the Court excused one on its own motion.”

The prosecutor noted for the record that both sides had used a total of 11 peremptory challenges, the court having granted each side one additional challenge.

Thereafter, defendant filed a motion for an evidentiary hearing at which, he contended, he could establish that the prosecution used its peremptory challenges to exclude all blacks from the jury. This was done, defendant alleged, as part of a plan, practice, custom and usage in Cook County which violated defendant’s right to a fair and impartial trial by depriving him of a jury from which no cognizable group in society was systematically excluded. He alleged that the result was the selection of an all-white jury in a case in which the alleged victims were “primarily” white and the defendant was black.

In argument on the motion the prosecution noted that one of the three black potential jurors was excused by them because he had been sleeping during the court’s examination. Defense counsel did not seek to counter this contention but substantially relied on his motion as having sufficiently raised the issue to require a hearing. The court denied the motion, finding that defendant had not alleged sufficient facts to require a hearing.

I

In Swain v. Alabama (1965), 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, a black defendant convicted of rape by an all-white jury challenged his conviction on the ground that the prosecution had violated his fourteenth amendment right to equal protection of the laws by striking from the venire all blacks through the use of the Alabama equivalent of peremptory challenges. After reviewing the history of peremptory challenges the court stated:

° * we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.” (380 U.S. 202, 221-22, 13 L. Ed. 2d 759, 773, 85 S. Ct. 824, 836-37.)

In dictum concurred in by only four justices the court also indicated that a violation of the fourteenth amendment might be established upon a showing that the prosecution had systematically, in case after case, removed all black jurors who survived challenge for cause so that no blacks ever served on petit juries.

Even prior to the Swain decision the Illinois Supreme Court had denied a similar challenge to such a use of peremptory challenges. (People v. Harris (1959), 17 Ill. 2d 446, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 4 L. Ed. 2d 747, 80 S. Ct. 755.) In subsequent cases that court has adhered to the holding in Swain. (People v. Butler (1970), 46 Ill. 2d 162, 263 N.E.2d 89; People v. King (1973), 54 Ill. 2d 291, 296 N.E.2d 731.) Nonetheless, defendant asks this court to go beyond those holdings and to adopt the rationale of the California Supreme Court in People v. Wheeler (1978), 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890. That court, while recognizing the apparent continuing validity of Swain, held that the use of peremptory challenges to remove prospective jurors solely on the ground of group bias, that is on the presumption they are biased merely because they are members of an identifiable group distinguishable by classifications like race or religion, violated the California constitution’s guarantee of the right to trial by a jury drawn from a representative cross-section of the community. The Wheeler court held that in any individual case it would be presumed that peremptory challenges were exercised on proper grounds. But it then set forth the manner in which a party could overcome this presumption:

“If a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, as in the case at bar, he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood that such persons are being challenged because of their group association rather than because of any specific bias.” (22 Cal. 3d 258, 280, 583 P.2d 748, 764,148 Cal. Rptr. 890, 905.)

The court also gave examples of evidence relevant to such a showing:

“Thus the party may show that his opponent has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by such circumstances as the failure of his opponent to engage these same jurors in more than desultory voir dire, or indeed to ask them any questions at all. Lastly * * * the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.” (22 Cal. 3d 258, 280-81, 583 P.2d 748, 764, 148 Cal. Rptr. 890, 905-06.)

Under Wheeler if the court then finds that a prima facie case has been made that peremptory challenges were used solely on the ground of group bias the burden would shift to the other party to disprove this.

No Illinois court to date has adopted the Wheeler holding and methodology. (See People v. Bracey (1981), 93 Ill. App. 3d 864, 417 N.E.2d 1029, where the court did not reach the issue; People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117, where in dictum the court indicated that in a proper case it would follow Wheeler; and People v. Fleming (1980), 91 Ill. App. 3d 99, 413 N.E.2d 1330, where the court declined to follow Wheeler, criticizing it as vague and uncertain.) But like the court in Bracey, we do not find it necessary to determine whether we should follow Wheeler. Even under the standards set out in Wheeler defendant has failed to establish a prima facie case of discrimination. Defendant failed to obtain a record of the entire voir dire; the court excused the court reporter from most of the proceedings without objection from counsel. At the hearing on defendant’s motion, he merely relied on the allegations in his motion, which were conclusory in nature. Indeed, the only reference to the specifics of what had occurred during voir dire was that of the prosecutor, tending to indicate that at least as to one of the jurors at issue there was a specific basis other than race for the prosecutor to seek exclusion. But on the state of this record, we could only speculate as to whether similar grounds were evident for the other excused jurors. We are thus precluded from examining such factors as the nature of the questioning which did take place or whether the excused jurors shared only the distinguishing characteristic of race. These are of course factors singled out by the Wheeler court, whose decision defendant asks us to adopt. We thus find no basis for disturbing the determination of the trial court.

The judgment of the trial court is affirmed.

Affirmed.

JIGANTI and LINN, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    MARY VIRNIG KNUDSEN, Plaintiff-Appellant, v. ARLINGTON HEIGHTS FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    First District (5th Division)
    No. 80-2389
    Opinion filed October 16, 1981.
    George E. Brogan, of Evergreen Park, for appellant.

      Anderson, Drolet, McDonnell & Miller, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

The primary issue in this appeal is whether a judge assigned to the chancery-divorce division of the Circuit Court of Cook County had “jurisdiction” to grant a petition for withdrawals from a minor’s account. The disputed account was opened by and subject to court order, as provided in section 323a (now section 24 — 21) of the Probate Act (Ill. Rev. Stat. 1969, ch. 3, par. 323a, now Ill. Rev. Stat. 1979, ch. llOlí, par. 24 — 21). Plaintiff argues that only a judge assigned to the probate division had “jurisdiction” to grant the withdrawal petition permitted by this section.

Additionally, plaintiff argues that a guardian ad litem had to represent her during proceedings on a withdrawal petition. We disagree, with both contentions, and the order entering judgment for defendant is affirmed. The following facts are material to our decision.

Plaintiff was injured in 1963 when she was six years of age, and a minor’s estate was opened so that a tort action could be prosecuted on her behalf. In April of 1964, a circuit court judge assigned to the probate division approved a compromise and settlement of the tort action. Among other things, the 1964 order instructed plaintiff’s guardian to deposit the net proceeds of the settlement, $3,471.21, in an account with defendant, Arlington Heights Savings and Loan Association, “subject to further order of court.” After disbursement vouchers were filed, the court discharged the guardian from further duty.

In 1970, while plaintiff was still a minor, her mother petitioned to have the settlement proceeds used to pay a child psychiatrist and a reading clinic for services rendered to plaintiff. On March 3, 1970, the petition was granted by a circuit court judge who was assigned to the chancery-divorce division.

This order states that plaintiff’s parents appeared in open court and that evidence was heard on the petition. In addition, the order recites that the court held a conference which included the attorneys who represented each parent, a school psychologist, a child psychiatrist, and a reading clinic employee.

Although a guardian ad litem was not appointed to represent her during the proceedings on the withdrawal petition, plaintiff concedes that the expenditures authorized by this order “were essential to [her] health and well-being ° Eventually all the money in the account was used to pay for these services.

There is no suggestion that these funds were not used for the specified services, and no question is raised about the amounts charged for the services. Nevertheless, when plaintiff reached adulthood she filed an action against defendant seeking to recover the entire $3,471.21 on the grounds that only an order from a judge assigned to the probate division could authorize defendant to permit withdrawals from her account. This matter proceeded as a bench trial and, after submission of an agreed statement of the facts, the court entered judgment for defendant.

Opinion

Effective January 1, 1964, the judicial article of the 1870 Illinois Constitution was almost totally revised. (G. Braden and R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 327 (1969).) Before this constitutional reform, the citizens of Illinois were confronted with a confusing array of circuit, superior, county, probate, criminal, police magistrate, and justice of the peace courts. (Braden and Cohn, at 330.) It was not unusual for an appellate tribunal to declare, after years of litigation, that the judgment of one of these courts was void for lack of jurisdiction. (Braden and Cohn, at 330.) This was one of the reasons why the provision for a unified trial court of unlimited original jurisdiction was described as “Perhaps the most significant innovation of the proposed Judicial Article * * V’ (Mulliken, The Unified Trial Court, 50 Ill. Bar J. 668 (1962).) Another commentator wrote that, “The new proposal holds out bright hope for escape at last from the creeping paralysis of the court system in Illinois.” Chandler, The New Judicial Article for Illinois, 50 Ill. Bar J. 654 (1962).

Under the 1964 reform, the old jurisdictional problems were eliminated: “A suit cannot be filed in the wrong court because there is only one trial court.” (Braden and Cohn, at 331.) This restructuring of the Illinois court system was so successful that it was almost totally incorporated by the 1970 Illinois Constitution. Cohn, The Illinois Judicial Department— Changes Effected by the Constitution of 1970, 1971 U. Ill. L. F. 355-56.

Despite these constitutional reforms, plaintiff claims that the probate division of the circuit court had “exclusive jurisdiction” over petitions for withdrawals from the accounts of minors. Plaintiff finds support for this contention in General Order 2.1(V) of the chief judge of the Circuit Court of Cook County. This order provides that proceedings concerning the estates of minors should be assigned to the probate division. Both the 1964 amendment to the judicial article of the prior constitution and the present constitution authorize the chief judge of each circuit to provide for specialized trial court divisions. Ill. Const. 1970, art. 6, §7(c); Ill. Const. 1870, art. 6, §8 (as amended, effective January 1, 1964).

Our initial response to plaintiff’s argument is to note that the General Order 1 — 3(b) of the.Circuit Court of Cook County provides that no final order shall be “vacated, set aside or invalidated” on the grounds that the matter was filed or heard in the “wrong” division. Moreover, both the present and prior constitution, as amended, specify that the power to create specialized trial court divisions is subject to the authority of the supreme court. It is, therefore, important to note that Supreme Court Rule 132, which became effective January 1, 1964, as Rule 9(1) (Ill. Rev. Stat. 1965, ch. 110, par. 101.9(1)) and which has not been changed, provides that:

“Every complaint or other paper initiating any civil action or proceeding shall contain in the caption the words ‘at law,’ ‘in chancery,’ ‘in probate,’ ‘small claim,’ or other designation conforming to the organization of the circuit court into divisions. Misdesignation shall not affect the jurisdiction of the court.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 110A, par. 132.

The supreme court clearly anticipated that, as in this case, litigants would argue that general orders providing for specialized trial court divisions have resurrected, in Illinois, separate trial court systems of limited and exclusive jurisdiction. But to hold that a judge did not have jurisdiction to grant the petition in this case merely because he was assigned to one division or another would reinfect our unified trial court with the same creeping paralysis that threatened the Illinois judicial system before 1964.

We conclude that it necessarily follows from Supreme Court Rule 132 that the filing of an action or proceeding in the wrong division does not affect the jurisdiction of a judge in that division to hear and decide the misfiled matter. (Accord, Fins, Re-examination of “Jurisdiction” in Light of the New Illinois Judicial Article, 53 Ill. Bar J. 11 (1964).) We also conclude that the petition for withdrawals in this case was a paper which initiated a proceeding within the meaning of Supreme Court Rule 132. Therefore, even if the petition should have been designated “in probate” and filed in that division, a judge assigned to the chancery-divorce division had jurisdiction to hear and decide the matter.

Plaintiff refers us to Alfaro v. Meagher (1975), 27 Ill. App. 3d 292, 326 N.E.2d 545, and Pepin v. City of Chicago (1967), 79 Ill. App. 2d 295, 223 N.E.2d 587, but because they do not refer to or consider the effect of Supreme Court Rule 132, we do not find these cases persuasive on the issue presented by this case.

It would not be useful to discuss the pre-1964 cases cited by plaintiff concerning the “continuing” and “exclusive” jurisdiction of trial courts which became extinct on January 1, 1964. These cases merely prove the wisdom of providing for a unified trial court of general jurisdiction.

Plaintiff points out that at one time section 323a of the Probate Act (now section 24 — 21)—the provision under which the disputed petition was filed — used to refer to “the filing of a verified petition * * * in the probate court.” (Ill. Rev. Stat. 1963, ch. 3, par. 323a.) However, plaintiff fails to note that this provision was amended, so that in 1970, when plaintiff’s mother filed the petition in this case, there was no further reference to “probate court.” Ill. Rev. Stat. 1969, ch. 3, par. 323a.

The second issue raised on appeal is whether the order granting withdrawals from plaintiff’s account is invalid on the grounds that a guardian ad litem was not appointed to represent her during the proceedings on the petition. We note that section 323a (now section 24 — 21) does not require that a guardian be appointed to represent a minor during proceedings on a petition for withdrawals. Instead, the petitioner is required to seek court approval and to “furnish such evidence of the necessity for the withdrawal as the court may require.” This procedure was obviously designed to protect the interests of the minor without requiring the court to appoint a guardian in every case.

It is, however, important to note that our ruling does not take away from the court’s authority to appoint a guardian of the estate or person of a minor whenever it appears necessary or convenient. (Ill. Rev. Stat. 1979, ch. 110/2, par. 11 — 5(a).) We merely recognize that appointment of a guardian might be unnecessary in light of the protection afforded to a minor under section 24 — 21. For example, in this case plaintiff concedes that the expenditures for educational and psychiatric services were “essential to [her] health and well being # It is inconceivable that a guardian ad litem would have opposed a petition for services which were so crucial to plaintiff. And, as we pointed out earlier, no issue is raised about the amounts charged for these services. We simply fail to see how a guardian ad litem could have protected plaintiff’s interests more thoroughly than the trial court did. There is no showing that appointment of a guardian ad litem would have changed the result other than by generating unnecessary fees and expenses. Therefore, we see no error in having declined to appoint a guardian ad litem.

For the preceding reasons the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and MEJDA, J., concur.